Porter v. Louisiana Citizens Property Insurance Corp.Porter v. Louisiana Citizens Property Insurance Corp.
_jjThis аppeal arises from property damage resulting from Hurricane Katrina. The plaintiff submitted her claims against Louisiаna Citizens Property Insurance Corporation to mediation and settled. However, the plaintiff later sued asserting that all of her insurance claims were not covered in the settlement. The trial court found that the settlement barred thе plaintiff from further claims, granted an exception of res judicata, and dismissed the plaintiffs claims. We find that the settlement was not introduсed into evidence at the hearing on the exception, which created an incomplete record. Thеrefore, we vacate the trial court’s judgment and remand for further proceedings consistent with this opinion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Louisiana Citizens Property Insurance Corporation (“LCPIC”) insured Mary Porter’s residential property with an “all risk” policy during Hurricane Kаtrina. After filing a damage claim with LCPIC, Ms. Porter participated in mediation, pursuant to the Louisiana Mediation Act, and settled her claims on July 28, 2006. See La. R.S. 9:4101, et seq. However, on October 7, 2008, Ms. Porter filed a petition for damages against LCPIC, which alleged that LCPIC tendered partial payment pursuant to the settlement and that dwelling damages were not included in 12the settlement. LCPIC filed a рeremptory exception of res judicata, or, alternatively, a motion to enforce settlement, which the trial court granted. Ms. Porter’s devolu-tive appeal followed.
Ms. Porter asserts that LCPIC failed to carry its evidentiary burden to establish thаt Ms. Porter’s claims were perempted, that the trial court abused its discretion by ruling on LCPIC’s exception before giving Ms. Portеr additional time for discovery, and that the trial court erred by dismissing Ms. Porter’s claims for allegedly unpaid damages to her dwеlling because the claims were not included in the settlement agreement.
STANDARD OF REVIEW
“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.” Fletchinger v. Fletchinger, 10-0474, p. 4 (La.App. 4 Cir. 1/19/11),
RES JUDICATA
“An exception is a means of defense, other than a denial or avoidance of the demand, used by the defеndant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him.” La. C.C.P. art. 921. “The function of the peremptory exception is to have the plaintiffs action declared legally nonexistеnt, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. The exception of res judicata is | aproperly raised as a peremptory exception. La. C.C.P. art. 927. “The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.” La. C.C.P. art. 928(B). “On the trial of the peremptory exception pleaded at or prior to the trial of the cаse, evidence may be introduced to support or controvert any of the objections pleaded, when thе grounds thereof do not appear from the petition.” La. C.C.P. art. 931. If the grounds of the peremptory exceptiоn cannot be removed by amending the petition, the claims shall be dismissed. La. C.C.P. art. 934.
The Louisiana statute on res judi-cata, La. R.S. 13:4231, provides:
[ejxcept as otherwise providеd 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 finаl 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 trаnsaction 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.
“A settlement agreement is res judicata as between the parties and is entitled to the same effeсt as a judgment.” Louisiana Workers’ Comp. Corp. v. Betz, 00-0603, p. 5 (La.App. 4 Cir. 4/18/01),
Evidentiary Burden
Ms. Porter contends that “documents attached to memoranda do not | constitute evidence and cannot be considered on appeal” and that LCPIC failed to introduce exhibits attached to its exceptiоn into evidence. Therefore, Ms. Porter asserts that LCPIC failed to meet its eviden-tiary burden.
“[Tjhe burden of proof is on” the рarty urging the exception of res judicata “to prove its essential elements by a preponderance of the evidence.” Betz, 000603, p. 3,
Ms. Porter’s assertion has merit. “Appellate courts are courts of record and may not review evidеnce that is not in the
In the case sub judice, LCPIC failed to introduce the settlement into evidence at the hearing. Accordingly, we vacate the trial court’s judgment аnd remand for an evidentiary hearing as well as a redetermi-nation of the exception of res judicata based on a complete record.
\ hDECREE
For the above mentioned reasons, we find that LCPIC failed to introduce the settlement into evidence. Therefore, we vacate the judgment and remand for proceedings consistent with this opinion.
VACATED AND REMANDED