Gerald A. Newburger, Jr. v. Orkin, L.L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-534

GERALD A. NEWBURGER, JR.

VERSUS

ORKIN, L.L.C., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 261,969
HONORABLE GEORGE C. METOYER, JR, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

EXCEPTION OF RES JUDICATA MAINTAINED.
REVERSED.

William Alan Pesnell
Alan Pesnell Lawyer, LLC
120 E. Mark Street
Marksville, LA 71351
(318) 717-2380
COUNSEL FOR PLAINTIFF APPELLANT:
Gerald A. Newburger, Jr.

Matthew L. Nowlin
Keiser Law Firm, P.L.C.
P. O. Box 12358
Alexandria, LA 71315
(318) 443-6168
COUNSEL FOR DEFENDANT APPELLEE:
Cypress Point At Lake District Condo Assoc.

WILSON, Judge.

Defendant, Cypress Point at Lake District Condominium Association

(Cypress Point) filed a motion to assess attorneys’ fees and costs. Plaintiff, Gerald

A. Newburger Jr., filed an opposition to the motion and an exception of res

judicata. The trial court denied the exception and granted the motion and assessed

$25,000 in attorneys’ fees in favor of Cypress Point. Mr. Newburger appeals. For

the following reasons, we reverse and maintain Mr. Newburger’s exception of res

judicata.

I.

ISSUES

We must decide:

1) Can the trial court award attorneys’ fees where no statute is
implicated allowing any such fees, and where no contract is
applicable to attorneys’ fees in the instant suit, and where
the Appellee has failed to make a compulsory
reconventional demand?

2) Should the Trial court have granted the Exception of Res
Judicata or upheld the defense of res judicata?

3) What is reasonable attorneys’ fees for a case that consisted
of document production, one deposition, and a directed
verdict, where no detailed affidavit of attorneys’ fees was
ever served on Appellant and where it was not presented in
open court?

II.

FACTS AND PROCEDURAL HISTORY

This current matter stems from an action brought to enjoin Cypress

Point from spraying noxious chemicals around Mr. Newburger’s condominium.

As alleged by the petition, Cypress Point contracted for certain noxious chemicals

to be sprayed at the condominium of Mr. Newburger in connection with certain

pest control operations, which he claimed caused adverse health reactions. Mr.

Newburger’s petition prayed for injunctive relief against Cypress Point to prevent

continued use of the noxious chemicals at his condominium.

In February 2019, following the beginning of the trial on injunctive

relief, the trial court dismissed the matter on a directed verdict. Mr. Newburger

appealed that decision, and on November 6, 2019, this Court affirmed the trial

court’s ruling.1 Following this Court’s ruling, Cypress Point filed a Motion for

Assessment and Recovery of Attorney’s Fees and Costs. The sole basis for

assessing attorneys’ fees was the provision of the Condominium Declaration,

which are filed of record in the public record of Rapides Parish, Louisiana.

Cypress Point requested the assessment and recovery of attorneys’ fees in the

amount of $36,133.50 and for recovery of certain non-record costs.

In response, Mr. Newburger filed an opposition and an exception of

res judicata. Mr. Newburger argued that the demand for attorneys’ fees at such a

stage in the suit was a compulsory reconventional demand under La.C.C.P. Art.

1061(B) and that the trial court’s judgment, as affirmed by this court, was res

judicata as to all matters including attorneys’ fees.

Following a hearing on the motion, the trial court assessed attorneys’

fees at $25,000.00 against Mr. Newburger. Mr. Newburger then perfected this

appeal.

III.

STANDARD OF REVIEW

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Court composed of Judge D. Kent Savoie, Judge Phyllis M. Keaty, and Chief Judge Ulysses
Gene Thibodeaux found that the Trial Cour committed no manifest error or abuse of discretion
and affirmed. Newburger v. Orkin, L.L.C., 2019-383 (La.App. 3 Cir. 11/6/19); 283 So.3d 549.

2

When an exception of res judicata is raised before the case is

submitted in the trial court and evidence is received on the exception, the

traditional standard of review on appeal is manifest error. Leray v. Nissan Motor

Corp. in U.S.A., 05-2051 (La.App. 1 Cir. 11/3/06); 950 So.2d 707. However, “the

res judicata effect of a prior judgment is a question of law that is reviewed de

novo.” Fogleman, et al. v Meaux Surface Protection, Inc., 10-1210 (La.App. 3 Cir.

03/9/11), 58 So.3d 1057, writ denied, 11-712 (La. 5/27/11), 63 So.3d 995.2

IV.

LAW AND DISCUSSION

Res Judicata

In consideration of judicial efficiency, this Court finds it necessary

first to address Plaintiff’s second assignment of error regarding res judicata. An

exception of res judicata is a peremptory exception under La. Code Civ. P. Art.

927 and may be recognized by an appellate court on its own motion. In his second

assignment of error, Plaintiff argues that the trial court committed legal error when

it denied his exception of res judicata.

Louisiana Revised Statutes 13:4231, which sets forth the doctrine of res

judicata, provides as follows:

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
Fogleman is quoting Morales v. Parish of Jefferson, 10-273 (La.App. 5 Cir.
11/9/10), 54 So.3d 669.

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(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.

Simply put, res judicata bars re-litigation of a subject matter arising

from the same transaction or occurrence of a previous suit. Therefore, the court

must determine whether the second action asserts a cause of action that arises from

the same transaction or occurrence as the subject matter of the first action.

Diamond B Constr. Co., Inc. v. Dep't of Transp. & Dev., 02-0573 (La.App. 1 Cir.

2/14/03), 845 So.2d 429.

In response, Cypress Point raise two arguments as to why res judicata

does not apply. First, Cypress Point argues that the adjudication of Newburger’s

underlying injunction proceeding was not made final until this Court’s November

6, 2019, ruling; therefore, the action for recovery of attorneys’ fees did not mature

until after this Court’s prior judgment became final. The record shows that the trial

court issued its ruling on February 25, 2019. Newburger appealed the trial court’s

decision; then, on November 6, 2019, this Court affirmed the trial court’s ruling.

Cypress Point concedes in argument that this is the point the judgment becomes

final. Following a final judgment, res judicata bars re-litigation of a subject matter

arising from the same transaction or occurrence of a previous suit. Ave. Plaza,

L.L.C. v. Falgoust, 96-0173 (La. 7/2/96), 676 So.2d 1077. Leon v. Moore, 98-1792

(La.App. 1 Cir. 4/1/99), 731 So.2d 502, writ denied, 99-1294 (La. 7/2/99), 747

So.2d 20. Cypress Point did not file the Motion for Assessment and Recovery of

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Attorneys’ Fees and Costs until March 12, 2020, several months after they agree

the judgment became final. Therefore, Cypress Point’s motion is barred by res

judicata.

Secondly, Cypress Point argues that they did make a plea for

attorneys’ fees in their original answer. This plea was made when they

incorporated, by reference, the Condominium Declaration that provides Cypress

Point the right to recovery of cost and attorneys’ fees. As provided by Louisiana

Revised Statute 13:4232, the doctrine of res judicata is subject to several

exceptions, one of which is referred to as “exceptional circumstances.” This Court

has previously ruled that a judgment reserving the issue of attorneys’ fees qualifies

as an “exceptional circumstance” to bring forth such a motion for assessment of

cost and attorneys’ fees after the judgment becomes final. A.M.C v. Caldwell, 17-

628, p. 12 (La.App 3 Cir. 2/15/18), 239 So. 3d 948. Siemens Water Technologies

Corp. v. Revo Water Systems, LLC, 13-631(La.App. 3 Cir. 1/18/14), 130 So. 3d

473.

It is recognized throughout Louisiana jurisprudence 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.” Jackson v. Iberia Par. Gov’t,

98-1810 (La. 4/16/99), 732 So.2d 517. Louisiana jurisprudence requires that the

issue of attorneys’ fees and cost not just be pled, but also reserved by the court

prior to the final judgment or through said judgment. While it may be true that the

issue of attorneys’ fees was raised by reference in Cypress Point’s answer, this

issue was not reserved or discussed in the judgment. Furthermore, the trial court

assigned the issue of cost following the dismissal and before the final judgment.

The request for added cost and for attorneys’ fees was still not made by Cypress

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Point. As this Court sees it, there were clear opportunities to reserve the request,

yet, not made, and therefore no exceptional circumstances exist.

In their brief, Cypress Point writes, “it is simply antithetical to both

[the] Condominium Declaration and LSA-R.S. 13:4231, …, to have required the

parties to litigate recovery of costs and attorneys’ fees before the predicate for

recovery was ever established, all while Cypress Point continued to incur

attorneys’ fees in defending against Newburger’s first appeal.” This statement

suggests that Cypress Point believes new issues from the litigation caused the

violation of their Condominium Declaration that now requires them to file for

added cost and attorneys’ fees. If these new issues were filed in a subsequent

lawsuit, then perhaps res judicata would not apply. However, the judgment in this

matter is final and any such action following is deemed res judicata. The trial

court erred in failing to grant the exception.

Given our decision to reverse the trial court’s ruling and maintain the

exception of res judicata, a review of the remaining assignments is unnecessary.

V.

CONCLUSION

For the foregoing reasons, the exception of res judicata filed by Mr.

Newburger is maintained. The ruling of the trial court is reversed. All costs of this

appeal are assessed to Defendant/Appellee, Cypress Point, Lake District

Condominium Association.

EXCEPTION OF RES JUDICATA MAINTAINED.
REVERSED.

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