FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-08198,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
Sport COUNSEL FOR PLAINTIFF/APPELLANT
D. Winsberg Robin Penzato Arnold Jonathan D. Gamble WINSBERG
& ARNOLD, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Marion F. Edwards, [*] Pro Tempore)
A. Lombard, Judge
appeal is from the district court judgment of July 25, 2016,
granting the peremptory exception of res judicata
filed by defendant/appellee, Regnald Kenning Hoddinott, III,
and dismissing with prejudice the petition for damages filed
by plaintiff/appellant, Jo Schernbeck Hoddinott. After review
of the record in light of the applicable law and arguments of
the parties, we vacate the district court judgment and remand
for further proceedings.
Facts and Procedural History
September 3, 2014, the parties entered into a consent
judgment pertaining to claims of physical violence and
domestic abuse. In a separate judgment on that same date, the
parties were granted a divorce dissolving their twelve-year
marriage. On August 7, 2015, the plaintiff filed the instant
lawsuit against the defendant, alleging various tort claims.
In response, the defendant filed exceptions of no cause of
action and res judicata. After a hearing, the
district court denied the exception of no cause of action but
granted the exception of res judicata.
plaintiff filed this timely appeal.
Standard of Review
appeal, we review an exception of res judicata to
determine if the district court decision is legally correct.
Porter v. Louisiana Citizens Property Insurance
Corporation, 11-0101, p. 2 (La.App. 4 Cir. 8/31/11), 72
So.3d 946, 947 (citation omitted).
burden of proof is on the party urging the exception of
res judicata to prove the essential elements by a
preponderance of the evidence. Porter, 11-0101, p.
4, 72 So.3d at 948 (citation omitted). Thus, to determine the
merits of an exception of res judicata, "the
court must examine not only the pleadings of the case at hand
but also the entire record in the first suit, to determine
whether the availability of the particular form of relief
sought in the second suit was actually ruled upon."
Sewell v. Argonaut Southwest Ins. Co., 362 So.2d
758, 760 (La. 1978); see also Union Planters Bank v.
Commercial Capitol Holding Corp., 04-0871, p. 3-4
(La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130 (the court
cannot consider exhibits filed into record as attachment to
memorandum in determining issues on appeal; there is no
provision in the law for this court to take judicial notice
of a suit record from another court). Brielle's
Florist & Gifts, Inc. v. Trans Tech, Inc., 11-260,
p. 3 (La.App. 3 Cir. 10/5/11), 74 So.3d 833, 835 (failure to
introduce entire record of first suit into record can
prohibit the party pleading exception of res
judicata from meeting its burden of proof). Moreover, it
is axiomatic that "[a]ppellate courts are courts of
record and may not review evidence that is not in the
appellate record, or receive new ...