BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE
DIXIE BREWING COMPANY, INC
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-04351, DIVISION " J" . Honorable PaulaA.Brown, Judge.
APPEAL OF DENIAL OF PEREMPTORY EXCEPTION OF RES JUDICATA CONVERTED TO SUPERVISORY WRIT; WRIT GRANTED; RELIEF DENIED.
Jon K. Parsons, Luke F. Piontek, Thomas J. Capella, Christian J. Rhodes, Shelley A. McGlathery, ROEDEL PARSONS KOCH BLACHE BALHOFF & McCOLLISTER, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.
Cesar R. Burgos, Robert B. Evans, III, Gabriel O. Mondino, Robert J. Daigre, BURGOS & EVANS, L.L.C., New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet).
Rosemary Ledet, J.
[2014-0641 La.App. 4 Cir. 1] This is an expropriation suit. The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (" LSU" ) commenced this suit against Dixie Brewing Company, Inc. (" Dixie" ), seeking to expropriate a parcel of property owned by Dixie. The purpose for the expropriation was to facilitate the development and construction of LSU's new University Medical Center (" UMC" )
and the adjacent Veterans Affairs Medical Center (" VAMC" ), in the Mid-City area of New Orleans. In response, Dixie filed a peremptory exception of res judicata. From the trial court's decision denying Dixie's exception, Dixie appeals. For the reasons that follow, we convert Dixie's appeal to an application for supervisory writ, grant Dixie's writ, but deny the requested relief.
FACTUAL AND PROCEDURAL BACKGROUND
This case has a complicated procedural history, which includes multiple filings in both state and federal court. The federal district court in Dixie Brewing Co., Inc. v. Department of Veterans Affairs, 2013 WL 6715921, pp. 1-2 (E.D. La. 2013), summarized the background facts of this case as follows:
[2014-0641 La.App. 4 Cir. 2] The City of New Orleans, LSU, and the VA entered into numerous agreements in which LSU agreed to invoke " quick-take" authority under Louisiana Revised Statute § 19:141 to assist New Orleans in making land available to the VA for its development of the medical center: LSU would expropriate the required land for both the LSU and VA sections of the complex, and then LSU would transfer a portion of the land to the VA. The designated area for the VA hospital is bordered by Galvez Street, Rocheblave Street, Canal Street, and Tulane Avenue. The Dixie Brewery Building, which at one time brewed the local Dixie beer, is located on a parcel at the corner of Rocheblave Street and Tulane Avenue. The Dixie property was not originally included in LSU's expropriation efforts; but in February 2010, the site was added to the land slated for expropriation, spurring a torrent of state-court activity ever since.
The following is a chronological summary of the state-court activity pertinent to this appeal:
o April 29, 2010--LSU filed a Petition for Access to Property through Subpoena Duces Tecum for Inspection Prior to Filing of Expropriation and for Expedited Consideration (Civil District Court " CDC" No. 2010-4351) (" LSU's Access Suit" ). The purpose for LSU's Access Suit was to allow LSU to inspect and evaluate the property to make the required offer of just compensation. The trial court granted LSU's request for access.
o February 16, 2011--Dixie filed a Petition for Temporary Restraining Order and Declaratory Judgment (CDC No. 2011-1602) (" Dixie's TRO Suit" ) the purpose of Dixie's TRO Suit was to stop an unwarranted and allegedly unconstitutional expropriation. LSU answered Dixie's TRO Suit and asserted affirmative defenses. Following a hearing, the trial court dismissed Dixie's TRO Suit " with prejudice" on February 25, 2011.
o February 25, 2011--Following the trial court's dismissal of Dixie's TRO Suit (on the same day), LSU filed its Petition for Expropriation (CDC No. 2011-2122) (" LSU's Expropriation Suit" ).
o July 8, 2011--LSU filed a Motion to Transfer and Consolidate LSU's Expropriation Suit with Dixie's TRO Suit. The trial court granted this motion on August 11, 2011. This court denied Dixie's writ application challenging that ruling. Board of Sup'rs of Louisiana State University, Agricultural and Mechanical College v. Dixie Brewery Co., Inc., 11-1339, (La.App. 4 Cir. 9/27/11) ( unpub.).
[2014-0641 La.App. 4 Cir. 3] o September 1, 2011--Dixie filed a Peremptory Exception of Res Judicata, No Right of Action, and No Cause of Action to LSU's Expropriation Suit. As to the res judicata exception, Dixie contended that the cause of action asserted in LSU's Expropriation Suit existed and arose out of the same transaction or occurrence that was the subject matter of Dixie's TRO Suit; thus, Dixie contended that LSU was required to assert its Expropriation Suit as a reconventional demand in Dixie's TRO Suit. Dixie contended that LSU's failure to do so resulted in LSU's Expropriation Suit being barred by res judicata. (As noted below, this exception was ruled upon by the trial court on February 28, 2014; and this ruling is the subject of the instant appeal.)
o November 22, 2011--The trial court granted Dixie's Motion to Transfer and Consolidate Dixie's TRO Suit and LSU's Expropriation Suit with LSU's Access Suit, which was the first filed CDC suit.
o June 3, 2011--Dixie filed a motion to dismiss LSU's Expropriation Suit, challenging the constitutionality of LSU's quick-take authority.
o January 27, 2012--Dixie filed its first post-expropriation injunction petition (" Dixie First Injunction Petition" ). The trial court denied Dixie's First Injunction Petition on February 7, 2012. Dixie did not seek review of this ruling.
o October 12, 2012--Dixie filed its second post-expropriation injunction petition (" Dixie's Second Injunction Petition" ). LSU filed an exception of res judicata.
o November 16, 2012--The trial court granted LSU's exception of res judicata and dismissed Dixie's Second Injunction Petition. Dixie appealed that decision. This court affirmed, and the Louisiana Supreme Court denied Dixie's writ application. Board of Sup'rs of Louisiana State University, Agricultural and Mechanical College v. Dixie Brewing Co., Inc., 13-0250, 13-0251, 13-0252 (La.App. 4 Cir. 12/4/13), 131 So.3d 130, writ denied, 14-0007 (La. 2/12/14), 132 So.3d 399 (hereinafter " Dixie I" ).
[2014-0641 La.App. 4 Cir. 4] o January 15, 2014--Dixie filed a motion for expedited resetting of its earlier filed res judicata exception, which had been pending since September 1, 2011.
o February 28, 2014--The trial court, following a hearing, denied Dixie's res judicata exception for reasons orally assigned in court.
Although the trial court granted Dixie's Motion for Appeal, the February 28, 2014 judgment denying the exception
of res judicata is an interlocutory judgment under La. C.C.P. art. 1841. See Louisiana Local Government Environmental Facilities v. All Taxpayers, 11-0027, p. 13 (La.App. 1 Cir. 2/2/11), 56 So.3d 1194, 1200 (citing Tolis v. Board of Supervisors of LSU, 95-1529 (La. 10/16/95), 660 So.2d 1206, 1207 ( per curiam )). A party may appeal from an interlocutory judgment only when expressly provided by law. La C.C.P. art. 2083 (C). There is no express law permitting the appeal of a judgment denying an exception of res judicata; La. C.C.P. art. 1915 does not authorize a trial court to designate a judgment denying an exception as final. See Young v. City of Plaquemine, 04-2305, pp. 4-5 (La.App. 1 Cir. 11/4/05), 927 So.2d 408, 411. The proper procedural device to seek review of an interlocutory judgment is an application for supervisory writ. See La. C.C.P. art. 2083(C) and La. C.C.P. art. 2201;
see also [2014-0641 La.App. 4 Cir. 5] Delahoussaye v. Tulane University Hosp. and Clinic, 12-0906, 12-0907, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 560, 2013 WL 633121 (citing La. C.C.P. art. 2201).
" [T]he decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts." Stelluto v. Stelluto, 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39. This court has exercised its discretion to convert an appeal of an interlocutory judgment into an application for ...