author: EZELL, Judge.

text:
    STATE of Louisiana v. Lorrie A. ANDERSON aka Lorrie Ann Anderson
    16-588
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered March 1, 2017

      Keith A. States, District Attorney, Allan P. Haney, Assistant District Attorney, Fifteenth Judicial District Court, P. 0. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana
    Edward Kelly Bauman, Louisiana Appellate Project, P. O. Box 1641, Lake Charles, LA 70602-1641, (337) 491-0570, COUNSEL FOR DEFENDANT/APPELLANT: Lome A. Anderson a/k/a Lorrie Ann Anderson
    Roger P. Hamilton, Jr., Assistant District Attorney, P. O. Box 12625, New Iberia, LA 70562-2625, (337) 519-7180, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and David Ellis Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   EZELL, Judge.

| defendant, Lome A. Anderson, a/b/a/ Lorrie Ann Anderson, was indicted on September 19, 2013, for the aggravated rape of two minor children, a violation of La.R.S. 14:42; aggravated incest involving both children, a violation of the statute designated at the time as La.R.S. 14:78.1; and human trafficking, a violation of La. R.S. 14:46.3. On September 2, 2014, Defendant entered a plea of no contest to human trafficking and to the. reduced charge of molestation of a juvenile, a violation of La.R.S. 14:81.2, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

The trial court sentenced Defendant at the plea hearing as follows:

With respect to the molestation of a juvenile charge, I will accept the State’s recommendation and what you agreed to. I sentence you to ten years at hard labor with credit for time served. That sentence is to run concurrently] with the sentence you will receive in count 3 in a moment.
Count 3, human trafficking, I sentence you to five years at hard labor to run without benefit of probation, parole, or suspension of sentence. That sentence will run coneurrent[ly]' with the other charge. The sentence on the molestation charge only is suspended. You are placed on active supervised probation for two years. At the end of any parole with respect to any other charge by the State of Louisiana, you will serve.

Defendant did not file a motion to reconsider her sentences. She did, however, file a motion for an out-of-time appeal on March 3, 2016. The trial judge granted the motion on March 24, 2016, and appointed the Louisiana Appellate Project to represent Defendant on appeal.

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging no non-frivolous issues existed on which to base an appeal and seeking to withdraw as Defendant’s counsel. On August 10, 2016, Defendant was advised, via certified mail, that counsel filed an Anders brief and she had until September 9, 2016, to file a pro se brief. To date, Defendant has not filed a pro se brief.

On September 12, 2016, this court ordered appellate counsel to submit a brief “addressing the confusion surrounding the true nature of Defendant’s plea and the issues raised in Defendant’s motion for an out-of-time appeal.” The order also denied counsel’s motion to withdraw. State v. Anderson, 16-588 (La.App, 3 Cir. 9/12/16) (unpublished opinion.) Counsel has now filed his brief alleging two assignments of error.

FACTS

Pursuant to her “best interest plea,” Defendant admitted to molestation of a juvenile and to human trafficking. The record does not include details of the crimes except for Office of Child Services (OCS) records in a separate sealed volume.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the trial court’s failure to advise her of sex offender registration and notification requirements prior to the entry of her pleas rendered them involuntary. She contends this requires her pleas to be set aside or, alternatively, requires her to have the opportunity to withdraw her pleas. We address this issue first, because if Defendant’s pleas are rendered involuntary, then we must vacate her convictions and sentences.

Defendant signed the “Notification to Sex Offender” form setting out the registration and notification requirements on September 2, 2014, the day she ^entered her guilty plea. The form indicates Defendant’s attorney reviewed it with her. The record does not indicate whether Defendant signed the notification form prior to the entry of her plea.

At the plea hearing, the trial court first accepted Defendant’s guilty pleas and then stated, “I will order that you follow Louisiana’s Sex Offender Laws relative to notice and registration as a Sex Offender.” Defendant indicated she understood. Defendant entered no objection to the imposition of the notification requirements at the plea hearing.

Louisiana Revised Statutes 15:543(A) requires the trial court to “provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter.” Notification must be given on the statutorily required form and “shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant, and. an entry shall be made in the court minutes stating that the written notification was provided to such offenders.” Id.

Failure to advise a‘ defendant of the requirements of registration and notification is a factor that may undercut the voluntary nature of a guilty plea. State v. Calhoun, 96-786 (La. 5/20/97), 694 So.2d 909. In Calhoun, the supreme court refused to set out a blanket rule that failure to notify of these requirements nullifies a guilty plea. Rather, the court considered the totality of the circumstances under which the pleas were made, including counsel’s unpreparedness. Additionally, the defendant’s steadfast maintaining his innocence supported his contention that he pled guilty only because his attorney told him he had no possible defenses. The Calhoun trial court apparently did not inform the defendant of the registration and notification requirements until his sentencing | ¿hearing more than two months after his guilty plea. The defendant “at the least, implicitly stated that he would not have pled guilty had he been informed of the registration requirements.” Id. at 914. He also raised the'issue in a timely-filed motion to withdraw his guilty plea prior to sentencing. The supreme court held that, under these circumstances, the trial court’s failure to advise the defendant of the registration requirements prior to accepting the guilty plea undercut the voluntariness of that plea.

The supreme court revisited the issue in State v. Blanchard, 00-1147 (La. 4/20/01), 786 So.2d 701, where the trial court denied the defendant’s motion to withdraw his guilty pleas because of lack of notification of the registration requirements. The supreme court agreed with the trial court after this court reversed its ruling. The supreme court found the defendant was aware of the registration requirements, but he assumed he would not have to report as a sex offender after entering his best interest pleas. However, he did not allege that assumption was based on anything said or done by the trial court, defense counsel, who testified he had informed his client of the registration requirement, or the prosecutor. In short, the defendant’s awareness of the requirements negated any basis for him to withdraw his plea.

Soon after Blanchard, this court considered the issue in State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. The transcript of the plea hearing showed the trial court informed the defendant, who was represented by counsel, of his Boykin rights and of the sentencing range for the offense to which he pled. The defendant did not set out the lack of notification as grounds.for the withdrawal of his guilty plea, and he did not allege ineffective assistance of counsel. This court | Rfound the totality of the circumstances did not warrant invalidation of the plea. Nevertheless, this court concluded:

corrective action must still be taken because there is no indication in the record as to whether the defendant is aware of the sex offender registration requirements. Therefore, we remand this matter to the district court to provide appropriate written notice to the defendant of the sex offender registration requirements within ten days of the rendition of the opinion and to file written proof that the defendant received notice in the record of the proceedings.

Id. at 1100.

This court cited Blanchard, 786 So.2d 701, in State v. G.T., Jr., 10-1469 (La.App. 3 Cir. 6/15/11), 71 So.3d 394. The notification form incorrectly showed the defendant had to register as a sex offender for twenty-five years' rather than for his lifetime as required by statute. The evidence did not show whether the defendant was aware of the requirements, of any effect they may have had on the voluntariness of his plea, or whether counsel notified the defendant of the requirements. The guilty plea form did not include the required notice of the registration requirements. Considering the totality of the circumstances, this court remanded the matter for an evidentiary hearing on the voluntariness of the defendant’s plea. .

On remand; the trial court found the “no contest plea was knowing and voluntary despite- the fact that [the defendant] was told he would be tried by a jury of twelve, not advised of the sex offender registration requirements prior to entry of his plea, and was' told he would have to register for twenty-five years.” State v. Tomplait, 12-857, p. 7 (La.App. 3 Cir. 1/9/13) (unpublished opinion). This court noted counsel stated the defendant pled guilty because the State agreed not to file a habitual offender bill. The defendant failed to ask questions about sex offender registration or notification when the trial judge mentioned the registration, form at Rthe plea hearing, and he failed to object to the requirements at the hearing where he was informed of those requirements. He also “received a very favorable plea bargain” by avoiding the habitual offender issue and an additional charge for third-offense driving while intoxicated. Id. This court affirmed the trial court’s findings and affirmed the defendant’s conviction.

In State v. Murray, 12-378, 12-379 (La. App. 3 Cir. 4/3/13), 117 So.3d 130, the defendant was not given timely notice of the requirements prior to the entry of his plea of guilty to oral sexual battery and to the reduced charge of molestation of a juvenile. At the hearing of the motion to withdraw his guilty pleas, the defendant testified he pled guilty because his lawyers explained to him the six-year-old victim was going to testify he had raped her, and the evidence showed she had been raped. The defendant was told, he would spend the rest of his life in prison if convicted.

An administrative assistant to the defendant’s counsel testified he did not tell the defendant of the registration requirements. However, this assistant said, he thought the defendant asked about them and the attorney mentioned the requirements to him. Defense counsel testified he did not recall the defendant being given written notice of the requirements. This court found the failure to notify the defendant of the notification and registration requirements was not a factor that undercut the voluntary nature of the pleas in light of the other reasons for the pleas. Although this court remanded the matter for an evidentiary hearing to allow the State to present a factual basis for the guilty pleas, it rejected the defendant’s argument concerning the notification requirements.

Here, the record clearly shows Defendant received notice of the notification and registration requirements, albeit late. The record includes Defendant’s guilty |7plea form showing both nolo contendere and Alford pleas. The “general conditions” of probation applicable to Defendant explain she “shall pay a monthly fee of eleven dollars cents [sic] to the Department of Public Safety and Corrections for the ‘Sex Offender Registry Technology Fund[’].” Defendant and her attorney signed that form on September 2, 2014. However, the form does not indicate whether Defendant signed the form before or after the trial court accepted her guilty pleas.

The next six pages of the trial court record following the guilty plea comprise a “Notification to Sex Offender” form that indicates Defendant reviewed it with her attorney. That form states Defendant “has pled guilty to or been found guilty of’ molestation of a juvenile.

Defendant does not plainly set out her innocence in anything contained in the record or in her appellant brief. However, she does contend the evidence against her was weak and her counsel was ill-prepared and “should never have forfeited her rights to an appeal.” She argues her counsel should have, “[a]t the very least,” entered a plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), which would have allowed her to appeal pre-trial rulings. However, she does not identify any pre-trial rulings she would have appealed or otherwise identify any error of the trial court. Defendant’s appellant brief claims she did not know the result of making an Alford plea. Nevertheless, she argues she intended to enter a “best interest” plea.

On the other hand, Defendant never made any effort to withdraw her pleas. She has never alleged ineffectiveness of counsel other than to mention, in her appellate brief, that counsel was ill-prepared. She does not plainly argue she would not have pled guilty had she known of the registration requirements. She 1 «never alleges she did not know of the notification and registration requirements; rather, she contends simply that the trial court failed to notify her of them.

We find Defendant had adequate knowledge of the notice and registration requirements. Therefore, we now consider Defendant’s Assignment of Error Number One.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends the trial court erred in determining her guilty pleas were knowingly and intelligently made. She argues she intended to enter a “best interest plea” and indicated that intent to the trial court. Thus, she argues the trial court erred in accepting her pleas without a factual basis, and they should be set aside.

Here, the indictment filed on September 19, 2013, alleges Defendant committed aggravated incest by willfully and unlawfully engaging in a sexual act with a male and a female, both under the age. of eighteen, and both related to Defendant, all in violation of La.R.S. 14:78.1. That indictment alleges Defendant also willingly, unlawfully and knowingly recruited, harbored, transported, provided, sold, purchased, obtained, or maintained the use of the minors for the purpose of engaging in commercial sexual activity in violation of La.R.S. 14:46.3. The indictment was amended to allege the offenses occurred from January 4,2009, through December 31,2011.

Exhibits in the record indicate an investigation took place regarding allegations Defendant’s daughter was sexually abused by Defendant’s drug dealer. |9The child alleged Defendant allowed the drug dealer to “do things to [her] for drugs.”

An OCS Investigation Report dated October 8, 2012, stated both children disclosed Defendant had sexually abused them. OCS made a “Valid finding of Sexual manipulation or fondling by [Defendant]” with regard to both children. On one or more occasions, Defendant abused her daughter in order to get money from “Chicken Man” for drugs.

An employee of the school the children attended told an OCS worker she had heard about Defendant putting her daughter “in a trunk and letting men have sex with [her].” Defendant’s daughter told the OCS worker Defendant had “put fingers in her private area[.]” Defendant and victim’s father denied Defendant had ever abused the children.

At the plea hearing, the trial court asked Defendant, “Are you afraid that if you went to trial, the State might win and you might be convicted? Is that one of the reasons you want to plead no contest?” Counsel told the trial court he and Defendant had discussed “the pleas to be accepted in this matter[,] and she believes it to be in her best interest to take the deal in count 1.” The trial court then asked Defendant, “[D]o you believe it is in your best interest to accept the agreement and plead no contest?” Defendant answered “yes” to the questions asked of her.

The plea agreement form in the record, which Defendant signed, is titled “Plea of Guilty/Nolo Contendere.” Where the form states, “I, DEFENDANT above, on my plea of GUILTY/NOLO CONTEN-DERE ...,” the words “nolo contendere” are circled. However, slightly more than midway through the page, linthe words “Alford plea” are handwritten. Court minutes of September 2, 2014, indicate Defendant “entered a plea of no contest/Alfred [sic] Plea .... ”

Generally, a defendant waives the right to question the merits of the State’s case or the underlying factual basis by entering a plea of guilt, or plea of nolo contendere. State v. Brooks, 38,-963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724. “When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant’s plea.” State v. Linear, 600 So.2d 113, 115 (La. App. 2 Cir.1992); See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). However, this court has held that a plea of nolo contendré [sic] alone, unlike a guilty plea accompanied by a claim of innocence, does not put the trial court on notice that a significant factual basis must be obtained. State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 769 So.2d 126, writ denied, 00-1175 (La. 3/16/01), 786 So.2d 745; State v. Guffey, 94-797 (La.App. 3 Cir. 2/1/95), 649 So.2d 1169, writ denied, 95-973 (La. 9/22/95), 660 So.2d 469. Citing Alford, the Louisiana Supreme Court has stated:
Moreover, even assuming that relator had protested his innocence when he entered his guilty plea and further assuming that in all cases involving a bona fide Alford plea the record “before the judge [must] contain [ ] strong evidence of actual guilt,” the standard under Alford is not whether the state may prevail at trial by establishing the essential elements of the crime beyond a reasonable doubt and negating all possible defenses, but rather whether ■ the strength of the factual basis, coupled with the other circumstances of the plea, reflect that the plea “represents a voluntary and intelligent choice among the alternative[s].”
State v. Orman, 97-2089, pp. 1-2 (La. 1/9/98), 704 So.2d 245, 245 (citations omitted).

State v. Johnson, 04-1266, pp. 6-7 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 950-51 (second, third, and fourth alterations in orgi-nal). Thus, if Defendant entered a plea of nolo contendere, the State was not required to present a factual basis for the plea. In contrast, if Defendant entered an Alford plea, the State would have to do so.

| ^Louisiana law does not recognize a no contest/Alford plea. Indeed, the two pleas are contradictory. “A plea of nolo contendere is equivalent to an admission of guilt,” whereas a defendant professes his innocence in an Alford plea. State v. Villarreal, 99-827, p. 4. (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La. 3/16/01), 786 So.2d 745.

In her appellate brief, Defendant states she “believed it was in her best interest to accept the plea agreement and plead no contest.” In her motion for an out-of-time appeal, however, she stated she “was unaware that she was taking a ‘no contest plea’ and what that plea entailed.” But, in the next page of her motion, she stated “the court should have taken measures to properly discuss with [her] what the end result would be by her entering into an ‘Alford plea’.” Adding to the confusion, in her appellate brief (under the section titled “Action of the Trial Court)”, she states her counsel should have filed a Crosby plea to preserve her. right to appeal pre-trial rulings.

If Defendant did in fact intend to enter a best interest plea, the State is not required to enter a factual basis for the plea. However, the record does not clearly indicate which type of plea Defendant entered. Accordingly, we must remand this matter to determine whether Defendant intended to enter a nolo contendere plea or an Alford plea.

In. the event the trial court determines Defendant entered an Alford plea, it should give the State the opportunity to enter a factual basis for the pleas in the record. See State v. Guilbeau, 11-99 (La. App. 3 Cir. 6/22/11), 71 So.3d 1020.

[^ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent oh the face of the record. After reviewing the record, we find there are no errors patent; however, the court minutes of sentencing require correction.

The court minutes of sentencing indicate that for Defendant’s conviction of human trafficking, she was sentenced to serve five years at hard labor. The sentencing transcript indicates that this sentence was imposed without the benefit of parole, probation, or suspension of sentence. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-187, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Thus, we instruct the trial court to correct the court minutes of sentencing to reflect that Defendant’s sentence for human trafficking twas imposed without these benefits. See State v. Pete, 13-1107 (La.App. 3 Cir. 3/5/14), 134 So.3d 196, writ denied, 14-705 (La. 11/7/14), 152 So.3d 173, and State v. Clayton, 10-1303 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, writ denied, 11-1015 (La. 11/4/11), 75 So.3d 923.

DECREE

Defendant’s convictions and sentences are conditionally affirmed based on evidence in the record on appeal. However, we remand this matter to the trial court for an evidentiary hearing to determine whether the plea entered constituted an Alford plea or a nolo contendere plea. If the trial court determines an Alford plea was entered, the trial court shall conduct an additional Boykin hearing to ensure that there is a factual basis to support Defendant’s pleas, and to allow the State an opportunity to present other evidence of Defendant’s guilt at that hearing. If the trial court determines the State is unable to establish a sufficient factual basis | 1sfor Defendant’s pleas, the trial court will set aside the convictions and sentences. If the trial court finds the State sufficiently establishes a factual basis, it will affirm Defendant’s convictions and sentences. In that event, the trial court is instructed to correct- the court minutes of sentencing to reflect Defendant’s sentence for human trafficking was imposed without benefit of parole, probation, or suspension of sentence.

Defendant may appeal from any adverse ruling on the issue of whether a factual basis is sufficient to support the plea..

CONDITIONALLY AFFIRMED; CASE REMANDED FOR ADDITIONAL HEARING WITH INSTRUCTIONS.

      . See a discussion of the difference between a no contest plea and an Alford plea below.

      . Defendant raises this issue for the first time on appeal. However, this court may consider it because of the constitutional nature of Defendant’s argument that her plea was not made freely and voluntarily. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095.

      . Defendant may raise this claim on appeal, even though she did not file a motion to withdraw the pleas, because she alleges her pleas are constitutionally infirm. See State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36.

      . The plea form includes a hand-written note indicating "Count 1” was dismissed as a re-suit of Defendant’s plea. Court minutes also indicate that count was dismissed.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Bryan REED v. COWBOY’S WESTERN STORE AND TRAILER SALES, INC., et al.
    16-462
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2017

      Raymond C. Jackson, III, Allen & Gooch, P. 0. Box 81129, Lafayette, LA 70598-1129, Telephone: (337) 291-1000, COUNSEL FOR: Defendants/Appellees— Cowboy’s Saloon, L.L.C. and Larry Bac-que, Sr.
    Jeffrey A. Rhoades, Swift & Rhoades, P. O. Box 53107, Lafayette, LA 70502-3107, Telephone: (337) 572-9877, COUNSEL FOR: Defendants/Appellees—Cowboy’s Saloon, L.L.C. and Larry Bacque, Sr.
    James Allen Lochridge, Jr., Voorhies & Labbé, P. O. Box 3527, Lafayette, LA 70502-3527, Telephone: (337) 232-9700, COUNSEL FOR: Defendants/Appellees— Larry Bacque, II and Bac Three, Inc.
    Patrick Daniel, Daniel & Associates, 2409 Commerce Street, Houston, TX 77003, Telephone: (713) 589-3539, COUNSEL FOR: Plaintiff/Appellant—Bryan Reed
    John E. McElligott, Jr., Kevin M. Dills, Robert D. Felder, Jami L. Lacour, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP, 810 South Buchanan Street, Lafayette, LA 70501, Telephone: (337) 237-1660, COUNSEL FOR: Defendant/Appellee—Founders Insurance Company
    Peter A. Bourgeois, Blake W. Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, One Shell Square, 701 Poydras Street—40th Floor, New Orleans, LA 70139, Telephone: (504) 525-6802, COUNSEL FOR: Defendant/Appellee—Essex Insurance Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

| t Bryan Reed appeals the trial court’s judgment granting summary judgment and sustaining an exception of res judicata in favor of Cowboy’s Western Store and Trailer Sales, Inc., Founders Insurance Company, Larry Bacque, Sr., Cowboys Saloon, L.L.C., Essex Insurance Company, and Bac Three, Inc. (collectively, “Cowboys”). Mr. Reed was injured when his tractor was rear-ended by a vehicle driven by Megan Smith, who was under the age of 21. He alleges that Ms. Smith was impaired from a night of drinking alcohol at Cowboys, a bar. Finding that Mr. Reed did not controvert Cowboys’ expert affidavit, which attested that Ms. Smith was not impaired, the trial court granted Cowboys’ Motion for Summary Judgment. The trial court also later sustained an Exception of Res Judicata. There, Cowboys argued that claims alleged in Mr. Reed’s Fourth Amended Petition, which was filed after the Motion for Summary Judgment was filed, were barred. Mr. Reed appeals both judgments. The appeals have been consolidated by this court. For the reasons that follow, we affirm both judgments.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting Cowboys’ Motion for Summary Judgment.
(2) whether the trial court erred when it sustained Cowboys’ Exception of Res Judicata.

II.

FACTS AND PROCEDURAL HISTORY

This matter is a vehicular collision that resulted in injury to Mr. Reed. The accident occurred during the early hours of the morning when Ms. Smith rear-ended the tractor that Mr. Reed was driving. Mr. Reed alleges that Ms. Smith, who was under the legal drinking age at the time, was impaired when the accident occurred and her impairment caused the accident. He further alleges that Ms. Smith was impaired from a night of consuming alcohol at Cowboys, which is a bar in Lafayette Parish. Ms. Smith did not receive a citation from the responding deputy. However, Mr. Reed was cited for operating his tractor without lights and was ultimately convicted for that infraction.

Mr. Reed named Cowboy’s Western Store & Trailer Sales, Inc., Cowboy’s Saloon, L.L.C., Bac Three, Inc., Larry Bac-que, Sr., and Ms. Smith in his original petition. He' later amended his petition to add insurance defendants, Founders Insurance Company, Essex Insurance Company, and James River Insurance Company.

Cowboys filed a Motion for Summary Judgment before the trial court. After the Motion for Summary Judgment was filed, but before it was heard, Mr. Reed filed a Fourth Amended Petition. The amended petition added claims against persons who allegedly gave Ms. Smith alcohol and a spoliation claim against her parents for disposing the vehicle after the accident. It also asserted a claim against Cowboys for a failure to supervise its employees.

The trial court granted the motion and dismissed the claims finding that Mr. Reed failed to rebut Cowboys’ expert affidavit, which attested that Ms. Smith was not impaired at the time of the accident. The trial court’s judgment was [^.amended by consent of the parties to add James River Insurance, Founders Insurance Company, and Essex Insurance Company, none of whom was a party to the motion. The trial court also later sustained Cowboys’ Exception of Res Judicata finding that the claims alleged in the Fourth Amended Petition were barred by the court granting summary judgment.

Mr. Reed filed three appeals, two of which challenge the trial court granting summary judgment and its amended judgment. The third challenges the trial court sustaining the exception of res judicata. This court consolidated the three appeals.

III.

SUMMARY JUDGMENT

A. Standard of Review

The grant or denial of a motion for summary judgment is reviewed de novo, “using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882-83.

B. Law and Discussion

Mr. Reed contends that the trial court improperly granted the Motion for Summary Judgment. He argues that the trial court’s reasoning improperly disregarded lay witness testimony who attested that Ms. Smith was impaired. Mr. Reed argues that supreme court jurisprudence and La. Code Evid. Art. 701 allow lay Rwitnesses to testify regarding their opinion whether a person is intoxicated. Thus, the lay witnesses’ testimonies create questions of fact concerning Ms. Smith’s impairment that precludes summary judgment. Instead, the trial court reasoned that Cowboys’ expert affidavit was uncontroverted and granted summary judgment.

Further, Mr. Reed contends that Cowboys had a duty to prohibit minors from possessing and consuming alcohol on their premises. Mr. Reed also contends that the trial court erred by admitting the expert affidavit of Dr. William George because it did not meet the Danbert standard of reliability.

Finally, he argues that the trial court erred by not granting him leave to file his sur-reply. Because Cowboys submitted new evidence in their reply brief, Mr. Reed argues that Cowboys violated La. Code Civ.P. Art. 966(B)(3). Consequently, the reply brief should have been converted into a new motion for summary judgment for which he was entitled to respond. What Mr. Reed overlooks, however, is that subsection (B)(3) was effective on January 1, 2016; the Motion for Summary Judgment was filed on December 17, 2015; and, therefore, this subsection is inapplicable.

In opposition, Cowboys argue that the trial court properly dismissed the matter because Mr. Reed did not provide evidence or testimony to rebut their expert. Thus, Mr. Reed could not establish that Ms. Smith was impaired at the time of the accident and that her impairment was the cause. Further, the testimonies of Mr. Reed’s lay witnesses were speculative, and there is no clear evidence that Ms. Smith was impaired. They also, maintain that it was within the | strial court’s discretion to deny Mr. Reed’s sur-reply as it was filed after business hours the Friday before the Monday morning hearing.

Cowboys contend that its expert affidavit meets the Daubert standard as it outlines the methodology used. They also contend that they did not have a duty to patrol their property to ensure that Ms. Smith did not possess or consume alcohol.

Louisiana has adopted a duty-risk analysis to determine whether to impose liability in a tort action. The duty-risk analysis requires consideration of five separate elements, all of which must be met for Mr. Reed to recover. The duty-risk analysis requires Mr. Reed to establish that: (i) Cowboys had a duty to meet a certain standard of conduct (the duty element); (2) Cowboys’ conduct failed to meet that standard (the breach element); (3) the substandard conduct was a cause-in-fact of his injuries (the cause-in-fact element); (4) the substandard conduct was the legal cause of his injuries (the scope of liability or scope of protection element); and (5) that he suffered actual damages as a result of the breach (the damages element). Bonin v. Ferrellgas, Inc., 03-3024 (La. 7/2/04), 877 So.2d 89.

Mr. Reed focuses primarily on the causation element. However, our view is that this case turns on whether Cowboys owed a duty and whether they breached that duty. Mr. Reed contends that Cowboys had a duty to ensure underage patrons did not consume or possess alcohol on their premises. Cowboys argue that no such duty exists, and they were only obligated not to sell or serve Ms. Smith alcohol.

Mr. Reed cites La.R.S. 26:90, La.R.S. 26:286, and the Lafayette Government Ordinance 6-13 to support his position. He argues that these polices |r,impose a duty on an alcohol permit holder to prohibit possession and consumption of alcohol by underage patrons. The court will address each in turn.

First, La.R.S. 26:90 and 26:286 regulate alcohol permit holders. In part, they make it unlawful for a vendor to sell or serve alcohol to patrons under the age of 21. The pertinent portion of each statute has the same language. They state that it is unlawful to “[s]ell, offer for sale, possess, or permit the consumption on or about the licensed premises of any kind or type of alcoholic beverage, the sale or possession of which is not authorized under his permit, except as provided for in R.S. 26:793(A)(5).” La.R.S. 26:90(A)(5); 26:286(A)(5).

Mr. Reed draws attention to the words “possess or permit the consumption on or about the licensed premises” in his brief. He implores us to determine that this phase creates a duty for vendors to patrol its premises for underage drinking. However, it is clear from the text of the statutes they relate to the type of alcohol that a vendor can sell or possess based on its permit classification. They do not mention whether a vendor has a duty to supervise to ensure that underage patrons do not consume or possess alcohol.

Second, Lafayette Government Ordinance 6-13(c) makes it unlawful in the parish for an alcohol permit holder to allow an underage person to possess alcohol on its premise. In pertinent part, the ordinance states “[i]t shall ... be unlawful for any person required to hold an alcoholic beverage permit issued pursuant to this chapter to allow and/or permit anyone under 21 years of age to be in public possession of any alcoholic beverage[.]” Lafayette Government Ordinance 6-13(c). Violation of this ordinance is punishable “by a fíne not exceeding $500.00 or imprisonment for a term not exceeding six months, or both 17such fíne and imprisonment, for each violation.” Lafayette Government Ordinance 1-9; see also Lafayette Government Ordinance 6-3. The establishment’s owner and/or the permittee could also be subject to revocation or suspension of his or her permit. Lafayette Government Ordinance 1—9(d).

The court’s reading of. the ordinance reveals that it is a penal law that subjects the permit holder to penalties. It does not impose a heightened duty under tort law to surveil an establishment to ensure that underage patrons do not consume alcohol.

Further, jurisprudence holds that an alcohol vendor does not-have a heightened duty to patrol its establishment to prevent underage drinking. For example, in Sparrow v. Wheeler, 10-21 (La.App. 1 Cir. 6/11/10), 2010 WL 2342758, after drinking at a bar, an underage patron was involved in a vehicular accident that resulted in injury to the plaintiff. There was no evidence that the bar sold or served alcohol to the underage patron. Instead, the plaintiff argued that the bar had a heightened duty to ensure that underage patron did not obtain alcohol while at the bar.

The court disagreed and held that summary judgment was appropriate. It concluded that the plaintiff did not establish that the bar sold or served alcohol to the underage patron the night of the accident. It further reasoned that “[t]o the extent that plaintiffs ask this court to create and impose a heightened duty herein, we find no support and decline to do so.” Id. at *3.

Similarly, in Colgate v. Mughal Brothers, Inc., 36,754 (La.App. 2 Cir. 1/29/03), 836 So.2d 1229, the second circuit held that a nightclub was not liable because there was no evidence that it sold or served alcohol to an underage patron who was later in a fatal, single-car accident. There, the mother of the decedent |8brought action against the nightclub where her daughter consumed alcohol the night of the accident. The mother argued that the nightclub was negligent because it failed to prevent the sale of alcohol to her daughter and/or allowed others to furnish her with alcohol.

There was no evidence that the nightclub sold her alcohol. Instead, a witness testified that he saw her take two glasses of beer from the bar. The witness did not see her pay for the beers nor did he see a bartender hand them to her. The trial court held that the nightclub was liable.

The second circuit reversed. It determined the nightclub had a duty not to sell or serve alcohol to underage patrons. However, there was only speculative evidence that it breached that duty. It stated that for the trial court to reach its decision it had to conclude that the nightclub served or sold her alcohol.

The appellate court reasoned other plausible scenarios existed, such as someone of legal drinking age buying her drinks or her fraudulently obtaining a bracelet, which the nightclub used to identify patrons of drinking age, with false identification. The court reasoned that “to reach the conclusion that [the nightclub] breached a duty to [the decedent] would require speculation that [the decedent] was intoxicated as a sole result of being sold or served alcohol by employees of [the nightclub], of which there is no evidence.” Id. at 1234. The court determined that her action of taking two glasses of beer from the bar was insufficient to establish that the vendor sold or served her alcohol. Id. at 1229.

Mr. Reed cites case law that is unconvincing and distinguishable from the facts at hand. He cites Kramer v. Continental Casualty Co., 92-1131 (La.App. 3 Cir. 6/22/94), 641 So.2d 557, for the proposition that a vendor has a duty to confiscate alcohol possessed by a minor. In that case, teenagers rented a hotel |aroom for a party, consumed alcohol, and became intoxicated. After receiving complaints, the hotel manager instructed security guards to expel the teenagers from the hotel. The security guards observed several teenagers possessing and consuming alcohol, including drinking from a 16-gallon keg. The security guards instructed the teenagers to vacate the premises, which forced them to drive home after a night of drinking alcohol. One of the teenagers was later involved in a single-car accident resulting in injuries to his passenger and himself. The court determined that “the [hotel] should have reasonably foreseen that injuries would be caused by an alcohol-related accident by a minor, who was allowed to, drink and become intoxicated on its premises with its knowledge, and who was forced to drive in that condition by [the hotel].” Id. at 571.

Kramer did not involve an alcohol vendor selling or serving alcohol to someone under the legal drinking age, nor did it involve an argument to impose a heightened duty for an establishment to supervise its premise to prevent underage drinking. The ruling was based on: (1) sufficient evidence that the driver was intoxicated; (2) the security guards, who were off-duty sheriff deputies, had a duty to enforce the drinking law applicable to minors; and (3) the security guards, despite knowledge that the minors consumed alcohol, knowingly allowed the minors to drive. None of these instances exists here.

It is clear from the mentioned case law the only duty Cowboys had was to refrain from selling or serving alcohol to Ms. Smith. With regard to a breach of that duty, the record is void of evidence that a bar employee sold or served her alcohol. We are left only with speculation as to how Ms. Smith acquired the alcohol. “Probabilities, surmises, speculations, and conjectures are insufficient to prove negligence by a preponderance of the evidence.” Colgate, 836 So.2d at 1234 (citing Cangiano v. Forte Hotels, Inc., 00-40 (La.App. 5 Cir. 10/31/00), 772 So.2d 879, writ denied, 00-3254 (La. 1/26/01), 782 So.2d 636.

As in Sparrow and Colgate, we decline to impose a heightened duty that Cowboys was obligated to patrol their premises continuously to ensure that underage patrons did hot possess or consume alcohol by way of an unlawful mean (e.g. a person of legal drinking age purchasing a drink then transferring it to an underage person). A finding of no legal duty pretermits a review of- the remaining elements under the duty/risk analysis.

Nonetheless, even arguing arguen-do that duty and a breach of duty are established, Mr. Reed has not established causation—that Ms. Smith was intoxicated the night of the accident and her intoxication was the cause. Mr. Reed contends that his lay witnesses rebut Cowboys’ expert affidavit to create a genuine issue of material fact. These lay witnesses, Mr. Reed argues, testified that Ms. Smith was impaired.

However, “a motion for summary judgment should not be determined based on testimony that is ‘mere speculation.’” Skinner v. Derr Constr. Co., 05-816, 05-817, p. 9 (La.App. 4 Cir. 7/26/06), 937 So.2d 430, 436 (citing Jones v. Estate of Santiago, 03-1424, p. 10 (La. 4/14/04), 870 So.2d 1002, 1008); see also Keller v. Messina, 05-745 (La.App. 3 Cir. 2/1/06), 921 So.2d 1162 (holding that defendant’s testimony that plaintiff may have made a quick stop was speculative, and thus, insufficient to rebut the plaintiffs evidence that she was free from fault when the defendant rear-ended her).

The record reflects that two persons, Chris Darby and Ashley Burghdoff, each offered shifting testimony as to whether Ms. Smith was impaired. In For example, Mr. Darby, who was the last person to see Ms. Smith before the accident, testified that:

Q: Okay: And when you dropped her off, did she appear to be intoxicatéd when you dropped her off
A: Yes. She was. I mean we kind of sober up. I mean, you know.
Q: Okay. And what makes you think that she was intoxicated because you didn’t know her very well, I mean was she slurring her words or?
A: Pretty much just the way she acted, you know, you could tell that she [sic] must have been drinking something or may have drank something on the way home, I’m not sure

However, he also stated that:

Q: All right the next question is: “Okay: And when you dropped her off did she appear to be intoxicated when you dropped her off?” What was your answer?
A: “I mean she was sober up. But I mean I would say that she was more tired than, than drunk”

Ms. Burghdoff, who saw. Ms. Smith approximately 30 minutes, before the accident, testified that:

Q: Was [your opinion that Ms. Smith was intoxicated] based on prior experience with Megan Smith? In other words, had you been with Megan Smith before when she was drunk, and that’s what you were using to identify she was clearly intoxicated?
, A: I don’t remember being with her when, she was definitely drunk, but I have been around her enough sober to know the difference of when she was sober and when she was under the influence[.]
Q: So there was no question in your mind she was under the influence of alcohol, .based on your past experience with her?
I12A: Yes.

Conversely, when asked to explain her statement that Ms. Smith was “clearly intoxicated,” she stated “[a]s of right now, I can’t explain it because I don’t remember. I don’t remember—I didn’t remember now ... No I wasn’t lying. But I—maybe I stated it wrong in my statement possibly by saying clear intoxicated.”

The record is replete with other examples of inconsistent testimony. Their testimony can be summed up as Ms. Smith “could have” been impaired but they are not certain. Testimony of this type is speculative because it fails to indicate that Mr. Reed could be able to establish at trial that Ms. Smith was impaired. Thus, the testimony of Mr., Darby and Ms. Burghdoff is insufficient to create a genuine issue of material fact in light of Cowboys’ uncon-troverted expert affidavit.

Mr. Reed’s argument that the expert affidavit is unreliable is also unconvincing. He . argues that the expert affidavit was conelusory and not based on personal knowledge. The inadequacy of. an affidavit is a “formal defect,” and the opponent waives the defect unless he or she files a motion to strike or otherwise objects to the affidavit. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226. Mr. Reed did not file a motion to strike the expert affidavit, but did object during the hearing on Cowboys’ Motion for Summary Judgment.

The supreme court adopted the Daubert standards as those to be utilized by Louisiana courts. State v. Foret, 628 So.2d 1116 (La.1993). At the summary judgment stage, the Daubert-Foret standard should be considered by the trial judge in deciding whether to admit expert opinion evidence. Indep. Fire Ins. Co., 755 So.2d at 226. In performing its gatekeeping analysis at the summary judgment stage, the court: (1) cannot make credibility determinations, (2) must “focus solely on the principles and methodology, not on the conclusions they generate,” (3) “must draw inferences from the undisputed facts which are most favorable to the party opposing the motion,” and (4) “should only grant a motion to strike when the evidence presented established that there is no genuine issue of material facts in dispute.” Id. at 236 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, n. 6, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Further, our supreme court has held that affidavits from experts that are not based on personal knowledge are admissible to support or defend against a motion for summary judgment if the above principles are met. Indep. Fire Ins. Co., 755 So.2d at 226.

In examining the expert affidavit submitted by Dr. George, we conclude that it is not conclusory. Contrary to Mr. Reed’s argument, his affidavit includes his methodology. In reaching his determination, Dr. George examined twenty-two pieces of evidence, including the deposition of Ms. Smith, Mr. Darby, and Ms. Burghdoff, and the accident report written by the responding deputy. He examined Ms. Smith’s body weight, the amount of alcohol that she consumed that night (two beers and one mixed drink), and the time that elapsed between her leaving the bar and the accident (four hours). Based on his expertise as a scholar in toxicology and pharmacology, he concluded that Ms. Smith was neither intoxicated nor impaired when the accident occurred. Accordingly, we find that the trial court did not err in overruling Mr. Reed’s objection to Cowboys’ expert affidavit. Further, we conclude that the trial court’s reliance on the expert affidavit was proper.

(Finally, we hold that the trial court did not err by not considering Mr. Reed’s sur-reply. The motion for leave to file the brief was filed via fax after business hours on the Friday before the Monday morning hearing. At the time of the hearing, the late-filed memorandum was not before the court.

We note that although the sur-reply was filed via fax, an original was not filed into the record within seven days as required by La.R.S. 13:850(B). We also note that even if the trial court had granted leave to file the sur-reply, the memorandum and attached affidavit do not advance an issue in this matter. Mr; Reed’s memorandum restates previous arguments. Additionally, the attached affidavit from Brian Frist, a forensic pathologist, was deficient because it was not notarized. Durham v. Brown, 14-1042 (La.App. 3 Cir. 3/4/15), 159 So.3d 1149; Gorman v. Miller, 12-412, p. 8 (La. App. 1 Cir. 11/13/13), 136 So.3d 834, 841 (“A document that is not signed and notarized cannot be considered as an affidavit.”); see also Landry v. Stein, 497 So.2d 1075, 1077 (La.App. 5 Cir. 1986) (“Un-sworn and unverified documents are not of sufficient evidentiary quality to be given weight in determining whether there is a genuine issue of material fact.”).

Dr. Frist first states that based on the evidence he reviewed, he is uncertain of the amount of alcohol Ms. Smith consumed. Nevertheless, he later concluded that this indeterminate amount of alcohol caused Ms. Smith to become impaired. He does not include the methods (such as an examination of body weight, time elapsed, or drinks consumed) that he used to reach his conclusion. His testimony in no way rebuts Dr. George’s opinion that Ms. Smith was not | ^impaired at the time of the accident. Therefore, we conclude that the trial court did not err by not considering the sur-reply. Further, even if it did consider the sur-reply, it does not advance an issue in this matter.

Accordingly, for the reasons stated, we conclude that the claims against Cowboys were properly dismissed via, summary judgment by the trial court.

IV.

EXCEPTION OF RES JUDICATA

A. Standard of Review

The parties dispute the standard of review that should be applied. Mr. Reed acknowledges that appellate courts typically review an exception of res judicata using the manifest error standard. However, he asserts that a de novo review is required because the trial court did not make a factual determination in reaching its ruling; thus, the res judicata effect is a question of law.

Cowboys ask this court to apply the manifest error standard.. It notes that a ruling sustaining an exception of res judi-cata is reviewed using the manifest error standard when the exception is raised before the case is submitted.

“The standard of review of a ruling sustaining an exception of res judicata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties.” Jones ex rel. Jones v. GEO Grp., Inc., 08-1276, p. 4 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021, 1024; see also Allain v. Tripple B Holding, LLC, 13-673, p. 9 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278, 1285 (“An appellate court reviews the exception under the manifest error standard of review if evidence is introduced in support or contravention of the exception.”).

[ i,However, in the event “the trial court does not make any factual determinations, but rather the issue is whether a prior judgment bars an action, *[t]he res judicata effect of a prior judgment is a question of law that is reviewed de novo.’” Haybeych v. JPMorgan Chase Bank, N.A., 15-90, p. 3 (La.App. 3 Cir. 11/4/15), 180 So.3d 491, 494 (quoting Morales v. Parish of Jefferson, 10-273, p. 6 (La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672).

During the hearing, Mr. Reed attempted to admit a number of items, including the petitions that are at issue, his opposition to the Exception of Res Judicata, and a number of exhibits, including the sur-reply to Cowboys’ Motion for Summary Judgment, evidence concerning Dr. William George’s unreliability, and affidavits from Jody Fon-tenot and Dr. Brian Frist. The petitions, his opposition to the Exception of Res Judicata, and his opposition to Cowboys’ Motion for Summary Judgment were admitted without objection. Cowboys objected to the remaining items. The court sustained Cowboys’ objections and thereafter sustained the exception.

It is unclear whether the trial court considered any exhibits or evidence when it rendered its ruling or simply examined the petitions to determine the res judicata effect of granting summary judgment. Although the judgment notes the court made its ruling after “considering the pleadings ... the applicable law, evidence submitted, [and] arguments of counsel,” the ⅛⅛1 court sustained the objections and granted the exception without oral or written reasons. Therefore, because it is unclear if the court made a factual finding when it rendered its ruling, we will conduct a de novo review.

|17B. Law and Discussion

Mr. Reed argues that the trial court’s ruling granting summary judgment did not include claims that were asserted in his Fourth Amended Petition, which was filed after the Motion for Summary Judgment. Thus, they are not barred by res judicata. Mr. Reed contends: (1) that his new claims did not require an intoxication evaluation, which was the basis of the trial court granting summary judgment; (2) because the trial court improperly accepted Dr. George’s affidavit as reliable, exceptional circumstances exist pursuant to La. R.S. 13:4232 to justify relief from the res judicata effects of the judgment; and (3) granting of summary judgment was not a final judgment for purpose of res judicata because it is the subject of this appeal.

In opposition, Cowboys maintains that the Fourth Amended Petition is barred by res judicata because: (1) -it restates the claims made in the Third Amended Petition, with minor revisions, (2) the claims existed when the trial court signed its judgment; (3) the claims arose from the same transaction or occurrence that were the subject of the dismissed claims; (4) no exceptional circumstances exist; arid (5) the judgment was final.

Louisiana Revised Statutes 13:4231 states:

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 11Rtime 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.

The supreme court has established elements for courts to consider when deciding a res judicata issue. These elements include whether: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049. The “chief inquiry” is whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action. Id. at 1053.

In his Fourth Amended Petition, Mr. Reed alleges: (1) Ms. Smith’s parents (Williams and Wendy Smith) spoliated evidence by destroying the vehicle she drove that night; (2) Cowboys failed to confís-cate Ms. Smith’s alcohol; (3) Dakota Ar-mond, Chris Darby, and Chelsea Rodriguez acted as Cowboys’ agents by buying her drinks until she became intoxicated; and (4) Cowboys failed to supervise its employees.

Based on our de novo review, the claims asserted in the Fourth Amended Petition against Cowboys clearly arose out of the same transaction or | ^occurrence (the accident and Ms. Smith’s alleged impairment) that formed the basis of the previous petitions. In fact, many of the allegations in the amended petition simply rephrase previous claims with insignificant revisions. For example, Mr. Reed changed “allowing minors to obtain alcohol while under its care [sic] custody, and control” to “allowing minors to obtain and receive alcohol while under its care [sic] custody, and control.” Further, all of the claims in the subject amended petition against Cowboys arise from the same nucleus of facts previously alleged and existed when the trial court issued its judgment.

Additionally, the court’s judgment is clearly a final judgment for res judicata purposes. “[A] judgment becomes final once signed by the trial judge unless reversed on appeal.” In re Succession of Bernat, 13-277, p. 7 (La.App. 3 Cir. 10/9/13), 123 So.3d 1277, 1283, writ denied, 13-2640 (La. 2/7/14), 131 So.3d 865. Thus, the judgment was final on March 7, 2016, unless it is later reversed. We also decline to hold that exceptional circumstances exist to justify relief from the res judicata effect of the judgment. No such circumstances exist for the reasons stated in this opinion, mainly that the trial court was correct in relying on Cowboys’ expert affidavit and not considering Mr. Reed’s sur-reply.

The claims against the newly inserted defendants also do not alter this court’s analysis. Those claims, that Ms. Smith’s parents spoliated evidence and that her friends purchased drinks for her, do not involve any duty that Cowboys owed. Nor do they impose liability on Cowboys if proven. In short, there are no new claims in the Fourth Amended Petition relevant to Cowboys’ alleged conduct that arises out of a different transaction or occurrence. Accordingly, based on our de novo review, Cowboys’ Exception of Res Judica-ta was properly sustained by the' trial court.

hoV-

CONCLUSION

For the foregoing reasons, the trial court’s rulings are affirmed. Costs of this appeal are assessed to Bryan Reed.

AFFIRMED.

      . Case No. 16-462 and 16-640 both relate to the trial court granting summary judgment. • The parties assert similar arguments in their respective briefs for each appeal. Thus, the cases will be considered under one heading. We do note that 16-462 relates to a judgment that later was amended by the trial court. The amended judgment, which was agreed-to by the parties, is the base of 16-640. We only considered the amended judgment in making our ruling.

      . This article states, "[a]ny reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum." La.Code Civ.P. Art. 966(B)(3).

      . Louisiana Revised Statutes R.S. 26:793(A)(5) regulates homebrewed beverages.

      . In full, Dr. Frist states: "It is my opinion the amount of alcohol consumed by Megan Smith during the early morning hours of June 22, 2012 would have impaired her and affected her ability to operate a motor vehicle, her judgment, her reaction time, her decision making, her vision, and would have contributed to the subject accident."


text:
    Bryan REED v. COWBOY’S WESTERN STORE & TRAILER SALES, INC., et al.
    16-722
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2017

      Raymond C. Jackson, III, Allen & Gooch, P. 0. Box 81129, Lafayette, LA 70598-1129, Telephone: (337) 291-1000, COUNSEL FOR: Defendants/Appellees— Cowboy’s Saloon, L.L.C. and Larry Bac-que, Sr.
    Jeffrey A. Rhoades, Swift & Rhoades, P. O. Box 53107, Lafayette, LA 70502-3107, Telephone: (337) 572-9877, COUNSEL FOR: Defendants/Appellees—Cowboy’s Saloon, L.L.C. and Larry Bacque, Sr.
    James Allen Lochridge, Jr., Voorhies & Labbé, P. O. Box 3527, Lafayette, LA 70502-3527, Telephone: (337) 232-9700, COUNSEL FOR: Defendants/Appellees— Larry Bacque, II and Bac Three, Inc.
    Patrick Daniel, Daniel & Associates, 2409 Commerce Street, Houston, TX 77003, Telephone: (713) 589-3539, COUNSEL FOR: Plaintiff/Appellant—Bryan Reed
    John E. McElligott, Jr., Kevin M. Dills, Robert D. Felder, Jami L. Lacour, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP, 810 South Buchanan Street, Lafayette, LA 70501, Telephone: (337) 237-1660, COUNSEL FOR: Defendant/Appellee—Founders Insurance Company
    Peter A. Bourgeois, Blake W. Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, One Shell Square, 701 Poydras Street—40th Floor, New Orleans, LA 70139, Telephone: (504) 525-6802, COUNSEL FOR: Defendant/Appellee—Essex Insurance Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

JjFor the reasons discussed in the consolidated case of Bryan Reed v. Cowboy’s Western Store and Trailer Sales, Inc., et al., 16-462 (La.App. 3 Cir. 3/1/17), 214 So.3d 987, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Bryan Reed.

AFFIRMED.


text:
    Bryan REED v. COWBOY’S WESTERN STORE & TRAILER SALES, INC., et al.
    16-640
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2017
    Raymond C. Jackson, III, Allen & Gooch, P. O. Box 81129, Lafayette, LA 70598-1129, Telephone: (337) 291-1000, COUNSEL FOR: Defendants/Appellees— Cowboy’s Saloon, L.L.C. and Larry Bac-que, Sr.
    Jeffrey A. Rhoades, Swift & Rhoades, P. O. Box 53107, Lafayette, LA 70502-3107, Telephone: (337) 572-9877, COUNSEL FOR: Defendants/Appellees—Cowboy’s Saloon, L.L.C. and Larry Bacque, Sr.
    James Allen Lochridge, Jr., Voorhies & Labbé, P. 0. Box 3527, Lafayette, LA 70502-3527, Telephone: (337) 232-9700, COUNSEL FOR: Defendants/Appellees— Larry Bacque, II and Bac Three, Inc.
    Patrick Daniel, Daniel & Associates, 2409 Commerce Street, Houston, TX 77003, Telephone: (713) 589-3539, COUNSEL FOR: Plaintiff/Appellant—Bryan Reed
    John E. McElligott, Jr., Kevin M. Dills, Robert D. Felder, Jami L. Lacour, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP, 810 South Buchanan Street, Lafayette, LA 70501, Telephone: (337) 237-1660, COUNSEL FOR: Defendant/Appellee—Founders Insurance Company
    Peter A. Bourgeois, Blake W. Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, One Shell Square, 701 Poydras Street—40th Floor, New Orleans, LA 70139, Telephone: (504) 525-6802, COUNSEL FOR: Defendant/Appellee—Essex Insurance Company
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated case of Bryan Reed v. Cowboy’s Western Store and Trailer Sales, Inc., et al., 16-462 (La.App. 3 Cir. 3/1/17), 214 So.3d 987, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Bryan Reed.

AFFIRMED.