Kraig T. Strenge v. Abc Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-182

KRAIG T. STRENGE

VERSUS

ABC INSURANCE CO., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20220225
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

James H. Gibson
Gibson Law Partners, LLC
Post Office Box 52124
Lafayette, LA 70505
(337) 761-6023
COUNSEL FOR PLAINTIFF- APPELLANT:
Kraig T. Strenge

Michael P. Bienvenu
Kinchen, Walker, Bienvenu, Bargas,
Reed & Helm, L.L.C.
8550 United Plaza Boulevard, Suite 202
Baton Rouge, LA 70809
(225) 292-6704
COUNSEL FOR DEFENDANT- APPELLEE:
Cartavious Whitlock

Adam G. Young
Meade Young, LLC
556 Jefferson Street, Suite 200
Lafayette, LA 70501
(337) 534-0200
COUNSEL FOR DEFENDANT- APPELLEE:
Cartavious Whitlock

Stephen R. Barry
James J. Young, IV
Barry Rome & Scott
612 Gravier Street
New Orleans, LA 70130
(504) 525-5553
COUNSEL FOR DEFENDANT- APPELLEE:
Geico Indemnity Company

PICKETT, Judge.

The plaintiff appeals the trial court’s judgment granting the defendants’

exception of res judicata. We affirm.

FACTS

On January 15, 2021, an automobile accident occurred between two vehicles

on Johnston Street in Lafayette involving a vehicle driven by Kraig Strenge and a

motorcycle driven by Cartavious Whitlock. Mr. Whitlock filed suit against Mr.

Strenge and his insurer to recover damages for injuries he sustained in the accident.

On January 13, 2022, the parties agreed to a mediation settlement. The next day

Mr. Strenge filed a separate suit against Mr. Whitlock to recover damages he

allegedly sustained in the accident. On March 7, 2022, an ex parte judgment filed

by Mr. Whitlock dismissed the case “with prejudice.” Another judgment

dismissing Mr. Whitlock’s suit “with full prejudice to all the rights of Plaintiff was

signed on March 29, 2022.”

Mr. Strenge initially withheld service of his petition on Mr. Whitlock. Then,

on March 30, 2022, he amended his petition to name Mr. Whitlock’s insurer,

GEICO Indemnity Company (GEICO), as a defendant. After being served with the

suit, Mr. Whitlock filed exceptions of insufficiency of service and res judicata

seeking dismissal of Mr. Strenge’s suit and sanctions pursuant to La.Code Civ.P.

art. 863(D). Thereafter, GEICO filed an answer to Mr. Strenge’s suit and an

exception of res judicata. After conducting a hearing on the defendants’

exceptions, the trial court sustained their exceptions of res judicata and dismissed

Mr. Strenge’s suit “with full prejudice.” Mr. Strenge filed a motion for new trial on

the defendants’ exceptions of res judicata, which the trial court denied after a

hearing. Mr. Strenge appealed the trial court’s judgments granting the defendants’

exceptions of res judicata and denying his motion for new trial.

ASSIGNMENT OF ERRORS

Mr. Strenge assigns the following errors with the trial court’s judgments:
1) The trial court erred in limiting and/or excluding testimony and
evidence offered in opposition to a peremptory exception.

2) The trial court erred in failing to apply the doctrine of res judicata
as stricti juris, and, thus, failed to recognize any doubt against its
application.

3) The trial court erred in sustaining Defendants’ Exceptions of Res
Judicata and Motions to Dismiss.

4) The trial court erred in denying Plaintiff’s Motion for New Trial.

DISCUSSION

Evidentiary Issues

Mr. Strenge first argues the trial court erred in not allowing him to introduce

into evidence emails dated January 12 and 13, 2022, which outline the mediated

settlement agreed to by the parties and two Receipt and Release of All Claims

Hold Harmless and Indemnity Agreements executed by Mr. Whitlock on March 9,

2022, one with Mr. Strenge personally and the other with Mr. Strenge’s insurer.

Mr. Strenge argues the trial court was overly restrictive in not allowing him to

introduce those documents and not considering them in his defense of the

exception of res judicata. These documents pertain to Mr. Strenge’s assertions that

exceptional circumstances in this case excuse his failure to assert his claims against

Mr. Whitlock in Mr. Whitlock’s suit against him because he filed his suit against

Mr. Whitlock and his insurer before prescription accrued on his claims.

We reviewed these documents and find no error with the trial court’s refusal

to admit them into evidence. As argued by the defendants, the emails are hearsay.

The statements therein were made by someone other than Mr. Strenge, and the

creators of the emails did not appear and testify at trial. La.Code Evid. art. 801(C).

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Moreover, neither the emails nor the settlement agreements include a reservation

of rights for Mr. Strenge to pursue the claims at issue herein.

Mr. Strenge further argues the trial court gave “preference” to the March 7,

2022 judgment of dismissal rather than the March 29, 2022 judgment. The March

29, 2022 judgment was signed by all counsel, while the March 7 judgment was

signed by Mr. Whitlock’s counsel alone. Additionally, the March 29, 2022

judgment modified the language of the March 7 judgment from being “dismissed

with prejudice” to being “finally dismissed with prejudice to all of the rights of

Plaintiff. The only claims asserted in Mr. Whitlock’s suit were the claims he

asserted against Mr. Strenge and his insurer. Thus, we find the revised language of

the March 29, 2022 judgment of dismissal did not modify the legal effect of the

March 7, 2022 judgment of dismissal. It would be different if the March 29, 2022

judgment was modified to reserve Mr. Strenge’s claims against Mr. Whitlock, but

it was not.

Res Judicata

In their exceptions of res judicata, the defendants argue the claims Mr.

Strenge now asserts as plaintiff should have been asserted in a reconventional

demand in Mr. Whitlock’s suit and, because he did not assert them before that suit

was dismissed, they are res judicata. The exceptions are premised on La.Code

Civ.P. art. 1061 and La.R.S. 13:4241–42. Louisiana Code of Civil Procedure

Article 1061 (emphasis added), states:

A. The defendant in the principal action may assert in a
reconventional demand any causes of action that the defendant may
have against the plaintiff in the principal action, even if these two
parties are domiciled in the same parish and regardless of connexity
between the principal and reconventional demands.

B. Except as otherwise provided in Article 3657, and except in
an action for divorce under Civil Code Article 102 or 103 or in an
action under Civil Code Article 186, the defendant in the principal

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action shall assert in a reconventional demand all causes of action
that the defendant may have against the plaintiff that arise out of the
transaction or occurrence that is the subject matter of the principal
action.

The legislature provided insight to its intent when it amended La.Code

Civ.P. art. 1061 in 1990 to include “a compulsory reconventional demand” for

defendants. See Comments 1990 (a). Comment 1990 (b) to La.Code Civ.P. art.

1061 further provides:

[I]f the defendant has a cause of action arising out of the subject
matter of the plaintiff’s action, then the defense of res judicata will
prevent relitigation of issues common to both causes of action except
as otherwise provided by law. The requirement of a compulsory
reconventional demand therefore also serves the interest of fairness by
giving the defendant notice that he must assert his related cause of
action.
Similarly, La.Code Civ.P. art. 425(A) provides: “A party shall assert all causes of

action arising out of the transaction or occurrence that is the subject matter of the

litigation.”

The doctrine of res judicata is set forth in La.R.S. 13:4231 (emphasis added)

which 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.

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The supreme court considered the 1990 amendment of La.R.S. 13:4231, in

Terrebonne Fuel & Lube, Inc. v. Placed Refining Co., 95–654, 95–671, p.12 (La.

1/16/96), 666 So.2d 624, 632, and the effect it has on litigation, finding:

[A] second action would be barred because it arises out of the
occurrence which was the subject matter of the prior litigation. The
central inquiry is not whether the second action is based on the same
cause or cause of action (a concept which is difficult to define) 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.

Id. (quoting Comments—1990, La. R.S. 13:4231).

Exceptions to the doctrine are stated in La.R.S. 13:4232 (emphasis added),

which provides, in pertinent part:

A. A judgment does not bar another action by the plaintiff:

(1) When exceptional circumstances justify relief from the res
judicata effect of the judgment;

(2)When the judgment dismissed the first action without prejudice;
or,
(3) When the judgment reserved the right of the plaintiff to bring
another action.

In Burguieres v. Pollingue, 02–1385, p. 8 (La. 2/25/03), 843 So.2d 1049,

1053 (citing La.R.S. 13:4231), the supreme court set forth a five-step test to

determine whether res judicata attaches to a previous judgment:

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 the final judgment in the first litigation; and,

5) the cause or causes of action asserted in the second suit arose from
the same transaction or occurrence that was the subject of the first
litigation.

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The res judicata effect of a prior judgment is a question of law. Hannie v.

Colonial Oaks AL Lafayette Emp., LLC, 21-349 (La.App. 3 Cir. 2/9/22), 334 So.3d

17. When an exception of res judicata is raised before the case is submitted and

both parties presented evidence on the exception, appellate courts apply the

manifest error–clearly wrong standard of review to a trial court’s ruling on the

exception. Id. Whether a prior judgment has a res judicata effect on a subsequent

proceeding is a question of law that is reviewed de novo on appeal. Penton v.

Castellano, 49,843 (La.App. 2 Cir. 6/24/15), 169 So.3d 739.

Mr. Strenge points out res judicata is stricti juris, and if there is any doubt as

to whether the principle applies, it should not be applied. Igbokwe v. Moser, 12–

1366 (La.App. 4 Cir. 4/24/13), 116 So.3d 727, writ denied, 13–1196 (La. 9/13/13),

120 So.3d 698. Mr. Strenge asserts doubts exist as to whether res judicata applies

to his claims and his situation presents exceptional circumstances under La.R.S.

13:4232(A)(1).

Courts strictly apply this exception and have held a plaintiff’s “fail[ure] to

assert a right or claim for damages through oversight or lack of proper preparation”

does not warrant an exception to the doctrine. Spear v. Prudential Prop.& Cas. Ins.

Co., 98-1663, p. 4 (La.App. 4 Cir. 1/13/99), 727 So.2d 640, 643. Courts have also

determined, the exception “is designed to protect those drawn into error by an

awkward factual or legal scenario, not those who can allude to no circumstance to

justify their inaction below.” Id. See also, Jackson v. Iberia Par. Gov’t, 98-1810, p.

9 (La. 4/16/99), 732 So.2d 517, 524, where the supreme court held “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.”

We further note a trial court has discretion when balancing the doctrine of

res judicata and the interests of justice and determining whether or not exceptional
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circumstances exist that warrant application of the res judicata doctrine. Guidry v.

State Farm Mut. Auto. Ins. Co., 21-808 (La. 11/10/21), 326 So.3d 1224.

Mr. Strenge insinuates he does not appear herein in the same capacity as he

did in Mr. Whitlock’s suit. When discussing the concept of capacity, the supreme

court observed in Burguieres, 843 So.2d at 1054, that civilian law and common

law both require there be an “identity of parties” before the doctrine of res judicata

can be applied to bar a subsequent suit. The parties need not have the same

physical identity, but they “must appear in the same capacities in both suits.” Id. In

addressing this issue, the supreme court quoted the Restatement (Second) of

Judgments § 36(2) (1982), which provides, in pertinent part: “A party appearing in

an action in one capacity, individual or representative, is not thereby bound by or

entitled to the benefits of the rules of res judicata in a subsequent action in which

he appears in another capacity.” Burguieres, 843 So.2d at 1054. The court also

noted “[t]his principle is imposed to ‘safeguard the integrity of . . . representative

functions.’ Restatement (Second) of Judgments § 36 cmt. a (1982).” Id. (second

alteration in original).

Contrary to Mr. Strenge’s claims, the fact that he was the defendant in the

Whitlock suit and plaintiff in his suit has no effect on the application of res judicata

to his claims. In Oliver v. Department of Public Safety & Corrections, 95-1232,

(La.App. 1 Cir. 2/23/96), 669 So.2d 570, writ denied, 96-1041 (La. 5/31/96), 674

So.2d 262, the court determined “the plaintiff” referenced in La.R.S. 13:4232 is a

plaintiff who was the plaintiff in a prior action between the parties that was

dismissed. Accordingly, La.R.S. 13:4232’s exceptions to the general rule of res

judicata do not apply to the defendant in a prior action.

In Classen v. Hofmann, 06-560, p. 7 (La.App. 5 Cir. 11/28/06) (footnote

omitted), 947 So.2d 76, 80, the court concluded:
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Given the fact that LSA–C.C.P. art. 1061 and LSA–R.S.
13:4231 must be read in pari materia, it does not matter whether Mrs.
Classen was a defendant in the Orleans suit and a plaintiff in the
Jefferson Parish suit. C.C.P. art. 1061 requires her to assert any causes
of action against Mrs. Hofmann and her insurer, which arise out of the
same operative facts, via a compulsory counterclaim in the Orleans
Parish suit. See also Hy–Octane Investments, Ltd. v. G & B Oil
Products, Inc., 97–28 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057.

Mr. Strenge appeared as himself in Mr. Whitlock’s suit and in his suit.

Therefore, he was required to assert his claims against Mr. Whitlock in a

reconventional demand in that suit, as required by La.Code Civ.P. art. 1061.

Mr. Strenge next argues extenuating circumstances exist which excuse his

failure to assert his claims against Mr. Whitlock in a reconventional demand. We

have reviewed the cases cited by Mr. Strenge in support of this argument and find

the circumstances therein do not reflect the facts of this case and do not apply to

his claims. In some of those cases, the party seeking to pursue claims in a second

suit was a co-plaintiff with his insurer that filed the first suit to recover amounts it

had paid to its insured and allowed the suit to be dismissed with prejudice without

reserving the rights of its insured. See, e.g., Fine v. Reg’l Transit Auth., 95-2603

(La.App. 4 Cir. 6/26/96), 676 So.2d 1134; Wicker v. Louisiana Farm Bureau Cas.

Ins. Co., 18-225, (La.App. 1 Cir. 9/21/18), 257 So.3d 817.

Penton, 169 So.3d 739, involved a number of parties, including the

plaintiff’s employer. The plaintiff’s employer was a defendant that was dismissed

on summary judgment. Thereafter, the employer intervened to recover workers’

compensation payments it had paid to the plaintiff. The plaintiff’s exception of res

judicata failed because the final judgment signed by counsel for all parties

specifically reserved all rights concerning the intervention between the plaintiff

and the employer.

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Cowan v. Kanuch, 15-97 (La.App. 4 Cir. 9/16/15), 176 So.3d 553, writ

denied, 15-1913 (11/20/15), 181 So.3d 699, involved two different suits between a

tenant and his landlord and procedural issues. The fourth circuit court determined

that because the trial court’s judgment dismissed a motion to consolidate and

transfer without prejudice filed by the landlord but granted the tenant’s exception

of prescription with prejudice, the judgment created an ambiguity as to whether the

trial court intended to dismiss the landlord’s substantive rights. The court found

this ambiguity created doubt that warranted the exception of res judicata being

denied.

Pursuant to La.Code Civ.P. art 1061, a defendant such as Mr. Strenge was

required to assert any claims he had arising from an accident at the issue in the suit

against him as a reconventional demand in that same suit. Unlike La.R.S.

13:4232(A) which provides exceptions to res judicata, neither the law nor the

jurisprudence provides an exception to this mandatory requirement. Nonetheless,

Mr. Strenge implies his failure to file a reconventional demand is excused and his

claims are not res judicata because they were not prescribed when he filed his suit

herein. He cites no support for his argument. He also does not address the fact that,

by its express terms, La.R.S. 13:4232 applies only to actions brought by one who

was a plaintiff in a prior suit. For these reasons, we find no error with the trial

court’s conclusion that none of the exceptions stated in La.R.S. 13:4232 apply to

his claims in this matter and that those claims are res judicata.

Finally, Mr. Strenge argues the trial court erred in granting his motion for

new trial. On appeal, the denial of a motion for new trial is reviewed for an abuse

of discretion. Levine v. Nationwide Agribusiness Ins. Co., 23-488, 23-489 (La.App.

3 Cir. 3/6/24), 381 So.3d 908, writ denied, 24-426 (La. 6/19/24), 386 So.3d 310.

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Having determined the trial court did not err in granting the defendants’ exceptions

of res judicata, we also find it did not err in denying the motion for new trial.

DISPOSITION

The trial court’s judgments sustaining the exceptions of res judicata asserted

by Cartavious Whitlock and his insurer, GEICO Indemnity Company, and denying

Kraig Strenge’s motion for new trial are affirmed. All costs are assessed to Kraig

Strenge.

AFFIRMED.

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