White v. Cox Operating, LLCWhite v. Cox Operating, LLC
I,This appeal arises' from damages to plaintiffs oyster beds sustained- during the drilling of oil wells by defendant. Plaintiff filed suit against defendant to recoup for the damages to his oyster beds. Defendant filed an exception of res judicata, contending that the written releases barred plaintiffs suit. The trial court did not accept testimony or evidence; but granted the exception. We find that the record is incomplete for an appellate review, as the trial court erred by not holding a formal evidentiary hearing. Therefore, we reverse and remand the matter for said hearing. Accordingly, the judgment 'of the trial court is vacated and the- matter remanded.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Wade White, a lifetime oysterman, is the owner of multiple oyster leases. Cox Operating, LLC
Around April 1, 2012, Mr. White discovered Cox’s pilings driven into his oyster leases' and water traffic that differed from the agreed upon routes on ingress/egress. Mr. White then Contacted Cox, who allegedly admitted the error and ^promised payment for damages. Cox removed the pilings and then continued following the previous agreed upon ingress/egress routes. Cox later maintained; that the executed drilling, releases covered any damages caused by the pilings and extra water traffic.
Mr. White then filed a Petition for Damages against Cox due to the pilings. Cox' filed a reconventional demand for breach of contract of settlement/compromise, declaratory judgment, and attorney’s fees/ costs. Cox also filed peremptory exceptions of res judicata and no right of action and sought expedited consideration from the trial court. The trial court heard oral argument, but did not accept live testimony or evidence. After taking the matter under advisement, the trial court granted Cox’s exception of res judicata and denied the exception of no right of action. Mr. White’s devolutive appeal followed.
MOTION TO DISMISS
Cox filed a Motion to Dismiss Mr. White’s appeal, asserting that this Court
“A judgment that determines the merits in whole or in part is a final judgment.” La. C.C.P. art. 1841. La. C.C.P. art. 1915(B)(1) provides:
When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim,. or intervention, the judgment shall not constitute a -final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
IsCox’s reliance on the above provision is misguided. The trial court’s judgment dismissed all of Mr. White’s claims; thereby creating a final judgment. La. C.C.P. art. 1915(A) states, in pertinent part:
A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all pf the relief prayed for, ■ or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
* * *
(4) Signs a judgment on either .the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
La. C.C.P. art. 1038 provides that
The court may order the separate trial of the- principal -and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.
When the principal, and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.
Cox cites Jackson v. Sumlin, 16-96, pp. 2-3 (La.App. 5 Cir. 7/7/16),
Further, La. C.C.P. art. 1915(A)(1) is .also applicable because, all of -Mr. White’s claims were dismissed by the trial court on the exception of -res judicata. “[I]f one party is completely dismissed from a
STANDARD OF REVIEW
“In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly. wrong standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04),
In order to reverse findings of the fact-finder, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.”
Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 4 (La.App. 4 Cir. 4/10/13),
“The manifest error standard of review also applies to ‘mixed questions of law and fact.’ ” Serou v. Touro Infirmary, 12-0089, p. 18. (La.App. 4 Cir. 1/9/13),
“Conversely, appellate courts review questions of law using the de. novo standard.” Haik, 12-0771, p. 5,
RES JUDICATA
“An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant, 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 nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. Res judicata can be raised as a peremptory exception. La. C.C.P. art. 927. “If the peremptory exception has been filed after the answer, but at or prior to the trial of the case, it shall be tried and disposed of either in advance of or on the trial of the case.” La. C.C.P. art. 929. “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931.
“The party urging á peremptory exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence.” SCS Enterprises, Inc. v. St. Pierre, 15-116, p. 6 (La.App. 5 Cir. 9/23/15),
It is undisputed that neither party introduced evidence or testimony at the hearing on the exception of res judicata. As such, this Court does not have a complete record to review the trial court’s judgment. Accordingly, we vacate the trial court’s judgment and remand the matter for an evidentiary hearing. See Coston v. Seo,
DECREE
For the above-mentioned reasons, we find that the parties failed to introduce evidence at the hearing on the exception of res judicata. Therefore, we vacate the trial court’s judgment and remand the matter for further proceedings consistent with this opinion.
VACATED AND REMANDED
Notes
. It is undisputed that Cox’s predecessor orlg-inally negotiated with Mr. White.