Lozier v. Estate of Elmer

Decision Date30 September 2008
Docket NumberNo. 08-CA-225.,08-CA-225.
Citation996 So.2d 511
PartiesDarlene LOZIER v. ESTATE OF William Jay ELMER.
CourtCourt of Appeal of Louisiana — District of US
996 So.2d 511
Darlene LOZIER
v.
ESTATE OF William Jay ELMER.
No. 08-CA-225.
Court of Appeal of Louisiana, Fifth Circuit.
September 30, 2008.

Boolus J. Boohaker, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant.

Franz L. Zibilich, Attorney at Law, Metairie, LA, for Defendant/Appellee.

John B. Krentel, Attorney at Law, New Orleans, LA, for Defendant/Appellee.

Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.


Plaintiff, Darlene Lozier, appeals the July 25, 2007 judgment of the trial court granting the exception of res judicata filed by defendant, the Estate of William Jay Elmer ("the Estate"). For the reasons which follow, we reverse the trial court's judgment and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 26, 2001, plaintiff filed a "Petition to Recover Damages for Breach of Contract Against the Estate of William Jay Elmer and to Recover Payment of Wages Owed by the Estate of William Jay Elmer." In her petition, plaintiff asserts that William Elmer was her employer from September 1989 until his death on June 17, 2001. She claims that during her employment with Mr. Elmer, she normally worked 104 hours per week and received

996 So.2d 512

$5.00 per hour. She alleges that although the federal minimum wage rate increased to $5.15 per hour on September 1, 1997, she continued to receive $5.00 per hour, and she never received compensation for her overtime hours at one and one-half times the regular rate, as required by law. Further, Ms. Lozier contends that Mr. Elmer promised her that if she continued to work for him and act as his partner to develop his commercial property, known as Elmer's Island, he would take care of her for the rest of her life by providing a house, car, and living expenses. In her petition, Ms. Lozier seeks a judgment against the Estate of William Elmer ("the Estate") for compensation for nonpayment of wages at the accepted federal minimum wage for regular and overtime work, and a judgment for a house, car, and living expenses for the rest of her life, as well as any other reasonable damages.

On December 10, 2001, the Estate filed an Answer and Reconventional Demand, asserting that no damages, wages, or other compensation is owed to Ms. Lozier, and seeking damages against Ms. Lozier for wrongful conversion of succession assets.

On May 1, 2007, the Estate filed "Peremptory Exceptions of Res Judicata and No Cause of Action," arguing that Ms. Lozier intervened in the succession proceedings, Succession of William Jay Elmer, case number 568-711 in Division L of the 24th Judicial District Court, and that her current cause of action involves the same object as her intervention, i.e. ownership in the property of William Elmer. The Estate asserts that the present action is precluded by res judicata because it asserts a cause of action that arises from the same transaction or occurrence that was the subject matter of the succession proceedings.

On July 3, 2007, the exceptions of res judicata and no cause of action came for hearing. After hearing the arguments of counsel for plaintiff and defendant, the trial judge granted the Estate's exception of res judicata and found the exception of no cause of action to be moot. A written judgment granting the exception of res judicata was signed by the trial judge on July 25, 2007. It is from this judgment that Ms. Lozier appeals.

LAW AND DISCUSSION

On appeal, Ms. Lozier contends that the trial judge erred in granting the Estate's exception of res judicata, because the parties are not the same, the causes of action are not the same, and the cause of action in this case did not exist until the court in the succession proceeding ruled that Mr. Elmer had died intestate. The Estate responds that the exception of res judicata was correctly granted, because all of the elements necessary for a finding of res judicata are present.

Louisiana's law on res judicata is set forth in LSA-R.S. 13:4231 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...

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3 cases
  • In re Carpenter
    • United States
    • Court of Appeal of Louisiana — District of US
    • February 1, 2023
    ... ... Administrator of decedent's estate. The Petition ... represented that although Marcus held a copy of a March 28, ... 2003 ... the first action. Lozier v. Estate of Elmer , 08-225 ... (La.App. 5 Cir. 9/30/08), 996 So.2d 511, 513. A cause of ... ...
  • Lozier v. EState Jay Elmer.
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 25, 2011
    ...owed to Ms. Lozier, and seeking damages against Ms. Lozier for wrongful conversion of succession assets. Lozier v. Estate of Elmer, 08–225 (La.App. 5 Cir. 9/30/08), 996 So.2d 511–512. The trial court's grant of defendant's Exception of Res Judicata formed the basis of plaintiff's first appe......
  • Theriot v. State Farm Mut. Auto. Ins. Co.
    • United States
    • U.S. District Court — Western District of Louisiana
    • July 5, 2018
    ...prove its essential elements. If there is any doubt as to its applicability, the exception must be overruled." Lozier v. Estate of Elmer, 996 So.2d 511, 514 (La. App. 5 Cir. 2008) (citations omitted); see also Brown v. Drillers, Inc., 630 So.2d 741, 747 (La. 1994). "For res judicata to appl......

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