
    SUCCESSIONS OF Dianna McNabb, Wife of/and Eldridge B. GONZALES.
    No. 2013-CA-0064.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 7, 2013.
    
      Irl R. Silverstein, David A. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Appellant.
    Jerald N. Andry, Andry & Andry, Jeanne Andry Landry, Arthur W. Landry, Jeanne Andry Landry, LLC, New Orleans, LA, for Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   MADELEINE M. LANDRIEU, Judge.

|) Louise Thibodeaux Gonzales appeals the trial court’s May 21, 2012 judgment which dismissed her petition on the grounds of res judicata, finding that the matter had already been adjudicated by means of a prior district court judgment dated October 11, 2010. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Louise Thibodeaux Gonzales [“Ms. Gonzales”] was the wife of Eldridge B. Gonzales, Sr. at the time of his death on October 2, 1982. Cynthia Gonzales Pent-ney, Eldridge’s daughter by his prior marriage to Dianna McNabb, instituted this action in the 34th Judicial District Court for the Parish of St. Bernard on October 8, 1982, by filing a petition to be appointed administratrix of the successions of her father and mother (who had died in 1979), both of whom had died intestate (according to Ms. Pentney’s petition). Ms. Pentney further alleged that the only other child born to her parents was her brother, El-dridge Gonzales, Jr., who was a minor at the time. In November of 1982, Ms. Pent-ney was appointed administratrix.

lain 1983, Ms. Gonzales filed a petition as the surviving spouse of Eldridge Gonzales, Sr., to have the appointment of Ms. Pentney as the administratrix of his estate rescinded. Ms. Gonzales alleged that her husband had left a will designating her as executrix and leaving her a lifetime usu-fruct over his estate, which included their home and the property upon which it was located in St. Bernard Parish. Ms. Gonzales also sought to probate Mr. Gonzales’s statutory will. The record before us contains an order setting the matter for hearing on October 15, 1987. There is a lapse of more than twenty years where nothing appears in the record. The next pleading filed is Ms. Gonzales’s “Petition for Filing and Execution of Statutory Testament and for Usufruct” dated June 28, 2011.

In the interim, on August 5, 2005, Ms. Pentney and her brother (who by then had reached the age of majority) instituted a separate action, No. 105-100, assigned to a different division of the same district court, by filing a “Motion to Terminate Usufruct in Favor of Naked Owners.” In this action, entitled “Eldridge Bernard Gonzales, Jr., et al v. Louise Thibodeaux Gonzales,” the son and daughter of Mr. Gonzales acknowledged that their father’s second wife, Louise Gonzales, had been granted by testament the usufruct over certain immovable property (their family home) of which they were the naked owners. They further alleged that Ms. Gonzales’s usufruct should be terminated due to her abuse, neglect and ^abandonment of the property. On August 21, 2008, the district court entered a default judgment terminating Ms. Gonzales’s usufruct and recognizing the petitioners as full, unencumbered owners of the property. Ms. Gonzales brought a petition to annul the default judgment for lack of proof of service and alternatively, a motion for new trial. Ms. Pentney and her brother filed an exception of no right of action with regard to the petition to annul. A trial on the merits of the motion to terminate the usufruct and the exception of no right of action was held on September 8, 2010. On October 11, 2010, the district court in Case No. 105-100 rendered a written judgment maintaining the exception of no right of action, rejecting Ms. Gonzales’s claim as usufructuary, and recognizing the entitlement of Ms. Pentney and her brother to the full, unencumbered ownership of the property. No appeal was taken from this judgment.

Then, as previously stated, Ms. Gonzales in June of 2011 filed into the instant action (District Court Case No. 42-844, which had been pending since 1982 and dormant since 1987) a petition for the execution of Mr. Gonzales’s statutory will and for recognition of her usufruct over the family home. In her petition, Ms. Gonzales represented that she had lived in the home until it was made uninhabitable by Hurricane Katrina in 2005, and that she was seeking a judgment recognizing her as usufructuary in order to obtain a “Road Home:” grant to rebuild the residence. On August 31, 2011, Ms. Pentney and her brother filed an exception of res judicata based upon the prior judgment issued in Case No. 105-100. The trial court initially denied the exception on January 11, 2012 without giving ^reasons, but allowed the probate of the will to proceed. After a hearing on February 10, 2012, however, the trial court signed a written judgment on May 21, 2012 dismissing Ms. Gonzales’s petition. That judgment first declared that the parties had stipulated that Mr. Gonzales’s will be admitted to probate, and that the court could decide the issue of the ownership of the usufruct. The judgment further stated that: “the Judgment on Rule of October 11, 2010 in matter No. 105-100 of this Court bars the bringing of this action because the matter has been adjudicated and the exception of Res Judi-cata is maintained.”

Ms. Gonzales now appeals that judgment. _

STANDARD OF REVIEW/APPLICABLE LAW

The standard of review of an exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct or incorrect. R-Plex Enterprises, LLC v. Desvignes, 2010-1387, pp. 2-3 (La.App. 4 Cir. 2/9/11), 61 So.3d 37, 39 (citing Myers v. National Union Fire Ins., 2009-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210). The Myers court further noted that “a final judgment has the authority of res judicata only as to those issues presented in the pleading and conclusively adjudicated by the court.” Myers, 2009-1517, p. 5, 43 So.3d at 210. The doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application. Id.

The doctrine of res judicata in Louisiana is set forth in La. R.S. 13:4231, which provides, in pertinent part:

| .^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:
* ⅝ * * *
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 Louisiana Supreme Court has held 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 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. Chevron USA, Inc. v. State, 2007-2469, p. 10 (La.9/8/08), 993 So.2d 187, 194.

ISSUES

Ms. Gonzales asserts that the trial court erred by: (1) re-litigating the issue of res judicata after having denied the exception; (2) rendering judgment on issues that were not properly before it; and (3) maintaining the exception despite a lack of sufficient evidence to support the elements of res judicata as set forth above.

DISCUSSION

Ms. Gonzales first argues that the trial court violated the law of the case doctrine by re-litigating the exception of res judicata after initially denying it, even ^though the defendants had not filed a motion for new trial or a second exception of res judicata. We disagree.

The law of the case doctrine refers to “(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.” Bank One, Nat. Ass’n v. Velten, 2004-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458 (quoting Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973)). Unlike the statutory doctrine of res judicata, however, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly. Id., 2004-2001, p. 6, 917 So.2d at 459 (citing Petition of Sewerage and Water Bd., 278 So.2d at 83).

Thus, the law of the case doctrine should not bar reconsideration of a ruling that is palpably erroneous; nor should the doctrine be mechanically applied so as to accomplish manifest injustice. Id. In addition, Louisiana jurisprudence has recognized two other contexts in which the doctrine will not be applied, the first of which is present in the case before us. That is — the law of the case doctrine will not be applied to “supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions.” Id., pp. 6-7, 917 So.2d at 459 (quoting Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1094, 262 So.2d 328, 332-33). The exception of res judicata is a peremptory exception. See La. C.C.P. art. 927. Article 927 B lists res judicata as one of the 17peremptory exceptions that may be noticed by either the trial or the appellate court on its own motion. Moreover, because the denial of such an exception is an interlocutory ruling, it is not binding on the trial court under the law of the case doctrine. See Babineaux, supra, pp. 1092-93, 262 So.2d at 332. As this court has stated: “It is well-settled that prior to final judgment a district court may, at its discretion and on its own motion, change the result of interlocutory rulings it finds to be erroneous.” VaSalle v. Wal-Mart Stores, Inc., 2001-0462, p. 5 (La.11/28/01), 801 So.2d 331, 334 (citing Babineaux, supra).

We therefore reject Ms. Gonzales’s argument that the trial court was without authority to reconsider and/or reverse its prior ruling denying the exception of res judicata.

Secondly, Ms. Gonzales asserts that the trial court erred by rendering judgment on an issue that was not properly before it. She contends that the only issue raised by her petition was the probate of the statutory testament, which had been presented to the court in 1983. She further argues that such probate does not require a hearing, but is automatic under La. C.C.P. art. 2891, which provides:

A notarial testament, a nuncupative testament by public act, and a statutory testament do not need to be proved. Upon production of the testament, the court shall order it filed and executed and this order shall have the effect of probate.

She therefore contends that the trial court erred by reaching the issue of her entitlement to the usufruct.

Ms. Gonzales’s contention that her 2011 petition sought only the probate of her husband’s will is belied by the language of the petition itself. The petition is 18entitled “Petition for Filing and Execution of Statutory Testament and For Usu-fruct.” (Emphasis supplied). It concludes by stating:

WHEREFORE, Petitioner prays that:
1. The attached Last Will and Testament of ELDRIDGE BERNARD GONZALES be ordered filed, registered and admitted to probate, and
2. Petitioner be granted the usufruct for life or remarriage over all of the property of which ELDRIDGE BERNARD GONZALES died possessed and ownership and possession of the disposable portion of the community property of the marriage. (Emphasis supplied).

In view of this language, we do not agree that the sole matter before the trial court was the probate of the will. Moreover, as stated previously, the fact that the trial court had already ruled on the defendants’ exception of res judicata did not preclude the court from reconsidering that ruling. Finally, the transcript of the February 2, 2012 hearing in the trial court reflects that counsel for both parties assented to the trial court’s deciding the issue of res judi-cata, and thus of Ms. Gonzales’s entitlement to the usufruct. The May 21, 2012 judgment confirms that stipulation. We therefore find no merit to the appellant’s argument that the trial court overstepped its authority by deciding issues that were not before it.

Ms. Gonzales’s final argument on appeal is that the trial court erred by concluding, based upon the evidence before it, that the elements of res judicata were satisfied. In considering the issue, the trial court specifically ordered the parties to produce the record of case No. 105-100 for his review. The trial judge then listened to the arguments of counsel, but there was no other evidence offered. After examining the record containing the 2010 judgment, the trial court judge stated from the bench that he was convinced 19that the matter had already been litigated and the “res” had been determined; therefore, the 2010 judgment rejecting Ms. Gonzales’s claim to the usufruct and granting full, unencumbered ownership of the property to the defendants precluded re-litigation of that issue. We find no error in that conclusion.

A mere reading of the October 11, 2010 judgment leaves no doubt that the five elements of res judicata are all present in the instant case: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit (in this case, the ownership of the same exact property) 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 (in this case, the death of Eldridge Gonzales, Sr.) that was the subject matter of the first litigation. See Chevron USA, Inc. v. State, supra. No further evidence was necessary for the trial court to maintain the exception of res judicata. We therefore find no merit to Ms. Gonzales’s final assignment of error.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED.

TOBIAS, J.,

concurs in the result and assigns reasons.

lil respectfully concur in the majority’s decision to affirm the trial court’s ruling. I write separately, however, because I arrive at the same result following a different form of reasoning.

The records on appeal, being the proceedings in case number 42,884 on the docket of the 34th Judicial District Court for St. Bernard Parish, shows the following timeline of events:

• The successions proceedings were commenced on 8 October 1982 when Cynthia Gonzales Pentley (“Cynthia”) petitioned the court to be the admin-istratrix of the successions of her parents, Dianna McNabb Gonzales (“Dianna”) and Eldridge B. Gonzales (“Eldridge”).
• Letters of administration for both of her parents’ successions were issued by the clerk of court to Cynthia on 5 November 1982. See La. C.C.P. art. 282.
• On 27 May 1983, Louise Thibodeaux Gonzales (“Louise”) filed a petition to probate the last will and testament (in statutory form) of Eldridge dated 25 August 1982, requesting that the letters of administration granted to Cynthia be rescinded. (No indication appears of record that Dianna died testate; therefore, I conclude that an administration of her succession remained proper.)
• On 11 May 1983, in her capacity as administratrix of her parents’ succession, Cynthia filed a motion to cause Louise to turn over all succession property; a hearing on the motion was set for 27 May 1983. It appears that the hearing on the motion was continued without date on 17 May 1983 (and that the notation of the hearing was entered incorrectly on a proposed order that was never signed confirming Louise as testamentary executrix of Eldridge’s estate).
|¾* On 27 May 1983, Louise filed a petition to probate Eldridge’s 25 August 1982 testament and for letters testamentary together with a memorandum in opposition to Cynthia’s motion to turn over Eldridge’s succession property. Cynthia filed an answer to Louise’s petition on 17 June 1983.
• The matter then languished until 26 June 1987, when Cynthia filed a motion to set for trial on the merits. Reasoning from La. C.C.P. arts. 2852, 2853, and 2882 et seq., I conclude that Cynthia was attempting to set for trial the issue of whether Eldridge’s 25 August 1982 testament should be probated. A hearing on the motion was set for 15 October 1987. Apparently no trial occurred.
• The matter bearing case number 42,-884 then languished with no action until 28 June 2011, when Louise filed a petition for filing and execution of El-dridge’s testament of 25 August 1982. On the same day, Louise also filed the obviously Hurricane Katrina damaged original of Eldridge’s testament in the court for probate. The envelope in which the testament is enclosed bears a date of 28 June 2011.
• After the 26 June 1987 filing in case number 42,884, and more specifically on 5 August 2005, Cynthia and her brother, Eldridge Bernard Gonzales, Jr. (“Gonzales Jr.”), filed a new suit in the 34th Judicial District Court, bearing docket number 105,100. This suit was commenced as a “motion” to terminate Louise’s usufruct and alleged that Louise had abandoned the immovable property and dwelling in the Fernandez subdivision of Delacroix Island (hereinafter, “the property”) that had been owned by Dianna and El-dridge, and that Louise had disused, neglected and failed to care for the property to the “real detriment to the naked owners.”
• The record on appeal reflects no service of the 5 August 2005 “motion.” Hurricane Katrina struck the New Orleans area on 29 August 2005.
• On 10 August 2006, Cynthia and Gonzales Jr. filed a motion for default, alleging service of the motion on 22 August 2005. A default was granted on 18 August 2006 and a judgment confirming the default was entered on 21 August 2006; the judgment states that the judgment in case number 42,-884 that granted a life usufruct to Louise was “terminated and extinguished.” Of course, no judgment had been rendered in case number 42,884 granting Louise a life usufruct; and no judgment whatsoever had been rendered in number 42,884. The record does not reflect service of the judgment of 21 August 2006. I take judicial notice that the 21 August 2006 judgment confirming the default was prematurely entered in violation of La. C.C.P. art. 1702 A.
13* Louise filed a petition to annul the judgment on 10 July 2009. Cynthia and Gonzales Jr. filed an answer on 14 September 2009. Louise filed an “answer” to Cynthia’s and Gonzales Jr.’s motion filed on 30 March 2010, together with a motion for summary judgment to nullify the 21 August 2006 judgment and a motion for new trial (which I understand to be an alternative motion for new trial of the 21 August 2006 judgment).
• On 21 August 2010, Cynthia and Gonzales Jr. filed a first amended motion to terminate Louise’s usufruct that acknowledges that the property was community property of Dianna and Eldridge and thus Louise, Cynthia, and Gonzales Jr. were co-usufructuar-ies of the property. Further, Cynthia and Gonzales Jr. filed an exception of no right of action asserting that Louise had no right of action because she was never the usufructuary of the property.
• A “second” amendment of the exception of no right of action (the record reflects no first amendment of the exception) was filed on 21 September 2010 by Cynthia and Gonzales Jr., asserting that no will had been probated in case number 42,884, and that a right to do so prescribed under “LSA-R.S. 6651 [sic].” I understand the statutory reference to mean La. R.S. 9:5648. In 1982, section 5643 read as follows:
A proceeding to probate the purported testament of a deceased person is prescribed by five years, reckoning from the date of the judicial opening of the succession of the deceased.
Effective 1 September 1983, section 5643 was change to read:
The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession, or ten years after the date of death of the testator or testatrix, whichever first occurs.
Effective 15 August 1986, section 5643 was again changed and reads as it does now:
The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession of the deceased.
• The hearing of the peremptory exception of no right of action as amended was held on 1 October 2010 and a judgment rendered that day and signed on 11 October 2010 maintaining the exception, finding that Cynthia and Gonzales Jr. were the owners of the property unburdened by any usu-fruct. No appeal was taken from that judgment and thus it is final and definitive.
• On 28 June 2011, in proceedings 42,-884, Louise filed a petition for execution of the 25 August 1982 testament and to recognize thereunder Louise’s usufruct. Cynthia and Gonzales Jr. filed a peremptory exception of res judicata to the petition that was heard of 6 January 2012. The trial court denied the exception by judgment dated 11 January 2012.
L* A hearing was had on 10 February 2010 on whether Louise could probate Eldridge’s testament. The court ruled on 21 May 2012 that (a) the 25 August 1982 could be probated “subject to what, if anything Louise ..., could be sent into possession” and (b) the court could decide the issue of ownership of the usufruct of the property. Inconsistently, the court further granted Cynthia’s and Gonzales Jr.’s exception of res judicata, because, during the trial, the trial court directed that the record in case number 105,100 be brought to the court for the review. The trial court reviewed that record.
• From the 21 May 2012 judgment, Louise timely and devolutively appealed.

In spite of the unorthodox pleadings and procedures that have been filed and/or taken place in the trial court, I conclude that the result reached by the trial judge and the majority in this appeal is correct.

First, I note that La. C.C.P. art. 2893, following substantially the same history as that of La. R.S. 9:5843, read as follows until 1 September 1983:

The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession, or five years of the judicial opening of the succession on the deceased.

Until 15 August 1986 it read:

The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession, or ten years after the date of death of the testator or testatrix, whichever first occurs.

And it subsequently and now states:

The right to probate a purported testament in a succession proceeding shall prescribe five years after the date of the judicial opening of the succession of the deceased.

It therefore follows that Louise cannot probate her late husband’s 25 August 1982 testament.

Second, it is readily apparent that the 25 August 1982 testament was never probated. It was not actually presented to the court for probate until 28 June 2011, and then in a substantially damaged condition as noted above, when it was delivered along with Louise’s petition of the same date. It is obvious that the |5testament has never been probated because La. C.C.P. art. 2882 has never been complied with because the trial judge’s paraph is absent from the face of the testament. La. C.C.P. art. 2893 bars the probate of the 25 August 1982 testament.

Finally, the trial court’s judgment of 11 October 2010 finding, in case number 105,-100, that (a) Louise had no right of action and (b) Cynthia and Gonzales Jr. were the owners of the property unburdened by any usufruct, is entitled to res judicata effect that cannot be set aside under La. R.S. 13:4231 or La. R.S. 13:4232. The entitlement of Louise to a usufruct of the property was definitively determined in the 2011 judgment and cannot be reopened. 
      
      . It is impossible to discern from this record the date on which Ms. Gonzales first presented the will for probate. Her 1983 petition declares that the will is being filed "herewith for probate.” Her 2011 petition states: "On an unknown date, Petitioner did bring the will into this court and the will was examined by the judge and returned to her.” The exhibits to the record include the original 1982 will contained in an envelope dated June 28, 2011, indicating that Ms. Gonzales filed the will with her 2011 petition.
     
      
      . The record of case No. 105-100 was considered by the trial court in the instant action and was filed as a supplement to the record on appeal.
     
      
      . In her brief the appellant asserts four assignments of error, which we have consolidated into three issues for the purposes of this appeal.
     
      
      . Ms. Gonzales suggests in her brief that the elements of res judicata were not met because under the circumstances presented here, it is difficult to determine which action should be considered the "first” suit because the instant case was actually instituted in 1982, before the case that resulted in the judgment upon which the defendants based their exception. We decline to adopt such a hyper-technical interpretation of the judicial elements of res judicata. The fact situation presented here, involving a succession that was opened and then left dormant for more than twenty years, is unusual. For purposes of the exception raised here, we find it to be sufficient that the 2010 judgment preceded the judgment in the instant case, regardless of when each case was filed.
     
      
      . 1 note that the proceeding should have been commenced with a petition, not a motion, that required citation and service, for the issue was not a summary matter under La. C.C.P. art. 2591. Although article 2591 allows the use of summary proceedings to annul a probated testament, no testament had been probated. Nevertheless, the improper use of summary proceedings was never raised as an issue per La. C.C.P. art. 926 (the dilatory exception), and thus waived when the parties went to trial on the exception on the motion.
     
      
      . Cynthia and Gonzales, Jr. are naked owners of the property.
     
      
      . The explanatory note to the enactment of the section states:
      Adopted on the recommendation of the Louisiana State Law Institute to preclude any attack on the constitutionality of Art. 2893, LSA-Code of Civil Procedure, on the grounds that it is substantive rather than procedural.
      La. C.C.P. art. 2893 is discussed further infra.
      
     
      
      . The judgment denying the exception is an interlocutory judgment not reviewable on direct appeal.
     
      
      . La. C.C.P. art. 2882 states:
      At the probate hearing the court shall open the testament, if it is enclosed in a sealed envelope, receive proof of the making of the testament as provided in Articles 2883 through 2889, may read the testament to those present, and shall paraph the top and bottom of each page of the testament by inscribing it "ne varietur” over the judicial signature. [Emphasis supplied.]
     