Full Opinion (html_with_citations)

WATSON MEMORIAL                          *        NO. 2023-CA-0293
SPIRITUAL TEMPLE OF
CHRIST D/B/A WATSON                      *
MEMORIAL TEACHING                                 COURT OF APPEAL
MINISTRIES, CHARLOTTE                    *
BRANCAFORTE, ELIO                                 FOURTH CIRCUIT
BRANCAFORTE, BENITO                      *
BRANCAFORTE, JOSEPHINE                            STATE OF LOUISIANA
BROWN, ROBERT PARKE,                 *******
NANCY ELLIS, MARK
HAMRICK, ROBERT LINK,
CHARLOTTE LINK, ROSS
MCDIARMID, LAUREL
MCDIARMID, JERRY
OSBORNE, JACK STOLIER,
AND WILLIAM TAYLOR

VERSUS

GHASSAN KORBAN, IN HIS
CAPACITY AS EXECUTIVE
DIRECTOR OF THE
SEWERAGE AND WATER
BOARD OF NEW ORLEANS



                              APPEAL FROM
               CIVIL DISTRICT COURT, ORLEANS PARISH
                     NO. 2022-10955, DIVISION “F-14”
                        Honorable Jennifer M. Medley
                                  ******
                         Judge Joy Cossich Lobrano
                                  ******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Karen K. Herman)


Randall A. Smith
Sarah A. Lowman
L. Tiffany Hawkins
Andre M. Stolier
SMITH & FAWER, L.L.C.
201 St. Charles Avenue, Suite 3702
New Orleans, LA 70170


      COUNSEL FOR PLAINTIFF/APPELLANT
Michael E. Botnick
Alex B. Rothenberg
GORDON ARATA MONTOGMERY BARNETT MCCOLLAM DUPLANTIS &
EAGAN, LLC
201 St. Charles Avenue, 40th Floor
New Orleans, LA 70170-4000

Craig B. Mitchell
Christopher D. Wilson
MITCHELL & ASSOCIATES, APLC
615 Baronne Street, Suite 300
New Orleans, LA 70113

Darryl Harrison
SEWERAGE & WATER BOARD OF NEW ORLEANS
625 St. Joseph Street, Room 201
New Orleans, LA 70165


    COUNSEL FOR DEFENDANT/APPELLEE



                                REVERSED AND REMANDED

                                        DECEMBER 13, 2023
JCL          This is a mandamus proceeding, wherein the prevailing parties in an inverse

DLD   condemnation claim seek to compel payment of damages awarded at trial.

KKH   Plaintiffs/appellants (collectively, the “Neighbors”)1 appeal the February 8, 2023

      judgment of the district court, which granted the exception of no cause of action

      filed by defendant/appellee, Ghassan Korban (“Korban”), in his official capacity as

      Executive Director of the Sewerage and Water Board of New Orleans (“SWB”).

      For the reasons that follow, we reverse and remand for further proceedings.

                           FACTS AND PROCEDURAL HISTORY

             The Neighbors claim that SWB damaged and interfered with the Neighbors’

      use and enjoyment of their private homes and church during the Southeast

      Louisiana Urban Drainage Project (the “SELA Project”), which took place

      between 2013 and 2016. Multiple groups of residents, including the Neighbors,

      filed lawsuits to recover damages sustained in connection with the SELA Project.



      1 The Neighbors are listed as Watson Memorial Spiritual Temple of Christ d/b/a Watson

      Memorial Teaching Ministries; Charlotte, Elio, and Benito Brancaforte; Josephine Brown;
      Robert Parke and Nancy Ellis; Mark Hamrick; Robert and Charlotte Link; Ross and Laurel
      McDiarmid; Jerry Osborne; Jack Stolier; and Dr. William Taylor.


                                                    1
The facts of these claims are discussed in detail in this Court’s opinion in

Lowenburg v. Sewerage & Water Bd. of New Orleans, 19-0524 (La. App. 4 Cir.

7/29/20), --- So.3d ----,
2020 WL 4364345
 (“Lowenburg”). Following a trial on the

merits, the Neighbors were awarded $998,872.47 in cumulative damages for

inverse condemnation, as well as attorneys’ fees and costs, which ultimately

totaled $517,231.03. The district court’s finding, that SWB was liable to the

Neighbors for inverse condemnation, was upheld by this Court on appeal. See

Lowenburg, 19-0524, p. 14, --- So.3d at ----,
2020 WL 4364345
 at *7.

      Thereafter, SWB did not appropriate funds to satisfy the judgment rendered

in the Lowenburg suit. In response, the Neighbors filed a separate lawsuit in

federal district court, pursuant to
42 U.S.C. § 1983
, alleging, among other things,

that SWB’s failure to pay the inverse condemnation judgment to the Neighbors

constitutes a secondary taking under the Fifth Amendment of the United States

Constitution. See Ariyan, Inc. v. Sewerage & Water Bd. of New Orleans,
543 F.Supp.3d 373
, 375 (E.D. La. 2021), aff’d,
29 F.4th 226
 (5th Cir. 2022), cert.

denied, --- U.S. ---,
143 S.Ct. 353
,
214 L.Ed.2d 170
 (2022) (“Ariyan”). SWB and

Korban filed a motion to dismiss for failure to state a claim, which the district

court granted, and the U.S. Fifth Circuit affirmed on appeal, “applying long-

standing precedent that there is no [federal constitutional] property right to timely

payment on a judgment.” Ariyan,
29 F.4th at 228
.

      On December 1, 2022, the Neighbors filed the current action in the district

court by filing a “Petition for Writ of Mandamus and Writ of Fieri Facias.” The



                                          2
Neighbors argued that the damages awarded at trial for inverse condemnation were

a just compensation award, pursuant to the Louisiana Constitution and the Fifth

Amendment of the U.S. Constitution, but the SWB had failed to appropriate funds

to satisfy the underlying judgments. According to the Neighbors, the constitutional

duty to pay just compensation for the taking or damaging of property is a

ministerial duty required by law, and the district court has the power and authority

to issue a writ of mandamus directing the immediate payment of the just

compensation award.

      On December 27, 2022, Korban filed exceptions of res judicata and no

cause of action. In the exception of no cause of action, Korban argued that the

Louisiana Constitution prohibits seizure of State assets to satisfy money

judgments, and such judgments may only be paid from funds appropriated by the

legislature or the political subdivision against which the judgment was rendered.

Under Korban’s argument, courts may not order appropriation of funds through

mandamus, as that power is reserved to the legislature.

      A hearing on the exceptions went forward on January 27, 2023. The district

court subsequently rendered judgment on February 8, 2023, which denied the

exception of res judicata, granted the exception of no cause of action, and

dismissed the Neighbors’ claims against Korban with prejudice. This appeal

follows.

                          ASSIGNMENTS OF ERROR

      On appeal, the Neighbors set forth the following assignments of error:



                                          3
      I.     The District Court erred by granting Appellees’
             peremptory exception of no cause of action and
             dismissing Appellants’ Petition for Writ of Mandamus
             and Writ of Fieri Facias.

      II.    The District Court erred in granting Appellees’ exception
             of no cause of action on Appellants’ petition for writ of
             mandamus, because just compensation is constitutionally
             required under both the state and federal constitutions;
             therefore, the duty to pay a just compensation award is a
             mandatory duty that is not subject to discretion, and thus
             properly subject to mandamus.

      III.   The District Court erred in granting Appellees’ exception
             of no cause of action on Appellants’ petition for writ of
             fieri facias, because the constitutional requirement that
             just compensation be paid in LA. CONST., art. I, § 4(B) is
             more specific than, and therefore supersedes, the
             requirement that judgments only be paid from voluntary
             appropriations under LA. CONST. art. XII, § 10(C).

                              LAW AND ANALYSIS

Exception of No Cause of Action

      The exception of no cause of action raises a question of law, and appellate

courts review a district court’s ruling on an exception of no cause of action de

novo. Herman v. Tracage Dev., L.L.C., 16-0082, 16-0083, p. 4 (La. App. 4 Cir.

9/21/16),
201 So.3d 935, 939
. “The function of the peremptory exception of no

cause of action is to test the legal sufficiency of the petition, which is done by

determining whether the law affords a remedy on the facts alleged in the pleading.”

State, Div. of Admin., Off. of Facility Plan. & Control v. Infinity Sur. Agency,

L.L.C., 10-2264, p. 8 (La. 5/10/11),
63 So.3d 940, 945-46
 (citing Ramey v.

DeCaire, 03-1299, p. 7 (La. 3/19/04),
869 So.2d 114, 118
). The mover bears the

burden of showing that the petition states no cause of action. Id., 10-2264, p. 9,
63 So.3d at 946
. Under La. C.C.P. art. 931, no evidence may be introduced to support


                                           4
or controvert the exception of no cause of action; thus, the trial court reviews the

petition and accepts as true all well-pleaded allegations of fact. Id., 10-2264, pp. 8-

9,
63 So.3d at 946
 (citing Ramey, 03-1299, p. 7,
869 So.2d at 118
)(other citations

omitted).

Inverse Condemnation

      Pursuant to Article I, Section 4(B) of the Louisiana Constitution, “[p]roperty

shall not be taken or damaged by the state or its political subdivisions except for

public purposes and with just compensation paid to the owner or into court for his

benefit.” An inverse condemnation action provides a procedural remedy to a

property owner seeking compensation for land already taken or damaged, against a

governmental or private entity having powers of eminent domain, where no

expropriation proceedings have commenced. Faulk v. Union Pac. R.R. Co., 14-

1598, p. 9 (La. 6/30/15),
172 So.3d 1034, 1043-44
 (citing Avenal v. State, 03-3521,

p. 26 (La. 10/19/04),
886 So.2d 1085, 1103-04
)(other citations omitted). “Inverse

condemnation claims derive from the Taking Clauses contained in both the Fifth

Amendment of the U.S. Constitution and Article I, Section 4 of the Louisiana

Constitution.” Id., 14-1598, p. 9,
172 So.3d at 1044
. “Under the Louisiana

Constitution, the action for inverse condemnation is available in all cases where

there has been a taking or damaging of property when just compensation has not

been paid, without regard to whether the property is corporeal or incorporeal.” Id.,

14-1598, pp. 9-10,
172 So.3d at 1044
 (footnote omitted)(emphasis in original).




                                           5
      The Louisiana Supreme Court pronounced a three-factor analysis to

determine whether a property owner is entitled to “eminent domain compensation,”

wherein the court must:

      (1)    determine if a recognized species of property right has
             been affected;

      (2)    if it is determined that property is involved, decide
             whether the property has been taken or damaged in a
             constitutional sense; and

      (3)    determine whether the taking or damaging is for a public
             purpose under Article I, Section 4.

Id., 14-1598, p. 10,
172 So.3d at 1044
 (citing State, Dep’t of Transp. & Dev. v.

Chambers Inv. Co.,
595 So.2d 598, 603
 (La. 1992); Avenal, 03-3521, pp. 26-27,
886 So.2d at 1104
).

      In Lowenburg, supra, this Court examined these factors and upheld the

district court’s finding that the Neighbors were entitled to damages pursuant to

inverse condemnation.

Mandamus

      “Mandamus is a writ directing a public officer … to perform” “a ministerial

duty required by law.” La. C.C.P. arts. 3861 and 3863. “A ministerial duty is one

in which no element of discretion is left to the public officer, in other words, a

simple definite duty, arising under conditions admitted or proved to exist, and

imposed by law.” Lowther v. Town of Bastrop, 20-01231, p. 3 (La. 5/13/21),
320 So.3d 369
, 371 (internal quotations omitted). “If a public officer is vested with any

element of discretion, mandamus will not lie.”
Id.




                                           6
       Importantly, the Louisiana Constitution enables the legislature to “limit or

provide for the extent of liability of the state, a state agency, or a political

subdivision.”
Id.
 (quoting La. Const. art. XII, § 10(C)). Specifically, under Article

XII, Section 10(C), “[n]o judgment against the state, a state agency, or a political

subdivision shall be exigible, payable, or paid except from funds appropriated

therefor by the legislature or by the political subdivision against which the

judgment is rendered.” Id. Moreover, under La. R.S. 13:5109(B)(2),2 a judgment

against the state or its political subdivision is only payable by funds appropriated

for the purpose of satisfying that judgment. As a general matter, “[t]he very act of

appropriating funds is, by its nature, discretionary and specifically granted to the

legislature by the constitution.” Hoag v. State, 04-0857, p. 7 (La. 12/1/04),
889 So.2d 1019, 1024
.

       Nevertheless, the Supreme Court has recognized that “[m]andamus may lie

against a political subdivision when the duty to be compelled is ministerial and not

discretionary.” Lowther, 20-01231, p. 5, 320 So.3d at 372. “[T]he relevant

consideration is ‘whether the act of appropriating funds to pay the judgment … is a

purely ministerial duty for which mandamus would be appropriate.’” Id. (quoting

Hoag, 04-0857, p. 6,
889 So.2d at 1023
). The Supreme Court acknowledged there

are “specific limited exceptions wherein the duty to pay a judgment is



2 “Any judgment rendered in any suit filed against the state, a state agency, or a political

subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit
shall be exigible, payable, and paid only out of funds appropriated for that purpose by the
legislature, if the suit was filed against the state or a state agency, or out of funds appropriated
for that purpose by the named political subdivision, if the suit was filed against a political
subdivision.” La. R.S. 13:5109(B)(2).


                                                   7
constitutionally and statutorily mandated and therefore ministerial in nature.”

Crooks v. State Through Dep’t of Nat. Res., 22-00625, p. 4 (La. 1/1/23),
359 So.3d 448
, 451, reh’g denied, 22-00625 (La. 3/16/23),
362 So.3d 424
. As the Court

explained:

               These constitutional and statutory provisions operate as
               de facto appropriations by the legislature irrespective of
               the general limitations set forth in La. Const. art. XII, §
               10(C) and La. R.S. 13:5109(B)(2). See Lowther, 20-1231,
               p. 6, 320 So.3d at 372-73 (citing Perschall v. State, 96-
               0322, p. 22 (La. 7/1/97),
697 So.2d 240
, 255). Where
               such provisions exist, courts are merely enforcing the
               positive law and not encroaching on functions
               constitutionally dedicated to the legislative branch.
               Lowther, 20-1231, p. 5, 320 So.3d at 372; Hoag, 04-
               0857, p. 4,
889 So.2d at 1022
.
Id.

       This case presents a res nova issue of law: whether payment of an inverse

condemnation judgment against a political subdivision is a ministerial duty. We

find that it is.

       The Neighbors rely on Parish of St. Charles v. R.H. Creager, Inc., 10-180,

p. 13 (La. App. 5 Cir. 12/14/10),
55 So.3d 884, 893
, writ denied, 11-0118 (La.

4/1/11),
60 So.3d 1250
 (“Creager”), which held that “payment of final judgments

of damages in expropriation cases is a ministerial duty and not a discretionary one”

such that “a mandamus may be properly issued for payment of the judgment in this

case.” The Creager court recognized that the specific levee district statute, La. R.S.

38:513(B), and the mandamus power consistent with that law, were not directly

applicable where the parish was not a levee district. Creager, 10-180, p. 8,
55 So.3d at 889
. Even so, the court found “the legislative intent of those statutes can


                                           8
be instructive.”
Id.
 When a levee district expropriates land, La. R.S. 38:390(A)

requires:

                    If the amount finally awarded exceeds the amount
             so deposited, the court shall enter judgment against the
             levee district or levee and drainage district and in favor
             of the persons entitled thereto for the amount of the
             deficiency. The final judgment together with legal
             interest thereon shall be paid within sixty days after
             becoming final. Thereafter upon application by the owner
             or owners, the trial court shall issue a writ of mandamus
             to enforce payment.

      Looking to this authority, the court further reasoned:

             By incorporating the mandamus power to compel
             payment of fair and just compensation into the
             proceedings for expropriation of land by levee boards, we
             believe the legislature intended that this be an exception
             to the general mandamus law. Furthermore, we note that
             the issuance of a mandamus by the trial court in that case
             is actually mandated by the legislature.

Creager, 10-180, p. 8,
55 So.3d at 890
. The court was also persuaded that the

judgment against the parish was not obtained in a contract or tort action; “the fact

that this matter results from an action taken pursuant to the Parish’s power of

eminent domain requires a different analysis and outcome.” Id., 10-180, pp. 8-9,
55 So.3d at 890
. Moreover, under the Takings Clause of the Louisiana Constitution,

“the same law that affords the right of the Parish to exercise its police power

compels the Parish to pay just and fair compensation, and to afford constitutional

due process rights to citizens affected.” Id., 10-180, p. 10,
55 So.3d at 891
.

      According to the Neighbors, inverse condemnation – like expropriation – is

a taking or damaging of a private property because of a public purpose as provided

in Article I, Section 4 of the Louisiana Constitution, and the aggrieved property


                                           9
owners must be subject to the same constitutional protections and benefit from the

same ability to collect a judgment for a taking or damaging. This Court determined

that “in cases where inverse condemnation rather than formal expropriation of

property has taken place[,] … [t]here is no basis in Louisiana law for the different

treatment of property owners in these two situations.” Avenal v. State, 99-0127

(La. App. 4 Cir. 3/3/99),
757 So.2d 1, 12
, on reh’g (3/15/00), writ denied, 00-1077

(La. 6/23/00),
767 So.2d 41
. “The same substantive constitutional right (the right,

secured by Art. I, § 4 of the 1974 Louisiana Constitution, to receive full

compensation for the governmental taking of private property) is triggered by

both.” Id.

       The Louisiana Supreme Court compared the “mandatory nature” of a hotel

tax overpayment refund, pursuant to statutory and constitutional authority,3 to the

“compensation that is required in expropriation cases” finding mandamus the

appropriate remedy to compel these ministerial duties. Jazz Casino Co., L.L.C. v.

Bridges, 16-1663, pp. 10-11 (La. 5/3/17),
223 So.3d 488, 496
 (“Jazz”)(citing

Creager, 10-180, p. 11,
55 So.3d at 891
)(footnotes omitted). In doing so, the Court

distinguished the overpayment refund proceeding “from cases requiring a

legislative appropriation for payment of a judgment, i.e., matters arising out of

contract or tort.” Id., 16-1663, p. 11,
223 So.3d at 496
 (footnote omitted). The

Court further reasoned that a refund proceeding, “like an expropriation proceeding,

implicates constitutional concerns involving the deprivation of property” and that


3 See generally La. Const. art. VII, § 3(A) and La. R.S. 47:1621 et seq. (setting out the

circumstances and procedure providing refund to the taxpayer for the overpayment of taxes).


                                                10
“the issuance of a writ of mandamus ordering the Secretary [of the Department of

Revenue] to use those funds does not violate the constitutional prohibition of

seizing public funds.” Id., 16-1663, p. 12,
223 So.3d at 497
.

       Similarly, the Supreme Court compared the mandatory, ministerial duty to

pay firefighters back wages4 to the “appropriation of funds to pay judgment of

damages in expropriation case … because the expropriation statutes and La. Const.

art. I, § 4(B) make payment of fair and just compensation mandatory and not

discretionary.” Lowther, 20-01231, p. 5, 320 So.3d at 372 (citing Creager, 10-180,

p. 13,
55 So.3d at 892-93
). The Court again “distinguished the mandatory nature of

paying judgments for tax overpayment refunds and expropriation compensation

from the discretionary nature of paying judgments arising from matters of contract

or tort.”
Id.
 (citing Jazz, 16-1663, pp. 10-11,
223 So.3d at 495-96
).

       SWB relies on Newman Marchive Partnership v. City of Shreveport, 07-

1890 (La. 4/08/08),
979 So.2d 1262
, for the general premise that the separation of

powers doctrine prohibits issuing mandamus ordering seizure of public assets in

satisfaction of money judgments. Nevertheless, Newman Machive Partnership was

a breach of contract claim, which the Supreme Court acknowledged as distinct

from a constitutional takings claim involving the mandatory duty to pay just

compensation for deprivation of property rights. See Lowther, 20-01231, p. 5, 320

So.3d at 372; Jazz, 16-1663, pp. 10-11,
223 So.3d at 495-96
.




4 See La. Const. art. VI, § 14(A)(2)(e); La. R.S. 33:1992(A); La. R.S. 33:1992(B); and La. R.S.

33:1969 (governing firefighter compensation).


                                                11
      SWB further cites the recent Supreme Court case of Mellor v. Parish of

Jefferson, 22-01713 (La. 9/1/23),
370 So.3d 388
, rejecting a claim seeking

mandamus for return of funds collected through the enforcement of an ordinance

later found unconstitutional. Mellor declined to follow Creager, finding “no

specific constitutional or statutory provision permits the trial court to order the

defendants to remit [the disputed sum] into its registry[.]” Id., 22-01713, p. 14, 370

So.3d at 397. Instead, the Court adhered to the general pronouncements of La.

Const. art. XII, § 10 and La. R.S. 13:5109(B)(2) in determining that the Court

lacked specific authority to issue mandamus ordering seizure of public funds to

satisfy payment of a money judgment. Id.

      We find Mellor dissimilar from the appeal before us, because, in Mellor,

there was no holding that the funds collected under the ordinance resulted in a

taking under La. Const. art. I, § 4, and neither the constitution nor statute permitted

mandamus. Instead, we find this matter analogous to the expropriation issues

resolved in Creager and followed in Jazz. We find it instructive that in Creager,

the Takings Clause of the Louisiana Constitution governed and mandamus was

proper, even though the expropriation statute was not directly applicable.

Moreover, we are bound by this Court’s pronouncement in Avenal, 99-0127,
757 So.2d at 12
, that no reason exists to treat expropriation and inverse condemnation

differently, as the same constitutional protections arise in both.

      Under this reasoning, we find that payment of a judgment awarding just

compensation for inverse condemnation, like a judgment awarding just



                                           12
compensation for expropriation, is a ministerial duty, and we find that the

Neighbors have stated a cause of action. We, therefore, reverse the judgment of the

district court.

Res Judicata

        Lastly, we find no merit in Korban’s argument that the district court’s

judgment should be upheld on the basis of res judicata.5 Korban has failed to

demonstrate with law or record evidence that the federal court judgment in Ariyan

bars the instant state law claim for mandamus.

       When filing suit in federal court, the Neighbors “invoked federal question

jurisdiction, relying on their Fifth Amendment claim.” Ariyan,
29 F.4th at 232
. A

state court must apply the federal law of res judicata when determining “the

preclusive effects of a judgment rendered by a federal court exercising federal

question jurisdiction.” St. Charles Surgical Hosp., LLC v. Louisiana Health Serv.

& Indem. Co., 18-0052, p. 3 (La. App. 4 Cir. 3/21/18),
317 So.3d 854
, 856

(quoting Reeder v. Succession of Palmer,
623 So.2d 1268, 1271
 (La. 1993)). The

res judicata effect of a prior judgment is a question of law, which is reviewed de

novo. Id., 18-0052, p. 3, 317 So.3d at 856-57 (quoting Test Masters Educ. Servs.,

Inc. v. Singh,
428 F.3d 559
, 571 (5th Cir. 2005)).

5 Korban did not file an answer to the appeal, but seeks affirmation of the district court’s

judgment of dismissal on alternative grounds: res judicata. In the judgment currently before us
on appeal, the district court granted Korban’s exception of no cause of action, but it denied the
exception of res judicata. Korban contends that, even if this Court were to reverse its ruling on
the exception of no cause of action, this litigation should still be dismissed as barred by res
judicata. “A party who does not seek modification, revision, or reversal of a judgment in an
appellate court, including the supreme court, may assert, in support of the judgment, any
argument supported by the record, although he has not appealed, answered the appeal, or applied
for supervisory writs.” La. C.C.P. art. 2133(B). See also Slaughter v. Louisiana State Employees’
Ret. Sys., 15-0324, pp. 3-4 (La. 10/14/15),
180 So.3d 279, 281-82
.


                                                 13
      Res judicata encompasses the doctrine of “claim preclusion,” which “bars

the litigation of claims that either have been litigated or should have been raised in

an earlier suit.” Test Masters Educ. Servs., Inc., 428 F.3d at 571. The test for res

judicata has four requirements:

             (1) the parties are identical or in privity; (2) the judgment
             in the prior action was rendered by a court of competent
             jurisdiction; (3) the prior action was concluded by a final
             judgment on the merits; and (4) the same claim or cause
             of action was involved in both actions.

Id.

      Korban argues the general premise that the Neighbors’ state law claim

seeking mandamus arises from the same underlying facts as the federal suit: that

the Neighbors seek to compel payment of the unpaid judgment against SWB.

While this may be true, we cannot find it sufficient, without more, under the

jurisprudence. As the Supreme Court explained in Reeder,
623 So.2d at 1272
-73:

             if a set of facts gives rise to a claim based on both state
             and federal law, and the plaintiff brings the action in a
             federal court which had “pendent” jurisdiction to hear the
             state cause of action, but the plaintiff fails or refuses to
             assert his state law claim, res judicata prevents him from
             subsequently asserting the state claim in a state court
             action, unless the federal court clearly would not have
             had jurisdiction to entertain the omitted state claim, or,
             having jurisdiction, clearly would have declined to
             exercise it as a matter of discretion.

      Ariyan dismissed the federal Fifth Amendment takings claim, wherein the

Neighbors asserted that nonpayment of the underlying judgment was a “second

taking.” Ariyan,
29 F.4th at 229
. The federal district court and Fifth Circuit




                                          14
concluded under a line of federal jurisprudence6 that a government’s failure to

timely pay a judgment did not constitute a violation of a federal constitutional

right.
Id. at 230-32
. “Without an underlying federal claim, or any other basis for

jurisdiction asserted by the Plaintiffs, the district court properly declined to hear

Plaintiffs’ standalone claim to declaratory relief.”
Id. at 232
.

       Other Louisiana courts, following Reeder, have recognized that state law

claims in a state action are not precluded by res judicata, where “although

plaintiffs did not assert all of their state law claims in the federal proceeding, the

federal court clearly would have declined to exercise its pendent jurisdiction over

the omitted state law claims.” Morales v. Parish of Jefferson, 10-273, pp. 7-8 (La.

App. 5 Cir. 11/9/10),
54 So.3d 669, 673
. Korban has failed to demonstrate that the

federal court could have exercised jurisdiction over the state law mandamus claim,

and we find no error in the district court’s denial of his exception of res judicata.

                                      CONCLUSION

       Accordingly, for the reasons set forth in this opinion, the judgment of the

district court, which granted the exception of no cause of action and dismissed the

Neighbors’ Petition for Writ of Mandamus and Writ of Fieri Facias, is reversed,

and this matter is remanded to the district court for further proceedings.

                                                       REVERSED AND REMANDED




6 See Folsom v. City of New Orleans,
109 U.S. 285
,
3 S.Ct. 211
,
27 L.Ed. 936
 (1883); Minton v.

St. Bernard Par. Sch. Bd.,
803 F.2d 129
 (5th Cir. 1986); Freeman Decorating Co. v. Encuentro
Las Americas Trade Corp.,
352 F. App’x 921
 (5th Cir. 2009).


                                              15