165 So. 3d 1025
La. Ct. App.2015Background
- FB & T obtained a default judgment (Jan. 14, 2011) against guarantor Norbert Simmons on a continuing guaranty covering loans to Edward and Sheryl Neely (the "Collection Suit").
- Simmons lived in Florida; FB & T registered and began enforcing the Louisiana judgment in Florida, including garnishments and liens.
- Simmons filed two suits in Orleans Parish: Simmons Suit One (Feb. 11, 2014) asserting damages, declaratory relief and seeking nullity of the judgment plus injunctive relief; Simmons Suit Two (June 24, 2014) was a direct petition to annul the judgment and sought TRO/preliminary injunction.
- The Neelys filed a related Forbearance/declatory suit; Simmons intervened. The trial court transferred Simmons Suit One and Two to Division I (where the Collection Suit was allotted) and consolidated Simmons Suit Two with the Collection Suit; it also issued a preliminary injunction in Suit Two.
- FB & T sought writ relief and appealed the preliminary injunction. The appellate court had to decide (1) validity of the interdivisional transfers/consolidation under the local CDC allotment rule (CDC App. 9.3) and (2) whether the trial court erred in denying, in part, FB & T’s exception of lis pendens as to Simmons Suit Two.
Issues
| Issue | Plaintiff's Argument (Simmons) | Defendant's Argument (FB & T) | Held |
|---|---|---|---|
| Validity of transfer/consolidation to Division I under CDC App. 9.3 | Transfers appropriate because the suits "grow out of" the original Collection Suit and continuity favors transfer | Transfers violate random allotment statute/art. 253.2; consolidation allowed only with a pending earlier case under art. 1561 | Transfer and consolidation were proper under CDC App. 9.3 (a Supreme Court rule adopted pursuant to art. 253.2); trial court did not err |
| Applicability of CDC App. 9.3 (local rule) over statutes on random allotment | Local rule is a Supreme Court procedure under art. 253.2 and consistent with uniform procedures; permits transfer even if earlier case is closed | Local rule cannot override statutory random allotment; CDC App. 9.3 is invalid and non-uniform | CDC App. 9.3 is a valid Supreme Court rule for reassigning cases; it does not conflict with statutes as promulgated under art. 253.2 |
| Lis pendens — whether Simmons Suit Two must be dismissed because related suits already pending | Multiple claims (including annulment) can be cumulated; Suit Two may proceed on annulment and injunctive relief despite Suit One | Lis pendens applies: same parties/capacities, same transaction/occurrence — the later suit (Suit Two) should be dismissed without prejudice | Lis pendens applies: court erred in partially denying exception; Simmons Suit Two is dismissed without prejudice and the preliminary injunction vacated |
| Effect of dismissal on preliminary injunction and pending enforcement in Florida | Injunctive relief was appropriate to preserve status quo and prevent enforcement while nullity claims litigated | Injunction improper because Suit Two should be dismissed under lis pendens and case not properly allotted | Because Suit Two is dismissed as duplicative, the preliminary injunction is vacated; injunction issue rendered moot for now |
Key Cases Cited
- Durio v. Horace Mann Ins. Co., 74 So.3d 1159 (La. 2011) (standard of review for questions of law)
- Sprint Commc’ns Co. v. State, 699 So.2d 1058 (La. 1997) (limits on nonrandom interdivisional transfers)
- In re Dendinger, 766 So.2d 554 (La. App. 4 Cir. 1999) (transfer only for consolidation with a pending case under art. 1561)
- Giuffria v. Metro Bank, 735 So.2d 943 (La. App. 4 Cir. 1999) (local transfer rule upheld where cases were related)
- Eldred v. Fleming, 56 So.3d 432 (La. App. 4 Cir. 2011) (cumulation of nullity claim with damages allowed in an ordinary proceeding)
- Burguieres v. Pollingue, 843 So.2d 1049 (La. 2003) (elements of res judicata relevant to lis pendens determination)