source: Caselaw Access Project

author: AMY, Judge. SAUNDERS, J.,

license: Public Domain

text:
    HOLLOWAY DRILLING EQUIPMENT, INC., et al. v. Danielle BODIN, et al.
    No. 12-355.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Rehearing Denied Dec. 19, 2012.

      William E. Wright, Jr., Charlotte C. Meade Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellee, Inzarella, Feldman, and Pourciau, A Professional Corporation.
    Steven Charles Lanza, Onebane Law Firm, Lafayette, LA, for Defendant/Appel-lee, Iberia Bank Corporation.
    L. Clayton Burgess, Lafayette, LA, for Plaintiffs/Appellants, Holloway Drilling Equipment, Inc., Holloway Rentals, Inc.
    John Kevin Stockstill, Lafayette, LA, for Defendants/Appellees, Kyle Bodin, Butterfly Bodies.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe plaintiffs brought this action alleging that their former bookkeeper embezzled approximately 1.7 million dollars from company accounts. As relevant to this appeal, the plaintiffs amended their suit to name their former accounting firm and one of the accounting film’s employees as defendants, alleging that the employee participated in the fraud. The plaintiffs also contended that the accounting firm knew about the embezzlement. The accounting firm brought exceptions of res judicata and prematurity, contending that the plaintiffs had previously signed a release of all claims against the firm and that the matter had not been submitted to a public accountant review panel. The trial court granted the exception of res judicata and found that the exception of prematurity was moot. This appeal followed. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, one of the defendants, Danielle Bodin, was employed by the plaintiffs, Holloway Drilling Equipment, Inc. and Holloway Equipment Rentals, Inc. (collectively, “Holloway”), for many years as their bookkeeper. In 2010, Holloway discovered that Ms. Bodin embezzled approximately 1.7 million dollars from company accounts. The record indicates that Ms. Bodin was prosecuted criminally for the theft, and that, as of the date of her sworn statement, she pled guilty to at least one count and was awaiting sentencing.

Holloway subsequently brought this suit against Ms. Bodin and several other defendants. Holloway also amended its suit to add additional defendants, including its former accounting firm, Inzarella, Feld-man, and Pourciau, A Professional Corporation (the “Inzarella Firm”), and one of the Inzarella Firm’s former employees, Eric Broussard. Holloway alleges that Mr. Broussard participated in the [ 2embezzlement scheme by assisting Ms. Bodin in covering up her theft, as well as profiting personally by receiving cash advances and other funds from Ms. Bodin’s credit card. Further, Holloway contends that Mr. Broussard sent inflated invoices from the Inzarella Firm to Holloway. Additionally, Holloway alleges that the Inza-rella Firm is liable for damages because Mr. Broussard was acting in the course and scope of his employment.

The Inzarella Firm filed exceptions of res judicata and, alternatively, prematurity. In support of this contention, the Inza-rella Firm produced a receipt and release which purports to “acquit and forever discharge each other party, ... fi-om any and all actions, causes of action, or claims of every character, nature and kind whatsoever, known or unknown, past, present and future and all related expenses in connection with or arising from the relationship previously existing between the parties.” The Inzarella Firm argues that the receipt and release precludes Holloway from pursuing the pending action against it. Alternatively, the Inzarella Firm contends that this action is premature because it has not been submitted to a public accountant review panel, as required by La.R.S. 37:102 and La.R.S. 37:105. Holloway objects, contending that the release was only intended to address a single disputed bill. Further, Holloway alleges that the Inzarel-la Firm knew of Mr. Broussard’s fraud and that therefore the release should be vitiated. Holloway does not contest the exception of prematurity.

At a hearing, the parties introduced evidence concerning the intent of the parties with regard to the release and receipt and concerning the Inzarella Firm’s knowledge of Ms. Bodin and Mr. Broussard’s alleged criminal activities. The trial court found that the disputed bill is what precipitated the release and receipt. However, the trial court determined that it could not discount the broad release language found in the document. Because the trial court did not find that Holloway had proven that the ^receipt and release was vitiated by fraud, the trial court granted the Inzarella Firm’s exception of res judicata. Further, the trial court held that the exception of prematurity was moot.

Thereafter, Holloway filed a motion for new trial, alleging that since the hearing on the exception of res judicata, they had obtained the sworn statement of Ms. Bo-din. According to Holloway, that statement indicated that Gregory Inzarella, the president of the Inzarella Firm, knew about the embezzlement scheme. After a hearing, the trial court denied the motion for new trial on the basis that Holloway did not establish that the new evidence was unavailable before the original hearing or that the new information would have changed the result of the hearing on the exceptions.

The plaintiffs appeal, asserting as error that:

1. The judge committed legal error in dismissing the exception of prematurity because the claim against In-zarella was not subject to judicial determination yet, as it has not previously been presented to a Certified Public Accountant Review Panel as required by Louisiana law.
2. The judge committed legal error in granting the exception of res judica-ta pursuant to the Receipt and Release despite the fact that the parties testified that it was not executed with the intent [to] put an end to all future litigation for all matters.
3. The judge committed legal error in dismissing the motion for new trial in this matter despite the fact that new information was identified that could not have been discovered at the time of the trial.

Discussion

Res Judicata

The peremptory exception of res judicata is based on the conclusive legal presumption of a thing previously adjudged between the same parties. Labiche v. Louisiana Patients’ Comp. Fund Oversight Bd., 98-2880 (La.App. 1 Cir. 2/18/00), 753 So.2d 376. Although the exception of res judicata typically contemplates the existence of a final judgment on the merits, it also applies where there is a transaction |4or settlement of a dispute that has been entered into by the parties. Ortego v. State, Dept. of Transp. & Dev., 96-1322 (La.2/25/97), 689 So.2d 1358. “A release of claim or claims, when given in exchange for consideration, is a compromise and constitutes the basis for a plea of res judicata.” Labiche, 753 So.2d at 380.

The burden of proof is on the party asserting the exception to establish that the plaintiffs’ claims are res judicata. Reyes-Ramirez v. Progressive Sec. Ins. Co., 08-374 (La.App. 3 Cir. 11/5/08), 996 So.2d 1213, writ denied, 08-2877 (La.2/6/09), 999 So.2d 784. Further, the doctrine is interpreted stricti juris; therefore, any doubt with regard to whether its requirements have been met must be resolved in favor of maintaining the action. Id. Where the exception is raised before submission of the case and evidence is received from both parties, an appellate court should review a judgment sustaining an exception of res judicata under the manifest error standard of review. Stockier v. Lafayette Consol. Gov’t, 11-427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161, writs denied, 11-2639, 11-2677 (La.2/10/12), 80 So.3d 477, 487.

“A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La.Civ.Code art. 3071. “A release executed in exchange for consideration is a compromise.” Randall v. Martin, 03-1311, p. 4 (La.App. 5 Cir. 2/23/04), 868 So.2d 913, 915. In Ortego, 689 So.2d at 1363-64, the supreme court addressed the interpretation of compromises, stating:

A compromise instrument is the law between the parties and must be interpreted according to the parties’ intent. Ritchey v. Azar, 383 So.2d 360, 362 (La.1980). It follows that the compromise instrument is governed by the same general rules of construction applicable to contracts. Brown [v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741,] 748.
When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. [La.Civ.Code] art. 2046. Article 2046 emphasizes that the process involves no further interpretation, as opposed to no ] .^interpretation at all. Expose’ Des Motifs of the Project of Titles III and TV of Book III of the Civil Code of Louisiana, p. 67 (1984); R. MacLean, Judicial Discretion in the Civil Law, 43 La. L.Rev. 45, 55-56 n. 28 (1982). Because a compromise extends only to those matters the parties intended to settle, the scope of the transaction cannot be extended by implication. [La. Civ.Code] art. 3073;[] see Comment, Compromise in Louisiana, 14 Tul. L.Rev. 282, 283 (1940). In applying this rule of construction, courts are guided by the general principle “that the contract must be considered as a whole and in light of attending events and circumstances.” Brown, 630 So.2d at 748 (citing Succession of Teddlie, 385 So.2d 902, 904 (La.App. 2d Cir.), writ refused, 393 So.2d 742 (La.1980)).
The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the instrument’s four corners, and extrinsic evidence is inadmissible either to explain or to contradict the instrument’s terms. Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087, 1089 (La.1981); see also Leenerts Farms, Inc. v. Rogers, 421 So.2d 216, 218 (La.1982). When a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to set-tie. Moak v. American Automobile Ins. Co., 242 La. 160, 134 So.2d 911 (1961); see Brown, 630 So.2d at 749 n. 11.

Holloway contends that the receipt and release was only intended to address claims arising out of a disputed bill. Louisiana Civil Code Article 3076 provides that “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” The 2007 Revision Comment to Article 3076 states that “[t]his Article reproduces the substance of Article 3073 of the Louisiana Civil Code of 1870. It is not intended to change the law.”

^Accordingly, a general release will not necessarily bar recovery for those aspects of a claim that were not intended to be covered by the release. Signal v. Romero, 09-1078 (La.App. 3 Cir. 3/10/10), 32 So.3d 1126 (citing Broum v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741). This rule is applicable where there is evidence establishing that “either (1) that the releaser was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releaser did not fully understand the nature of the rights being released or that the releaser did not intend to release certain aspects of his or her claim.” Brown, 630 So.2d at 749. Where the parties contest the scope of a compromise agreement, the court may consider extrinsic evidence in determining what the parties intended to settle. Ortego, 689 So.2d 1358.

However, where the evidence concerning the execution of the release does not indicate that either of those two categories is applicable, “Louisiana courts ... have not hesitated to confine their analysis to the four corners of the instrument.” Brown, 630 So.2d at 749. Thus, if the parties to a compromise intended to enter into a release as part of the terms of the compromise, one of the “necessary consequences” of that expression may be a release of future claims, both known and unknown. See La.Code Civ. Art. 3076; State ex rel. Sabine River Auth. v. Meyer & Assoc., Inc., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967 So.2d 585.

Holloway relies on the supreme court’s decision in Brown, 630 So.2d 741, wherein the supreme court found that a particular tort settlement did not contemplate a release of wrongful death claims. The supreme court found that the release, which clearly released all of the decedent’s personal injury claims, was ambiguous with regard to wrongful death claims as neither party contemplated that the decedent would succumb to his injuries, and, at the time the release was signed, the prevailing jurisprudence was that the parties could not release a future wrongful death action.

|7In contrast, in State ex rel. Sabine River Auth., 967 So.2d 585, a contractor brought a third party demand against several subcontractors seeking indemnification for damages resulting from substandard construction. One of the subcontractors asserted that a previous settlement, which was intended to resolve a payment dispute and which contained a general release, was res ju-dicata between the parties. Id. On appeal, a panel of this court upheld the trial court’s judgment sustaining the exception, noting that the release was not ambiguous and that “had [the contractor] wanted to prevent its release of unknown future claims, it would not have agreed to release [the subcontractor] from ‘any and all future claims[,]’ ” and that “[i]t is counterintuitive for [the contractor] to agree to this language and then claim its understanding was only to release [the subcontractor] from those future claims it had knowledge would eventually exist.” Id. at 590.

In support of their exception of res judi-cata, the Inzarella Firm submitted into evidence a receipt and release signed by “Rickey A. Holloway, President” on behalf of Holloway Drilling Equipment, Inc. on March 23, 2009, and by “Gregory J. Inza-rella, President” on behalf of the Inzarella Firm on March 26, 2009. The receipt and release stated, in part:

WHEREAS, [the Inzarella Firm] has performed professional accounting services for [Holloway] and for which [the Inzarella Firm] has charged [Holloway] the sum of $23,737.99 for said services; and
WHEREAS, [Holloway] has disputed the amount of the said charges; [the Inzarella Firm] does hereby accept the sum of $12,000.00, hereby paid and gives full acquittance for the same and for any further compensation arising out of its performance of professional accounting services heretofore completed.
As consideration thereof, the parties herein specifically release, acquit and forever discharge each other party, their agents, employee and assigns, from any and all actions, causes of action, or claims of every character, nature and kind whatsoever, known or unknown, past, present and future and all related expenses in connection with or arising from the relationship previously existing between the parties.

IsAt the hearing on the exception of res judicata, Mr. Inzarella answered in the affirmative when asked whether “the only issue in your mind ... at the time this receipt and release was signed was approximately a $10,000 discrepancy in a bill[.]” Further, Mr. Holloway testified that “[w]e had a discrepancy on the bill. That’s what it was all about was the discrepancy on the bill.” After considering all of the evidence, the trial court stated “I think it’s pretty clear that what precipitated this document was that disputed bill[,]” noting that Holloway’s witnesses testified that the document was intended to take care of that issue. Further, the trial court noted that “conversations had taken place about the missing money.”

We find no error in the trial court’s determination that the release was intended to address the disputed bill, especially given the deference due the trial court’s factual findings. However, we find the facts of this case more like those of Meyer & Assoc., 967 So.2d 585, than those of Brown, 630 So.2d 741. The parties may include a release as consideration for a compromise. Randall, 868 So.2d 913. If Holloway had not intended to release unknown future claims, it would not have agreed to release the Inzarella Firm “from any and all actions, causes of action, or claims of every character, nature and kind whatsoever, known or unknown, past, present and future and all related expenses in connection with or arising from the relationship previously existing between the parties.” See Meyer & Assoc., 967 So.2d 585. We further observe that the record would support a conclusion that, even before the receipt and release was signed, Holloway was aware that a large sum of money was missing and was suspicious of Ms. Bodin’s involvement in its disappearance. Accordingly, we find no error in the trial court’s determination that the release and receipt encompassed Holloway’s current claims against the Inzarel-la Firm.

Alternatively, Holloway contends that the Inzarella Firm had knowledge of Ms. Bodin and Mr. Broussard’s alleged fraudulent scheme and therefore argues that the ^receipt and release was vitiated by fraud. “A compromise may be rescinded for error, fraud, and other grounds for the annulment of contracts. Nevertheless, a compromise cannot be rescinded on grounds of error of law or lesion.” La.Civ.Code art. 3082. Further, the party seeking to rescind the compromise bears the burden of proof. Hoover v. Boucvalt, 99-867 (La.App. 4 Cir. 11/24/99), 747 So.2d 1227, writ denied, 99-3610 (La.2/10/00), 754 So.2d 969. “The district court’s findings with respect to a claim of fraud are subject to the manifest error rule.” Ballard’s Inc. v. N. Amer. Land Dev. Corp., 28,437, p. 5 (La.App. 2 Cir. 6/26/96), 677 So.2d 648, 651 (citing Winegeart v. Texas Indus. Inc., 390 So.2d 265 (La.App. 3 Cir.1980), writ denied 396 So.2d 886 (La.1981)).

At the hearing on the exception, Mr. Inzarella testified that he did not learn about Mr. Broussard’s alleged criminal conspiracy with Ms. Bonin until 2010, which was well after the receipt and release was signed. However, Holloway attempted to establish that Mr. Inzarella made statements indicating that he knew about Mr. Broussard’s alleged role in the thefts and that Mr. Broussard and Ms. Bonin were having a sexual relationship. Mr. Inzarella testified that Mr. Holloway called “maybe” two years before the receipt and release was signed to express concerns that Ms. Bonin was spending too much money. According to Mr. Inzarella, he advised Holloway to investigate but, as far as he knew, they never did. Mr. Inza-rella also denied that another employee of his firm alerted him to a relationship between Mr. Broussard and Ms. Bonin.

Damian Domingue, Holloway’s operations manager, testified that he and Mr. Holloway spoke with Mr. Inzarella concerning missing funds and that they told Mr. Inzarella that Ms. Bonin was “living a pretty good lifestyle.” According to Mr. Domingue, Mr. Inzarella told them he would look into it and later reported that he did not find any discrepancies. Mr. Domingue also testified that after the receipt and | inrelease was signed, they had a conference call with Mr. Inzarella, Mr. Broussard, and Ms. Bonin. Mr. Do-mingue’s testimony was that Mr. Inzarella stated that Mr. Broussard and Ms. Bonin had a sexual relationship and that they would steal from Holloway. Mr. Holloway also testified about this conversation, but could not remember whether the conversation happened before or after the receipt and release was signed. Mr. Domingue and Mr. Holloway attributed Mr. Inzarel-la’s statement to anger over Holloway transferring its business to Mr. Brous-sard’s new place of business. Mr. Inzarel-la denied making any of those statements.

Given this testimony, Holloway submitted sufficient evidence which, if accepted by the trial court, would support a conclusion that Mr. Inzarella knew that Holloway was missing a significant sum of money, that Ms. Bonin was suspected in the theft, and that Mr. Broussard and Ms. Bonin had a sexual relationship and were stealing from Holloway. However, Mr. Inzarella denied that Holloway asked him to look into whether Ms. Bonin embezzled funds from Holloway and denied that he told Holloway that Ms. Bonin and Ms. Brous-sard were “sleeping together, and they’re going to steal your money.” Accordingly, the record also supports a conclusion that Mr. Inzarella had no knowledge of Ms. Bonin and Mr. Broussard’s alleged activities. It was the trial court’s prerogative to make findings of fact, and the trial court necessarily had to choose between these two competing versions of the events. Finding support in the record for the conclusion that Mr. Inzarella had no knowledge of the fraud, we find no manifest error in the trial court’s determination that Holloway did not satisfy its burden of proof with regard to fraud.

This assignment of error is without merit.

Prematurity

Pursuant to La.R.S. 37:102(A), “[a]ll claims against certified public accountants or firms, other than claims validly agreed for submission to a lawfully binding |n arbitration procedure, shall be reviewed by a public accountant review panel established pursuant to R.S. 37:109.” See also La.R.S. 37:105. Holloway concedes that, pursuant to this statute, its claim against the Inzarella Firm should have been submitted to a public accountant review panel. Therefore, Holloway contends that its judicial cause of action had not come into existence and that it was error for the trial court to address the exception of res judicata before addressing the prematurity issue.

The second circuit, in Steed v. St. Paul’s United Methodist Church, 31,521, 35,522, p. 7 (La.App. 2 Cir. 2/24/99), 728 So.2d 931, 938, writ denied, 99-877 (La.5/7/99), 740 So.2d 1290, addressed the exception of prematurity, stating:

The exception of prematurity is a dilatory exception intended to retard the progress of the action, not to defeat it. La. C.C.P. arts. 923, 926. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. Clark v. City of Shreveport, 26,638 (La.App.2d Cir. 5/10/95), 655 So.2d 617. The exception of prematurity raises the issue of whether the judicial cause of action has yet come into existence because some prerequisite condition has not been fulfilled. Jones v. Hartford Ins. Co., 560 So.2d 442 (La.1990); Weldon v. Republic Bank, 414 So.2d 1361 (La.App. 2d Cir.1982). Prematurity does not defeat the action or the court’s jurisdiction. Jones v. Hartford Ins. Co., supra.

We note that La.Code Civ.P. art. 929(A) provides that “[t]he declinatory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.” Further, “[i]t has been repeatedly held that where the trial and final disposition of an exception will put an end to a case, it should be disposed of before going into a trial on the merits so as to eliminate a protracted and unnecessary trial.” Clostio’s Heirs v. Sinclair Refining Co., 36 So.2d 283, 286 (La.App. 1 Cir.1948).

Considering this jurisprudence, we find no error in the trial court’s resolution of the exception of res judicata before addressing the exception of prematurity. This assignment of error is without merit.

| ^Motion for New Trial

Holloway’s final assignment of error concerns the trial court’s denial of Holloway’s motion for new trial. Holloway filed the motion for new trial, asserting that it had obtained new evidence, in the form of the testimony of Ms. Bodin, which bolstered its claims that Mr. Inzarella knew of the embezzlement scheme and also indicated that Mr. Inzarella benefited from the scheme by sending inflated billings to Holloway. According to Holloway, this was the first time that Ms. Bodin had waived her Fifth Amendment privilege and submitted to a deposition.

The Inzarella Firm protested that Ms. B odin’s testimony was not newly discovered evidence and that she had nothing new to offer. The trial court denied the motion, finding that Holloway neither presented evidence that Ms. Bodin was unavailable for the original trial nor established that her testimony was newly discovered evidence. Further, the trial court stated that he did “not believe that Ms. Bonin [sic] can add anything to the testimony that would change this Court’s opinion on the issue.”

Louisiana Code of Civil Procedure Article 1972 lists the peremptory grounds for a motion for new trial, as relevant herein:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When 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.

Further, La.Code Civ.P. art. 1973 addresses the discretionary grounds for a motion for new trial, stating that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” In order to meet his or her burden of proof on a motion for new trial on the basis of newly-discovered evidence, the moving |13party must prove: (1) that the evidence was discovered after the trial; (2) that the new evidence is not cumulative; (3) that the new evidence would tend to change the result of the case; and (4) that the new evidence could not have been discovered with due diligence before the trial was completed. Bennett v. Porter, 10-1088 (La.App. 3 Cir. 3/9/11), 58 So.3d 663. In reviewing a trial court’s ruling on a motion for new trial, the applicable standard of review is whether the trial court abused its discretion. Alfred v. Butler, 09-441 (La.App. 3 Cir. 11/4/09), 28 So.3d 1089.

Holloway contends that Ms. Bodin’s statement is the first time that she waived her Fifth Amendment privilege and testified about the embezzlement scheme. However, Holloway did not attempt to establish that Ms. Bodin refused to waive that privilege prior to the original hearing on the exceptions. The record indicates that Ms. Bodin pled guilty to the criminal charges stemming from the alleged embezzlement scheme some time before the hearing on the exceptions. The hearing on the exceptions was held on June 13, 2011, but Holloway did not obtain a sworn statement from Ms. Bodin until July 12, 2011. Further, Holloway submitted no evidence that they had attempted to obtain Ms. Bodin’s statement before the hearing on the exceptions or that they had attempted to secure her presence at the hearing by way of subpoena. Accordingly, we find no abuse of discretion in the trial court’s determination that Holloway had not satisfied its burden of proof with regard to whether Ms. Bodin’s testimony was newly discovered evidence.

Additionally, the trial court stated that Ms. Bodin’s testimony would not change the outcome of the ruling on the exceptions. A review of the record indicates that [ uHolIoway had already presented evidence in an attempt to establish its allegations of a sexual relationship between Ms. Bodin and Mr. Broussard and the theft. We find no abuse of discretion in the trial court’s determination that Ms. Bodin’s additional testimony regarding this issue would not change the outcome of the case.

This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment sustaining the exception of res judicata filed by the defendant, Inzarella, Feldman, and Pourciau, A Professional Corporation, and finding that the exception of prematurity was moot. Further, we affirm the trial court’s judgment denying the motion for new trial filed by the plaintiffs, Holloway Drilling Equipment, Inc. and Holloway Equipment Rentals, Inc. Costs of this appeal are allocated to Holloway Drilling Equipment, Inc. and Holloway Equipment Rentals, Inc.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

|,I disagree with the majority opinion. Louisiana Civil Code Article 3076 states, “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” The majority cites the following:

A compromise instrument is the law between the parties and must be interpreted according to the parties’ intent. It follows that the compromise instrument is governed by the same general rules of construction applicable to contracts.
When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. [Louisiana Civil Code] Article 2046 emphasizes that the process involves no further interpretation, as opposed to no interpretation at all. Because a compromise extends only to those matters the parties intended to settle, the scope of the transaction cannot be extended by implication. In applying this rule of construction, courts are guided by the general principle that the contract must be considered as a whole and in light of attending events and circumstances.
The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the instrument's four corners, and extrinsic evidence is inadmissible either to explain or to contradict the instrument’s terms. When a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to settle.

Ortego v. State, Dept. of Transp. & Dev., 96-1322, p. 7 (La.2/25/97), 689 So.2d 1358, 1368-64 (citations omitted).

li>The basis for barring a suit due to a compromise or settlement is res judicata.

[ U]nder La. R.S. 13:4231, as amended in 1990 effective January 1, 1991, res judi-cata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. Thus, the chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.

Terrebonne Fuel & Lube, Inc. v. Placid Refining Company, 95-654, 95-671, p. 12 (La.1/16/96), 666 So.2d 624, 632.

Given the above, I cannot find that Holloway intended to compromise its claims against the Inzarella Firm for theft when agreeing to settle a dispute over billing fees for accounting services rendered. Further, I cannot find that the subject of the compromise or settlement arises out of the same transaction or occurrence that necessitated that compromise or settlement.

The proposed majority cites language from, State ex rel. Sabine River Auth., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967 So.2d 585, to find that Holloway’s claims against the Inzarella Firm are res judica-ta. I authored State ex rel. Sabine River Auth., 967 So.2d 585 and feel a distinction must be made.

In State ex rel. Sabine River Auth., two general contractors were sued by the State for alleged construction defects related to the construction of the Cypress Bend Conference Center. Thereafter, one of those general contractors filed third party demands against its subcontractors. However, prior to the suit by the State, that general contractor had entered into a compromise with two of its subcontractors wherein all disputes related to the construction of the Cypress Bend Conference Center, known and unknown, were compromised, settled, and released.

Thus, in State ex rel. Sabine River Auth., when. the general contractor released the two subcontractors from any future claims, the necessary ^consequences of what it expressed were that further defects in the construction could arise due to the work of those subcontractors and it would be responsible for the results. This result is not absurd, as it is foreseeable by the general contractor that further construction defects may exist. The claims released were causally related to the subsequent claim as they arose out of the same transaction or occurrence, the building of the Cypress Bend Conference Center.

In contrast, here, we have an accounting firm attempting to skirt civil liability from alleged criminal activity due to a compromise over a disputed bill for services rendered. In this situation, there is no foreseeability by Holloway that signing the release would absolve the Inzarella Firm of any .damage due to criminal activity. Certainly, it is absurd to believe that Holloway could suffer the consequence of forgiving the theft of its funds because they settled a dispute related to a bill for services rendered, as the two are not causally related, i.e. they do not arise from the same transaction or occurrence.

Finally, I note that the unfortunate effect of this result is to, at least partially, condone criminal activity. Here, Holloway, an unsuspecting business entity, forgives any and all billing disputes, past, present, and future, with its former accounting firm. It is not unreasonable to suggest that this compromise of a civil dispute envisions civil, as opposed to criminal, activity. The majority opinion shields that accounting firm from civil responsibility for criminal activity that it, theoretically, knew transpired in its dealings with Holloway. In my view, this result runs afoul with public policy considerations, the State’s clean hands doctrine, and the statutory and jurisprudential precedent cited above. Therefore, I respectfully disagree with the proposed majority opinion.

      . Ms. Bodin is also referred to as Danielle Pellerin Guidroz and Danielle Bodin Guidroz in the record. We use the name contained in the petition.

      . Louisiana Civil Code Article 3073 was amended by the legislature in 2007 and renumbered as La.Civ.Code art. 3076. Former Article 3073 stated:
      Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them. The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.
      Current Article 3076 now states that “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.”

      . At the hearing on the motion for new trial, Holloway's attorneys stated that they were unsure if Ms. Bodin had been subpoenaed for the initial setting of the hearing on the exceptions. They also stated that the initial setting of the hearing on the exceptions had been continued by agreement for the purpose of taking Ms. Bodin's deposition. However, there is no indication that Holloway attempted to obtain Ms. Bodin's testimony prior to taking her sworn statement on July 12, 2011.


author: HARRISON, Judge Pro Tem.

text:
    Dayna Frazier HUDSON, Individually and as Administratrix of the Succession of McKenzie A. Hudson, Plaintiff-Appellant v. JAGER BOMB LLC., JBLLC Ins. Co., Shaw Malo Hall, Anna Elisabeth Hancock Hall, SMH Ins. Co., David M. Medlin, DMM Ins. Co., Ronnie Dale Chandler, RDC Ins. Co., William and Douglas Cox, Defendants-Appellees.
    No. 47,501-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Paul Loy Hurd, Monroe, LA, for Plaintiff-Appellant Dayna Frazier Hudson.

      Degan, Blanchard & Nash, by Sidney W. Degan, III, New Orleans, LA, Micah A. Gautreaux, Baton Rouge, LA, Travis Bourgeois, New Orleans, LA, for Defendant-Appellee First Financial Insurance Company.
    James A. Rountree, Monroe, LA, for Defendants-Appellees Jager Bomb, LLC, David M. Medlin and Shaw Malo Hall.
    Cameron Murray & Assoc, by Marcy L. Allen, Monroe, LA, for Defendant-Appel-lee Ronnie Dale Chandler.
    Lavalle B. Salomon, APLC, Monroe, LA, by Lavalle B. Salomon, for Defendants-Appellees William Cox and Douglas Cox.
    Before CARAWAY, SEXTON (Pro Tempore) and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge Pro Tem.

_JiThis case involves a death that allegedly arose from a physical altercation in a bar parking lot. The decedent’s mother sued the bar and its insurer. The trial court granted summary judgment in favor of the bar’s insurer, dismissing it from the suit on the basis that coverage was excluded under its policy’s assault and battery clause. The decedent’s mother appeals. We affirm.

FACTS

On June 8, 2010, McKenzie A. Hudson was at the Library Lounge in Monroe, Louisiana. As he was leaving, he was confronted in the parking lot by an intoxicated Douglas Cox, who hit him in the head twice. Hudson then fell to the ground. In December 2010, he died, allegedly as a result of the severe brain injuries he suffered in the parking lot.

Dayna Frazier Hudson, the decedent’s mother, filed a wrongful death/survival suit on June 3, 2011. Among the defendants was Jager Bomb, LLC, the entity that owned and operated the bar, and its principals, David M. Medlin and Shaw Malo Hall. The plaintiff alleged that these defendants failed in several respects, including (1) not complying with the rules and regulations governing entities that sell alcohol; (2) not having sufficient lighting and security; (3) not establishing reasonable safety and security policies; (4) not properly training employees and enforcing security and safety policies; and (5) not preventing Cox from becoming intoxicated.

On June 24, 2011, the plaintiff filed an amendment to her petition in which she added First Financial Insurance Company (FFIC), the insurer for Jager Bomb, LLC, as a defendant. She alleged that Cox hit her son without 12intending or expecting to cause life-threatening skull and brain injuries. Alternatively, she alleged that the injuries inflicted by Cox were neither life-threatening nor did they create or relate to the brain injury or other life-threatening injuries sustained by her son; instead those were caused when her son lost consciousness while standing and fell to the pavement, fracturing his skull.

On September 2, 2011, FFIC filed an answer in which it admitted issuing a policy to Jager Bomb, LLC. In addition to numerous other affirmative defenses, FFIC contended that the claims against it were barred by various policy exclusions, including “any Assault, Battery or Other Physical Altercation exclusion” or “any Liquor Liability Exclusion, Endorsement, and/or Amendment.”

On September 21, 2011, FFIC filed a motion for summary judgment. It argued that all claims asserted against it should be dismissed with prejudice because they fell under either the assault and battery exclusion or the liquor liability exclusion in its policy. The motion was opposed by the plaintiff, as well as Jager Bomb, LLC, Medlin and Hall.

The matter was argued before the trial court on October 28, 2011, and taken under advisement. On December 7, 2011, the trial court issued written reasons for judgment in which it found that the assault and battery exclusion in FFIC’s policy clearly and unambiguously excluded coverage in the instant case. The trial court also found FFIC had no duty to defend the suit. Holding that the assault and battery exclusion was dispositive, the trial |3court pretermitted consideration of the liquor liability exclusion. A judgment of dismissal with prejudice was signed on December 28, 2011.

The plaintiff appeals.

LAW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Palmer v. Martinez, supra.

A summary judgment may be rendered on the issue of insurance coverage alone although there is a genuine issue as to liability or the amount of damages. Beck v. Burgueno, 43,557 (La.App.2d Cir.9/17/08), 996 So.2d 404. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving that the incident falls within the policy’s terms. Summary judgment declaring a lack of coverage |4under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under, which coverage could be afforded. An insurer seeking to avoid coverage through summary judgment bears the burden of proving that some provision or exclusion applies to preclude coverage. Beck v. Burgueno, supra.

An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Because an insurance policy is a contract, the rules established for the construction of written instruments apply to contracts of insurance. The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. Washington v. McCauley, 45,916 (La.App.2d Cir.2/16/11), 62 So.3d 173, writ denied, 2011-0578 (La.4/29/11), 62 So.3d 115.

If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written and a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. Washington v. McCauley, supra. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Elliott v. Continental Casualty Company, 2006-1505 (La.2/22/07), 949 So.2d 1247. An insurance policy should not be interpreted in an unreasonable or strained |smanner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Washington v. McCauley, supra. The determination of whether a contract is clear or ambiguous is a question of law. Washington v. McCauley, supra.

POLICY PROVISIONS

The FFIC policy issued to Jager Bomb, LLC, included an assault and battery exclusion which, in relevant part, provided:

1. Exclusion a. of 2. Exclusions, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, SECTION I — COVERAGES, is replaced by:
This insurance does not apply to:
a. Assault, Battery Or Other Physical Altercation
“Bodily injury” or “property damage”:
(1) Expected or intended from the standpoint of any insured.
(2) Arising in whole or in part out of any “assault” or “battery” committed or attempted by any person.
(3) Arising in whole or in part out of any attempt by any person to avoid, prevent, suppress or halt any actual or threatened “assault” or “battery.”
(4) Arising in whole or in part out of any actual or threatened verbal or physical confrontation or altercation committed or attempted by any person, or any attempt by any person to avoid, prevent, suppress or halt any actual or threatened verbal or physical confrontation or altercation.
This exclusion l.a.(l) through a.(4) ... applies to all acts or omissions and all theories of liability (direct or vicarious) asserted against any insured, | (¡including but not limited to all theories of negligence, gross negligence, recklessness or intentional tort and shall not be subject to any severability or separation of insureds provision in the policy.

The policy defines “assault” as “any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force such as would give a victim reason to fear or expect immediate bodily harm.” “Battery” is defined as “wrongful physical contact with a person without his or her consent that entails some injury or offensive touching.”

DISCUSSION

The plaintiff argues that the policy language is ambiguous at least to the extent that the extraordinary injuries sustained by her son were beyond those the insured would expect or intend would arise from an assault at its establishment. She also distinguishes the exclusion clause language in all of the cases cited by the insurer as being grammatically dissimilar.

Specifically, the plaintiff argues that FFIC’s policy language formerly contained an “or” between the two sections of its assault and battery exclusion. She contends that the use of the disjunctive “or” was an important factor in the Third Circuit’s decision to dismiss FFIC in Brown v. Yacht Club, 96-757 (La.App.3d Cir.12/26/96), 685 So.2d 670, a case involving a battery outside a nightclub wherein the insurer was granted summary judgment on the basis that its assault and battery clause excluded coverage. Sometime after the Brown decision, the “or” between the two sections was removed from FFIC’s assault and battery exclusion language 17when it was apparently rewritten to include four sections. The plaintiff contends that this change suggests that FFIC intended to broaden its coverage to include extraordinary injury arising from assault and battery. According to the plaintiffs interpretation, the removal of the “or” means that all of the exclusion provisions must be read together. This construction would eliminate coverage only for the “intended” or “expected” injuries arising out of an assault and battery, as set forth in section a(l). Since her son’s assailant did not intend or expect to seriously injure or kill him, she maintains that coverage should be provided.

FFIC, on the other hand, argues that numerous cases in Louisiana jurisprudence have upheld the application of assault and battery exclusions in situations similar to the one presented here and dismissed the insurers.

Assault and battery exclusions have become commonplace in policies issued to operators of bars, restaurants and similar businesses with a party atmosphere to expressly exclude such acts from coverage. Hickey v. Centenary Oyster House, 97-1074 (La.10/20/98), 719 So.2d 421. As a result, Louisiana courts have been called upon to address their application in many lawsuits against these sorts of establishments. Our review of the jurisprudence reveals that the policy provisions in these cases are sometimes similar but infrequently identical. However, the conclusion we draw from the overwhelming majority of cases is that insurers that have assault and battery exclusions in their policies are generally dismissed from suits against their insureds arising from injuries or deaths following an assault or battery. This is true regardless of the theory of recovery put forth by the | ^plaintiff— whether it be negligence, intentional tort, nuisance, premises defect, or the like.

For example, see the following cases in which insurers were dismissed due to the assault and battery exclusions in their policies: Straughter v. Hodnett, 42,827 (La.App.2d Cir.1/9/08), 975 So.2d 81, writ denied, 2008-0573 (La.5/2/08), 979 So.2d 1286 [bar patrons stabbed by fellow patron; plaintiffs asserted nuisance claims]; Monton v. Thomas, 2005-926 (La.App.3d Cir.3/1/06), 924 So.2d 394 [bar patron allegedly hit fellow patron in the face with bottle; exclusion applies even if self-defense]; Proshee v. Shree, Inc., 2004-1145 (La.App.3d Cir.2/2/05), 893 So.2d 939 [hotel patron beaten and robbed in parking lot; exclusion applies even in face of allegations of premises defect claim]; Maise v. Cat’s Meow, Inc., 96-1998 (La.App.4th Cir.10/16/96), 683 So.2d 846 [patrons injured in altercation at bar; assault and battery exclusion applied irrespective of fault alleged by plaintiffs (whether negligence, intentional act or otherwise) where injuries arose out of battery]; Washington v. Spurlock, 97-2411 (La.App.4th Cir.12/17/97), 703 So.2d 1378, writ denied, 98-0173 (La.3/20/98), 715 So.2d 1214 [bar patron shot when caught in crossfire during robbery; assault and battery exclusion applicable despite allegations of negligence against bar owner because “[s]imply put the respondent was injured by a battery— no battery, no injuries.”]; Cortinez v. Handford, 490 So.2d 626 (La.App.2d Cir.1986) [bar patron sustained fractured ankle when knocked to floor by another patron; exclusion applied despite variety |flof allegations including bar’s failure to protect patrons, service of alcohol to intoxicated patrons, and failure to employ effective security personnel].

The Third Circuit dismissed FFIC from two lawsuits involving policy language similar to that found in the instant case. A primary difference in the language in FFIC’s policy in those cases and the present one was the inclusion of the word “or” between sections a(l) and a(2). In Jones v. Yacht Club, 96-300 (La.App.3d Cir.10/23/96), 682 So.2d 816, the plaintiff allegedly suffered injury as the result of a beating outside a nightclub. The trial court granted summary judgment in favor of the club’s insurer. The appellate court affirmed, finding that the policy language was unambiguous and that liability on the part of FFIC’s insured that might result from a battery on the club premises fell squarely under the assault and battery exclusion. The court held that there was “simply no coverage for the insured’s potential liability resulting from a battery, whatever the theory or theories of law the tort claimant advances in a potential action against First Financial’s insured.” In Brown v. Yacht Club, supra, a nightclub patron was seriously injured in an altercation with the club operators outside the club. FFIC’s motion for summary judgment was granted by the trial court; the |inappellate court affirmed, finding that section a(2) of the assault and battery was applicable. While noting its prior decision in the Jones case, the court also observed that the use of “or” between the provisions caused the sentence to be read disjunctively so that either element number one or element number two might result in exclusion of coverage.

However, in Gaspard v. Northfield Insurance Company, 94-510 (La.App.3d Cir.11/2/94), 649 So.2d 979, writ denied, 94-2906 (La.2/9/95), 650 So.2d 1166, the Third Circuit dealt with a grammatical construction argument similar to the one being made by the plaintiff in the instant case. There Mr. Gaspard was shot and killed during a robbery attempt as he left a bowling alley. His family sued several entities including the owner of the building where the bowling alley was located and its insurer. The trial court granted summary judgment in favor of the insurer dismissing it from the suit on the basis that its policy contained an assault and battery exclusion which was clear and unambiguous. The exclusion in that case stated:

2. Exclusions
This insurance does not apply to:
a. “Bodily injury” or “property damage”:
(1) expected or intended from the standpoint of any insured.
(2) arising out of assault and battery, or out of any act or omission in connection with the prevention or suppression of an assault and battery.

The appellants in Gaspard contended that the exclusion was ambiguous because, after reading the entire insurance policy, it was not clear whether to read clauses (1) and (2) conjunctively or disjunctively. lnThey pointed to other policy provisions where exclusions were connected either by the word “and” or “or.” The appellants argued that if the clauses were connected by “and,” then the clauses should be read conjunctively and the exclusion did not apply because it was a third party, not the insured, who shot Mr. Gaspard. However, the appellate court found that a reading of the entire policy revealed that not every exclusion was connected by “and” or “or,” thus negating their theory. Furthermore, the court noted that each clause at issue had a period after it which indicated the end of a thought and that each contained an exclusion entirely separate from the other. The appellate court affirmed the lower court, finding that there was no ambiguity due to grammatical construction and that the plain meaning of each clause was clear.

We have reviewed the policy language at issue here. We find no ambiguity in the assault and battery exclusion. Like the court in Gaspard, supra, we are not persuaded that all of the provisions of the exclusion must be read together. Each of the four provisions ends with a period and contains a complete and separate exclusion. Section a(2) of the exclusion excludes bodily injury arising out of any “assault” or “battery” by any person. There is no question that the physical attack upon McKenzie Hudson falls within the policy definition of a “battery” and that he suffered bodily injury as a result. Therefore, we find that the assault and battery exclusion in FFIC’s policy clearly excludes coverage in a situation such as | j2the attack upon the plaintiffs son. Like the trial court, we find that summary judgment in favor of FFIC is appropriate.

CONCLUSION

The trial court decision granting summary judgment in favor of First Financial Insurance Company is affirmed. Costs of this appeal are assessed to the appellant, Dayna Frazier Hudson.

AFFIRMED.

      . The exact language in the Jones policy was:
      EXCLUSION — ASSAULT OR BATTERY
      Exclusion a. of COVERAGE A (Section 1) is replaced by the following:
      a. "bodily injury,” "property damage,” or "personal injury”:
      (1) Expected or intended from the standpoint of any insured; or (2) Arising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery.
      The only substantial difference in the Brown policy was found in section a(l), which said “the insured” instead of "any insured.”

      . By contrast, in the Brown and Jones cases, the first of the two provisions in the assault and battery exclusion ended with a semicolon, arguably maiding the use of the word "or” between them more relevant.