Ray A. Bethel v. Brittany Simon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-198

RAY A. BETHEL

VERSUS

BRITTANY SIMON

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 138,301
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Billy H. Ezell, D. Kent Savoie, and Charles G. Fitzgerald, Judges.

PEREMPTORY EXCEPTION DENIED;
REVERSED AND REMANDED.

Carolyn D. Deal
Deal Law Firm, LLC
2104 Cherry Palm Circle
New Iberia, Louisiana 70563
(337) 414-0260
Counsel for Plaintiff/Appellant:
Ray A. Bethel

Scott M. Hawkins
Hawkins & Associates, LLC
913 South College Road, Suite 260
Lafayette, Louisiana 70503
(337) 210-8818
Counsel for Defendant/Appellee:
Brittany Simon

FITZGERALD, Judge.

The issue on appeal is whether the trial court erred in sustaining Brittany

Simon’s peremptory exception of res judicata resulting in the dismissal of a Petition

for Protection from Abuse.

FACTS AND PROCEDURAL HISTORY

Ray A. Bethel and Brittany Simon are the parents of an eight-year-old

daughter. On December 9, 2021, Ray filed on behalf of his daughter a Petition for

Protection from Abuse against Brittany. The petition requested the issuance of a

protective order. And the hearing for this relief was fixed for December 21, 2021.

At the December 21st hearing—before any evidence was adduced—Brittany’s

attorney orally raised the peremptory exception of res judicata. Oversimplifying

slightly, Brittany’s lawyer argued that Ray had recently filed a motion to modify

custody, that the custody motion was filed in a different suit (different docket

number and division), that the custody hearing was held on December 7, 2021

(merely two days before the filing of the Petition for Protection from Abuse), that

the same allegations of domestic abuse were adjudicated at the custody hearing, that

the trial judge ruled on custody from the bench, and that a written custody judgment

had been circulated to that judge for review and signing.

Brittany’s counsel then supported the exception of res judicata by introducing

into evidence three documents: Ray’s motion to modify custody, the minutes from

the December 7th custody hearing, and Ray’s December 9th Petition for Protection

from Abuse.

In response, Ray’s attorney objected to res judicata, arguing primarily that the

custody ruling had not yet been reduced to a signed final judgment.

The trial court ultimately sustained the exception of res judicata, resulting in

the dismissal of the Petition for Protection from Abuse. A written final judgment

was signed that same day (December 21, 2021). Ray has appealed this judgment.1

Interestingly, nearly four months after Ray perfected his appeal, Brittany filed

in this court a peremptory exception of res judicata.

LAW AND ANALYSIS

The general principle of res judicata is set forth in La.R.S. 13:4231, which

states:

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:

(1) 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.

In Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049, 1053,

the supreme court explained that under La.R.S. 13:4231, a second action is precluded

when the following five elements are satisfied:

1
The trial court’s judgment also references collateral estoppel. In Gaspard v. Allstate Ins.
Co., 04-1502 (La.App. 3 Cir. 5/4/05), 903 So.2d 518, writ denied, 05-1510 (La. 12/16/05), 917
So.2d 1114, this court explained that collateral estoppel under La.Code Civ.P. art. 425 requires the
same elements—and thus the same legal analysis—as res judicata. So, to avoid confusion and
duplicative legal discussions, the focus of this opinion is limited to res judicata.

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(1) 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.

Moreover, “The party who urges an exception of res judicata bears the burden

of proving its essential elements by a preponderance of the evidence.” Blackburn v.

Green, 18-583, p. 6 (La.App. 5 Cir. 2/27/19), 266 So.3d 546, 551 (emphasis in

original). And importantly, “The doctrine of res judicata is stricti juris; any doubt

concerning application of the principle of res judicata must be resolved against its

application.” Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d 1210, 1215.

Before going further, we will address Brittany’s written exception of res

judicata filed in this court. While the peremptory exception of res judicata can be

filed for the first time in an appellate court, proof of the ground of the exception must

appear in the record on appeal. La.Code Civ.P. art. 2163. Conversely, if the grounds

of the peremptory exception do not appear in the record, the exception must be

denied. Smith v. State, Dep’t of Transp. & Dev., 04-1317 (La. 3/11/05), 899 So.2d

516.

As noted above, a final judgment is an essential element of res judicata. To

this end, Brittany argues that the custody judgment from the first suit (the custody

proceeding) bars the second suit (the protective order proceeding). However, the

custody judgment is not part of the record on appeal. And for that reason, the

exception of res judicata that Brittany filed in this court is denied.

Turning now to the merits of the Ray’s appeal. On appeal, Ray asserts a single

all-encompassing assignment of error: the trial court erred in granting Brittany’s oral

exception of res judicata.

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The standard of review of a judgment sustaining res judicata is a mixed

standard, consisting of both manifest error and de novo review. Fogleman v. Meaux

Surface Prot., Inc., 10-1210 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, writ denied, 11-

712 (La. 5/27/11), 63 So.3d 995. In other words, all factual findings are reviewed

under the manifest error standard, and all questions of law are reviewed de novo. Id.

Here, however, the trial court did not make any factual findings in sustaining

the exception of res judicata. The trial court simply concluded that the custody

judgment barred the Petition for Protection from Abuse. And this, too, is a question

of law. See Morales v. Parish of Jefferson, 10-273, p. 6 (La.App. 5 Cir. 11/9/10), 54

So.3d 669, 672 (“The res judicata effect of a prior judgment is a question of law that

is reviewed de novo.”)).

As discussed below, there are four legal deficiencies that make res judicata

inappropriate in this case. First, the exception was orally asserted. Second, there is

no final judgment of custody in the record. Third, the identity of the parties is

lacking. And fourth, the identity of the subject matter is lacking.

(1) Form of the Exception—Must be in Writing

Res judicata is asserted through the peremptory exception. La.Code Civ.P. art.

927(A)(2). All exceptions, including res judicata, must be in writing. La.Code Civ.P.

art. 924 (“All exceptions shall comply with Articles 853, 854, and 863, and,

whenever applicable, with Articles 855 through 861. They shall set forth the name

and surname of the exceptor, shall state with particularity the objections urged and

the grounds thereof, and shall contain a prayer for the relief sought.”).

In Union Planters Bank v. Commercial Capital Holding Corp., 04-1520, p. 5

(La.App. 1 Cir. 3/24/05), 907 So.2d 131, 133-34, the first circuit held that

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a trial court errs in deciding that a case is barred by res judicata where
no plea of res judicata has been filed. See LSA–C.C.P. art. 927; Hayes
v. Hayes, 607 So.2d 3, 5 (La.App. 2 Cir.1992). Since Allstate did not
properly plead the objection of res judicata, the trial court erred in
rendering a judgment in its favor sustaining an objection of res judicata.
Accordingly, the trial court’s judgment of March 30, 2004, must be and
hereby is reversed.

We agree with this holding. And here, the peremptory exception of res

judicata was orally asserted by Brittany’s attorney during the hearing on the

protective order. This was improper. But the legal error occurred when the trial

court sustained the exception.

(2) No Final Judgment is in the Record

While briefly addressed above, the peremptory exception of res judicata must

be based on a previously-issued final judgment. La.R.S. 13:4231. As noted in the

revision comments, a final judgment “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[.]” La.R.S. 13:4231

cmt. (d).

In this case, the trial court sustained Brittany’s exception of res judicata in

open court on December 21, 2021. This ruling was based on the preclusive effects

of the custody judgment from a few weeks earlier. But on December 21, 2021, the

custody judgment had not been signed by the trial judge. This was acknowledged

in open court by respective counsel and the trial court. In summary, the exception

of res judicata was sustained in the absence of a final judgment of custody.

To circumvent the necessity of a final judgment, Brittany introduced into

evidence a copy of the minutes from the December 7th custody hearing. However, a

minute entry reflecting an oral judgment that has not been reduced to writing and

signed by the trial court is not a final judgment. And as explained in Davis v. Farm

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Fresh Food Supplier, 02-1401, p. 3 (La.App. 1 Cir. 3/28/03), 844 So.2d 352, 354,

even “[w]ritten reasons for judgment are considered to be interlocutory rulings and

do not carry the finality of a judgment. Prior to final judgment, a trial court may, at

its discretion, change the substance or the result of interlocutory rulings.”

Very simply, Brittany has not proven that a final judgment of custody was in

existence when the exception of res judicata was sustained. Thus, on the record

before us, Brittany failed to meet her burden of proof as to this element of res judicata.

(3) No Identity of the Parties

In Burguieres, 843 So.2d at 1053-54, the Louisiana Supreme Court explained

as follows:

The third requirement of res judicata is that the parties in both
suits are the same. Both 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.

The supreme court continued:

Thus, in both the common law and the civil law, in order for a
second suit to be barred by the doctrine of res judicata, the parties must
appear in the same capacities in both suits. Although not explicitly
stated in the amended statute, we find the requirement in La. R.S.
13:4231 that the parties be the same in order for a second suit to be
precluded by operation of res judicata retains this “identity of capacity”
component. That is, under La. R.S. 13:4231 the parties are the same
when they appear in the same capacities in both suits. We reach this
conclusion based on the language of La. R.S. 13:4231, the history of
this requirement in the law of res judicata, and the application of the
doctrine in both the civil law and common law systems.

Id. at 1054-55.

Here, the first suit (the custody proceeding) was initiated by one parent (Ray)

against the other (Brittany). Ray sought to modify legal custody. And in a custody

proceeding between parents, a trial court balances the parental fitness of each party.

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In contrast, the second suit (a protective order proceeding) was initiated when

Ray, on behalf of his daughter, filed a Petition for Protection from Abuse against

Brittany. In this type of suit—when filed on behalf of a minor child against a

parent—the rights being balanced are these: a child’s right to be protected from

domestic abuse against a parent’s right to raise and rear his or her child.

Without question, Ray appeared in a different capacity in the second suit (the

protective order proceeding), and he could not have appeared in that capacity in the

first suit (the custody proceeding). Identity of the parties is required for res judicata.

Because it is lacking, the second suit is not barred by res judicata.

(4) No Identity of the Subject Matter

The relevant inquiry under La.R.S. 13:4231 is “whether the second [suit]

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

the subject matter of the first action.” Burguieres, 843 So.2d at 1053. Thus, res

judicata “precludes relitigation of claims and issues arising out of the same factual

circumstances as a previous suit when there is a valid final judgment.” Blackburn,

266 So.3d at 551.

Here, it is hard to tell what factual circumstances were litigated in the first suit

(the custody proceeding). In other words, other than the motion to modify custody

and the minute entry of December 7, 2021, there is a complete absence of evidence

in the record of what was previously litigated. And the motion to modify custody

alleges only the following: “The minor child was burned in her back with a hot liquid

while in her mother’s custody. On April 25, 2021, police were dispatched to her

home where she resides with her live-in boyfriend and drugs were confiscated.”

By comparison, the Petition for Protection from Abuse alleges:

November 2020. Burn on [the minor child’s] back while she was in the

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care of her mother. [The child’s] mother didn’t inform the emerg[ency]
room or myself.

April 2021. Brittany Simon and her live-in boyfriend who’s on the
lease was involved in a Domestic Violence Incident where [our child]
seen her mother being abused and called 911. Police arrived and found
drugs in the home & issued a warrant for her boyfriend Kwasi Lewis
for Child Endangerment, Domestic Abuse & various Drug Charges.

Past incidents. A burn on [the child’s] back in Nov[ember] 2020. A
Domestic Violence Incident in April of 2021 where [the child] seen her
mother being beaten and made the 911 call and after the investigation
drugs was found in the home and warrants was issued for him. She
bailed him out of jail.

The Petition for Protection from Abuse further alleges that Brittany abused

her daughter in the following manner: “slapped protected person” and “mental and

verbal abuse.”

The above comparison shows that the factual circumstances of the two cases

are markedly different: in the Petition for Protection from Abuse, there are

allegations of (a) witness abuse, (b) slapping, and (c) mental and verbal abuse. None

of these allegations appear in the motion to modify custody. And without these

allegations, there would be no basis for the relief being sought in the protective order

proceeding.

In the end, the two suits lack the identity of subject matter. And this, too, is

fatal to Brittany’s plea of res judicata.

DECREE

For the foregoing reasons, Brittany Simon’s peremptory exception of res

judicata filed in this court is denied; the trial court’s judgment of December 21, 2021,

is reversed in all respects; and the matter is remanded to the trial court for a hearing

on the rule to show cause why a protective order should not issue. All costs of this

appeal are assessed to Brittany Simon.

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PEREMPTORY EXCEPTION DENIED; REVERSED AND
REMANDED.

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