## FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #006

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 26th day of January, 2024 are as follows:

BY Griffin , J.: :

2023-C Q -00257 RANDALL KLING VS. TROY HEBERT; ERNEST P. LEGIER, JR., IN HIS

OFFICIAL CAPACITY AS THE COMMISSIONER OF THE OFFICE OF

ALCOHOL AND TOBACCO CONTROL OF THE LOUISIANA

DEPARTMENT OF REVENUE

CERTIFIED QUESTION ANSWERED. SEE OPINION

.

Crichton, J., dissents and assigns reasons.

Crain, J., concurs and assigns reasons.

McCallum, J., additionally concurs for the reasons assigned by Justice Griffin.

Griffin, J., additionally concurs and assigns reasons.

## SUPREME COURT OF LOUISIANA

No. 2023

- CQ

- 00257

RANDALL KLING

VS.

TROY HEBERT; ERNEST P. LEGIER, JR., IN HIS OFFICIAL CAPACITY

AS THE COMMISSIONER OF THE OFFICE OF ALCOHOL AND

TOBACCO CONTROL OF THE LOUISIANA DEPARTMENT OF

REVENUE

On Certified Question from the United States Court of Appeals for the Fifth Circuit

GRIFFIN, J.

Invoking Louisiana Supreme Court Rule XII, 1 

## the United States Court of

Appeals for the Fifth Circuit (“ United States Fifth Circuit”) certified to this Court

the following question: “In Louisiana, under what circumstances, if any, does the

commencement of a suit in a court of competent jurisdiction and venue interrupt

prescription as to causes of action, understood as legal claims rather than the facts

giving rise to them, not asserted in that suit?” Kling v. Hebert , 60 F.4th 281, 288

(5th Cir. 2023). We answer the certified question as follows: Prescription is

interrupted when notice is sufficient to fully apprise the defendant of the nature of

the claim of the plaintiff, and what is demanded of the defendant.

1 

## Louisiana Supreme Court Rule XII provides, in relevant part:

When it appears to the Supreme Court of the United States, to any circuit court of

appeal of the United States, or to any district court of the United States, that there

are involved in any pro ceedings before it questions or propositions of law of this

state which are determinative of said cause independently of any other questions

involved in said case and that there are no clear controlling precedents in the

decisions of the supreme court of t his state, such federal court before rendering a

decision may certify such questions or propositions of law of this state to the

Supreme Court of Louisiana for rendition of a judgment or opinion concerning such

questions or propositions of Louisiana law. This court may, in its discretion,

decline to answer the questions certified to it or reformulate the question certified.

## 2 

## FACTS AND PROCEDURAL HISTORY

Certified questions are decided on the facts presented to us by the federal

court. See, e.g., Menard v. Targa Resources, L.L.C. , 23

- 0246, p. 2 (La. 6/27/23),

366 So.3d 1238, 1240. Randall Kling filed suit in state court alleging his firing from

the Licensing and Certification Division of the Louisiana Office of Alcohol and

Tobacco Control (“ATC”) was in retaliation for submitting writ ten complaints

describing workplace and ethics violations committed by then

- Assistant Secretary

of the ATC, Troy Hebert. Mr. Kling’s state petition named the Louisiana

Department of Revenue (“LDR”), which includes the ATC, as the sole defendant

and assert ed a single claim of violation of Louisiana’s constitutional right to free

expression. He did not allege any federal claims. A jury awarded him compensatory

damages and lost wages, the latter of which was reversed on appeal . Mr. Kling’s

subsequent writ application to this Court on th e issue of lost wages was denied.

Kling v. Louisiana Department of Revenue , 18

- 1480 (La.App. 1 Cir. 7/18/19)

, r’hg

denied (La.App. 1 Cir. 8/7/19), 281 So.3d 696, writ denied , 19

- 1434 (La. 11/5/19),

281 So.3d 671.

Prior to t his Court’s disposition of Mr. Kling’s writ application, he filed a

complaint in federal district court asserting substantially similar facts and s ought

declaratory relief, damages (including lost wages), and reinstatement for violations

of his federal Fir st and Fourteenth Amendment rights. Mr. Kling named then

Commissioner of the ATC, Juana

- Marine Lombard, in her official capacity, and

Troy Hebert, in his individual capacity, as defendants. Mr. Hebert filed a Rule

12(b)(6) motion to dismiss arguing Mr. K ling’s 42 U.S.C. § 1983 claims, not plead ed

in his state court suit, were prescribed. 2 

## The federal district court granted Mr.

2 

## The prescriptive period for 42 U.S.C. § 1983 claims in Louisiana borrows from the one

- year

liberative prescriptive period for delic tual actions set forth in La. C.C. art. 3492. See SS v. State

ex rel. Dept. of Social Services , 02

- 0831, p. 7 (La. 12/4/02), 831 So.2d 926, 931.

## 3



## Hebert’s motion and dismissed Mr. Kling’s federal suit against Mr. Hebert with

prejudice. Mr. Kling appealed.

The United States Fifth Circuit , observing a lack of clarity in Louisiana

jurisprudence , certified the foregoing question of law to this Court which we granted.

Kling v. Hebert , 23

- 0257 (La. 4/18/23), 359 So.3d 499.

DISCUSSION

T he certified question ask s whether there are any circumstances in which

commencement of a suit interrupt s prescription as to legal claims not asserted in that

suit

. 3 

## “Prescription is interrupted ... when the oblige commences action against the

obligor, in a court of competent jurisdiction and venue.” La. C.C. art. 3462.

Interruption of prescription continues as long as the suit is pending and runs anew

from the last day of interruption . La. C.C. art s . 346 3 and 3466

.

Mr. Kling argues in favor of a broad interpretation wherein interruption is

effective as to all causes arising out of the same operative facts identifying the same

right / duty and the same violation of the legal theory plead ed irrespective of the

source of the legal obligation

. 4 

## Mr. Hebert advocates a narrower approach such that

t he actions in the two suits must be the same to provide notice to a defendant

. We

find a more balanced methodology is warranted

.

The starting point for the interpretation of a statute is the language of the

statute itself. Menard , 23

- 0246, p. 3, 366 So.3d at 1241. A s noted by the United

States Fifth Circuit, La. C.C. art. 3462 “ is silent as to this particular aspect of

interruptio n’s scope.” Kling , 60 F.4th at 287. We therefore turn to related provisions

3 

## Although this court has the authority to reformulate the certified question, for the sake of comity

with the federal court that posed the question, we choose not to utilize the dissent’s approach to

addres s the issue before us in the context of res judicata , which requires a completely different

analysis.

4 

## We decline to address Mr. Kling’s arguments as to solidary obligors as it is beyond the scope of

the certified question and was not addresse d by the United State s Fifth Circuit

.

## 4



## of the positive law to discern its meaning and context. See Menard , 23

- 0246, p. 4,

366 So.3d at 1242. “An obligation is a legal relationship whereby a person, called

the obligo r, is bound to render performance in favor of another, called the obligee.”

La. C.C. art. 1756. “A civil action is a demand for the enforcement of a legal right.

It is commenced by the filing of a pleading presenting the demand to a court of

competent j urisdiction.” La. C.C.P. art. 421. Article 3462 may thus be rephrased as

stating prescription is interrupted when the obligee files a pleading presenting the

demand for the enforcement of a legal right/duty to a court of competent jurisdiction

and venue, against the obligo r

.

The essence of interruption of prescription by suit is notice to the defen dant

of the legal proceeding s based on the claim involved. 5 

## Nini v. Sanford Bros., Inc.

,

276 So.2d 262, 264

- 65 (La. 1973). The underlying reason why prescription does

not bar a subsequent claim is that a defendant has adequate and timely notice by

legal demand that liability arising out of the factual occurrence plead ed is sought to

be enforced against him. Allstate Ins. Co. v. Theriot , 376 So.2d 950, 954 (La. 1979);

see also Tate, Amendment of Pleadings in Louisiana , 43 Tul. L. Rev. 211, 233 (1969)

(“fundamental purpose of prescription statutes is only to afford a defendant security

of mind and affairs i f no claim is made timely, and to protect him from stale claims

and from the loss or non

- preservation of relevant proof”). Prescription is interrupted

when a defendant knows or should know, prior to the expiration of the prescriptive

5 

## As early as Flower v. O’Connor , 17 La. 213 (1841), this Cour t observed:

It is clear from this doctrine of Pothier, that in order to determine the effect and

extent of a legal interruption, we must enquire more particularly into the object and

cause of the action, than the right of the plaintiff, the manner in which it is

prosecuted and the competency of the court in which it is instituted; and endeavor

to ascertain how far the knowledge of the title s on which th e action is founded, has

been brought home to the defendant by the judicial demand; and we do not hesitate

to conclude that, if it be established that the defendant has been judicially notified

of the titles which are the foundation of the demand for the w hole of the property

or of the debt, so as to acquire sufficient knowledge of the rights which are sought

to be enforced against him by a suit, there results from said suit a legal interruption

in favor of those to whom such rights may belong

.

## 5



## period, that legal dem ands are made upon him from the occurrence described in the

petition. Nini , 276 So.2d at 264 ; Parker v. Southern American Ins. Co. , 590 So.2d

55, 56 (La. 1991)

. Notice is therefore sufficient when it fully apprises the defendant

of the nature of the clai m of the plaintiff, and what is demanded of the defendant.

See Theriot , 376 So.2d at 953 (citing Callendar v. Marks , 185 La. 948, 952, 171 So.

86, 87 (1936)). “ [I]f what is filed can be classified as a ‘pleading presenting the

demand,’ prescription will be interrupted whether or not the original pleading sets

forth a cause of action.” Batson v. Cherokee Beach and Campgrounds, Inc. , 530

So.2d 1128, 1130 (La. 1988 ) (quoting La. C.C.P. art. 421) ; Theriot , 376 So.2d at

953; Findley v. City of Baton Rouge , 570 So.2d 1168, 1170 (La. 1990) (“[w]hile

designed to protect a defendant against prejudice from lack of notification of a claim

within the period of limitation, pr escriptive statutes are not designed to protect a

defendant against non

- prejudicial pleading mistakes”); Tate, supra , at 233. This

correctly places the emphasis on notice to the defendant, addressed on a case

- by

case basis, rather than quixotic attempts a t offering a precise definition of a cause of

action. Examining the spectrum of jurisprudence is illustrative

.

I n Theriot , th is Court found a prior suit by plaintiff’s workers’ compensation

insurer against the defendant fully apprised the defendant that judicial claim was

being made to enforce his liability for personal injuries to the plaintiff thus defendant

received notice that plaintiff himself might intervene in the suit. 376 So.2d at 953

-

54. Theriot affirmatively cited to National S ur. Corp. v. Standard Acc. Ins. Co. , 247

La. 905, 918, 175 So.2d 263, 2 68 (1965) , wherein this Court similarly found a prior

negligence suit by the workers’ compensation insurer of plaintiff’s employer against

defendant tortfeasors put the latter on notice of subsequent intervention by the

plaintiff reasoning that “one principal cause of action resulting from a single tort

## 6



## exists herein.” Notwithstanding the problematic use of the phrase “cause of action” 6



## in National Sur. Corp.

, combined with Theriot it stand s for the proposition that

notice is sufficient to interrupt prescription where there is one underlying obligation

owed by the same obligor to ostensibly the same obligee. See Louviere v. Shell Oil

Co. , 440 So.2d 93, 95 (obse rving that because the compensation insurer has paid

part of the employee plaintiff’s damages, it is entitled to recover to the extent of

those payments as partial subrogee).

In Parker

, this Court found that a prior workers’ compensation suit against an

employer

– despite ultimately being dismissed on an exception of no cause of action

– gave sufficient notice to a defenda n t liability insurer in a subsequent tort suit

observing there “is factual connexity and the parties are closely related.” 590 So.2d

at 56. The Parker Court reasoned both suits were based on the occurrence of the

employee’s death and the monetary liability of the employer. Id

. (further observing

a lack of prejudice in the liability insurer’s ability to prepare and conduct a defense);

Findley , 570 So.2d at 1171

- 72; Tate, supra , at 234

. Thus, this Court implicitly found

that in addition to the two suits being instituted by the same obligee, they dealt with

the same under lying obligation and presented the same demand for monetary

damages. See Thompson v. Town of Jonesboro , 16

- 1224, p. 6 (La.App. 1 Cir.

6/2/17), 222 So.3d 770, 774 (discussing Parker ).

Conversely, in Trahan v. Liberty Mut. Ins. Co. , 314 So.2d 350, 35 4 (La. 1975)

,

this Court found no interruption of prescription as the first suit gave defendant

insurers no notice that plaintiffs were claiming damages resulting from the

negligence of a co

- plaintiff /employee

– the first suit being based solely on the

alle ged negligence of six named executive officers. The Court additionally observed

that “[a] cause of action in tort has no identity independent from the defendant upon

6 

## Theriot ap plied the reasoning of National Sur. Corp. despite the fact the first suit in Theriot was

dismissed for a failure to state a cause of action. 376 So.2d at 953

- 54.

## 7



## whose fault it is based. ” Id ., 314 So.2d at 353. Thus, the obligation or duty owed in

the first suit (relating to negligence from the executive officers) was distinct from

the obligation in the second suit (relating to negligence from co

- plaintiff/employee.

See also Thompson , 16

- 1224, p p. 6

- 7 , 222 So. 3d at 774 (while first suit for

mandamus notified defendant of a dispute concerning plaintiff’s entitlement to

office, it did not put defendant on notice of a possible claim for monetary damages);

Illes v. State ex. rel. Div. of Admin. , 14

- 0689, p. 5 (La.A pp. 1 Cir. 12/23/14), 168

So.3d 646, 649 (observing a claim for loss of consortium is separate from any claim

of the primary victim).

Mr. Kling’s interpretation risks undermining the purpose of prescription

statutes and invites the potential for abuse. See Tate, supra , at 233 (“a party’s

assertion of one claim or defense should not, by mere reason of the original filing,

preserve indefinitely all other claims or defens es by him against his opponent”). “[I]t

must not be overlooked that intended ill

- pleading could sometimes be used to obtain

the procedural advantage of delay desired by an ill

- pleader.” Id . at 240. A plaintiff’s

conscious choice or strategic decision to withhold potential c laims to circumvent

prescription statutes or avoid res judicata should not be countenanced. See La.

C.C.P. art. 425 (“party shall assert all causes of action arising out of the transaction

or occurrence that is the subject matter of t he litigation”); Tate, supra , at 240

(observing ill

- pleading could lead to “increased judicial traffic caused by unused

trial days and further hearings so resulting [that] may prejudicially delay other

litigants and may decrease the efficiency of the judicial system as a whole”). Mr.

Hebert’s interpretation risks penalizing pleading mistakes and inartful phraseology. 7

7 

## It is well

- settled that pro se litigants are a cc orded greater leeway in the interpretation of their

pleadings. See State ex rel. Johnson v. Maggio , 440 So.2d 1336, 1337 (La. 1983) ( pro se petitioner

“is not to be denied access to the courts for review of his case on the merits by the overzealous

applic ation of form and pleading requirements or hyper

- technical interpretation of court rules”);

Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) ( pro se filings are

held to “less stringent standards than formal pleadings by lawyers ”).

## 8



## See Theriot , 376 So.2d at 954; Parker , 590 So.2d at 56 (“law strictly construes

statutes of liberative prescription”). Framing the r elevant inquiry around notice

strikes a balance between these competing policy concerns

.

DECREE

We have answered the certified question as set forth in this opinion. Pursuant

to Louisiana Supreme Court Rule XII, the judgment rendered by this Court upon the

question certified shall be sent by the clerk of this Court under its seal to the United

States Court of Appeals for the Fifth Circuit and to the parties.

CERTIFIED QUESTION ANSWERED

# SUPREME **COURT OF**  **LOUISIANA**

**No. 2023-CQ-00257** 

**RANDALL KLING** 



# vs.

**TROY HEBERT;**  **ERNEST P.**  **LEGIER, JR.,**  **IN** 

# ms **OFFICIAL CAPACITY** 

**AS THE**  **COMMISSIONER OF**  **THE OFFICE**  **OF ALCOHOL**  **AND**

**TOBACCO CONTROL**  **OF THE**  **LOUISIANA DEPARTMENT**  **OF**

**REVENUE**

**On Certified**  **Question from**  **the United**  **States Court**  **of Appeals**  **for the**  **Fifth Circuit** 



# CRICHTON, **J., dissents**  **and assigns**  **reasons:**

**Louisiana Supreme Court**  **Rule XII,**  **Section 1,**  **setting forth**  **the provisions** 

**permitting this**  **Court to**  **certify questions**  **from the**  **Supreme Court**  **of the**  **United**

**States, any**  **circuit court**  **of appeal**  **or any**  **district court**  **of the**  **United States,**  **also**

**allows this**  **Court, in**  **its discretion,**  **to "reformulate**  **the question certified."**  **In my** 

**view, the**  **circumstances giving**  **rise to**  **this certified**  **question require**  **such a** 

**reformulation.**

**The Fifth**  **Circuit presented**  **the following**  **certified question:**  **"In Louisiana,** 

**under what**  **circumstances, if**  **any, does**  **the commencement**  **of a**  **suit in**  **a court**  **of**

**competent jurisdiction**  **and venue**  **interrupt prescription**  **as to**  **causes of**  **action,**

**understood as**  **legal claims**  **rather than**  **the facts**  **giving rise**  **to them,**  **not asserted**  **in**

**that suit?"**  **Randall Kling**  **v. Troy**  **Hebert, et**  **al.,** 

# 60 **F.4 th**  

# 281, **288 (5**  **th** 

# Cir. **2023).**

**However, this**  **Court need**  **not reach**  **the issue**  **of prescription,**  **as plaintiffs** 

**subsequent claim**  **in federal**  **court is**  **barred by**  **res judicata**  

# principles. **Accordingly,**

**I would**  **reformulate the**  **certified question**  **as follows:**  **"In Louisiana,**  **can a**  **party**

**demand a**  **judicial remedy**  **which existed**  **at the**  **time of**  **a prior**  **judgment, arising**  **out**

**of the**  **same facts,**  **which he**  **failed to**  **ass ert**  **in a**  **prior suit**  **which has**  **now been** 

**1**concluded by a final judgment that did not grant that remedy?" For the reasons that

follow, that question would be answered in the negative.

Louisiana's primary res judicata principles are found in La. R.S. 13:4231, the

current version of which was enacted in 1991. The statute provides:

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:



## (l) 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 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.

(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 comments to the statute note that the 1990 revisions made a "substantial change

in the law. The new statute broadened Louisiana res judicata principles and thus

concomitantly narrowed the possibility for a party to re-litigate an issue already

fairly and fully litigated by claiming he or she is asserting a "new" cause of action.

"The central inquiry is not whether the second action is based on the same cause or

cause of action (a concept which is difficult to define) but whether the second action

asserts a cause of action which arises out of the transaction or occurrence which is

the subject matter of the first action." La. R.S. 13:4231, Cmt. (a). See also



## Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-654 (La. 1/16/96), 

## 666 So.

2d 624, 632 (quoting same). The purpose of the amendments was clearly stated as

promoting "judicial economy and fairness by requiring the plaintiff to seek all relief

and to assert all rights which arise out of the same transaction or occurrence." 

## La.

R.S. 13:4231, Cmt. (a). See, e.g., Lafreniere Park Foundation v. Broussard 

## 221

F.3d 804, 810 (5'h Cir. 2000) (Dennis, J., wrxting for the court, finding La. 

## R.S.

13:4231 "provides a broad application of res judicata to foster judicial efficiency and

2

### protect litigants from duplicative litigation."). "Res judicata is a concept by which



### the defendant may defeat an action by declaring the claim extinguished because it

has already been litigated." Walton v. Burns, 47,388, p. 9 (La. App. 2 Cir. 1/16/13),

151 So. 3d 616, 621, citing La. R.S. 13:4231.

Furthermore, La. R.S. 13:4231(2) provides that 

### if a judgment is in favor of the



### defendant, then "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."

In other words, "causes of action" or "claims" that existed based on the facts which

were brought or could have been brought are barred. Notably, the statute does not

state "causes of action asserted" in the first litigation, but rather existing based on

the facts.



### Relatedly, La. C.C.P. art. 425(A) states that "[a] party shall assert all causes

of action arising out of the transaction or occurrence that is the subject matter of the

litigation." The 1990 comment to this article explains that "[t]his amendment

expands the scope of this Article to reflect the changes made in the defense of res

judicata and puts the parties on notice that all causes of action arising out of the

transaction or occurrence that is the subject matter of the litigation must be raised."i2



### ' There is also an analogous provision in La. 

### c.c.p. art. 5, which states that "[w]hen a plaintiff

reduces his claim on a single cause of action to bring it within the jurisdiction of a court and

judgment is rendered thereon, he remits the portion of his claim for which he did not pray for

judgment, and is precluded thereafter from demanding it judicially."



### 2 This Court recently addressed the relationship between La. R.S. 13:4231 and La. 

### c.c.p. art. 425



### in Carlo Carollo, Jr., et al., v. State of Louisiana, DOTD, 21-1670 (La. 9/9/22), 346 So. 3d 751.

The Court's decision resolved a circuit split in Louisiana regarding whether La. 

### c.c.p. art. 425

should be read in pari materia with La. R.S. 13 :4231 or whether art. 425 should be an independent

preclusion device. The Court examined the 1990 amendments to the res judicata principles, as

discussed herein, and ultimately concluded that because the amendments broadened the scope of

res judicata, it follows that art. 425 serves as a "rule for parties to follow during litigation; i.e., as

a warning or notice that all causes of action arising out of the same transaction or occurrence must

b e asserted in the same suit." Id. at 763. Thus, a majority of the Court found, art. 425 is not an

independent preclusion provision, but rather is enforced through the exception of res judicata.

3With these principles in mind, we tum to the reformulated question under the facts

of this matter.

Plaintiff was terminated from his job in the Licensing and Certification

Division of the Louisiana Alcohol and Tobacco Control ("ATC"), which is a

division of the Louisiana Department of Revenue, on March 30, 2011. On May 26,

2011, he filed suit against the Louisiana Department of Revenue in the 

## Igth Judicial

District Court, asserting a claim of violation of Louisiana's constitutional right to

free expression pursuant to Art. 1, § 

### 7.3 Following a jury trial, plaintiff was awarded

compensatory damages and lost wages. Plaintiff filed a motion for new trial, seeking

the additional remedy of reinstatement, but it was denied. The First Circuit Court of

Appeal reversed the lost wages award but affirmed the general damages award.

Plaintiff thereafter filed a writ application in this Court and prior to our dispensation

of that matter, also filed suit in federal district court on October 3, 2019, asserting

the same set of facts and seeking declaratory relief, damages (including lost wages),

and reinstatement for alleged violations of his First and Fourteenth rights. In his

federal court suit, plaintiff named the Commissioner of the ATC in her official

capacity and the then-Assistant Secretary of the ATC (Troy Hebert) in his individual

capacity. On November 5, 2019, approximately one month after plaintiff filed his

federal court suit, this Court denied plaintiff"s writ application. Kling v. Louisiana



## Department ofRevenue, 19-1441 (La. 11/5/19), 281 So. 3d 671. The record makes

clear that all of this litigation arises out of plaintif:f's termination as "Captain in

Charge" of the Licensing and Certification Division of the Louisiana Office of

Alcohol and Tobacco Control.

Based on the language of La. R.S. 13:4231, this Court has established that

each of the following five elements must be satisfied for a finding that a second

3 Section 7 of Article I of the Louisiana Constitution provides that "[n]o law shall curtail or restrain

the freedom of speech or of the press. Every person may speak, write, and publish his sentiments

on any subject, but is responsible for abuse of that fireedom."

4actton is precluded by res judicata: "(l) 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." Chewon U.S.A., Inc.

v. State, 07-2469, p. 10 (La. 9/8/08), 993 So. 2d 187, 194, citingBurguieres v.

Pollingue, 02-1385, p. 7 (La. 2/25/03), 843 So.2d 1049, 1053. There is no doubt

that in this instance, the first two requirements of La. R.S. 13:4231, the existence of

a valid and final judgment, are met. For purposes of res judicata, a valid judgment

is one rendered by a court with jurisdiction over both the subject matter and the

parties, disposing of the merits in whole or in part, after proper notice was given.

Burguieres, 02-1385, 843 So. 2d at 1049, citing La. R.S. 13:4231 cmt. d 

### (1990).4

The court of appeal's judgment in this matter became final and definitive following

this Court's denial ofplaintiff"s writ application on November 5, 2019, and therefore

satisfies this requirement. See La. 

## c.c.p. art 2166(E) ("When an application for

certiorari to the supreme court is timely filed, a judgment of the court of appeal

becomes final and definitive after a delay of five days, exclusive of legal holidays,

commencing to run on the day after the clerk has mailed the denial by the supreme

court of the application for certiorari.")

4 Comment (d), "Valid and Final" provides:

To have any preclusive effect a judgment must be valid, that is, it must have been

rendered by a court with jurisdiction over subject matter and over parties, and

proper notice must have been given. The judgment must also be a final judgment,

that is, a judgment that disposes of the merits in whole or in part. The use of the

phrase "final judgment" also means that the preclusive effect of a judgment attaches

once a final judgment has been signed by the trial court and would bar any action

filed thereafter unless the judgment is reversed on appeal. Having the res judicata

effect of a judgment attach at the time of final judgment is rendered by the trial

court is in accord with our present law on lis pendens, see Code of Civil Procedure

Articles 531, 532.

5The third requirement of res judicata under the statute is that the parties in

both suits are "the same. This Court has stated that "[b]oth the civilian law and the

common law mandate that there must be 'identity of parties' before the doctrine of

res judicata can be used to preclude a subsequent suit. This requirement does not

mean that the parties must have the same physical identity, but that the parties must

appear in the same capacities in both suits." Burguieres, 843 at 1054. In other

words, "[t]here exists an identity of parties whenever the same parties, their

successors, or others appear so long as they share the same "quality" as parties.

Welch v. Crown Zellerbach Corp., 359 So. 2d 154, 156 (La. 1978). Thus, under this

analysis, the defendants, including the agency and subdepartment that employed

plaintiff, as well as the commissioners or secretaries of the ATC in their individual

capacities all share the same "quality" as parttes for purposes of res judicata and



## their interests are closely aligned.5 See Forum for Equality PAC v. McKeithen, 04-

2551 (La. 1/19/05), 893 So. 2d 738. Under the facts of this case, there is no amount

of creative pleading or naming as defendants of different levels of plaintiff's

employers or supervisors (either as agencies or in their individual capacities) that

will defeat this requirement. To do so would allow an aggrieved plaintiff to merely

file suit up and down the chain of command of employers in perpetuity. Such an

abuse of the system is precisely what the principles outlined herein seek to avoid,



## and "[tlhe interests ofjustice are not served when a concerned party is excluded from

the litigation." Walton v. Burns, 47,388, p. 12 (La. App. 

### 2 Cir. 

### 1/16/13), 151 So. 

### 3d

616, 622.

5 There are exceptions to the res judicata principles as set forth in La. R.S. 13:4232. Although

none are present in this matter, those exceptions are:

(1) When exceptional circumstances justify relief from the res judicata effect of the

judgment;

(2) When the judgment dismissed the first action without prejudice; or,

(3) When the judgment reserved the right of the plaintiff to bring another action.

6Regarding the fourth requirement that the cause or causes of action asserted

in the second suit existed at the time of the final judgment in the first litigation,

plaintiff's first suit set forth violations of his freedom of expression or speech under

the Louisiana Constitution when he was allegedly fired in retaliation for submitting

written complaints against Troy Hebert (the previous secretary of the ATC). For

those alleged violations, he sought damages and reinstatement. In his federal court

stnt, plaintiff alleged the same facts, seeking declaratory relief, damages, and

reinstatement for alleged violations of his First6 and Fourteenth7 Amendments.

Given the duplicative nature of plaintiff" s causes of action in both suits, I find this

requirement has been met. Moreover, because the cause of action asserted in federal

court also arose out of the same occurrence in the first suit (plaintiff's termination in

alleged retaliation), the fifth requirement for res judicata is also met.

Accordingly, in my view, regardless of whether plaintiffs state court suit

intertupted prescription on the federal court suit, plaintiff is now barred from seeking

the same relief in federal court that he unsuccessfully sought in state court. Pursuant

to La. R.S. 13:4231 and La. 

## c.c.p. art. 425, plaintiff was required to raise all claims

arising out of the same transaction or occurrence: his termination from employment

as "Captain in Charge" of the Licensing and Certification Division of ATC. Because

he failed to do so, under Louisiana res judicata principles, he cannot now seek relief

in another court or jurisdiction.8

6 The First Amendment to the United States Constitution provides that "Congress shall make no

law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging

the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances." U.S. Const. amend. I.

7 Section 1 of the Fourteenth Amendment to the United States Constitution provides, in pertinent

part, that no State shall "deprive any person of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.

amend. XIV, § 1.

8 Importantly, an appellate court, such as the Fifth Circuit Court of Appeals in this instance, may

recognize the exception of res judicata on its own motion pursuant to La. c.c.p. art. 927(A)(3).

7

### Thus, as set forth herein, I would answer the reformulated question in the

negative.

8

## 1 

## SUPREME COURT OF LOUISIANA

No. 2023

- CQ

- 00257

RANDALL KLING

VS.

TROY HEBERT; ERNEST P. LEGIER, JR., IN HIS OFFICIAL CAPACITY

AS THE COMMISSIONER OF THE OFFICE OF ALCOHOL AND

TOBACCO CONTROL OF THE LOUISIANA DEPARTMENT OF

REVENUE

On Certified Question from the United States Court of Appeals for the Fifth Circuit

C RAIN , J. , concurs with reasons.

I agree that interruption requires notice sufficient to fully apprise the

defendant of the nature of the claim and what is demanded. Howe ver, I write to

emphasize that the defendant is only on notice of those causes of action specifically

alleged. Separate causes of action that are later brought are not interrupted by the

initial suit because the defendant does not have notice from the pet ition.

A petition must contain “a short, clear, and concise statement of all causes of

action arising out of . . . the transaction or occurrence that is the subject matter of

the litigation” as well as “the material facts of[] the transaction or occurrenc e.” La.

Code of Civ. Proc. art. 891 . (Emphasis added)

. Article 891 draws a distinction

between material facts and causes of action arising from them. Both must be pled.

Louisiana Civil Code article 3462 provides that “[p]rescription is interrupted

whe n the . . . obligee commences action against the obligor[] in a court of competent

jurisdiction and venue.” Addressing what is actually interrupted, La. Civ. Code art.

3462 cmt. (b) explains: “ [t] he filing of suit in a court of competent jurisdiction and

venue interrupts any kind of prescription as to the causes of action therein sued upon

. . . . ” (Emphasis added)

. Consequently, the express language of the statute requires

that prescription continue to ru n against causes of action not pled.

## 2



## While Article 3462 uses the word “action

, ” and the comment uses “causes of

action, ” neither of which are defined, a “civil action” is defined as “a demand for the

enforcement of a legal right.” La. Code Civ. Proc. ar t. 421. I discern no difference

between the terms. Therefore, a pplying th e definition of “civil action

, ” prescription

is only interrupted for specific claims pled, as those are demand s made for the

enforcement of a legal right

.

Similarly, La . Code of Civ. Proc. art. 425, which addresses preclusion by

judgment

, requires a party to “assert all causes of action arising out of the transaction

or occurrence that is the subject matter of the litigation.” (Emphasis added). Again,

a party must do m ore than allege material facts. The y are required to allege all causes

of action arising from th ose facts. Requiring the petition to articulate both the facts

and, more specifically, all causes of action furthers the fundamental purpose of both

prescript ion and res judicata, which is to offer a defendant finality. See Giroir v.

South Louisiana Medical Center , 475 So.2d 1040, 1045 (La. 1985) ( An important

purpose of prescription is to provide a defendant psychological and economic

security if no timely claim is made, and to protect a defendant from stale claims and

loss of relevant proof. )

.

I concur.

## SUPREME COURT OF LOUISIANA

No. 2023

- CQ

- 00257

RANDALL KLING

VS.

TROY HEBERT; ERNEST P. LEGIER, JR., IN HIS OFFICIAL CAPACITY

AS THE COMMISSIONER OF THE OFFICE OF ALCOHOL AND

TOBACCO CONTROL OF THE LOUISIANA DEPARTMENT OF

REVENUE

On Certified Question from the United States Court of Appeals for the Fifth Circuit

GRIFFIN, J., additionally concurs and assigns reasons.

Respectfully, it is unclear whether the “same parties” requirement of res

judicata is met where a governmental entity is sued in one suit and an employee is

sued under 42 U.S.C. § 1983 in his individual capacity in a second suit. 1 

## As observed

by the United States Supreme Court:

[I]t is clear that a suit against a government official in his or her per sonal

capacity cannot lead to imposition of fee liability upon the

governmental entity. A victory in a personal

- capacity action is a

victory against the individual defendant, rather than against the entity

that employs him. Indeed, unless a distinct caus e of action is asserted

against the entity itself, the entity is not even a party to a personal

capacity lawsuit and has no opportunity to present a defense. That a

plaintiff has prevailed against one party does not entitle him to fees

from another party, let alone from a nonparty.

Kentucky v. Graham , 473 U.S. 159, 167

- 68, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114.

I would therefore leave it to the federal courts to determine the applicability of res

judicata under the facts presented. The irony is Mr. Kli ng’s contention that his initial

suit against the LDR constitutes notice to Mr. Hebert for liability in his individual

capacity simultaneously supports the dissent’s position that the party defendants are

the same thus triggering res judicata

.

1 

## Notwithstanding my position on the applicability of res judicata , I stand by the concerns over

the potential for abuse as articulated in the opinion of the Court.