Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 110 of 139
preclusion should not apply because the party sought to be
bound did not have an adequate opportunity or incentive to
obtain a full and fair adjudication in the first proceeding. Such
a refusal to give the first judgment preclusive effect should not
occur without a compelling showing of unfairness, nor should
it be based simply on a conclusion that the first determination
was patently erroneous. But confined within proper limits,
discretion to deny preclusive effect to a determination under the
circumstances stated is central to the fair administration of
preclusion doctrine.
Id.; see also Metro. Sav. & Loan Ass’n v. Tarter, 730 S.W.2d 1, 5 (Tex. App.—Dallas 1987,
writ granted) (citing § 28(5) for the rule that an issue is not precluded if there is a clear need
for redetermination due to misconduct on the part of an opposing party that prevented a full
and fair adjudication of the original action), rev’d on other grounds, 744 S.W.2d 926 (Tex.
1988). The Louisiana Supreme Court has cited the Restatement for the proposition that
preclusion 40
does not apply, even when the elements are met, “if it is clearly and
convincingly shown that the policies favoring preclusion of a second action are overcome
for an extraordinary reason.” Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654
(La. 1/16/96); 666 So. 2d 624, 632 (La. 1996) (citing RESTATEMENT (SECOND) OF
JUDGMENTS § 26).
In the present case, weighing the policies underlying preclusion law against the
evidence that the defendants spoliated evidence relevant to the misappropriation claims, this
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In Terrebonne, the Louisiana Supreme Court identified the question as issue preclusion but cited the
Restatement (Second) of Judgments section applicable to claim preclusion. See 666 So. 2d at 632. In any
event, Louisiana law considers both under the umbrella of “res judicata.” Courts have interpreted “res
judicata” in Louisiana statutes to encompass both claim and issue preclusion. See Am. Med. Enters., Inc. v.
Audubon Ins. Co., 2005- 2006, p. 6 (La. App. 1 Cir. 6/8/07); 964 So. 2d 1022, 1028. In Terrebonne, the court
referred only to the “common law theory of res judicata.” See Terrebonne, 666 So.2d at 632.
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