267 So. 3d 143
La. Ct. App.2019Background
- The Cusachs Collection, owned equally by Elysian, Inc. and Cusachs Family Collection LLC, was consigned to Neal Auction by a written agreement in Feb. 2016.
- Descendants (Booth and Lingle) filed an Injunction suit in Nov. 2016 seeking to restrain distribution of auction proceeds; a preliminary injunction was later dissolved and that suit proceeded to judgment.
- Plaintiffs filed a separate Auction suit in Oct. 2017 alleging multiple claims (fraud, breach, conversion, etc.) against Neal and others; the suits were not consolidated.
- Neal filed an exception of lis pendens in Dec. 2017 to dismiss the later-filed Auction suit, arguing it duplicated the earlier Injunction suit under La. C.C.P. art. 531.
- The district court dismissed the Injunction suit with prejudice in Jan. 2018, then granted Neal’s lis pendens exception and dismissed the Auction suit without prejudice in Mar. 2018.
- On appeal the court held the Injunction suit was no longer pending when reviewed, so lis pendens did not apply; the appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lis pendens under La. C.C.P. art. 531 required dismissal of the Auction suit | Lis pendens inapplicable because the prior suit was no longer pending at the time of review | Lis pendens applies because the suits concern the same transaction and parties and one was filed first | Reversed: lis pendens did not apply because the Injunction suit was not pending when reviewed |
| Proper temporal point for assessing lis pendens | Court should consider the procedural posture at the time of appellate review | District court’s grant was correct based on its view at hearing | Court holds lis pendens must be evaluated based on the procedural/factual climate at time of review |
| Whether all three lis pendens requirements were met (pending suits; same transaction; same parties/capacities) | Argued requirements were not satisfied in present posture | Argued requirements were satisfied (same transaction/parties) | Because first requirement (pending suits) failed at review, lis pendens does not apply |
| Whether supplemental record issues affect appeal outcome | Not necessary to address if lis pendens reversed | Argued supplementation proper | Court pretermits discussion of supplementation as unnecessary after reversal |
Key Cases Cited
- Parker v. Tulane-Loyola Fed. Credit Union, 193 So.3d 441 (La. App. 4 Cir.) (lis pendens reviewed de novo; consider procedural posture at time of review)
- Aisola v. La. Citizens Prop. Ins. Corp., 180 So.3d 266 (La.) (three requirements for lis pendens)
- First Bank and Trust v. Simmons, 165 So.3d 1025 (La. App. 4 Cir.) (standard of review on legal issues)
- An Erny Girl, L.L.C. v. BCNO 4 L.L.C., 216 So.3d 833 (La. App. 4 Cir.) (standard of review guidance)
- Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 796 So.2d 66 (La. App. 2 Cir.) (evaluate lis pendens based on current procedural/factual climate)
- Glass v. Alton Ochsner Medical Foundation, 832 So.2d 403 (La. App. 4 Cir.) (a suit on appeal can be treated as pending for lis pendens purposes)