author: MAX N. TOBIAS, JR., Judge. t CANNIZZARO, J.,

text:
    TOWER PARTNERS, L.L.C. v. Mary Lee Wade, Wife of/and James RAO.
    No. 2003-CA-0665.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 21, 2004.
    See also 688 So.2d 709.

      Steven M. Spiegel, Steven M. Spiegel, APLC, New Orleans, LA, and Michael D. Clement, Law Office of Michael D. Clement, Belle Chase, LA, for Plaintiff/Appel-lee.
    Gary J. Giepert, Jack A. Ricci, Ricci & Giepert, New Orleans, LA, 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).
   MAX N. TOBIAS, JR., Judge.

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.

| ^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. Towers Partners, L.L.C., 96-1529 (La.App. 4 Cir. 2/12/97), 688 So.2d 709, holding that the Raos |sdid 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. 2272 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.

The Raos filed an exception of res judi-cata 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 |4Raos 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:

|fi(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 plaintiffs action.
(b) Furthermore, if the defendant has a cause of action arising out of the subject matter of the plaintiffs 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 sheriffs 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 | Ssuit 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.

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.

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 |flof 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 | mconfession 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.

For the foregoing reasons, we affirm the trial court’s judgment overruling the ex-eeption of res judicata and amend the judgment to correct the interest due.

AMENDED; AS AMENDED, AFFIRMED.

CANNIZZARO, J., dissents with reasons.

t CANNIZZARO, J.,

dissents with reasons.

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 exec-utory 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.

(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 plaintiffs 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.

Comments-1990, La. C.C.P. art. 1061 (emphasis added) (footnote added).

|3I 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 of res 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 |4Tower 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.

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 Bur-guieres case. Because the majority considered the wrong case to be the “first litigation” in the analysis under Burgui-eres, 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 |sLa. 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 executo-ry 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 re-conventional 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 reconven-tional 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 plaintiffs claim if the non-compulsory reconven-tional demand would unduly interfere with the progress of the plaintiffs 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 recon-ventional 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 |7require the re-conventional demand to be filed in the suit where the primary claim is being litigated. If the compulsory reeonventional demand is not filed in that suit, the reeonventional demand becomes res judicata. La. C.C.P. art. 1066 still allows the trial court, however, to prohibit the filing of a reeonventional 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 reeonventional 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 reeonventional 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 executo-ry 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.

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. 9/10/08), 857 So.2d 5, in which this Court held that the plaintiffs 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 the Spezio case, because I did not think that the case then before us was res judicata in light of the Burguieres case. Because, however, this Court found that the plaintiffs 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.

      . 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).

      . 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.

      . 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.

      . Although Tower briefed the issue to us, the Raos did not.

      . In a sense, the 10% interest rate is res judicata between the parties.

      . In the suit filed by the Raos, Tower was the defendant, and the judgment in that suit was in favor of Tower.

      . 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, La.C.C.P. art. 1061.

      . 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.

      . Rao v. Towers Partners, L.L.C., 96-1529 (La.App. 4 Cir. 2/12/97), 688 So.2d 709.


source: Caselaw Access Project

author: uJOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Nolan FRANZ v. John LEDOUX, The Republic Fire and Casualty Insurance Company, The French Riviera Spa, Inc., The ABC Insurance Company, and State Farm Insurance Company.
    No. 2003-C-2080.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.
    Jerry B. Jordan, Jordan Law Firm, New Orleans, LA, for Plaintiff/Relator.

      Kelly Cambre Bogart, Duplass, Zwain, Bourgeois & Morton, and David M. Cam-bre, Law Office of David M. Cambre, L.L.C., Metairie LA, for Defendant/Respondent, French Rivera Health Spa, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge PATRICIA RIVET MURRAY).
   uJOAN BERNARD ARMSTRONG, Chief Judge.

We grant the plaintiff-relator, Nolan Franz’s, supervisory writ application in order to review the judgment of the district court granting the exception of improper venue filed by the defendant-respondent, The French Riviera Spa, and transferring the case to the 24th Judicial District Court for the Parish of Jefferson. We affirm the judgment of the lower court, thereby denying the relief sought by the plaintiff-relator.

Plaintiff-relator (hereinafter simply “relator”) contends that on August 7, 1999, while exercising at the defendant-respondent (hereinafter simply “respondent”), French Riviera Spa, located in Jefferson Parish, he was injured after falling from an improperly modified piece of exercise equipment. On September 9, 1999, relator was involved in a motor vehicle accident with a vehicle driven by another defendant, John LeDoux, that occurred in Orleans Parish, also allegedly injuring relator.

Prior to these two accidents, relator had been diagnosed with two herniated discs. Relator alleges that as a result of these two separate and distinct accidents phe suffered one identifiable set of injuries to his spine that are indivisible for purposes of assigning cause to either of the two incidents.

Relator filed a cumulated action against both defendants and their insurers in Orleans Parish. The only portions of the record below annexed to the relator’s writ application are his original petition, his first supplemental and amending petition, the judgment (which includes the written reasons therefore), the notice of judgment, and the notice and order to apply for writs. Therefore, as the respondent’s opposition did not contest any of the procedural history as set forth by the relator, in the absence of a procedurally complete record we have relied on the relator’s exposition of the procedural history which follows: Early in the course of the litigation, respondent filed an exception of improper venue. The trial court deferred ruling on the issue, apparently on the basis of the need for additional discovery. Subsequently, the parties entered into mediation and relator settled with all defendants from the motor vehicle accident. Respondent then reurged its exception of venue; and following a hearing in July 2003, the trial court granted the exception and ordered the case transferred to the 24th Judicial District Court. Relator moved for a rehearing of the issue and filed a request for written reasons. Relator also filed a notice of appeal. On October 10, 2003, the court denied the | ..¡request for rehearing. The court issued a judgment with reasons on October 20, 2003. Relator filed a notice of intent to seek supervisory review.

Relator alleges that venue is proper in Orleans Parish as to the motor vehicle accident because the driver, John Le-Doux, was domiciled in Orleans Parish and the accident occurred in Orleans Parish. Respondent does not dispute this fact. However, the following facts are admitted by the relator in his petition for damages relevant to his alleged fall at the French Riviera Spa: (1) Relator is a resident and domiciliary of Jefferson Parish and (2) Relator’s alleged fall at the French Riviera Spa occurred in Jefferson Parish. The French Riviera Spa alleges that it is a Jefferson Parish corporation. Relator does not contend otherwise in its writ application. Relator alleges that venue is proper in Orleans Parish as to the French Riviera Spa on the basis of La. C.C.P. art. 73, arguing that French Riviera is solidarily or jointly liable with LeDoux for relator’s injuries. Specifically, relator’s First Supplemental and Amended Petition states:

As a result of the successive negligence of the defendants, plaintiff sustained injuries which arose as a result of the concerted effect of that successive negligence on plaintiffs already injured spine. As such, the defendants are jointly liable to plaintiff for their neglect which acted in concert, or by synergy, to cause specific spinal injuries which are at this point incapable of being divided and assigned to any specific negligent act.

|4In granting relator’s exception and ordering the case transferred to the 24th Judicial District, the trial court found as follows:

After carefully considering the law, evidence, testimony, and arguments of counsels on the Motion for Rehearing of Exception of Venue,This court finds that the injuries had to occur in the same accident in order for the defendants to be joint-tortfeasors. This is regardless of the fact that the injuries sustained may overlap. The court finds in this matter that there was one accident that created the injury, and another which aggravated a pre-existing condition. The court further finds that there exist two separate accidents, and therefore there should be two separate causes of action.

In Littleton v. Montelepre Extended Care Hosp., 94-1661 (La.App. 4 Cir. 6/7/95), 657 So.2d 572, the plaintiffs filed suit against two nursing homes in Orleans Parish. They alleged that the plaintiff patient contracted an ulcer due to inadequate care at the first nursing home, Mon-telepre Extended Care Hospital, which was located in Orleans Parish. Less than a month after being discharged, the plaintiff was admitted to the second nursing home, Ponchartrain Guest House in St. Tammany Parish, where it was alleged that the condition of the ulcer was aggravated due to negligence on the part of the facility’s personnel. The trial court sustained an exception of improper venue and improper joinder filed by Ponchartrain. The plaintiffs argued that Ponchartrain was solidarily liable with Montelepre because the ulcer was caused by Montelepre and worsened by Ponchartrain. In sustaining the trial court’s action in Littleton this Court explained that:

Solidarity is a legal relationship whose existence must depend upon facts required to support it. Because a plaintiff is injured by one tortfeasor and those injuries are aggravated by another tort-feasor in another place at another time, the tortfeasors are not solidarily liable even |fithough there is some relationship with respect to the injuries.

Id., 94-1661, p. 2, 657 So.2d at 573.

Next this Court went on to distinguish Weber v. Charity Hospital of Louisiana, 475 So.2d 1047 (La.1985) and Younger v. Marshall Industries, Inc., 618 So.2d 866 (La.1993), in language that is applicable to the disposition of the instant case:

The present case is distinguishable from Weber and Younger. In those eases the subsequent injuries were incurred during the course of each plaintiffs treatment for the injuries caused by the original tort feasor. In the present case each defendant’s contact with plaintiff arose out of that defendant’s undertaking to provide general nursing home care to the defendant. Montelepre was allegedly negligent in its care of plaintiff with the result that plaintiff contracted this ulcer. Plaintiff left Montelepre and almost a month later entered Goux’s nursing home. Goux did not undertake to provide plaintiff with specific treatment of any injuries caused by Monte-lepre; it was to provide general nursing care. Nor was the aggravation of plaintiffs ulcer the result of her weakened condition caused by Montelepre. It cannot be said that the duty of Montelepre to provide proper care to the plaintiff while she was in Montelepre’s nursing home included the risk that she might be injured as a result of the negligence of a second nursing home in whose care she would subsequently place herself. There is no ease of association between the injuries caused by Goux’s negligence and the duty on Montelepre to provide proper nursing care to plaintiff. [Emphasis added.]

Id., 94-1661, p. 4, 657 So.2d at 574.

Following Littleton we can say that there is no ease of association between the fall at the French Riviera Spa and the automobile accident occurring approximately one month later. Also following Littleton, we can say that the duty of care that the French Riviera Spa should have exercised in order to prevent Rrelator’s alleged fall did not include the risk of negligence by an automobile driver one month later.

Relator’s position, quite literally, is that because his doctor is unable to determine from which accident his injury stems, or the extent of the injuries from each incident, that the French Riviera Spa is, therefore, liable jointly with LeDoux for his injuries. The fact it may be difficult at trial for the fact finder to separate injuries attributable to the two alleged accidents does not create solidarity between the two alleged tortfeasors. The fact that the second tortfeasor may be liable for aggravating the pre-existing injuries caused by the first tortfeasor does not create solidarity between the two alleged tortfeasors. Even assuming that all of the facts are exactly as the relator contends them to be, as a matter of law no solidarity exists between the two alleged tortfeasors.

For the foregoing reasons, we affirm the judgment of the trial court.

WRIT GRANTED; RELIEF DENIED.

      . In this regard, relator writes:
      Dr. Dietze [realtor's treating physician] initially felt that the injuries caused by the French Riviera fall had not caused any significant aggravation to Nolan’s herniated disc lumbar discs at L4-5, L-5-S1. However, Dr. Dietze wrote on 11/30/1999, after seeing a new MRI that had been taken after both the fall and the MVA:
      This new study does show what I interpret as a high intensity zone of the right L4-5 disc herniation, implying a superimposed acute annular tear. Each incident in and of themselves could have possibly caused this tear. I can only state that the MRI scan shows a new finding that does seem to correlate with the increased back pain and right leg symptoms.

      . Among the items not included with the writ application as required by Uniform Rules— Courts of Appeal, Rule 4-5(h) is a copy of the respondent’s exception of prescription.

      . Relator states that after the court issued the judgment he attempted to find his previously filed Motion for Stay Pending Appeal and Notice of Intent but was unsuccessful. As a result, he states that he filed his notice of intent to seek supervisory review. Relator’s application makes no mention of the current status or disposition of his previously filed Notice of Appeal.

      . La. C.C.P. art. 73, relative to venue in actions against joint or solidary obligors, provides in pertinent part as follows:
      A. An action against joint or solidary obli-gors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant provided that an action for the recovery of damages for an offense or quasi-offense against joint or soli-dary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiff's domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203.

      . This court further distinguished the case on the basis that there was no ease of association between the two parties’ negligence as is the case where a plaintiff incurs subsequent injuries during the course of treatment for the injuries caused by the original tortfeasor.