NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-623
PATRICIA LYNN DILLANE
VERSUS
ANTHONY KENNETH DILLANE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20146220 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Billy Howard Ezell, and D. Kent Savoie, Judges.
AFFIRMED. James D. Bayard Onebane Law Firm P. O. Box 3507 Lafayette, LA 70502-3507 (337) 237-2660 COUNSEL FOR DEFENDANT/APPELLEE: Anthony Kenneth Dillane
John W. Joyce Laurence D. LeSueur, Jr. Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C. 909 Poydras Street, 24th Floor New Orleans, LA 70112 (504) 589-9700 COUNSEL FOR PLAINTIFF/APPELLANT: Patricia Lynn Dillane SAUNDERS, J.
In this action Plaintiff sought to enforce an out-of-state, post-divorce
mediation agreement against Defendant. The Florida trial court found Defendant in
contempt for failing to adhere to the conditions of the mediation agreement.
Plaintiff brought this suit to enforce the terms of the agreement in Louisiana where
Defendant now resides. Defendant raised several exceptions, in particular an
exception of res judicata. The Louisiana trial court sustained this exception for res
judicata and dismissed Plaintiff’s suit. Plaintiff appeals. We affirm.
FACTS AND PROCEDURAL HISTORY:
Patricia Dillane, hereinafter “Plaintiff,” and Anthony Dillane, hereinafter
“Defendant,” were married in London, England on August 3, 1981, and divorced
in Florida on September 15, 1997. The parties have two children together, both of
whom have reached the age of majority by the time of this suit.
The final judgement of divorce contained the parties’ agreements on custody,
child support, and alimony, and it also contained language detailing a mediation
agreement which required Defendant to maintain a life insurance policy listing
Plaintiff as the irrevocable beneficiary with a minimum amount of insurance of
$175,000.00. The policy was intended to secure his child support and alimentary
obligations. Defendant did not purchase the policy, and Plaintiff did not pursue
enforcement of this agreement until 2013.
Defendant currently resides in Louisiana. Defendant has fulfilled his child
support obligations as of 2004, and has paid Plaintiff approximately $110,000.00
between 1997 and 2013 in permanent alimony. Defendant has continued to pay
Plaintiff $500.00 each month as set in their divorce proceedings.
Plaintiff filed a Motion for Civil Contempt and Enforcement in a Florida
court for Defendant’s failure to maintain a life insurance policy in the amount of $175,000.00. At the hearing for this motion, the Florida judge found Defendant to
be in civil contempt for failing to maintain a life insurance policy as detailed in the
mediation agreement; however, no sanctions were imposed against Defendant, and
Plaintiff’s request for a money judgment and attorney’s fees was denied. Neither
post-trial motions nor an appeal were taken after this hearing and judgment.
On March 10, 2014, Plaintiff filed a Motion to Enforce the Order for Civil
Contempt in Florida and requested that the court enter an order of confinement
until Defendant complied with the original terms of the mediation agreement or
agreed to grant her a cash settlement for the value of the life insurance policy in the
amount of $126,274.75, a sum equal to the present value of a $175,000.00 life
insurance policy.
A hearing was held before the General Magistrate on July 22, 2014. The
motion was denied since the previous judgment from November 4, 2013, did not
order or compel Defendant to obtain the insurance policy, nor did it set a
“purge/payment condition,” but rather, the judgment only found Defendant to be in
contempt. Additionally, no specific performance was ordered in the previous
judgment. The General Magistrate found that it “was not appropriate to request that
he award the very relief [that was] already considered and denied.” No post-trial
motions or appeals were taken from this second hearing and judgment.
On December 12, 2014, Plaintiff filed an Ex Parte Petition for Enforcement
of a Foreign Judgment in Lafayette Parish, Louisiana. On December 19, 2014, the
trial court ordered that the Florida judgment was entitled to full faith and credit in
Louisiana and was thereby executory. On October 26, 2015, Plaintiff filed a Rule
to Show Cause and requested that the Louisiana court enforce the life insurance
provision.
2 On November 13, 2015, Defendant filed, in response to Plaintiff’s Rule to
Show Cause, the exceptions of res judicata, no cause of action, lack of personal
jurisdiction, and unauthorized use of summary proceedings. A hearing was held on
the exceptions on March 21, 2016. The trial court granted Defendant’s exception
of res judicata and found that the Florida proceedings arose out of the same
transaction or occurrence in the subject of Plaintiff’s Rule to Show Cause and that
the Florida judgments were final, thus barring Plaintiff from litigating the same suit
in Louisiana. Plaintiff appealed.
ASSIGNMENT OF ERROR:
The district court erred by granting Defendant’s peremptory exception of res
judicata because Plaintiff’s Rule to Show Cause requests a new, different demand
for relief that has never been adjudicated and, therefore, cannot be barred by res
judicata under La.R.S. 13:4232(B) as a matter incidental to divorce.
Alternatively, Plaintiff contends that even if La.R.S. 13:4232(B) does apply,
the district court erred in its failure to consider the equitable exception to the res
judicata statute.
STANDARD OF REVIEW:
When an exception of res judicata is raised prior to submission of the case
for decision, an appellate court must review a ruling sustaining the exception for
manifest error. David v. David, 14-657 (La.App. 3 Cir. 12/23/14, 2-3), 156 So.3d
219, writ denied, 15-171 (La. 4/24/15), 169 So.3d 356.
DISCUSSION OF THE MERITS:
In the sole assignment of error, Plaintiff contends that the district court erred
by granting Defendant’s peremptory exception of res judicata because Plaintiff’s
Rule to Show Cause requests a demand for relief that has never been adjudicated
and, therefore, cannot be barred by res judicata under La.R.S. 13:4232(B) as a 3 matter incidental to divorce. Alternatively, Plaintiff contends that even if La.R.S.
13:4232(B) does apply, the district court erred in its failure to consider the
equitable exception to the res judicata statute.
The doctrine of res judicata is set forth in La. R.S. 13:4231, which 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:
(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.
Quoting Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d
1049, 1053, the supreme court reiterated the five elements that must be established
in order for a judgment to have a res judicata effect on a second action:
Free access — add to your briefcase to read the full text and ask questions with AI
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-623
PATRICIA LYNN DILLANE
VERSUS
ANTHONY KENNETH DILLANE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20146220 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Billy Howard Ezell, and D. Kent Savoie, Judges.
AFFIRMED. James D. Bayard Onebane Law Firm P. O. Box 3507 Lafayette, LA 70502-3507 (337) 237-2660 COUNSEL FOR DEFENDANT/APPELLEE: Anthony Kenneth Dillane
John W. Joyce Laurence D. LeSueur, Jr. Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C. 909 Poydras Street, 24th Floor New Orleans, LA 70112 (504) 589-9700 COUNSEL FOR PLAINTIFF/APPELLANT: Patricia Lynn Dillane SAUNDERS, J.
In this action Plaintiff sought to enforce an out-of-state, post-divorce
mediation agreement against Defendant. The Florida trial court found Defendant in
contempt for failing to adhere to the conditions of the mediation agreement.
Plaintiff brought this suit to enforce the terms of the agreement in Louisiana where
Defendant now resides. Defendant raised several exceptions, in particular an
exception of res judicata. The Louisiana trial court sustained this exception for res
judicata and dismissed Plaintiff’s suit. Plaintiff appeals. We affirm.
FACTS AND PROCEDURAL HISTORY:
Patricia Dillane, hereinafter “Plaintiff,” and Anthony Dillane, hereinafter
“Defendant,” were married in London, England on August 3, 1981, and divorced
in Florida on September 15, 1997. The parties have two children together, both of
whom have reached the age of majority by the time of this suit.
The final judgement of divorce contained the parties’ agreements on custody,
child support, and alimony, and it also contained language detailing a mediation
agreement which required Defendant to maintain a life insurance policy listing
Plaintiff as the irrevocable beneficiary with a minimum amount of insurance of
$175,000.00. The policy was intended to secure his child support and alimentary
obligations. Defendant did not purchase the policy, and Plaintiff did not pursue
enforcement of this agreement until 2013.
Defendant currently resides in Louisiana. Defendant has fulfilled his child
support obligations as of 2004, and has paid Plaintiff approximately $110,000.00
between 1997 and 2013 in permanent alimony. Defendant has continued to pay
Plaintiff $500.00 each month as set in their divorce proceedings.
Plaintiff filed a Motion for Civil Contempt and Enforcement in a Florida
court for Defendant’s failure to maintain a life insurance policy in the amount of $175,000.00. At the hearing for this motion, the Florida judge found Defendant to
be in civil contempt for failing to maintain a life insurance policy as detailed in the
mediation agreement; however, no sanctions were imposed against Defendant, and
Plaintiff’s request for a money judgment and attorney’s fees was denied. Neither
post-trial motions nor an appeal were taken after this hearing and judgment.
On March 10, 2014, Plaintiff filed a Motion to Enforce the Order for Civil
Contempt in Florida and requested that the court enter an order of confinement
until Defendant complied with the original terms of the mediation agreement or
agreed to grant her a cash settlement for the value of the life insurance policy in the
amount of $126,274.75, a sum equal to the present value of a $175,000.00 life
insurance policy.
A hearing was held before the General Magistrate on July 22, 2014. The
motion was denied since the previous judgment from November 4, 2013, did not
order or compel Defendant to obtain the insurance policy, nor did it set a
“purge/payment condition,” but rather, the judgment only found Defendant to be in
contempt. Additionally, no specific performance was ordered in the previous
judgment. The General Magistrate found that it “was not appropriate to request that
he award the very relief [that was] already considered and denied.” No post-trial
motions or appeals were taken from this second hearing and judgment.
On December 12, 2014, Plaintiff filed an Ex Parte Petition for Enforcement
of a Foreign Judgment in Lafayette Parish, Louisiana. On December 19, 2014, the
trial court ordered that the Florida judgment was entitled to full faith and credit in
Louisiana and was thereby executory. On October 26, 2015, Plaintiff filed a Rule
to Show Cause and requested that the Louisiana court enforce the life insurance
provision.
2 On November 13, 2015, Defendant filed, in response to Plaintiff’s Rule to
Show Cause, the exceptions of res judicata, no cause of action, lack of personal
jurisdiction, and unauthorized use of summary proceedings. A hearing was held on
the exceptions on March 21, 2016. The trial court granted Defendant’s exception
of res judicata and found that the Florida proceedings arose out of the same
transaction or occurrence in the subject of Plaintiff’s Rule to Show Cause and that
the Florida judgments were final, thus barring Plaintiff from litigating the same suit
in Louisiana. Plaintiff appealed.
ASSIGNMENT OF ERROR:
The district court erred by granting Defendant’s peremptory exception of res
judicata because Plaintiff’s Rule to Show Cause requests a new, different demand
for relief that has never been adjudicated and, therefore, cannot be barred by res
judicata under La.R.S. 13:4232(B) as a matter incidental to divorce.
Alternatively, Plaintiff contends that even if La.R.S. 13:4232(B) does apply,
the district court erred in its failure to consider the equitable exception to the res
judicata statute.
STANDARD OF REVIEW:
When an exception of res judicata is raised prior to submission of the case
for decision, an appellate court must review a ruling sustaining the exception for
manifest error. David v. David, 14-657 (La.App. 3 Cir. 12/23/14, 2-3), 156 So.3d
219, writ denied, 15-171 (La. 4/24/15), 169 So.3d 356.
DISCUSSION OF THE MERITS:
In the sole assignment of error, Plaintiff contends that the district court erred
by granting Defendant’s peremptory exception of res judicata because Plaintiff’s
Rule to Show Cause requests a demand for relief that has never been adjudicated
and, therefore, cannot be barred by res judicata under La.R.S. 13:4232(B) as a 3 matter incidental to divorce. Alternatively, Plaintiff contends that even if La.R.S.
13:4232(B) does apply, the district court erred in its failure to consider the
equitable exception to the res judicata statute.
The doctrine of res judicata is set forth in La. R.S. 13:4231, which 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:
(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.
Quoting Burguieres v. Pollingue, 02-1385, p. 7 (La.2/25/03), 843 So.2d
1049, 1053, the supreme court reiterated the five elements that must be established
in order for a judgment to have a res judicata effect on a second action:
(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 (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. David, 156 So.3d at 222.
The central inquiry is not whether the second action is based on the same
cause or causes of action, but whether the second action asserts a cause of action
which arises out of the transaction or occurrence which was the subject matter of
the first action. La. R.S. 13:4231.
Plaintiff asserts that her demand for relief in the Rule to Show Cause has not
been litigated in prior suits. We disagree.
The main subject of the litigation in Florida was Defendant’s failure to
obtain a life insurance policy as detailed by the mediation agreement in the parties’
original divorce proceedings. Plaintiff successfully obtained a civil contempt order
4 against Defendant in the Florida courts. The case before us is clearly the same
“[cause] of action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation” in the Florida
courts. La. R.S. 13:421(1).
Accordingly, “the cause or causes of action asserted in the second suit [in
Louisiana] arose out of the transaction or occurrence that was the subject matter of
the first litigation” in Florida. Id. Plaintiff clearly had the opportunity to fully
litigate her Motion for Civil Contempt in the Florida courts, and she was successful
in the suit for that particular motion. The Florida courts denied her request for
sanctions, a money judgment, and for attorney fees, and, accordingly, we fail to see
where the Louisiana trial court erred in their denial of this suit for the reasoning
based in the doctrine of res judicata.
Plaintiff alternatively contends that this case falls into the language set forth
under La. R.S. 13:4232(B), which states, in pertinent part:
B. 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.
The mediation agreement and its life insurance policy provisions were not
incidental matters under any of the code provision; they were not actions to
determine custody, child support, or spousal support, nor were they part of an
action to modify custody or support. As such, we find that Plaintiff’s assertions
regarding this segment of the law to be without merit.
Plaintiff further contends that the “equitable exception” to res judicata
applies. Plaintiff originally sought a money judgment from the Florida court, not
the enforcement of the mediation agreement and its provisions. Plaintiff had the 5 opportunity to appeal two judgments, as well as the chance to seek to amend these
judgments in order to enforce the terms of the mediation agreement, but she failed
to do so.
Upon her failure to seek further action in the Florida court, the judgments
became final. The equitable exception to res judicata does not apply here where
Plaintiff had ample opportunity to file the proper suit for Defendant’s failure to
obtain life insurance as stipulated in the mediation agreement and to appeal from
those judgments denying her improper request for a money judgment. We cannot
say that the trial court erred in its decision not to apply this exception, and,
accordingly, find no exceptional circumstances in this suit worthy of the exception.
DISPOSITION:
Plaintiff, Patricia Dillane, raised one assignment of error. For the foregoing
reasons, we affirm the trial court’s judgment dismissing Plaintiff’s suit as res
judicata. We assess all costs of this appeal to Plaintiff.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules– Courts of Appeal, Rule 2–16.3.