Lafreniere Park Foundation v. Broussard

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-30588

THE LAFRENIERE PARK FOUNDATION,

Plaintiff - Appellant,

VERSUS

AARON F BROUSSARD, In his official and individual capacity as a
duly elected member of the Jefferson Parish Council, the governing
body of the Parish; THOMAS J WARD, In his official and individual
capacity as a duly elected member of the Jefferson Parish Council,
the governing body of the Parish; LLOYD F GIARDINA, In his official
and individual capacity as a duly elected member of the Jefferson
Parish Council, the governing body of the Parish; DONALD L JONES,
In his official and individual capacity as a duly elected member of
the Jefferson Parish Council, the governing body of the Parish;
EDMOND J MUNIZ, In his official and individual capacity as a duly
elected member of the Jefferson Parish Council, the governing body
of the Parish; JOHN T LAVARINE, JR, In his official and individual
capacity as a duly elected member of the Jefferson Parish Council,
the governing body of the Parish; NICHOLAS F GIAMBELLUCA, SR, In
his official and individual capacity as a duly elected member of
the Jefferson Parish Council, the governing body of the Parish; TIM
P COULON, In his official and individual capacity as the duly
elected Parish President; PARISH OF JEFFERSON, A political
subdivision of the State of Louisiana,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana

August 8, 2000
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

1
 The Lafreniere Park Foundation (the Foundation),a nonprofit

corporation, appeals the district court’s dismissal of its 42

U.S.C. § 1983 claim against the members of the Jefferson Parish

Council. The Foundation alleged that the Jefferson Parish

Councilmen and President, each sued in their individual and

official capacities, violated the Foundation’s First Amendment

rights to free speech and association and Fourteenth Amendment

rights to procedural due process by evicting the Foundation from

the Foundation Center Building (Center) in Lafreniere Park, by

freezing the Foundation’s assets, and by confiscating Foundation

property. In response to the defendants’ motions to dismiss and

for summary judgment, the district court dismissed all of the

Foundation’s claims against each of the defendants. The Foundation

appealed assigning as error the adverse judgment rejecting its

First Amendment claims against the councilmen. Concluding that the

res judicata effect of previous state court litigation precluded

the present § 1983 action, we affirm.

I. Facts and Procedural History

In 1980 the Foundation was formed by the Lafreniere Park

Advisory Board and the Jefferson Parish Council as a non-profit

corporation under the laws of Louisiana as a fund raising

organization for the benefit of Lafreniere Park. Principally, the

Foundation was organized to generate public support for the Park by

soliciting community support and contributions for the Park’s

capital improvements, recreational activities, and horticultural

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needs. In 1982 the Parish Council loaned $460,000 to the

Foundation for the construction of a building in Lafreniere Park to

serve as the Lafreniere Park Foundation Center. The Parish and the

Foundation entered into an agreement that the Center would be the

property of the Parish but subject to the reasonable use of the

Foundation. The Center was constructed, and the Foundation

occupied the building, outfitted it with fixtures, furniture, and

equipment, and repaid the loan. From 1983 to September 1996, the

Foundation occupied the Center rent and utility free.

Over time the relationship between the Parish Council and the

Foundation began to sour.1 The Parish Council, allegedly concerned

about a lack of accountability regarding the Foundation’s

expenditure of funds, sought to enter into a comprehensive

agreement with the Foundation. The Foundation balked, allegedly

out of its concern that such an agreement might result in the loss

of its tax exempt status with the Internal Revenue Service. On

August 14, 1996, the Parish Council adopted Resolution Number

82755. This resolution (1) withdrew Jefferson Parish’s support of

the Foundation; (2) canceled all existing agreements between the

Parish Council and the Foundation; (3) gave the Foundation 30 days

notice to vacate the Center; (4) required the Foundation to turn

1
Recounting the long and tortured demise of this relationship is
not necessary for purposes of this appeal, but the saga is more
fully chronicled in two published state court opinions. See Parish
of Jefferson v. Lafreniere Park Foundation, 720 So.2d 359 (La.App.
5th Cir. 1998) and Parish of Jefferson v. Lafreniere Park
Foundation, 716 So.2d 472 (La.App. 5th Cir. 1998).

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over to Jefferson Parish whatever money, equipment and other

property belonging to the parish; and (5) authorized the Parish

Attorney to initiate legal actions to effectuate the substantive

components of the resolution.

A letter to vacate the center was delivered to the Foundation

by the Parish Attorney, and in September 1996 the Parish Council

locked the Foundation out of the Center and took control of the

fixtures, furniture, and equipment.

a) The State Court Action

On October 22, 1996, the Parish of Jefferson filed suit in

state court against the Foundation seeking a declaratory judgment

(and alternatively alleging a breach of contract) decreeing that

the funds held by the Foundation could only be spent for the

benefit of Lafreniere Park in accordance with the Foundation’s

charter and bylaws. The Parish also sought a temporary restraining

order (TRO), preliminary injunction, and permanent injunction

restraining the Foundation from (1) spending any funds for any

purpose other than for improvements at Lafreniere Park, (2) doing

business with Foundation Board Members, (3) holding any fund

raisers and presenting itself as an agency of Lafreniere Park, the

East Jefferson Park and Community Center and Playground District of

the Parish of Jefferson, or the Parish of Jefferson, and (4)

soliciting funds from the general public by representing that the

funds would be spent in the Park or at other Parish facilities.

Paragraph XII of the complaint expressly referred to Resolution

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Number 82775 whereby the Parish Council withdrew its support from

the Foundation, canceled all agreements with the Foundation, and

gave the Foundation 30 days to vacate the Center and turn over to

the Parish Council certain monies, equipment and other property.

In its answer, the Foundation, its President (Thomas C.

Chambers), and its Executive Director (Carol Berlier) asserted a

reconventional demand alleging that the Parish Councilmen,

defendants-in-reconvention, had maliciously instigated the

principal action fully aware that there was no basis in law or in

fact to support it. The reconventional demand purported to name as

defendants-in-reconvention the Councilmen in their individual

capacities, and it sought damages for their tortious conduct in

authorizing the principal action in violation of the plaintiffs’-

in-reconvention federal and state constitutional and statutory

rights of due process and equal protection under the law. The

Foundation sought to recover damages resulting from the wrongful

deprivation of its property, public humiliation, and loss of

reputation and damage to its good name in the community.

On November 19, 1997, following a bench trial, the state court

entered judgment for the Parish of Jefferson (1) declaring that

Foundation’s funds and assets could only be expended on Lafreniere

Park; (2) ordering the Foundation to transfer into the registry of

the court all of its funds and assets within seven days; (3)

ordering the Foundation to submit all books and records to the

Parish Attorney within 21 days for an accounting; (4) permanently

5
enjoining the Foundation from disbursing any funds to any

organization other than for the benefit of Lafreniere Park; and (5)

dismissing with prejudice the Foundation’s reconventional demand.

This judgment was affirmed on appeal. See Parish of Jefferson v.

Lafreniere Park Foundation, 716 So.2d 472 (La.App. 5th Cir. 1998).

b) The Federal Court Action

By way of an original and a supplemental and amending

complaint filed by the Foundation on March 21, 1997 and April 6,

1998, respectively, the Foundation brought suit in federal court

under 42 U.S.C. § 1983 against the Parish, the Parish President,

and the Parish Councilmen, with the President and Councilmen being

sued both in their individual and official capacities. This suit

alleged that the Parish Councilmen, by adopting and implementing

Resolution Number 82775, locking the Foundation out of the Center,

and confiscating the fixtures, furniture, and equipment, had

deprived the Foundation of its property and of its right to occupy

the Center without due process of law in violation of the

Fourteenth Amendment. This suit also alleged that by authorizing

the state suit filed in October 1996 and in securing a TRO (and six

extensions of the TRO) freezing the Foundation’s assets, the Parish

Councilmen had retaliated against the Foundation due to its refusal

to fire Carol Berlier, the Foundation’s Executive Director, and

sought to use the pending state litigation as leverage to induce

her termination, in violation of the Foundation’s First Amendment

rights of free speech and association. The Foundation specifically

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prayed for damages in the amount of the value of the Center and/or

the value of its leasehold interest in the Center, the value of the

fixtures, furniture, equipment, the loss of income due to the

eviction, as well as for punitive damages, attorney fees, costs,

and judicial interest.

The defendants answered each complaint in turn, and on

December 29, 1997 filed a motion to dismiss pursuant to Federal

Rule of Civil Procedure 12 (b)(6) based, inter alia, on the defense

of legislative immunity. On March 23, 1998, the defendants filed

a motion for summary judgment asserting the defense of res

judicata.

On September 30, 1998, the district court granted in part the

Rule 12(b)(6) motion and dismissed (1) the Foundation’s due process

claims; (2) the Foundation’s First Amendment claims against the

Councilmen in their individual capacities due to their entitlement

to legislative immunity; and (3) the Foundation’s claims against

Parish President Tim Coulon in his individual capacity. The

district court subsequently granted the defendants’ motion for

summary judgment on May 28, 1999 due to the res judicata effect of

the prior state court litigation. By an amended order of the same

date, the district court dismissed the case against President

Coulon in his official capacity. Accordingly, the district court

entered a final judgment dismissing the suit. The Foundation

appealed.

In its appeal, the Foundation seeks relief only from the

7
district court’s dismissal of its First Amendment claim against the

Councilmen. The Foundation argues that: (1) the Parish Council’s

resolution was an administrative order, not a legislative act, and

therefore the Councilmen are not entitled to legislative immunity

from suit or liability in their individual capacities for their

constitutional violations; (2) the prior state court litigation

does not give rise to res judicata because there is an absence of

identity of the parties, the causes of action asserted in the state

and federal suits do not arise from the same transaction or

occurrence, and the Councilmen waived the defense by their failure

to raise it in their first responsive pleading.

We conclude that res judicata bars the Foundation’s First

Amendment claim in the present case. Therefore, we do not reach

the issue of legislative immunity.

II. Analysis

We review a summary judgment under the same standards that

govern the district court’s ruling. See Gulf Island-IV, Inc. v.

Blue Streak-Gulf Island Operations, 24 F.3d 743, 745 (5th Cir.

1994)(citing Herrera v. Millsap, 862 F.2d 1157, 1159 (5th Cir.

1989)). “Therefore, the summary judgment will be affirmed only

when this Court is convinced, after an independent review of the

record, that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Id.

at 745-46 (quoting Herrera, 862 F.2d at 1159)(in turn quoting

Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire

8
Ins. Co., 832 F.2d 1358, 1364 (5th Cir. 1987) and Fed.R.Civ.P.

56(c))(internal quotation marks omitted).

First, we conclude that the defendants did not waive their res

judicata defense. According to Federal Rule of Civil Procedure

8(c), the Councilmen should have either pleaded res judicata in

their original answer or sought to amend their answer pursuant to

Rule 15(a) to raise this affirmative defense. However, “where the

matter is raised in the trial court in a manner that does not

result in unfair surprise, . . . technical failure to comply

precisely with Rule 8(c) is not fatal.” Id. at 312 (citing and

quoting Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986)(in

turn quoting Allied Chemical Corp. v. Mackay, 695 F.2d 854, 855-56

(5th Cir. 1983))(internal quotation marks omitted). Rather, even

if the Councilmen failed to raise the res judicata affirmative

defense in an operative pleading, it will not be deemed to have

been waived so long as it was asserted “at a pragmatically

sufficient time, and [the Foundation] was not prejudiced in its

ability to respond.” Id. (citing Lucas, 807 F.2d at 418). The

Councilmen raised the defense in a motion for summary judgment

filed on March 23, 1998, fourteen months prior the district court’s

granting it on May 28, 1999. Because the Foundation availed itself

of this ample period to file three opposition memoranda and the

Foundation was not prejudiced in its ability to oppose the motion,

we conclude that the Councilmen raised the res judicata defense at

a pragmatically sufficient time.

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 Additionally, the Foundation in each of its three opposition

memoranda sought to defeat the res judicata defense on the merits,

without raising the waiver objection. Thus, res judicata was tried

with the express or implied consent of the parties pursuant to Rule

15(b).2 See Shanbaum, 10 F.3d at 312-13.

To determine the preclusive effect of a prior Louisiana court

judgment, if any, this court must apply Louisiana law. See Amica

Mutual Ins. Co. v. Moak, 55 F.3d 1093, 1096-97 (5th Cir.

1995)(citing J.M. Muniz, Inc. v. Mercantile Texas Credit Corp., 833

F.2d 541, 543 (5th Cir. 1987)). In pertinent part, Louisiana’s res

judicata statute provides that “[e]xcept as otherwise provided by

law, a valid and final judgment is conclusive between the same

parties, except on appeal or other direct review, to the following

extent: . . . (2) If the judgment is in favor of the defendant, all

causes of action existing at the time of final judgment arising out

of the transaction or occurrence that is the subject matter of the

litigation are extinguished and the judgment bars a subsequent

action on those causes of action.” La. R.S. 13:4231. Because §

4231 is modeled on the federal doctrine and Restatement of

Judgments, replicating the same concepts of bar and merger, see,

e.g., Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 666

So.2d 624, 631-32 (La. 1996), we consult federal res judicata

2
“When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.”
Fed.R.Civ.P. 15(b) (in pertinent part).

10
jurisprudence for guidance, see e.g., Scott v. Hosp. Serv. Dist.

No. 1, 496 So.2d 270, 273 (La. 1986), as well as the Restatement of

Judgments. See, e.g., Goodman v. Spillers, 686 So.2d 160, 166-69

(La.App. 2nd Cir. 1996) (citing Restatement (Second) of Judgments,

§§ 22, 24, and 27 and comments); see also 1 Frank L. Maraist &

Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure §

6.7 (1999) (Louisiana employs a broad form of res judicata similar

to the “bar or merger” doctrine in the common law as espoused in §§

18 and 19 of the Restatement (Second) of Judgments).

The state court’s dismissal with prejudice of the Foundation’s

reconventional demand bars a subsequent federal suit if (1) the

judgment is valid; (2) the judgment is final; (3) the parties to

the two actions are the same; (4) the cause of action asserted in

the federal suit existed at the time of the prior state court

judgment; and (5) the cause of action asserted in the federal suit

arose out of the transaction or occurrence that was the subject

matter of the state court litigation. See La.R.S. 13:4231.

Louisiana’s doctrine of res judicata can only be invoked if all

essential elements are present and established beyond all question.

See Kelty v. Brumfield, 633 So.2d 1210, 1215 (La. 1994). The rule

expressed in Louisiana Revised Statute 13:4231(2) that a judgment

in favor of the mover operates to bar subsequent actions arising

out of the transaction or occurrence that was the subject matter of

that litigation applies with equal force to plaintiff’s principal

action and the plaintiff-in-reconvention’s reconventional demand.

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See Restatement (Second) of Judgments § 19 cmt. c and § 23 (1982).

“To have any preclusive effect a judgment must be valid, that

is, it must have been rendered by a court with jurisdiction over

the subject matter and over the parties, and proper notice must

have been given.” La.R.S. 13:4231, cmt. d. The Foundation does

not dispute the Councilmen’s satisfaction of these requisites.

Nor does the Foundation dispute that, under Louisiana Code of

Civil Procedure Article 1673,3 the state court’s dismissal with

prejudice of the Foundation’s reconventional demand was a final

judgment for res judicata purposes. See Leon v. Moore, 731 So.2d

502, 505 (La.App. 1st Cir. 1999); Maraist & Lemmon, supra, § 10.3

at 239.

Under § 4231's provision that “a valid and final judgment is

conclusive between the same parties”, see La.R.S. 13:4231,

“[i]dentity of parties does not mean the parties must be the same

physical or material parties, but they must appear in the suit in

the same quality or capacity.” Morris v. Haas, 659 So.2d 804, 810

(La.App. 5th Cir. 1995)(citing Charles E. McDonald Land Development

Inc. v. Cashio, 552 So.2d 1050 (La.App. 1st Cir. 1989) and Greer v.

State, 616 So.2d 811 (La.App. 2nd Cir. 1993)). In brief and

3
“A judgment of dismissal with prejudice shall have the effect
of a final judgment of absolute dismissal after trial. A judgment
of dismissal without prejudice shall not constitute a bar to
another suit on the same cause of action.” La. Code Civ. P. art.
1673.

12
initially at oral argument, the Foundation argued that this

requisite was lacking because the Councilmen were sued only in

their individual capacities in the state reconventional demand but

were made defendants both individually and in their official

capacities in the present case. During oral argument, however, the

Foundation conceded that identity of parties was satisfied because,

as defendants in the state court action, they were required to

“assert in a reconventional demand all causes of action that [they]

may have against the plaintiff that arise out of the transaction or

occurrence that is the subject matter of the principal action.”4

See La. Code Civ. P. art. 1061.

The Foundation’s present federal cause of action existed at

the time the Foundation filed its state reconventional demand

because both causes of action arose out of the same prior

occurrence or transaction. The Councilmen evicted the Foundation

from the Center and laid claim to the Foundation’s funds and

equipment prior to bringing suit against the Foundation in the

state court litigation pursuant to Council Resolution No. 82775.

4
Article 1061B provides a related but distinct source of claim
preclusion. Irrespective of whether the federal claims arise out
of the same transaction or occurrence as the state reconventional
demand, if the Foundation’s federal claims arise out of the same
transaction or occurrence as the state court principal demand, the
Foundation’s failure to assert them in the reconventional demand
bars the claims in the subsequent federal action. See La. Code
Civ. P. art. 1061B; Hy-Octane Investments, Ltd. v. G & B Oil
Products, Inc., 702 So.2d 1057, 1059-60 (La.App. 3rd Cir. 1997)
(citing and quoting La.R.S. 13:4231 comment (a) and La. Code Civ.
P. art. 1061 comment (a))

13
Any claim arising out of the alleged violations of the Foundation’s

First Amendment and procedural due process rights resulting from

the Councilmen’s actions accrued before the Foundation filed its

combined answer and reconventional demand against the Councilmen in

the state court action.

Because the plaintiff in the state action was the Parish of

Jefferson, the Foundation could have asserted in reconvention its

First Amendment claims against the Parish and the Councilmen in

their official capacities. A reconventional demand against the

Councilmen in their official capacities would have operated as a

legal fiction and would have been in reality a suit against the

Parish of Jefferson. See Kentucky v. Graham, 473 U.S. 159, 166

(1985) (“As long as the government entity receives notice and an

opportunity to respond, an official-capacity suit is, in all

respects other than name, to be treated as a suit against the

entity. It is not a suit against the official personally, for the

real party in interest is the entity.”)(citing Brandon v. Holt, 469

U.S. 464, 471-72 (1985).

Thus, in the state lawsuit, the Foundation was required either

to assert its federal claims against Jefferson Parish and the

Councilmen in their official capacities or to have them barred in

a subsequent suit. Consequently, as conceded by the Foundation at

oral argument, the requisite identity of parties has been satisfied

because the Foundation actually sued the Councilmen in their

individual capacities in each case, and the Foundation, in effect,

14
was required to assert its First Amendment claim against the Parish

and the Councilmen in their official capacities in reconvention in

the state lawsuit.

Louisiana Revised Statute 13:4231 provides a broad application

of res judicata to foster judicial efficiency and protect litigants

from duplicative litigation. See Goodman v. Spillers, 686 So.2d

160, 165 (La.App. 2nd Cir. 1994)(citing Prudhomme v. Iberville

Insulations, 633 So.2d 380 (La.App. 3rd Cir. 1994)). With the

amendment of § 4231 in 1990, Louisiana broadened its res judicata

law to correspond with federal law by embracing the notion of

“extinguishment” of the cause of action through the preclusion

concepts of “merger” and “bar.” Terrebonne Fuel & Lube, Inc. v.

Placid Refining Co., 666 So.2d 624, 630-31 (La. 1996) (citing and

quoting Dixon, Booksh, Zimmering, Res Judicata in Louisiana Since

Hope v. Madison, 51 Tul.L.Rev. 611 (1977) and Arbour, The Louisiana

Concept of Res Judicata, 34 La.L.Rev. 763, 764 (1974)) (internal

quotation marks omitted). “The central inquiry is not whether the

[federal] action is based on the same cause or cause of action (a

concept which is difficult to define) but whether the [federal]

action asserts a cause of action which arises out of the

transaction or occurrence which was the subject matter of the

[state principal or reconventional] action.” Id. at 631 (citing

comments-1990 La.R.S. 13:4231); see also Steptoe v. Lallie Kemp

Hospital, 634 So.2nd 331, 335 (La. 1994).

According to the Restatement (Second) of Judgments §24(1), the

15
claim extinguished by a first judgment “includes all rights of the

plaintiff[-in-reconvention] to remedies against the defendant[-in-

reconvention] with respect to all or any part of the transaction,

or series of connected transactions, out of which the action

arose.”

What factual grouping constitutes a “transaction”, and
what groupings constitute a “series”, are to be
determined pragmatically, giving weight to such
considerations as whether the facts are related in time,
space, origin, or motivation, whether they form a
convenient trial unit, and whether their treatment as a
unit conforms to the parties’ expectations or business
understanding or usage.
Restatement (Second) of Judgments § 24(2). See Hy-Octane

Investments, Ltd. v. G & B Oil Products, Inc., 702 So.2d 1057, 1060

(La.App. 3rd Cir. 1997) (quoting Black’s Law Dictionary: “a group

of facts so connected together as to be referred to by a single

legal name; as a crime, a contract, a wrong.”).

Under the Restatement’s definitions of “transaction” and

“series,” the resolution was the critical “transaction,” and the

state suit principal demand, TRO, eviction, and confiscation of

property were a “series” of connected transactions, out of which

both the state reconventional demand and the federal action arose.

See Restatement (Second) of Judgments § 24(2). Both of the actions

concern a group of facts so connected as to constitute a single

wrong and so logically related that judicial economy and fairness

mandate that all issues be tried in one suit. In this appeal, the

16
First Amendment claim is an additional theory of recovery premised

upon the same claim as the state reconventional demand, i.e. the

Foundation’s claim for damages caused by the adoption,

implementation, and consequences of the Parish Council’s Resolution

Number 82755. Accordingly, under § 4231 the present federal action

was extinguished by the prior state court judgment for the Parish

and the Councilmen dismissing with prejudice the Foundation’s

reconventional demand and was subsequently barred by res judicata.

Having concluded that Louisiana’s res judicata statute bars

the Foundation’s federal First Amendment claim against the

Councilmen, we decline to address the Foundation’s arguments that

the Councilmen were not entitled to legislative immunity in their

individual capacities.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

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