text:
    Sid HEBERT, Sheriff v. Katie M. HOLLIER, et al.
    No. 2005-1136.
    Court of Appeal of Louisiana, Third Circuit.
    March 1, 2006.
    Rehearing Denied April 12, 2006.

      Edward P. Landry, New Iberia, Louisiana, for Defendants/Appellants, Katie M. Hollier, Troy Arceneaux.
    P. Charles Calahan, New Iberia, Louisiana, for Defendant/Appellee, Joseph S. Davis II.
    P. Charles Calahan, In Proper Person, New Iberia, Louisiana, Defendant/Appel-lee.
    Joseph L. Ferguson, New Iberia, Louisiana, for Plaintiff, Sid Hebert, Sheriff of Iberia Parish.
    Larry James Murdock, In Proper Person, St. Martinville, Louisiana.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ^Defendants, Troy Arceneaux (Arcen-eaux) and Katie M. Hollier (Hollier), appeal the judgment of the trial court denying the motion to rescind tax redemption filed by Plaintiff, Sid Hebert (Sheriff), in his official capacity as sheriff/tax collector of Iberia Parish. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The motion to rescind tax redemption which prompted this litigation was filed by the Sheriff on January 14, 2005. On September 4, 2002, Hollier acquired an ownership interest in the property which forms the basis of this dispute from Willie Mae Waters Barnette via cash sale. The property is described as follows:

A certain tract of land with all improvements thereon, situated in the Parish of Iberia, Louisiana, at about three (3) miles South of the City of New Iberia, Louisiana, containing 30 superficial acres, more or less, bounded North by lands of Pesson or Assigns, South by those of Dr. J. Schreiner, or Assigns, East by a line distant at each end 120 feet from the center of Isle Aux Cannes and West by lands of Henry Dorsey or Assigns; being the same property acquired by David Waters from N.B. Pee-bles per deed recorded in the conveyance records of Iberia Parish, Louisiana, in Book 9, Folio 339, under Entry No. 3113.

This sale document was recorded on September 17, 2002 in the conveyance records of Iberia Parish.

On June 30, 2003, Arceneaux purchased the property in dispute at tax sale and, thereafter, paid the appropriate property taxes for the years 2002, 2003, and 2004.

On December 23, 2004, Defendant, P. Charles Calahan (Calahan), presented payment for the delinquent taxes owed on the property in dispute to the tax department of the Iberia Parish Sheriffs Office. At no time did Calahan, an attorney, identify for whom he was redeeming the property. Without inquiring any further, the deputy tax collector for Iberia Parish assumed Calahan was redeeming the property |3for the tax record owner and accepted payment therefor.

Subsequent thereto, the Sheriff issued a certificate of redemption to “Waters, David Est. c/o Katie Marie Hollier,” and a refund was issued to Arceneaux. However, after Hollier brought it to the Sheriffs attention that she did not employ the representation of Calahan to redeem the property in dispute, the Sheriffs office sought to ascertain for whom Calahan had redeemed the property. When efforts to determine Calahan’s representation were unsuccessful, the Sheriff filed a motion to rescind tax redemption on January 14, 2005, naming Hollier, Arceneaux, and Ca-lahan as Defendants. The Sheriff claimed that he wanted to rescind the tax redemption deed issued to Calahan out of an abundance of caution so as not to “knowingly, or with reckless disregard, impinge upon anyone’s property rights without due process of law.”

On February 10, 2005, Hollier and Ar-ceneaux filed answers to the Sheriffs motion to rescind tax redemption, specifically denying that Calahan redeemed the property in the name of “the rightful owner, Katie Marie Hollier,” and alleging that the property was improperly redeemed “in the name of someone who has no vested interest in the property as an heir, legatee, creditor or otherwise.” The answer of Hollier and Arceneaux also contained a third party demand naming as third party defendants: Joseph Sterling Davis II (Davis), and Larry James Murdock (Mur-dock) Hollier and Arceneaux’s third party demand alleges that Davis and Mur-dock:

participated in a scheme to transfer ownership of property which neither of the third party defendants has or had at any time any ownership interest and created said scheme solely for the purpose and intent to deprive the rightful owners, Katie Marie Hollier and Troy Arceneaux[,] of their legitimate ownership interest in said property.

14Hollier and Areeneaux likewise seek a judgment rescinding the certificate of redemption acquired through Calahan on December 23, 2004.

Davis claims that he purchased the property in dispute from Murdock via cash sale signed on December 13, 2004, and that it was recorded on February 22, 2005 in the conveyance records of Iberia Parish. Calahan appeared as the notary on said cash sale.

Immediately prior to the hearing on the Sheriffs motion to rescind tax redemption on March 4, 2004, the parties conferred in chambers. After a pre-trial conference with the trial court, Hollier and Areeneaux supplemented and amended their third party demand by filing a petitory action and requested a temporary restraining order and permanent injunction against Davis and Murdock. Hollier and Arcen-eaux’s supplemental third party demand claimed that Davis and Murdock deprived them of their rightful possession and ownership of the property in question, and illegally committed a civil trespass upon said property.

On April 15, 2005, the trial court issued written reasons for judgment denying the Sheriffs motion to rescind tax redemption. Judgment was signed on May 25, 2005. Hollier and Areeneaux appeal.

ISSUE

Hollier and Areeneaux assert that the trial court erred in not rescinding the certifícate of redemption issued by the Sheriff.

HLAW AND DISCUSSION

Standard of Review

“When reviewing questions of law, appellate courts are to determine if the trial court’s ruling was legally correct or not.” Hatten v. Schwerman Trucking Co., 04-1005, p. 2 (La.App. 3 Cir. 12/8/04), 889 So.2d 448, 449, writ denied, 05-076 (La.3/18/05), 896 So.2d 1009 (citing Cleland v. City of Lake Charles, 02-805, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645).

Redemption of Adjudicated Property

Louisiana Revised Statute 47:2224 provides that adjudicated property may be redeemed by the owner, any person interested personally, or a person with an interest as an heir, legatee, creditor or otherwise.

Raymond Bienvenue (Bienvenue), Deputy Tax Collector for Iberia Parish, testified that on December 23, 2004, Calahan presented to him a money order for the redemption of the property at issue. Bienvenue acknowledged that he did not request information from Calahan as to whom he was representing when he presented payment to redeem the property. Bienvenue also testified that at no time did Calahan voluntarily identify for whom he was redeeming the property. Bienven-ue stated that he issued the certificate of redemption assuming that Calahan redeemed the property on behalf of Hollier. Bienvenue testified that he mailed a refund to Arceneaux, but that the check and a copy of the redemption certificate came back as “undeliverable” to the address he had listed for Arceneaux. Bienvenue testified that Arceneaux called him to ask who had redeemed the property. Bien-venue testified that he called Calahan twice to request more documentation as to whom he was representing when | fihe presented payment to redeem the property, but as of the date of the hearing, he had received nothing from Calahan.

Calahan admitted that when he presented payment to redeem the property, he did not identify whom, he was representing. Calahan testified that he did not know Hollier nor did he ever represent her. When asked if he recalled a conversation with Bienvenue about whom he represented, Calahan was not very definitive, stating “I think I also told him Mr. Davis’ name, and Mr. Davis was the owner of record at that time by virtue of a cash sale that was recorded in the conveyance records at the courthouse.” However, the record reveals that the purported sale of the property in dispute from Murdock to Davis was not recorded in the conveyance records of Iberia Parish until February 23, 2004.

Davis alleges that the property at issue herein had been in the continuous, open, and peaceful possession of Murdock, without disturbance, in excess of thirty years. Davis asserts that Murdock conveyed his interest to him with full warranty of title by cash sale on December 13, 2004. Davis questions the validity of Hollier’s interest in the property at issue herein. Davis asserts that Hollier claims to have acquired an interest without warranty of title by cash sale dated September 22, 2004; however, he argues that Hollier “pres-entís] no evidence of a valid conveyance into the David Water Estate nor any evidence that Willie Mae Waters Barnette is an heir or has ever been on the property.” The issue before this court is simply the legality of the tax redemption, not the ownership in the subject property. Therefore, Davis’ argument relative to possession and ownership of the subject property is impertinent to the issues before this court on appeal.

After a thorough review of the record, we conclude that the trial court erred as |7a matter of law in determining that Cala-han’s redemption was valid and that it inured to the benefit of Hollier. The evidence clearly shows that Hollier did not retain Calahan to represent her. By admission, Calahan was not a representative of Hollier when he redeemed the property. Therefore, the redemption was not on Hol-lier’s behalf. By act of cash sale dated September 4, 2002, Hollier possessed a recorded interest in the property in dispute. Calahan did not redeem the property pursuant to representation of an individual with a recorded interest in the property, i.e. Davis, who, based on the re-cordation date of the cash sale from Mur-dock to Davis, did not have a recorded interest in the property on December 23, 2004, the date on which Calahan redeemed the property. Therefore, the tax redemption certificate issued by the Sheriff was legally flawed because Calahan was not acting on behalf of an “owner, or any person interested personally or as heir, creditor or otherwise,” as set forth in La. R.S. 47:2224.

Motion for Recusal

Hollier and Areeneaux assert that Calahan’s participation as a lawyer and a witness violates Rule 3.7 of the Louisiana Supreme Court Rules of Professional Conduct. Hollier and Areeneaux do not allege that the trial court’s allowance of Calahan to both testify and represent himself and Davis was reversible error, but request that this court “order that Calahan be removed as counsel of record for any party in this matter with the exception of representing himself.” Under Uniform Rules— Courts of Appeal, Rule 1-3, this court will “review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Such is not the case here. Based upon the facts and issues presented, and the remedy sought, said request |sis not properly before this court and will not be considered.

Damages for Frivolous Appeal

Finally, Calahan asserts in his reply brief to Hollier and Arceneaux’s appeal that he is entitled to damages for “frivolous” appeal. We note that the record does not reflect that Calahan ever filed an answer to this appeal. An appellee shall answer an appeal when he desires to have the judgment modified, revised, or reversed in part, or when he demands damages against the appellant. See La.Code Civ.P. art. 2133. Calahan’s request for damages for frivolous appeal in his reply brief to Hollier and Areeneaux’s appeal does not satisfy the requirements of Article 2133 as it is neither an answer nor an appeal. Roberts v. Robicheaux, 04-1405 (La.App. 3 Cir. 3/2/05), 896 So.2d 1232, writ denied, 05-792 (La.5/13/05), 902 So.2d 1021 (citing Gibbs v. Gibbs, 33, 169 (La. App. 2 Cir. 6/21/00), 764 So.2d 261; Gay v. Gay, 31,974 (La.App. 2 Cir. 6/16/99), 741 So.2d 149). Therefore, the issue of Cala-han’s request for damages for frivolous appeal is not properly before this court and will not be considered.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court denying the Sheriffs motion to rescind tax redemption and order the tax redemption certificate issued herein cancelled and rescinded. This matter is remanded to the trial court for further proceedings consistent with this opinion. P. Charles Calahan and Joseph F. Davis II are cast for all costs of this appeal.

REVERSED AND REMANDED.

      . Murdock, in proper person, filed an answer on June 3, 2005, staling that he "denies any interest in this litigation.”

      . We also acknowledge that in his specifications of error, Areeneaux argues that the trial court should have granted him rightful ownership of the property at issue herein in accordance with his purchase at tax sale on June 30, 2003; however, this issue is not properly before this court and will not be considered. Arceneaux's remedy is to proceed to quiet tax title pursuant to La.R.S. 47:2228, et seq.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Margaret Jeanne Wright ALLEN, Plaintiff-Appellee v. James Lee ALLEN, Defendant-Appellant.
    No. 41,204-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 2006.

      Roland V. McKneely, III, Bossier City, for Appellant.
    Russell 0. Brabham, Shreveport, for Ap-pellee.
    Before GASKINS, PEATROSS and MOORE, JJ.
   MOORE, J.

h James Lee Allen appeals a judgment partitioning his retirement pension from his former employer. Noticing that the appeal is from a partial final judgment that has not been certified as immediately ap-pealable, we dismiss.

The parties were divorced in 1992; nearly 10 years later, in April 2002, the former Mrs. Allen (now remarried as Ms. Darner) sued to partition the community. Her sworn descriptive list included only one item, Mr. Allen’s retirement fund with Roadway Express/Teamsters Union, which she valued at $2,500 per month. She claimed a share of 27.5% pursuant to Sims v. Sims, 358 So.2d 919 (La.1978); this would have entitled her to a proportionate monthly sum of $687.50.

Mr. Allen later filed his own sworn descriptive list, valuing the pension at $60.00 per month. In addition, he listed community furniture and household goods in Ms. Darner’s possession, a 1987 Chevy station wagon in his possession, and a community debt of $9,591.57 to Ms. Darner’s mother, apparently a loan to buy the station wagon.

In pretrial proceedings Mr. Allen contended the pension should be partitioned in accord with Hare v. Hodgins, 586 So.2d 118 (La.1991), as its value had increased owing to his post-community efforts. He urged that Ms. Darner’s share should be $80.14 per month. Ms. Darner urged that under the Sims formula, she was entitled to $420.00 per month.

At trial in May 2005, the principal issue was the pension. The court heard the arguments of counsel and received into evidence stipulations and the deposition of the pension manager. The court ruled that pension was |asubject to the Sims formula, under which Ms. Darner’s share was 19.88% or $397.37 per month. At the end of the hearing, counsel announced an agreement to dismiss all claims with respect to the community movables, leaving only the issue of the community debt to Ms. Darner’s mother. Counsel for Mr. Allen filed an amended sworn descriptive list claiming this debt was $1,502.57 and had been paid by him. Counsel for Ms. Darner was willing to agree that the debt was reduced, but not that it was paid by Mr. Allen. The court stated it would “reserve both parties’ rights on the reimbursement aspects of that.”

The court rendered judgment awarding Ms. Darner'$397.37 a month out of Mr. Allen’s pension, an accrued sum of $17,484.28 with provisions for interest, and dismissing the claims with respect to the movables. The judgment also recited that “Plaintiff and Defendant specifically reserve all of their respective claims regarding the 1987 Chevrolet Celebrity station wagon, payments made thereon, reimbursement rights and debt owed (if any) to Bettye Wright [Ms. Darner’s mother].” Mr. Allen took the instant suspensive appeal.

The appeal of partial final judgments is regulated by La. C.C.P. art. 1915, which provides in pertinent part (and with emphasis supplied):

Art. 1915. Partial final judgment; partial judgment; partial exception; partial summary judgment.
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or |3intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6)Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a •partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reeon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. * * *

This article provides the exclusive list of partial final judgments which are immediately appealable. Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64; Reynolds v. Reynolds, 33,216 (La.App. 2 Cir. 5/10/00), 759 So.2d 295. The instant judgment, which partitions the pension but specifically reserves determination of the disputed community debt, is not part of the list. Nunez v. Nunez, 552 So.2d 472 (La. App. 4 Cir.1989); Lee v. Lee, 375 So.2d 769 (La.App. 4 Cir.1979). As such, it would require an express determination and designation by the district court as immediately appealable. The record does not contain any ruling to this 1 ¿effect. We therefore must decline to review the merits of the judgment until a complete partition of the community is effected. Nunez v. Nunez, supra; Lee v. Lee, supra.

The appeal is dismissed. Costs are to be paid by the appellant, James Lee Allen.

APPEAL DISMISSED.


author: DAVID S. GORBATY, Judge. ARMSTRONG, C.J.,

text:
    The HOUSING AUTHORITY OF NEW ORLEANS v. Eddie Lee GRAHAM.
    No. 2005-CA-0665.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 2, 2006.
    Rehearing Denied April 6, 2006.
    Michael A. Starks, Staff Attorney, Cynthia Burch, General Counsel, New Orleans, LA, for Plaintiff/Appellant.
    Mark Moreau, Charlotte Stewart, New Orleans Legal Assistance, Shreveport, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

11 This is an appeal from the judgment of the trial court dismissing a rule for possession filed by the Housing Authority of New Orleans (HANO). For the reasons assigned, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On December 12, 2003, defendant/appel-lee, Eddie Lee Graham (Graham), leased a public housing apartment at 624 N. Galvez Street from HANO. Graham and her three children (collectively “Grahams”) resided in the apartment. On November 30, 2004, HANO filed a rule for possession seeking to evict Graham and her household based on an allegation that the Grahams harbored a wanted fugitive, namely, David Smith, wanted for attempted murder of a police officer, simple escape, possession of stolen property and narcotics charges, and later apprehended and arrested in Graham’s apartment on June 9, 2004.

HANO maintained that the harboring of a fugitive was a violation of section XIV(a)(9) and (10) of Graham’s lease agreement. The pertinent provisions of section XIV state:

In terminating the Lease, the following provisions shall be followed by the Authority and Tenant:
* *
(a) This Lease may be terminated only for serious or repeated violations of material terms of the Lease.... Such serious or repeated violation of terms shall include but not be limited to:
(9) Criminal or other activity by a member of the household that threatens the health or safety of other public housing residents or of persons residing in the immediate vicinity of the premises; or
(10) Criminal activity by a member of the household that threatens the health or safety of HANO management staff, other residents or employees, or any drug-related criminal activity on or off the premises.

In response, Graham filed an exception of no cause of action. In support of the exception, Graham argued that she was not home at the time David Smith was apprehended in her apartment. Graham further argued that David Smith had been dating her daughter, Latasha, for only two weeks and that her daughter did not know David Smith was in the apartment at the time of his arrest.

The matter was heard on April 1, 2005. HANO presented the testimony of New Orleans police officer, Troy Smith (“Officer Smith”). Officer Smith testified that he assisted in the apprehension and arrest of David Smith on a tip from residents in the Lafitte housing project. Officer Smith and other officers, including Sergeant Mike Spuzzito (“Spuzzito”), were allowed entry into the apartment by one of Graham’s daughters. Officer Smith stated that when Spuzzito asked for David Smith, one of the daughters reported David Smith was upstairs; and David Smith was indeed found upstairs hiding under a bed.

The record reflects that none of the Grahams testified. Graham’s attorney, however, argued the following: 1) David Smith was at Graham’s apartment from 3:30 a.m. until 5:30 or 6:00 a.m. on the morning of his arrest; 2) none of the Grahams knew that the police were looking for David Smith; 3) David Smith returned around 9:30 a.m., but was refused entrance to the apartment; 4) none of |3the Grahams knew that David Smith had returned before the police arrived at the apartment and had actually gained entrance to the apartment; and finally, 5) David Smith must have been allowed to re-enter the apartment by one of many children who had access to the apartment that day.

After the testimony of Officer Smith (the only person to testify at the hearing), the exception of no cause of action was granted. In ruling, the trial judge stated: “[Cjourt is going to go ahead and grant the exception. No cause of action. If the police thought that these people were harboring fugitives, they would have booked them and charged them with that.” The trial court further stated that HANO had no right to go to trial because it could not prove its case.

A judgment dismissing HANO’s rule for possession was signed on April 4, 2005. HANO’s timely appeal followed.

DISCUSSION

In order to defend against the exception, the trial court allowed HANO to present the testimony of Officer Troy Smith, who apparently had been present in the courtroom to testify at the trial. It is well settled that when ruling on an exception of no cause of action, a court may only consider the four corners of the petition itself, and not extrinsic evidence. La. C.C.P. art. 931; Simon v. Board of Commissioners of the Port of New Orleans, 04-0368, p. 4 (La.App. 4 Cir. 5/12/04), 875 So.2d 102, 104. Thus, the trial court erred in taking evidence before ruling on the exception.

A review of HANO’s rule for possession and attached notice to vacate reveals that HANO stated a cause of action sufficient to proceed to a trial on the merits. The arguments put forth by the parties at the hearing, as well as the testimony of Officer Smith, all concerned whether HANO could prove the grounds 14it alleged to terminate the lease and whether the defendant had a viable affirmative defense. Therefore, we find that the trial court erred in granting the exception of no cause of action and entering a judgment in favor of the defendant on April 1, 2005, thereby dismissing HANO’s rule for possession with prejudice.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed. We set aside and vacate the judgment and remand this matter to the trial court for a trial on the merits.

REVERSED AND REMANDED.

ARMSTRONG, C.J., concurs in the result.

ARMSTRONG, C.J.,

concurring.

_JjThe record below suggests that a trial on the merits took place. However, inasmuch as the trial court’s judgment specifically granted the defendant’s exception of no cause of action in dismissing HANO’s rule for possession, I must concur in the result reached by the majority.

      . David Smith was ultimately convicted of the attempted murder of a New Orleans police officer. He is currently serving a thirty-year sentence.


author: MARION F. EDWARDS, Judge.

text:
    Roy RASPANTI v. Janine M. RASPANTI.
    Nos. 05-CA-738, 05-CA-931.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 3, 2006.
    Rehearing Denied April 3, 2006.

      Roy A. Raspanti, Metairie, Louisiana, for PlaintiffAppellee.
    Douglas M. Schmidt, New Orleans, Louisiana, for Plaintiff/Appellee.
    Craig J. Mordock, The Mordock Law Firm, LLC, New Orleans, Louisiana, for Defendant/Appellant.
    William E. Wright, Jr., Beverly A. Aloi-sio, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, Louisiana, for Defen-dani/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

| PIn these consolidated actions, defendant, Janine Raspanti, appeals from a trial court judgment that dismissed her recon-ventional demand against plaintiff, Roy Raspanti, as prescribed. Janine Raspanti further appeals the award of sanctions against her. Roy Raspanti contests the trial court’s award of sanctions against Ms. Raspanti as insufficient, and further asks this court to consider whether sanctions should have been awarded against Ms. Raspanti’s counsel of record. For the reasons that follow, we dismiss the appeals without prejudice.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Roy Raspanti,. an attorney, represented defendant, Janine Raspanti, in several separate legal matters during a period ranging from January 15, 1992 until February 27, 2002. Over time, the parties, who are brother and sister, developed a contentious relationship regarding Mr. Raspanti’s legal fees. Ms. Raspanti commenced to file an unsuccessful complaint with the Louisiana State |sBar Office of Disciplinary Counsel against Mr. Raspanti related to his representation. In January of 2003, Roy Raspanti filed a Suit For Breach of Contract and For Defamation against Janine Raspanti in the Twenty-Fourth Judicial District Court for the Parish of Jefferson. Ms. Raspanti, thereafter, filed a Reconventional Demand and Supplemental Reconventional Demand against Mr. Raspanti. On March 23, 2005, the trial court granted an Exception of Prescription in favor of Roy Raspanti, dismissing all claims of Janine Raspanti’s Recon-ventional Demand. On June 27, 2005, the trial court further awarded $5,000.00 in sanctions against Ms. Raspanti.

Janine Raspanti timely filed the present appeals.

In his answers to Janine Raspanti’s appeals, Roy Raspanti asks us to award him further damages for having to defend against what he contends to be a frivolous appeal, contests the trial court’s award of sanctions against Ms. Raspanti as insufficient, and further asks this court to consider whether sanctions should have been awarded against Ms. Raspanti’s counsel of record.

LAW AND ANALYSIS

LSA-C.C.P. art. 1915 provides, in relevant part:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reeon-ventional demand; cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

1 ¿After a review of the records in these consolidated appeals, we note that the judgment in this case, as it pertains to the exception of prescription, does not adjudicate all the claims of all of the parties because there has been no consideration of the original demand filed Mr. Raspanti. Further, the trial court did not designate the judgment as final for purposes of immediate appeal, nor did it make a determination that there is no just reason for delay. Thus, the judgment before us is not appealable. Therefore, we will dismiss this appeal without prejudice.

In regard to the portion of the appeals pertaining to sanctions, while we note that an award of sanctions is immediately appealable, because we have not considered the merits of the underlying claim we will pretermit consideration of that issue while also recognizing Ms. Ras-panti’s right to re-appeal in the future.

In Mr. Raspanti’s answer to Ms. Ras-panti’s appeal, he asks this court to consider whether .the trial court erred in the amount it awarded for sanctions, and to further consider whether the trial court erred in failing to assess sanctions against Ms. Raspanti’s counsel of record. In light of our previous holding above, and the fact that we have not considered the merits of the underlying appeal, we will pretermit an analysis of these issues and likewise dismiss them without prejudice as well.

For the foregoing reasons, both appeals are hereby dismissed without prejudice. Each party is to bear its own cost.

APPEALS DISMISSED.

      . See, Brown & Root v. Matherne, 04-206 (La. App. 5 Cir. 7/27/04), 880 So.2d 77.

      . LSA-C.C.P. art. 1915.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Christopher BALKA.
    No. 05-1296.
    Court of Appeal of Louisiana, Third Circuit.
    March 6, 2006.
    Rehearing Denied April 26, 2006.
    Rudy Soileau, Attorney at Law, Lake Charles, Louisiana, for Appellant, Honorable Wilford D. Carter.
    Glen R. Petersen, Sharp Hymel Cernig-lia Colvin, Weaver & Davis, L.L.C., Baton Rouge, Louisiana, for Appellees, Calcasieu Parish District Attorney’s Office and Assistant District Attorney Cynthia S. Kill-ingsworth.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| .STATEMENT OF THE CASE

Judge Wilford D. Carter of the Fourteenth Judicial District Court appeals the judgment of the trial court granting the Calcasieu Parish District Attorney’s Exception of No Cause of Action. We have examined Judge Carter’s pleadings, heard the oral argument of his counsel and determined he does state a personal cause of action against the District Attorney for damages. However, such an action is properly brought in a separate civil suit for damages instead of in the present criminal proceeding by the filing of a Motion for Sanctions. Thus, we are compelled to affirm the trial court’s dismissal of the Motion for Sanctions, for the reasons expressed herein, but reserve the right of Judge Carter to file a civil action to redress his grievance under state and federal law which expressly provides a remedy for the harm he allegedly sustained.

STATEMENT OF THE FACTS

On or about March 29, 2005, the Calca-sieu Parish District Attorney, Rick Bryant, issued a subpoena to the Honorable Wilford D. Carter to compel his testimony in a criminal matter, State v. Balka, Docket Number 04-8009, which was set for trial before Judge Robert Wyatt. In response, Judge Carter filed a Motion to Quash the subpoena asserting “that the issuance of the subpoena occurred, at least in part, to achieve ends outside the attendance of the witness.” On April 11, 2005, the criminal defendant, Christopher Balka, pled guilty thereby rendering the Motion to Quash moot. Thereafter, Judge Carter filed a Motion for Sanctions against the District Attorney contending the District Attorney had issued the subpoena “in whole or in part, to force or otherwise accomplish the recusal of the Honorable Wilford 1 ¡^Carter in a separate action assigned to Division F of the Fourteenth Judicial District Court” and the Judge requested “reasonable and appropriate sanctions.” The Motion was filed in the criminal proceeding under the same docket number before Judge Wyatt. Judge Wyatt granted the District Attorney’s Exception of No Cause of Action.

Following Judge Wyatt’s dismissal of the Motion for Sanctions, Judge Carter filed a Rule to Show Cause and Order for Citation of Direct Contempt against District Attorney Rick Bryant, and Assistants Cynthia Killingsworth and Carla Sigler. The Rule for Direct Contempt was issued by Judge Carter in Division F, with Judge Carter presiding. The Rule alleged the District Attorney and Assistants violated the direct contempt provisions found in La.Code Crim.P. art. 21, which provides, in relevant part:

A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge;
A direct contempt includes, but is not limited to, any of the following acts:
(5) Contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority;
(7) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a motion, plea, brief, or other document, filed with the court, in irrelevant criticism of another attorney or of a judge or officer of the court;

Judge Carter asserted the language in the District Attorney’s Motion to Recuse, and the police report, contained numerous derogatory comments and was filed solely for the purpose of embarrassing, insulting or impugning the integrity of the court and was designed to impair its dignity and respect. Prior to the contempt hearing, Judge Carter dismissed the complaint against Rick Bryant, who is now a colleague of Judge Carter on the bench. Judge Carter wrote: “I vacated the contempt order with regard to Robert “Rick” Bryant, because at the time he was sworn in as District Court Judge, |4and I decided to vacate the order with regard to Judge Bryant to promote unity, professionalism and improve the public image of the Court.” The two remaining Assistant District Attorneys objected to the contempt hearing before Judge Carter and filed a writ application to this court. This court held Judge Carter’s rule for direct contempt failed to state any facts upon which the Assistant District Attorneys could be found in contempt and vacated the hearing set for May 27, 2005. In Re: Robert “Rick" Bryant, Cynthia Killings-worth, and Carla Sigler, an unpublished writ bearing docket number 05-0638 (La. App. 3 Cir. 5/25/05). The Louisiana Supreme Court reversed this court’s order and remanded the Rule for Contempt for a hearing before a judge other than Judge Carter. In Re: Robert “Rick" Bryant, Cynthia Killingsworth, and Carla Sigler, 05-1383 (La.6/17/05).

On July 8, 2005, a hearing was held before Judge Michael Canaday. Judge Canaday tried the matter as a direct contempt hearing under La.Code Crim.P. art.21 (5) and (7). Judge Carter was not called to testify, and his counsel was excluded from participation in the hearing. Judge Canaday made the determination “that this Court stands in Judge Carter’s shoes, specifically as the representative of the Court in directing the inquiry into the direct contempt.” Judge Canaday did not find the two Assistants guilty of direct contempt under La.Code Crim.P. art. 21(5) and (7). However, he stated:

I will state quite candidly I do have some concern about the tenor of the language that is contained in that offense report. I believe there’s significant editorial in there that is maybe above and beyond what an offense report should contain and that would cause me some concern;

Judge Carter did not file an emergency writ to this court or the supreme court seeking to prevent his exclusion from the hearing, and since a judgment of acquittal was entered in favor of the two Assistant District Attorneys, no appeal is possible from Judge Canaday’s ruling. However, the transcript of the hearing was made a part lsof the supplemental record in the present appeal.

LAW AND DISCUSSION

We find, based on the pleadings and argument of counsel, Judge Carter does state a personal cause of action against the District Attorney. The crux of his argument is that the subpoena issued to him was improper, without lawful basis, and was designed “at least in part to achieve other ends outside of the pending prosecution, [and constituted] ... a violation of the duties and obligations imposed on a prosecutor.” Further, Judge Carter alleges the District Attorney, in issuing the subpoena was seeking his recusal in State v. Sam. Moreover, Judge Carter alleges the language contained in the District Attorney’s Motion to Recuse, which was virtually identical to the language in the police report, was filed solely for the purpose of embarrassing, insulting or impugning his integrity and respect. The truth of the facts alleged in the police report were attested to by the District Attorney in the Motion to Recuse, when it stated: “For purposes of this motion, the State accepts the account of events listed in the offense report as true and correct. The State has no reason to suspect that the report is inaccurate in any detail, and has substantially relied on it as the basis for this motion.” The entirety of the police report was made public by the District Attorney’s office and ultimately was reported in the Lake Charles newspapers. We have reviewed the police report and Motion to Recuse and agree with Judge Canaday’s conclusion regarding its tenor and content. What is particularly troublesome is the fact that the police felt free to engage in what Judge Canaday called “significant ... [editorializing]” about the character of a sitting district court judge. It is not unreasonable to believe, as Judge Carter’s pleadings suggest, that the police department knew the report would be favorably received as an official report by the District Attorney. Also, it is not a reach for Judge Carter to believe the District Attorney and the police were acting in concert to subject him to |fihumiIiation, nor is it a reach for Judge Carter to conclude the District Attorney was using his power of subpoena to achieve ends outside the attendance of a witness. Such abuse of power is not protected by the immunity provisions contained in state and federal law. Judge Wyatt relied on La.Code Crim.P. art. 61 to conclude the law does not allow the court to sanction a district attorney for abuse of his authority in the prosecution of a criminal case. However, there are limits to the power of the district attorney and a district attorney cannot claim absolute immunity from suit for violations under 42 U.S.C. § 1983.

In the United States Supreme Court case of Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the petitioner alleged the prosecutors and police conspired to link the boot print at the murder scene with his print by witness “shopping.” “At the time of this witness shopping the assistant prosecutors were working hand in hand with the sheriffs detectives....” Id. at 272, 113 S.Ct. 2606. The Court held the prosecutors were not entitled to absolute immunity, stating:

A prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.

Id at 273,113 S.Ct. 2606.

Moreover, the Court stated:

We further decided, however, that prosecutors are not entitled to absolute immunity for their actions in giving legal advice to the police.

Id. at 271, 113 S.Ct. 2606. See 42 U.S.C. § 1983; Walls v. State, 95-1133 (La.App. 3 Cir. 1/31/96), 670 So.2d 382, writ denied, 96-570 (La.12/13/96), 692 So.2d 368.

Judge Carter has attempted to have the merits of his claim against the District | ^Attorney heard and has brought his complaint before two judges. However, part of the reason his complaint was never heard is the fact that it has not been entirely clear in what capacity Judge Carter was proceeding — individually or in his capacity as a judge. In order to determine his capacity, we must examine the relief sought in each of the hearings.

In the first hearing before Judge Wyatt, which is now on appeal, Judge Carter filed a Motion for Sanctions; and, his attorney at oral argument stated Judge Carter is seeking to recover damages in the form of attorney’s fees and costs. These damages are recoverable by Judge Carter personally, but are not recoverable by him in his capacity as a judge. A Motion for Sanctions is not the proper vehicle nor is a criminal proceeding the proper forum to litigate Judge Carter’s personal claim for damages. Judge Wyatt’s dismissal of the Motion for Sanctions does not prevent Judge Carter from filing a civil suit for damages because Judge Wyatt did not decide the merits of Judge Carter’s personal claim.

The second hearing was a criminal proceeding for contempt and was brought by Judge Carter in his official capacity as judge. He was not requesting monetary damages in the form of attorney’s fees and costs. Instead, he was seeking to impose “a fíne of not more than one hundred dollars, or imprisonment for not more that twenty-four hours, or both” under La.Code Crim.P. art. 25(C) for violation of La.Code Crim.P. art. 21(5) and (7). Judge Canaday determined “that this Court stands in Judge Carter’s shoes, specifically as the representative of the Court in directing the inquiry into the direct contempt.” (emphasis added.) As such, Judge Canaday’s ruling does not affect any personal cause of action Judge Carter may have | ^against the office of the District Attorney, or its staff, for violations of federal or state law.

We, therefore, find Judge Carter’s Motion disclosed that he has a viable cause of action; and the granting of an Exception of No Cause of Action was error. However, Judge Carter has stated his claim in the wrong proceeding. We, thus, are compelled to affirm Judge Wyatt’s ruling.

DECREE

Based on the foregoing review of the record, we affirm the trial court’s dismissal of the Motion for Sanctions, but reserve the right of Judge Carter to file a civil action to redress his grievance under state and federal law which expressly provides a remedy for the harm he allegedly sustained.

AFFIRMED.

EZELL and GENOVESE, JJ.,- concur in the result.

      . Since the subpoena, which forms the basis for the complaint, was issued on or about March 29, 2005, the deadline for filing is fast approaching though not yet expired.

      . La.Code Crim.P. art. 61 provides, in relevant part, "the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”

      . Judge Carter's counsel, Rudie Soileau, has provided impassioned arguments in numerous forums on Judge Carter’s behalf, risking at times his own reputation and integrity. In fact, Mr. Soileau was found guilty of contempt of court, which judgment was reversed on writ application to this court. State v. Balka (In Re: Rudie Soileau Jr.), 05-913 (La.App. 3 Cir. 7/14/05).


author: PEATROSS, J.

text:
    Timothy L. PAGE, Charlotte Canerday Page and Ronald D. Canerday, Plaintiffs-Appellants, v. CITY OF WINNFIELD and State of Louisiana, through the Military Department of the State of Louisiana, Defendants-Appellees.
    No. 40,747-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 10, 2006.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Teresa C. Carroll, Jones-boro, for Appellants.
    Keyser & Associates, L.L.C., by Gary L. Keyser, Baton Rouge, Office of the Adjutant General by Cpt. Gary C. Mooney, Asst. Staff Judge Advocate, for Appellees, State of Louisiana and Military Department, State of Louisiana.
    Corkern & Crews, L.L.C., Natchitoches by Ronald E. Corkern, Jr., for Appellee, City of Winnfield.
    Before BROWN, CARAWAY & PEATROSS, JJ.
   PEATROSS, J.

hThis represents the second suit between plaintiffs-appellants, Timothy L. Page, Charlotte Canerday Page and Ronald D. Canerday (“the Pages”), and defendant-appellees, the City of Winnfield and State of Louisiana, through the Military Department of the State of Louisiana (“the City”), seeking ownership of the Winnfield Armory and a right to claim rental payments due from the City of Winnfield and State of Louisiana. A hearing was held on April 19, 2005, and evidence presented. Reasons for Judgment and Judgment were handed down eight days later, and the district court denied the exceptions of no cause of action and no right of action, but granted the exception of res judicata and exception of prescription in favor of the City. Accordingly, the trial judge ordered this matter dismissed. From this ruling, the Pages appeal. An answer to the appeal was filed. For the reasons set forth herein, we reverse in part, affirm in part and remand.

FACTS

The basis of the Pages’ claim involves a 1948 lease of real property from Tremont Lumber Company (“Tremont”) to the City of Winnfield. Then, in 1949, the City of Winnfield sublet the same land to the Military Department. The sublease called for a 99-year term and a minimal monetary consideration ($1 per year) for the construction and operation of a National Guard Armory for the City. The additional consideration for this agreement was the economic and civil benefit granted to the community through the presence of the Armory and its assigned unit.

DThe Pages claim that Tremont sold them the land on which the Armory was located in 1987. The lease and sublease, which were both recorded, state that they would only terminate prior to the year 2047 if the property was not used for military purposes for any five (consecutive)-year period or for non-payment of rent and taxes. The City claims no such condition ever arose and, to date, no significant portion of the Armory has been removed or reassigned; and, therefore, it remains active on a “day to day” basis. The first filed suit claiming ownership of this property was filed by Ronald D. Can-erday against the City of Winnfield on November 6, 1989. The suit alleged that the City had not complied with the terms and conditions of the sublease and had not made the required rental payments. Accordingly, Ronald Page, in that suit, argued that he was entitled to an order of immediate eviction of the City.

On June 26, 1995, the (first) suit between these parties was dismissed with prejudice and made retroactive to the trial judge’s reasons for judgment, which were entered on April 28,1994. Shortly prior to this dismissal, Ronald Canerday’s wife, Nina, sold her undivided one-half interest in the property to his sister, Charlotte, and her husband, Timothy.

In the suit filed on September 3, 2003, by the Pages against the City (the instant suit), the plaintiffs alleged that they are the owners of the property which is the subject of this suit and alleged several violations of the 1948 lease agreement, including, inter alia, that no “federal” installation was ever built (as required by the original agreement), that the original lease was improperly authorized by the City’s mayor, that rent payments had not been made since the Canerdays purchased the property, that taxes had not |3been paid and that no “federal installation” had been built on the property, as required by the lease.

The City objected to the instant suit on several grounds, challenging the Pages’ position in the two suits and the dismissal of the first suit with prejudice and it cited related facts and jurisprudence. The City filed exceptions of res judicata, no right/ cause of action and prescription, arguing, inter alia, that the Pages were not the successors in interest to the Tremont lease and have no legal interest in the land.

On April 27, 2005, the trial court denied the City’s exceptions of no right and no cause of action; however, it did rule that the appropriate requirements for res judi-cata had been satisfied. In addition, the court held that “[t]he petition alleges a breach of the lease obligation based upon conduct occurring over ten years before the filing of the instant suit,” and, therefore, ruled that prescription had tolled. Accordingly, the trial court dismissed the case. From this ruling, the Pages appeal.

DISCUSSION

Res Judicata

The Pages begin their brief by giving a thorough recitation of the principles of res judicata. See, generally, La. C.C.P. arts. 927 and 931, LSA-C.C. art. 3499 and La. R.S. 13:4231 (see, infra). They cite Fine v. Regional Transit Authority, 95-2603 (La.App. 4th Cir.6/26/96), 676 So.2d 1134, for “a good discussion of these articles.” The Pages also note that the doctrine of res judicata was changed, effective January 1, 1991, and that no retroactivity should be granted to suits filed prior to this legislation. Former (res judicata) article 4231 stated, in part:

|4The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same , quality.

The Pages assert that, under the “old doctrine” (pre-1991 law), at the time this case was filed, res judicata did not apply because there were different parties involved in both suits as plaintiffs and because the specific causes set forth in each respective set of pleadings were different. More to the point, they contend that the initial cause of action was for eviction for failure to pay rent, whereas the current petition alleges certain other violations of the lease terms.

Even if the post current law on res judicata applies, the Pages assert that the requirements for the doctrine to apply have not been met. The “new doctrine” of res judicata (current law), incorporated through La. R.S. 13:4231, states:

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.

| .¡Interpreting the aforementioned statute, the supreme court, in McClendon v. State, Dept. of Transp. and Development, 94-0111 (La.9/6/94), 642 So.2d 157, stated:

Under former Section 4231, this Court held that ‘in order for res judicata to apply, the thing demanded in the second action must be the same as the thing demanded in the first action which has been concluded by a definitive judgment; the demand must be founded on the same cause of action; and the demand must be between the same parties, formed by them against each other in the same quality.’ (Citation omitted.)

The Pages assert that, under current law, three of the four elements are not satisfied in the instant case. They argue that the parties are different in both suits, that no judgment or determination has been reached and that the causes of action in both suits are not the same.

The Pages further argue that the second suit, filed September 6, 2003, should not have been dismissed under the new rules of res judicata because the first suit was filed November 6, 1989 (prior to the new rules). Accordingly, for the same reasons set forth in the pre-1991 law, the Pages argue that the elements of res judicata are not met; and, therefore, the trial court’s ruling was erroneous.

The City responds that the Pages’ res judicata arguments “lack merit” and points out that the Pages admit in their brief that res judicata would not have applied at the time the initial suit was filed because there existed “different parties involved in the same suit ... and the pleadings are different.” It also points out that the initial and present suits arise out of the same foundation and transaction, i.e., the underlying leases and eviction of the City and Military Department. The City states that this case is simply the | fiPages trying to relitigate the same subject matter, which is strictly prohibited by res judicata.

The City next contends that the Pages’ argument that the second suit, filed September 6, 2003, should not have been dismissed under the new rules of res judicata because the first suit was filed November 6, 1989 (prior to the new rules), is misplaced. It points out that the issue on appeal in the case sub judice revolves around the dismissal of the second suit, not the first.

The City further states that the judgment of the trial court should be affirmed by this court based on the facts and the applicable jurisprudence. It cites La. R.S. 13:4231, supra, stating that the dismissal of the first ease is conclusive between the parties, even where the same parties, their successors or others appear, so long as they share the same “quality” as parties. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). In the instant case, the City points out that Mr. Canerday’s wife, Nina, sold her undivided one-half interest in the property “which did not include the leases which plaintiffs have no legal interest, just prior to the judgment of dismissal on June 26, 1995.” This interest in land was sold to Mr. Canerday’s sister, Charlotte, and her husband, Timothy; however, the City asserts that, under the law, they are treated as the same parties to the first suit.

The City cites Mandalay Oil & Gas, L.L.C. v. Energy Develop. Corp., 01-0993 (La.App. 1st Cir.8/4/04), 880 So.2d 129, writ denied, 04-2426 (La.1/28/05), 893 So.2d 72, for the proposition that the pre-clusive effect of res judicata binds the parties to the action and the non-parties, deemed 1/‘privies,” in any one of the following circumstances: (1) the non-party is a successor in interest of a party; (2) the non-party controlled the prior litigation; or (3) the non-party’s interests were adequately represented by a party to the action, who may be considered the “virtual representative” of the non-party because the interests of the two parties are so closely aligned that they hold the same “quality” as parties. It points out that, just prior to the dismissal of the first suit in 1995, Ronald Canerday’s wife, Nina, sold her interest in the subject property to Ronald’s sister and brother-in-law. The City argues that they are the same “quality” of parties, and are, therefore, effectively the same party trying to relitigate the same issues. In summation, per Welch, supra, and La. R.S. 13:4231, supra, the City argues that the parties’ claim to the instant suit are precluded by res judicata and the trial judge was correct in so ruling. We disagree.

Our review of the record reflects that res judicata does not apply to this case. As stated in Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, the doctrine of res judicata is stricti juris, meaning that any doubt concerning its application must be resolved against its application. Our review of the record evidences that, due to the failure to pay rent, there has been an ongoing violation of the lease in this case. The record reflects that the Pages filed suit to evict for failure to pay rent on November 6, 1989, and that action was dismissed on June 26, 1995, after which the City paid $12 to cover the back rental. The court in the first case granted an exception of no cause of action because the petition did not allege “adequate notification of ownership; adequate attempts at collection; or failure to comply with the provisions of the lease as to cancellation due to non-use.” The current suit |8was filed to evict for a violation of the lease, namely, the failure to pay the $1 rent, the ad valorem taxes and special assessments due to the land as well as special considerations having not been fulfilled (i.e.-building of a federal installation, etc.).

We agree with the Pages that res judi-cata does not apply in this case. The initial suit was filed prior to the 1990 amendment in res judicata laws; and, accordingly, “the more stringent requirements and elements of those amended provisions are inapplicable and the subsequent claim would not have been precluded under the applicable law prior to said amendments.” We agree with this statement. In our view, these suits cannot be precluded by res judicata as they represent separate causes of action and the thing demanded is different. As stated, supra, the first suit filed by the Pages was based on rental payments that were left in arrears at that time. To the contrary, the current suit is for delinquent rental payments and lease violations which have occurred since that time in this ongoing lease. As stated by the trial court in its reasons:

This [the trial] court finds the appropriate elements of the Exception of Res Judicata have been met for any breach or claim existing before June 26, 1995. (Emphasis ours.)

Accordingly, we find that the “second” suit filed by the Pages, although similar in quality, is a separate cause of action, seeking rental payments for a different period in this ongoing lease. Accordingly, we rule that res judicata does not apply in this suit.

19.Prescription

The Pages next address the issue of prescription in this case. They assert that the trial court was in error in concluding that the claims for rent (among other claims in their petition) were prescribed. The Pages cite La. C.C. 3494, which provides that an action for arrearages or rent is subject to a liberative prescription of three years. Liberative prescription would, therefore, not apply to any claims of the plaintiff for rentals which accrued within three years from the date of filing the second suit. We agree. For these reasons, we find that the trial court was incorrect in ruling that the Pages’ claims for rent had prescribed.

No Cause and No Right of Action

Since we have ruled that the trial court was in error in dismissing the suit on the issues of res judicata and liberative prescription, we must address the issues of no right and no cause of action. Our review of the record leads us to conclude that the Pages do have a right of action and a cause of action in the case sub judice.

The argument of the City, in its answer to the appeal, is that successors in title to land encumbered by a pre-existing long term lease have no cause of action to raise the claims now raised in this suit. To put it more simply, the City argues that only Tremont can bring this cause of action. The City states that the trial court failed to hold that the Pages have no cause or right of action because they have no identifiable, legal rights to the subject matter at issue in this case. It contends that, in order for the Pages to have any real right in the subject matter of this case, they must establish privity of contract, not merely naked title to the property obtained through ^descendants in title of the Tremont estate. In summation, because the Pages have not shown privity of contract, the City urges that they have no cause and no right of action. We disagree.

In Prados v. South Central Bell Telephone Co., 329 So.2d 744 (La.1975), the court stated, inter alia:

Not only servitudes, but Leases and all other rights, Which the owner had im posed on his land before the alienation of the soil, form real obligations which Accompany it in the hands of the person who acquires it, although he have made no stipulation on the subject, or they be not mentioned in the act of transfer. The purchaser may, if the circumstances permit it, have relief against the seller for concealment of such charges; but the law establishes the rule that no one can transfer a greater right than he himself has, except where the neglect of some formality required by law has subjected the owner of the real incum-brance to a loss of his right, in favor of a creditor or Bona fide purchaser.’. La. C.C. art. 2015.
In recent years, we have consistently classified predial leases as involving personal rights, rather than real rights. See Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964); Harwood Oil and Mining Co. v. Black, 240 La. 641, 124 So.2d 764 (1960); A. Yiannopoulos, Louisiana Civil Law Treatise-Property, s 95, pp. 275-278 (1967). When, however, the lessor sells property during the term of a recorded lease, the purchaser in the absence of a contrary stipulation is bound by the obligations of the lessor. LSA-C.C. Árts.2015, 2733; Spence v. Lucas, 138 La. 763, 70 So. 796 (1915); Walker v. Vanwinkle, 8 Mart. (N.S.) 560 (1830). In the absence of a contrary stipulation, the new owner is likewise entitled to the rent accruing subsequent to his acquisition, LSA-C.C. Arts.1902, 2461, 2490; Carmouche v. Jung, 157 La. 441, 102 So. 518 (1924); Lesseigne v. Cedar Grove Realty Co., 150 La. 641, 91 So. 136 (1921); 26 La.L.Rev. 107.
‘Ordinarily the sale of a thing will pass all such things as are directly incident to it, and necessary to its enjoyment. Civil Code, art. 2461. The lessee is liable on the covenants of his lease, and to these, unquestionably, plaintiff is subrogated from the date of his purchase. By the use of the words right in, to, or under the lease, the plaintiff did not become an assignee of damages of date prior to the sale.... It was not an accessory right, which passed like a right of servitude, for instance, Inwithout description of, or reference to, the claims. The property transferred is described. We cannot presume that there were additional rights in the nature of damages, the deed being silent as to damages.’ (Emphasis ours.)

Prados, supra, notes that predial leases involve personal rights, rather than real rights; however, when a lessor sells property during the terms of the recorded lease,, the purchaser- in the absence of a contrary stipulation- is bound by the obligations of that lessor. To this end, Pra-dos, supra, establishes that, in the absence of stipulation to the contrary, the “new” owner is likewise entitled to the rent accruing subsequent to his or her acquisition of the land.

This line of jurisprudence and code provide a clear rule when applied to the facts of this case. When Tremont sold the land to the Pages, it did not state that it would continue to enforce the lease obligations and retain the right to collect the “fruit” of the property. Instead, Tremont simply stated that they, the Pages, took “subject to” the lease obligations. Accordingly, for these reasons, we hold that the trial judge was correct in his ruling that the Pages have a cause of action and right of action in this case.

^CONCLUSION

For the reasons set forth herein, the judgment of the trial court granting the exception of res judicata and prescription in favor of the City and against the Pages is reversed and the ruling of the trial court denying the exceptions of no cause and no right of action against the City of Winn-field and State of Louisiana, through the Military Department of the State of Louisiana, and in favor of Timothy L. Page, Charlotte Canerday Page and Ronald D. Canerday is affirmed. The matter is hereby remanded to the trial court for further proceedings. Costs of this appeal are assessed to the City of Winnfield and State of Louisiana, through the Military Department of the State of Louisiana.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

      . We note at this point that the only plaintiff in the first suit between these parties was Ronald Canerday. The inter-relatedness of the other plaintiffs to the case sub judice is discussed, infra.

      . This court notes that, of the three appellate briefs filed, only one provided a cogent, complete "Facts” section.

      . There was, allegedly, a $99 pre-payment (or complete satisfaction) of rent by the Military Department which occurred after the ''first” suit between these parties. We note some confusion regarding this alleged pre-payment. In brief and during oral argument, it was unclear whether this money was paid to the City and/or the Pages. We find this issue better suited for the fact finder, as our review of this question, on this record, appears to be incomplete.

      . We note that this case was reversed on rehearing on other grounds. The reversal was predicated on the fact that, at the time the property was acquired by the plaintiff in Prados, the lease had expired. We do not have that factual situation in the case sub judies, where the lease was fully functional and ongoing when it was acquired by the Pages.

      . See also, 29 La. L.Rev. 101, 107, which states, in part:
      The lessee who holds under a recorded lease is protected in his possession when the property is sold to another during the term of the lease. The recorded lease is a real obligation upon the land which accompanies it into the hands of the new owner, who is entitled to the rent subsequently accruing, and like the previous owner, liable to the lessee if he evicts him. [Citations/footnotes omitted.]

      . See also, Louisiana Civil Code Article 483, which states:
      In the absence of rights of other persons, the owner of a thing acquires the ownership of its natural and civil fruits.