Date: 04-30-2020

Case Style:

Case Number: 19-CA-422

Judge: John J. Molaison, Jr.

Court: FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

Plaintiff's Attorney: Joel T. Chaisson, II
Louis G. Authement

Defendant's Attorney:

Description: On August 10, 2015, the St. Charles Parish District Attorney�s Office (�the
State�) filed a petition to establish paternity and support obligation that alleged
appellant was the natural/biological father of P.C.,1 who was born on April 9, 2015.
On July 14, 2016, an attachment was issued for appellant�s arrest for �contempt in
neglecting or refusing to attend� a hearing on the petition to establish paternity and
support obligation. The State and appellant filed a joint motion and order for
genetic testing on October 20, 2016. On January 19, 2017, appellant stipulated to
the results of DNA testing that established he was the father of P.C.
A hearing on the petition to establish paternity and child support obligation
was held on February 16, 2017. The transcript from the hearing shows that
defendant was unrepresented but did not object to the hearing on that basis.
Persephone Washington, employed by the Child Support Enforcement Division of
the Louisiana Department of Children and Family Services, testified regarding the
variables she used to complete a Louisiana Obligation Worksheet. Part of that
calculation was allowing a credit for child care costs to P.C.�s mother, who was the
custodial parent, in the amount of $467 per month.2
With respect to P.C.�s
childcare costs, appellant stated at the hearing:

1 Pursuant to Rules 5�1 and 5�2 of the Uniform Rules�Courts of Appeal, the initials of
the minor involved will be used to protect the child's identity.
2 State�s Exhibit 2, which was introduced into the record at the hearing without objection,
was identified as daycare information for P.C. from �Angels Among Us Daycare.� The letter,
signed by Director Stacy Engel, read in its entirety:
This letter is to inform you that [P.C.] has been attending Angels Among Us Daycare
since October 12, 2015. Laura Cummings has been the provider for paying tuition of
$130 per week from October 12, 2015 til April 1, 2016. From April l, 2016 til present day
19-CA-422 2
THE DEFENDANT:
I pay child care costs for my other kids. And I offered to pay the child
care, but she refuses to allow me to do it.
. . .
THE COURT:
So you are willing to pay it?
THE DEFENDANT:
Yes. I was willing to pay that.
Appellant was ordered on March 2, 2017, to pay child support in the amount of
$825 per month, retroactive to August 10, 2015, as well as an additional $75 per
month toward arrearages.3 Appellant did not seek review of the trial court�s ruling
at that time.
On February 15, 2018, appellant filed a rule to modify child support. On
April 5, 2018, appellant filed a motion to annul the judgment of February 16,
2017.4
In his motion to annul, appellant asserted that a �Daycare Cost Letter� used
to determine his child support obligation was fraudulently obtained, contained
improper calculations, and should not have been introduced into evidence. The
motion to annul was denied on April 19, 2018, and appellant withdrew his motion
to modify child support on that same date.
On February 8, 2019, appellant filed a petition to annul the judgment of
February 16, 2017. The petition asserted that the February 16, 2017 judgment of

she pays tuition of $125 per week. If you have any questions, please feel free to call me
between the hours of 6:30 am to 2:30 pm.
3 The Order explained that �the Court deviated from guidelines due to minor child living
in household of Defendant.�
4
In the memorandum in support of his motion, appellant claimed that February 16, 2017
judgment was obtained by fraud and ill practices. Specifically, appellant argued that evidence of
child care costs introduced at the hearing was fraudulently obtained and not in the proper form.
Appellant concluded that the fraudulent documentation led to an error in the child support
calculation. Included as Exhibit �E� to his memorandum, appellant attached a document which
purports to be a record of payments received by Angels Among Us Daycare for P.C. from
October 15, 2015 through July 18, 2017. At the hearing on appellant�s motion, the State objected
to the introduction of the document on the basis that it had not been authenticated. The court took
�judicial notice� of the document and noted the State�s objection.
19-CA-422 3
child support �was obtained by fraud or ill practice� and was based upon
�fraudulently submitted� documentation and �gross miscalculations� by the
Louisiana Department of Children and Family Services. Appellant alleged that
�this wrongdoing� was discovered by him on February 8, 2018.
The State filed an exception to appellant�s motion to annul on the basis of
res judicata on April 15, 2019. The trial court granted the State�s exception on
April 18, 2019 and dismissed appellant�s motion to annul judgment.5
Relator
sought a writ of review from this Court, which was granted for the limited purpose
of ordering the trial court to consider appellant�s motion of intent to seek writs as a
timely-filed motion for appeal. State v. Johnson, 19-276 (La. App. 5 Cir. 6/14/19)
(unpublished writ). The instant appeal follows.
ASSIGNMENTS OF ERROR
On appeal, appellant raises a total of seven assignments of error.
Generally, a court of appeal will not consider an issue which is raised for the first
time on appeal. Stewart v. Livingston Parish Sch. Bd., 07-1881 (La. App. 1 Cir.
5/2/08), 991 So.2d 469; Uniform Rules-Courts of Appeal, Rule 1-3.� Gremillion v.
Gremillion, 10�05 (La. App. 3 Cir. 7/7/10), 43 So.3d 1063, 1068, writ denied, 10-
2125 (La.12/10/10), 51 So.3d 726. Considering the failure of appellant to raise the
following issues in the trial court to the extent that they are not addressed in the
judgment, we do not consider these assignments of error:
3. The Hearing Officer erred in depriving Applicant, right to due
process based upon the fact he was unrepresented by counsel during initial
judgement.
4. The Hearing Officer erred in deviating from Child Support
guidelines.
5. The Hearing Officer erred previous issuing [sic] warrant for
defendant's arrest when court lacked personal jurisdiction and/or probable
cause.

5 Evidence introduced as Exhibit State 1 at the April 19, 2018 hearing consisted of �Case log information�
from December 6, 2016, which indicated that the daycare had been contacted by phone to verify the
amount of P.C.�s tuition.
19-CA-422 4
6. The State did not have a Right of Action to pursue a Child Support
order against defendant.
7. Whether a contract is valid if a party has been coerced by a third
party or his consent was not freely given.
The remaining assignments of error, which are properly before us on appeal
are:
1. The Hearing Officer erred, as a matter of law, in granting Appellee,
STATE OF LOUISIANA exception of Res Judicata.
2. The Hearing Officer erred in not recognizing Appellee, STATE OF
LOUISIANA error as inexcusable.
LAW AND ANALYSIS
Louisiana Revised Statute 13:4231 defines the doctrine of res judicata 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 party urging a peremptory exception of res judicata bears the burden of
proving its essential elements by a preponderance of the evidence. Rudolph v.
D.R.D. Towing Co., LLC, 10-629 (La. App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277.
In Chevron U.S.A., Inc. v. State, 07-2469 (La.9/8/08), 993 So.2d 187, 194, the
Louisiana Supreme Court determined that five elements must be satisfied for a
finding that a second action is precluded by res judicata: (1) the judgment is valid;
(2) the judgment is final; (3) the parties are the same; (4) the cause or causes of
19-CA-422 5
action asserted in the second suit existed at the time of the final judgment in the
first litigation; and (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.
Appellate courts review an exception of res judicata using the de novo
standard of review. Woodlands Dev. L.L.C. v. Regions Bank, 16-324 (La. App. 5
Cir. 12/21/16), 209 So.3d 335, 340; Reed v. Cowboy's W. Store & Trailer Sales,
Inc., 16-462 (La. App. 3 Cir. 3/1/17), 214 So.3d 987, 997, writ denied, 17-0559
(La. 5/19/17), 219 So.3d 1108. The doctrine of res judicata is stricti juris, and any
doubt concerning application of the principle of res judicata must be resolved
against its application. Bourgeois v. A.P. Green Indus., 09-753 (La. App. 5 Cir.
3/23/10), 39 So.3d 654, 657.
In the instant matter, appellant�s April 5, 2017 motion to annul alleged, in
summary, that the calculation of child support was incorrect because evidence
pertaining to child care costs for P.C. was fraudulently obtained and maliciously
used by the State. The hearing transcript of April 19, 2018 shows that the trial
court limited the issue to �whether or not the judgment rendered on March -- in
March of 2017 was procured by fraud or ill practice, not whether it was accurate
based upon the information provided that day.� The court acknowledged that the
daycare had given two sets of numbers regarding P.C.�s tuition. However,
appellant did not produce a witness from the daycare to explain the discrepancy.
In denying the motion to annul, the trial court concluded:
THE COURT:
. . .
So I have -- basically, the Court is presented evidence from the same
source providing two different numbers. The State had no role in
crafting this letter from the same individual. So to represent that the
State engaged in any fraud or ill practice to this Court is grossly
19-CA-422 6
misstated. The information that was provided and not objected to was
in good faith.
Appellant�s second motion to annul the judgment of February 16, 2017, was
filed on February 8, 2019. In his petition to annul, appellant asserted that the
judgment rendered on February 16, 2017, was obtained by fraud or ill practice,
having been procured by incorrect information supplied by P.C.�s mother and used
by the State to grossly miscalculate his child support obligation.
At the hearing of April 18, 2019, the State argued that La. R.S. 13:4231(3)
applied to the facts to preclude re-urging his motion to annul. Appellant argued
that he was not in the same capacity, as he had filed the new motion as an
�executor� of the Dexter Johnson estate. In finding this argument to be without
merit, the trial court stated:
THE COURT:
. . .
Before the Court is an exception of res judicata to the petition
filed by Mr. Johnson to annul the judgment rendered by this Court on
February 16, 2017.
This Court previously adjudicated a motion to annul judgment,
which the Court accepted as a petition given Mr. Johnson's pro se
status, to annul the same judgment for the same reasons. Mr. Johnson
is representing to the Court he is appearing and prosecuting the instant
petition in a different capacity. Not individually, but as the executor of
his estate.
The Court fails to -- the Court does not agree with the
bifurcation of the individual, the natural person, from the executor of
his estate when there's a living person. He is manager and conservator
of his own estate and was at the time he prosecuted his motion in
2018. There is not a different capacity that's acknowledged. Therefore,
the Court is granting the exception of res judicata, dismissing the
petition to annul judgment with prejudice.
In applying the Chevron U.S.A. factors to the instant case, we find that the
trial court�s denial of appellant�s first motion to annul on April 19, 2018, was a
valid and final judgment that appellant did not timely seek to have reviewed. A
comparison of the first and second motions to annul demonstrate that appellant was
19-CA-422 7
seeking identical relief: to vacate the child support order on the alleged basis that
the State had acted fraudulently or in bad faith. Further, in both actions to annul,
appellant alleged the identical act of fraud: that the State intentionally used a
falsified document from P.C.�s daycare to calculate the total amount of child
support owed.
Appellant filed the second motion to annul as the executor of his own estate6
and, on this basis, he argued that any judgment rendered would not be between the
same two parties cast in the first judgment. As correctly observed by the trial court,
however, such a proposition is neither permissible nor supported by law.
Accordingly, based upon our de novo review of the record, we find no error
in the trial court�s ruling that granted the State�s exception of res judicata.
7

Outcome: For the foregoing reasons, the judgment of the trial court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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