Billye Dickson Johnson v. Natchitoches Community Improvement Foundation, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-595

BILLYE DICKSON JOHNSON

VERSUS

NATCHITOCHES COMMUNITY IMPROVEMENT
FOUNDATION, INC.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, DOCKET NO. C-92418
HONORABLE JIMMIE C. PETERS, DISTRICT JUDGE

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SYLVIA R. COOKS
CHIEF JUDGE
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Court composed of Sylvia R. Cooks, Chief Judge, Shannon J. Gremillion and D.
Kent Savoie, Judges.

AFFIRMED.

Kelvin G. Sanders
P.O. Box 13922
Alexandria, LA 71315
(318) 487-0009
COUNSEL FOR PLAINTIFF/APPELLANT:
Billye Dickson Johnson

Jacob R. Joffrion
Gold Weems Bruser Sues & Rundell
P.O. Box 6118
Alexandria, LA 71307
(318) 445-6471
COUNSEL FOR DEFENDANT/APPELLEE:
Natchitoches Community Improvement Foundation, Inc.

COOKS, Chief Judge.

Plaintiff, Billye Dickson Johnson, appeals the trial court’s grant of

Defendant’s peremptory exception of res judicata, dismissing her claims with

prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Johnson’s suit is one of several lawsuits seeking to divest the assets of

Defendant, Natchitoches Community Improvement Foundation, Inc. (hereafter

NCIF), and transfer those assets to the Henry O. Flipper Foundation, Inc. (hereafter

the Flipper Foundation). On February 4, 2021, Plaintiff filed the present suit, styled

“Petition for Dissolution of a Non-Profit Corporation Pursuant to LSA R.S. 12:251

and Rule to Show Cause.” In that suit, Ms. Johnson alleged that NCIF, which is a

non-profit organization, should be dissolved and the Court should appoint a

temporary liquidator pursuant to La.R.S. 12:251 to “take possession of and

safeguard” the assets of NCIF. The Petition also requested the assets of NCIF be

transferred to the Flipper Foundation “in order to accelerate the development of

affordable housing within the City of Natchitoches.”

NCIF was formed to administer the Sibley Lake Community Fund, which

consisted of $600,000 obtained through settlement proceeds from two consolidated

class action suits against Tennessee Gas Pipeline Company. An order from the

Tenth Judicial District Court requires NCIF to invest the Sibley Lake Funds and use

them for one or more of the following purposes:

1. Recreational opportunities for the youth of the City of Natchitoches;

2. Educational opportunities and scholarships for the youth of the City
of Natchitoches;

3. Seed money to acquire federal, state or local grants for the
administration of cultural, artistic, recreational or educational
programs; and

4. For economic and/or housing development.

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In 2018, the Flipper Foundation filed suit against NCIF alleging

mismanagement of the Sibley Lake Community Fund on the part of NCIF,

specifically the denial of an application by the Flipper Foundation to finance a

housing project in Natchitoches. The Tenth Judicial District Court granted an

exception of no right of action filed by NCIF and dismissed the suit.

On December 30, 2019, a second suit was filed against NCIF, the Sibley Lake

Community Fund and Leo Walker, the chairman of the board of directors of the

NCIF. Named plaintiffs included the Flipper Foundation, Billye Dickson Johnson,

Thurman Batise, Cindy Batise, Leon W. Davis, Thomas Tubre and Ronald Clint

Payne. This suit sought relief under the Louisiana Trust Code, La.R.S. 9:1721 et

seq., specifically requesting the removal of the NCIF as trustee of the fund under

La.R.S. 9:1789. The prayer for relief asked that the NCIF and Mr. Walker “be found

liable for breaching their Fiduciary duties and the[y] be removed as Trustees of the

Sibley Lake Community Fund and new Trustees be appointed.”

On January 9, 2020, Vincent C. Cofield (the Chairman of the Flipper

Foundation) filed another lawsuit against NCIF and the Sibley Lake Community

Fund (though it did not name Leo Walker as a defendant). Similarly, Mr. Cofield

based his claims on NCIF’s alleged violation of the Louisiana Trust Code. This suit

specifically requested that “NCIF should be removed as corporate trustee of the

Sibley Lake Trust Fund, that another qualified corporation designated by Petitioner,

(the Flipper Foundation), should be instituted as the trustee of the Sibley Lake Trust

Fund.” The district court consolidated the December 30, 2019 and January 9, 2020

lawsuits.

On August 24, 2020, NCIF filed exceptions of no right of action and no cause

of action to the consolidated suit. The district court granted the exceptions, but the

plaintiffs in the consolidated suit were given leave to amend their pleadings pursuant

to La.Code Civ.P. art. 934. In an amended pleading filed October 28, 2020, Mr.

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Cofield deleted Leo Walker as a party defendant and instead added all of the current

members of the NCIF board of directors. The pleadings specifically “made clear

what had always been the underlying goal of the litigation—which has always been

less about changing defects in [the NCIF] and more about a complete takeover by

the Flipper Foundation.” The amended pleading requested the district court find that

the board of directors of NCIF breached their fiduciary duty to work at the best

interests of the community and that the court enter judgment removing the NCIF as

the corporate holder of the Sibley Lake Community Fund proceeds. It further

requested that the district court enter judgment assigning the Flipper Foundation as

the corporate holder of the Sibley Lake Community Fund. Several named plaintiffs

of the December 30, 2019 lawsuit, including Billye Dickson Johnson, adopted Mr.

Cofield’s amended pleading.

The NCIF re-urged its exceptions of no right of action and no cause of action

to the amended pleading. The district court granted the exception of no cause of

action filed by the NCIF and dismissed the claims against it with prejudice. The

district court stated as follows in its reasons for judgment:

Part of the problem in this litigation is that there seems to be a
basic misunderstanding concerning the history associated with the
creation and operation of the [NCIF]. That nonprofit corporation was
merely a vehicle used to consummate a settlement of the Tennessee Gas
litigation—and the fact that certain criteria for the nonprofit
corporation’s initial operation was a part of the terms of the settlement
did not create a continuing judicial oversight requirement. To the
extent that the proceedings in 2014 seem to suggest otherwise, this
court finds that those proceedings constituted nothing more than a
revisit of the original order affirming the underlying settlement and plan
of allocation. In other words, the proceeding in 2013-14 cannot be
construed as authority for a continuing judicial oversight of the [NCIF]
or as authority for every Natchitoches Parish resident to bring suit
anytime he or she feels aggrieved with the action or inaction of the
corporation. The [NCIF] is governed by state law, internal rules, and a
twenty-five member board of directors (whose membership is subject
to change on a regular basis). To conclude otherwise, would create a
never-ending flow of litigation originating from a disgruntled
applicant—which is what appears to be the case herein.

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Specifically, as to the Plaintiff herein, Billye Dickson Johnson, the district court

stated:

[Ms. Johnson] is actually a member of the [NCIF]’s board of
directors and, therefore, if properly pleaded she would have a right of
action against the nonprofit corporation. However, as was the case with
the other Johnson plaintiffs, she has failed to state a cause of action
against the defendants and her claims against those parties are
dismissed with prejudice without the need to consider the exception of
no right of action.

Ms. Johnson did not appeal the district court’s judgment dismissing her claims with

prejudice.

On February 4, 2021, approximately two weeks after the district court

dismissed her claims in the above lawsuit, Ms. Johnson filed her petition in the

instant case. Asserting that the present lawsuit was based on the same facts

previously alleged in the prior lawsuit, the NCIF filed a Peremptory Exception of

Res Judicata maintaining that the district court’s prior ruling precluded Ms. Johnson

from bringing the claims in the instant lawsuit. Specifically, NCIF asserted the

instant petition mirrored the allegations of the previous lawsuits and sought similar

relief—a “complete takeover of NCIF by the Flipper Foundation.” After a hearing

on the exception, the district court granted the exception of res judicata and

dismissed Ms. Johnson’s claims with prejudice. This appeal followed.

ANALYSIS

The peremptory exception of res judicata is provided for in La.Code Civ.P.

art. 927(A)(3). The doctrine of res judicata is found in La.R.S. 13:4231, which states

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.

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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.

In the argument to the district court below, counsel for Ms. Johnson asserted

that res judicata did not apply because the instant claim sought relief that she did not

assert in the previous litigation. In support of this argument, Ms. Johnson referenced

jurisprudence that was invalidated by the 1990 amendment to La.R.S. 13:4321. The

district court specifically noted this at the hearing and stated that “you would be on

solid ground” if it were prior to the amendment of La.R.S. 13:4321. In Burguieres

v. Pollingue, 02-1385, pp. 7-8 (La.2/25/03), 843 So.2d 1049, 1053, the Louisiana

Supreme Court explained:

Most of the controversy and confusion in Louisiana surrounding
res judicata prior to the 1990 amendment concerned whether there was
an “identity of cause.” With the 1990 amendment to the res judicata
statute, however, the chief inquiry is whether the second action asserts
a cause of action which arises out of the transaction or occurrence that
was the subject matter of the first action. [Avenue Plaza, L.L.C. v.
Falgoust, 96-0173, p. 6 (La.7/2/96), 676 So.2d 1077, 1080]. See also
La.R.S. 13:4231 cmt. a (1990). While this is the central inquiry under
the current statute, it is not the only inquiry. A reading of La.R.S.
13:4231 reveals that a second action is precluded when all of the
following are satisfied: (1) the judgment is valid; (2) the judgment is
final; (3) the parties are the same; (4) the cause or causes of action
asserted in the second suit existed at the time of final judgment in the
first litigation; and (5) the cause or causes of action asserted in the
second suit arose out of the transaction or occurrence that was the
subject matter of the first litigation.

The significant change intended by the amendment was enacted to broaden the

application of res judicata in order to avoid piecemeal litigation. Reeder v.

Succession of Palmer, 623 So.2d 1268, 1271 (La.1993). The burden of proof in an

exception of res judicata rests with the party that filed the exception. Steckler v.

Lafayette Consol. Gov’t, 11-427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161.

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There is no reasonable basis to question the validity of the prior judgment.

The judgment was rendered by a court with jurisdiction over the subject matter and

the parties. Proper notice of the judgment was given to all the parties. The judgment

disposed of the merits of Ms. Johnson’s claims in the first suit by granting NCIF’s

peremptory exception of no cause of action and dismissing her claims with

prejudice. Thus, the first two factors are satisfied, as the judgment is valid and final.

The third requirement of res judicata is that the parties in both suits are the

same. Both Ms. Johnson and NCIF were parties in the first suit. Further, nothing in

the petition in the instant case indicates Ms. Johnson has brought this action in a

different capacity in which she brought the prior suit. This factor is satisfied.

The fourth requirement to find res judicata asks whether the cause of action

asserted in the instant suit existed at the time of the final judgment in the first

litigation. This requirement is satisfied, as the cause or causes of action asserted in

the second suit existed at the time of the final judgment in the first litigation. The

petition asserts no facts or events that were discovered or arose since the district

court issued its Judgment in the first suit on January 25, 2021. The alleged factual

basis in the instant petition existed at the time of the Judgment in the first suit and

the fourth element for res judicata preclusion is met.

Under the final requirement, “[t]he central inquiry is not whether the second

action is based on the same cause of action, but whether the second action asserts a

cause of action which arises out of the transaction or occurrence which was the

subject matter of the first action.” Gladney v. Anglo-Dutch Energy, L.L.C., 19-93,

p. 8 (La.App. 3 Cir. 10/2/19), 280 So.3d 964, 971 (citing Terrebonne Fuel and Lube,

Inc. v. Placid Refining Company, 95-654 (La. 1/16/96), 666 So.2d 624). What

constitutes the transaction or occurrence is determined on a case-by-case basis. Hy-

Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28 (La. App. 3 Cir.

10/29/97), 702 So.2d 1057.

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The subject matter of the first suit included allegations of the improper

handling of the Sibley Lake Community Fund by the NCIF. Specifically, it alleged

the NCIF awarded scholarships to its board member’s friends and family, failed to

fund worthy projects and refused the Flipper Foundation’s request for funds to

provide affordable housing. It also specifically requested the Flipper Foundation be

named as the corporate holder of the Sibley Lake Community Fund.

The instant petition filed by Ms. Johnson essentially repeats the same

allegations as the prior petition. It alleges the NCIF “has not funded an affordable

housing project in the 17 years of its existence,” including the request by the Flipper

Foundation. It also alleged the NCIF denied “legitimate applications for grant

funding” and engaged in “self-dealing on behalf of themselves and /or family

members.” Lastly, it requested the dissolution of the NCIF and that its assets “be

transferred to the Henry O. Flipper Foundation, Inc.” Thus, it is clear the instant

petition filed by Ms. Johnson is based on the same alleged facts as the first action

and arises from the same transaction or occurrence as the first suit.

All of the elements required for res judicata are met. The instant action is an

attempt to relitigate matters that were raised in the prior suit. Therefore, the district

court did not err in granting the exception of res judicata.

DECREE

For the foregoing reasons, the judgment of the district court granting

Defendant’s Exception of Res Judicata is affirmed. All costs of this appeal are

assessed to Plaintiff-Appellant, Billye Dickson Johnson.

AFFIRMED.

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