James Addison McCalmont, III v. James A. McCalmont, IV and Payton Brooks McCalmont

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-738

JAMES ADDISON MCCALMONT, III

VERSUS

JAMES ADDISON MCCALMONT, IV AND
PAYTON BROOKS MCCALMONT

**********

ON APPEAL FROM
THE NINTH JUDICIAL DISTRICT COURT
DOCKET NUMBER 259,535, FOR THE PARISH OF RAPIDES
HONORABLE GEORGE C. METOYER, JUDGE

*********

JONATHAN W. PERRY
JUDGE

**********

Court composed of John E. Conery, D. Kent Savoie, and Jonathan W. Perry, Judges.

PEREMPTORY EXCEPTION OF NO CAUSE
OF ACTION DENIED. JUDGMENT OF THE TRIAL COURT
GRANTING THE PEREMPTORY EXCEPTION OF RES JUDICATA IS
REVERSED. CASE REMANDED TO THE TRIAL COURT FOR
FURTHER PROCEEDINGS.

Todd A. Rossi
Michael J. deBarros
Kean Miller, LLP
P. O. Box 3513
Baton Rouge, LA 70821
(225) 387-0999
Counsel for Appellant:
JAMES ADDISON MCCALMONT, III

Curtis R. Shelton
Ayres, Shelton, Williams, Benson & Paine, LLC
P. O. Box 1764
Shreveport, LA 71166
(318) 227-3500
Counsel for Appellant:
JAMES ADDISON MCCALMONT, III

Jimmy R. Faircloth, Jr.
Nathan W. Friedman
Mary K. Price
Faircloth, Melton, Sobel & Bash, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
Counsel for Appellee:
JAMES ADDISON MCCALMONT, IV and
PAYTON BROOKS MCCALMONT1

1
Payton was dismissed early in this litigation on a peremptory exception of no cause of
action.

PERRY, Judge.

This case involves the question of whether a father’s subsequent suit against

his son for invasion of privacy and an alleged violation of Louisiana’s Electronic

Surveillance Act (hereafter the “Electronic Surveillance Act”), based upon almost

verbatim allegations he asserted against his daughter in a prior suit, a suit now settled

and dismissed with prejudice, was barred by res judicata. We reverse the trial court’s

judgment which sustained the peremptory exception of res judicata and further deny

the son’s peremptory exception of no cause of action filed for the first time in this

court.

FACTS AND PROCEDURAL HISTORY

This litigation centers on family contentions which begin with the divorce of

James A. McCalmont, III (hereafter “James’), and Colleen Hawthorn (hereafter

“Colleen”) and end with separate lawsuits James filed, after the Colleen’s death, first

against his daughter Lauren Elizabeth McCalmont (hereinafter “Lauren”) and then

against his son, James A. McCalmont, III (hereafter “Jay”).

On February 15, 2017, James sued his daughter, Lauren, alleging that she

accessed his cell phone on or about July 31, 2016, furtively obtained information of

embarrassing private facts about him, and then shared that information with third

parties. This it was contended was an invasion of privacy and violated La.R.S.

15:1301–1318, the Electronic Surveillance Act. Just prior to James’s lawsuit, Lauren

had filed suit against James, alleging he had committed the tort of battery and had

intentionally inflicted emotional distress on her. On April 4, 2017, James and Lauren

settled their cross-litigation, each agreeing to dismiss the lawsuits they had brought

against the other; in the settlement document, James reserved the right to sue third

parties. On May 3, 2017, James’s suit against Lauren and Lauren’s suit against James

were formally dismissed with prejudice.

On July 31, 2017, James, using almost verbatim language from his lawsuit

against Lauren, sued his son, Jay, and Jay’s wife, alleging that Jay disclosed

information and data to third parties and James’s wife, that Lauren had intercepted

embarrassing private facts about James, and that this invaded his privacy and violated

the Electronic Surveillance Act. After Jay’s wife was dismissed from the lawsuit on

a peremptory exception of no cause of action and after numerous other filings, Jay

interposed a peremptory exception of res judicata to James’s lawsuit against him.

After conducting a hearing, the trial court sustained Jay’s peremptory exception and

dismissed James’s lawsuit. In reaching this conclusion, the trial court stated:

[I]t is the finding of this court that the peremptory exception of res
judicata should have been granted as a second lawsuit of this matter
would be arising out of the same transaction and occurrence that was the
subject matter of the current litigation.

James perfected a suspensive appeal. He contends that the trial court erred: (1)

when it found that the dismissal of his earlier lawsuit against Lauren was res judicata

as to the present lawsuit by him against Jay, who was not a party to either the prior

lawsuit or the settlement between him and Lauren; (2) when it found that “the

peremptory exception of res judicata should have been granted as a second lawsuit of

this matter would be arising out of the same transaction and occurrence that was the

subject matter of the current litigation[;]” and (3) when it sustained the exception of

res judicata and dismissed his lawsuit against Jay.

For the first time in this litigation, Jay has filed a peremptory exception of no

cause of action in this court. In his motion, Jay contends that James has failed to state

any cause of action against him based on either the general tort of invasion of privacy

or the Electronic Surveillance Act. Accordingly, he asks this court to sustain his

peremptory exception of no cause of action and dismiss James’s petition with

prejudice.

2

NO CAUSE OF ACTION

It is well recognized that the peremptory exception of no cause of action may

be filed in the appellate court. La.Code Civ.P. art. 2163; Francis v. Lake Charles

Am. Press, 262 La. 875, 265 So.2d 206 (1972). Because a determination of this

peremptory exception in Jay’s favor would potentially terminate this litigation and

make our analysis of the res judicata issue unnecessary, we will first address Jay’s

peremptory exception of no cause of action.

In Nizamutdinova v. Kappa Sigma Fraternity, 18-886, pp. 8-9 (La.App. 3 Cir.

10/2/19), 280 So.3d 1003, 1009–10, this court stated:

A peremptory exception of no cause of action questions whether
the law extends a remedy to anyone under the factual allegations of the
petition. Its function “is to test the legal sufficiency of the petition by
determining whether the law affords a remedy on the facts alleged in the
pleading.” Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616
So.2d 1234, 1235 (La.1993). “No evidence may be introduced at any
time to support or controvert the objection that the petition fails to state
a cause of action.” La.Code Civ.P. art. 931. “Every reasonable
interpretation must be accorded the language of the petition in favor of
maintaining its sufficiency and affording the plaintiff the opportunity of
presenting evidence at trial.” Indus. Cos., Inc. v. Durbin, 02-665, p. 7
(La. 1/28/03), 837 So.2d 1207, 1213. “All reasonable inferences are
made in favor of the nonmoving party in determining whether the law
affords any remedy to the plaintiff.” City of New Orleans v. Bd. of Dirs.
of La. State Museum, 98-1170, p. 9 (La. 3/2/99), 739 So.2d 748, 755.

Consequently, the court reviews the petition and accepts
well-pleaded allegations of fact as true. The issue at the trial
of the exception is whether, on the face of the petition, the
plaintiff is legally entitled to the relief sought.

Louisiana has chosen a system of fact pleading.
Therefore, it is not necessary for a plaintiff to plead the
theory of his case in the petition. However, the mere
conclusions of the plaintiff unsupported by facts does not set
forth a cause of action.

The burden of demonstrating that the petition states no
cause of action is upon the mover. . . . The pertinent question
is whether, in the light most favorable to plaintiff and with
every doubt resolved in plaintiff’s behalf, the petition states
any valid cause of action for relief.

3

Ramey [v. DeCaire, 03-1299 (La. 3/19/04)], 869 So.2d [114,] 118-19
(citations omitted).

In City of New Orleans, 739 So.2d at 756, our supreme court stated:

An exception of no cause of action is likely to be granted only in the
unusual case in which the plaintiff includes allegations that show on the
face of the petition that there is some insurmountable bar to relief. Thus,
dismissal is justified only when the allegations of the petition itself
clearly show that the plaintiff does not have a cause of action, or when
its allegations show the existence of an affirmative defense that appears
clearly on the face of the pleadings. [City of New Orleans v. ] Board of
Comm’rs of Orleans Levee Dist., [93-690 (La. 7/5/94),] 640 So.2d []
237. A court appropriately sustains the peremptory exception of no
cause of action only when, conceding the correctness of the well-
pleaded facts, the plaintiff has not stated a claim for which he can receive
legal remedy under the applicable substantive law.

In the present case, James’s petition seeks damages from Jay based upon

invasion of privacy and violations of the Electronic Surveillance Act. We will

address those assertions individually.

Invasion of Privacy

Jay makes a twofold argument, urging that James’s petition fails to state a

cause of action for invasion of privacy. He argues that James’s petition fails to allege

any public disclosure of private facts and further fails to allege that Jay’s conduct was

either objectively unreasonable or that it seriously interfered with any privacy interest

of James.

In Norris v. King, 355 So.2d 21, 23 (La.App. 3 Cir. 1978), cert. denied, 439

U.S. 995, 99 S.Ct. 596 (1978) (footnote omitted), this court stated:

The cause of action known as “invasion of privacy” has
long been recognized and pronounced by the jurisprudence of this
State. Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.App. 4
Cir. 1974) described the right of privacy as follows:

“ . . . ‘the right to be let alone’ and as ‘the right
to live one’s life in seclusion without being subjected
to unwarranted and undesirable publicity’.”

“As appears from the cited cases and as
discussed at length in the Comment at 28 La.Law

4

Rev. (April 1968) malicious intent on the part of the
defendant is not a necessary element in the
prosecution of an invasion of privacy claim. If the
defendant’s conduct is unreasonable and seriously
interferes with plaintiff’s privacy the invasion is
actionable.”

This tort has usually been associated with conduct falling
into one or more of the following classifications:

(1) Intrusion (Lucas v. Ludwig, 313 So.2d 12 (La.App. 4
Cir. 1975), certiorari denied, 318 So.2d 42 (La.));

(2) Public disclosure of private facts (Lambert v. Dow
Chemical Co., 215 So.2d 673 (La.App. 1 Cir. 1968); Hamilton v.
Lumbermen’s Mutual Cas. Co., 82 So.2d 61 (La.App. 1 Cir.
1955);

(3) False light in public eye (Tooley v. Canal Motors, Inc.,
supra);

(4) Appropriation of another’s name (Tooley v. Canal
Motors, Inc., supra; McAndrews v. Roy, 131 So.2d 256 (La.App.
1 Cir. 1961).

Numerous paragraphs of James’s petition allege facts detailing Jay’s intrusion

into the private life of his father. Moreover, despite Jay’s contention that there are

no allegations of Jay’s dissemination of that information other than to his mother,

Paragraph 7 of James’s petition alleges that “on one or more occasions, [Jay] . . . used

and further disclosed that information and data to third parties.” After carefully

reviewing James’s petition, we find the petition states a cause of action for the public

disclosure of private facts and for the intrusion upon his solitude.

Electronic Surveillance Act

In his petition against Jay, James argues that Jay’s acts violated the Electronic

Surveillance Act. In particular, James contended that information was taken from his

cell phone without his knowledge or consent, that this information was James’s stored

electronic communications, data and information, including messages, and/or

electronically stored data that these electronically stored communications and data

5

were intentionally taken and shared between Lauren and Jay, including pictures, and

that Jay used these electronically stored communications and data in an effort to cause

James harm and damages, and to embarrass him.

Before us, Jay argues that James’s petition fails to state a cause of action under

the Electronic Surveillance Act. Although Jay makes this contention, our review of

his brief shows that he only makes conclusory statements and provides no analysis

of the allegations of James’s petition which would support his contention to this court

that James’s petition fails to state a cause of action based thereon. “The burden of

showing that the plaintiff has stated no cause of action is upon the exceptor.” City of

New Orleans, 739 So.2d at 755. Jay fails to carry that burden as the exceptor.

Therefore, we find no merit to Jay’s argument that James’s petition fails to state a

cause of action for a violation of the Electronic Surveillance Act.

For the foregoing reasons, we deny Jay’s peremptory exception of no cause of

action.

ON THE MERITS

Standard of Review

“The standard of review of a peremptory exception of res judicata requires an

appellate court to determine if the trial court’s decision is legally correct.”

Fletchinger v. Fletchinger, 10–0474, p. 4 (La.App. 4 Cir. 1/19/11), 56 So.3d 403,

405. “[T]he doctrine of res judicata is stricti juris and, accordingly, any doubt

concerning the applicability of the principle must be resolved against its application.”

Id., at 406.

Res Judicata

“An exception is a means of defense, other than a denial or avoidance of the

demand, used by the defendant, whether in the principal or an incidental action, to

retard, dismiss, or defeat the demand brought against him.” La.Code Civ.P. art. 921.

6

“The function of the peremptory exception is to have the plaintiff’s action declared

legally nonexistent, or barred by effect of law, and hence this exception tends to

dismiss or defeat the action.” La.Code Civ.P. art. 923. The exception of res judicata

is properly raised as a peremptory exception. La.Code Civ.P. art. 927(A)(3). “The

peremptory exception may be pleaded at any stage of the proceeding in the trial court

prior to a submission of the case for a decision and may be filed with the declinatory

exception or with the dilatory exception, or both.” La.Code Civ.P. art. 928(B). “On

the trial of the peremptory exception pleaded at or prior to the trial of the case,

evidence may be introduced to support or controvert any of the objections pleaded,

when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 931.

If the grounds of the peremptory exception cannot be removed by amending the

petition, the claims shall be dismissed. La.Code Civ.P. art. 934.

Res judicata promotes the dual purposes of judicial efficiency and the final

resolution of disputes by preventing needless relitigation. Terrebonne Fuel & Lube,

Inc. v. Placid Refining Co., 95-0654 (La. 1/16/96), 666 So.2d 624. Louisiana Revised

Statutes 13:4231 states:

Except as otherwise provided by law, a valid and final judgment
is conclusive between the same parties, except on appeal or other direct
review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the transaction or
occurrence that is the subject matter of the litigation are extinguished
and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action
existing at the time of final judgment arising out of the transaction or
occurrence that is the subject matter of the litigation are extinguished
and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect to any
issue actually litigated and determined if its determination was essential
to that judgment.

7

‘“The burden of proof is upon the pleader to establish the essential facts to

sustain the plea of res judicata.”’ Mundell v. Mundell, 03–631, p. 2 (La.App. 3 Cir.

11/5/03), 858 So.2d 768, 770 (quoting Ins. Assocs., Inc. v. Francis Camel Constr.,

Inc., 95-1955 (La.App. 1 Cir. 5/10/96), 673 So.2d 687); see also Louisiana Workers’

Comp. Corp. v. Betz, 00-0603, p. 3 (La.App. 4 Cir. 4/18/01), 792 So.2d 763, 765. If

“all essential elements are present and each necessary element has been established

beyond all question,” res judicata may be invoked. Id. Moreover, the res judicata

doctrine must be strictly construed, and any doubt concerning its applicability is

resolved against the party raising the objection. Berrigan v. Deutsch, Kerrigan &

Stiles, LLP, 01-0612 (La.App. 4 Cir. 1/2/02), 806 So.2d 163, writs denied, 02-338,

02-341 (La. 4/12/02), 813 So.2d 410.

James’s argument that the trial court’s recognition of the peremptory exception

of res judicata was erroneous is threefold: first, there was no prior judgment between

the same parties to support the plea of res judicata; second, Lauren could not be

deemed in privity with Jay for the purpose of res judicata; and third, James’s claims

against Jay are distinct from the claims he made against Lauren.

Jay’s argument to the trial court and again to us is that the dismissal of James’s

suit against Lauren barred all subsequent claims arising out of the same transaction

or occurrence as against Lauren and any party in privity with Lauren, namely, Jay.

In particular, Jay argues that Lauren adequately represented his interest in the prior

suit such that she was his “virtual representative” in the initial litigation which James

brought.

We begin with the premise that “[t]he doctrine of res judicata precludes re-

litigation of all causes of action arising out of the same transaction or occurrence that

were the subject matter of a prior litigation between the same parties.” Contogouris

v. Ocean Therapy Sols., LLC, 15-0472, p. 5 (La.App. 4 Cir. 1/27/16), 187 So.3d 18,

8

21, writ denied, 16-367 (La. 4/15/16), 191 So.3d 591 (emphasis added). In the

present case, although James is the same party-plaintiff in both matters, Jay was not

a party-defendant in James’s lawsuit against Lauren. Therefore, we must examine

whether Lauren may have been in privity with Jay for purposes of res judicata.

Although identity of the parties does not mean that the parties must be the same

physical or material parties, they nonetheless must appear in the suit in the same

quality or capacity. Certified Fin., Inc. v. Cunard, 01-0797 (La.App. 1 Cir. 4/17/02),

838 So.2d 1, writ denied, 02-1802 (La. 10/14/02), 827 So.2d 424. The parties are

required to be the same “only in the legal sense of the word.” Berrigan, 806 So.2d

at 167.

In Cunard, 838 So.2d at 4-5, the first circuit stated:

Following the federal law from which our new res judicata statute was
taken, Louisiana courts have held that the preclusive effect of a
judgment binds the parties to an action and the nonparties who are
deemed the “privies” of the parties in three limited circumstances: 1) the
nonparty is the successor in interest of a party; 2) the nonparty controlled
the prior litigation; and 3) the nonparty’s interests were adequately
represented by a party to the action who may be considered the “virtual
representative” of the nonparty because the interests of the party and the
nonparty are so closely aligned. Thomas v. Janzen, 35,288, pp. 12–13
(La.App. 2d Cir.10/31/01), 800 So.2d 81, 89; Condrey v. Howard,
28,442, p. 5 (La.App. 2 Cir. 8/21/96), 679 So.2d 563, 566–67, writ
denied, 96–2335 (La.11/22/96), 683 So.2d 281, citing Meza v. General
Battery Corp., 908 F.2d 1262 (5th Cir.1990).

See also Hudson v. City of Bossier, 33,620 (La.App. 2 Cir. 8/25/00), 766 So.2d 738,

writ denied, 00-2687 (La. 11/27/00), 775 So.2d 450.2

2
In Smith v. LeBlanc, 06-0041 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 78, the court further
elaborated on privity as follows:

Identity of parties is satisfied when a privy of one of the parties is involved.
Burguieres [v. Pollingue, 02-1385 (La. 2/25/03)], 843 So.2d [1049,] at 1054 n. 3. In
its broadest sense, “privity” is the mutual or successive relationship to the same right
of property, or such an identification in interest of one person with another as to
represent the same legal right. Noel v. Jumonville Pipe & Machinery Co., 245 La.
324, 158 So.2d 179, 184 (1963); see Five N Company, L.L.C. v. Stewart, 02–0181
(La.App. 1st Cir.7/2/03), 850 So.2d 51, 61–62; see also O'Bannon for O'Bannon v.
Azar, 506 So.2d 522 (La.App. 1st Cir.), writ denied, 511 So.2d 1158 (La.1987);
9

In the present case, it is abundantly clear that Jay was not a party to James’s

lawsuit against Lauren. Although Cunard recognized three limited circumstances on

which a claim for res judicata involving non-parties may be based, he makes no

argument that he was either a successor to the interest of Lauren or that he controlled

the prior litigation. Rather, Jay focuses solely on Lauren being his virtual

representative.

In Meza, 908 F.2d at 1272, the fifth circuit observed:

The question of virtual representation is to be kept within “strict
confines.” Benson and Ford, Inc. v. Wanda Petroleum Co., 833 F.2d
1172, 1175 (5th Cir.1987) (quoting Hardy v. Johns–Manville Sales
Corp., 681 F.2d 334, 339 (5th Cir.1982)). Among the “strict confines”
is a requirement that there be “an express or implied legal relationship
in which parties to the first suit are accountable to non-parties who file
a subsequent suit raising identical issues.” Benson and Ford, 833 F.2d
at 1175; Hardy, 681 F.2d at 340; Pollard v. Cockrell, 578 F.2d 1002,
1008 (5th Cir.1978).

Such representation “requires more than a showing of parallel interests—it is not

enough that the non-party may be interested in the same questions or proving the

same facts.” Eubanks v. Fed. Deposit Ins. Co., 977 F.2d 166, 170 (5th Cir.1992);

Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir.1985). Just as the

Supreme Court specifically rejected “an expansive doctrine of virtual

representation,” Taylor v. Sturgell, 553 U.S 880, 896, 128 S.Ct. 2161 (2008), so has

the U.S. Fifth Circuit Court of Appeals, see, Gulf Island–IV, Inc. v. Blue Streak–Gulf

Island Operations, 24 F.3d 743 (5th Cir.1994) (quoting Eubanks, 977 F.2d at 170);

White v. Fox, 576 Fed.Appx. 327 (5th Cir. 2014).

Middleton v. Parish of Jefferson, 97–324 (La.App. 5th Cir.1/14/98), 707 So.2d 454,
456, writ denied, 98–0403 (La. 3/27/98), 716 So.2d 896.

See these examples of identical parties: State, Dept. of Soc. Serv. v. Coleman, 616 So.2d
844 (La.App. 3 Cir.1993) (state representing mother’s right to enforce child support obligation);
Cornish v. Freeman, 451 So.2d 148 (La.App. 1 Cir.), writ denied, 458 So.2d 476 (La.1984) (insured
and her liability insurer, to extent of policy limits); Ditch v. Finkelstein, 399 So.2d 1216 (La.App.
1 Cir.1981) (parties to compromise and their heirs); Baker v. Wheless Drilling Co., 303 So.2d 511
(La.App. 2 Cir. 1974) (employer-employee and lessor-lessee relationships).
10

In his brief to this court, Jay discretely differentiates his argument between

James’s claim under the Electronic Surveillance Act and his invasion of privacy

claim3 in an effort to exemplify that Lauren was his virtual representative.

Jay first contends that James’s lawsuit against him is based on an alleged

violation of the “use” and “disclosure” provisions of the Electronic Surveillance Act.4

As a predicate to that allegation, Jay argues that it would be first incumbent upon

James to prove that Lauren intercepted electronic communications. See State v.

Smith, 02-2736, p. 3 (La.App. 4 Cir. 5/21/03), 848 So.2d 650, 652 (holding that “there

is no violation of the use and disclosure prohibition unless there is first a violation of

the interception prohibition.”) This, Jay says, is a legal impossibility because James

has dismissed his interception claim against Lauren with prejudice. Therefore, Jay

further takes the position that the doctrine of res judicata bars James’s current lawsuit

against him because James’s cause of action against him and Lauren were so

intertwined that the earlier dismissal of the lawsuit against Lauren is fatal to the

viability of the current action against him. We disagree.

3
In the event the court should determine that one, but not both, of the claims brought
against him are not barred by res judicata, Jay alternatively argues that we only dismiss the claim
deemed barred.
4
Louisiana Revised Statutes 15:1303 provides, in pertinent part:

A. Except as otherwise specifically provided in this Chapter, it shall be unlawful for
any person to:

(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept
or endeavor to intercept, any wire, electronic or oral communication;
....

(3) Willfully disclose, or endeavor to disclose, to any other person the contents of
any wire, electronic, or oral communication, knowing or having reason to know that
the information was obtained through the interception of a wire, electronic, or oral
communication in violation of this Subsection; or

(4) Willfully use, or endeavor to use, the contents of any wire, electronic, or oral
communication, knowing or having reason to know that the information was
obtained through the interception of a wire, electronic, or oral communication in
violation of this Subsection.
11

Jay improperly commingles James’s general burden of proof with the legal

import of James’s dismissal with prejudice of his claims against Lauren. Rather than

being mutually binding, their legal effect is separate and distinct. Granted, James’s

dismissal of his lawsuit against Lauren with prejudice prevents him from ever

reasserting the claims asserted therein against her. On the other hand, as a matter of

proof in the current lawsuit against Jay, James is not precluded from utilizing

Lauren’s testimony about her interception of any wire, electronic or oral

communications, potential violations of La.R.S. 15:1303(A)(1), as an element of

proof that Jay willfully disclosed and or used that intercepted communication, a

potential violation of La.R.S. 15:1303(A)(2) and (3). Simply stated, there exists a

myriad of ways that James can establish an interception of communications in

violation of the Electronic Surveillance Act despite James’s earlier dismissal of his

action against Lauren.

Jay further argues that James’s cause of action against him based upon the

Electronic Surveillance Act arises out of the same transaction or occurrence and

existed at the time that the final judgment was rendered in James’s first lawsuit

against Lauren. Relying on Jackson v. Iberia Par. Gov’t, 98-1810 (La. 4/16/99), 732

So.2d 517, 524, Jay further argues that “inherent in the concept of res judicata is the

principle that a party had the opportunity to raise a claim in the first adjudication, but

failed to do so.” On this basis, Jay contends that under the rules of claim preclusion,

James’s action against him is precluded because this action could have been pleaded

earlier in his lawsuit against Lauren and was not. We find otherwise.

In Terrebonne Fuel & Lube, Inc, 666 So. 2d at 631-32 (emphasis added), the

supreme court stated:

The purpose of both federal and state law on res judicata is essentially
the same; to promote judicial efficiency and final resolution of disputes

12

by preventing needless relitigation. As explained by former Chief
Justice John A. Dixon, Jr.,

It is implicit in the concept of a judicial system that
controversies be finally resolved so that parties may enjoy
their rights and so that conflicting legal obligations may not
be imposed on an individual; litigation must end at some
point. Precluding relitigation prevents inefficient use of the
courts’ resources, reduces the possibility of harassment
through vexatious suits, and helps maintain respect for the
judicial proceeds by guarding against inconsistent
decisions.

Dixon, Booksh, Zimmering, Res Judicata in Louisiana since Hope v.
Madison, 51 Tul.L.Rev. 611 (1977), footnotes in quotation omitted.

Under common law, the doctrine of res judicata focuses on
“extinguishment” of the cause of action. A plaintiff’s cause of action
“merges” into a judgment for plaintiff, whereas a judgment for
defendant “bars” relitigation of the cause of action, which is considered
to be extinguished. “Since the cause of action is extinguished by the
lawsuit, res judicata precludes litigation of not only that which was
pleaded but also any issue which might have been pleaded with
regard to that cause of action.” Arbour, The Louisiana Concept of Res
Judicata, 34 La.L.Rev. 763, 764 (1974).

Initially, we note that although James’s action against Lauren ended when they

settled their differences with a compromise agreement, there was no judicial

determination on the issue of her interception of communications under the

Electronic Surveillance Act. Louisiana Revised Statutes 13:4231(3) (emphasis

added) provides, “A judgment in favor of either the plaintiff or the defendant is

conclusive, in any subsequent action between them, with respect to any issue

actually litigated and determined if its determination was essential to that

judgment.” The determination of interception, a predicate to James’s action against

Jay, is a legal question yet to be determined. See Interdiction of Hunter, 18-685

(La.App. 4 Cir. 9/11/19), 2018 WL 6683212, writ denied, 19-208 (La. 4/8/19), 267

So.3d 608. Thus, at least with regards to James’s claim under the Electronic

Surveillance Act, there is no merit to Jay’s argument that claim preclusion prevents

James’s current lawsuit against him.

13

Turning next to the separate argument that James’s invasion of privacy claim

against him is barred by res judicata, Jay contends that this subsequent lawsuit against

him should be precluded because even a non-party is treated as a party for purposes

of adjudicating/assessing fault.5 In support of his argument, Jay makes the

assumption that he and Lauren, if found liable, would share fault. Accordingly, he

asserts that he should have been considered as an unnamed party in the suit against

Lauren for purposes of res judicata. See Williams v. City of Marksville, 02-1130

(La.App. 3 Cir. 3/5/03), 839 So.2d 1129.6 For reasons which follow, we disagree.

A valid compromise can form the basis of a plea of res judicata. Ortego v.

State, Dep’t of Transp. & Dev., 96-1322 (La. 2/25/97), 689 So.2d 1358; Marsh v.

USAgencies Cas. Ins. Co., 42,176 (La.App. 2 Cir. 5/16/07), 957 So.2d 901, writ

denied, 07-1286 (La. 10/26/07), 966 So.2d 575. Nevertheless, a party claiming res

5
Louisiana Civil Code Article 2323 provides, in pertinent part:

A. In any action for damages where a person suffers injury, death, or loss,
the degree or percentage of fault of all persons causing or contributing to the injury,
death, or loss shall be determined, regardless of whether the person is a party to the
action or a nonparty[.]
....
B. The provisions of Paragraph A shall apply to any claim for recovery of
damages for injury, death, or loss asserted under any law or legal doctrine or theory
of liability, regardless of the basis of liability.
6
In Williams, 839 So.2d at 1132–33 (footnotes omitted), this court held:

Thus, even though not formally joined in the suit, for all intents and purposes,
even a nonparty is treated as if s/he is a party for the purpose of allocating a
percentage of fault to that “party” in order to reduce the percentage of fault allocated
to the actual litigants and it stands to reason for purposes of res judicata. However,
this does not mean that a nonparty is responsible if cast in judgment since to do so
would violate that person’s due process rights by binding the non-party without
giving that person an opportunity to be heard.

Thus, while Ms. Williams did not “third party” the City in Officer Bordelon’s
suit, when she attempted to use the City’s fault for an allegedly defective intersection
as an affirmative defense, in effect, she put the City’s fault in this regard at issue and
is precluded from asserting it a second time in another suit. Moreover, Ms. Williams
did not appeal the fault allocation in that suit, making it a final adjudication of the
City’s fault, even though the trial court did not, specifically, address the City’s fault
in its allocation. It is sufficient for res judicata purposes that the pleadings and law
indicate the grounds for the trial court’s judgment.

14

judicata based on a compromise agreement must have been a party to the

compromise. Rodriguez v. Louisiana Tank, Inc., 94-0200 (La.App. 1 Cir. 6/23/95),

657 So.2d 1363, writ denied, 95-2268 (La. 11/27/95), 663 So.2d 739. Persons who

were not parties to a compromise by other interested parties were not bound thereby

and could not take any advantage flowing from it. Cantu v. Schlumberger, 50,605

(La.App. 2 Cir. 5/25/16), 197 So.3d 191, writ denied, 16-1307 (La. 10/28/16), 208

So.3d 888.

In the present case, it is clear James and Lauren were the only signatories to

the Settlement Agreement that ended James’s initial action against Lauren and

Lauren’s action against James. More precisely, that settlement agreement expressly

limited its provisions to James’s and Lauren’s claims against each other.7 The

Settlement Agreement specifies as follows:

Section 2.5. Limit of Releases and Waivers. The releases and waivers
granted by James and Lauren are not intended to be, and shall not be or
interpreted to be, a release of waiver by James or Lauren of any other
rights, obligations, or causes of action existing between or among James
and Lauren or James and Lauren and any third parties. Without limiting
the foregoing, nothing in this Agreement is intended to affect, change,
or alter any property rights of James and Lauren, further including, but
not limited to, any such rights acquired by inheritance, donation inter
vivos or mortis causa, or otherwise.

The Settlement Agreement further stated: “This Agreement in no way constitutes a

third-party beneficiary contract or stipulation pour autrui in favor of any third party.”

Notwithstanding the very specifics of the settlement agreement entered into by

James and Lauren, Jay further argues that the provisions of the settlement were of no

moment because James failed to reserve his third-party rights in the judgment in

which he dismissed his action against Lauren. We find no merit to Jay’s argument.

7
The Settlement Agreement was of separate lawsuits that had been pending between James
and Lauren as reflected in lawsuit numbers 258,106 and 256,891 in Rapides Parish.
15

Louisiana Civil Code Article 1802, provides, “Renunciation of solidarity by

the obligee in favor of one or more of his obligors must be express. An obligee who

receives a partial performance from an obligor separately preserves the solidary

obligation against all his obligors after deduction of that partial performance.” The

1984 Revision Comments to La.Civ.Code art. 1802 further state, in pertinent part:

This Article is new. It changes the law insofar as it eliminates
the presumption of renunciation or waiver of solidarity in the absence
of a reservation by the obligee and, as a consequence, the requirement
of a receipt extended in a particular manner. The rule in this Article is
consistent with the principle that a party should not be presumed to have
given up a right.

In Soileau v. Smith True Value & Rental, 12-1711 (La. 6/28/13), 144 So.3d

771, 785–86, our supreme court contrasted La.Civ. Code art. 1802 to its predecessor,

La.Civ.Code art. 2203, stating:

Former Louisiana Civil Code article 2203 provided that an
obligee who remitted a debt in favor of one solidary obligor, without
expressly reserving his right against the others, was deemed to have
forfeited the entire obligation. However, this rule was abandoned in
favor of the converse: the present law provides that when partial
payment is received, solidary liability is preserved unless it is expressly
renounced. Louisiana law no longer requires a reservation of rights be
included in a release to protect a settling plaintiff’s right to pursue his or
her claims against non-settling solidary obligors. See Dukes v.
Declouette,10–0045 (La.App. 1 Cir. 6/11/10), 40 So.3d 1231, 1235, writ
denied, 10–1623 (La.10/8/10), 46 So.3d 1270 (citing Sumrall v.
Bickham, 03–1252 (La.App. 1 Cir. 9/8/04), 887 So.2d 73, 80–81, writ
denied, 04–2506 (La.1/7/05), 891 So.2d 696 (Parro, J., concurring)).
Louisiana Civil Code article 1802 now specifically reads, “Renunciation
of solidarity by the obligee in favor of one or more of his obligors must
be express.”

Relying on this analysis, the court held that although a plaintiff dismissed individual

defendants and their company with prejudice during trial, it was permissible for the

plaintiff to continue her action against the insurer-defendant of these individuals; this

was allowable even though the plaintiff had not specifically reserved her rights in this

regard when the insureds were dismissed. This same analysis is dispositive of Jay’s

argument in the present case.

16

In Hudson v. City of Bossier, 33,620, pp. 7-8 (La.App. 2 Cir. 8/25/00), 766

So.2d 738, 743, writ denied, 00-2687 (La. 11/27/00), 775 So.2d 450, the second

circuit stated:

The opportunity to be heard is an essential requisite of due process
of law in judicial proceedings. Giving conclusive effect to a prior
judgment against one who is neither a party nor in privity with the party
therein contravenes due process. As a consequence, a judgment or
decree among parties to a lawsuit resolves issues as among them, but it
does not conclude the rights of strangers to those proceedings. Richards
v. Jefferson County, 517 U.S. 793, 116 S.Ct. 1761, 135 L.Ed.2d
7664(sic) (1996). Thus, without identity between the parties in the first
and subsequent actions, an exception of res judicata will not be
maintained. Tranchina v. State, 99-1332 (La.App. 4th Cir. 06/09/99),
740 So.2d 713.
After considering the above arguments, it is clear Jay failed to carry his burden

of proving he was a party to the prior litigation or that his sister Lauren was his virtual

representative. Therefore, we find the trial court legally erred when it granted Jay’s

peremptory exception of res judicata.

DISPOSITION

For the foregoing reasons, we deny the peremptory exception of no cause of

action James Addison McCalmont, IV, advanced in this court. We further reverse

the judgment of the trial court which dismissed James Addison McCalmont, III’s

lawsuit against James Addison McCalmont, IV, on a peremptory exception of res

judicata. This matter is remanded to the trial court for further proceedings. Costs of

appeal are assessed to James Addison McCalmont, IV.

PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION DENIED.
JUDGMENT OF THE TRIAL COURT GRANTING THE PEREMPTORY
EXCEPTION OF RES JUDICATA IS REVERSED. CASE REMANDED TO
THE TRIAL COURT FOR FURTHER PROCEEDINGS.

17