B-M1 Kenneth Derryl Norris and Mary Ellen Klein Norris v. Union Planters Bank of Louisiana

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30566
Summary Calendar
Civil Docket No. 98-461-B-M1
KENNETH DERRYL NORRIS AND MARY ELLEN KLEIN NORRIS
Plaintiffs-Appellants,
v.
UNION PLANTERS BANK OF LOUISIANA, ET AL.
Defendant-Appellee,
Appeal from the United States District Court
for the Middle District of Louisiana
January 28, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kenneth Derryl Norris and Mary Ellen Klein Norris
(collectively “Appellants”) appeal the district court’s granting
summary judgment to Union Planters Bank of Louisiana (“Union
Planters”) and the taxing of costs against the Appellants pursuant
to 28 U.S.C. § 1920. Since the state court judgment on which the
district court relied has subsequently been reversed, Louisiana’s
res judicata statute, which served as the basis for summary

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2 The Appellants filed their state court action in February 1997. The
state court entered judgment for Union Planters in December 1997 (“first
judgment”), and the Appellants filed a timely appeal. In April 1998, the
Appellants filed a second action which was removed to federal court. In May
1999, the district court granted summary judgment to Planters. The Louisiana
appellate court reversed the first judgment in June 1999, and the Appellants then
appealed the district court judgment.
3 La. Rev. Stat. Ann. § 13:4231 (West 1991), provides in pertinent
part: 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:...(2) If the judgment is in favor of the
2
judgment, does not apply.2 This court, therefore, vacates and
remands.
This court reviews the granting of summary judgment de
novo and applies the same criteria as the district court. See Baker
v. Putnal, 75 F.3d 190, 197 (5th Cir. 1996). Summary judgment is
appropriate when, viewing the evidence in the light most favorable
to the non-moving party, the record shows that there is no genuine
issue of material fact and the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S. Ct. 2548, 2552-53 (1986); see also Fed. R. Civ. P.
56(c).
In determining the preclusive effect of the first state
court judgment, the district court applied Louisiana’s res judicata
principles. See Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334,
1338 (5th Cir. 1996)(in giving res judicata effect to a state court
judgment, a federal court applies the res judicata principles of the
state from which the judgment originated); see also 28 U.S.C.
§ 1738. Under Louisiana’s res judicata statute, a valid, final
judgment between the same parties has preclusive effect.3 At the

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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.
4 See also Butler v. Eaton, 141 U.S. 240, 244, 11 S. Ct. 985, 987
(1891); Ornellas v. Oakley, 618 F.2d 1351, 1356 (9th Cir. 1980)(“A reversed or
dismissed judgment cannot serve as the basis for a disposition on the ground of
res judicata or collateral estoppel.”); Di Gaetano v. Texas Co., 300 F.2d 895,
897 (3d Cir. 1962)(if the prior judgment relied upon in the district court is
reversed after the judgment of the district court, “the defense of collateral
estoppel ... has evaporated”); In re Hedged-Investments Assocs., 48 F.3d 470,
472-73 (10th Cir. 1995); South Carolina Nat’l Bank v. Atlantic States Bankcard
Ass’n, 896 F.2d 1421, 1430-31 (4th Cir. 1990); Erebia v. Chrysler Plastics Prods.
Corp., 891 F.2d 1212, 1215 (6th Cir. 1989).
3
time the district court granted summary judgment to Union Planters,
the first judgment was valid and final. See La. Rev. Stat. Ann.
§ 13:4231, cmt. (d); La. Code Civ. Proc. Ann. art. 967 (West 1984).
After the district court entered judgment, the Louisiana appellate
court reversed the first judgment. As a result, there is no final
judgment to which the federal court can give preclusive effect: “the
preclusive effect of a judgment attaches once a final judgment has
been signed by the trial court and ... bar[s] any action filed
thereafter unless the judgment is reversed on appeal.” Id.
(emphasis added). Once the first judgment is reversed, “a second
judgment based upon the preclusive effects of the first judgment
should not stand.” 18 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4433 (2d ed.
1990).4 Given the reversal of the first judgment, Louisiana’s res
judicata statute no longer bars pursuit of Appellants’ claim in the
district court. Union Planters is not entitled to judgment as a
matter of law on the basis of preclusion. This court, therefore,

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5 Since this court vacates the district court’s judgment, the taxation
of costs is to be determined by the district court after the outcome of this
remand.
4
vacates the district court’s granting summary judgment to Union
Planters and remands the case to the district court.5
VACATED AND REMANDED.

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