author: DREW, J.

text:
    Claude B. MINOR, Jr., M.D., Plaintiff-Respondent v. MONROE SURGICAL HOSPITAL, LLC, Defendant-Applicant.
    No. 49,367-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Crawford & Ogg, by Brian Evan Crawford, Monroe, Ramsey Lee Ogg, for Applicant.
    Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., by Errol J. King, Jr., Layna S. Cook, Robert L. Blankenship, Baton Rouge, for Respondent.
    Before STEWART, DREW and PITMAN, JJ.
   DREW, J.

|, Monroe Surgical Hospital (“MSH”) applied for a supervisory writ with this court after its exception of prescription was denied. The writ was granted and the matter was docketed as an appeal.

Finding that the three-year prescriptive period in La. C.C. art. 3494 applies in this matter, we reverse the judgment denying MSH’s exception of prescription.

FACTS

Dr. Claude Minor, a general surgeon, was an investor and founding manager of MSH when it began operations in June of 2002. Dr. Minor began serving as the medical director of MSH at that time, partly because it was felt that with his significant investment, he would work hard to advance MSH. A professional services agreement (“agreement”) set forth the obligations of each party in their respective capacities. As medical director, Dr. Minor was to be paid a fee of $150 per hour for administrative services, up to a maximum of $60,000 per year. The agreement required Dr. Minor to document fully all services provided in his capacity as medical director on a monthly basis before he was to receive payment for his services. The agreement stated that it did not establish an employer-employee, principal-agent or partnership relationship.

According to Dr. Minor, the agreement was amended verbally to provide that he would receive $5,000 each month without having to give an account of the services he provided each month. Dr.- Minor claimed the change was made because he was working more hours per month than the $5,000 would cover, and MSH was having financial problems at the time. 12Pr. Minor stated that the amount of time required for him to perform his duties as medical director far exceeded what was originally envisioned in the agreement. Dr. Minor believed that he would not have worked so many hours as medical director for that level pay had he not been an investor for MSH.

In a letter dated October 14, 2008, Dr. Minor was informed by MSH’s CEO that he was being given 30 days’ notice of termination because MSH was discontinuing the position of medical director.

On November 26, 2012, Dr. Minor wrote a letter to MSH’s CEO in which he explained that for many years he had foregone the collection of the full extent of his fees as medical director because of MSH’s financial condition. Dr. Minor demanded that he receive payment for $195,000 in back-due fees. The CEO responded that MSH found no basis for his claim.

Minor filed suit against MSH on July 29, 2013. He averred that he agreed to forgo payment for services because of ■ MSH’s financial condition, and that MSH acknowledged its obligation to compensate him. He stated that he received checks in the amounts of $15,000 and $25,000 shortly before he stepped down in 2008 in payment for past compensation that he was owed. Dr: Minor claimed that he was entitled to $210,000 for the compensation that remained unpaid.

Filing the peremptory exception of prescription, MSH asserted that the three-year prescriptive period found in La. C.C. art. 3494 applied to Dr. Minor’s claims, which were prescribed on the face of his petition. Dr. [¡¡Minor countered that the 10-year prescriptive period in La. C.C. art. 3499 applied.

The exception of prescription was denied by the trial court, which remarked at the hearing on the exception that the relationship between Dr. Minor and MSH was more akin to a joint venture, although Dr. Minor’s compensation did not depend on MSH’s profitability. MSH applied for a supervisory writ with this court, which granted the writ and docketed the case on the appellate calendar.

DISCUSSION

The general period of prescription for a personal action is found in La. C.C. art. 3499, which states that unless otherwise provided by law, a personal action is subject to a liberative prescription of 10 years.

La. C.C. art. 3494, which serves as an exception to art. 3499, provides that a liberative prescription of three years applies to “[a]n action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board.”

The-three-year prescriptive period commences to run from the day payment is exigible, and it accrues as to past due payments even if there is a continuation of labor, supplies, or other services. La. C.C. art. 3495.

As a general rule, prescription statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished. Quinn v. Louisiana Citizens Property Ins. Corp., 2012-0152 (La.11/2/12), 118 So.3d 1011.

The distinction between arts. 3494 and 3499 was discussed at length by the supreme court in Grabert v. Iberia Parish School Bd., 1993-2715 (La.7/5/94), 638 So.2d 645, where the plaintiffs filed suit alleging that the defendant school board breached their employment contracts by paying them less than they should have received under a salary index. The school board contended that the action was prescribed under La. C.C. art. 3494. The supreme court agreed with the school board, stating:

Plaintiffs, and the court of appeal, would have us believe that article 3494’s three year prescriptive period for past wages is not applicable here because their action for breach of contract is distinguishable from a claim for past due wages.
The answer appears to be simple enough. A petition claiming breach of contract by the payment of wages less than what is due and seeking judgment for the underpaid wages is clearly a cause of action asserting the right to recover unpaid wages. Breach of contract is not a free standing cause of action. It is a legal premise, or principle, which gives rise to the right to claim some substantive remedy at law. Here that remedy is the recovery of past due wages.
The actions are plainly for salary or wages past due under the allegedly appropriate salary index. The three-year prescription provided for in article 3494 is directly and explicitly applicable. The nature of the claim (for underpaid wages) is not something different because it arises out of breach of contract. The contract breached made provisions for the very wages sought.
This petition to recover underpaid “compensation for services rendered” is admittedly a personal action as defined by Louisiana Civil Code of Procedure article 422. However, the ten year prescriptive period set forth in article 3499, is only applicable to personal actions “unless otherwise provided for by legislation.” La. Civ. Code art. 3499 (West 1994). The prescriptive period for the instant consolidated suits for the recovery of underpaid wages is otherwise provided for in | Barticle 3494, for that article, as earlier indicated, provides a three year prescriptive period for personal actions seeking “compensation for services rendered.”
Starns v. Emmons, 538 So.2d 275 (La. 1989), is a case which, by analogy, supports our decision in this case. In that case there was a demand for rent ar-rearages in a petition alleging a breach of contract. Plaintiffs argued that “the inclusion of a demand for rent arrearage in a petition alleging breach of contract does not give the suit the character of an action to recover rent” and further, “because the entire action sounds in contract, the ten-year period of article 3499, not the three year prescription of article 3494, should apply.” Id. at 277-78. This Court dismissed plaintiffs argument reasoning that all actions covered by article 3494 are grounded in contractual relationships. Id. “Article 3494 does not present a choice between a contract remedy and some other remedy; it merely provides exceptions to the general rule stated in article 3499 that a personal action prescribes in ten years.”
In the instant case, the Plaintiffs’ consolidated suits are simply actions to recover past due salaries in accordance with the appropriate salary index. Although Plaintiffs urge that their claims deal exclusively with interpreting their rights under their respective employment contracts this argument is unpersuasive as virtually all claims for wages arise out of breach of a contract, oral or written, to pay wages for services rendered. Accordingly, the employer’s failure to pay the full and proper compensation for services provided gives rise to an action for breach of contract for which the remedy is recovery of wages.

638 So.2d at 646-7 (footnotes omitted).

Dr. Minor argues that while a general claim for the recovery of compensation of services would often be governed by art. 3494, the agreement with MSH encompasses much more than a claim for salary, wages, commissions, and professional fees. He further argues that the agreement contains multiple provisions which have nothing to do with compensation for services, but which relate to personal obligations between Dr. Minor and MSH.

16Pr. Minor’s argument is misplaced. His lawsuit was filed to recover compensation for services he provided as medical director. He did not sue to enforce any other obligation of MSH under the agreement, such as the one requiring MSH to provide office space and support staff if necessary.

Dr. Minor further contends that the nature of his responsibilities is difficult to determine from the agreement, and that the agreement encompasses more than compensation for services. The agreement, however, stated that it did not establish an employer-employee, principal-agent or partnership relationship. The trial court believed it was akin to a joint-venture, although Dr. Minor’s pay was not dependent or linked to any profit made by MSH. Dr. Minor offers that the agreement established a hybrid relationship that cannot be governed by art. 3494.

Dr. Minor’s argument is not persuasive. We note that because the essential elements of a joint venture and a partnership are the same, joint ventures are generally governed by partnership law. See Dhaliwal v. Dhaliwal, 48,034 (La. App.2d Cir.9/11/13), 124 So.3d 470, writ denied, 2013-2931 (La.2/21/14), 134 So.3d 1165. The agreement states that it did not establish a partnership. Furthermore, regardless of the denomination given to the relationship between MSH and Dr. Minor as medical director, the agreement obligated MSH to pay a fee to Dr. Minor in return for services he provided to MSH in his capacity as medical director. MSH allegedly failed to fulfill its obligation by paying only part of the compensation to which Dr. Minor was entitled. Dr. Minor sued to enforce that obligation and to recover the unpaid compensation.

17When determining the applicable prescriptive period, courts are guided by the well-settled principle that “[t]he character of an action disclosed in the pleadings determines the prescriptive period applicable to that action.” Parry v. Administrators of Tulane Educ. Fund, 2002-0382 (La.App. 4th Cir.9/4/02), 828 So.2d 30, writ denied, 2002-2478 (La.12/19/02), 833 So.2d 346, citing Starns v. Emmons, 538 So.2d 275, 277 (La.1989). Accordingly, Dr. Minor’s claim to recover unpaid compensation is subject to the three-year prescriptive period found in La. C.C. art. 3494.

The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spoil v. Otis Elevator Co., 601 So.2d 1355 (La.1992). However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id.

Prescription was evident on the face of Dr. Minor’s petition. He served as medical director until 2008, and suit was not filed until nearly five years later on July 29, 2013. Dr. Minor did not meet his burden of showing that his claim had not prescribed. Accordingly, the trial court erred in denying the exception of prescription.

DECREE

At Dr. Minor’s cost, the judgment is REVERSED, the exception of prescription is GRANTED, and the case is DISMISSED.

      . When evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So.2d 1261. The trial court heard testimony from Dr. Minor and accepted the agreement into evidence at the hearing on the exception. Nonetheless, at issue was the legal error made by the trial court when determining the applicable prescriptive period.


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mervin TREPAGNIER.
    No. 2014-KA-0808.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Mary C. Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| T This is a criminal case. The State of Louisiana seeks a review of the district court’s ruling granting Mervin Trepagnier’s motion to quash the amended bill of information charging him with unauthorized use of a movable valued at $500.00 or more. Because we find the trial court erred in granting Mr. Trepagnier’s motion to quash, we reverse and remand the case for further proceedings.

STATEMENT OF THE CASE

In March 2014, Mr. Trepagnier was charged by bill of information with one count of theft in an amount of five hundred dollars or more, a violation of La. R.S. 14:67 B(l). In April 2014, Mr. Trepagnier was arraigned and pled not guilty. In May 2014, the bill of information was amended to charge Mr. Trepagnier with one count of unauthorized use of a moveable in an amount of over five hundred dollars, a violation of La. R.S. 14:68 B. In June 2014, a preliminary hearing was held; and the district court found no probable cause. Also, in June 2014, Mr. Trepagnier filed a motion to quash based on La. C.Cr.P. art. 535(1), alleging that | ¡.the State failed to charge an offense punishable under a valid statute. In July 2014, following a hearing, the trial court granted Mr. Trepagnier’s motion to quash. This appeal followed.

STATEMENT OF THE FACTS

The record before us is limited to certain pre-trial documents and the transcripts from the preliminary hearing and the hearing on the motion to quash. In the arrest warrant, New Orleans Police Officer (“NOPD”) Sabrina James attested to the following:

On October 2, 2013, the Regional Loss Prevention Specialist for Tire Kingdom, Store # 174 was dispatched to the location to investigate a loss in inventory. The Regional Loss Specialist learned that the store manager conducted a complete inventory on tires on June 10, 2013 and September 18, 2013 and discovered a large discrepanc[y] in the inventory. The inventory revealed 113 tires (various brands) totaling $15,428.05 missing from the store. The Regional Loss Prevention Specialist conducted an internal investigation. During the investigation, one of the store employees, Mervin Trepagnier admitted to stealing 17 new tires from the location to sell and get money to fix his car. Trepagnier submitted a hand written statement to the Regional Loss Prevention Specialist admitting he stole the tires. The original statement was forwarded to the investigating detective to [be] placed as evidence at central evidence and property-

At the preliminary hearing, Officer James testified that the Regional Loss Prevention Specialist for Tire Kingdom, Dell Garner Jones, advised her that Mr. Trepagnier submitted a handwritten statement admitting to the theft, that Mr. | ^Trepagnier offered to pay for the tires, but Tire Kingdon determined, at that time, that it wanted to go ahead and proceed with the charges instead of getting restitution. Officer James further testified that on the day of the preliminary hearing she was advised that Mr. Trepagnier had paid Tire Kingdom some money, but she was unaware of the circumstances surrounding that payment.

At the preliminary hearing, defense counsel suggested that “when that statement [by Mr. Trepagnier] was made that Dell Garner Jones , on behalf of Tire Kingdom agreed that they would not prosecute in exchange for that statement.” At the end of the preliminary hearing, the district court commented that given Tire Kingdom had been paid the entire amount due for the tires, approximately $1,300.00, “this should not even be in this arena.” The trial court thus expressed its belief that this was a civil matter.

Following the preliminary hearing, Mr. Trepagnier filed a motion to quash. In his motion, he contended that restitution was agreed upon by, and paid in full to, Tire Kingdom. He states that on April 4, 2014, an agreement was perfected as to the amount of restitution owed, which was $1,321. He contended that this was the amount in dispute listed in the bill of information, and that “[a] manager of Tire Kingdom in New Orleans agreed that ‘restitution has been paid in full’ regarding the merchandise that is the subject of the present prosecution.” He thus contended that there was no basis for criminal charges since the civil obligation had been met.

[4At the hearing on the motion to quash, defense counsel argued that the parties all agreed for Mr. Trepagnier to pay restitution before the State filed charges against him. Defense counsel argued that “once the agreement becomes effective, it becomes a civil matter ... [I]t doesn’t remove jurisdiction completely, but it does make it a civil money matter, and of course this Court can enforce it.” Agreeing with defense counsel, the district court noted that “[a]ny money judgment from here for a case that originated in the Criminal Court is an enforceable judgment.” The district court then questioned whether Mr. Trepagnier had paid in full. Defense counsel replied in the affirmative and stated that “the witness signed his name next to that statement that the restitution had been paid in full.” Granting the motion to quash, the district court reasoned that “when they — the parties get together and start exchanging money, it becomes a civil matter.” Continuing, the district court stated:

I am quashing this case because the substance of the entire thing was a theft, and then it has been changed to an unauthorized use, | ¿but actually the parties in agreement was the victim and the defendant, and the defendant paid the party full restitution and so it should not now be a case.

DISCUSSION

The State’s sole assignment of error is that the district court abused its discretion in granting Mr. Trepagnier’s motion to quash. As noted, Mr. Trepagnier’s motion to quash was based on La. C.Cr.P. art. 535 A(l), which provides: “[t]he offense charged is not punishable under a valid statute.” The jurisprudence construing this provision has framed the standard of review as follows:

“[A] motion to quash an indictment is treated much like an exception of no cause of action in a civil suit; the court must accept as true the facts contained in the bill of information and the bills of particulars and decide whether or not a crime has been charged.” State v. Lagarde, 95-1497, p. 2 (La.App. 4 Cir. 4/3/96), 672 So.2d 1102, 1103. Additionally, the Louisiana Supreme Court in State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, 411, noted the question becomes “whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash may be based on the ground that the indictment fails to charge an offense which is punishable under a valid statute.” This Court noted in State v. Franklin, 13-0488, p. 6 (La.App. 4 Cir. 10/9/13), 126 So.3d 663, 668, that the trial court’s ruling on a motion to quash is solely a question of law. Thus, on appellate review the trial court’s ruling is subject to de novo review. Id. “Under this standard of review, we do not defer to any factual findings by the trial judge. This lack of deference is strongly rooted in the fact that any factual determinations by a trial judge during that time regarding the merits of any defense would be unauthorized.” Id. (citations omitted).

State v. Olivia, 13-0496, pp. 2-3 (La.App. 4 Cir. 3/26/14), 137 So.3d 752, 754.

| (¡Explaining the scope of a motion to quash, the Louisiana Supreme Court in State v. Advanced, Recycling, Inc., 2002-1889, pp. 9-10 (La.4/14/04), 870 So.2d 984, 989, stated:

As a general rule, a motion to quash “is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge.” State v. Perez, 464 So .2d 737, 789 (La.1985). The matter of “factual guilt or innocence of the offense charged is [therefore] not raised by the motion to quash.” Id., 464 So.2d at 740 (citations omitted). An exception exists for cases in which the state cannot establish an essential element of the offense under any set of facts conceivably provable at trial. See State v. Legendre, 362 So.2d 570, 571 (La.1978) (quashing of bill of information for aggravated battery proper when state alleged that the dangerous weapon used was a concrete parking lot).

In this case, the amended bill of information charged Mr. Trepagnier with a -violation of La. R.S. 14:68, which provides: “[u]nauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently.” La. R.S. 14:68 A. “A person commits the crime of unauthorized use of a movable when he either takes or uses another’s property without the owner’s consent or by means of fraudulent practices.” State v. Williamson, 10-466, p. 12 (La.App. 5 Cir. 12/13/11), 81 So.3d 156, 164.

|7The State contends that the district court erroneously found that a private restitution agreement between the victim and the defendant transformed the charged criminal matter into a civil matter. In support, the States cites La.C.Cr. P. art. 61, La.C.Cr.P. art. 381, and La. R.S. 14:4 as providing it with the inherent authority to file a bill of information and to prosecute a case regardless of whether a previous private restitution agreement has been entered into between the defendant and the victim.

Mr. Trepagnier counters that the district court correctly granted his motion to quash the bill of information because the private restitution agreement between him and the victim, allowing him to pay in full for the tires he had taken, resulted in the State being unable to prove an essential element of unauthorized use of a movable — that he took something belonging to another without the other’s consent. According to Mr. Trepagnier, the State is presented with the anomalous situation of prosecuting him for taking movables that he had agreed to purchase ^before any charges were filed and which he has paid for. He contends that this case involves a unique situation because Tire Kingdom, which is in the business of selling tires, agreed to this albeit unusual “business arrangement.” He contends that this unique situation is distinguishable from a defendant taking money from the cash register and then agreeing to repay it. Given the unique circumstances, he contends the private agreement between him and Tire Kingdom transformed what “might have been a criminal matter into a civil matter.” He thus contends that the trial court correctly granted the motion to quash on the ground that “the court relied on undisputed facts to reach the conclusion that the State cannot prove an essential element of the offense.”

Mr. Trepagnier’s position is that the district court correctly granted the motion to quash because the narrow exception recognized by the Louisiana Supreme Court in Legendre for cases in which the state cannot establish an essential element of the offense under any set of facts conceivably provable at trial applies here. We find this argument erroneous unpersuasive for three reasons.

First, it is well-settled that a factual defense is not a sufficient ground to quash a bill of information. Mr. Trepagnier’s argument is that the private restitution agreement precludes the State’s ability to establish an essential element |9of the offense — that he took something belonging to another without the other’s consent. Whether Mr. Trepagnier took something— tires from Tire Kingdom — is a factual defense that is inappropriate for resolution on a motion to quash.

Second, a private restitution agreement does not preclude criminal prosecution. As a commentator has noted:

Since, by definition, a crime is a public wrong, i.e., a wrong against all the people of the State, it is ordinarily no defense that the individual injured by the crime condoned the offense. The condo-nation or settlement might bar the victim from recovering damages in a civil action against the defendant, but it would not prevent the State from prosecuting the defendant for the crime.

Charles E. Torcía, 1 WHARTON’S CRIMINAL LAW § 45 (15th ed.). Similarly, the nature of a criminal proceeding is codified in La.C.Cr.P. art. 381, which provides that “[a] criminal prosecution is brought in the name of the state ... for the purpose of bringing to punishment one who has violated a criminal law” and that “[t]he person injured by the commission of an offense is not a party to the criminal prosecution, and his rights are not affected thereby.”

In this casé, contrary to Mr. Trepagnier’s statement of the facts, Officer James testified that the Loss Prevention Specialist indicated to her that Tire Kingdom, at least initially, was unwilling to accept restitution and wanted to press charges. Before charges were filed, Tire Kingdom and Mr. Trepagnier entered into the private restitution agreement. Nonetheless, the private restitution agreement could not preclude the State from pursuing criminal charges. We thus find Mr. Trepagnier’s reliance on the private restitution agreement as a basis for quashing the bill of information misplaced.

|10Finally, the gist of the district court’s reasons for granting the motion to quash was its finding that the exchange of money between Tire Kingdom and Mr. Trepagnier, as a result of the private restitution agreement, transformed this matter into a civil case. This court has held that the fact a dispute can viewed as “civil” in nature is not a valid reason to grant a motion to quash. Such is the case here. To the extent the district court relied on its classification of this case as a “civil matter” as a ground for granting the motion to quash it erred. Accordingly, we find the district court erred in granting Mr. Trepagnier’s motion to quash.

DECREE

For the foregoing reasons, the district court’s ruling granting the defendant’s motion to quash is reversed; and this matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

      . In his motion, Mr. Trepagnier also cited La.C.Cr.P. art. 895.1(2)(a), which provides that in a criminal case, when the defendant had "stipulated to the amount of restitution, cost, or fine ordered,” that "[t]he order to pay restitution together with any order to pay costs or fines, as provided in this Article, is deemed a civil money judgment in favor of the person to whom restitution, costs or fines is owed.” The State contends that Mr. Tre-pagnier's reliance on La.C.Cr.P. art. 895.1(2)(a) in support of its motion to quash was misplaced. The State points out that Article 895.1(2)(a) is applicable only in the post-conviction sentencing context. Mr. Tre-pagnier does not dispute this point on appeal.

      . In his motion to quash, Mr. Trepagnier provided the following chronology of events:
      • On October 2, 2013, Mr. Trepagnier and Del Gardner Jones, the State’s complaining witness, entered into a written agreement that Mr. Trepagnier would agree to pay back the full amount of money owed regarding the tires allegedly stolen in this case. This agreement was made and signed in the presence of NOPD Officer Charles Augustus, who properly declined to arrest or charge Mr. Trepagnier with a crime.
      • On October 23, 2013, a different NOPD Detective [Officer James] obtained an arrest warrant for Mr. Trepagnier using the signed agreement made on October 2, 2013.
      • On March 8, 2014, Mr. Trepagnier was arrested for theft regarding tires misappropriated from Tire Kingdom on Washington Avenue in New Orleans.
      • On March 31, 2014, the State filed a bill of information in Case 519-712 charging Mr. Trepagnier with one count of theft between $500-$ 1,500, which was later amended to one count of Unauthorized Use of a [Moveable],
      • On April 4, 2014, the October 2, 2013 agreement was perfected as to the amount of restitution owed in the amount of $1,321. A manager of Tire Kingdom agreed that “restitution has been paid in full” regarding the merchandise that is the subject of the present prosecution.
      • On April 15, 2014, Mr. Trepagnier voluntarily appeared for arraignment.

      . The standard of review that we apply in reviewing a district court’s ruling on a motion to quash varies based on the types of issues presented. When solely legal issues are presented — such as in the present case involving a motion to quash under La.C.Cr.P. art. 535 A(1) for failure to charge an offense punishable under a valid statute—we apply a de novo standard of review. State v. Olivia, 13-0496, pp. 2-3 (La.App. 4 Cir. 3/26/14), 137 So.3d 752, 754; State v. Schmolke, 12-0406, p. 4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 299;
        see also State v. Hamdan, 12-1986, p. 6 (La.3/19/13), 112 So.3d 812, 816 (noting that "[o]n appeal from the trial court’s ruling on a motion to quash, the trial court’s legal findings are subject to a de novo standard of review”). In contrast, when mixed issues of fact and law are presented — such as speedy trial violations and nolle prosequi dismissal-reinstitution cases—we apply an abuse of discretion standard. State v. Hall, 13-0453, pp. 11-12 (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39 (citing State v. Tran, 12-1219, p. 2 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3) (explaining that "[i]n reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion”); State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 ("[bjecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion”).

      . La.C.Cr.P. art. 61 provides:
      Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

      . La. C. Cr.Pi art. 381 provides:
      A criminal prosecution is brought in the name of the State in a court of criminal jurisdiction, for the purpose of bringing to punishment one who has violated a criminal law.
      The person injured by the commission of an offense is not a party to the criminal prosecution, and his rights are not affected thereby.

      . La. R.S. 14:4 provides:
      Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender’s conduct is:

        (1) Criminal according to a general article of this Code or Section of this Chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes; or
      (2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute, or some constitutional provision.

      . See State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401; State v. Masino, 214 La. 744, 749, 38 So.2d 622, 623 (1949) (holding that "[t]he fact that the defendants may have a good defense is not sufficient grounds to quash the indictment"); State v. Marcelin, 13-0893, p. 8 (La.App. 4 Cir. 12/18/13), 131 So.3d 427, 431 (holding that the prosecution's ability to satisfy its burden of proof at trial is a factual issue going to the merits of the charge and thus is an insufficient ground to quash a bill of information); State v. Carter, 11-0859, p. 3 (La. App. 4 Cir. 3/21/12), 88 So.3d 1181, 1183 (finding the defendant’s contention that the seized pills "tested negative for violation drugs” to be a factual defense that is not a proper basis for a motion to quash); State v. Fox, 09-1423, p. 6 (La.App. 4 Cir. 7/07/10), 43 So.3d 318, 321-22 (finding the trial court erred in granting a motion to quash based on the defense’s contention that the State presented no evidence to establish the defendant knew the seized vehicle was stolen since this was a defense on the merits and an improper basis for a motion to quash); State v. Billard, 03-319, p. 9 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, 1074 (finding the defendant’s motion to quash improperly raised factual questions of guilt or innocence).

      . See State v. Brooks, 13-0540, p. 13 (La.App. 4 Cir. 9/18/13), 124 So.3d 1129, 1136 (noting that when "the district court granted the motion to quash, it stated for the record that the matter belonged in civil court, not criminal court” and reversing that ruling finding no valid ground to grant the motion to quash); Schmolke, 12-0406 at p. 8, 108 So.3d at 301 (noting that the district court's ruling granting the motion to quash was based on its finding that the "dispute here is purely civil” and reversing that ruling given that "[wjith-out a doubt, the trial judge’s reasons reflect a view that Mr. Schmolke has a defense on the merits. But, of course, the guilt or innocence of Mr. Schmolke was not before the trial judge on the motion to quash.”); State v. Severin, 12-0205, pp. 3-4 (La.App. 4 Cir. 10/17/12) (unpub.), 2012 WL 6619009 (holding that the district court erred when it quashed the bill of information on the grounds that the matter was civil in nature reasoning that “the jurisdiction of the district attorney to prosecute those who violate state criminal statutes is exclusive. It can only be constrained or curtailed when it operates to the prejudice of a contrary constitutional mandate, and even then, only with due deference to the district attorney’s constitutional prerogative”).


author: SANDRA CABRINA JENKINS, Judge.

text:
    Christopher WASHINGTON v. LANDRY’S SEAFOOD HOUSE NEW ORLEANS, INC. Christopher Washington v. Landry’s Seafood House-New Orleans, Inc.
    Nos. 2014-CA-0128, 2014-CA-0530.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2014.

      Christopher Washington, New Orleans, LA, Appellant/In Proper Person.
    Rodney J. Lacoste, Jr., Eric Winder Sel-la, Guy Dugue Perrier, Perrier & Lacoste, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

11 This appeal arises from an employee suit in which Christopher Washington alleged that his former employer, Landry’s Seafood House (“Landry’s”), failed to pay final wages within the time period mandated by La. R.S. 23:631. After de novo review, we find no error in the trial court’s judgment granting Landry Seafood’s motion for summary judgment. We also find no error in the trial court’s judgment denying Mr. Washington’s motion for new trial. We affirm the trial court judgments on the motion for summary judgment and motion for new trial. We dismiss as abandoned the remainder of this consolidated appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2018, Christopher Washington was hired by Landry’s to work as a* busser at the rate of $7.25 per hour. On his first day of training, April 26, 2018, Mr. Washington worked a total of 7.20 hours. He was told to return the next day for a shift beginning at 6:00 p.m. On April 27, 2013, Mr. Washington contacted his manager and stated he would not be able to work past 8:00p.m. As a result, Mr. Washington’s employment was terminated. On the same day, Mr. | ¡Washington returned a chefs jacket to the restaurant and tendered a letter to the manager demanding payment of his wages within fifteen days pursuant to La. R.S. 23:631. On May 15, 2013, Mr. Washington filed a petition for damages against Landry’s seeking unpaid wages, in the amount of $52.20, and penalties for failure to pay timely.

Both parties filed motions for summary judgment. On July 8, 2013, the trial court held a hearing on the cross motions for summary judgment. On July 23, 2013, the trial court rendered judgment denying Mr. Washington’s motion for summary judgment, granting Landry’s cross motion for summary judgment, and dismissing plaintiff’s claims. On July 10, 2013, based on the trial court’s oral ruling on the motions for summary judgment, Mr. Washington filed a motion to reconsider, motion to annul judgment, motion for new trial and motion for sanctions arguing Landry’s withheld evidence that would establish a genuine issue of material fact precluding summary judgment. The trial court held a hearing on the merits of Mr. Washington’s motions on September 20, 2013. The trial court’s September 24, 2013 judgment denied the motion for new trial and motion for sanctions. The trial court subsequently granted Mr. Washington’s motion for appeal from the trial court’s judgments on the motion for summary judgment and motion for new trial.

Mr. Washington also filed a separate petition to annul the trial court’s July 23, 2013 judgment granting Landry’s motion for summary judgment and | ^dismissing his suit with prejudice. In response, Landry’s filed a motion for summary judgment and peremptory exception of res judicata. After a hearing on the merits, the trial court denied Landry’s motion for summary judgment and granted Landry’s peremptory exception of res judicata. The trial court’s February 21, 2014 judgment dismissed Mr. Washington’s petition for nullity. Mr. Washington filed a motion to appeal this judgment that was granted, and the record on appeal was lodged with this Court on May 23, 2014. Upon motion of Landry’s, the two appeals were consolidated. By the time of submission of the consolidated appeals for decision, Mr. Washington had not filed an appellant brief in his second-filed appeal of the trial court’s February 21, 2014 judgment dismissing his petition for nullity. Consequently, pursuant to La. C.C.P. art. 2165 and Uniform Rule 28.6, Mr. Washington’s appeal (2014-CA-0530) of the February 21, 2014 judgment is dismissed as abandoned.

We now turn to our discussion of the merits of the original appeal (2014-CA-0128) relating to the trial court’s July 23, 2013 judgment granting Landry’s motion for summary judgment and the September 24, 2013 judgment denying his motion for new trial.

LAW AND ANALYSIS

On appeal, our review of summary judgments is de novo using the same standard applied by the trial court in deciding whether summary judgment is appropriate by determining if any genuine issues of material fact exist. Francis v. Union Carbide Corp., 12-1397, pp. 2-3 (La.App. 4 Cir. 5/8/13), 116 So.3d 858, 860 (citing King v. Dialysis Clinic Inc., 04-2116, p. 5 (La.App. 4 Cir. 1/4/06), 923 So.2d 177, 180). An issue is genuine if reasonable persons could disagree. Smith v. Treadaway, 13-0131, p. 4 (La.App. 4 Cir. 11/27/13), 129 So.3d 825, 828 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2312, p. 27 (La.7/5/94), 639 So.2d 730, 751). Facts are material when they “insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” FMC Enterprises, L.L.C. v. Prytania-St. Mary Condominiums Ass’n, Inc., 12-1634, p. 6 (La.App. 4 Cir. 5/15/13), 117 So.3d 217, 222 (citing Smith, 93-2512, p. 27, 639 So.2d at 751).

In his third assignment of error, Mr. Washington contends the trial court erred in granting Landry’s motion for summary judgment. Mr. Washington argues the trial court erred in finding that Landry’s paid Mr. Washington in the customary method of payment pursuant to La. R.S. 23:631 and in finding Landry’s was not liable for penalty wages.

In regards to payment after termination of employment, La. R.S. 23:631(A) provides in pertinent part:

(1)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount due under the terms of employment, whether the employment is by the hour, day, week, or |fimonth, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

Any employer who fails or refuses to comply with the provisions of La. R.S. 23:631 shall be liable for penalty wages pursuant to La. R.S. 23:632.

Mr. Washington acknowledges that, on June 12, 2013, Landry’s mailed him a check for the wages he earned on April 27, 2013. Mr. Washington argues, however, that Landry’s failed to comply with the fifteen day time period set forth in La. R.S. 23:631; as a result, he argues, Landry’s is liable for penalty wages pursuant to La. R.S. 23:632.

Landry’s contends that it fully complied with La. R.S. 23:631. Landry’s submits that Mr. Washington’s paycheck was made available for pick up at Landry’s restaurant on May 7, 2013. Landry’s asserts that it customarily pays its employees at its place of business, rather than by mail. Both Landry’s and Mr. Washington attached, offered and introduced a copy of the paycheck made out to |fiMr. Washington at the hearing oh the motions for summary judgment. The check is dated May 7, 2013. When Mr. Washington did not return to the restaurant to retrieve his paycheck, Landry’s mailed him the paycheck on June 12, 2013. Landry’s also offered and introduced the affidavit of Joe Spadaro, the manager of Landry’s, who attested to the above facts. Based on these facts, Landry’s maintains its compliance with La. R.S. 23:631 by making Mr. Washington’s paycheck available to him in the customary manner at the place of business within the statutory time period.

Statutes, such as La. R.S. 23:632, authorizing the imposition of penalties or sanctions are penal in nature and must be strictly construed. Saacks v. Mohawk Carpet Corp., 03-0386, p. 15 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 370 (citing Consolidated Distributors, Inc. v. United Group of Nat. Paper Distributors, Inc., 32,431 (La.App. 2 Cir. 10/27/99), 743 So.2d 862). “Penalties should not be imposed on the employer when it presents a good faith non-arbitrary defense to its liability for unpaid wages.” Id., 03-0386, p. 16, 855 So.2d at 370 (citing Carriere v. Pee Wee’s Equip. Co., 364 So.2d 555 (La.1978)); see Brown v. Navarre Chevrolet, Inc., 610 So.2d 165, 171 (La.App. 3 Cir.1992) (“[T]he employer must be found to have acted in bad faith or in an arbitrary or unreasonable manner.”)

Upon our review of the record on the motions for summary judgment, we find that Landry’s established its compliance with La. R.S. 23:631. Landry’s made payment available to Mr. Washington within the statutory time period and in a customary manner at the place of business. We find that the evidence supports that Landry’s acted in good faith to comply with the provisions of La. R.S. 23:631.

|7In opposition to Landry’s motion for summary judgment, Mr. Washington failed to put forth evidence sufficient to establish that there was any genuine issue of material fact. He produced no factual support for his contention that Landry’s acted in bad faith or in an arbitrary manner or in contravention of the provisions of La. R.S. 23:631, such that Landry’s would be liable for penalty wages. Consequently, we find no genuine issues of material fact and the trial court properly granted Landry’s motion for summary judgment. This assignment of error is without merit.

In his final assignment of error, Mr. Washington argues that the trial court erred in denying his motion for a new trial. He contends that the trial court refused to consider newly discovered evidence that created a genuine issue of material fact for trial. In his motion for new trial, Mr. Washington stated Landry’s provided documents to him, on the day after the summary judgment hearing, establishing that Mr. Washington would be paid by direct deposit or pay card as the customary method of payment during his employment. Mr. Washington argued to the trial court that the Electronic Pay Authorization Form constituted new evidence essential to his case; and this new evidence created a genuine issue of material fact regarding the customary method of payment and whether Landry’s complied with La. R.S. 23:631.

Landry’s, in opposition, argued that Mr. Washington did not complete the Electronic Pay Authorization Form and, therefore, did not have a customary method of payment established with Landry’s. Thus, the documents did not constitute new evidence for the purpose of granting a new trial.

In considering Mr. Washington’s motion for new trial, the trial court reviewed the findings and reasons for judgment for granting Landry’s motion for [^summary judgment. The trial court found that the previous judgment was based on a finding that Mr. Washington had not worked at Landry’s long enough to have a customary method of payment from his employer. Based on the motion and arguments, the trial court found that the newly discovered evidence would not change the outcome on the motion for summary judgment and did not warrant a new trial. The trial court denied Mr. Washington’s motion for new trial.

We review a ruling on a motion for new trial under an abuse of discretion standard. Jouve v. State Farm Fire and Cas. Co., 10-1522, p. 15 (La.App. 4 Cir. 8/17/11), 74 So.3d 220, 229 (citing Guillory v. Lee, 09-0075, p. 38 (La.6/26/09), 16 So.3d 1104, 1131). “[T]o justify a new trial under Article 1972, the newly discovered evidence must not only relate to the cause of the case, it must also be ‘important’ enough to potentially affect the outcome.” Pyles v. Weaver, 06-0348, p. 6 (La. App. 4 Cir. 5/16/07), 958 So.2d 753, 759; La. C.C.P. art. 1972. “Newly discovered evidence justifies a new trial only if evidence: (1) is discovered after trial; (2) could not, with due diligence, have been discovered before or during the trial; and (3) is not merely cumulative, but instead would tend to change the result of the case.” Jouve, 10-1522, pp. 15-16, 74 So.3d at 229; Turner v. Dameron-Pierson Co., Ltd., 95-0148, p. 2 (La.App. 4 Cir. 11/16/95), 664 So.2d 739, 740.

After reviewing the record and the documents submitted by Mr. Washington, we find no abuse of discretion in the trial court’s ruling denying the motion for new trial. First, the record reflects that Mr. Washington did not file a motion for discovery or make any attempts, with due diligence, to obtain evidence |9before filing his motion for summary judgment and motion for expedited consideration. Further, Mr. Washington did not establish how this evidence would tend to change the result of the case. The incomplete Electronic Pay Authorization Form does not provide evidence or present a genuine issue of material fact in this case, because Mr. Washington had not worked at Landry’s long enough to establish himself as an employee with a customary method of payment. The evidence does not justify a new trial. Therefore, we find no abuse of discretion in the trial court’s ruling denying the motion for new trial. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment granting Landry’s motion for summary judgment and the judgment denying Mr. Washington’s .motion for new trial are affirmed. The consolidated appeal numbered 2014-0580, relating to the trial court’s dismissal of the petition for nullity, is hereby dismissed as abandoned.

AFFIRMED IN PART; DISMISSED IN PART.

      . Appéal numbered 2014-CA-0128 concerns the trial court’s judgments on the motion for summary judgment and motion for new trial, which we affirm. Appeal numbered 2014-CA-0530 is dismissed as abandoned for reasons set forth within the opinion.

      . Louisiana Code of Civil Procedure does not provide for a motion to reconsider. Such motion is treated as a motion for new trial. Jennings v. J. Ray McDermott Holdings, Inc., 99-3161, p. 2 (La.App. 4 Cir. 4/5/00), 760 So.2d 462, 463 (citing Clement v. American Motorists Ins. Co., 98-504, p. 3 (La.App. 3 Cir. 2/3/99), 735 So.2d 670, 672). Since an action to annul a judgment for vices of substance must be brought by direct action in a petition for nullity, the trial court did not consider Mr. Washington’s motion to annul judgment. See La. C.C.P. art.2004; see Ezzell v. Miranne, 13-349, p. 5 (La.App. 5 Cir. 12/30/13), 131 So.3d 1093, 1096; Transworld Drilling Co. v. Texas General Resources, Inc., 604 So.2d 586, 592 (La.App. 4 Cir. 1992).

      . We further note Mr. Washington failed to appear before this Court for oral arguments on September 3, 2014.

      . In his appeal, Mr. Washington assigns four errors: 1) the trial court erred in denying his motion for summary judgment; 2) the trial court erred in hearing Landry's cross motion for summary judgment because Mr. Washington was not properly served with Landry’s motion; 3) the trial court erred in granting Landiy’s motion for summary judgment; and 4) the trial court erred in denying Mr. Washington’s motion for new trial. The first two assignments are without merit. Regarding his first assignment of error, the denial of a motion for summary judgment is a non-ap-pealable interlocutory judgment. Ross v. City of New Orleans, 96-1853, p. 1 (La.App. 4 Cir. 9/13/96), 694 So.2d 973, 974 (citing Batson v. Time, Inc., 298 So.2d 100, 106 (La.App. 1 Cir. 1974)). As to the insufficient servifce of Landry’s motion, Mr. Washington voluntarily waived his objection to service when he made a general appearance and argued the motions on the merits. See Chaney v. Coastal Cargo, Inc., 98-1902, p. 3 (La.App. 4 Cir. 1/20/99), 730 So.2d 971, 972; Strickland v. Bd. of Supervisors of Louisiana State Univ., 432 So.2d 964, 966 (La.App. 4 Cir. 1986).

      . La. R.S. 23:632 provides,
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

      . La. C.C.P. art. 1972 provides, in pertinent part, "[a] new trial shall be granted, upon contradictory motion of any party, (2)[w]hen the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence have obtained before or during the trial.”


text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College v. DIXIE BREWING COMPANY, INC.
    No. 2014-CA-0641.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2014.
    See also 131 So.3d 130.

      Jon K. Parsons, Luke F. Piontek, Thomas J. Capella, Christian J. Rhodes, Shelley A. McGlathery, Roedel Parsons Koch Blache Balhoff & McCollister, New Orleans, LA, for Plaintiff/Appellee.
    Cesar R. Burgos, Robert B. Evans, III, Gabriel 0. Mondino, Robert J. Daigre, Burgos & Evans, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

|, This is an expropriation suit. The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU”) commenced this suit against Dixie Brewing Company, Inc. (“Dixie”), seeking to expropriate a parcel of property owned by Dixie. The purpose for the expropriation was to facilitate the development and construction of LSU’s new University Medical Center (“UMC”) and the adjacent Veterans Affairs Medical Center (“VAMC”), in the Mid-City area of New Orleans. In response, Dixie filed a peremptory exception of res judicata. From the trial court’s decision denying Dixie’s exception, Dixie appeals. For the reasons that follow, we convert Dixie’s appeal to an application for supervisory writ, grant Dixie’s writ, but deny the requested relief.

FACTUAL AND PROCEDURAL BACKGROUND

This case has a complicated procedural history, which includes multiple filings in both state and federal court. The federal district court in Dixie Brewing Co., Inc. v. Department of Veterans Affairs, 2013 WL 6715921, pp. 1-2 (E.D.La.2013), summarized the background facts of this case as follows:

|2The City of New Orleans, LSU, and the VA entered into numerous agreements in which LSU agreed to invoke “quick-take” authority under Louisiana Revised Statute § 19:141 to assist New Orleans in making land available to the VA for its development of the medical center: LSU would expropriate the required land for both the LSU and VA sections of the complex, and then LSU would transfer a portion of the land to the VA. The designated area for the VA hospital is bordered by Galvez Street, Rocheblave Street, Canal Street, and Tulane Avenue. The Dixie Brewery Building, which at one time brewed the local Dixie beer, is located on a parcel at the corner of Rocheblave Street and Tulane Avenue. The Dixie property was not originally included in LSU’s expropriation efforts; but in February 2010, the site was added to the land slated for expropriation, spurring a torrent of state-court activity ever since.

The following is a chronological summary of the state-court activity pertinent to this appeal:

• April 29, 2010 — LSU filed'a Petition for Access to Property through Subpoena Duces Tecum for Inspection Prior to Filing of Expropriation and for Expedited Consideration (Civil District Court “CDC” No. 2010-4351) (“LSU’s Access Suit”). The purpose for LSU’s Access Suit was to állow LSU to inspect and evaluate the property to make the required offer of just compensation. The trial court granted LSU’s request for access.
• February 16, 2011 — Dixie filed a Petition for Temporary Restraining Order and Declaratory Judgment (CDC No. 2011-1602) (“Dixie’s TRO Suit”) the purpose of Dixie’s TRO Suit was to stop an unwarranted and allegedly unconstitutional expropriation. LSU answered Dixie’s TRO Suit and asserted affirmative defenses. Following a hearing, the trial court dismissed Dixie’s TRO Suit “with prejudice” on February 25, 2011.
• February 25, 2011 — Following the trial court’s dismissal of Dixie’s TRO Suit (on the same day), LSU filed its Petition for Expropriation (CDC No. 2011-2122) (“LSU’s Expropriation Suit”).
• July 8, 2011 — LSU filed a Motion to Transfer and Consolidate LSU’s Expropriation Suit with Dixie’s TRO Suit. The trial court granted this motion on August 11, 2011. This court denied Dixie’s writ application challenging that ruling. Board of Sup’rs of Louisiana State University, Agricultural and Mechanical College v. Dixie Brewery Co., Inc., 11-1339 (LaApp. 4 Cir. 9/27/11) (unpub.).
[;• September 1, 2011 — Dixie filed a Peremptory Exception of Res Judi-cata, No Right of Action, and No Cause of Action .to LSU’s Expropriation Suit. As to the res judicata exception, Dixie contended that the cause of action asserted in LSU’s Expropriation Suit existed and arose out of the same transaction or occurrence that was the subject matter of Dixie’s TRO Suit; thus, Dixie contended that LSU was required to assert its Expropriation Suit as a reconventional demand in Dixie’s TRO Suit. Dixie contended that LSU’s failure to do so resulted in LSU’s Expropriation Suit being barred by res judicata. (As noted below, this exception was ruled upon by the trial court on February 28, 2014; and this ruling is the subject of the instant appeal.)
• November 22, 2011 — The trial court granted Dixie’s Motion to Transfer and Consolidate Dixie’s TRO Suit and LSU’s Expropriation Suit with LSU’s Access Suit, which was the first filed CDC suit.
• June 8, 2011 — Dixie filed a motion to dismiss LSU’s Expropriation Suit, challenging the constitutionality of LSU’s quick-take authority.
• January 27, 2012 — Dixie filed its first post-expropriation injunction petition (“Dixie First Injunction Petition”). The trial court denied Dixie’s First Injunction Petition on February 7, 2012. Dixie did not seek review of this ruling.
• October 12, 2012 — Dixie filed its second post-expropriation injunction petition (“Dixie’s Second Injunction Petition”). LSU filed an exception of res judicata.
• November 16, 2012 — The trial court granted LSU’s exception of res judi-cata and dismissed Dixie’s Second Injunction Petition. Dixie appealed that decision. This court affirmed, and the Louisiana Supreme Court denied Dixie’s writ application. Board of Sup’rs of Louisiana State University, Agricultural and Mechanical College v. Dixie Brewing Co., Inc., 13-0250, 13-0251, 13-0252 (La.App. 4 Cir. 12/4/13), 131 So.3d 130, writ denied, 14-0007 (La.2/12/14), 132 So.3d 399 (hereinafter “Dixie I ”).
It* January 15, 2014 — Dixie filed a motion for expedited resetting of its earlier filed res judicata exception, which had been pending since September 1, 2011.
• February 28, 2014 — The trial court, following a hearing, denied Dixie’s res judicata exception for reasons orally assigned in court.

From the trial court’s ruling denying the res judicata exception, Dixie appeals. Before reaching the merits of the appeal, we first must address a jurisdictional issue.

APPELLATE JURISDICTION

Although the trial court granted Dixie’s Motion for Appeal, the February 28, 2014 judgment denying the exception of res judicata is an interlocutory judgment under La. C.C.P. art. 1841. See Louisiana Local Government Environmental Facilities v. All Taxpayers, 11-0027, p. 13 (La.App. 1 Cir. 2/2/11), 56 So.3d 1194, 1200 (citing Tolis v. Board of Supervisors of LSU, 95-1529 (La.10/16/95), 660 So.2d 1206, 1207 (per curiam)). A party may appeal from an interlocutory judgment only when expressly provided by law. La C.C.P. art. 2083(C). There is no express law permitting the appeal of a judgment denying an exception of res judicata; La. C.C.P. art. 1915 does not authorize a trial court to designate a judgment denying an exception as final. See Young v. City of Plaquemine, 04-2305, pp. 4-5 (La. App. 1 Cir. 11/4/05), 927 So.2d 408, 411. The proper procedural device to seek review of an interlocutory judgment is an application for supervisory writ. See La. C.C.P. art. 2083(C) and La. C.C.P. art. 2201; see also Delahoussaye v. Tulane University Hosp. and Clinic, 12-0906, 12-0907, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 560, 562, 2013 WL 633121 (citing La. C.C.P. art. 2201).

“[T]he decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts.” Stelluto v. Stelluto, 05-0074, p. 7 (La.6/29/05), 914 So.2d 34, 39. This court has exercised its discretion to convert an appeal of an interlocutory judgment into an application for supervisory writ when the following two circumstances both are present:

1. The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.
2. When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court’s decision would terminate the litigation.

Wadick v. General Heating & Air Conditioning, LLC, 14-0187, pp. 8-9 (La.App. 4 Cir. 7/23/14), 145 So.3d 586, 592-93 (citing Delahoussaye, 12-0906 at pp. 4-5; — So.3d at-).

Both circumstances are present here. Dixie’s motion for appeal was filed within the thirty-day period applicable to supervisory writs contained in Rule 4-3 of the Uniform Rules, Courts of Appeal; thus, an application for supervisory writ would have been timely. Second, reversal of the trial court’s ruling denying the peremptory exception of res judicata would effectively terminate the litigation. Moreover, converting Dixie’s appeal to a writ is consistent with the policy of expediting the trial and appeal of expropriation suits. See La. R.S. 19:8 (trial) and La. R.S. 19:159 (appeal). Converting Dixie’s appeal to a writ will therefore promote fundamental fairness and judicial efficiency. We thus exercise our ^discretion and convert the instant appeal of the judgment denying the exception of res judicata to an application for supervisory writ.

DISCUSSION

The standard of review of an exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct or incorrect. Fletchinger v. Fletchinger, 10-474, p. 4 (La.App. 4 Cir. 1/19/11), 56 So.3d 403, 405; Myers v. National Union Fire Ins. Co. of Louisiana, 09-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210; Insurance Co. of North America v. Louisiana Power & Light Co., 08-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267. In Louisiana, the doctrine of res judicata is stricti juris; any doubt regarding the application of the doctrine must be resolved against its application. Fletchinger, 10-474 at p. 5, 56 So.3d at 406; Myers, 09-1517 at p. 5, 43 So.3d at 210; Insurance Co. of North America, 08-1315 at p. 7, 10 So.3d at 268.

“Res judicata in Louisiana is effected through code articles and statutes; effective Jan[uary] 1, 1991, that framework was amended by the Legislature to be more akin to federal and common law.” M. David Kurtz and Mark W. Frilot, Res Ju-dicata in Louisiana: A Synthesis of Competing Interests, 53 La. B.J. 445 (2006).

Louisiana’s res judicata statute is La. R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are | extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

“When Louisiana law on res judicata was amended by enacting La. R.S. 13:4231, effective January 1, 1991, a companion statute, La. R.S. 13:4232, was also enacted to include ... exceptions.” Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654, p. 13, n. 4 (La.1/16/96), 666 So.2d 624, 632; see also Oliver v. Orleans Parish Sch. Bd., 14-0329, 14-0330, p. 33 (La.10/31/14), 156 So.3d 596, 618, 2014 WL 5507968 (citing Terrebonne Fuel, supra ). The statute provides, in pertinent part, as follows:

A. A judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or
(3) When the judgment reserved the right of the plaintiff to bring another action.

IsLa. R.S. 13:4232.

The pertinent two code articles implementing res judicata are La. C.C.P. art. 425 and La. C.C.P. art. 1061. Article 425 provides, in pertinent part, that “[a] party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” La. C.C.P. art. 425. Article 106 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 102 or 103 or in an action under Civil Code Article 186, 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. C.C.P. art. 1061.

The jurisprudence has recognized that a peremptory exception of res judica-ta is the proper procedural vehicle to enforce the mandate of Articles 425 and 1061, which bar claims that were or could have been litigated in a prior lawsuit. See Horacek v. Watson, 06-210, p. 3 (La.App. 3 Cir. 7/5/06), 934 So.2d 908, 910 (quoting Walker v. Howell, 04-246, p. 2 (La.App. 3 Cir. 12/15/04), 896 So.2d 110, 112). “Prior litigation of an issue is not required in order for a cause of action to be barred by res judicata.” Henkelmann v. Whiskey Island Preserve, LLC, 13-0180, p. 6 (La. App. 1 Cir. 5/15/14), 145 So.3d 465, 470.

Five elements must be met to preclude a second action under the theory of res judicata; the five elements are as follows:

ln(l) 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.

Burguieres v. Pollingue, 02-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

In this case, the first three elements are undisputed—the judgment dismissing Dixie’s TRO Petition was a valid, final judgment dismissing the petition “with prejudice,” and the parties to LSU’s Expropriation Suit and Dixie’s TRO Petition are the same. The trial court found the fourth element was not met because LSU’s expropriation cause of action had not yet accrued. Dixie and LSU dispute whether the fourth and fifth elements are met. Because we find the exception codified in La. R.S. 13:4282 A(l) for exceptional circumstance applies, we find it unnecessary to reach the issue of whether the fourth and fifth elements are met. We separately address the procedural and substantive reasons for our holding that the exception applies.

Procedural reasons

The jurisprudence has recognized that the exception for exceptional circumstances, codified in La. R.S. 18:4232 A(1), applies “to complex procedural situations in which litigants are deprived of the opportunity to present their claims due to unanticipated quirks in the system.” Davis v. J.R. Logging, Inc., 13-0568, p. 6 (La.App. 1 Cir. 11/8/13), 136 So.3d 828, 832 (citing McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, 09-1357, pp. 11-12 (La.App. 1st Cir.2/12/10), 36 So.3d 272, 279). In the McGregor case, the defendants contended, based on a judgment rendered in a previous contract suit between the parties, that the plaintiffs’ claims in their malpractice suit were precluded by res judicata. The plaintiffs countered that the exceptional circumstances exception should be applied given the appellate court had determined on a previous writ application that consolidating the two matters — the medical malpractice and the contract suit — for trial was improper because it would lead to jury eonfusion, and the court ordered that the two cases be maintained as separate suits. 09-1357 at p. 11, 36 So.3d at 279. Agreeing with the plaintiffs, the appellate court stated:

We note that our prior decision on the supervisory writ addressed consolidation of the two actions for trial under La. C.C.P. art. 1561. However, because this court specifically ordered that the actions be remanded to the trial court to be ■ maintained as separate suits, we agree with plaintiffs that it would be unjust to now find the medical malpractice claim is barred by res judicata. Accordingly, we find that based on the unique facts of this case, and in the interest of justice, exceptional circumstances exist justifying relief from the res judicata effect of the prior judgment in the contract suit.

McGregor, 09-1357 at p. 12, 36 So.3d at 280.

Similarly, this court in Simmons v. Baumer Foods, Inc., 09-1739, p. 4 (La.App. 4 Cir. 10/6/10), 55 So.3d 789, 792, found that the unique facts of the case warranted the application of the exceptional circumstances exception. Explaining In the procedural and substantive reasons that warranted the application of the exception, the concurring judge in the Simmons case stated:

Substantively, the civil remedy the plaintiffs are seeking to pursue is a unique one. Indeed, a commentator has labeled the remedy as a “comptort”— the remedy available for injuries arising out of a workplace setting that are not covered by the Workers’ Compensation Act because of either legislative or judicial narrowing of the compensation remedy. ...
[T]he plaintiffs in this case do not have a compensation claim against Bau-mer Foods and Task Force because they cannot satisfy the heightened burden of proof by clear and convincing evidence that Mrs. Simmons’ heart attack was compensable under La. R.S. 23:1021(8)(e). Because the Legislature has eliminated the plaintiffs’ compensation remedy by raising the burden of proof, they are entitled to a remedy in tort.
Procedurally, until the WCJ found the plaintiffs could not satisfy the heightened burden of proof for a compensation claim, they were barred by the workers’ compensation exclusivity rule from pursuing a tort claim. Due to the limited jurisdiction of the respective forums (CDC and OWC), the plaintiffs were precluded from cumulating their tort and workers’ compensation claims.... The plaintiffs were required to bring each claim in a different forum. Although the plaintiffs have done so, they have had their claim dismissed in both forums. Neither forum reached the merits of the plaintiffs’ claim that the employer was negligent in failing to administer first aid and failing to call for emergency help. The plaintiffs thus have not had the opportunity to litigate their claim in any forum.

Simmons, 09-1739 at p. 9, 55 So.3d at 794-95 (Murray, J., concurring).

In Simmons, swpra, this court also noted:

There is statutory recognition that application of the doctrine of res judicata in all circumstances would be unfair. Specifically, La.Rev.Stat. 13:4232(A)(1) provides that a judgment does not bar another action by the plaintiff “[w]hen exceptional circumstances justify relief from the res judicata effect of the judgment.” Moreover, the comments accompanying La.Rev.Stat. 13:4232 make clear that [tjhis court has the authority under the statute to exercise its equitable discretion to balance the principle of res judicata with the interests of justice, although clearly “this discretion must be exercised on a case by case basis and such relief should be granted only in truly exceptional cases ...”

il$d.

Recently, the Louisiana Supreme Court in Oliver v. Orleans Parish Sch. Bd., 14-0329, 14-0330 (La.10/31/14), 156 So.3d 596, 2014 WL 5507968, addressed the application of the exceptional circumstances exception. In that case, the Supreme Court found that the exception did not apply because none of the factors stated in the Restatement (Second) of Judgments, § 26 (1982) was present. Unlike in Oliver, supra, in both Simmons and McGregor at least one of the factors was present — factor (f), which provides “it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason.” Restatement (Second) of Judgments, § 26 (1982). For the reasons discussed below, we find that factor likewise was present in this case.

Implicit in the concept of res judicata is that a party “had the opportunity to raise a claim in the first adjudication, but failed to do so.” Jackson v. Iberia Parish Government, 98-1810, p. 9 (La.4/16/99), 732 So.2d 517, 524. LSU contends that the exceptional circumstances exception should be applied because it was judicially denied the opportunity to raise the expropriation claim in Dixie’s TRO Suit. Given it was not given an opportunity in Dixie’s TRO Suit to assert its expropriation claim, LSU contends that the exception should apply. We find this argument persuasive.

| i3In this case, the trial court, agreeing with LSU, found that LSU could not have filed its expropriation suit as a reconven-tional demand in Dixie’s TRO Suit without violating Dixie’s TRO. The TRO included the following order: “[LSU] be and is hereby restrained and prohibited from using ‘quick take’ authority to attempt to take Square 556 [the Dixie Parcel] for the City of New Orleans or to satisfy the obligations of the City of New Orleans.” Dixie acknowledges that an “executed” expropriation suit would have violated the TRO, but it contends that “filing” the expropriation suit would not have violated the TRO. Stated otherwise, it contends that the TRO “temporarily enjoined an executed expropriation suit, not the obligation to file for an expropriation suit under Article 1061.” Dixie thus contends that the trial court’s finding was erroneous and that LSU was required to assert its expropriation suit as a reconventional demand to Dixie’s TRO suit.

LSU counters that “[t]here is no middle-ground provided in the enabling statute for a ‘filed’ but not ‘executed’ expropriation by the Board.” LSU points out that Dixie’s contention contradicts controlling substantive law, La. R.S. 19:144. LSU thus contends that the trial court correctly found it was precluded from filing the expropriation suit as a reconvention demand in the TRO Suit. We agree. Simply stated, “[t]he quick-taking procedure vests title simultaneously with the filing of the suit, signing of the ex parte order by the judge, and deposit of the estimated compensation due the condemnee.” Melvin G. Dakin and Michael R. Klein, Eminent Domain in Louisiana 295 (1970). As we noted in Dixie I, the effect of LSU invoking the quick-taking statute is as follows:

| i4La. R.S. 19:144 provides that upon the filing of the petition for expropriation, the court shall issue an ex parte order directing that the amount of the estimated compensation (which amount is required to be included in the petition) be deposited into the registry of the court. La. R.S. 19:145 further provides that once that amount is deposited, “title to the property and property rights specified in the petition shall vest in the plaintiff [the expropriating authority]”

Dixie I, 13-0250 at pp. 7-8, 131 So.3d at 135. The trial court thus did not err in finding that LSU was prohibited by the TRO from filing its expropriation suit as a reconventional demand in Dixie’s TRO Suit.

Given that LSU was precluded judicially by the TRO that Dixie obtained from filing an expropriation claim in Dixie’s TRO Suit, it would be illogical and inequitable to find that LSU was barred by the doctrine of res judicata from bringing its expropriation suit. See McGregor v. Hospice Care of Louisiana in Baton Rouge, L.L.C., 09-1857, p. 12 (La.App. 1 Cir. 2/12/10), 36 So.3d 272, 280 (reasoning that “because this court specifically ordered that the actions be remanded to the trial court to be maintained as separate suits ... it would be unjust to now find the medical malpractice claim is barred by res judicata ”). We thus find the exceptional circumstances exception, codified in La. R.S. 13:4232 A(1), applies.

Substantive reasons

The trial court, in denying Dixie’s exception, noted a substantive reason for its decision; specifically, the trial court noted that “as in Terrebonne Parish Police Jury v. Kelly, [428 So.2d 1092, 1093 (La.App. 1st Cir.1983) (the “Terrebonne case”),] even assuming the TRO filed by Dixie was broad enough to enjoin the expropriation of the property, Dixie Brewing cannot stop the Board of LSU from exercising its constitutional right to expropriate the property.” On appeal, Dixie acknowledges that the Terrebonne case presents an “ostensible hurdle” to its 11sargument. Nonetheless, Dixie contends that the Terrebonne case should not be applied in this case for the following three reasons: (i) the Terrebonne ease is not binding on this court, (ii) the Terrebonne case is in direct conflict with this court’s holding in Dixie I, and (iii) the Terrebonne case is not authorized by specific statutory exception to the res judicata rule. All three of Dixie’s contentions are unpersuasive.

First, contrary to Dixie’s contention, this court recently followed the Terrebonne case in Hooper v. Hero Lands Co., 13-0576 (La.App. 4 Cir. 12/11/13), 128 So.3d 691. In Hooper, we summarized the facts and holding of the Terrebonne case as follows:

In Terrebonne, the parish police jury failed to secure a right-of-way before excavating a drainage canal over the Kellys’ land. 428 So.2d at 1093. The Kellys filed suit and were successful in having their possession recognized, having the police jury enjoined from disturbing their possession, and having the police jury ordered to fill in the ditch within six months. Before the expiration of the six month period, the police jury filed an expropriation suit without seeking modification of the injunction. Id. On appeal, the Kellys argued that the injunction prohibited the police jury from disturbing their peaceable possession by filing an expropriation suit. Id. The appellate court, however, found that the Louisiana constitution and laws grant parish governing authorities the power to expropriate private property for public purposes. Id. In so finding, the appellate court held that the police jury could not be enjoined from bringing a suit that it had a right to bring. Id.; Mutter v. Landry, 170 So.2d 922 (La. App. 3rd Cir.1965) (cf. Lenfants Caterers, Inc. v. Firemen’s Charitable and Benevolent Association of New Orleans, 386 So.2d 1053 (La.App. 4th Cir.1980) (tenant could not prevent the filing of an eviction suit through an injunction)).

Hooper, 13-0576 at pp. 9-10, 128 So.3d at 697-98. In Hooper, this court rejected the Hoopers’ attempt to distinguish the Terre-bonne case factually and applied the Terre-bonne holding. In so doing, we concluded as follows:

|1BBy analogy to the Terrebonne case, in this case the Hoopers obtained a preliminary injunction by a consent judgment enjoining PPG from interfering with their property. BCDD, through PPG, filed an expropriation suit for that same property. Although PPG obtained permission from the trial judge to suspend the injunction to file suit, such permission was not required. As the Terrebonne case held, a party who has a right to bring suit, such as a drainage district, cannot be enjoined from bringing such suit.

Hooper, 13-0576 at pp. 10-11, 128 So.3d at 698. Thus, this court has adopted the holding in the Terrebonne case.

Dixie next contends that the Terrebonne case conflicts with this court’s holding in Dixie I that res judicata may effectively prevent the exercise of constitutional rights. The gist of Dixie’s contention is that it would be unfair to apply res judica-ta to it in Dixie I, but not to apply res judicata to LSU in this case. LSU counters that Dixie misstates the issue. According to LSU, the issue is not whether res judicata may apply to constitutional rights, but whether Dixie’s TRO Suit could prohibit LSU from exercising its constitutional and statutory rights to expropriate property for a public purpose. We agree.

Dixie’s reliance on Dixie I is misplaced. Dixie I involved entirely different factual and procedural issues than the issues presented in this case. In Dixie I, the issue was whether res judicata applied to bar Dixie’s second post-expropriation injunction petition, “praying for exactly the same relief as it had in the first [post-expropriation injunction] petition.” Dixie I, 13-0250 at p. 3, 131 So.3d at 132. Answering that question in the affirmative, we cited Cooper v. Federal Land Bank of New Orleans, 197 So. 822, 824-25 (La.App. 1st Cir.1940), for the proposition that res judi-cata prevents a party from seeking multiple injunctions for the same purpose against the same opponent. Particularly, we quoted the following language from Cooper.

Where the plaintiff is aware of other grounds for an injunction other than those set up in his petition to prevent a sale of his property, he cannot in a subsequent suit filed for the same purpose avail himself of the grounds which he knew of at the time of filing his first suit. Courts look with disfavor on a multiplicity of suits to attain a purpose that can be fully litigated in one suit, and thus prevent a person from being annoyed and harassed by several suits designed to secure one particular form of relief.

Dixie I, 13-0250 at p. 5, 131 So.3d at 134 (quoting Cooper, 197 So. at 824). We concluded that the causes of action asserted by Dixie in the first and second post-expropriation injunction petitions arose from the same transaction or occurrence— LSU’s alleged unconstitutional transfer of Dixie’s property to the V.A. We further reasoned that the cause of action Dixie asserted in its second post-expropriation injunction petition not only existed, but also was asserted in its first post-expropriation injunction petition.

Unlike in Dixie I, which involved two injunction petitions, this case involves an expropriation suit. Contrary to Dixie’s contention, expropriation suits are unique. Expropriation is defined as the “authorized use of judicial coercion to compel the transfer of existing property rights conditioned upon the prior payment of compensation.” Melvin G. Dakin and Michael R. Klein, Eminent Domain in Louisiana 3 (1970). The power to expropriate is eo instante — exists as long as does 11Hthe government. Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 84, 176 So.2d 425, 438 (1965) (holding that the power to expropriate is “inherent in all government, coming into being Eo in-stante with the establishment of the government and continuing as long as the government endures, and does not require recognition by constitutional provision for its existence.”) Moreover, the Terrebonne case stands for the proposition that a party cannot be barred from bringing an expropriation suit that it has the constitutional right to bring.

Dixie’s final contention is that there is no constitutional right exception to the statutory and codal articles implementing res judicata. Although there is no constitutional right exception to the res judicata rule, the res judicata rule is not ironclad. Indeed, the Louisiana Supreme Court has admonished that “[w]hile res judicata is a useful tool, it should not be used as a scythe applied mechanically to mow down claims where the party asserting the claim is not at fault for the lack of adjudication of that claim in the first suit.” Placid Refining, 95-0654 at pp. 19-20, 666 So.2d at 635. As noted, the Legislature codified in the res judicata statutory provision exceptions to the res judicata rule.

In sum, we find the exception to the res judicata rule, codified in La. R.S. 13:4232 A(1), applies in this ease, which is both substantively and procedurally exceptional. See Simmons, 09-1739 at p. 9, 55 So.3d at 794 (Murray, J., concurring) (finding the exception applicable in that case, which was “exceptional both procedurally and substantively”).

DECREE

lisFor the foregoing reasons, we convert Dixie’s appeal of the denial of its peremptory exception of res judicata to an application for supervisory writ, grant Dixie’s writ application, but we deny the relief requested.

APPEAL OF DENIAL OF PEREMPTORY EXCEPTION OF RES JUDICA-TA CONVERTED TO SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED.

      . Dixie filed its peremptory exceptions in Dixie’s TRO Suit, which at that juncture had been consolidated with LSU’s Expropriation Suit.

      . In its motion to transfer, Dixie alleged that the three cases deal with the same two parties and not only have very similar and common issues of law and fact, but the very same issues of law and fact in that they relate to the same cause and transaction and occurrence between LSU and Dixie — the expropriation of the same property.

      .As of the date this appeal was filed, Dixie’s motion to dismiss was still pending. Indeed, a different panel of this court denied Dixie’s motion to stay the trial court’s consideration of the motion pending this court's ruling on the instant appeal.

      . The jurisprudence has recognized an exception in the following context: "when an unrestricted appeal is taken from a final judgment, an appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment." Olsen v. Olsen, 12-737, p. 4, n. 1 (La.App. 5 Cir. 3/13/13), 113 So.3d 274, 277 (citing Louisiana Local Government Environmental Facilities v. All Taxpayers, 11-0027 (La.App. 1 Cir. 2/2/11), 56 So.3d 1194, 1200; Territo v. Schwegmann Giant Supermarkets, Inc., 95-257 (La.App. 5 Cir. 9/26/95), 662 So.2d 44, 46). The only judgment from which an appeal was taken in this case is the denial of the exception of res judicata. This exception is thus inapplicable.

      . Explaining the exceptions to res judicata, the Louisiana Supreme Court in Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654, p. 13 (La. 1/16/96), 666 So.2d 624, 632, noted:
      Although rarely mentioned, exceptions exist to the common law theory of res judi-cata, as noted in the Restatement (Second) of Judgments, § 26 (1982). These exceptions involve “exceptional circumstances” as where (a) the parties have agreed that the plaintiff may split his claim, or the defendant has acquiesced therein; (b) the court in the first action has expressly reserved the plaintiff’s right to maintain the second action; (c) there are restrictions on the subject matter jurisdiction of the courts; (d) the judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme; (e) for policy reasons; or (f) it is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason. Restatement (Second) of Judgments, § 26 (1982), pg. 233-234.

        These examples of exceptional circumstances were also cited by the Louisiana Supreme Court in Oliver v. Orleans Parish Sch. Bd., 14-0329, 14-0330, p. 33 (La. 10/31/14), 156 So.3d 596, 618, 2014 WL 5507968.

      . In its oral reasons for judgment, the trial court stated:
      [T]his Court finds that the merits of LSU's expropriation action were never adjudicated in Dixie Brewing's petition or declaratory judgment, temporary restraining order, and preliminary and permanent injunctions, prohibiting the board from using "quick take” authority to attempt to take Square 556 for the City of New Orleans, which was granted by the Court. After hearing the merits of the injunction, the Court denied Dixie Brewing’s relief. Accordingly, it thus follows that LSU cannot be precluded from subsequently bringing its expropriation action when the cause of action asserted in the second suit had -not accrued. Because Requisite Element No. 4 is lacking pursuant to Louisiana Revised Statute 13:4231, Dixie has failed to establish all essential elements under the doctrine of res judicata beyond all question.

      . On appeal, Dixie asserts that the trial court erred in failing to find that LSU’s cause of action had fully accrued and thus "existed” for purpose of res judicata well before LSU’s answer to Dixie's petition. LSU counters that its expropriation cause of action did not exist or accrue until it filed its expropriation suit. LSU contends that until the petition is filed, there is no event that triggers the accrual of an expropriation cause of action.

      . See Jackson v. Iberia Parish Government, 98-1810, p. 9 (La.4/16/99), 732 So.2d 517, 524 (holding that "inherent in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so”); Benton, Benton and Benton v. Louisiana Public Facilities Authority, 95-1367, p. 3 (La.App. 1 Cir. 4/4/96), 672 So.2d 720, 722 (noting that “[u]nder federal law, res judicata does not apply unless the party claimed to be barred had a 'full and fair opportunity' to litigate the claim in the first action”); see also James Wm. Moore, Moore's Federal Practice Third Edition § 131.41[1] (2014) (noting that “[e]ven if all of the other prerequisites for claim preclusion are met, it will not be applied if the party against whom the prior judgment is asserted did not have a full and fair opportunity to litigate the claim in the prior proceeding”).

      . As to the Hoopers' attempt to distinguish the Teirebonne case, we noted:
      The Hoopers contend that Terrebonne is distinguishable from this case because in Terrebonne there was only one person claiming ownership and possession, where as in this case two parties are claiming ownership. Regardless of who owns the property, BCDD still has the right to file an expropriation suit. BCDD filed the expropriation petition against both the Hoopers and Hero Lands Company; thus, both parties will be given notice and an opportunity to be heard. Furthermore, whoever is de-dared the rightful owner will obtain the funds BCDD put in the court’s registry. We thus find the Hoopers attempt to distinguish the Terrebonne case unpersuasive. Hooper, 13-0576 at p. 10, 128 So.3d at 698.

      . LSU enumerates three reasons why it contends it was not at fault for not adjudicating its expropriation cause of action in Dixie's TRO Suit, which are as follows: (i) it provided notice in the Petition for Access that it planned to file the Expropriation Suit, once all the prerequisite activities were completed; (ii) it was prohibited from filing the Expropriation Suit by the TRO Dixie obtained; and (iii) it had not yet moved to expropriate the subject property.