D'Angelo v. D'Angelo

934 So. 2d 119, 2006 WL 786725
CourtLouisiana Court of Appeal
DecidedMarch 29, 2006
Docket2005 CA 0553
StatusPublished
Cited by6 cases

This text of 934 So. 2d 119 (D'Angelo v. D'Angelo) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Angelo v. D'Angelo, 934 So. 2d 119, 2006 WL 786725 (La. Ct. App. 2006).

Opinion

934 So.2d 119 (2006)

Sandra Lombardo D'ANGELO
v.
Barry Jude D'ANGELO.

No. 2005 CA 0553.

Court of Appeal of Louisiana, First Circuit.

March 29, 2006.

*120 Mark Alan Jolissaint, Slidell, Counsel for Plaintiff/Appellant Sandra Lombardo D'Angelo.

Raymond C. Burkart, Jr., New Orleans, Counsel for Defendant/Appellee Barry Jude D'Angelo.

Before: KUHN, GUIDRY, and PETTIGREW, JJ.

KUHN, J.

Plaintiff-appellant, Sandra Lombardo D'Angelo, appeals the trial court's judgment granting a declinatory exception raising the objection of lis pendens filed by defendant-appellee, Barry Jude D'Angelo. The judgment also transferred and consolidated her lawsuit with a suit previously filed by Barry D'Angelo in the Jefferson Parish district court and denied her request for a stay of the lis pendens proceeding. Barry D'Angelo answered the appeal, requesting damages for frivolous appeal. We affirm in part and reverse in part.

PROCEDURAL BACKGROUND

On March 27, 2003, Barry D'Angelo filed a petition for divorce in Jefferson Parish *121 (the Jefferson Parish suit). His petition requested, among other things, a full and final divorce under La. C.C. art. 103 or, alternatively, under La. C.C. art. 102; partition of the community; use and occupancy of immovable property located in Mississippi; that Sandra D'Angelo be given use and occupancy of immovable property located in Slidell, Louisiana; a finding that he is free from fault in the breakup of the marriage; and permission to remove his personal items from the former matrimonial residence. Sandra D'Angelo filed a declinatory exception raising the objection of improper venue, which was denied by the Jefferson Parish trial court. Sandra D'Angelo appealed that ruling, and the Fifth Circuit Court of Appeal affirmed. See D'Angelo v. D'Angelo, XXXX-XXXX (La. App. 5th Cir.4/26/05), 901 So.2d 607. On May 27, 2005, the fifth circuit denied Sandra D'Angelo's application for a rehearing.

Prior to the fifth circuit's affirmance of the Jefferson Parish trial court's ruling, Sandra D'Angelo filed a petition for divorce in St. Tammany Parish on April 16, 2004 (the St. Tammany Parish suit). Her petition requested, among other things, a divorce; a finding that Barry D'Angelo was at fault in the breakup of the marriage and, therefore, not entitled to spousal support; a finding that she was free from fault in the breakup of the marriage; interim and permanent spousal support; use and possession of immovable property located in Slidell, Louisiana; use and possession of movable community property in her possession; and injunctions prohibiting Barry D'Angelo from harassing her and from alienating and encumbering community property, specifically including his New Orleans Fire Department retirement benefits. By supplemental petition, Sandra D'Angelo requested that the parties' community be partitioned.

Barry D'Angelo filed declinatory exceptions raising objections of lis pendens and the lack of jurisdiction. The trial court granted the lis pendens exception, ordered that Sandra D'Angelo's petition be transferred and consolidated with the Jefferson Parish suit, and denied a request to stay the lis pendens proceeding requested by Sandra D'Angelo.[1] The St. Tammany Parish trial court signed a judgment in conformity with its determinations.

Sandra D'Angelo appeals urging that the trial court erred in granting the lis pendens exception for her action for determination of the incidental matters of injunctive relief, provisional use of community movables, and interim and permanent spousal support.[2] Barry D'Angelo answered the appeal, requesting damages for frivolous appeal.

*122 DISCUSSION

Louisiana Code of Civil Procedure article 531 addresses suits pending in Louisiana courts and states:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Because Barry D'Angelo has filed a declinatory exception of lis pendens under La. C.C.P. art. 925 as required by Article 531, the question before us is whether Sandra D'Angelo's action in the St. Tammany Parish suit for a determination of matters incidental to divorce is based "on the same transaction or occurrence" as those actions filed in the Jefferson Parish suit. To answer this question, we must determine whether a judgment in the Jefferson Parish suit will bar—by the doctrine of res judicata—any of actions asserted in the St. Tammany Parish suit. Newman v. Newman, 96-1062, pp. 4-5 (La.App. 1st Cir.3/27/97), 691 So.2d 743, 745.

Louisiana Revised Statute 13:4231 sets forth the doctrine of res judicata and 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.

But La. R.S. 13:4232 B provides for exceptions to the general rule of res judicata, stating:

In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse's education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

Louisiana Code of Civil Procedure art. 425, which puts the parties on notice that all causes of action arising out of the transaction or subject matter of the litigation must be raised, states:

A. A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.
B. Paragraph A of this Article shall not apply to an action for divorce under Civil Code Article 102 or 103, an action for determination of incidental matters under Civil Code Article 105, an action for contributions to a spouse's education or training under Civil Code Article 121, and an action for partition of community *123 property and settlement of claims between spouses under R.S. 9:2801.

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Cite This Page — Counsel Stack

Bluebook (online)
934 So. 2d 119, 2006 WL 786725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dangelo-v-dangelo-lactapp-2006.