216 So. 3d 833
La. Ct. App.2017Background
- Parties entered a commercial lease (Feb 2013) for premises on Frenchmen Street; Erny Girl operated the Frenchmen Art Market as lessee and BCNO 4 was lessor.
- Dispute arose over renewal rights; Erny Girl sued for declaratory relief (Jan 28, 2016) seeking a ruling that the lease continued through June 9, 2016 and later attempted to exercise a further renewal to 2017.
- BCNO 4 rejected the attempted renewal, asserted the lease had converted to month-to-month, gave notice to vacate, and filed eviction petitions (first for insurance default, second based on an alleged judicial admission that the lease terminated June 9, 2016).
- The eviction actions were transferred into the division handling the declaratory action; Erny Girl filed a declinatory exception of lis pendens to dismiss the later-filed eviction proceeding as duplicative.
- At hearing the trial court overruled the lis pendens exception and granted BCNO 4 possession (eviction) based on Erny Girl’s judicial admission; Erny Girl appealed.
- Appellate court dismissed Erny Girl’s suspensive appeal for failure to file a verified answer pleading an affirmative defense (C.C.P. art. 4735), maintained the appeal as devolutive, and affirmed the trial court’s denial of the lis pendens exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of suspensive appeal | A stipulation at the hearing preserved Erny Girl’s suspensive-appeal rights | Erny Girl failed to file a verified answer pleading an affirmative defense as required by La. C.C.P. art. 4735 | Suspensive appeal dismissed; appeal maintained as devolutive (verified answer requirement is mandatory) |
| Applicability of lis pendens (are suits same "transaction or occurrence") | Both suits arise from the same lease and renewal interpretation, so lis pendens should bar the later eviction | The eviction relies on Erny Girl’s judicial admission that lease terminated June 9, 2016—different operative issue/timeframe—so lis pendens does not apply | Lis pendens exception overruled; suits are distinct (possession before June 9 vs. after June 9) |
| Whether interlocutory denial of lis pendens could be the basis for suspensive appeal | Denial of lis pendens is appealable and could support suspensive relief | An interlocutory denial embedded in a final eviction judgment does not supply the statutory requirements for a suspensive eviction appeal | Interlocutory denial cannot salvage a suspensive appeal where eviction appeal requirements fail; suspensive relief unavailable |
| Request for frivolous-appeal damages | BCNO 4 requested damages in motion/brief | Such a request must be raised by answer or cross-appeal to be procedurally proper | Request denied as procedurally improper (motion/brief insufficient) |
Key Cases Cited
- McMillan v. Chauvin, 281 So.2d 181 (La. App. 4th Cir. 1973) (verified answer requirement is mandatory to preserve suspensive appeal from an eviction judgment)
- Interstate Realty Mgmt. Co. v. Price, 86 So.3d 798 (La. App. 4th Cir. 2012) (failure to answer under oath defeats suspensive appeal)
- Parker v. Tulane-Loyola Fed. Credit Union, 193 So.3d 441 (La. App. 4th Cir. 2016) (standard of review for lis pendens is legal; transaction/occurrence analysis is case-specific)
- Spallino v. Monarch Sign Co., 771 So.2d 784 (La. App. 3d Cir. 2000) (post-1990 lis pendens analysis can apply across ordinary and summary proceedings when same transaction/occurrence exists)
- Sauer v. Johnson, 106 So.3d 724 (La. App. 4th Cir. 2012) (where lease was month-to-month by stipulation, a favorable judgment in first suit would not preclude eviction; lis pendens inapplicable)
- Krecek v. Dick, 136 So.3d 261 (La. App. 4th Cir. 2014) (two suits involving separate occurrences do not satisfy lis pendens requirements)