BILYEU BUCKS, ET AL. Plaintiff-Appellants
DIRECTECH SOUTHWEST, ET AL. Defendant-Appellees
Appealed from the Eighth Judicial District Court for the
Parish of Winn, Louisiana Trial Court No. 41, 292, Honorable
Glenn B. Gremillion (Ad Hoc), Judge.
& MILLER, LLC By: J. Mark Miller Counsel for Appellants.
DONELSON BEARMAN CALDWELL & BERKOWITZ, PC By: Phyllis G.
Cancienne Christopher G. Morris Christopher M. Vitenas
Counsel for Appellees Directech Southwest, Inc., F/K/A
Com-Craft Directech, Inc., and Multiband Field Services, Inc.
MOORE, GARRETT, and STEPHENS, JJ.
plaintiffs, Woody Bilyeu, Mary Bilyeu and Patrick Shelton,
appeal a judgment that sustained an exception of res judicata
filed by the three remaining defendants, DirecTECH Southwest,
DirecTECH Inc. and Multiband Corp., thus ending the lawsuit,
and a judgment that denied the plaintiffs' later motion
for leave of court to file a fifth supplemental and amending
petition. For the reasons expressed, we affirm.
Bilyeus were the owners of Comm-Craft Inc. and DirecTECH Inc.
("DT"), companies that, in the early 1980s,
installed satellite dishes (and later became part of
DirecTV). Together with Shelton, they were also the trustees
of these companies' Employee Stock Ownership Plans
("ESOPs"). In July 2004, they sold their interest
in Comm-Craft (which changed its name to DirecTECH Southwest,
"DTSW") and DT (later known as DirecTECH Delaware,
but still called "DT" in this matter). Before they
divested, the plaintiffs sold their shares in these
companies' ESOPs back to the ESOPs. The purchasers paid
by executing promissory notes to the plaintiffs.
DirecTECH Holding Co. ("DTHC") was formed to act as
a holding company of DT and DTSW. In June 2005, DTHC acquired
100% of the stock of DT and DTSW; thus, DTSW and DT were
wholly-owned subsidiaries of DTHC.
2007, in an effort to refinance, DTHC asked the plaintiffs to
take refinance notes, and they agreed. DTHC executed two
notes, the "Dec 2007 Refi Note," in favor of Bilyeu
for $11, 622, 386, and the "Dec 2007 Bilyeu Bucks
Note," in favor of Bilyeu Bucks (the Bilyeus' LLC)
for $818, 897. As part of the transaction, DTHC's
subsidiaries, DTSW and DT, agreed to indemnify (by nine
separate documents, the "Indemnity Agreements") the
Bilyeus for any time, travel, legal or other expenses they
might incur in connection with the ESOP transactions.
in 2007, the U.S. Department of Labor ("DOL")
opened an ERISA investigation into whether the plaintiffs had
a conflict of interest by acting as directors of the
companies selling their stock and as trustees of the ESOPs
buying it. DOL suspected, among other things, that the sales
were at grossly overinflated prices, resulting in sizable
losses to the employees invested in the ESOPs and in
financial gain to the sellers.
September 2008, Bilyeu Bucks and the Bilyeus individually
filed this suit alleging that the Dec 2007 Refi Note and Dec
2007 Bilyeu Bucks Note were in default. They demanded the
balances, a total of $12, 123, 478, plus interest and
attorney fees as stated in the notes, from DTHC, DTSW, DT and
some other subsidiaries. They also demanded enforcement of
the Indemnity Agreements against DTSW and DT.
defendants filed an exception of prematurity; after some
litigation, the matter was referred to arbitration in Winn
several things happened. In late 2008, DTHC sold 100% of its
shares of DT and DTSW to Multiband. In early 2009, in
connection with the stock purchase, DTSW, DT and DTHC
executed an assignment and assumption agreement ("Master
Agreement") whereby Multiband, DTSW and DT would assume
certain obligations of DTHC. The Master Agreement
specifically listed the Indemnity Agreements as subject to
the assignment and assumption and stated that Multiband and
DTHC's operating entities "expressly assume all
covenants * * * of DTHC * * * as if they were the original
2011, the Bilyeus and Shelton settled their ERISA claim with
DOL. They agreed to pay $5, 181, 818 to the DTHC ESOP and
$518, 181 directly to DOL. They executed a consent judgment and
order which contained a "Bar Order": the plaintiffs
were permanently and forever barred from filing any claims
against any nonsettling defendant, "whether for
indemnification, contribution, reimbursement, or other
monetary relief," where the claim was based on the facts
in the DOL complaint.
2012, the arbitrator denied the Bilyeus' claims against
DTHC on the Dec 2007 Refi Note and Dec 2007 Bilyeu Bucks
Note, but awarded Bilyeu Bucks $74, 770 on the Indemnity
Agreements. In October 2012, Bilyeu Bucks acknowledged
receipt and satisfaction of this amount.
Bilyeus filed four supplemental and amending petitions,
adding Shelton as a plaintiff and joining several additional
defendants, including Multiband. In 2013, the plaintiffs
settled with most of these defendants.
March 2016, the three remaining defendants, DTSW, DT and
Multiband, filed the instant peremptory exception of res
judicata. They alleged that the Bar Order prohibited the
plaintiffs from suing any nonsettling defendant for
indemnification arising out of the facts in the DOL
complaint. They also alleged that under the Master Agreement,
Multiband stepped into the shoes of DTSW and DT, and thus was
entitled to the protection of the Bar Order.
plaintiffs conceded that the Bar Order existed, but argued it
was not a "blanket bar," and urged that the Master
Agreement was not valid.