310 So.3d 593
La. Ct. App.2020Background
- Appellant Meta H. Dave owned 1905 Allen Street in New Orleans and failed to pay 2013–2014 property taxes; property was sold at tax sale (2014) and later purchased by Precept (2015).
- Precept filed a petition to confirm the tax sale and quiet title in September 2018.
- Dave filed a separate suit (March 22, 2019) against Witherspoon, Precept, and the City seeking annulment of the tax sale and asserting a redemption claim against the City, alleging lack of due process/notice.
- Precept filed a declinatory exception of lis pendens (Jan. 10, 2020), arguing Dave’s later suit duplicated its pending quiet-title action; the trial court granted the exception (Feb. 7, 2020), dismissing Dave’s claims against Precept but preserving claims against the City.
- Dave appealed; Precept sought frivolous-appeal damages in its appellee brief but did not file an answer to the appeal or a cross-appeal.
- The Fourth Circuit affirmed the dismissal as to Precept and denied the frivolous-appeal damages request.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exception of lis pendens (La. C.C.P. art. 531) was properly granted | Dave: suits are not between the same parties because she added the City and thus lis pendens fails | Precept: suits involve same transaction (the tax sale) and Precept is entitled to dismissal as to it | Court: Granted — requirements (two suits, same transaction, same parties in same capacities) satisfied as to Precept; dismissal proper |
| Whether trial court should have transferred/consolidated cases instead of granting lis pendens | Dave: trial court should have transferred/consolidated to the division handling Precept’s quiet-title suit | Precept: dismissal as to Precept is proper and consolidation is unnecessary; Dave didn’t move to consolidate | Held: Not preserved (no motion to consolidate); consolidation would not defeat lis pendens anyway |
| Whether La. R.S. 47:2286 permits Dave’s separate suit and prevents lis pendens | Dave: statute allows a separate action to annul a tax sale, so her suit can proceed independently | Precept: statute permits but does not require separate suit; lis pendens still applies if art. 531 elements met | Held: Statute allows separate filings but does not bar lis pendens; art. 531 controls when suits duplicate issues |
| Whether appellee is entitled to frivolous-appeal damages under La. C.C.P. art. 2164 | Precept: appeal is frivolous and damages/fees should be awarded | Dave: (opposes) | Held: Denied — appellee did not file an answer to the appeal or cross-appeal requesting damages, so motion improper |
Key Cases Cited
- Krecek v. Dick, 136 So.3d 261 (La. App. 4 Cir. 2014) (standard of review and principles for lis pendens under La. C.C.P. art. 531)
- 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 122 So.3d 1152 (La. App. 4 Cir. 2013) (appellate review standards on legal questions)
- Robert L. Manard III PLC v. Falcon Law Firm PLC, 119 So.3d 1 (La. App. 4 Cir. 2012) (test that a final judgment in the first suit would be res judicata in the second)
- Glass v. Alton Ochsner Medical Foundation, 832 So.2d 403 (La. App. 4 Cir. 2002) (requirements for lis pendens/res judicata)
- Revel v. Charamie, 926 So.2d 582 (La. App. 4 Cir. 2006) (same transaction/same parties requirement explained)
- Dean v. Delacroix Corp., 853 So.2d 769 (La. App. 4 Cir. 2003) (adding new parties to a later suit does not defeat an exception of lis pendens)
- Thomas v. Bridges, 6 So.3d 1001 (La. 2014) (appellate courts generally will not consider issues raised for the first time on appeal)
- An Erny Girl, L.L.C. v. BCNO 4 L.L.C., 216 So.3d 833 (La. App. 4 Cir. 2017) (procedure: appellee must file an answer or cross-appeal to properly request frivolous-appeal damages)