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FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE # 15

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 25th day of February, 2003 , are as follows:

BY KIMBALL, J.:

2002-CC- 1385

PAUL BURGUIERES, ET AL. v. DR. O'NEILL POLLINGUE, ET AL. (Parish of Orleans) For the above reasons, we find the judgment of the court of appeal is correct insofar as it granted Mrs. Pollingue's exception of res judicata as to those claims arising out of her capacity as executrix. We further find the court of appeal erred in granting the Pollingues' exceition of res judicata as to those claims that do not arise out of Mrs. Pollingue's capacity as executrix. The judgment of the court of appeal is therefore affirmed in part and reversed in part and the case is remanded to the trial court for further proceedings consistent with this opinion. This opinion should not be read to express any opinion whatsoever as to the merits of plaintiffs' second suit discussed herein or as to the propriety of damages sought in that suit. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

SUPREME COURT OF LOUISIANA
No. 02-CC-1385 PAUL BURGUIERES, ET AL. v. DR. O'NEILL POLLINGUE, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

KIMBALL, Justice This case involves a judgment of the court of appeal reversing the trial court's denial of defendants' exception of res judicata. For the reasons that follow, we conclude that the judgment of the court of appeal is correct insofar as it granted the exception of res judicata as to those claims arising out defendant's actions as executrix of her brother's succession. The court of appeal erred, however, in maintaining the exception as to those claims that arise not out of one of the defendant's capacity as executrix but out of an alleged breach of defendants' fiduciary duties that occurred prior to decedent's death. Because we find there is no identity of parties as to these claims and because the cause or causes of action unrelated to defendant's duties as executrix asserted in the second suit did not exist at the time of final judgment in the first litigation, we conclude application of the principles of res judicata is inappropriate. Facts and Procedural History William Burguieres, Sr. (hereinafter referred to as "William, Sr.") died on October 18, 1995, leaving an olographic testament. The testament was probated in
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the Twenty-Fourth Judicial District Court for the Parish of Jefferson and Barat B. Pollingue, the surviving sister of William, Sr., was named as executrix. After the will was probated, the decedent's children, Paul Burguieres, William Burguieres, Jr., and Dion Burguieres, filed a Petition to Nullify Olographic Will and Petition to Disqualify Executrix and Attorney for Succession and Petition to Appoint Paul Burguieres as Administrator of Succession. In this petition, the decedent's children sought to annul the testament based on William, Sr.'s lack of testamentary capacity or, alternatively, for fraud, duress and/or undue influence perpetrated by Mrs. Pollingue and persons acting in concert with her.1 By judgment dated June 28, 1999, the trial court annulled the testament, disqualified Mrs. Pollingue as executrix, and appointed Paul Burguieres as administrator for the succession. The court of appeal affirmed the trial court's judgment, finding no error in the trial court's conclusion that William, Sr. lacked the capacity to execute a valid testament. Succession of Burguieres, 00-147 (La. App. 5 Cir. 10/18/00), 802 So.2d 660. Because of its conclusion regarding William, Sr.'s lack of testamentary capacity, the court of appeal found it unnecessary to address the trial court's ruling regarding the exertion of undue influence over William, Sr. Id. at p. 10-11, 802 So.2d at 667. The court found that because William, Sr. did not have the mental capacity to execute any valid testament, any attempts to improperly influence him were misdirected in that he could not comply with whatever suggestions were made to him. Id. at p. 11, 802 So.2d at 667. On August 10, 2001, after the Jefferson Parish proceedings became final, decedent's children, Paul Burguieres, William Burguieres, Jr., and Dian Burguieres,

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The record indicates that William, Sr. was severely injured, both mentally and physically, in a 1965 automobile accident. Following the accident, the parents of William, Sr. established a trust for the benefit of William, Sr. and named Mrs. Pollingue as a trustee. Subsequently, William, Sr. was interdicted, and Mrs. Pollingue and her husband were appointed curatrix and undercurator, respectively.
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filed the instant suit in Civil District Court for the Parish of Orleans against Mrs. Pollingue and her husband, Dr. O'Neill Pollingue. In their Petition for Damages and Attorneys Fees, plaintiffs alleged that defendants were liable to them for breach of their fiduciary responsibilities as trustee and curatrix and undercurator. Plaintiffs sought damages, attorney fees, and costs for the efforts they expended to have the testament declared null. In response, defendants filed several exceptions, including an exception of res judicata.2 In their exception of res judicata, defendants argued that plaintiffs' second lawsuit clearly arose out of the same transaction or occurrence that was the subject of the earlier Jefferson Parish lawsuit. Thus, defendants contended, the second suit is barred by Louisiana's res judicata law, which is contained in La. R.S. 13:4231. The trial court denied defendants' exception of res judicata. The court found that the first suit sought to annul the testament based on the premise that decedent was incapacitated, while the present suit seeks damages for breach of fiduciary duty and attorney fees based on defendants' failure to fulfill their obligations. Based on these findings, the trial court concluded that the facts giving rise to the present suit created a separate and distinct cause of action and denied the exception of res judicata. The court of appeal granted defendants' application for supervisory writs and reversed the trial court's judgment denying defendants' exception of res judicata. Burguieres v. Pollingue, 02-0232 (La. App. 4 Cir. 3/6/02), unpub'd decision. The

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Defendants also filed exceptions of prescription and lis pendens, which were denied by the trial court. The court of appeal affirmed the trial court's ruling denying defendants' exception of prescription. Defendants did not seek review of the judgment relative to prescription and, therefore, the exception of prescription is not before this court. Likewise, the denial of the exception of lis pendens is not before this court as it was not discussed by the court of appeal and was not raised by the parties in this court.
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court of appeal reviewed the requirements of the res judicata statute, La. R.S. 13:4231, and concluded that a second action is barred if it arises out of the same occurrence as the prior action. The court found that the allegations of the present suit are clearly connected to and arise out of the succession proceedings brought in Jefferson Parish. The court of appeal concluded that the present actions should have been brought at the same time the succession proceedings were being litigated. Thus, the court of appeal reversed the judgment of the trial court denying defendants' exception of res judicata. Plaintiffs subsequently filed a request for rehearing, asking that the court of appeal clarify its decision. The court of appeal denied rehearing. Burguieres v. Pollingue, 02-0232 (La. App. 4 Cir. 4/16/02), unpub'd decision. This court granted certiorari to review the correctness of the judgment of the court of appeal. Burguieres v. Pollingue, 02-1385 (La. 10/25/02), 827 So.2d 1163. Discussion As a preliminary matter, plaintiffs contend the court of appeal's judgment is ambiguous in that it granted defendants' exception of res judicata, but did not dismiss the case. Plaintiffs submit they cannot ascertain whether it was the court of appeal's intent to dismiss their entire lawsuit or only those claims related to Mrs. Pollingue's actions as executrix of the succession. Although plaintiffs requested clarification of the court of appeal's judgment on rehearing, their request was denied. The portion of the court of appeal's opinion about which plaintiffs complain states: In the case at bar, the plaintiffs seek damages and attorney fees for their efforts expended in having their father's will declared null and void. The plaintiffs assert claims concerning the defendants' actions in the handling of their father's estate before and after his death. The defendants specifically allege that Barat Pollingue violated her fiduciary duty as executrix of the decedent's estate. These actions are clearly connected to and arise out of the
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succession proceedings brought in the 24th JDC. These actions should have been brought at the same time the succession proceedings were being litigated. The present res judicata statute bars the pursuit of the present action filed in the Civil District Court for the Parish of Orleans. The trial court erred when it denied the defendants' exception of res judicata. Accordingly, the defendants' writ application is denied in part and granted in part. The trial court's ruling on the exception of prescription is affirmed. However, the trial court's ruling on the exception of res judicata is reversed and the defendants' exception of res judicata is maintained. While plaintiffs are correct in their assertion that the court of appeal did not explicitly dismiss their suit, we read the court of appeal's opinion to mandate a dismissal of their suit in its entirety. The court of appeal's opinion clearly holds that the instant lawsuit is barred by operation of La. R.S. 13:4231, the res judicata statute. We therefore construe the judgment under review as one granting defendants' exception of res judicata, thereby dismissing plaintiffs' suit in its entirety. In anticipation of the fact that this court might interpret the court of appeal's judgment in this way, plaintiffs contend the court of appeal erred in concluding the current res judicata statute, La. R.S. 13:4231, mandates cumulation of a damage claim for pre-death breach of various fiduciary obligations with an action to annul a testament brought in a succession proceeding against a succession representative. Plaintiffs further assert that the issue of whether Mrs. Pollingue and her husband committed fraud in their capacities as trustee, curator and undercurator was neither necessary nor relevant in the nullity contest. In response, defendants argue that the court of appeal correctly determined that the instant suit is barred by res judicata as it arises out of the transaction or occurrence that was the subject matter of the prior litigation. As amended by Act No. 521 of 1990, effective January 1, 1991, Louisiana's
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res judicata statute, La. R.S. 13:4231, provides: 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 1990 amendment to La. R.S. 13:4231made a substantial change in the law. See La. R.S. 13:4231 cmt. a (1990). In order to appreciate the change in the law and to correctly apply the statute to the case at bar, we must begin our analysis by reviewing the history of res judicata in Louisiana. Historically, the Louisiana doctrine of res judicata was civilian in origin. Prior to its amendment in 1990, Louisiana's res judicata legislation was derived directly from Article 1351 of the Code Napoleon. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965) (quoting State v. American Sugar Refining Co., 108 La. 603, 32 So. 965 (1902)); Albert Tate, Jr., The Work of the Louisiana Appellate Courts for the 1967-1968 Term

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