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Williams v. City Baton Rouge4/30/1998
endants cast. In all other respects, the motion for new trial was denied. A judgment reflecting the trial court's determinations was signed September 12, 1995. From that judgment, the City/Parish, Chicago, and F & C have appealed. Plaintiffs have answered the appeal. The issues raised by the parties are as follows.
By all defendants:
(1) Whether the trial court erred in denying the City/Parish's peremptory exception raising the objection of res judicata;
(2) Whether the trial court erred in allowing plaintiffs' recovery under any theory of liability other than inverse condemnation, which permits awards for property damages and severance damages only;
(3) Whether the trial court erred in allowing plaintiffs any recovery other than the market value of their property because of their failure to mitigate their damages by taking legal action to prevent the City/Parish from performing the excavation work on their property;
(4) Whether the trial court erred in awarding recovery for mental anguish under any theory of liability;
(5) Whether the trial court erred by awarding plaintiffs' experts excessive fees because the expert testimony was of little value to the trial court's determination of damages;
(6) Whether the trial court erred in awarding plaintiffs attorney's fees.
By plaintiffs:
(7) Whether the trial court's determination of damages is excessively low;
(8) Whether the trial court's awards of attorney's fees are abusively low;
(9) Whether the trial court's awards of expert fees are excessively low.
By Chicago and F & C:
(10) Whether either or both of the insurance policies provide coverage for all or part of the damages under the facts of this case.
II. RES JUDICATA
A threshold issue defendants raise in this appeal is whether the trial court erred in denying a peremptory exception raising the objection of res judicata. Defendants assert the issue of whether a natural drain existed is res judicata and urge that a judgment, signed on June 14, 1983, supports their assertion. That judgment provides, in pertinent part:
IT IS ORDERED, ADJUDGED AND DECREED that a preliminary injunction issue herein directed to John Raby prohibiting the defendant from dumping any fill of any type or nature whatsoever in the natural drainage areas that cross his property. . . . (Emphasis added.)
Defendants contend that because in the oral reasons for judgment the trial court determined a natural drain existed on the Raby family property, and because the City/Parish actions on January 6, 1984, constituted maintenance of that natural drain and were in conformity with the location of the natural drain as set forth in the oral reasons for judgment, the June 14, 1983 judgment bars plaintiffs' cause of action against the City/Parish under the doctrine of res judicata.
When plaintiffs filed their petitions for damages in August, 1986 La.R.S. 13:4231 provided:
The authority of the thing adJudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. (Footnote added.)
The trial court properly denied defendants' exception of res judicata. On May 26, 1983, the City/Parish filed for a preliminary injunction in its favor and against the defendants. However, the plaintiffs' petitions in this case seek damages, and not an injunction; thus, the thing demanded
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