Opinion
No. 2003-CA-0665.
January 21, 2004.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 98-32, DIVISION "H-12", HONORABLE MICHAEL G. BAGNERIS, JUDGE.
STEVEN M. SPIEGEL, STEVEN M. SPIEGEL, APLC, and MICHAEL D. CLEMENT, Law Office of Michael D. Clement, Counsel for Plaintiff/Appellee.
GARY J. GIEPERT, JACK A. RICCI, RICCI GIEPERT, Counsel for Defendants/Appellants.
Court Composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, Jr., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, Jr., and Judge Pro Tempore MOON LANDRIEU.
The defendants, Mary Lee Wade Rao and James Rao (collectively, "Raos"), appeal a deficiency judgment against them resulting from a foreclosure by executory process on a mortgage that was held by the plaintiff, Tower Partners, L.L.C. ("Tower"), as mortgagee. Tower answered the appeal asserting that the trial court improperly calculated the interest owed it. For the following reasons, we amend the judgment and, as amended, affirm.
The Raos purchased from Orleans Bank and Trust Company ("Orleans Bank") a piece of rental property consisting of six units located on Majestic Place, New Orleans, Louisiana (hereinafter, "the property"). The Raos executed a promissory hand note payable on demand to the order of Orleans Bank for the original principal amount of $60,600.00. To secure the payment of the promissory hand note, the Raos pledged to Orleans Bank a collateral mortgage note secured by a collateral mortgage on the property.
The collateral mortgage is a mortgage device used in Louisiana whereby property can be mortgaged to secure existing obligations, future obligations, and obligations created contemporaneously with the execution of the collateral mortgage. The collateral mortgage does not directly secure a debt. Instead, it secures a collateral mortgage note generally made payable on demand to the order of bearer. The collateral mortgage note can then be pledged to a creditor as security for a promissory note (or other obligation) actually owed to the creditor. For a discussion of the collateral mortgage device, see Max Nathan, Jr. and H. Gayle Marshall, The Collateral Mortgage, 33 La. L. Rev. 497 (1973).
Orleans Bank went into receivership, and the promissory note was negotiated to the receiver, the Federal Deposit Insurance Corporation ("FDIC"). Tower subsequently purchased the promissory note from the FDIC.
The Raos made regular monthly payments on the promissory note, first to Orleans Bank and then to the FDIC. After the promissory note was sold to Tower, Tower demanded full payment of the unpaid principal balance due on the promissory note and all unpaid interest. The Raos attempted to continue making monthly payments, but Tower refused to accept them. On 23 March 1993, Tower filed suit to foreclose on the property by executory process (hereinafter, "foreclosure suit"). Subsequently, Tower sought to be and was appointed keeper of the property; it took possession of the property for the purpose of managing it.
On 16 September 1993, the Raos filed a separate suit against Tower, its attorney, and one of its principals, seeking to enjoin the sale of the property (hereinafter, "injunction/damage suit"), alleging that the property had been wrongfully seized because the foreclosure suit contained a statement that was inaccurate regarding the date through which payments had been made on the promissory note. The Raos also alleged that they had suffered damages for Tower's failure to maintain the property while keeper, causing the value of the property to decline. In the trial of the damage claim, the court awarded damages to the Raos, but this court reversed the trial court judgment in Rao v. Tower Partners, L.L.C., 96-1529 (La.App. 4 Cir. 2/12/97), 688 So.2d 709, holding that the Raos did not suffer any damages as a result of the inaccurate statement in the original petition in the foreclosure suit.
During the pendency of the injunction/damage suit, Tower amended its petition in the foreclosure suit to correct the error regarding the payments that had been made. On 29 March 1995, the property was sold with the benefit of appraisal in a judicial sale under executory process. The appraised value of the property was $40,000.00; Tower bought the property at foreclosure for $28,000.00.
After the property was sold at foreclosure but while the injunction/damage suit was still pending in the trial court on the issue of damages, on 2 January 1998 Tower filed a new suit for a deficiency judgment against the Raos (hereinafter, "deficiency suit") pursuant to La.C.C.P. art. 2271 and La.R.S. 13:4106 alleging that the Raos still owed a balance after the distribution of the proceeds from the judicial sale of the property in the foreclosure. (The unpaid amount due on the promissory hand note at the time of the judicial sale was $51,185.32. The property was sold for $28,000.00 with appraisal.) In the deficiency suit, Tower alleged the Raos owe it a deficiency of $23,185.32 plus the contractual interest as provided in the promissory note, costs of collection, and attorney's fees.
We note that the purported verification attached to the original petition for executory process states that the Tower was seeking interest "[t]o be calculated" at the rate of 12% per annum from 9 September 1988, until paid, on the $51,185.32. The petition was amended on 13 September 1994 to change the interest rate to 10% per annum (the percentage stated in the promissory hand note) from 9 September 1992, until paid.
The Raos filed an exception of res judicata to the deficiency suit, arguing that Tower should have, but did not, raise its claim for a deficiency in the then-pending injunction/damage suit, which had not yet been tried when the cause of action for a deficiency arose. The trial court denied the exception of res judicata, and the deficiency suit proceeded to trial. A judgment was rendered against the Raos in the amount of $44,683.39 plus judicial interest from the date of judicial demand, until paid, and court costs.
In their appeal, the Raos assert that the trial court erred in failing to sustain the exception of res judicata because Tower did not bring its claim for a deficiency in the injunction/damage suit as a mandatory reconventional demand pursuant to La.C.C.P. art. 1061. Additionally, they claim that Tower is not entitled to a deficiency judgment because it allowed the value of the property to decline while it was acting as keeper.
La.C.C.P. art. 1061 provides:
A. The defendant in the principal action may assert in a reconventional demand any causes of action which he 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. The defendant in the principal action, except in an action for divorce under Civil Code Article 103 or 103, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.
La.R.S. 13:4231 provides in relevant pertinent part:
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:
* * *
(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.
In Terrebonne Fuel Lube, Inc. v. Placed Refining Co., 95-0654, 95-0671 (La. 1/16/96), 666 So.2d 624, the Louisiana Supreme Court discussed the scope of res judicata as follows:
Res judicata is an issue preclusion device found both in federal law and in state law. Prior to the amendments to Louisiana res judicata law effective in 1991, Louisiana law on res judicata was substantially narrower than federal law. The purpose of both federal and state law on res judicata is essentially the same; [sic] to promote judicial efficiency and final resolution of disputes by preventing needless relitigation.
95-0654, p. 11-12; 666 So.2d at 631.
In Terrebonne, the Supreme Court also stated: "the original Louisiana doctrine of res judicata was based on a presumption of correctness rather than an extinguishment of the cause of action. A decided case precluded a second suit only if it involved the same parties, the same cause and the same object of demand as the prior suit." 95-0654, p. 12; 666 So.2d at 632 (citation omitted). The Supreme Court further stated that under La.R.S. 13:4231, as amended effective 1 January 1991, the following would be the case:
[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.
The official comment to article 1061, which was also amended effective 1 January 1991, states in pertinent part:
(a) Judicial efficiency is served by requiring the defendant though compulsory reconventional demand to assert all causes of action he may have against the plaintiff that arise out of the transaction or occurrence that is the basis for the plaintiff's action.
(b) Furthermore, if 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.
In Burguieres v. Pollingue, 2002-1385 (La. 2/25/03), 843 So.2d 1049, the Supreme Court set forth five criteria that must be met for a matter to be considered res judicata. They are:
(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.
2002-1385, p. 8; 843 So.2d at 1053.
The judgments in the foreclosure suit and injunction/damage suit are valid and final insofar as the issues of foreclosure, injunction, and damages are concerned. The parties in the foreclosure suit and the deficiency suit are essentially the same, although the injunction/damage suit names additional parties defendant; those additional parties are identified directly as mandatary (attorney) and principal officer (agent) for Tower. Arguably, the cause of action for a deficiency arose out of the foreclosure suit. However, the cause of action for a deficiency did not arise or exist until it was known that a deficiency actually existed, i.e., on 29 March 1995 when the sheriff issued his return on the writ of seizure and sale which demonstrated that the sale proceeds of the property were insufficient to satisfy Tower's claim. See, Security Homestead Ass'n v. Fuselier, 591 So.2d 335, 341 (La. 1991). That is, if at the sheriff's sale the property had realized an amount greater than or equal to the debt of the Raos to Tower, no cause of action for a deficiency would exist.
La.C.C.P. art. 2772 states:
A creditor may obtain a deficiency judgment against the debtor either by converting the executory proceeding into an ordinary proceeding as provided in Article 2664, or by a separate suit. In either case, the defendant must be cited and all of the delays and formalities required in ordinary proceedings must be observed.
La.C.C.P. art. 1066 states:
An action which either matured or was acquired by the defendant in the principal action after answer may be presented, with the permission of the court, as a reconventional demand by supplemental pleading.
Article 2772, specific to a deficiency judgment cause of action, expressly permits the creditor (Tower), at the creditor's election, to either file its claim for a deficiency in the executory proceedings as an ordinary proceeding for the deficiency or as a new, separate suit.
Tower's answer to the injunction/damage suit was filed on 11 February 1994, at which point issue joined. The trial of the damage claim of the Raos occurred in November 1995. In view of article 1066, relative to reconventional demands, Tower could have filed its claim for a deficiency as a reconvention with the court's permission. But they were not required to do so by virtue of either article 1066 or article 2772, or both. Moreover, when applied to the case at bar, our view is that the second suit referred to in Burguieres, supra, is the deficiency suit and the first litigation is the foreclosure suit because article 2772 authorizes a creditor to file a new suit once the cause of action for a deficiency exists. The fourth test of Burguieres is thus not met and res judicata does not apply.
Another way of saying this is that because Tower's cause of action for a deficiency arose after the injunction/damage suit was filed, a reconventional demand was mandatory only for a cause of action that existed when the Raos filed suit, not for a subsequent arising cause of action.
We therefore conclude that the trial court did not err in denying the exception.
Additionally, the record before us does not demonstrate that Tower allowed the mortgaged property to decline in value while it was the keeper such as to preclude a deficiency judgment.
In its answer to the Raos appeal, Tower assigns as error the trial court's failure to apply the contractual interest rate specified in the promissory note to the deficiency of $23,185.32. In its judgment, the trial court cast the Raos in judgment for $44,683.39, being the total of the deficiency amount, costs, and attorney's fees, together with judicial interest on that amount from 2 January 1998, until paid, and court costs. According to Tower, the correct interest should be 36% on the first $1,400.00, 27% on the next $2,600.00, 24% on the next $3,000.00, and 21% on the balance.
Although Tower briefed the issue to us, the Raos did not.
The interest rate specified in the collateral mortgage and the collateral mortgage note was 12% per annum. The promissory hand note that Tower held specified interest at 10% per annum. The promissory hand note also states that:
In the event that payment or payments under this note are not made when due or upon any other event or default hereunder or under any agreement securing this note, Bank shall have the right to prospectively increase the rate of interest under this note to thirty-six (36%) per cent per year for that portion of the unpaid principal amount of the loan not exceeding one thousand four hundred dollars, twenty-seven (27%) per cent per year for that portion of the unpaid amount of the loan exceeding one thousand four hundred dollars and not exceeding four thousand dollars; twenty-four (24%) per cent per year for that portion of the unpaid principal amount of the loan exceeding four thousand dollars and not exceeding seven thousand dollars; and twenty-one (21%) per cent per year for that portion of the unpaid principal balance amount of the loan exceeding seven thousand dollars until this note is paid in full. . . .
In denying Tower's claim for contractual interest, the trial court stated:
As recognized by the 4th Circuit [in #96-1529] the technical deficiency in the pleadings did not cause anything to happen that would not have happened had the proper grounds been stated, and while that technical error would not prevent Tower from recovering the sum in question (the deficiency amount), they should not benefit from their error by obtaining [contractual] interest [as specified in the hand note]. The seizure that took place was made on a petition that failed to state the correct grounds, but was a legitimate exercise of Tower's right to proceed under executory process based on the note's demand feature. Similarly, the Raos had a right to challenge that technical error. Tower Partners L.L.C. should not be allowed to benefit from its error, albeit technical. Interest, consequently, should not accrue while the litigation was pending.
The trial court cited no statutory or jurisprudential authority for its conclusion that the contractual interest rate should not apply.
La.C.C. art. 2000 states that "[w]hen the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties. . . ." The rate agreed to by the parties in the case before us is that stated in the promissory hand note. However, Tower's foreclosure suit, as amended, sought only interest on the unpaid amounts at the rate of 10% per annum. Tower is bound by the rate of interest that it sought to collect in the foreclosure suit (being in the nature of a judicial confession on that issue); it cannot in the deficiency suit claim that a different higher rate of interest should be applied to the remaining debt owed. By analogy, see, Diamond B. Const. Co., Inc. v. Department of Transp. Development, 2002-0573, pp. 10-11 (La.App. 1 Cir. 2/14/03), 845 So.2d 429, 436. If it had sought the higher interest (the 21% to 36% per annum) in the foreclosure suit, then it might be entitled in the deficiency suit to recover the higher interest. The rate of interest due on the debt of the Raos is that specified in the amended foreclosure suit. That rate of interest is 10% per annum. It is not interest at the judicial rate. However, we understand and read the trial court's 2 July 2002 judgment as preventing Tower from collecting interest on interest or on attorney's fees. We amend the judgment accordingly.
In a sense, the 10% interest rate is res judicata between the parties.
For the foregoing reasons, we affirm the trial court's judgment overruling the exception of res judicata and amend the judgment to correct the interest due.
AMENDED; AS AMENDED, AFFIRMED.
In the instant case, three different lawsuits are involved. The first suit is the executory proceeding filed by Tower. The second suit, which was filed after the executory proceeding, is the suit filed by the Raos, in which they sought an injunction prohibiting Tower from selling their property at foreclosure and damages for the decline in the value of the property due to its alleged mismanagement by Tower in its role as keeper. The third suit is the instant suit, which is a suit for a deficiency judgment brought by Tower.
The cause of action in the instant suit arose when the proceeds of the sale of the property at foreclosure were distributed but were insufficient to fully satisfy the debt owed by the Raos to Tower. This cause of action arose at least six months prior to the trial in the second suit. The issue now on appeal, which is res nova, is whether the deficiency judgment is barred by the doctrine of res judicata on the ground that Tower should have asserted its claim for a deficiency in the suit that was already pending when the cause of action for a deficiency arose.
La.R.S. 13:4231 was amended effective January 1, 1991, to broaden the scope of res judicata in Louisiana. The amended statute provides in relevant part as follows:
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:
. . . .
(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.
In the suit filed by the Raos, Tower was the defendant, and the judgment in that suit was in favor of Tower.
(Emphasis added) (footnote added).
At the same time that La.R.S. 13:4231 was amended, La.C.C.P. art. 1061(B) was amended to provide as follows:
The defendant in the principal action . . . shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.
Prior to the amendment of La.R.S. 13:4231, La.C.C.P. art. 1061(B) was permissive, even when the reconventional demand arose from the same transaction or occurrence as the principal demand
The official comments to La.C.C.P. art. 1061(B) explain as follows the purpose of the amendment to that article:
(a) Judicial efficiency is served by requiring the defendant through a compulsory reconventional demand to assert all causes of action he may have against the plaintiff that arise out of the transaction or occurrence that is the basis for the plaintiff's action.
(b) Furthermore, if 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.
The phrase "except as otherwise provided by law" applies to matters not relevant in the instant suit, such as claims for spousal support and child support associated with divorce actions. See Comment-1991, L.C.C.P. art. 1061.
Comments-1990, La.C.C.P. 1061 (emphasis added) (footnote added).
I believe that La.C.C.P. art. 1061 and La.R.S. 13:4231 must be read and applied together. It is clear to me that this was the intention of the legislature when they amended La.C.C.P. art. 1061 at the same time that they amended La.R.S. 13:4213 to broaden the scope of the doctrine ofres judicata. Therefore, a cause of action arising out of the same subject matter as a pending suit must be asserted in the pending suit to avoid the risk of the cause of action being res judicata. If the cause of action is not asserted and the pending suit is finally decided in favor of the defendant, all causes of action that existed at the time of the final judgment that arose out of the transaction or occurrence that was the subject matter of the pending suit are barred.
When La.C.C.P. art. 1061(B) and La.R.S. 13:4231 are read together and applied in the instant case, I believe that it is clear that the instant suit is barred by the doctrine of res judicata. Tower's claim for a deficiency arose not only prior to final judgment in the suit by the Raos against Tower, it arose at least six months prior to the trial in that case, and the final judgment in that case was in favor of Tower, the defendant.
In Burguieres v. Pollingue, 2002-1385 (La. 2/25/03), 843 So.2d 1049, the Louisiana Supreme Court set forth five criteria that must be met for a matter to be considered res judicata. They are as follows:
(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.
2002-1385, p. 8; 843 So.2d at 1053.
When the instant case is analyzed using the five-prong test set forth in Burguieres, it becomes clear that the trial court should have granted the Raos' exception of res judicata. The judgment in the suit brought by the Raos against Tower is valid and final, and the parties in both suits are the same. Additionally, Tower's claim for a deficiency existed at the time the judgment in the suit brought by the Raos was final. Finally, the causes of action in both suits arose out of the same transaction or occurrence. Therefore, all five criteria in the Burguieres case are satisfied.
On May 30, 1997, the Louisiana Supreme Court denied the Raos' application for a writ of certiorari in the suit by the Raos against Tower.
I note that the majority argues that the foreclosure proceeding is the "first litigation" for the purpose of analyzing the facts in the instant case using the criteria established in the Burguieres case. This argument, which is based on the fact that the cause of action for the deficiency judgment arose after the Raos filed suit against Tower, makes what I think is an unfounded assumption. The majority opinion states in footnote 3 that "a reconventional demand was mandatory only for a cause of action that existed when the Raos filed suit, not for a subsequently arising cause of action." This statement completely ignores the fourth criterion that must be met under the Burguieres case, which is that "the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation." 2002-1385, p. 8, 843 So.2d at 1053 (emphasis added). The majority has incorrectly rewritten the fourth criterion in the Burguieres case. Because the majority considered the wrong case to be the "first litigation" in the analysis under Burguieres, their analysis is faulty, the result is incorrect, and the criteria for res judicata that have been established by the Supreme Court are not properly met.
The majority relies on two provisions of the Louisiana Code of Civil Procedure to support the position that the Raos' exception of res judicata was properly denied by the trial court. These provisions are La.C.C.P. art. 2772, which prescribes the procedure a creditor may use to obtain a deficiency judgment, and La.C.C.P. art. 1066, which addresses the procedure for asserting a reconventional demand after an answer has been filed.
The majority states that La.C.C.P. art. 2772 permits a claim for a deficiency to be brought either "in the executory proceeding as an ordinary proceeding for the deficiency or as a new, separate suit." (Emphasis added). Article 2772 provides that "[a] creditor may obtain a deficiency judgment . . . either by converting the executory proceeding into an ordinary proceeding . . . or by separate suit." The word "new" does not qualify the type of "separate suit." Therefore, where a suit involving the same transaction or occurrence as the claim for a deficiency is already pending, article 2772 permits the claim for the deficiency to be brought either by converting the executory foreclosure proceeding into an ordinary proceeding or by filing a reconventional demand in the pending case. To allow the institution of a new, separate case when the reconventional demand is a compulsory one under La.C.C.P. art. 1061(B) does not promote the judicial economy and efficiency that the legislature sought to promote by amending La.R.S. 13:4231 to broaden the scope of the res judicata doctrine.
La.C.C.P. art. 1066, upon which the majority also relies to support the position that the instant suit is not res judicata, provides that "[a]n action that has either matured or was acquired by the defendant in the principal action after answer may be presented, with the permission of the court, as a reconventional demand by supplemental pleading." The majority uses the discretion granted to the trial court in this article to support its position that La.C.C.P art. 1061(B) does not govern the instant situation. Article 1061(B), which provides for a compulsory reconventional demand if the reconventional demand arises out of the same transaction or occurrence as the principal demand, was specifically amended, however, to accommodate the broadened scope of the revised res judicata statute, La.R.S. 13:4231. Therefore, I believe that Tower's claim for a deficiency was a compulsory reconventional demand that should have been brought in the suit by the Raos against Tower.
Because La.C.C.P. art. 1066 does not apply solely to compulsory reconventional demands, it is necessary for the trial court to have the discretion to determine which non-compulsory counterclaims can be made after the answer is filed without interfering with the progress of the main action. This article gives the trial court the leeway needed to prohibit the defendant from filing a reconventional demand that may be totally unrelated to the plaintiff's claim if the non-compulsory reconventional demand would unduly interfere with the progress of the plaintiff's original claim or with the trial court's schedule. La.C.C.P. art. 1066, like the La.C.C.P. art. 1061(B), is designed to promote judicial efficiency. Because many reconventional demands are not compulsory under La.C.C.P. art. 1061(B), La.C.C.P. art. 1066 gives the trial court the discretion necessary to promote judicial efficiency by controlling the scheduling of the cases on the court's docket.
It is certainly reasonable to read La.C.C.P. art. 1061(B) to require that a reconventional demand arising out of the same transaction or occurrence as the principal demand be asserted in the pending principal demand, even after the answer has been filed. The Supreme Court in the Burguieres case has made it clear that a compulsory reconventional demand can be filed up until the time there is a final judgment in a case where the principal demand and the reconventional demand arise out of the same transaction or occurrence. In Burguieres one of the criteria for determining whether an action is res judicata is whether "the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation. . . ." 2002-1385, p. 8; 843 So.2d at 1053.
When a compulsory reconventional demand exists prior to the final judgment in a case where the primary claim arises out of the same transaction or occurrence as the reconventional demand, La.C.C.P. art. 1061(B) and Burguieres require the reconventional demand to be filed in the suit where the primary claim is being litigated. If the compulsory reconventional demand is not filed in that suit, the reconventional demand becomes res judicata. La.C.C.P. art. 1066 still allows the trial court, however, to prohibit the filing of a reconventional demand arising out of a completely unrelated transaction or occurrence after the answer is filed in the main demand
A defendant should not be able to completely ignore the mandatory provisions of La.C.C.P. art. 1061(B), which is a later expression of the legislature than is La.C.C.P. art. 1066, just because an answer has already been filed. In the instant case, Tower did not even attempt to file its reconventional demand in the pending suit, and the majority opinion clearly sanctions that course of action.
I also respectfully dissent from the majority opinion, because I think it fails to consider certain policies that should be promoted. These policies include promoting judicial economy, discouraging forum shopping, and avoiding inconsistency in this Court's opinions.
Clearly, the purpose of the Louisiana legislature in broadening the scope of the res judicata doctrine was to promote judicial economy. By permitting the filing of a separate suit approximately five years after the claim for a deficiency arose to litigate the issue of the deficiency when there was an action already pending involving the same transaction when the claim arose, does not promote judicial economy. The claim for a deficiency arose well before the suit by the Raos against Tower was in such a posture that the filing of the reconventional demand for a deficiency would impede the progress of that suit, and it certainly arose prior to the final judgment in that suit, one of the Burguieres criteria for res judicata to apply. It would have been far more efficient for the claim for a deficiency to have been litigated either by converting the executory proceeding into an ordinary proceeding or by filing the claim for a deficiency in the suit by the Raos against Tower.
The majority opinion also promotes, rather than discourages, forum shopping. In the suit by the Raos against Tower, even though this Court reversed the trial court on appeal, the trial court found Tower liable for damages. It is quite possible that the trial court in that suit was perceived by Tower to be less receptive to Tower's claims than another trial court might be. By sanctioning the filing of yet another suit involving the mortgage transaction, the majority's opinion clearly does not discourage, and may well encourage, forum shopping.
Rao v. Tower Partners, L.L.C., 96-1529 (La.App. 4 Cir. 2/12/97), 688 So.2d 709.
This Court should also be consistent in its application of the law. Maintaining consistency in the opinions rendered by this Court is a policy that this Court should foster. Recently this Court rendered an opinion in Spezio v. Spezio, 2001-1789 (La.App. 4 Cir. 9/10/03), 857 So.2d 5, in which this Court held that the plaintiff's claim for damages for the breach of a trustee's fiduciary duty was barred by the doctrine of res judicata, because the plaintiff did not contest in a prior succession proceeding the homologation of a judgment of possession that included real property that was allegedly transferred from a trust to the decedent in violation of the trust provisions. I dissented in theSpezio case, because I did not think that the case then before us wasres judicata in light of the Burguieres case. Because, however, this Court found that the plaintiff's case in Spezio was res judicata, this Court should find that the instant case is res judicata. The instant case is a much stronger case for the application of the doctrine of res judicata, and in the interest of judicial consistency, this Court should hold that the instant case is barred by that doctrine, also.
For the forgoing reasons, I respectfully dissent from the majority opinion. I believe that Tower's claim for a deficiency is barred by the doctrine of res judicata and that the instant case should be dismissed with prejudice.