Willie Johnson, Jr. v. Lasharon Hypolite

• Court: Louisiana Court of Appeal
• Decided: December 30, 2005
• Docket: CA-0005-0598
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-598

WILLIE JOHNSON, JR.

VERSUS

LASHARON HYPOLITE

************ APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, NO. 02-64991 HONORABLE GERARD WATTIGNY, DISTRICT JUDGE

************

JAMES T. GENOVESE JUDGE

Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese, Judges.

AFFIRMED.

Valerie Garrett 2014 W. Pinhook Road, Suite 503 Lafayette, Louisiana 70508 COUNSEL FOR PLAINTIFF/APPELLANT: Willie Johnson, Jr.

Peter C. Piccione, Sr. 115 E. Main Street Lafayette, Louisiana 70501 COUNSEL FOR DEFENDANT/APPELLEE: Lasharon Hypolite GENOVESE, Judge.

Plaintiff appeals the trial court’s judgment sustaining Defendant’s exception

of res judicata and dismissing his disavowal claim. For the following reasons, we

affirm.

FACTS

On August 21, 1994, criminal non-support proceedings were filed in the matter

entitled “State of Louisiana Through The Department of Health and Human

Resources v. Willie Johnson” in Docket Number 54,190 in St. Martin Parish,

Louisiana. On August 24, 1994, a judgment was entered in those proceedings

ordering the parties to appear on September 22, 1994, and submit to blood testing

necessary for a determination of paternity. Lasharon Hypolite (“Lasharon”), the

mother of the child, Destiny Hypolite (“Destiny”), failed to submit herself or the child

for the test. Though Willie Johnson, Jr. (“Johnson”) agreed to submit to blood

testing, he failed to appear for same and failed to file responsive pleadings in the non-

support proceedings. Consequently, on October 19, 1994, a default judgment was

entered, which was later confirmed and made final on November 29, 1994, decreeing

Johnson to be the biological father of Destiny.

Eight years later, on March 8, 2002, Johnson filed the present action against

Lasharon wherein he sought to disavow paternity of the minor child and to have

Lasharon held in contempt of court for her failure to undergo the prior court-ordered

blood tests. Johnson asserted that paternity testing was subsequently done on himself

and the minor child with the results of said testing excluding him as the biological

father of Destiny. In March of 2002, according to Johnson’s pauper application,

Destiny was eight years old. In response, Lasharon filed an exception of res judicata

asserting that Johnson’s claim is barred by the doctrine of res judicata as a result of

1 the judgment of paternity dated November 29, 1994. Lasharon also asserts, in the

alternative, that Johnson’s claim is perempted.

ASSIGNMENT OF ERROR

Plaintiff contends that the trial court erred in granting Defendant’s exception

of res judicata after the same trial court issued an order for a DNA test.

LAW AND ARGUMENT

Johnson claims that the trial court erred in holding that the present action was

barred by the doctrine of res judicata.

Louisiana Revised Statute 13:4231 provides as follows:

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.

The November 29, 1994 judgment of paternity was granted as a result of a

criminal non-support matter instituted by the State of Louisiana entitled “State of

Louisiana Through The Department of Health and Human Resources v. Willie

Johnson” bearing Docket Number 54,190 in St. Martin Parish, Louisiana. In that

proceeding, a hearing was scheduled on a rule for the State to show sufficient basis

to proceed in the matter and for the court to order paternity blood testing. Johnson

2 waived his appearance at the scheduled hearing and voluntarily consented to paternity

blood testing. Following the scheduled rule, a judgment was signed on August 24,

1994, ordering the alleged father, Willie Johnson, Jr., the minor child, Destiny

Hypolite, and the mother of the child, Lasharon Hypolite, to appear and submit to

blood testing. The documents from that suit, which are contained in the record before

us, do not reflect that any paternity testing was done on any of the concerned

individuals and that Johnson did not file any answer to those proceedings.

Consequently, a preliminary default was entered on October 19, 1994, which was

confirmed and made final on November 29, 1994, decreeing Willie Johnson, Jr. to be

the biological father of Destiny. The content of the record before us indicates that

said default judgment was obtained without any testimony of the concerned

individuals and was apparently based on a notarial act of acknowledgment executed

by Johnson in accordance with La.Civ.Code art. 203.

In 2002, Johnson filed the present suit to disavow paternity. In his petition, he

averred that Lasharon failed to submit to the prior court-ordered testing. One form

of relief sought by Johnson was for Lasharon to be held in contempt of court for not

obeying the previous court order. Notably, Johnson’s supplemental and amending

petition alleges that he signed a notarial act of acknowledgment. The record reveals

that following a hearing officer conference in this matter, the hearing officer found

that Lasharon had not been located and that she had not submitted the child for DNA

testing. It was, therefore, the recommendation of the hearing officer that a civil

warrant be issued to seize the child for the purpose of conducting DNA testing. Such

a warrant was issued by the trial court on August 5, 2004. On August 16, 2004,

testing was conducted and a paternity evaluation report was issued on August 23,

2004 which documented the testing of Johnson and Destiny. Lasharon was not

3 tested. The paternity evaluation report, which is part of the present record, concludes

that Willie Johnson, Jr. is not the father of Destiny.

This court previously reversed a trial court’s denial of an exception of res

judicata in a decision with very similar facts as in the case at bar. In State,

Department Of Social Services v. Coleman, 616 So.2d 844 (La.App. 3 Cir. 1993), an

action was brought by the State of Louisiana to establish paternity. The issue was

whether or not the action was barred by a judgment rendered in a prior action brought

by the mother to establish paternity and child support. Applying the principles of res

judicata, we concluded that the requisite elements were met and the exception of res

judicata should have been sustained. For the same reasons, we find in the instant

litigation that the judgment of November 29, 1994 bars the present action to disavow

paternity.

The trial court, in its written reasons for judgment, states in the alternative that

Johnson’s action is perempted by La.R.S. 9:305. Although this court need not

address peremption given our affirmation of the granting of the exception of res

judicata, we do note that Johnson is not of the class of persons to whom that statute

applies. As explained by the supreme court in Rousseve v. Jones, 97-1149, pp. 4-5

(La. 12/2/97), 704 So.2d 229, 231, La.R.S. 9:305 applies only to “legal father[s]”

which include “the husbands and former or subsequent husbands included in Articles

184-189.” Johnson does not meet the definition of a “legal father.” However,

Appellant’s rights are reserved to seek a rescission of his prior notarial act of

acknowledgment in accordance with La.Civ.Code art. 206, which purportedly forms

the basis of the November 1994 default judgment, and to pursue any other legal relief

available to him as a result thereby, including an action to nullify the paternity

judgment.

4 Considering the foregoing reasons, costs for this appeal are assessed against

Plaintiff/Appellant.