author: PETERS, J. COOKS, J.

text:
    Ananias JOHNSON, et al. v. Robert L. JOHNSON, Jr., et al.
    No. 13-719.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Kenneth W. DeJean, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants: Ananias Johnson, Theresa Johnson.
    Rodney James Lacoste, Jr., Perrier & Lacoste, LLC, New Orleans, LA, for Defendants/Appellees: Robert L. Johnson, Jr., First Fleet, Inc., Suntrust Leasing Corp., United States Fidelity & Guaranty Co.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

liThe plaintiffs, Ananias Johnson and Theresa Johnson (the Johnsons), appeal a trial court judgment dismissing their suit for damages for the wrongful death of their son, Tertius Johnson. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

Tertius Johnson (Tertius) died as a result of injuries he sustained in a February 17, 2006 automobile accident which occurred in Iberia Parish, Louisiana. The accident occurred at the intersection of U.S. Highway 90 (Highway 90) and Hu-bertville Road at approximately 6:30 p.m. when the 1993 Mercury automobile driven by Tertius collided with a tractor-trailer driven by Robert Johnson, Jr. (Robert). Highway 90 at the accident location is a four-lane highway running generally east and west with a median separating the lanes. Hubertville Road runs generally north and south and intersects Highway 90 at a right angle. No traffic controls other than a stop sign are located at the intersection, but it is undisputed that traffic on Hubertville Road is required to yield to traffic on Highway 90. Although there are no street lights at the intersection, Highway 90 at that point is generally flat and open, and distance vision in both directions is significant. The speed limit on Highway 90 at the intersection is sixty-five miles per hour.

On July 5, 2006, the Johnsons brought a survival action and wrongful death suit against Robert; his employer, First Fleet, Inc.; the owner of the tractor-trailer rig, Suntrust Leasing Corporation; and United States Fidelity and Guaranty Company to recover their damages. The two-day trial on the merits began on May 14, 2012, and the evidence presented at trial raises few contested facts.

| ¡.Immediately before the accident, Terti-us was traveling west on Highway 90, and Robert was approaching the intersection from the north, intending to turn east onto Highway 90. Robert testified that he stopped at the intersection and looked at both the westbound and eastbound lanes before pulling into the median on the highway. He testified that it was dusk, but not dark, when he stopped at the intersection, and he observed lights in the westbound lane “four or five football fields” away. He then proceeded to the median in anticipation of completing his turn. When he reached the median, he was forced to wait on eastbound traffic on Highway 90 before making his left turn. During that time, the westbound lane of Highway 90 was blocked by his trailer with the only warning to oncoming traffic being the reflective tape on the side of the trailer. Robert testified that he had been stopped in the median for seven to ten seconds when Tertius’ vehicle struck the rear wheels of his trailer.

Also, immediately before the accident, Roger Manshack was driving west on Highway 90 approaching the Hubertville Road intersection when Tertius passed him and another vehicle at a high rate of speed. He testified that he and the driver of another vehicle were driving side-by-side when he observed a vehicle in his rear view mirror approaching at a high rate of speed. According to Mr. Manshack, Terti-us passed between the two vehicles down the center of the highway as both had to maneuver their vehicles to the shoulder to avoid a collision. He caught up with Terti-us when he was forced to stop for a red light, but when the light changed, Tertius accelerated to a high rate of speed and left Mr. Manshack behind again. Mr. Man-shack testified that Ross Armand, the passenger is his vehicle, dialed 911 to report Tertius’ unsafe driving, but as they continued west on Highway 90, he observed the crash. Mr. Manshack testified that he saw the trailer blocking the | ^highway, but that Tertius was traveling so fast “he never seen the truck.” He noted that after the impact, he observed two other vehicles go around the crash site without stopping.

Tertius was transported to a local medical facility where he was pronounced dead while still in the emergency room. Blood samples were taken, and subsequent tests of those samples established that Tertius had a blood-alcohol concentration of 0.11 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood. Additionally, the blood samples tested positive for the presence of marijuana, codeine, and valium. The level of codeine was forty-nine, or nineteen points above the therapeutic level for that substance; and the level of valium was 100, or fifty-one points above the therapeutic level for that substance. The physical evidence at the scene of the accident established without dispute that Tertius was traveling in excess of eighty miles per hour as he approached Robert’s trailer. Additionally, Ralph Ward of Jeanerette, Louisiana, testified that Tertius passed him on Highway 90 shortly before the accident and, if he had had a cell phone, he would have called 911 because of Tertius’ speed. Mr. Ward came upon the scene of the accident almost immediately after it occurred, but did not witness the accident.

At trial, both sides offered expert testimony. Michael Gillen, a Baton Rouge, Louisiana accident-reconstruction expert, testified for the Johnsons. According to Mr. Gillen, the width and opening length of the median was such that Robert did not have to leave the trailer blocking the westbound lane of Highway 90. Instead, he could have maneuvered his tractor-trailer rig at an angle such that its entire length could fit within the median opening, although in doing so Robert |4would prevent anyone eastbound on Highway 90 from making a left turn onto Hubertville Road.

With regard to Tertius’ part in the accident, Mr. Gillen testified that he attempted to calculate his perception reaction time (PRT). He suggested that this four-step process requires a recognition that an approaching driver must first perceive that something is presenting a danger and identify what the danger is. He must then go through the emotional process of deciding what to do and actually do it. After assuming that the reflectors on the side of the trailer met the standards of the Highway Regulatory Act requiring 600 feet of visibility, he concluded that a driver traveling sixty-five miles per hour would not be able to stop under normal braking conditions, but would have time if he slammed on his brakes. He also noted that the successful stopping range would vary depending on other conditions, including whether the oncoming driver had his high or low beam headlights on. At eighty-one miles per hour, his estimation of Tertius’ approaching speed, he stated that it would be impossible to avoid the accident if the first recognition of the reflectors occurred 600 feet from potential impact, but had Tertius been using low beams, recognition would come at a much closer distance. Mr. Gillen suggested that he found no evidence to suggest that Tertius’ substance impairment played a part in the accident. He suggested that the response time could have just as easily been reduced by other distractions such as adjusting the radio or looking in the rear view mirror.

On cross examination, Mr. Gillen acknowledged that neither Tertius’ intoxication nor the presence of the other substances in his system played a part in his analysis. When he was played a 911 tape of a telephone call from a passenger in another vehicle who had witnessed Tertius driving erratically to the point of) ^nearly running someone off the highway almost immediately before the accident, he testified only that he was of the opinion that Tertius had been changing lanes on the highway. When faced with the 911 scenario, Mr. Gillen acknowledged that he would consider that activity to be reckless. Additionally, he stated that he would defer to the opinion of a toxicologist concerning the effect of substance-induced impairment. Still, given his evaluation of the accident, he remained steadfast in his conclusion that Tertius did not have adequate time in which to react based on his evaluation of the physical evidence.

Roger Allen, a Friendswood, Texas transportation consultant involving commercial motor vehicles, also presented expert testimony for the Johnsons. Mr. Allen testified that Robert violated the commercial driver’s license (CDL) rules when he positioned the trailer across the westbound lane of Highway 90 on the evening of the accident, which contributed to the accident. According to Mr. Allen, Robert had a number of courses of action he could have taken to avoid even the possibility of an accident: he could have (1) waited for traffic to clear from both directions before entering the intersection to make his turn; (2) turned right (west) on Highway 90 and gone to the next intersection to maneuver into the eastbound lane; (3) pulled straight into the median and stopped at the left fog line of the eastbound lane of traffic; or (4) entered the median angling the tractor portion of the tractor-trailer rig to the left so as to clear the westbound lane entirely. Mr. Allen had no opinion concerning the effect Tertius’ actions had with regard to causing the accident.

Dr. William J. George, a New Orleans, Louisiana expert in pharmacology and toxicology, testified for the defendants concerning the effect of the substances found in Tertius’ system at the time of his death. According to Dr. George, Tertius |Bwas significantly impaired at the time of the accident and his impaired condition was a contributing factor to the accident. In reaching this conclusion, Dr. George compared the levels found in Tertius to levels normally required to produce effects on the body. He noted that with regard to marijuana, Tertius’ level of that substance caused him to conclude that he had used the substance within one to two hours before the accident. Dr. George testified that alcohol affects the central nervous system and vision, in addition to impairing reaction times and color recognition; vali-um is an anti-anxiety drug that also prolongs a reaction time and additionally can produce dizziness and drowsiness; codeine, like alcohol, affects the central nervous system and additionally restricts peripheral vision; and marijuana affects the central nervous system, affecting central tracking and critical tracking and can result in temporal distortion.

Dean Tekell, a Lafayette, Louisiana civil engineer recognized by the court as an expert in the fields of highway design, traffic engineering, and accident reconstruction, testified for the defendants. Mr. Tekell testified that an unimpaired driver would have an unobstructed view of the intersection approximately 3,800 feet east of the intersection on Highway 90, even at the time of the evening when the accident occurred. According to Mr. Tekell, it would have taken Robert approximately 9.7 seconds to move from the stop sign at Hubertville Road to the median location at the time of the accident. During that traverse time as well as the seven to ten seconds it sat at the intersection, he was of the opinion that the tractor-trailer rig should have been visible to a driver situated 3,800 feet east of the intersection on Highway 90. Using eighty-one to eighty-five miles per hour as Tertius’ approaching speed and the physical evidence gathered from the scene, Mr. Tekell calculated Ter-tius’ impact speed to be sixty-two miles per hour. With |7regard to the reflection tape on Robert’s trailer, Mr. Tekell disagreed with Mr. Gillen’s 600-foot-site limitation testimony and suggested that studies accepted in the industry found that the tape was visible in dark environments 1,000 to 2,000 feet away, even with the use of low-beam headlights. Based on this opinion, Mr. Tekell concluded that Tertius could have easily stopped his vehicle within the visibility parameters of the reflection tape. Furthermore, Mr. Tekell expressed the opinion that it was physically impossible for the tractor-trailer rig to be positioned completely in the median as suggested by Mr. Allen. Finally, Mr. Tekell opined that Tertius’ substance impairment was a contributing factor in causing the accident because of the delayed perception time associated with that impairment.

Upon completion of the evidentiary phase of the trial, the trial court took the matter under advisement, and on June 25, 2012, it filed written reasons for judgment wherein it found Tertius equally at fault with Robert and his employer in causing the accident. After reaching this conclusion, the trial court applied La.R.S. 9:2798.4 to its finding of fault and rejected the. Johnsons’ claim for damages.

The Johnsons perfected this appeal wherein they raise two assignments of error: (1) the trial court erred as a matter of law by finding Tertius fifty percent at fault in causing the accident; and (2) the trial court erred as a matter of law in rejecting the Johnsons’ claim for damages through its interpretation and application of La. R.S. 9:2798.4.

OPINION

In its reasons for judgment, the trial court set forth its factual analysis in intricate detail and applied those factual findings to the law applicable to this accident. In doing so, the trial court found that Robert had a duty to stop at the stop sign on Hubertville Road and not enter the intersection “unless and until such |smovement [could] be made with reasonable safety.” La.R.S. 32:104(A). The trial court found that Robert breached that duty and because of that breach, he was negligent and his negligence was a legal cause of the accident. The trial court further found that Tertius had a duty not to drive at an excessive speed and not to drive while impaired because of illegal substance use. The trial court found that Tertius breached both of these duties and that the breach of these duties was a legal cause of the accident. Based on the facts before it and the expert testimony presented by both sides, the trial court concluded that fault should be assigned equally to both parties.

This is a fact intensive case, and it is well settled that findings of fact made by a trial court are reviewed on appeal pursuant to the manifest error — clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). A factual finding based upon a credibility determination-may not be disturbed on appeal absent manifest error. Phillips v. Fisher, 93-928 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, unit denied, 94-813 (La.5/6/94), 637 So.2d 1056. Additionally, “[w]here the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990).

In their first assignment of error, the Johnsons argue that the trial court committed an error of law in its apportionment of fault equally between the parties. However, the apportionment of fault by the trier of fact is also subject to the manifest error-clearly wrong standard of review. Additionally,

The law provides we must give great deference to the allocation of fault as determined by the trier of fact. Clement v. Frey, 95-1119, 95-1163, p. 7 (La.1/16/96), 666 So.2d 607, 610. We are also aware that the allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and that any allocation by the factfinder within that range cannot be clearly wrong. Foley v. \ ^Entergy La., Inc., 06-0983, p. 32 (La.11/29/06), 946 So.2d 144,166. Only after making a determination that the trier of fact’s apportionment of fault is clearly wrong can an appellate court disturb the award. Clement, 95-1119 at 7, 666 So.2d at 611.

Fontenot v. Patterson Ins., 09-669, p. 22 (La.10/20/09), 23 So.3d 259, 274 (emphasis, added).

In our review of the allocation of fault by the trial court:

various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferi- or, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Watson v. State Farm, Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985). Additionally, “[tjhese same factors guide the appellate court’s determination as to the highest or lowest percentage of fault that could reasonably be assessed.” Duncan v. Kansas City S. Ry. Co., 00-66, p. 11 (La.10/30/00), 773 So.2d 670, 681.

Applying these factors to our analysis of the trial court’s apportionment of fault, and giving great deference to the trial court’s determination, we find no manifest error in the trial court’s conclusion that both Robert and Tertius were equally at fault in causing the accident of February 17, 2006. Thus, we find no merit in the Johnsons’ first assignment of error.

Their second assignment of error, however, does raise a question of law. After concluding that Tertius was fifty percent at fault in causing the accident of February 17, 2006, the trial court also concluded that La.R.S. 9:2798.4 precluded any damage recovery by the Johnsons. “Appellate review of questions of law is to discern whether the district court’s interpretative decision is legally correct.” Forum for Equality PAC v. McKeithen, 04-2477, 04-2523, p. 22 (La.1/19/05), 893 | lnSo.2d 715, 723. “If legal error is found, the legal conclusions of the district court are thus subject to de novo review by this Court.” Id.

Louisiana Revised Statutes 9:2798.4 provides:

A.Neither the state, a state agency, or a political subdivision of the state nor any person shall be liable for damages, including those available under Civil Code Article 2315.1 or 2315.2, for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who:
(1) Was operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration of 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or
(2) Was operating a motor vehicle, aircraft, watercraft, or vessel while he was under the influence of any controlled dangerous substance described in R.S. 14:98(A)(l)(c) or R.S. 40:964.
B. The provisions of this Section shall not apply unless:
(1) The operator is found to be in excess of twenty-five percent negligent as a result of a blood alcohol concentration in excess of the limits provided in R.S. 14:98(A)(l)(b), or the operator is found to be in excess of twenty-five percent negligent as a result of being under the influence of a controlled dangerous substance described in R.S. 14:98(A)(l)(c); and
(2) This negligence was a contributing factor causing the damage.
C. For purposes of this Section, “damages” include all general damages, including those otherwise recoverable in a survival or wrongful death action, which may be recoverable for personal injury, death or loss, or damage to property by the operator of a motor vehicle, aircraft, watercraft, or vessel or the category of persons who would have a cause of action for the operator’s wrongful death.
D. The provisions of this Section shall not apply if the operator tests positive for any controlled dangerous substance covered by the provisions of R.S. 14:98(A)(l)(c) or R.S. 40:964 and the operator is taking that substance pursuant to a valid prescription for the identified substance or a health care provider verifies that he has prescribed or furnished the operator with that particular substance.
E. Unless the operator’s insurance policy provides otherwise, nothing in this Section shall be construed to preclude the operator |nfrom making a claim under his or her own policy for first party indemnity coverages.

The Johnsons do not contest the finding that Tertius’ blood-alcohol concentration exceeded the 0.08 percent limit set by La.R.S. 9:2798.4(A)(1) or that he had substantial amounts of other controlled dangerous substances in his system as prohibited by La.R.S. 9:2798.4(A)(2). Instead, they argue that regardless of his level of intoxication or amount of controlled dangerous substances in his system, La.R.S. 9:2798.4 does not apply to preclude recovery absent a finding that the level of intoxication or controlled dangerous substance influence level “was a contributing factor causing the damage.” La.R.S. 9:2798.4(B)(2). The trial court fell into error, according to the Johnsons, by concluding that a finding of a level of intoxication of 0.08 or above and/or the presence of a controlled dangerous substance in Tertius’ system was sufficient to trigger the application of La.R.S. 9:2798.4 without consideration of anything else. Specifically, the Johnsons argue that nothing in the record supports a finding that Tertius’ condition contributed to causation. We agree that had the trial court reached the conclusion as argued by the Johnsons, that conclusion would have been legal error. However, we do not find that the record supports a finding that the trial court misapplied the statute.

With regard to Tertius’ fault in causing the accident, the trial court factually found that Tertius was driving eighty-one miles per hour in a sixty-five mile per hour zone at night; that he was “impaired with a blood alcohol content of .11”; that he had levels of valium and codeine in excess of therapeutic levels; and that he had ingested marijuana within two hours of the accident. Based on these factual findings which are not disputed by the Johnsons, the trial court concluded that “[Tertius’] speeding and illegal drug use likewise contributed to the accident.”

| ^Considering the evidence before the trial court, we find no manifest error in the trial court’s factual determination that Tertius’ intoxication and controlled dangerous substance use contributed to causation of the accident of February 17, 2006. Mr. Gillen testified that he did not consider Tertius’ substance impairment in his opinion, and he limited his analysis to what he derived from the physical evidence at the scene. However, he did testify that he would defer to the opinion of a toxicologist concerning the effect of any substance-abuse impairment. Mr. Allen’s testimony related only to what he considered Robert should have done to avoid creating the dangerous situation in the first place. Even Mr. Tekell, who testified for the defendants, testified only concerning the ability of an approaching vehicle to observe the presence of the trailer. In doing so, his opinion conflicted with that of Mr. Gillen. On the other hand, Dr. George was the only expert who specifically testified to the effect of the substances on Tertius’ ability to function, and he concluded that Tertius was significantly impaired at the time of the accident and that his impairment contributed to the accident.

We find that the record does contain evidence addressing the effect of Tertius’s substance abuse impairments at the time of the accident and that the trial court obviously accepted that evidence in support of it reasons for judgment. We find no manifest error in that factual finding by the trial court. Furthermore, we find no legal error in the trial court’s application of La.R.S. 9:2798.4. The Johnsons’ second assignment of error lacks merit as well.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court rejecting the claims for damages by the plaintiffs, Ananias Johnson and Theresa Johnson, against the defendants, Robert L. Johnson, Jr.; First Fleet, Inc.; Suntrust Leasing | ^Corporation; and United States Fidelity and Guaranty Company. We assess all costs of this appeal against Ananias Johnson and Theresa Johnson.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.

Dissents.

1 ,This case involves a left-turning eighteen-wheeler entirely blocking the roadway in use by on-coming motorists at twilight on a busy highway. The truck driver asserted he made the left-turn despite the fact that he saw on-coming traffic because it is hard to get an opportunity to make such a turn on that roadway. His attorney candidly admitted this at oral argument. All that was required to make a safe left-turn in this instance was patience. Louisiana Revised Statutes 32:104 imposes a mandatory duty on the left-turning motorist not to attempt a left turn across the roadway until it can be “made with reasonable safety.” Additionally, our jurisprudence has established that truck drivers, as specially trained operators of vehicles, are subject to a higher standard when assessing their degree of responsibility in an accident. They are “superior actor[s] in the eyes of the law.” Davis v. Witt, 02-3102, p. 13 (La.7/2/03), 851 So.2d 1119, 1128. The truck driver in this case did not want to wait as long as needed to safely make a left turn, at twilight, and he felt the oncoming drivers should have stopped to let him proceed. That is not what the law required of him. We have often held that “A left-turn is a dangerous maneuver which must not be undertaken until the turning motorist 12ascertains that the turn can be made in safety. A left-turning motorist involved in an accident is burdened with a presumption of liability and the motorist must show he is free of negligence.” Reed v. State Farm Mutual Auto. Ins. Co., 929 So.2d 871, 874-75 (La.App. 3 Cir. 7/12/06) (emphasis added). See also Thomas v. Champion, 603 So.2d 765 (La. App. 3 Cir.1992) cited in Reed.

Louisiana law imposes a very high duty of care on the left-turning motorist and presumes he is liable when an accident occurs during his left-turn maneuver. Here, the truck driver was blocking the entire roadway, and purposefully failed to yield the right-of-way to all on-coming motorists including Tertius Johnson (Tertius). As the left-turning motorist, this truck driver bears full responsibility for breach of his superior duty as a superior actor. See Miller v. Leonard, 588 So.2d 79 (La. 1991). The impaired driver in this case is the victim of the truck driver’s breach of his statutorily imposed duty which he intentionally breached merely for lack of patience. Had this truck driver obeyed the mandatory law this deadly accident would not have occurred. This is true regardless of Tertius’ impairment. One expert testified at trial that this accident would have occurred even if Tertius had not been impaired. According to the expert at trial, the only way an on-coming motorist could see this trailer straddling the roadway at twilight was to notice some sort of reflective tape on the body of the trailer visible to an on-coming motorist only if that motorist’s vehicle’s high beam headlights were activated. Tertius had only his low beam lights on at the time of the accident. He was not legally required to turn on his “high beam lights.”

No doubt the impaired driver in this case bears some responsibility for this deadly accident. Nevertheless, to find him more than 25% at fault assigns toojjlarge a portion of responsibility for this accident on that driver, and insulates the truck driver from all responsibility for his extremely dangerous and egregiously negligent action. The majority ruling ascribes too little weight to three important factors: (1) the law imposes a very high duty of care on this truck driver; (2) he clearly intentionally breached his duty merely for lack of patience; and (3) truck drivers, as specially trained individuals, are “superior actor[s] in the eyes of the law [ ] held to a higher standard of care to the motoring public.” Witt, 851 So.2d at 1128-29, and cases cited therein. Thus, the analysis for assigning degrees of fault in this case begins with 100% responsibility on the truck driver. I do not believe the legislature, by enacting the 25% cut off rule for an impaired driver involved in an accident, intended to immunize the truck driver in this case from the consequence of his egregious conduct. This truck driver posed a deadly threat on the roadway to every on-coming motorist, and only the fate of Tertius Johnson spared the other motorists soon to confront the same disaster.

I believe the assessment of 50-50 liability in this case is manifest error. I also believe the greatest responsibility for this tragic accident lies with the left-turning truck driver. For the reasons stated I must respectfully dissent.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Paul BROUSSARD.
    No. 13-415.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      John Foster DeRosier, District Attorney — 14th Judicial District Court, Karen C. McLellan, Assistant District Attorney— 14th Judicial District Court, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Todd Samuels Clemons, Lake Charles, LA, for Defendant/Appellant, Paul Brous-sard.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| defendant was convicted of attempted sexual battery for inappropriately touching an eleven-year-old girl and was sentenced to twelve and one-half years at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant argues the trial court improperly considered evidence of other crimes and the evidence was insufficient to support the conviction. Considering the testimony of the victim alone was sufficient to prove the elements of this sexual offense, we affirm Defendant’s conviction and sentence.

I.

ISSUES

Defendant raises the following assignments of error:

(1) the trial court erred in considering other crimes evidence without articulating an appropriate use of this evidence under La.Code Evid. arts. 404(B) and 412.2;
(2) the trial court erred by admitting the other crimes evidence under a preponderance of evidence standard;
(3) trial counsel was ineffective in failing to properly challenge the admissibility of the other crimes evidence; and,
(4) the evidence was insufficient to support a conviction for attempted sexual battery.

II.

FACTS AND PROCEDURAL HISTORY

In the summer of 2007, J.B., an eleven-year-old girl, spent the night |2at Defendant Paul Broussard’s home. J.B. was good friends with Defendant’s daughter, Alexis, and since kindergarten, she would frequently sleep over. On the particular evening which forms the basis of this prosecution, J.B. testified that she was sleeping on the couch when Defendant picked her up to put her in bed. In the process of carrying J.B., he put his hand in her underwear and touched her vaginal and anal area. In December 2007, J.B. first told her friend Emily about the incident. Emily testified that beyond this incident, J.B. once told her that sometimes Defendant would tickle her below the waist and occasionally touch her inappropriately. On March 3, 2008, J.B. told her aunt who then told J.B.’s mother.

When a formal investigation began on March 12, 2008, Defendant told detectives that he was aware of the allegations through the elders of his church. He maintained that he was falsely accused. Defendant’s wife, Julie Broussard, further testified that she was surprised by the allegations as her husband was not the type to engage in these actions. On March 17, 2008, J.B. was interviewed at the Child Advocacy Center (CAC) where she identified on a picture of a girl that Defendant touched her in her vaginal area.

A grand jury indicted Defendant for sexual battery, a violation of La.R.S. 14:43.1. During the course of the proceedings, the State filed its notice of intent to introduce evidence of similar sexual offenses committed by Defendant with victim, M.W.

At a Prieur hearing on March 9, 2010, M.W. testified that she often babysat for Defendant and Julie from the time she was fifteen. She slept either on the couch or in the bed of one of their children. About ten years prior to the | shearing, M.W. arrived at Defendant’s home planning to sleep there. Defendant suggested she sleep in the bedroom he shared with Julie, who was at work. He followed M.W. to the bedroom, got into bed with her, tried to kiss her, and put his hands up her shirt. M.W. repeatedly pushed Defendant away until he ultimately stopped. M.W. told her mother about the incident a few hours later, but she did not report it to the police. While Julie denies ever speaking to M.W. about the incident, M.W. testified that she informed Julie, who responded by saying, “I cannot believe he has done this again.” In approximately 2003, Defendant sent M.W. a card apologizing for his behavior. He also wrote a letter in which he apologized and asked for forgiveness.

In the Prieur hearing, the trial judge admitted evidence of the prior acts involving M.W. because the facts were similar and showed “lustful predisposition to have sexual contact with young teenage girls.” On December 15, 2010, the trial judge found Defendant guilty of attempted sexual battery, a violation of La.R.S. 14:27 and 14:43.1. Referring to the M.W. evidence admitted at trial, the judge commented, “[t]o be honest with you, but for that testimony, I probably would not have convicted [Defendant] ... It was the evidence that made the difference between guilty and not guilty.” He sentenced Defendant to twelve and one-half years at hard labor, without benefit of parole, probation, or suspension of sentence, and with credit for time served. The trial judge denied Defendant’s motions for post-verdict judgment of acquittal and for new trial.

_kin.

LAW AND DISCUSSION

Sufficiency of Evidence

When issues are raised on appeal as to both sufficiency of evidence and other trial errors, the appellate court should first review the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992). The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, ceH. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

In State v. Simon, 10-1111, p. 7 (La. App. 3 Cir. 4/13/11), 62 So.3d 318, 323, writ denied, 11-1008 (La.11/4/11), 75 So.3d 922, this court upheld a verdict of sexual battery, noting “the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even if there is no physical evidence.” The case involved a six-year-old victim who testified in a CAC interview that she awoke when the defendant pulled down her pants and touched her “ ‘in’ her ‘behind[.]’ ” Id. During the interview, the victim used a diagram to circle the part of her body where the defendant touched her. The victim’s older brother testified his sister had told him about the incident, and he told their mother. Because the jury obviously found the victim’s version of the events to be credible, this court concluded that it would not second-guess that credibility determination and affirmed the defendant’s conviction.

| -jHere, J.B. testified Defendant picked her up while she was sleeping and placed his thumb in her vagina while he carried her. In a CAC interview, she identified on a picture where Defendant touched her. Furthermore, she told her friend Emily and her aunt about the incident. The trial judge convicted Defendant of attempted sexual battery, indicating that he believed all the witnesses testified truthfully. Following Simon, J.B.’s testimony alone was sufficient to satisfy the elements of attempted sexual battery. It is not our place to second-guess the judge’s determination of credibility. This assignment of error lacks merit.

Errors Involving Admission and Consideration of Other Crimes Evidence

Defendant further contends that the trial court improperly considered evidence of Defendant’s prior offense with M.W. This argument is moot as J.B.’s testimony alone was sufficient to support Defendant’s guilty verdict. In addition, as the past crimes evidence was not necessary to attain the conviction, we need not consider whether trial counsel was ineffective in failing to challenge its admissibility. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Even if the other crimes evidence was necessary, Defendant’s argument as to its admissibility and use fails. The evidence was properly admitted in the Prieur hearing under a preponderance of the evidence standard. See La.Code Evid. art. 1104; Huddleston v. U.S., 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Furthermore, Louisiana Code of Evidence Article 412.2 states, in pertinent part that:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which | ^indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Here, the trial judge indicated in his judgment that M.W.’s testimony “tendfed] to corroborate J.B.’s testimony because it show[ed] interest in younger [women], younger girls, little girls and [inappropriately] touching them.” In accordance with La.Code Evid. art. 412.2, the judge only considered the evidence to show Defendant’s lustful disposition towards younger women. As such, the evidence was properly considered.

Errors Patent

In accordance with La. Code Crim.P. art. 920(2), we have conducted a thorough review of the record on its face and find no errors patent.

IV.

DISPOSITION

For the foregoing reasons, we affirm Defendant’s conviction and sentence for attempted sexual battery.

AFFIRMED.

      . The victim's initials are used to protect her identity in accordance with La.R.S. 46:1844(W).

      . The alleged incident occurred in 2007. Since that time, La.R.S. 14:43.1 has been amended twice. See 2008 La. Acts, No. 33, effective August 15, 2008; 2011 La. Acts, No. 67, effective August 15, 2011.


author: GREMILLION, Judge.

text:
    Toby J. BROUSSARD v. BROWN’S FURNITURE OF LAFAYETTE, INC., et al.
    No. 13-596.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Rehearing Denied Jan. 15, 2014.

      Jacob B. Fusilier, J. Wendel Fusilier, Attorneys at Law, Platte, LA, for Defendants/Appellees Brown’s Furniture of Lafayette, Inc., Jasper J. Fontenot.
    John Martin Jefcoat, Robert Mark Martina, Britney L. Hebert, Gallow Jefcoat, L.L.P., Lafayette, LA, for Plaintiff/Appellant Toby J. Broussard.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

| ]Toby J. Broussard appeals the dismissal granted to the defendants, Brown’s Furniture of Lafayette, Inc. (Brown’s), and Jasper Fontenot, pursuant to an exception of res judicata. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Broussard alleges that he was injured on May 23, 2009, when Fontenot, his supervisor at Brown’s, grabbed him and violently shook him. As a result of this incident, Broussard initiated a claim for workers’ compensation benefits. He also filed the instant civil suit.

The parties successfully mediated the workers’ compensation claim on April 7,2011. Broussard executed a receipt and release of all claims on May 10, 2011. The settlement was approved, and Broussard’s claim was dismissed on May 12, 2011. The defendants then filed an exception of res judicata in which they asserted that the dismissal of the workers’ compensation proceeding acted to preclude the district court matter. Broussard sought to introduce the mediation agreement to demonstrate that only the workers’ compensation claim was intended to be resolved. Brown’s and Fontenot moved to strike the mediation agreement on the grounds that its introduction was prohibited by La.R.S. 9:4112, governing the confidentiality of mediation proceedings. The trial court struck the mediation agreement and maintained the exception. Broussard then took this appeal.

ASSIGNMENTS OF ERROR

Broussard assigns the striking of the mediation agreement and the granting of the exception as two errors committed by the trial court.

| .ANALYSIS

Res judicata is governed by 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.

A valid compromise can form the basis for an exception of res judicata. Atwell v. Nat’l Safety Consultants, Inc., 97-1561 (La.App. 3 Cir. 4/1/98), 713 So.2d 495, writ denied, 98-1866 (La.10/30/98), 727 So.2d 1164. “A compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” La.Civ.Code art. 3080. In the context of workers’ compensation matters, it is the settlement document that governs the relations between the parties and not the workers’ compensation judge’s order of approval or the judgment of dismissal. Tyson v. Thompson Home Health, 10-1040 (La.App. 3 Cir. 3/16/11), 59 So.3d 509, writ granted, 11-760 (La.6/3/11), 63 So.3d 1020, writ denied as improvidently granted, 11-760 (La.10/25/11), 79 So.3d 246.

In the present matter, the receipt and release executed by Broussard was introduced in support of the exception of res judicata. That document reads, in pertinent part (Emphasis added):

LRECEIPT AND RELEASE

WHEREAS, on or about May 23, 2009, Toby Broussard was employed by Brown’s Furniture of Lafayette as a tire service technician when he claims to have sustained physical injuries while in the course and scope of his employment;
WHEREAS, Toby Broussard has claimed that as a result of said accident, he has required medical treatment com-pensable under the Louisiana Workers’ Compensation Laws and, therefore, is entitled to receive and be paid indemnity and workers’ compensation medical benefits for the period of his disability plus all medical expenses;
WHEREAS, Brown’s Furniture of Lafayette and Stonetrust Commercial Insurance Company specifically deny that Toby Broussard sustained a physical injury by accident that arose out of and in the course and scope of said employment and deny that he is entitled to any benefits whatsoever;
WHEREAS, Toby Broussard, a person of the full age of majority and a resident of and domiciled in the Parish of Lafayette, State of Louisiana, who declared that he and Brown’s Furniture of Lafayette and Stonetrust Commercial Insurance Company have entered into negotiations for the purpose of adjusting their differences and putting an end to any future litigation and have mutually agreed upon an amicable compromise and settlement of any and all claims, demands, actions, suits, debts, charges, liens or damages of any kind whatsoever, which the claimant has or may hereafter acquire against Brown’s Furniture of Lafayette and Stonetrust Commercial Insurance Company, their respective officers, directors, owners, managers, employees, agents, subsidiary and/or related companies, associates, representatives, insurers, successors, underwriters and/or assigns arising out of or in any way connected with any accidents or injuries sustained by Toby Broussard while employed by Brown’s Furniture of Lafayette prior to the date of the settlement herein, including specifically but not exclusively, the alleged accidental injuries of May 23, 2009.

NOW, THEREFORE KNOW ALL MEN BY THESE PRESENTS;

That for and consideration of the payment by Stonetrust Commercial Insurance Company of the sum of ONE HUNDRED TWENTY THOUSAND ($120,000.00) DOLLARS to Toby Brous-sard, receipt of which is hereby acknowledged, Toby Broussard does hereby remise, release and forever discharge Brown’s Furniture of Lafayette and Sto-netrust Commercial Insurance Company, their respective officers, directors, owners, managers, employees, agents, subsidiary and/or related companies, associates, representatives, |4successors, insurers, underwriters and/or assigns from any and all manner of debts, claims, liens, demands, charges, actions, suits, damages, liabilities of any kind whatsoever, whether now known or hereinafter discovered, which he had, has or may hereafter acquire, arising out of any accidents or injuries sustained by him while employed by Brown’s Furniture of Lafayette in any capacity prior to the date of the settlement herein, including specifically, but not exclusively, the alleged accidental injury of May 23, 2009.
The release hereby granted includes, without limitation, all manner of claims, actions, suits, liens, debts, damages or injuries whatsoever, in law or equity, whether growing out of Louisiana Workers’ Compensation Law, the Longshore and Harbors Workers Compensation Act; entitlements from lawful [sic] discrimination under Louisiana statute or under any other law or right, whether said law is federal law or state law; all tort under the Louisiana Civil Code and its ancillaries, whether derived or arising from. Article 2315 et seq., strict liability, or liability under LSA-R.S. 46:2251 et seq., Liability under 42 U.S.C. Sect. 12101 et seq. (Americans with Disabilities Act); liability under 29 U.S.C. 2601 et seq. (Family Medical Leave Act); or any other liability whatsoever arising out of the aforementioned accident, regardless of the origin of the laws.
Toby Broussard understands that in executing this Receipt and Release, he is releasing and giving up every right he has ever had against the parties released herein, and that he is signing this Release freely, willingly and without duress or promise, Toby Broussard further realizes that he is giving up the right to any further-money or benefits from or on behalf of any of the parties released herein.

Aspects of a claim that were not intended to be covered by the release are generally not barred. Holloway Drilling Equip., Inc. v. Bodin, 12-355 (La.App. 3 Cir. 11/7/12), 107 So.3d 699. The same rules of contractual interpretation apply to compromises as to other contracts. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741. That includes the maxim that the intent of the parties is ordinarily determined by examining the four corners of the document. Id. Extrinsic evidence may be introduced only when terms are susceptible of more than one meaning, when there is uncertainty or ambiguity in the language employed, or when the intent cannot be ascertained within the four corners of the document. Id. When | fithe intent can be ascertained within the four corners of the document, its interpretation is a matter of law and not of fact. Id.

In the present matter, we find no ambiguity in the language of the release Brous-sard executed. Had Broussard intended to release Brown’s and Fontenot only for the workers’ compensation claim, he could easily have reserved the present matter specifically. He could have omitted the language encompassing all damages or injuries from the May 23, 2009 incident and the language specifically referencing his release of tort claims. He could have insisted in omitting the language indicating that he was “releasing and giving up every right he has ever had against the parties,” and that he realized that he was “giving up the right to any further-money or benefits from or on behalf of any of the parties released.” The inclusion of these absolute expressions of complete and total release leaves no room for questioning the intent to release all claims arising from the May 23, 2009 incident.

Accordingly, the trial court did not err in refusing to consider the extrinsic evidence offered by Broussard. Further, it did not err in maintaining the exception of res judicata. The judgment of the trial court dismissing Broussard’s demands against Brown’s and Fontenot is affirmed. All costs of this appeal are assessed against plaintifl/appellant, Toby J. Brous-sard.

AFFIRMED.

      . Louisiana Revised Statute 9:4112 provides that “all written and oral communications and records” made during a mediation are exempt from disclosure except in specific circumstances. Those circumstances are not present here. The receipt and release was executed after the mediation, so the statute does not even arguably apply.


text:
    ZURICH AMERICAN INSURANCE COMPANY v. Paul J. COX, et al.
    No. 13-630.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Rehearing Denied Jan. 15, 2014.

      George A. Flournoy, Flournoy & Dog-gett, APLC, Alexandria, LA, In Proper Person.
    Jacques B. Pucheu, Jr., Pucheu, Pucheu & Robinson, Eunice, LA for Defendant/Appellant: George A. Flournoy.
    Joseph Payne Williams, Sr., R. Bray Williams, Williams Family Law Firm, LLC, for Defendant/Appellee: Paul J. Cox.
    Valerie T. Schexnayder, Robieheaux & Collins, Baton Rouge, LA, for Plaintiff/Ap-pellee: Zurich American Ins. Co.
    Court composed of SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

| ¶ This matter involves a concursus proceeding invoked by Zurich American Insurance Company (Zurich) to resolve the dispute over attorney fees between George A. Flournoy and Paul J. Cox, both of whom represented Sheila and Rubin Webster in consolidated personal injury actions. An intervention filed by Flournoy in the personal injury suit was dismissed, and Cox successfully argued in the concur-sus proceeding that the dismissal was res judicata as to Flournoy’s claims for attorney fees. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The Websters were involved in a motor vehicle accident on December 29, 2008. They hired Flournoy, an attorney from Rapides Parish, to prosecute their personal injury claims against Zurich and its insureds in Evangeline Parish. They filed separate suits that were consolidated. The matters were close to trial in March 2010, when the trial judge granted Zurich a continuance. In May 2010, the Websters terminated Flournoy’s representation and retained Cox, a Calcasieu Parish attorney. Flournoy intervened in the Websters’ suits to preserve his claim for fees. Cox successfully negotiated a settlement from Zurich through mediation in December 2010.

In February 2011, Cox forwarded Flour-noy a joint motion to deposit the attorney fee funds into the registry of the court. Flournoy proposed a number of changes to the joint motion, which Cox incorporated before returning the joint motion to Flour-noy for execution.

Flournoy then forwarded to all counsel a motion and order for dismissal of his intervention without prejudice. Cox rejected the dismissal without prejudice. 12Then Flournoy sent a second dismissal of the intervention with prejudice, but reserving his claim for attorney fees. Cox rejected this, too.

On March 4, 2011, Flournoy filed civil suit number 241,015 on the docket of the Ninth Judicial District Court in Rapides Parish, entitled “George A. Flournoy v. Paul J. Cox, et al.,” in which Flournoy named Cox and the Websters as defendants. Shortly thereafter, Flournoy dismissed the Websters from the Rapides Parish suit. Cox filed an exception of lis pendens, arguing that the proceedings ongoing in Evangeline Parish barred consideration of Flournoy’s suit in Rapides Parish. The Ninth Judicial District Court maintained the exception of lis pendens and dismissed Flournoy’s action on June 22, 2011.

All was not quiet in the Evangeline Parish action during this time. Flournoy made several attempts to dismiss his intervention with a reservation of his rights to seek his fee. One such attempt almost succeeded, as the trial court signed such a dismissal but withdrew it after Cox expressed his objection. The trial court fixed a motion to apportion the attorney fees for May 23, 2011. This hearing was continued at Flournoy’s request until June 17, 2011. However, on May 31, 2011, Flournoy filed a motion to dismiss his intervention with prejudice. This motion was signed by the trial court.

On June 21, 2012, Zurich invoked this concursus in Evangeline Parish and named Flournoy and Cox as the defendants. Cox filed an exception of res judicata in which he maintained that Flournoy’s dismissal of his intervention with prejudice precluded relitigation of the fee distribution. The trial court maintained Cox’s exception. Flournoy now appeals.

IsFlournoy assigns one error, the maintenance of Cox’s exception of res judicata.

ANALYSIS

Res judicata is governed by 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 enacted in 1990, section 4231 substantially altered the concept of res judica-ta. Before, a second action was only barred when the plaintiff sought the same relief on the same grounds. Comment (a) to the section cites the example of Mitchell v. Bertolla, 340 So.2d 287 (La.1976), in which a plaintiff who unsuccessfully sought to void a sale on grounds of lesion beyond moiety was allowed to assert a second cause of action to rescind the same sale on the ground of fraud. The amendment in 1990 incorporated the concept that all causes of action existing at the time of the transaction or occurrence that formed the basis of the first suit are merged in the judgment and extinguished. We remain mindful of the principle that res judicata is strictly and narrowly applied and any doubt as to its applicability must be resolved against its application. Boudreaux v. Franks, 12 — 1647,4 p. 4 (La.App. 3 Cir. 12/19/12), 106 So.3d 270, unit denied, 13-189 (La.3/8/13), 109 So.3d 361.

According to the terms of La.Code Civ.P. art. 1673, “[a] judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial.” Therefore, Cox argues that Flour-noy’s dismissal with prejudice precluded him from relitigating the issue of attorney fee apportionment because it was as though his claim for fees had been rejected by the trial court. Because Cox’s clients, the Websters, were defendants in the Evangeline Parish suit, the identities of the parties is the same because the Websters are privies of Cox. See Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049 (citing Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978)).

Flournoy argues that the Websters are not privies of Cox because Cox is not a successor to the same property right as the Websters. He also argues that the demands in the two suits are not the same; his intervention in Evangeline was solely to protect and recognize his interest in his fee, whereas the concursus was invoked to apportion the fee. Lastly, Flournoy argues that the dismissal was not actual litigation of the fee issue, and that res judicata cannot attach.

While the Websters, Cox’s clients, were named defendants in Flournoy’s intervention, Cox was not; indeed, Flournoy attempted to name Cox and his motion to amend was denied by the trial court. We find that Cox was in privity with the Websters. Louisiana Revised Statute 37:218 reads:

A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such | ¡^contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
B. The term “fee”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

Cox acquired an interest in the Websters’ claims. He is their privy for purposes of the “identity of parties” element of res judicata.

The parties were the same, as was the cause. The intervention filed by Flournoy not only sought recognition of his interest in the Websters’ claims, but of necessity also included the recovery of his interest. Under these circumstances, the dismissal of his intervention in the Websters’ tort suit precludes Flournoy from litigating his claim for a portion of the attorney fees resulting from the settlement of the Websters’ claims.

Flournoy argues that a subsequent suit is not barred by operation of res judi-cata because of exceptional circumstances. In support of that argument, Flournoy cites Skipper v. Berry, 99-1438 (La.App. 3 Cir. 3/15/00), 762 So.2d 56. Skipper involved a suit over a motor vehicle accident. Plaintiffs petition was captioned as a suit in Lafayette City Court but was inadvertently filed in the Fifteenth Judicial District Court instead. The letter accompanying the petition was addressed to the Lafayette City Court. Upon discovering this mistake, plaintiffs counsel filed an identical suit in Lafayette City Court before any defendant had 1 fibeen served with the petition filed in district court. Plaintiff then, after the city court suit was fixed for trial, voluntarily dismissed the district court suit with prejudice. The defendants then filed exceptions of res judicata.

The trial court ruled that the filing in district court and the dismissal with prejudice were counsel’s errors and constituted an exceptional circumstance under La.R.S. 13:4232 and denied the exceptions. We noted the line of jurisprudence in which we refused to apply the doctrine of res judica-ta when the matter was never actually litigated. Three facts were of paramount consideration for us:

First, a mistake made by Plaintiffs attorney should not automatically bar Plaintiffs action forever. Secondly, Defendants were well aware of Plaintiffs intentions to litigate his action in City Court. In fact, Defendants did not answer the District Court petition and counsel’s misfiling the petition was the only step taken towards litigation in District Court because Plaintiffs attorney informed Defendants of his plans to file in City Court. Third, we find that Defendants are not prejudiced by the overruling of the exception of res judicata. In the trial transcript, Defendants admitted that they were not prejudiced.

Id. at 60.

In Brouillard v. Aetna Casualty & Surety Company, 94-1559 (La.App. 3 Cir. 5/10/95), 657 So.2d 231, we found that exceptional circumstances existed to warrant allowing plaintiffs demand for medical payments, penalties, and attorney fees against an insurer to move forward despite a prior judgment dismissing plaintiffs demands for personal injury damages. Plaintiff had sought to claim penalties and attorney fees, which the trial court denied on the grounds that the issue had not been sufficiently pled. Because plaintiff had received the policy of insurance only days before trial, despite the defendant’s delay of over eight months in producing it, we found that the defendant should not be allowed to profit from its dilatory tactics, which precluded plaintiff from knowing about the medical payments benefits provided in the policy.

|7In Centanni v. Ford Motor Company, 93-1133, p. 4 (La.App. 3 Cir. 5/4/94), 636 So.2d 1153, 1155, writ denied, 94-1949 (La.10/28/94), 644 So.2d 656, we stated that the exceptional circumstance exception “is designed to protect those drawn into error by an awkward factual or legal scenario, not by those who can allude to no circumstance to justify no action at all.” Here, Flournoy was not drawn into error. He cannot blame his counsel for the dismissal with prejudice, as he filed it himself. In short, we discern no action by anyone other than Flournoy himself to cause him to dismiss the intervention with prejudice. Exceptional circumstances are not present.

The judgment of the trial court is affirmed. All costs of this appeal are taxed to defendant/appellant, George A. Flour-noy.

AFFIRMED.

      . Cox was not named as a defendant to Flour-noy’s intervention in the Websters’ suits, but Flournoy did attempt to amend his intervention to name Cox. The trial court denied Flournoy leave of court to amend.


author: KEATY, Judge.

text:
    Garland MILLER v. DESOTO REGIONAL HEALTH SYSTEM, et al.
    No. 13-639.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Rehearing Denied Jan. 15, 2014.

      Pamela N. Breedlove, Breedlove Law Firm, Bossier City, Louisiana, for Defen-danVAppellee, Desoto Regional Health System.
    Charles D. Soileau, Charles D. Soileau, APLC, for Defendant/Appellee, Don Burk-ett.
    Lisa V. Johnson, Corkern, Crews & Guillet, L.L.C., Natchitoches, Louisiana, for Defendant/Appellee, Guffey Lynn Pat-tison.
    Garland Miller, In Proper Person, Natchitoches, Louisiana, Plaintiff/Appellant.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| TPIaintiff appeals the trial court’s judgment granting exceptions in favor of Defendants. For the following reasons, we affirm;

FACTS AND PROCEDURAL HISTORY

Defendant, Desoto Regional Health Systems, and Plaintiff, Dr. Garland Miller, entered into an employment contract and office management arrangement. Plaintiff alleges that after his contract terminated, Desoto Regional, Sabine Parish Sheriffs Deputies, and others illegally entered Plaintiffs office with the intention of seizing records and information to be used in a criminal case against Plaintiff. Miller was arrested and charged with state felony theft and other criminal offenses on September 29, 2005.

In 2007, Plaintiff was indicted on federal charges, and, in 2008, Plaintiff was convicted of two counts of tax evasion by failing to timely file tax returns, failing to pay tax on income, converting payments to himself and his wife to cash and money orders, and embezzling payments due to Desoto Regional which he then converted to cash and money orders. Failing to report as income and pay taxes on money he embezzled from Desoto Regional were the subjects of the state law theft charges. The U.S. Fifth Circuit Court of Appeals affirmed Plaintiffs conviction. As part of the sentence, Plaintiff was ordered to pay Desoto Regional restitution in the amount of $55,470.94.

In the federal case, Plaintiff filed a motion to suppress, alleging that evidence had been seized without a search warrant, that Desoto Regional employees seized records with the implicit authorization of law enforcement officials, and that patient records and computer records were accessed and removed without his consent. The magistrate judge held that the evidence established |2Desoto Regional employees were not acting as government agents, they entered the clinic which they leased and had a right to enter, and they searched and removed property Desoto Regional owned pursuant to the contracts between the parties. The magistrate judge determined that neither the district attorney nor any other governmental, official had a hand in Desoto Regional’s decision to search the clinic but were present only to keep the peace. The magistrate judge concluded that Desoto Regional’s “employees simply entered a building that Desoto owned” and recommended denial of his motion to suppress evidence. The federal district court reviewed the report and recommendations and the record, concurred with the findings of the magistrate judge, and denied the motion to suppress.

After his conviction, but prior to his appeal, Plaintiff filed a Motion for Judgment of Acquittal or, Alternatively, for a New Trial. The federal district court denied the motion. The Fifth Circuit affirmed Plaintiffs conviction. Plaintiff subsequently filed a Motion to Vacate, Set Aside, or Correct Sentence. The federal district court denied the motion. Thereafter, the federal district court denied Miller’s writ where he argued that he was forced to make restitution for embezzlement.

The state criminal case, which was instituted in 2005, was dismissed in 2011 after Plaintiff was released from prison on federal charges. Plaintiff subsequently filed a petition in the state trial court naming as Defendants Desoto Regional, Sabine Parish District Attorney Don Burkett, Sheriff Guffey Lynn Pattison, Ron Wolfe, and unknown defendants A-Z. Plaintiff alleged Defendants were liable to him for malicious prosecution, false arrest, unlawful search and seizure, defamation, interference with a contract, and breach of contract. Desoto Regional and Sheriff Patti-son filed exceptions of prescription and no cause of action. | ^Burkett filed an exception of no cause of action. The trial court denied Desoto Regional’s and Sheriff Pat-tison’s exceptions of prescription but granted the exceptions of no cause of action as to all Defendants. The trial court granted Plaintiff leave to cure his petition by amendment to include factually based allegations that, when assumed true, establish at law a cause of action for the offense(s) pled.

Plaintiff thereafter filed an amended petition. Defendants, Desoto Regional and Sheriff Pattison, again filed exceptions of no cause of action and added exceptions of res judicata/issue preclusion. Burkett also again filed an exception of no cause of action. The trial court granted Defendants’ exceptions of no cause of action and res judicata/issue preclusion and dismissed Plaintiffs claims against those Defendants. The trial court also found that Plaintiff failed to state a cause of action for malicious prosecution on the face of his original and amended petition against Burkett and dismissed Plaintiffs claims against him. It is from these rulings that Plaintiff has appealed.

Plaintiff is now before this court asserting that: (1) the trial court erred in ruling that there was no cause of action because there was no bona fide termination of the proceedings since no trial was held; (2) the trial court erred in granting the exception of prescription and dismissing the claims for defamation, slander, and libel; and (3) the trial court erred in granting a motion for no cause of action as it relates to breach of contract and interference with a contract.

J4LAW

“In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition.” Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114,119.

DISCUSSION

I. Exception of No Cause of Action

As mentioned above, Plaintiff contends that the trial court erred in ruling that there was no cause of action because there was no bona fide termination of the proceedings since no trial was held. In opposition, Defendants contend that Plaintiff failed to state a cause of action for malicious prosecution, false arrest, unlawful search and seizure, defamation, interference with a contract, and breach of eon-tracVindemnity claims.

“ ‘The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.’ ” Washington Mut. Bank v. Monticello, 07-1018, p. 7 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, 256 (quoting Cleco Corp. v. Johnson, 01-175 (La.9/18/01), 795 So.2d 302), 'writ denied, 08-530 (La.4/25/08), 978 So.2d 369. “A ‘cause of action,’ when used in the context of the peremptory exception of no cause of action, refers to the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant.” Bogues v. Louisiana Energy Consultants, Inc., 46,434, p. 3 (La.App. 2 Cir. 8/10/11), 71_[^So.3d 1128, 1130 (citing White v. St. Elizabeth B.C. Bd. of Dirs., 45,213 (La.App. 2 Cir. 6/2/10), 37 So.3d 1139). “‘The petition must set forth the material facts upon which a cause of action is based; the allegations must be ultimate facts; conclusions of law [or] fact, and evidentiary facts will not be considered.’ ” Sparks v. Donovan, 04-388, p. 4 (La.App. 3 Cir. 10/13/04), 884 So.2d 1276, 1279 (quoting Parish of Jefferson v. City of Kenner, 95-266 (La.App. 5 Cir. 10/31/95), 663 So.2d 880).

A. False Arrest

Wrongful arrest, or the tort of false imprisonment, occurs when one arrests and restrains another against his will and without statutory authority. Kyle v. City of New Orleans, 353 So.2d 969 (La. 1977). “The tort of false imprisonment consists of the following two essential elements: (1) detention of the person; and (2) the unlawfulness of the detention.” Kennedy v. Sheriff of E. Baton Rouge, 05-1418, p. 32 (La.7/10/06), 935 So.2d 669, 690. Arrests made with probable cause are not unlawful and therefore plaintiffs cannot recover damages for false arrest or false detention. Tabora v. City of Kenner, 94-613 (La.App. 5 Cir. 1/18/95), 650 So.2d 319, unit denied, 95-402 (La.3/30/95), 651 So.2d 843.

In the present case, there were no allegations in Plaintiffs original and amended petitions that Defendants actually arrested Plaintiff, restrained Plaintiff, or otherwise prevented Plaintiffs movement or ability to leave any location. Thus, the petitions failed to allege any cause of action for false arrest and this claim was properly dismissed.

|fiB. Malicious Prosecution

Plaintiff contends that the trial court erred in ruling that there was no cause of action because there was no bona fide termination of the proceedings since no state criminal trial was held.

In LeBlanc v. Pynes, 46,393, p. 6 (La. App. 2 Cir. 7/13/11), 69 So.3d 1273, 1279, writ denied, 11-1792 (La.10/14/11), 74 So.3d 213, the court noted that the following six elements are required to assert a claim for malicious prosecution:

1) the commencement or continuance of an original criminal or civil judicial proceeding; 2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; 3) its bona fide termination in favor of the present plaintiff; 4) the absence of probable cause for such proceeding; 5) the presence of malice therein; and 6) damages conforming to legal standards resulting to plaintiff.

The “purpose of the ‘bona fide termination’ requirement in malicious prosecution cases is that the underlying litigation should be brought to a conclusion on the merits before a malicious prosecution suit based on the underlying litigation is allowed to proceed.” Savoie v. Rubin, 01-3275, 01-3276, p. 4 (La.6/21/02), 820 So.2d 486, 488. When the merits of the underlying proceeding have not been reached, this requirement is not satisfied. Id. In Tern v. Chamblee, 95-70, pp. 4-5 (La.App. 3 Cir. 7/19/95), 663 So.2d 75, 77-78, this court explained:

[A] bona fide termination must reflect the merits of the underlying action. This would be true where, for example, a criminal proceeding is dismissed for lack of sufficient evidence of guilt following a preliminary examination. On the other hand, a merely procedural victory, such as a dismissal on an exception of prescription or for failure to allow discovery, as in the case sub judice, does not relate to the merits of the suit and thus is not a bona fide termination for purposes of a subsequent action for malicious prosecution.

Proceedings terminate in favor of the accused only when they affirmatively indicate the accused is not guilty. Taylor v. Gregg, 36 F.3d 453 (5th Cir.1994).

|7In the present case, the petitions failed to allege that there was a bona fide termination of the criminal prosecution in favor of Plaintiff. Although the district attorney dismissed the state criminal proceeding, there were no allegations that the dismissal determined that Plaintiff was not guilty as charged. There were no allegations of any preliminary examination or other findings in the state criminal case in which the trial court, the prosecutor, or any other person ever determined that Plaintiff was not guilty or that there was a lack of probable cause for the prosecution. The petitions never even alleged that Plaintiff did not embezzle money from De-soto Regional.

Moreover, Plaintiffs federal conviction for failing to report or pay taxes on money embezzled from Desoto Regional bars such a finding and meets any burden of showing the Defendants acted on probable cause and without malice. Thus, the petitions failed to state a cause of action for malicious prosecution, and this claim was properly dismissed.

C. Defamation

Plaintiff contends that following the search of his office, both Desoto Regional and the Sabine Parish Sheriffs Deputies made defamatory statements which were published in the newspaper. Specifically, Plaintiff contends Desoto Regional fired him publicly in the newspaper for theft and wrongdoing.

In order to establish a claim for defamation, the following four elements must be met: “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Kennedy, 935 So.2d at 674. In jurisprudence, the fault requirement is sometimes referred to as malice, actual or implied. Id. “[T]o plead material facts, a petitioner alleging a cause of action for | ^defamation must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant.” Badeaux v. Sw. Computer Bureau, Inc., 05-612, 05-719, p. 10 (La.3/17/06), 929 So.2d 1211, 1218. The court further explained:

The allegations that the letter contained “libelous and/or fraudulent statements and/or intentionally misleading statements” are conclusory, and the alleged defamatory statements are not set forth with reasonable specificity. The petition does not describe the nature of the defamatory statements contained in the anonymous letter. Thus, we find that these allegations, liberally construed, are insufficient to state a cause of action for defamation.

Id. at 1219.

In the present case, the petitions contained no allegations of any false or unprivileged statement made by Defendants or any of their representatives. The original petition only makes conclusory allegations of being defamed without any factual allegations. The amended petition merely contains arguments and general legal principles. However, these concluso-ry allegations are insufficient to state a cause of action for defamation. Although the amended petition references a newspaper article, there were no allegations that the statements in the paper were false. Thus, the petitions failed to state a cause of action for defamation, and this claim was properly dismissed.

D. Search and Seizure under Federal and State Law

In State v. Lavergne, 08-44, p. 4 (La. App. 1 Cir. 5/2/08), 991 So.2d 86, 89, writ denied, 08-1459 (La.2/20/09), 1 So.3d 494, the court noted:

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures by the government. It provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” A search and/or seizure by a private citizen, acting in his capacity as a private citizen, |flis not prohibited by the Fourth Amendment because the amendment only protects against actions by government agents.

In State v. Clark, 454 So.2d 232, 234 (La.App. 3 Cir.), writ denied, 456 So.2d 1012 (La.1984) (quoting State v. Reeves, 427 So.2d 403 (La.1982) (dissenting opinion of Justice Dennis)), the court noted:

“The universal interpretation of provisions similar to Article 1, Section 5 and the Fourth Amendment ... has been that government intrusion upon any of the elements of personal security specifically listed therein by a search or seizure conducted outside of the judicial process, without prior approval of a judge or magistrate, is prohibited as unreasonable per se.”

In the present case, there were no allegations in the petitions that Desoto Regional is an agency of a federal, state, or local political subdivision or otherwise acted under color of law. There were no allegations of any factual or legal basis for liability against Desoto Regional for purported violations of Louisiana law or the Fourth Amendment for search and seizure.

Additionally, the Sabine Parish Sheriffs Office was only present during the 2003 search and seizure to provide security. After an evidentiary hearing in the federal case, which included testimony and documents, the magistrate judge determined that the search and seizure that occurred was legal. The magistrate judge determined that neither the district attorney nor any other governmental official had a hand in Desoto Regional’s decision to search the clinic but were only there to keep the peace. Thus, the petitions failed to state a cause of action for illegal search or seizure, and this claim was properly dismissed.

|10E. Interference With A Contract

In 9 to 5 Fashions, Inc. v. Spumey, 538 So.2d 228, 234 (La. 1989), the court noted:

For purposes of analysis, the action against a corporate officer for intentional and unjustified interference with contractual relations may be divided into separate elements: (1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) the officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4) absence of justification on the part of the officer; (5) causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.

“The tort of intentional interference with a contract, as limited by the Supreme Court, applies to a corporate officer interfering with his employer’s contractual relations with third persons.” White v. White, 93-1389, p. 7 (La.App. 3 Cir. 6/15/94), 641 So.2d 538, 542, writs denied, 94-2456, 94-2467 (La.12/19/94), 648 So.2d 402. “To state a cause of action for intentional interference with a contract, the plaintiff must allege and prove a breach of contract.” Sun Drilling Prods. Corp. v. Raybom, 00-1884, p. 21 (La.App. 4 Cir. 10/3/01), 798 So.2d 1141, 1155, writ denied, 01-2939 (La.1/25/02), 807 So.2d 840.

In the present case, the petitions failed to allege any facts that meet the standards for a claim of intentional interference with a contract. There were no allegations of any fiduciary or other duty that would create a cause of action for tortuous interference with a contract. Plaintiffs petitions also failed to allege that any contract between Plaintiff and Sheriff Pattison, oral or written, existed. Consequently, the petitions failed to state a cause of action for interference with a contract, and this claim was properly dismissed.

|nF. Indemnity Claims

In Home Insurance Co. of Illinois v. National Tea Co., 588 So.2d 361, 364 (La.1991) (quoting Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977)), the court noted:

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms.

Additionally, the general rules that govern the interpretation of other contracts apply in interpreting indemnity contracts. Jes-sop v. City of Alexandria, 03-1500 (La. App. 3 Cir. 3/31/04), 871 So.2d 1140, unit denied, 04-1529 (La.10/1/04), 883 So.2d 991. “[A]n indemnity agreement does not render the indemnitor liable until the in-demnitee actually makes payment or sustains loss.” Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987).

In the present case, the petitions alleged some oral contract that the parties would indemnify each other and hold each other harmless. There are no allegations, however, as to what specific actions this alleged agreement applied. Without a specific written agreement to indemnify for one’s own wrong doing, there is no cause of action. Furthermore, the petitions fail to allege any liability or judgment that was rendered against him to form the basis of any indemnity claim. Thus, the petitions failed to allege any cause of action for indemnity, and this claim was properly dismissed.

G. Burkett has Prosecutorial Immunity

Even if the petitions stated a cause of action and assuming that the issues alleged were not precluded by the findings of the federal court, which is discussed below, Burkett is immune from suit. In Knapper v. Connick, 96-434 (La. p.0/15/96),12 681 So.2d 944, the supreme court made it clear that prosecutors have absolute immunity from claims of prosecu-torial misconduct that is intimately associated with the judicial phase of the criminal process. Prosecutors also have immunity from their acts in initiating a prosecution and in presenting the state’s case, i.e., conduct falling within the course and scope of their prosecutorial functions. Id. The supreme court held also that such immunity extends even to prosecutorial actions taken in bad faith or with malice. Id.

The record in this case is devoid of any evidence that Burkett acted with malice. The record shows that all actions were taken in the normal course of a criminal investigation and prosecution. The charge of theft was warranted since he was found guilty of failing to pay taxes on the funds that were diverted from Desoto Regional. It was only after the lengthy incarceration of Miller that the local theft charge was dismissed by Burkett in his official capacity as district attorney. Although Plaintiffs petitions name Burkett as a Defendant in his individual capacity, it is clear that Plaintiffs allegations deal with Burk-ett’s conduct which falls squarely within his role as a prosecutor. Under Knapper, he is absolutely immune from suit for any of the alleged causes of action.

Finally, this immunity defense defeats any alleged claim at the outset and is, therefore, properly raised by the exception of no cause of action. Hayes v. Parish of Orleans, 98-2388 (La.App. 4 Cir. 6/16/99), 737 So.2d 959.

II. Exception of Prescription

As mentioned above, Plaintiff claims in his second assignment of error that the trial court erred in granting the exception of prescription and dismissing the claims for defamation, slander, and libel. A review of the record indicates that the Defendants’ exception of prescription filed in response to Plaintiffs original | lspetition was denied without prejudice. Plaintiff thereafter filed an amended petition. Defendants again filed exceptions of no cause of action and added exceptions of res judicata/issue preclusion. Defendants, however, did not re-urge their exception of prescription. Thus, the trial court never ruled on, much less granted, Defendants’ alleged exception of prescription in response to Plaintiffs amended petition. As such, there is not a prescription issue as alleged by Plaintiff. We have addressed, however, the issues of defamation, slander, and libel above.

III. Exception of Res Judicata and Issue Preclusion

“Issue preclusion is a subset of res judicata, such that the granting of an exception of issue preclusion is technically the granting of a peremptory exception of res judicata.” Richards v. Bd. of Comm’rs of the Port of New Orleans, 10-1171, p. 4 (La.App. 4 Cir. 2/2/11), 57 So.3d 1135, 1139. Res Judicata may be raised through a peremptory exception, and evidence may be introduced to support the peremptory exception pleaded at or prior to the trial of the case. La.Code Civ.P. art. 927(A)(3); La.Code Civ.P. art. 931.

In Paradise Village Children’s Home, Inc. v. Liggins, 38,926, p. 7 (La.App. 2 Cir. 10/13/04), 886 So.2d 562, 568, twit denied, 05-118 (La.2/4/05), 893 So.2d 884, the court noted:

The preclusive effect of a prior federal court judgment is controlled by federal res judicata rules. Ellis v. Amex Life Ins., Co., 211 F.3d 935 (5th Cir.2000). Under federal law, res judicata is appropriate if: 1) the parties to both actions are identical (or at least in privity); 2) the judgment in the first action is rendered by a court of competent jurisdiction; 3) the first action concluded with a final judgment on the merits; and 4) the same claim or cause of action is involved in both suits.

“The federal common law on res judicata, issue preclusion or collateral estoppel operates to bar one convicted in a criminal proceeding from re-litigating __|j^‘questions distinctly put in issue and directly determined’ in the criminal prosecution.” McCollough v. Dauzat, 98-1293, p. 3 (La.App. 3 Cir. 3/3/99), 736 So.2d 914, 916 (quoting Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951)). A final criminal conviction “is therefore conclusive in this civil litigation as to issues that were litigated and adjudicated in that prosecution.” U.S. v. One 1976 Mercedes 4.50 SLC, 667 F.2d 1171,1174, fn. 2 (5th Cir.1982).

In the present case, Plaintiffs claims are barred by issue preclusion and res judicata due to his federal conviction, the rulings on his motion to suppress, and the factual findings necessary for his conviction. Plaintiff had multiple opportunities to litigate these issues in the federal courts.

After an evidentiary hearing, the magistrate judge determined that the search on January 24, 2008, which Plaintiff complained of in the petitions in this matter, was legal. As previously mentioned, the magistrate judge determined that Desoto Regional had a legal right to enter the premises it was leasing and obtain patient records and billing records that it owned. Prior to his criminal trial, the federal district court agreed. The Fifth Circuit affirmed. The federal district court again confirmed these rulings in post-conviction motions. Thus, Plaintiff is barred from re-litigating the issues of the legality of the search, the legality of Desoto Regional’s seizure of records it owned, and the existence of a valid lease on January 24, 2003.

The federal courts further held that De-soto Regional was not acting on behalf of the Sheriffs Office, the Internal Revenue Service, or any other state actor. Therefore, Plaintiff is barred from re-litigating whether there was any state action involved in the search and seizure or any alleged private party search.

11sPlaintiff is barred from re-litigating whether he embezzled money from Desoto Regional, as his embezzlement from Deso-to Regional formed a basis of his conviction. It was specifically referenced in the indictment, and the federal courts affirmed his convictions based on the evidence admitted at trial regarding his embezzlement. Plaintiff even admitted during his federal prosecution that the issues were the same. Plaintiff cannot seek recovery for any alleged false arrest or malicious prosecution for felony theft or defamation related to such charges, as he was convicted of not paying taxes on the money he embezzled from Desoto Regional.

Furthermore, Plaintiff is barred from challenging the federal court order of restitution in a state court proceeding or seeking damages for having paid the restitution order. The federal court has ruled on this matter multiple times.

Accordingly, all of Plaintiffs claims against all Defendants are barred by res judicata and issue preclusion. The trial court properly dismissed these claims.

DECREE

The judgment rendered by the trial court is affirmed. All costs of this appeal are assessed against Dr. Garland Miller.

AFFIRMED.

      . Plaintiff's Assignments of Error and Issues for Review appear to limit his appeal to the exceptions of no cause of action sustained as to his claims for malicious prosecution, breach of contract, and interference with a contract and an exception of prescription alleged to have been sustained as to his claims for defamation, slander, and libel. However, in his Statement of the Case, Plaintiff argues matters related to his search and seizure claim that were dismissed in response to the exceptions of res judicata and issue preclusion due to his federal conviction of tax evasion. "However, the courts of this State have considered briefs in improper form when filed by pro se claimants.” Washington v. First Choice Trucking, 06-1479, p. 4 (La.App. 3 Cir. 3/7/07), 953 So.2d 107, 110. Thus, we will address all issues.

      . See Kennedy, 935 So.2d at 690, wherein the court held that there lacked any allegation that an employee restrained plaintiff "or prevented him from leaving.” Plaintiff "was detained only when ... he was handcuffed and transported to a nearby substation. There is thus no factual support for an essential element of plaintiff's cause of action.” Id.