Lieber v. Re Ownership of Real Property Located in Caddo Parish

501 So. 2d 957, 1987 La. App. LEXIS 8480
CourtLouisiana Court of Appeal
DecidedJanuary 21, 1987
DocketNo. 18300-CA
StatusPublished
Cited by3 cases

This text of 501 So. 2d 957 (Lieber v. Re Ownership of Real Property Located in Caddo Parish) 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
Lieber v. Re Ownership of Real Property Located in Caddo Parish, 501 So. 2d 957, 1987 La. App. LEXIS 8480 (La. Ct. App. 1987).

Opinion

NORRIS, Judge.

The object of this suit is to determine the ownership of certain tracts of land in Cad-do Parish. The ownership of some of these lands has already been litigated and determined between the parties now before us, in a case which was appealed to this court, Lieber v. Hamel, 446 So.2d 1240 (La.App. 2d Cir.1983), writs refused, 448 So.2d 107 (La.1984). In the earlier petitory action, presided over by Judge Bolin at the district court level, slightly modified and affirmed by this court, Judge Marvin writing, some of the disputed lands were awarded to the Hamels, while others were granted to Dr. Lieber.

I. PROCEDURAL BACKGROUND

This case arises pursuant to Dr. Lieber’s petition for a declaratory judgment regarding the ownership of certain lands in Caddo Parish. It was originally filed in 1982, but at that time the Hamels1 interposed an exception of lis pendens against the petition, because the prior Lieber v. Hamel suit contesting the ownership of a portion of the same lands was pending at that time. In July of 1985 Dr. Lieber, representing himself, filed amendments to this petition requesting additional relief. The Hamels, defendants and parties to this appeal, filed exceptions of res judicata, estoppel and split cause of action. At a hearing on the exceptions, Judge Victory sustained the defendants’ exception of res judicata as to the lands whose ownership was adjudicated in the earlier suit, and overruled the other exceptions. Both parties appeal.

[959]*959The Hamels have appealed from that part of the decision which overrules their exceptions of estoppel and prohibition against splitting a cause of action and that portion of their exception of res judicata that was directed against the lands that were not at issue in the prior lawsuit. They contend that a petitory action is an exception to Louisiana’s narrow construction of preclusive concepts, and thus all parcels of land whose ownership is disputed between the same parties must be brought in the same suit. In a second assignment of error they rely on LSA-C. C.P. art. 425 to claim that Dr. Lieber split his cause of action when in his prior suit he sought ownership of only part of the lands that were in dispute between the parties at that time. They finally argue that he is barred by estoppel from claiming one certain parcel of land, referred to as Carolyn’s levee, because in the prior suit he specifically said that tract was not at issue in that suit.

II. HAMELS’ ISSUES

A.RES JUDICATA

For an exception of res judicata to be sustained there must be the same parties, the same object and the same cause. The authority of the thing adjudged takes place only with respect to what was the object of the judgment. LSA-C.C. art. 2286; Rivette v. Moreau, 336 So.2d 864 (La.1976). The lands that were not included in the prior suit do not fit the requirement that the object be the same. Defendants cite Tassin v. Sayes, 386 So.2d 995 (La.App. 3d Cir.1980) for the proposition that actions seeking ownership of real property are an exception to Louisiana’s narrow construction of preclusive concepts, including res judicata. While this is true, what the case stands for is that in an action seeking recognition of ownership of immovables any causes which can be pleaded must be pleaded or else the judgment will be considered res judicata as against those causes that could have been pleaded. Tassin v. Sayes, supra. Defendants have misinterpreted Tassin by confusing the property, which is the object of the suit, with the claims that are asserted against it. Their argument is that the lands whose ownership was not disputed in the prior suit cannot be contested now because the ownership of other, similarly situated lands had been adjudicated in the earlier suit. This claim has no basis in Louisiana jurisprudence.

B.SPLIT CAUSE OF ACTION

There is no merit in the defendants’ objection that Dr. Lieber violated the LSA-C.C.P. art. 425 prohibition against splitting a cause of action by contesting in the instant suit the ownership of property not at issue in the previous suit. A cause of action is not split when the same parties bring two separate actions to determine the ownership of two separate tracts of land. Board of Commissioners for Buras Levee District v. Cockrell, 91 F.2d 412 (5th Cir.1937), cert. denied, 302 U.S. 740, 58 S.Ct. 142, 82 L.Ed. 572 (1937).

C.ESTOPPEL

The defendants’ third argument is that Dr. Lieber’s actions through counsel in the previous case give rise to estoppel. They improperly attempt to raise this claim by an exception. The plea of estoppel cannot be raised by exception, but must be pleaded affirmatively in the answer. LSA-C.C.P. art. 1005; LSA-C.C.P. art. 927; Weil v. State Farm Fire and Casualty Co., 323 So.2d 524 (La.App. 4th Cir.1975).

III. LIEBER’S ISSUES

A. RES JUDICATA

The main question raised by Dr. Lie-ber’s appeal is whether the exception of res judicata was properly applied to those lands whose ownership was at issue in the earlier case. In order for res judicata to apply, three requirements must be met: the thing demanded must be the same, the demand must be between the same parties and the demand must be founded on the same cause of action. LSA-C.C. art. 2286; Lowe v. Rivers, 445 So.2d 105 (La.App. 2d Cir.1984). Dr. Lieber has admitted that the [960]*960same parties are involved in this appeal as in the previous suit, and that it concerns ownership of lands that are in part the same.2 Dr. Lieber contends that the exception of res judicata cannot be sustained because the cause is different. His argument is that in the previous suit he sought ownership of the lands, while here he is asking that the levee servitude affecting those lands be recognized as still in existence and belonging to the public. Thus, Lieber contends the Hamels were prohibited from acquiring by acquisitive prescription the lands burdened by these servi-tudes.

In his July 12, 1985 amended petition Dr. Lieber prayed “[tjhat a declaratory judgment be made to the effect that Petitioner is the owner of fee title to all lands beneath levees as well as to all lands not beneath levees as described in the Correction Deed ... ” R. p. 23. At the hearing on defendants’ exceptions, he testified “I seek ownership of one segment of levee land, and reaffirmation or confirmation of my ownership having to do with other segments of land, which may or may not contain the levees.” R. p. 178. It is clear from the voluminous briefs and pleadings he has filed that Dr. Lieber is in fact seeking ownership of these lands.3

Dr. Lieber also opposes the exception of res judicata by arguing that the prior judgment which forms the basis for the exception is a nullity. He is making a collateral attack on the validity of a judgment, which is not allowed under LSA-C. C.P. art. 2004. In order to directly attack a prior judgment for fraud and ill-practices, the petition must “... clearly and definitely allege facts from which such elements may be unmistakably concluded.” Horney v. Scott, 171 So. 172 (La.App. 2d Cir.1936). Conclusory statements which do not have the requisite specificity are not sufficient even to state a cause of action. Lowe v.

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Related

Lieber v. State, Dept. of Transp. and Development
682 So. 2d 1257 (Louisiana Court of Appeal, 1996)
Fleniken v. Allbritton
566 So. 2d 1106 (Louisiana Court of Appeal, 1990)
Lieber v. Ownership of Real Property Located in Caddo Parish
504 So. 2d 882 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
501 So. 2d 957, 1987 La. App. LEXIS 8480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lieber-v-re-ownership-of-real-property-located-in-caddo-parish-lactapp-1987.