Steve Crooks v. State of La., Department of Natural Resources

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-478

STEVE CROOKS, ET AL.

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF NATURAL
RESOURCES

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 224,262
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Shannon J. Gremillion, Candyce G. Perret, and Gary J. Ortego,
Judges.

MOTION TO DISMISS APPEAL DENIED;
PEREMPTORY EXCEPTIONS DENIED AS MOOT;
JUDGMENT OF THE TRIAL COURT AFFIRMED;
ANSWER TO APPEAL DENIED.

Dale R. Baringer
Baringer Law Firm
201 St. Charles Street
Baton Rouge, LA 70802
(225) 383-9953
COUNSEL FOR DEFENDANT:
Foster Investment Corporation

John Michael Veron
Veron, Bice, et al.
Post Office Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
COUNSEL FOR PLAINTIFFS/APPELLEES:
Theodore Morris Rabb-Class Plaintiff Rep
H.D. Foote Lumber Company, LLC,
Class Plaintiff Representatives

Virgil Russell Purvis, Jr.
Post Office Box 298
Jonesville, LA 71343
(318) 339-8526
COUNSEL FOR PLAINTIFFS/APPELLEES:
Theodore Morris Rabb-Class Plaintiff Rep
H.D. Foote Lumber Company, LLC,
Class Plaintiff Representatives

Charles Stovall Weems, III
Gold, Weems, Bruser, el al
Post Office Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR PLAINTIFFS/APPELLEES:
Theodore Morris Rabb-Class Plaintiff Rep
H.D. Foote Lumber Company, LLC,
Class Plaintiff Representatives

Christopher Joseph Piasecki
Davidson, Meaux, etc.
810 S Buchanan Street
Lafayette, LA 70502-2908
(337) 237-1660
COUNSEL FOR PLAINTIFFS/APPELLEES:
Theodore Morris Rabb-Class Plaintiff Rep
H.D. Foote Lumber Company, LLC,
Class Plaintiff Representatives

Scott C. Sinclair
Sinclair Law Firm
Post Office Box 1026
Shreveport, LA 71163
(318) 424-4901
COUNSEL FOR DEFENDANTS:
TDX Energy
Tensas Delta
TMR Exploration, Inc.

Jamie D. Rhymes
Liskow & Lewis
Post Office Box 52008
Lafayette, LA 70505-2008
(337) 232-7424
COUNSEL FOR DEFENDANTS:
Hunt Petroleum Corporation
Exxon Mobil Oil Corporation
XH, LLC
XTO Energy, Inc.

Joseph Thompson, III.
1000 Main Street, 36th Floor
Houston, TX 77002
(713) 226-6704
COUNSEL FOR DEFENDANTS:
Hunt Petroleum Corporation
Exxon Mobil Oil Corporation
XH, LLC
XTO Energy, Inc.

Jimmy Roy Faircloth, Jr.
Faircloth Melton, LLC
105 Yorktown Drive
Alexandria, LA 71303
(318) 619-7755
COUNSEL FOR DEFENDANT:
Justice Oil Company

Machelle R. L. Hall
Louisiana Deptartment of Justice
1185 North 3rd Street
Baton Rouge, LA 70802
(225) 326-6085
COUNSEL FOR DEFENDANT/APPELLEE:
State of Lousiana, Department of Natural Resources

Kevin E. Huddell
Jones, Swanson, Huddell
601 Poydras Street, Suite 2655
New Orleans, LA 70130
(504) 523-2500
COUNSEL FOR DEFENDANT/APPELLEE:
Catahoula Lake Investments, LLC

Robert McCuller Baldwin
Jan Peter Christiansen
G. Adam Cossey
Hudson, Potts & Bernstein
Post Office Drawer 3008
Monroe, LA 71210-3008
(318) 388-4400
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Dennis Breland, et al

James L. Carroll
Post Office Drawer 1619
Columbia, LA 71418
(318) 649-9284
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Dennis Breland, et al

Matthew S. Kelley
Bethard & Bethard, L. L. P.
7600 Fern Avenue, Building 1000
Shreveport, LA 71105
(318) 932-4071
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Steve Crooks
Era Lea Crooks

PERRET, Judge.

This case entails a seventeen-year history of complex class action litigation

involving a dispute over the ownership of riverbanks in the Catahoula Basin and

associated mineral royalty payments. At issue herein, however, is the narrow issue

of attorneys’ fees, which were set forth in a May 17, 2017 Judgment rendered against

the Louisiana Department of Natural Resources (“the State”). A large sum of the

judgment’s monetary damages, specifically awarded for inverse condemnation

damages, were subsequently vacated by the Louisiana Supreme Court when it found

those claims prescribed. Thereafter, Era Lea Crooks, individually; Steve Crooks,

individually and “as Class representative for the Lake Plaintiffs[;]” and other

individual class plaintiffs who retained counsel (“Appellants”), filed a “Motion to

Set Attorneys’ Fees of Class Counsel.” That motion sought to reduce the attorneys’

fees awarded in the May 17, 2017 Judgment proportionally with the supreme court’s

reduction of the monetary damages. The trial court denied the motion on June 22,

2022, and this appeal ensued. On appeal, we affirm.

FACTUAL AND PROCEDURAL HISTORY:

The history of this case has been thoroughly detailed in prior appeals and

supreme court opinions. To give context, the Louisiana Supreme Court in Crooks v.

Department of Natural Resources, 19-160, pp. 2–4 (La. 1/29/20), 340 So.3d 574,

576–78 (footnotes omitted), opinion corrected on rehearing, (La. 4/9/20), set forth

the background of the litigation:

In 1962, the United States began constructing various
structures in and around the Catahoula Basin pursuant to a
congressionally-approved navigation project under the River and
Harbor Act of 1960 to promote navigation on the Ouachita and
Black Rivers. In conjunction with that project, the State of
Louisiana signed an “Act of Assurances,” which obligated the State
to provide the federal government with all lands and property

interests necessary to the project free of charge, and to indemnify
the federal government from any damages resulting from the project.

The project was completed in 1973 and, at that time, the
United States Fish and Wildlife Service began managing the water
levels in and around the Catahoula Basin. As intended, these water
management activities increased water levels in the Catahoula Basin
and prolonged the natural annual high-water fluctuations. The U.S.
Fish and Wildlife Service continues to manage the water levels in
the Catahoula Basin to this day. Also, the State, through the
Department of Wildlife and Fisheries, has granted mineral leases in
the area known as Catahoula Lake.

On May 4, 2006, plaintiffs Steve Crooks and Era Lea Crooks
filed a “Class Action Petition to Fix Boundary, For Damages and
For Declaration [sic] Judgment.” The Crookses alleged that they
represent a class of landowners in the Catahoula Basin whose
property is affected by the increased water levels from the project.
Ultimately, the trial court certified the plaintiffs as one class, but
subdivided that class into two groups – the “Lake Plaintiffs” and the
“Swamp Plaintiffs” – depending on the location of the properties
affected.

Specifically, the Lake Plaintiffs are those property owners
who sought (1) ownership of the land between the ordinary low and
ordinary high water mark of the Little River located within the area
known as Catahoula Lake; (2) a declaration that these lands were
unlawfully expropriated by the navigation project, which obstructed
the natural servitude of drainage; (3) damages for this inverse
condemnation; and (4) recovery of the mineral royalty and other
payments received by the State from mineral leases granted over the
immovable property at issue.

The Swamp Plaintiffs are those persons owning property in
the southwestern portion of the Catahoula Basin, designated as
“overflow lands.” Much of the land bordering and lying outside
Catahoula Lake was approved as swampland and transferred to the
State by the federal government under the Swampland Acts of 1849
and 1850. It is not disputed that these lands are below an elevation
of 36 feet mean sea level, and that their titles originated from patents
issued by the State. Because ownership of these swampland tracts
is not disputed, these plaintiffs sought only a declaration of unlawful
expropriation and damages for the inverse condemnation.

The central issue presented to the trial court in the claim of
the Lake Plaintiffs was the classification of the area known as
Catahoula Lake. The Lake Plaintiffs contended that, although
referred to as a lake, the area actually constitutes the banks of the
Little River, thus conferring on the Lake Plaintiffs ownership of

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those lands between the ordinary low and the ordinary high water
mark. See La. C.C. art. 456. The State countered, filing a
reconventional demand which sought a declaration recognizing that
Catahoula Lake is a lake and the State owns the bed and waters
below the ordinary high water mark. See 578 La. C.C. art. 450.

In addition, the State filed a peremptory exception of no right
of action asserting that the plaintiffs have no right of action against
the State for any inverse condemnation by the federal government
because the Act of Assurances is not a stipulation pour autrui,
and/or a right of action only inures to those persons owning the land
at the time it was taken, and only one of the plaintiffs had ownership
when the navigation project was completed in 1973. The State also
filed a peremptory exception of prescription, arguing that the
plaintiffs’ claims are prescribed under 28 U.S.C. § 25015 and,
alternatively, under La. R.S. 13:51116 or La. R.S. 9:56247.

Following a [2015] bench trial, the trial court rendered a
judgment in favor of the plaintiffs [the May 17, 2017 Final
Judgement],[1 ] declaring that the body of water in the Catahoula
Basin in 1812 was a permanent river that seasonally overflowed and
covered its banks; the riparian landowners, i.e., the Lake Plaintiffs,
are the owners of these river banks; and the State is liable for the
inverse condemnation of these lands because of the significant
obstruction of the natural servitude of drainage.

The May 17, 2017 Judgment (sometimes referred to herein as the “2017

Judgment”) decreed the Lake Plaintiffs as the legal owners of the Catahoula Basin

riverbanks and the Swamp Plaintiffs as legal owners of 7,580 acres of land identified

in the 2017 Judgment, then decreed that the State is liable for the inverse

condemnation of the Plaintiffs’ lands. Accordingly, the May Final Judgment

awarded expropriation damages to the Lake Plaintiffs and the Swamp Plaintiffs in

the amounts of $28,745,438.40, and $9,550,800.00, respectively, with legal interest

from May 4, 2006, until paid. Additionally, the court awarded $4,694,309.68 to the

1
Following the bench trial in 2015, the trial court provided Written Reasons for Judgment,
dated May 16, 2016. Thereafter, the parties filed motions and oppositions regarding attorneys’
fees, costs, and incentive awards. On March 29, 2017, the trial court provided Written Reasons
for Judgment, which included lengthy reasons for setting attorneys’ fees at $22,075,843.82. The
court considered the contractual fee agreement between the parties in light of the factors set forth
in State of Louisiana, Department of Transportation and Development v. Williamson, 597 So.2d
439 (La.1992). The trial court signed a Judgment on May 17, 2017.

3

Lake Plaintiffs for oil and gas royalties, with interest, from May 2003 through trial.

Of importance to the current appeal, the trial court awarded attorneys’ fees in the

amount of $22,075,843.82, and, pursuant to La.R.S. 13:5111 and La.Code Civ.P. art.

595, ordered seventy-five percent (75%), or $16,556,882.87, to be paid by the State,

and twenty-five percent (25%), or $5,518,960.95, to be assessed against the common

fund for the class.

Relative to the current issue at hand, on appeal of the 2017 Judgment, one of

the issues raised by the State was the trial court’s method for awarding attorneys’

fees as well as the amount. This court affirmed the awards of the trial court but

ordered that one hundred percent (100%) of the attorneys’ fees be assessed against

the common fund for the class pursuant to La.Code Civ.P. art. 595. Crooks v. Dep’t

of Nat. Res., 17-750 (La.App. 3 Cir. 12/28/18), 263 So.3d 540.

The State applied for supervisory writs to the Louisiana Supreme Court, which

was granted and briefing was ordered on the limited issue of whether “[t]he lower

courts erred in failing to find that the Plaintiffs’ inverse condemnation claims have

prescribed under either or both La. R.S. 13:511 or 28 U.S.C. § 2501.” Crooks v.

Dep’t of Nat. Res., 19-160, p. 1 (La. 5/6/19), 269 So.3d 691, 691. Thereafter, the

State filed exceptions of prescription and no cause of action, arguing “that if the

Court finds the Act of Assurances constitutes a stipulation pour autrui, giving the

plaintiffs an inverse condemnation cause of action against the State, then the

plaintiffs’ action to enforce the stipulation in their favor is subject to prescription of

ten years under La. C.C. art. 3499[,]” and that “the plaintiffs have no cause of action

against the State for mineral royalties[.]” Crooks, 340 So.3d at 580–81.

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Plaintiffs did not seek supervisory writs to the supreme court regarding the

portion of the court of appeal’s judgment ordering all attorneys’ fees to be paid from

the common fund for the class.

Ultimately, the supreme court found the inverse condemnation claims

prescribed and reversed that portion of the appellate judgment which upheld the

$28,745,438.40, and the interest thereon, to the Lake Plaintiffs, and the

$9,550,800.00, and the interest therein, to the Swamp Plaintiffs. See Crooks, 340

So.3d 574. The appellate judgment was otherwise affirmed. Subsequently, the

supreme court granted a re-hearing application by Plaintiffs, in part, to correct

footnote nine in the opinion,2 clarifying that the award for attorneys’ fees, expert

witness fees and costs, were not at issue in the writ application.

On July 6, 2020, Plaintiffs filed “Plaintiffs’ Motion Regarding Issues on

Remand with Incorporated Memorandum of Authorities” following the supreme

court’s decision. Being entitled to execute the final judgment, Plaintiffs sought a

writ of mandamus to compel the State to pay the judgment, sanctions, for the State’s

failure to pay, and sought to have to have the trial court identify “lands of which the

plaintiffs are the recognized owners and their partition into parcels for each

individual member of the class, as well as any other matters incidental thereto[.]” In

a footnote, Plaintiffs clarified that “[t]his function will include overseeing other

necessary post-trial processes, including but not limited to, determining how the

2
Footnote nine in the original supreme court opinion stated:

The trial court also awarded the plaintiffs attorneys fees, expert witness fees
and costs, which the court of appeal vacated in Crooks v. Department of Natural
Resources, 2017-750, p. 35-38 (La. App. 3 Cir. 12/28/18), 263 So. 3d 540, 565-67
(Amy, J., dissents). The award for those items is not at issue in this writ application.

Crooks, 340 So.3d at 579, n. 9.

5

now-final judgment on attorney’s fees must be allocated and paid.” Notably, the

amount of the attorneys’ fees set forth in the 2017 Judgment was not raised.

A letter dated September 22, 2020, and filed with the court on September 23,

2020, from Steve Crooks informed the court that he was terminating his

“relationship and the relationship of the Class with the attorneys representing the

Class and me.” The reasons for the termination indicated a disagreement between

Crooks, and allegedly the Class members, and their attorneys over the amount of

attorneys’ fees owed. The letter then indicated Crooks had secured new counsel for

future matters, including the attorney fee issue. A Motion to Substitute Counsel was

filed shortly thereafter on October 7, 2020, withdrawn, and refiled as a motion to

enroll specifically on behalf of only those plaintiffs who retained the new counsel.

A contradictory hearing on the motion was set for November 22, 2020.

Nothing regarding the amount of attorneys’ fees, aside from mentioning the

dispute in Crooks’ letter to the court, was filed until March 17, 2022. On March 17,

2022, Appellants3 filed a Motion to Set Attorneys’ Fees of Class Counsel due to the

attorneys’ fees awarded in the 2017 Judgment now exceeding the monetary recovery

required to be placed in the common fund by the State. Appellants sought a

reduction of the attorneys’ fees proportional to the reduction of the overall monetary

award following the supreme court’s decision in Crooks, 340 So.3d 580. The motion

3
The motion was brought by:

Steve Crooks, Individually, Era Lea Crooks, Individually, and Steve Crooks as
Class Representative for the Lake Plaintiffs, as well as for each of the following
class plaintiffs who have retained undersigned counsel: Steve Crooks, Era
Lea Crooks, Dennis Breland, Sheila Hudspeth, Jackie Wilson, Chet Whatley,
Michael “Ben” Whatley, John Dahl Duke, Roger “Rocky” Ray, Nellie Ray
Constance, Jeffery Willis, Michelle Willis, Chase Willis, Lindsay Willis, Trent
Dauzat, Jennifer Little, John Little, Meredith Hailey, Carrie Lynn Huffman,
Ricky Shirley, Dana Shirley, John “Rusty” Berry, Lauren Berry, and Clarence
William “Bill” Breland, Jr.

6

argued that the remaining monetary award does not constitute a “common fund” as

it only contains money for royalties owed to Lake Plaintiffs and that significant

factors have changed since the trial court’s determination of the amount of attorneys’

fees. The motion also preemptively addressed a res judicata argument, asserting res

judicata does not apply where attorneys’ fees was not an issue between Plaintiffs and

Defendants, and if it does apply, this situation falls under La.R.S. 13:4232 as an

exception to the general rule. Finally, Appellants reminded the court that it is the

“ultimate arbiter of attorneys’ fees.” A Rule to Show Cause hearing on the motion

was set for May 23, 2022.

Class Counsel4 (sometimes referred to herein as “Appellees”) filed a Motion

to Substitute Class Representative and Incorporated Memorandum seeking to have

Steve Crooks and Era Lea Crooks released and replaced as class representatives.

Class Counsel asserted the Crookses filed motions, objections, and incidental actions

that are in direct conflict with their responsibilities as class representative, including

the Motion to Set Attorneys’ Fees of Class Counsel.

Thereafter, on June 10, 2022, Class Counsel also filed Class Counsel’s

Opposition to Motion to Re-Litigate and Reduce Attorneys’ Fees. First, the

opposition asserted res judicata bars re-litigation of the attorneys’ fee award. Second,

the opposition asserted that the common fund comprises much more than just past

royalties, i.e., that the class was also recognized as the owners of over 30,000 acres

of land, that interest continues to accrue on the royalties owed, and that class

members are entitled to future royalties. Third, the opposition asserted that Class

4
“Class Counsel” filing this motion consists of Charles S. Weems, III and Stephen A.
LaFleur or Gold, Weems, Bruser, Sues & Rundell; J. Michael Veron and Turner D. Brumby of
Veron, Bice, Palermo & Wilson, LLC; Russel Purvis of Smith, Taliaferro & Purvis; and James J.
Davidson, III and Christopher J. Piasecki of Davidson, Meaux, Sonnier, McElligott, Fontenot,
Gideon & Edwards.

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Counsel, not individual plaintiffs or class representatives, determine what is best for

the class and is the “paramount representative” of the class. Lastly, the opposition

agreed that the trial court determines the reasonableness of counsel’s fees, but

pointed out that the trial court has already done so with extensive reasons for

awarding those fees.

Appellants strenuously disagreed in their reply to the opposition that the

Common Fund is comprised of more than just the royalties and interest thereon owed

by the State. Appellants asserted that the money deposited by the State into the

Common Fund is not common to the Class as a whole but is only common as to

those Lake Plaintiffs entitled to royalties for producing wells on their property and

the interest therein. The Lake Plaintiffs will have to prove their claim to the royalty

funds prior to any monetary award being dispersed to them.

A hearing was held on the motion on June 20, 2022, at which time the trial

court denied the motion, finding that the matter “has been decided, and it’s res

judicata.” The court ordered a judgment be prepared. On June 22, 2022, the trial

court signed a judgment denying the Motion to Set Attorneys’ Fees of Class Counsel.

Prior to Appellant’s brief being filed, Class Counsel, i.e. Appellees, filed three

pleadings with this court: a Motion to Dismiss Appeal, Peremptory Exceptions, and

an Answer to Appeal. The motion to dismiss asserts that the appeal is frivolous for

several reasons: “it is barred by res judicata[,] . . . it is a prescribed attempt to annul

a judgment[,] . . . it fails to state a cause of action to annul the judgment[,]” the

plaintiffs have no right of action to challenge an award made for the class, and “the

judgment in favor of the class more than justifies the fee.” The same day, Class

Counsel filed Peremptory Exceptions, raising the same issues as set forth in the

Motion to Dismiss Appeal: res judicata, no cause of action, prescription, and a fourth

8

argument, albeit not a peremptory exception, arguing that the court determines what

is best for the class. In the Answer to Appeal, Class Counsel seeks additional

attorneys’ fees.

Appellants filed oppositions to Class Counsel’s pleadings, as well as their

Appellant Brief, which sets forth two assignments of error:

1. The trial court committed legal error when it found the
amount of attorney[s’] fees was res judicata.

2. The trial court committed reversible error when it failed to
modify the fees of class counsel commensurate with the
reduction of the “Common Fund” by the Louisiana Supreme
Court.

MOTION TO DISMISS AND PEREMPTORY EXCEPTIONS:

In their Motion to Dismiss, Appellees request that the appeal be dismissed for

the same reasons argued in their exceptions, the first being that the trial court’s 2017

Judgment is res judicata as to attorneys’ fees. Because we find that, for the reasons

explained more fully below, res judicata applies, which involves an inquiry into the

merits of the appeal, we deny Appellees’ Motion to Dismiss Appeal. See State ex

rel. Willis v. Gen. Longshore Workers, 200 La. 398, 8 So.2d 68 (1942); Typhoon

Fan Co. v. Pilsbury, 166 La. 883, 118 So. 70 (1927). We further deny Appellees’

Peremptory Exceptions as moot.

RES JUDICATA:

After a review of the record, law, and jurisprudence, we agree with the trial

court that res judicata applies and prevents revisiting the attorneys’ fees awarded in

a final judgment in this case.

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

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:

9

(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.

Thus, our courts have applied the following elements to determine whether

res judicata applies:

(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.

Chauvin v. Exxon Mobil Corp., 14-808, pp. 5–6 (La. 12/9/14), 158 So.3d 761, 765.

The supreme court in Sutton v. Adams, 22-1672, p. 3 (La. 3/7/23), 356 So.3d

1030, 1032–33, reh’g denied, 22-1674 (La. 5/16/23), 360 So.3d 483, further

explained the purpose and standard of review applicable to a finding of res judicata:

Res judicata is designed to “promote judicial efficiency and final
resolution of disputes,” and generally precludes the re-litigation of
claims arising out of the same facts and circumstances between the
same parties of a previous suit in which there is a valid, final judgment.
Avenue Plaza, LLC v. Falgoust, 96-173 (La. 7/2/96), 676 So.2d 1077.

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. Myers v. Nat’l Union Fire Ins. Co. of Louisiana, 09-
1517, p. 5 (La. App. 4 Cir. 5/19/10), 43 So.3d 207, 210 (citation
omitted). Louisiana courts recognize that “a final judgment has the
authority of res judicata only as to those issues presented in the
pleading and conclusively adjudicated by the court.” Id. Moreover, the
doctrine of res judicata is stricti juris and, accordingly, any doubt

10

concerning the applicability of the principle must be resolved against
its application. Interdiction of Hunter, 18-685 (La. App. 4 Cir.
12/19/18), 318 So.3d 784, writ denied, 19-208 (La. 4/8/19), 267 So.3d
608.

The party pleading res judicata bears the burden of establishing the essential

elements of res judicata. Diamond B Const. Co., Inc. v. Dep’t of Transp. and Dev.,

02-573 (La.App. 1 Cir. 2/14/03), 845 So.2d 429.

Finality of the 2017 Judgment:

Res judicata requires a valid final judgment. La.R.S. 13:4231.

A judgment determining the merits of a case is a final judgment.
La.C.C.P. art. 1841. See also, Tolis v. Board of Sup’rs of Louisiana
State University, 95–1529 (La.10/16/95); 660 So.2d 1206. . . . If a
certiorari application is filed, the court of appeal judgment becomes
final and definitive when the supreme court denies the application for
certiorari. La.C.C.P. art. 2166D.

A final judgment from which there can be no appeal acquires the
authority of the thing adjudged. La.C.C. art. 3506(31). Once a final
judgment acquires the authority of the thing adjudged, no court has
jurisdiction to change the judgment, regardless of the magnitude of the
final judgment’s error. Tolis at 3; 660 So.2d at 1206–1207.

Ave. Plaza, L.L.C. v. Falgoust, 96-173, pp. 4–5 (La. 7/2/96), 676 So.2d 1077, 1079.

The 2017 Judgment involved herein was appealed to both the appellate court

and the supreme court. Thus, after the supreme court issued its opinion on January

29, 2020, and the rehearing was granted and decided on April 9, 2020, the judgment

became final.

Attorneys’ fees were adjudicated in the 2017 Judgment:

Res judicata applies “only as to those issues presented in the pleading and

conclusively adjudicated by the court.” Sutton, 356 So.3d at 1032–33 (citing Myers,

43 So.3d at 210).

Appellants first sought attorneys’ fees in their 2006 Class Action Petition to

Fix Boundary, For Damages and for Declaration Judgment. Attorneys’ fees were

11

reserved in the trial court’s 2016 Written Reasons for Judgment, determination on a

future date: “all issues relating to . . . plaintiffs’ request for reasonable attorneys’

fees are hereby reserved unto the parties and are to be determined and fixed after a

subsequent contradictory hearing[.]” The parties waived a contradictory hearing and

submitted the matter on the record, written arguments, and supporting

documentation. Thereafter, the trial court gave reasons for awarding attorneys’ fees

in its eighteen-page March 29, 2017 Written Reasons for Judgment, which were

awarded for the work performed in litigating the class action’s claims pursuant to

La.R.S. 13:51115 and La.Code Civ.P. art. 595.6 Thereafter, the amount of attorneys’

fees was set forth in the now final 2017 Judgment.

In Newburger v. Orkin, L.L.C., 20-534 (La.App. 3 Cir. 5/5/21), 320 So.3d 465,

writ denied, 21-782 (La. 10/1/21), 324 So.3d 1061, the third circuit considered

whether a defendant could demand attorneys’ fees after the plaintiff’s claims were

dismissed, when the issue of attorneys’ fees was not previously sought or reserved.

The plaintiff filed an action to prohibit his condominium complex from spraying

pest control chemicals around the complex. After the start of trial on injunctive relief,

the matter was dismissed by directed verdict. The plaintiff appealed, and the third

5
Louisiana Revised Statutes 13:5111 provides in pertinent part:

A. A court of Louisiana rendering a judgment for the plaintiff, in a
proceeding brought against the state of Louisiana, a parish, or municipality or other
political subdivision or an agency of any of them, for compensation for the taking
of property by the defendant, other than through an expropriation proceeding, shall
determine and award to the plaintiff, as a part of the costs of court, such sum as will,
in the opinion of the court, compensate for reasonable attorney fees actually
incurred because of such proceeding. . . .
6
Louisiana Civil Code of Procedure Article 595 provides in pertinent part:

A. The court may allow the representative parties their reasonable expenses
of litigation, including attorney’s fees, when as a result of the class action a fund is
made available, or a recovery or compromise is had which is beneficial, to the class.

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circuit affirmed the dismissal. Thereafter, the condominium complex filed a

“Motion for Assessment and Recovery of Attorney’s Fees and Costs.” Id. at 467.

The complex sought the fees based on a provision of the Condominium Declaration.

The plaintiff responded by asserting an exception of res judicata, which the trial

court denied. On appeal, the condominium asserted in opposition to the appeal that

(1) “the action for recovery of attorneys’ fees did not mature until after this Court’s

prior judgment became final” and (2) the plea for attorneys’ fees was made in their

original answer by incorporating the Condominium Declaration. Id. at 468.

However, this court disagreed. While this court acknowledged that it “has

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

an ‘exceptional circumstance’ to bring forth a motion for assessment of cost[s] and

attorneys’ fees after the judgment becomes final[,]” the condominium had “clear

opportunities to reserve the request, yet” did not do so in the judgment. Id. at 469.

“Louisiana jurisprudence requires that the issue of attorneys’ fees and cost[s] not

just be pled, but also reserved by the court prior to the final judgment or through said

judgment.” Id.

In the current case, no reservation of the determination of attorneys’ fees was

made in the 2017 Judgment; instead, the judgment specifically set forth the dollar

amount of the attorneys’ fees awarded:

IT IS FURTHER ORDERED, ADJUDGED, and DECREED
that (i) the Motion for Fees and Costs is GRANTED on the issue of
attorney’s fees; (ii) the Plaintiffs are awarded attorney’s fees in the full
sum of TWENTY TWO MILLION SEVENTY FIVE THOUSAND
EIGHT HUNDRED AND FORTY THREE DOLLARS AND 82/100
($22,075,843.82); (iii) pursuant to La. R.S. 13:5111, there be judgment
herein in favor of the Plaintiffs, and against the State, for seventy-five
percent of that amount, or $16,556,882.87, together with legal interest
from the date of judgment until paid, for distribution to class counsel;
and (iv) pursuant to article 595 of the Louisiana Code of Civil
Procedure, the remaining twenty-five percent of that amount, or

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$5,518,960.95, shall be assessed against the common fund for the class
for distribution to class counsel.

The amount of the attorneys’ fees became final when no reviewing court

reversed or amended the amount set forth in the 2017 Final Judgment. One issue

presented to the appellate court for review was whether the trial court erred in

determining reasonable attorney’s fees. Crooks, 263 So.3d 540. Despite the third

circuit finding that the plaintiffs were not “entitled to attorney’s fees under La.R.S.

13:5111[,]” it did not amend the amount of attorneys’ fees awarded, but instead

ordered those fees to be paid completely from the common fund pursuant to La.Code

Civ.P. art. 595. Id. at 565. Review of that determination was not sought on a

rehearing or with the supreme court.

For example, in Board of Supervisors of Louisiana State University and

Agricultural and Mechanical College v. Villavaso, 14-1277 (La.App. 4 Cir.

12/23/15), 183 So.3d 757, writ denied, 16-161 (La. 3/24/16), 190 So.3d 1193, LSU

asserted as an assignment of error on appeal that the attorneys’ fees awarded in the

trial court judgment should be reduced if there is a reduction in damages on appeal.

Thereafter, because the appellate court chose to reduce the appellee’s mental anguish

damages, it suggested that said reduction would justify reducing the attorneys’ fees.

However, the appellate court chose to affirm the trial court’s attorneys’ fees award,

and, instead, deny the appellee additional fees prayed for on appeal, stating: “We

find any reduction in fees that this remittitur would justify is offset by fees

attributable to the appeal.” Id. at 769.

No similar action was taken by Appellants in this case. At no point did

Appellants request that the amount of attorneys’ fees, or even where the attorneys’

fees were to be paid from, be revisited by the appellate or supreme court. Thus, the

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issue of attorneys’ fees was fully litigated and memorialized in the final judgment

rendered on May 17, 2017, as amended by the appellate court in Crooks, 263 So.3d

540.

Same Parties:

Louisiana Revised Statute La.R.S. 13:4231 provides that a final judgment is

conclusive between the same parties. The parties involved in the current motion to

set attorneys’ fees were involved in the prior litigation of that matter. No cause of

action involving attorneys’ fees has been asserted against new defendants. Instead,

Appellants are seeking to reduce the amount of attorneys’ fees based on a partially

unfavorable ruling from the supreme court. The parties involved are the same.

Exceptional Circumstances:

Appellants argue that the factual scenario herein should be considered an

exceptional circumstance to res judicata.

Louisiana law provides that an earlier judgment does not bar
another action by the plaintiff when exceptional circumstances justify
relief from the res judicata effect of the judgment. LSA-R.S.
13:4232(A)(1). This provision gives the court discretion to grant relief
from the judgment for exceptional circumstances. This discretion must
be exercised on a case-by-case basis and such relief should be granted
only in truly exceptional cases, otherwise the purpose of res judicata
would be defeated. Nevertheless, this discretion is necessary to allow
the court to balance the principle of res judicata with the interests of
justice. The official comment to the statute refers to Rule 60(b) of the
Federal Rules of Civil Procedure for guidance on what constitutes
“exceptional circumstances.” Rule 60(b) gives courts wide-ranging
equitable discretion to relieve a party from a final judgment, “especially
if no intervening rights have attached in reliance upon the judgment and
no actual injustice will ensue.” 11 Charles Alan Wright, Arthur R.
Miller, and Mary Kane, Federal Practice and Procedure § 2857, 256
(2nd ed. 1995). In particular, Rule 60(b)(6) is a “grand reservoir of
equitable power to do justice in a particular case when relief is not
warranted” on other grounds specified in the rule, and this clause “gives
the courts ample power to vacate judgments whenever such action is
appropriate to accomplish justice.” Hesling v. CSX Transp., Inc., 396
F.3d 632, 643 (5th Cir. 2005); Chauvin v. State Farm Mut. Auto. Ins.
Co., 2007 WL 2903321, at *6 (E.D. La. 2007). It is designed to protect

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those drawn into error by an awkward factual or legal scenario, not
those who can allude to no circumstance to justify their inaction below.
Spear v. Prudential Property and Cas. Ins. Co., 98-1663 (La. App.
4 Cir. 1/13/99), 727 So.2d 640, 642-43; Centanni v. Ford Motor Co.,
93-1133 (La. App. 3 Cir. 5/4/94), 636 So.2d 1153, writ denied, 94-1949
(La. 10/28/94), 644 So.2d 656.

Sutton v. Adams, 22-1672, pp. 9–10 (La. 3/7/23), 356 So.3d 1030, 1036–37, reh’g

denied, 22-1674 (La. 5/16/23), 360 So.3d 483.

The third circuit has determined “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.”

Newburger, 320 So.3d at 469 (citing A.M.C v. Caldwell, 17-628 (La.App 3 Cir.

2/15/18), 239 So. 3d 948 and Siemens Water Tech. Corp. v. Revo Water Sys., LLC,

13-631(La.App. 3 Cir. 1/18/14), 130 So.3d 473).

In this case, however, attorneys’ fees were thoroughly litigated. The trial

court gave lengthy reasons for reaching the amount set forth in the 2017 Judgment.

Furthermore, based on those reasons, the amount of attorneys’ fees took into

consideration more than the inverse condemnation claims, which were the claims

found to be prescribed by the supreme court.

In determining a fair and proper fee, the trial court noted the contingency fee

agreement with Steve Crooks and Era Lee Crooks and the clause therein stating, “if

no recovery is made, I will not be indebted to my Attorney for any sum whatsoever

as Attorney’s fees.” The trial court then considered the factors set forth in State

Department of Transportation and Development v. Williamson, 597 So.2d 439

(La.1992).

Specifically, the trial court commended Class Counsel on their efforts, stating:

“Class Counsel clearly achieved exceptional results providing substantial awards for

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the class members.” The trial court noted the length of the litigation, the difficulty

and complexity of the issues involved, the voluminous record, the extensive

preparation required, and the numerous appearances made by Class Counsel. The

trial court also recognized that Class Counsel succeeded in more than just the

monetary damages awards:

In addition to the “common fund”, Class Counsel successfully obtained
a declaration that the class members, and not the State, owned the lands
in dispute. Clearly, this declaration of ownership in favor of the class
members is of great benefit and value to them especially considering
that a portion of the properties will generate unknown sums in mineral
royalties indefinitely.

In determining where the attorneys’ fees should be paid from, the trial court

“concluded that the attorney fee awards that Plaintiffs seek are of two kinds in this

unique hybrid litigation involving two distinct, unrelated statutory bases for the

award of attorneys fees.” The trial court noted that fees awarded pursuant to La.R.S.

13:5111(A) would be cast against the State for those claims related to inverse

condemnation, whereas those awarded pursuant to La.Code Civ.P. art. 595 would be

paid from the common fund.

The court then acknowledged that a large sum of the principal award

“represents damages for the State’s unlawful expropriation of privately-owned

property owned by the class members,” but also noted that Class Counsel succeeded

in winning an award for mineral royalty claims and that the matter was complicated

because, “in addition to the large monetary award discussed herein, the class

members were recognized as owners of 30,393.84 acres of land and the mineral

rights, which should prove the be substantially lucrative, being vested in the

landowners.” The court continued, “Although not included in the compensation

fund, these are clearly very valuable rights and must be taken into account for an

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appropriate allocation.” Additionally, “Class Counsels’ time was devoted generally

to the litigation as a while, making it difficult if not impossible to divide the hours

expended on a claim-by-claim basis.”

As seen in the excerpts above, the trial court thoroughly considered the

intricacies of this case in setting a reasonable fee.

On appeal, this court upheld the amount of attorneys’ fees set forth in the 2017

Judgment, but determined the entirety of the amount was to be paid from the

common fund pursuant to La.Code Civ.P. art. 595. 7 Thus, despite having the

opportunity to reduce the amount of attorneys’ fees to be paid from the common

fund, this court affirmed the amount set forth by the trial court.

After reviewing the record, we simply do not find that this case is an

exceptional circumstance to the res judicata doctrine where the issue of attorneys’

fees was previously raised and fully litigated.

ANSWER TO APPEAL:

Appellees filed an Answer to Appeal seeking additional attorneys’ fees.

“Generally, when an award for attorney’s fees is granted at the trial level, additional

attorney’s fees are proper for work done on appeal. This is to keep the appellate

judgment consistent with the underlying judgment.” Wilczewski v. Brookshire

Grocery Store, 08-718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ

denied, 09-456 (La.4/13/09), 5 So.3d 170. See also Siemens, 130 So.3d 473.

While attorneys’ fees were awarded in the 2017 Judgment, no fees were

awarded on the judgment before us on appeal, i.e. the June 22, 2022 Judgment

7
The third circuit concluded that attorneys’ fees pursuant to La.R.S. 13:5111 are required
when the judgment compensates for “‘the taking of property by the’ State.” Crooks, 263 So.3d at
565 (quoting La.R.S. 13:5111). However, the third circuit found the taking in this case was by the
United States, not the State, therefore, the plaintiffs were not entitled to attorneys’ fees pursuant
to La.R.S. 13:5111.

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denying the Motion to Set Attorneys’ Fees of Class Counsel. Thus, we decline to

award attorneys’ fees on appeal in this case. However, costs of this proceeding are

assessed to Appellants.

DECREE:

For the reasons set forth above, Appellees’ Motion to Dismiss Appeal is

denied. Because this case has been decided on the merits of the appeal, which also

happens to be raised as one of the exceptions in Appellees’ Peremptory Exceptions,

the Appellees’ Peremptory Exceptions are denied as moot. The June 22, 2022

Judgment of the trial court is affirmed. Furthermore, Appellees’ Answer to Appeal

for additional attorneys’ fees is denied. Appellants are cast with all costs of this

appeal.

MOTION TO DISMISS APPEAL DENIED; PEREMPTORY
EXCEPTIONS DENIED AS MOOT; JUDGMENT OF THE TRIAL COURT
AFFIRMED; ANSWER TO APPEAL DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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