COWAN v. KANUCH (2014)

JURISDICTIONAL STATEMENT

This is an appeal from a Judgment of First City Court for the Parish of Orleans pursuant to La. Const. art. V, § 10(A) and (B), whereby courts of appeal have appellate jurisdiction to review “all civil matters” and have the power and authority to review “law and facts.” La. Const. art. V, § 5(C). Such a review is referred to as a de novo review. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings.

La. Const. Art. VII, § 91 First city court; jurisdiction; pleadings; authority; procedure; costs; appeals; small claims provides under

D. Appeals from the first city court in cases where the amount in dispute or the fund to be distributed does not exceed one hundred dollars, exclusive of interest, shall be taken to the civil district court for the parish of Orleans, where they shall be tried de novo, as provided in Article VII, Section 81 of this Constitution. Appeals in all other cases shall be taken to the court of appeal for the fourth circuit.

SYLLABUS OF LAW

§ 13:4231. Res judicata—General Rules

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.

LA. R.S. § 13:4232. Exceptions to the general rule of res judicata

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.

B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse's education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

La. C.C.P. Art. 1067. When prescribed incidental or third party demand is not barred

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

La. C.C.P. Art. 1673. Effect of dismissal with or without prejudice

A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.

La. C.C.P. Art. 1841. Judgments, interlocutory and final

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.

A judgment that determines the merits in whole or in part is a final judgment.

DEVOLUTIVE APPEAL ON BEHALF OF PLANITIFF/APPELLANT, NANCY COWAN

MAY IT PLEASE THE COURT:

STATEMENT OF THE CASE

A. FCC CASE 2009–53525 DIVISION “A” FILED IN 2009

This is a claim for damages by a landlord against her former tenant for extensive damage to her rental property at 515 Bordeaux Street in Uptown New Orleans. Nancy Cowan filed case No.2009–53525 DIVISION “A” in First City Court for the Parish of Orleans on 11/20/09, a court of competent but limited jurisdiction asserting claims against J. Richard Kanuch. The Petition in the Appellate Record (Pages 1–4) describes “horrendous damage” from cat and dog urine which could not be remediated by professional odor remediation contractors that reduced the value of the property substantially. This simple case has turned into a career for both sides:

After repeated unsuccessful attempts at service by the Constable in the First City Court case on the defendant, Mr. Kanuch, a practicing attorney, at his place of employment, Scheuermann & Jones, 909 Poydras Street, Suite 2556, New Orleans, LA 70112, Mrs. Cowan requested the appointment of a private process server but even the private process server was unable to find Mr. Kanuch for service and the case lay dormant for a year although Kanuch himself had filed a against Nancy Cowan on 10/5/09 in Civil District Court, Docket No. 09–10538 Division “G” seeking damages for personal injuries for a slip and fall accident on the front steps of his leased house (believed by plaintiff to be bogus) allegedly on 10/8/08 naming Mrs. Cowan's liability insurance carrier, Hartford Insurance Company, and her condominium association, Bouligny House Condominium Association as defendants. On 11/4/09 the Hartford answered the lawsuit on behalf of itself as well as Ms. Cowan.

B. COWAN MOTION TO CONSOLIDATE AND REMOVE FCC CASE INTO CDC AS A RECONVENTIONAL DEMAND IN NO. 09–10538 DENIED BASED ON LA. C.C.P. ART. 1067.

Finding it impossible to find Mr. Kanuch to serve him with her suit for damages to rental property in the First City Court case, and also because greater damages had become manifest since the FCC case was originally filed (namely that the rental property became uninhabitable because of cat urine and feces and attempts at rehabilitating the property exceeded plaintiff's means. The financial strain had forced her to sell this property at a loss that impacted her plans to live off the rental income as retirement income and appreciation in market value), and since Mr. Kanuch had counsel for his personal injury claim in the Civil District Court case, Mrs. Cowan strategically seized upon the opportunity to pursue Kanuch into Civil District Court. She filed a customary Motion to Transfer and Consolidate (Appellate Record, P. 12–15) to consolidate the FCC case into Kanuch's PI Case in CDC-which was signed ex parte by the First City Court Judge. In the proceedings in CDC, Cowan then filed a Reconventional Demand on 9/30/10 and served it on Mr. Kanuch through his attorney of record in the CDC case at the time, Arthel Sheuerman, of the highly respected firm of Scheuerman and Jones.

After the lengthy period of dormancy in First City Court, Kanuch, in the Civil District Court proceeding No. 09–10538 “G” successfully persuaded Judge Robin Guirusso to dismiss Cowan's claims in a reconventional demand against Kanuch dismissed based on prescription under La. C.C.P. Art. 1067 and her Motion to Transfer and Consolidate from FCC “dismissed without prejudice¹ ”. (See Exhibit “A”, Judgment dated) There was never a trial on the merits and the ruling was solely based on procedural issues that her Reconventional Demand was filed out of time under CCP 1067 since the principal demand was filed on 10/8/08 but had been answered by Mrs. Cowan's insurer on its behalf as well as her personally on 11/4/09 but her afterthought Reconventional Demand was not filed until 9/30/10.

With the Motion to Transfer and Consolidate denied “without prejudice”. Plaintiff then filed a Motion to Transfer Case back from CDC to FCC asking the FCC Judge to bring the case back down to FCC which was signed by Judge Morial on 4/10/12.

C. COWAN'S ATTEMPT TO SEQUESTER KANUCH'S PERSONAL INJURY PROCEEDS EX PARTE BY FILING NEW CASE NO.2012–2213 “C” DISMISSED BASED ON LIS PENDENS OF CASE PENDING IN FCC

Upon the dismissal by Judge Guirusso of Mrs. Cowan's Reconventional Demand in “G” on technical grounds, but aware that Mr. Kanuch had settled his personal injury case at mediation for $25,000 and that his receipt of the proceeds was imminent, Mrs. Cowan then filed an entirely new case, Docket No. 2012–2213 “C” styled “Petition for Damages and for Writ of Attachment” and attempted to sequester Kanuch's personal injury settlement proceeds in the hands of his attorney in the PI case in a separate lawsuit allotted to Sidney Cates in CDC on the basis that Kanuch had concealed himself to avoid service authorized for claims against residents with assets within the jurisdiction of the court but who conceal themselves to avoid service of process.

In the new case filed 3/5/12, initially allotted to Kern Reese, Div. “L–6” Judge Reese unexplainably recused himself and it was reallotted to “C–10”, where on 3/7/12, Judge Sidney Cates denied Cowan's request for a Writ of Attachment and refused to ex parte order the sheriff to seize Mr. Kanuch personal injury settlement pending the outcome of that case on the basis that he had repeatedly concealed himself to avoid service of citation. Being under the impression that she had simply not made specific enough allegations in the petition to warrant an ex parte order of seizure, Cowan then filed a Supplemental and Amending Petition setting a Rule to Show cause on 5/18/12 why the Attachment should not be granted. Despite the urgency of the situation and the expectation that Kanuch would be receiving his $25,000 settlement proceeds from the “G” case, he got the Rule continued to 6/12/12 and again continued to 8/10/12.

Kanuch then filed a Preemptory Exception Lis Pendens and Res Judicata. Judge Sidney Cates alleging merely that “a hearing was held on March 23, 2102 and Judge Giarusso denied the Application for Writ of Attachment” and “there is pending in First City Court a matter seeking the identical damages and relief she now seeks in this matter.” Judge Cates granted the peremptory exception of Lis Pendens dismissing the “C” case because of the pendency of the case in First City Court and also because of the ruling of Judge Giarusso that Cowan's Reconventional Demand had been untimely under LA. C.C.P. ART. 1067. As a result, with all of her efforts to seek expanded jurisdiction to have a trial on the merits unsuccessful based on procedural rulings, and with never a word of testimony taken, Cowan resigned herself to going back for trial in First City Court. After Kanuch finally answered the lawsuit, the case was set for trial by consent on 12/19/13 but Kanuch then started maneuvering again to avoid going to trial. His lawyer withdrew supposedly against his consent but finally the matter was set and reset several times and Judge Morial admonished the parties that it would definitely be finally tried on 9/10/14.

ACTION BY THE TRIAL COURT

On the morning of trial, 9/10/14, Judge Monique Morial, despite the matter being set for trial on the merits on after a detailed Pretrial Order having been prepared (Appellate Record P. 72–76) and with the plaintiff and her witnesses in court and ready to go expecting finally to get this matter over, the First City Court trial judge granted a Peremptory Exception and an Exception of Res Judicata which had been filed by the defendant in pro se on 10/21/13 only two weeks before the trial and dismissed her five year old case based on both Res Judicata and Prescription. At trial Mr. Kanuch was represented by two prominent attorneys in the city, Blake Jones and Larry Centola, neither of whom had ever filed a Motion to Enroll, and who merely argued the Motions. Mr. Kanuch was not even in the courtroom or had given any indication he was coming.

The Court rendered a judgment from the bench on 9/10/14 and signed a “Judgment with Incorporated Reasons” on 9/17/14 which did not cite a single case and recited merely that the CDC judgments were final judgments (Citing La. C.C.P. Art. 1673 and La. C.C. P. Art 1841) from which Mrs. Cowan had not appealed. The Court did not discuss the issues of Res Judicata, Prescription nor did she consider whether the same issues had been litigated in CDC or whether there were exceptional circumstances² to justify relief from the res judicata from the judgments the court was deciding controlled the case from Civil District Court.

Mrs. Cowan and her witnesses, having expected to go to trial, had no idea what was happening and just stood in amazement as the court adjourned, never ever having had the opportunity to explain to any judge in any court what had happened to her. There was never any trial on the merits in any court. Even to this day, she cannot quite understand why she never got to testify against a man who had so damaged her property and gotten away with it.

ASSIGNMENT OF ERRORS

I. The First City Court concluded rulings on technical procedural issues in Civil District Cases applying to incidental demands in a proceeding in a different court had res judicata effect as to the merits of the primary demand in the case before it.

II. The court concluded “issue preclusion” is not required for res judicata effect: i.e whether identical issues decided by the prior judgment (in this case purely procedural) have res judicata effect on the factual merits of the claim brought timely. In this case, the actual issue of procedural timeliness was the only and sole issue upon which the judgments in CDC were based even though prescription had been interrupted in FCC by the timely filing of the original demand.

III. The trial court failed to made a determination as to whether exceptional circumstances existed warranting relief from the res judicata effect as provided as an exception to the general rule.

IV. The court abused its discretion in taking up Exceptions filed only two weeks prior to the trial and letting two attorneys argue the case who had not filed motions to Enroll.

STATEMENT OF THE ISSUES

I. Does issue preclusion apply herein (i.e. were the dismissal of Judge Reese's case and Judge Guirusso's case based on the same issues necessary to resolve the merits of the case before Judge Morial?

II. Do basic equities of the circumstances warrant reversal?

III. Whether the trial court considered exceptional circumstances warranting the FCC Court exercising its discretion to grant relief from the judgment for exceptional circumstances

ISSUES PRESENTED FOR REVIEW

I. Does the doctrine of res judicata have effect here to require that the identical issues have been adjudicated in the prior proceeding and that they have been necessary to its disposition?

II. Whether issue preclusion is a requirement that the identical issues have been actually litigated and determined for res judicata to have effect.

III. Are the facts of the plaintiff never having had a trial, never had a chance to present her issues on the merits, having had her claims in another court dismissed on an entirely different procedural issue, “exceptional circumstances” under LA. R.S. § 13:4232 warranting an exception to the general rule of res judicata.

LAW AND ARGUMENT

Black's Law Dictionary defines Res Judicata as:

Res Judicata. A matter adjudged; a thing adjudicated acted upon or decided; a thing or matter settled by judgment. A phrase of the civil law, constantly quoted in the books. Epstein vs. Soskin, 86 Misc. Rep. 94, 148 N.Y.S. 323, 324; Rule that final judgment or decree on merits by court of competent jurisdiction is conclusive of all rights of parties or their privies in all later suits on points and matters determined informer suit. American S .S. Co. Vs. Wickwire Spencer Steel Co., D.C.N.Y., 8 F.Supp. 562, 566. And to be applicable, required identify of thing sued for as well as identity of cause of action, or persons and parties to action, and of quality in persons for or against whom claim is made. Freudenreich v. Mayor and Council of Fairview, 114 N.J.L. 290, 176 A. 162, 163. The sum and substance of the whole rule is that a matter once judicially decided is finally decided. Massie v. Paul, 263 Ky. 183, 92 S.W. 11, 14. See, also, Res Adjudicata, supra.

Black's Law Dictionary defines Res Adjudicata also defines Res Adjudicata as:

Res adjudicata. A common but indefensible spelling of res judicata. The latter term designates a point or question or subject-matter which was in controversy or dispute and has been authoritatively and finally settled by the decision of a court; that issuable fact once legally determined is conclusive as between parties in same or subsequent proceeding. Tiffany Production of California vs. Superior Court of California for Los Angeles County, 131 Cal.App. 729, 22 P.2d 275.

Res adjuciata (if there was such a term) could only mean an article or subject matter of property “awarded to” a given person by the judgment of a court, which might perhaps be the cause in replevin and similar actions.

A. ISSUE PRECLUSION—THE IDENTICAL ISSUES WERE NOT IN FACT TRIED IN EITHER CDC CASE

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 or incorrect. Ins. Co. of North America v. Louisiana Power & Light, 2008–1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267; Sutter v. Dane Investments, Inc. 07–1268, p. 3 (La.App. 4 Cir. 6/04/08), 985 So.2d 1263, 1265. 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.” Ins. Co. of North America, 2008–1315 at 6, 10 So.3d 264 at 268. Moreover, the 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 7; Kelty v. Brumfield, 93–1142, p. 7 (La.2/25/94), 633 So.2d 1210, 1215.

Myers v. Nat'l Union Fire Ins. Co., 43 So.3d 207, 210, 2010 La.App. LEXIS 759, 7, 2009–1517 (La.App. 4 Cir. 05/19/10); (La.App. 4 Cir.2010)

This five year old case has been a test of revolve: between an elderly lady trying to get justice, her attorney (the undersigned) representing her in the interest of justice and the opposition attorney using every trick in the books to defeat paying the lady her just due. What it all boils down to is whether basic equities justify NOT applying the rule of Res Judicata even if the general rule of res judicata should apply (which is denied).

Kanuch, Defendant in Reconvention in the Civil District Court proceeding No. 09–10538 “G” successfully persuaded Judge Robin Guirusso to dismiss Cowan's claims in her reconventional demand against Kanuch based on prescription under La. C.C.P. Art. 1067 and her Motion to Transfer and Consolidate from FCC “dismissed without prejudice³ ”. There was never a trial on the merits before Judge Giarusso and her ruling was solely based on procedural issues that the Reconventional Demand was filed out of time under CCP 1067 since the principal demand was filed on 10/8/08 and was answered by Mrs. Cowan's insurer on its behalf as well as her personally on 11/4/09 but her afterthought Reconventional Demand was not filed until 9/30/10.

La. C.C.P. Art. 1067. When prescribed incidental or third party demand is not barred

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

No other issues were actually litigated nor was there ever a trial on the merits.

Art. 3462. Interruption by filing of suit or by service of process

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

Kanuch sought to have the Cowan claim in the Reconventional Demand filed in the CDC proceeding dismissed alleging that it was prescribed because the Reconventional Demand was not filed within 90 days from the date of service of the main demand and was successful. That outcome should not be controlling in the proceeding in the First City Court because his arguments had no relevancy in that proceeding, an entirely separate proceeding that he actually objected to being transferred and consolidated into the proceeding in a court of greater jurisdictional amount. He argued that “in the instant action, the reconventional demand filed by defendant Nancy Cowan, though not barred at the time exceptor's mail demand was filed, was not filed within nintey (90) days from the date of service of exception's main demand on Nancy Coway, defendant/reconvenor herein namely October 20, 2009.

This procedural argument worked in “G” despite Cowan's protestations that prescription didn't matter since Cowan had already interrupted prescription by filing in First City Court suit against Kanuch on 11/20/09 and the fact that the issues should have been before the court by virtue of Judge Morial order of transfer and consolidation.

In Igbokwe v. Joshua Moser, 116 So.3d 727, (La.App. 4 Cir. 04/24/13) this Fourth Circuit Court of appeal before it a similar case where an earlier judgment on the basis of prescription had dismissed a case but the merits of the remaining claim of another party's damage claim against had never been litigated, determined, or adjudicated. Chief Judge James Mckay wrote:

It is well established that the doctrine of res judicata is stricti juris, thus, any doubt concerning the application of the principle must be resolved against its application. Kelty v. Brumfield, 93–1142, p. 7 (La.2/25/94), 633 So.2d 1210, 1215. See also Louisiana Workers' Compensation Corp. v. Betz, 2000–0603 (La.App. 4 Cir. 4/18/01), 792 So.2d 763. A review of the jurisprudence also reflects that several courts have denounced the application of res judicata principles when the issues in the subject cases were never settled, litigated, or adjudicated. See Fine v. Regional Transit Auth., 95–2603 (La.App. 4 Cir. 6/26/96), 676 So.2d 1134, 1137; Schneidau v. Vanderwall, 2008–1274, pp. 5–6 (La.App. 5 Cir. 5/26/09), 17 So.3d 61, 64 (citing Billiot v. LeBeouf Brothers Towing Co., 93–1697 (La.App. 1 Cir. 6/24/94), 640 So.2d 826); Ortiz v. Ortiz, 2001–1252, pp. 5–6 (La.App. 5 Cir. 05/15/02), 821 So.2d 35, 38; and Brouillard v. Aetna Cas. and Surety Co., 94–1559, p. 3 (La.App. 3 Cir. 5/10/95), 657 So.2d 231, 233.

In Schneidau, plaintiff sued Vanderwall and his insurer, Markel, for injuries allegedly sustained in a motor vehicle accident. At that time, Schneidau instructed the clerk of court to withhold service on Vanderwall. Pursuant to a motion for summary judgment on the basis of prescription, Markel was dismissed from the action, with prejudice. Following the dismissal of Markel, Schneidau moved for the appointment of a special process server to effect service on Vanderwall. Thereafter, Vanderwall filed exceptions of res judicata, insufficiency of service, and prescription. The trial court rendered judgment in favor of Vanderwall on the exception of res judicata. The appellate court reversed, finding that the trial court erred in granting the exception of res judicata where Markel was dismissed on the [Pg 7] basis of prescription, and the merits of Schneidau's damage claim against Vanderwall had never been litigated, determined, or adjudicated.

In Fine, this Court also recognized that the doctrine of res judicata should not apply where a plaintiff's alleged damages for personal injuries were not litigated or settled. Therein, we stated that “[t]he overruling of an exception of res judicata will lessen judicial efficiency and increase the need for litigation. Those harms are sometimes preferable to the loss of plaintiff's substantive rights without the merits being decided.” Fine, 95–2603, p. 5, 676 So.2d at 1137 (citing Mavromatis v. Lou–Mar, Inc., 93–0379, 93–1212 (La.App. 4 Cir. 2/11/94), 632 So.2d 828, 832).

Igbokwe v. Joshua Moser, 116 So.3d 727, 731–732 (La.App. 4 Cir. 04/24/13)

Cowan did not appeal this ruling believing that it might be within the court's discretion, that an appeal would be quite costly, strategically deciding to attempt an attachment of Kanuch's personal injury settlement money which was imminent from his settlement by an attempt at a sequestration of the funds in an entirely new proceeding in CDC:

Accordingly, Mrs. Cowan spend considerable court costs trying one more time to open an entirely new suit incorporating a “Verified Petition for Damages and for Writ of Attachment” which was docketed on 3/5/12 under No.; 2012–2213 “L” and requested a customary Ex Parte Order of Attachment based on the verified petition and bond. The Ex Parte request for an Attachment of Kanuch's funds was denied ex parte without explanation. Believing the ex parte attachment was denied for some legal insufficiency in the pleadings (namely that an attachment was warranted as to a resident of the State who has concealed himself to avoid service), Cowan attemped to Amend her petition on 3/6/12 to allege the concealment but again, the duty judge simply denied the request to attach Kanuch's settlement funds in the hands of any attorney pending a contradictory hearing” but this time on the procedural grounds that Kanuch argued: lis pendens that the FCC suit was pending. At argument after several continuances, Mr. Kanuch was represented by another attorney but Judge Reese simply dismissed the request without reasons and plaintiff assumed she was simply going to be relegated to trying the case in First City Court.

Because of Mr. Kanuch's dodging service, and succession of attorneys, he has been able to thwart five years of efforts to collect a reasonable amount for her damages. Even on the verge of doing forward with a trial (where Kanuch himself did not even appear), Kanuch slipped away under unfortunate and tricky circumstances. For a member of the bar, Kanuch's professional behavior in dodging service, neglecting his financial obligations, resorting to dilatory and technical procedural defenses to avoid touching on the merits warrants allowing his victim her day in court are reprehensible.

B. EXCEPTIONAL CIRCUMSTANCES EXIST TO JUSTIFY RELIEF FROM RES JUDICATA EFFECT

If any there were exceptional circumstances justify relief from the res judicata effect of the judgment within the meaning of La. R.S. § 13:4231, they are here: Mr. Kanuch dodged service to defeat the initial process of having the Cowan Petition in First City Court served. He filed a bogus personal injury suit in Civil District Court which was the only way Mrs. Cowan was able to get service on him through his attorney there. He filed technical motions and settled his personal injury case right under Mrs. Cowan's nose as her reconventional demand was pending in the same proceeding and managed to convince her to deny Mrs. Cowan's attempt to transfer and consolidate the FCC case into the CDC Case on technical procedural grounds. He got Mrs. Cowan's attempt to sequester the personal injury proceeds in a new proceeding denied ex parte and then managed to avoid ever going to trial or letting any judge hear the evidence. Judge Morial was simply mistaken in failing to consider exceptional circumstances and whether the identical issues had been adjudicated-especially the procedural ones, which were clearly entirely different, as well as the primary thrust of the ligation-to seize proceeds of Kanuch's personal injury proceeds and bring the claim as a reconventional demand to Kanuch's personal injury claim.

C. PLAIN LANGUAGE OF LA. R.S. § 13:4232 SUGGESTS RES JUDICATA SHOULD NOT BE APPLIED IN THESE CIRCUMSTANCES.

From the mere fact of the complexity of the prior proceedings and the fact that there has never been a trial on the merits with witnesses and exhibits, there is simply a matter of basic equity and fairness that dictates that Mrs. Cowan should be afforded a day in court and Mr. Kanuch's antics in thwarting her every move should not be countenanced. Surely these are exceptional circumstances to justify relief from the res judicata effect of the judgment within the meaning of La. R.S. § 13:4231,

CONCLUSION

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.” Moreover, the doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application. Nancy Cowan's claims and attempts to seize Richard Kanuch's settlement proceeds dismissed on mere procedural grounds and were never adjudicated on the merits in Civil District Court while her claims in First City Court filed years ago were never adjudicated on the facts,

Plaintiff/Appellant prays that the Court find that the general rule of res judicata be found not to apply to the circumstances of this case or alternatively that exceptional circumstances be found to justify relief from any res judicata effect of procedural judgments in Civil District Court. The Trial Court's Judgment should be reversed and that the case be remanded for a trial on the merits.

RESPECTFULLY SUBMITTED

/s/

DAVID BAND, Bar No. 2718

Appeal Counsel for Appellant, Nancy Cowan

422 South Broad Street

New Orleans, LA 70119

(504) 822–2263, Fax 504–822–2255

Email: AttyBand@gmail.com

FIRST CITY COURT FOR THE CITY OF NEW ORLEANS

STATE OF LOUISIANA

NO.2009–53525

SECTION: “A”

NANCY COWAN

VERSUS

J. RICHARD KANUCH

FILED: _

․

DEPUTY CLERK

JUDGMENT WITH INCORPORATED REASONS

This matter came before the Court for trial on September 10, 2014 and hearing on Defendant's Exception of Res Judicata.

Present: David Band

422 South Broad Street

New Orleans, Louisiana 70119

Counsel for Plaintiff, Nancy Cowan

Lawrence J. Centola, Jr. and

Lawrence Blake Jones

701 Poydras Street, Suite 4100

New Orleans, Louisiana 70139

Counsel for Defendant, J. Richard Kanuch

WHEN, after considering the pleadings, testimony, evidence and law, the Court finds the law and evidence to be in favor of Defendant, J. Richard Kanuch, and against the Plaintiff, Nancy Cowan, as it relates to Defendant's Exception of Res Judicata. Defendant's Exception of Res Judicata is maintained and plaintiff's case is hereby dismissed with prejudice.

Procedural History

Defendant, J. Richard Kanuch, leased the premises located at 515 Bordeaux Street in New Orleans, Louisiana from plaintiff, Nancy Cowan in 2008. On September 22, 2009, Mr. Kanuch moved out of the premises and filed suit against Nancy Cowan on October 5, 2009 for personal injuries arising from a slip and fall at the leased premises. Mr. Kanuch filed suit in Civil District Court for the Parish of Orleans (CDC), case number 2009–10538, caption, J. Richard Kanuch and J. Richard Kanuch, LLC v. Bouligny House Condominium Association, Inc., Nancy Cowan, the Hartford Insurance Company and XYZ Insurance Company.

Ms. Cowan, plaintiff in the above-captioned matter, filed a petition for damages to rental property on November 20, 2009 against Mr. Kanuch in First City Court (FCC) for the Parish of Orleans, case number, 2009–53525, Nancy Cowan v. J. Richard Kanuch. Ms. Cowan alleged in her petition that Mr. Kanuch severely damaged the premises well beyond ordinary wear and tear. Ms. Cowan sought damages for the necessary repairs due to Mr. Kanuch's breach of the parties' lease agreement as well as diminished value of the premises.

On November 19, 2009, Hartford Insurance Company and Nancy Cowan tiled an Answer with affirmative defenses in CDC case number 2009–10538. On September 3, 2010, Ms. Cowan filed a Reconventional Demand in the CDC case alleging that Mr, Kanuch severely damaged the premises located at 515 Bordeaux Street and seeking damages as a result of Mr. Kanuch's breach of the lease agreement. A pre-trial conference in the CDC matter was held on May 24, 2011, and trial was set for January 17, 2012.

On December 20, 2011, Mr. Kanuch filed an Exception of Prescription in the CDC case alleging that Ms. Cowan's Reconventional Demand prescribed. Trial in the CDC matter was set for October 15, 2012. Nancy Cowan also filed a Motion to Transfer and Consolidate the FCC and CDC cases. A hearing was held on February 17, 2012, on the issue of Prescription and the Motion to Transfer and Consolidate. On March 9, 2012, Judge Robin M. Giarrusso entered Judgment dismissing Nancy Cowan's Reconventional Demand with prejudice and dismissing Ms. Cowan's Motion to Transfer and Consolidate.

In FCC, this matter had been set for trial and various exceptions had been pending. On September 10, 2014, trial in this matter was set as well as the hearing on the Defendant's Exception of Res Judicata.

Reasons for Judgment

The Court based on the pleadings, the evidence and the arguments of counsel, finds that the dismissal of plaintiff's Reconventional Demand with prejudice in CDC disposed of the FCC case also as both cases arose from the same set of operative facts. Plaintiff sought to recover damages to her property subject to a lease agreement that she entered into with Mr. Kanuch. The allegations in plaintiff's original Petition for Damages in FCC and her Reconventional Demand in CDC are essentially identical.

Plaintiff and/or plaintiff's counsel had a choice of two forums in which to pursue the claims against Mr. Kanuch. Plaintiff made a strategic move to pursue her claims in CDC, not FCC, presumable due to the jurisdictional limit in FCC. The dismissal with prejudice in CDC precluded her from seeking the same relief in the separate suit in FCC. It is of no moment that plaintiff first filed her claims in FCC. It was only after her reconventional demand was dismissed in CDC that Ms. Cowan decided to pursue her FCC claims. See C.C.P. art. 1673 and C.C.P. art. 1841. According to these articles, the CDC judgment was a final judgment from which plaintiff could have sought a remedy, namely an appeal. Plaintiff failed to seek such a remedy; therefore, she may not now have two bites at the apple simply because she is unsatisfied with the Judgment in CDC. Moreover, this Court may not supersede another Judge's ruling, albeit a procedural ruling, based on circumstances that arise out of the same set of operative facts.

For these reasons, the Court finds that plaintiff's FCC case against Mr. Kanuch is dismissed with prejudice and maintains the Defendant's Exception of Res Judicata.

THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the Defendant's Exception of Res Judicata is hereby maintained.

JUDGMENT READ, RENDERED AND SIGNED at New Orleans, Louisiana on this 17th day of September, 2014.

FOOTNOTES

1.  La. R.S. § 13:4232 A(3) specifically contains a provision for an exception to the doctrine of res judicata where the judgment reserved the right of the plaintiff to bring another action.

2.  La.R.S. § 13:4232

3.  La. R.S. § 13:4232 A(3) specifically contains a provision for an exception to the doctrine of res judicata where the judgment reserved the right of the plaintiff to bring another action.

MONIQUE G. MORIAL, Judge.