author: MOLAISON, J.

text:
    Gina MCCLAIN v. NMP, LLC and Jessica Haggard
    NO. 18-CA-297
    Court of Appeal of Louisiana, Fifth Circuit.
    December 12, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, GINA McCLAIN, Lisa Brener, Douglas R. Kraus, Chelsea Cusimano
    COUNSEL FOR DEFENDANT/APPELLEE, V. J. INVESTMENTS, LLC, Stephen D. Marx, Metairie.
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
   MOLAISON, J.

Plaintiff, Gina McClain, appeals a trial court judgment granting an exception of no cause of action in favor of defendant, V. J. Investments, LLC ("VJI"), thereby dismissing her claims against VJI to annul the transfer of immovable property, with prejudice, and canceling the notice of lis pendens recorded in the records of the Jefferson Parish Mortgage Office. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendant, NMP, LLC ("NMP"), through its managing member, defendant, Jessica Haggard, borrowed the sum of $45,000.00 from Ms. McClain in order to purchase a house situated at 13 Sarah Street in Westwego, Louisiana (the "Property") from the seller, Federal Home Loan Mortgage Corporation ("Federal Home"). According to the Cash Sale Without Warranty, which was executed on February 24, 2016 and recorded in the public records of Jefferson Parish on March 1, 2016, NMP purchased the property from Federal Home "for [$48,000.00], cash in hand paid, for which acquittance [was] [t]herein granted."

As evidence of NMP's $45,000.00 loan from Ms. McClain to purchase the Property, NMP executed a "Promissory Note"

dated February 23, 2016, wherein NMP agreed that the "obligation would be secured by a 'Deed of Trust' [i.e., a mortgage] on the Property to be executed and recorded in Jefferson Parish, Louisiana." Ms. McClain entrusted the preparation, execution and recordation of the Deed of Trust [hereinafter referred to interchangeably with "the mortgage"] to Ms. Haggard, NMP's managing member.

After NMP failed to pay the monthly installments and the full sum of the loan when due in accordance with the terms of the Promissory Note, Ms. McClain retained legal counsel to pursue collection of the money owed and, if necessary, was prepared to seize and sell the Property subject to the Deed of Trust (or "mortgage"). Unfortunately, in the process of doing so, Ms. McClain learned that not only had NMP failed to execute or record the mortgage on the Property, apparently Ms. Haggard never even prepared one, and had not otherwise perfected any recorded security interest in the Property. Consequently, no mortgage of record on the Property exists.

Ms. McClain, through counsel, made several attempts to reach an agreement with Ms. Haggard to repay the loan and to enforce her obligation to execute and record a security interest in the Property to no avail. On or about February 9, 2017, communications between the parties ceased. Consequently, on March 2, 2017, Ms. McClain filed the instant suit against NMP and Jessica Haggard seeking to enforce the Promissory Note, for declaratory relief to order NMP to execute and record a mortgage on the Property, and for damages "[a]rising [o]ut of [f]raudulent [m]isconduct." Additionally, in the event NMP sought to transfer the Property, on March 28, 2017, Ms. McClain filed a notice of lis pendens , in order to place any prospective purchaser of the Property on notice of litigation relating to the Property. The notice of lis pendens recorded by Ms. McClain provided the following:

Please take notice that Gina McClain has filed in the above numbered proceeding a petition to , inter alia , assert a security interest in the [P]roperty .... [Emphasis supplied.]

Ms. McClain alleges that NMP, acting through Ms. Haggard, transferred the Property by "Quit Claim" to Statler-Waldorf, LLC ("Statler"), another entity co-owned by Ms. Haggard, for the sum of $1.00. The transfer of the Property was recorded in the public records of Jefferson Parish on February 15, 2017, prior to the recordation of the notice of lis pendens . According to Ms. McClain, the "Quit Claim" transfer took place without her knowledge or consent, and was "clearly a shell game" made "with the intent of selling the Property to a third party and keep[ing] for the benefit of Jessica Haggard and her entity(ies) all of the profits therefrom, to the detriment of [Ms. McClain] and in derogation of [her] rights against Haggard and NMP."

Unbeknownst to Ms. McClain, on April 10, 2017, Statler sold the Property to defendant, VJI, for $60,000.00 pursuant to an Act of Cash Sale. The act of sale was filed into the Jefferson Parish conveyance records on April 11, 2017. Ms. McClain contends that the first she learned of Statler's sale of the Property to VJI was on May 1, 2017. On that day, the closing attorney handling the sale for VJI notified Ms. McClain's counsel that, when updating the mortgage certificate, it was discovered that a notice of lis pendens had been filed on Ms. McClain's behalf two weeks prior to the closing of the sale. After further review of Jefferson Parish's public records, counsel for Ms. McClain discovered the previous sale of the Property from NMP to Statler.

Ms. McClain then filed a "Supplemental, Amending, and Restated" petition on October 24, 2017 adding Statler and VJI as defendants. The petition states that VJI was being added "for the reason that its title to the [Property] may be adversely affected by the resolution of some or all of the issues in this case ...." In her amending petition, Ms. McClain asserts several claims against NMP, Jessica Haggard, and/or Statler, and seeks the following relief against them: a judgment against NMP enforcing the Promissory Note; a judgment against NMP and Ms. Haggard for fraudulently inducing Ms. McClain to loan NMP money to purchase the Property by representing that Ms. Haggard would prepare, execute and record a Deed of Trust, or mortgage, against the Property; and, a judgment against NMP, Ms. Haggard, and Statler disgorging them of all profits and benefits received from their fraudulent transfer of the Property for $60,000. None of these claims involve VJI.

In the claims made by Ms. McClain against or involving VJI, she seeks a judgment declaring her security interest in the Property, retroactive to the date NMP purchased the Property. Ms. McClain also seeks a judgment annulling the transfer of the Property from NMP to Statler, which she contends would then annul Statler's transfer of the Property to VJI, and obligate Statler to return to VJI the price VJI paid for the Property.

On January 10, 2018, in response to Ms. McClain's supplemental, amending, and restated petition, VJI filed an exception of no cause of action arguing that, under the public records doctrine, its Property cannot be encumbered by a mortgage that was not recorded when VJI purchased the Property. Additionally, VJI argued that, as an innocent third party purchaser of the Property for value, it was entitled to rely on the face of the public records. Here, those records evidenced a prior transfer of the Property from NMP to Statler, the entity who subsequently sold the Property to VJI. VJI also claimed that Ms. McClain's notice of lis pendens was defective because it did not contain the name of the person or entity against whom it was to be effective, i.e. , Statler, and, thus, without it, there was no chance of VJI obtaining notice of the lis pendens against the Property in the public records.

VJI's exception of no cause of action came for hearing on April 10, 2018. At the close of the hearing, the trial court sustained VJI's exception of no cause of action based on its determination that "there was never a mortgage filed in this matter," and that the notice of lis pendens was "deficient for failure to note the name of the actual owner of this property." The trial court issued a written judgment on April 23, 2018, in favor of VJI sustaining its exception of no cause of action and dismissing Ms. McClain's claims against it, with prejudice. The judgment further ordered that the notice of lis pendens be canceled from the public records.

It is from this judgment that Ms. McClain timely filed the instant appeal.

ASSIGNMENTS OF ERROR

On appeal, Ms. McClain avers the trial court erred: (1) in finding the notice of lis pendens deficient because it failed to contain the name of the record owner of the property; (2) in granting VJI's exception of no cause of action dismissing her claims against it and canceling the notice of lis pendens on grounds that no mortgage or security interest was filed against the Property; and, alternatively, (3) in failing to take into consideration the fraud exception to the Louisiana public records doctrine.

LAW AND DISCUSSION

Standard of Review

An appellate court reviews the judgment sustaining a peremptory exception of no cause of action de novo , because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. In re Succession of Gendron , 17-216 (La. 12/27/17), 236 So.3d 802, 807. For purposes of the peremptory exception of no cause of action, a "cause of action" refers to the operative facts which give rise to the plaintiff's right to judicially assert an action against the defendant. Executone Sys. Co. of La. v. Jefferson Parish Hosp. Serv. Dist. No. 2 for the Parish of Jefferson , 15-569 (La. App. 5 Cir. 2/24/16), 186 So.3d 1210, 1215, writ denied , 16-0569 (La. 5/13/16), 191 So.3d 1059. The function of an exception of no cause of action is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law against the defendant based on the facts alleged in the pleading. Jackson v. City of New Orleans , 12-2742 (La. 1/28/14), 144 So.3d 876, 895. All well-pleaded allegations of fact are accepted as true and correct, and all doubts are resolved in favor of the sufficiency of the petition as to afford litigants their day in court. Id. The burden of demonstrating that a petition fails to state a cause of action is a question of law, and a de novo standard is applied to the review of legal questions; the reviewing court renders a judgment based on the record without deference to the legal conclusions of the lower court. Id.

The Notice of Lis Pendens

Ms. McClain avers the trial court legally erred in finding her notice of lis pendens to be defective and ordering its cancellation on the basis that it did not identify the name of the record owner. Because we find the trial court's judgment ordering the cancellation of the notice was proper on other grounds, we do not address the merits of whether the amendment to La. C.C.P. art 3572, effective July 1, 2006-which requires that the notice of lis pendens "show[ ] the name of the persons against whom it is to be effective"-is tantamount to requiring that the name of the property's record owner be included in order for the notice to be effective against third party purchasers.

Specifically, based upon our de novo review of the record, we find that Ms. McClain's notice of lis pendens was ineffective on the date she filed and had it recorded because the "persons against whom it [was] to be effective" no longer had any remaining interest in the Property.

The purpose of the notice of lis pendens is to give effective notice to third persons of the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property. La. C.C.P. art. 3751. The sole purpose of the notice is to inform the general public of the precise property involved in the litigation and the object or purpose of the suit with respect to the property concerned. L.E.C., Inc. v. Collins , 332 So.2d 565 (La. App. 1st Cir. 1976). The recordation of the notice of lis pendens makes the outcome of the suit as to which notice is given binding on third parties. La. C.C.P. art. 3751 ; Campbell v. Melton , 01-2578 (La. 5/14/02), 817 So.2d 69, 74 n. 4.

For a notice of lis pendens to be proper and effective against third parties, it is mandatory that the pending litigation affect title to or assert a mortgage or privilege on immovable property. La. C.C.P. art. 3751 ; Albritton v. Albritton , 538 So.2d 654, 655 (La. App. 1st Cir. 1988), writ denied, 541 So.2d 901 (La. 1989). Moreover, to be effective, the notice required by La. C.C.P. art. 3751 must be in proper form and comply with the requirements set forth La. C.C.P. art. 3752. To allow an illegal or improper notice to remain recorded until the conclusion of the pending litigation would hamper or even prevent a land owner in his efforts to freely encumber or dispose of his property upon which the illegal or improper notice is recorded. Karst v. Fryar , 430 So.2d 318, 320-321 (La. App. 3rd Cir. 1983).

In the instant case, we find that the notice of lis pendens filed by Ms. McClain on March 28, 2017-which gave notice of the underlying suit against NMP and Ms. Haggard seeking to require NMP to execute and record a mortgage or security interest against the Property in the future-did not, and could not , affect title to the Property, which was no longer owned by either defendant, nor did Ms. McClain have an existing mortgage or lien to assert on the Property. Consequently, the notice of lis pendens was improper and without legal effect and, as such, it was proper for the trial court to order its cancellation. To reach this conclusion, the various transfers of the Property and the dates thereof are significant:

February 23, 2016 :
NMP executed a Promissory Note wherein NMP agreed that the $45,000 loan obligation to Ms. McClain for NMP's purchase of the Property from Federal Home would be secured by a Deed of Trust on the Property in favor of Ms. McClain; NMP agreed to prepare, execute and record the Deed of Trust.
March 1, 2016 :
NMP recorded the previously executed Cash Sale for the purchase of the Property from Federal Home in the Jefferson Parish records. The sale of the Property was for $48,000.00 "cash in hand paid, for which acquittance [was] [t]herein granted" by Federal Home to NMP.
February 15, 2017 :
NMP transferred (quitclaimed) its ownership interest in the Property to Statler. At the time of the transfer, no mortgage or security interest in favor of Ms. McClain was recorded against the Property; thus, Statler acquired the Property free and clear of any such encumbrance.
February 15, 2017:
Statler recorded the transfer of the Property from NMP, thereby divesting NMP of all ownership interest in the Property. Consequently, Ms. McClain's right to enforce NMP's obligation to execute and record a mortgage or security interest against the Property ceased on this date as NMP no longer owned any interest in the Property; Statler was the sole owner of the Property.
March 2, 2017:
Ms. McClain filed suit against NMP and Jessica Haggard seeking to enforce the Promissory Note and repayment of the loan, for declaratory relief requiring NMP to execute and record a mortgage on the Property, and for damages for fraudulent inducement.
March 28, 2017:
Ms. McClain filed and recorded a notice of lis pendens against the Property seeking to "assert a security interest in the [P]roperty " and naming NMP and Jessica Haggard as the persons against whom the notice was to be effective. Importantly, on this date NMP no longer owned the Property upon which Ms. McClain was seeking to assert a security interest, having been divested of ownership by virtue of the February 15, 2017 quitclaim to Statler. On March 28, 2017, according to the public records, Statler owned the property free and clear of any encumbrances. Statler's name is not included in the notice of lis pendens . At no time did Ms. Haggard (in her individual capacity) ever possess an ownership interest in the Property. No mortgage or security interest was ever recorded against the Property in favor of Ms. McClain while it was owned by NMP. Because NMP possessed no ownership interest in the Property and could not legally impose a mortgage on property it did not own at the time the notice of lis pendens was filed , no judgment obtained by Ms. McClain for the claims she asserted in her March 2, 2017 suit against NMP and/or Ms. Haggard (i.e. to enforce the Promissory Note and repayment of the loan, for declaratory relief requiring NMP to execute and record a mortgage on the Property, and for damages for fraudulent inducement) would or could affect title to the Property. See La. C.C. art. 3290.
April 10, 2017 :
Statler, who, according to the public records, having previously acquired the Property unencumbered from NMP, sold the Property for value to VJI, a third party purchaser.

Based upon this timeline, even assuming Ms. McClain's notice of lis pendens fully complied with the requisites of La. C.C.P. art. 3752, we find the notice was without legal effect. As stated in La. C.C.P. art. 3751, the pending action or proceeding must affect title to or assert a mortgage or privilege against the immovable property. It is undisputed that Ms. McClain never had a security interest or mortgage on the Property. And, at the time Ms. McClain filed her original petition against NMP and Ms. Haggard seeking to enforce NMP's obligation to execute and record a mortgage against the Property, the specific relief Ms. McClain was seeking against NMP and Ms. Haggard could not be granted because NMP had previously been divested of all ownership interests therein upon the February 15, 2017 transfer to Statler.

Put simply, NMP, the party who promised Ms. McClain to record a mortgage on the Property, could not legally record a mortgage on property it no longer owned. La. C.C. art. 3290. Thus, not only did Ms. McClain not have a mortgage on the Property, she could not get a judgment to enforce the obligation of NMP or Ms. Haggard to record one on this Property because neither party owned it. Consequently, at the time the notice of lis pendens was recorded on March 28, 2017, no judgment obtained by Ms. McClain against NMP or Ms. Haggard for the relief she was then seeking could in any way affect title to the Property because neither NMP nor Ms. Haggard-the persons identified in the notice against whom it was to be effective-had any ownership interest in the Property.

The mere fact that Ms. McClain recorded a notice of lis pendens on the Property does not mean that it was valid or effective as to third parties. Based upon our de novo review of the record, and for the reasons set forth above, we find the notice of lis pendens filed by Ms. McClain herein was neither valid nor effective. Accordingly, given the unique facts of this case, we find the trial court's judgment ordering the cancellation of the notice of lis pendens recorded against the Property was proper. This assignment of error lacks merit.

We note that cancellation of the notice of lis pendens does not in any way affect the claims Ms. McClain has made against NMP and Ms. Haggard for repayment of the loan and/or for monetary damages.

The Lack of a Mortgage, or Security Interest, Filed Against the Property

Ms. McClain also avers that the trial court legally erred in sustaining VJI's exception of no cause of action, dismissing her claims against it, and in canceling the notice of lis pendens , on the basis that there was no mortgage, or security interest, filed against the Property. Specifically, Ms. McClain avers that she pled sufficient facts in her original and amending petitions, which if proven, would entitle her to annul NMP's sale of the Property to Statler, thereby invalidating the allegedly fraudulent sale from Statler to VJI, and would entitle her to have the notice of lis pendens remain of record. According to Ms. McClain, the fact of whether or not a mortgage was actually recorded on the Property has no bearing on the annulment of the sale or on the requisite notice of lis pendens . We disagree.

Because we have concluded that the notice of lis pendens recorded by Ms. McClain in this case had no legal effect as against VJI, a third party, at the time it was recorded, and, thus, the outcome of the suit of which the notice was given could not bind third parties (i.e. , VJI), we must now determine whether Ms. McClain has any valid cause of action against VJI upon which the relief she seeks can be granted-i.e. , to annul the sale of the Property from Statler to VJI and to have a security interest in her favor recorded against the Property. Based upon the unique facts of this case as set forth in her original and amending petitions, we find that the law does not afford Ms. McClain a legal remedy against VJI in this matter. See Williams v. Williams , 03-2089 (La. App. 1 Cir. 6/25/04), 886 So.2d 478, writ denied , 04-1891 (La. 10/29/04), 885 So.2d 596.

In her original petition seeking to enforce the promissory note, for declaratory relief seeking to have NMP ordered to execute and record a mortgage on the Property, and for damages arising out of fraudulent inducement, Ms. McClain specifically alleged that "NMP never executed or recorded a Trust Deed ... and has not otherwise perfected any recorded security interest in the Property." Thus, it is undisputed that no mortgage or other security interest was ever recorded against the Property to secure the debt owed by NMP to Ms. McClain.

On appeal, Ms. McClain contends that she "does not assert, or seek to enforce, the [unrecorded] security interest at issue between NMP, Jessica Haggard, and [Ms. McClain], against [VJI]." Instead, she claims that her sole contention against VJI is "that [VJI's] right to the Property at issue in this litigation is inferior" to her notice of lis pendens and, on that basis, she seeks to have the transfer of the Property from Statler to VJI annulled.

A review of Ms. McClain's supplemental petition, however, belies this contention as it clearly evidences that she was seeking, in part, to have the court declare her "security interest in the Property, retroactive to the date of NMP's purchase of the Property," which is the date NMP represented to Ms. McClain that NMP and Ms. Haggard would execute and record the security interest. Moreover, in her prayer for relief, Ms. McClain specifically prays for a judgment declaring that she is "entitled to recognition of a security interest in the Property," and further prays that the security interest be recorded. As evidenced by the express language set forth in her petitions, Ms. McClain was seeking not only to have the sales of the Property annulled, but also to have the court impose a mortgage against the Property.

A mortgage is a nonpossessory right created over property to secure the performance of an obligation. La. C.C. art. 3278. Upon failure of the obligor to perform the obligation secured by the mortgage, the mortgagee has the right to cause the property to be seized and sold in the manner provided by law and to have the proceeds applied toward satisfaction of the obligation in preference to the claims of others. La. C.C. art. 3279. Mortgages must be recorded with the recorder of mortgages in the parish where the immovable property is located in order to affect third persons. La. C.C. arts. 3346(A) and 3347. Moreover, as stated previously, because the establishment of a mortgage is an alienation or transfer of real rights in property, a conventional mortgage may be established only by a person having the power to alienate the property mortgaged. La. C.C. art. 3290.

The Louisiana public records doctrine generally expresses a public policy that an interest in real estate must be recorded in order to affect third persons. Simply put, an instrument in writing affecting immovable property that is not recorded is null and void except between the parties. Cimarex Energy Co. v. Mauboules , 09-1170 (La. 4/9/10), 40 So.3d 931, 943. In explaining the nature of the doctrine, the Louisiana Supreme Court has stated that third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. Id.

The primary focus of the public records doctrine is the protection of third persons against unrecorded instruments by denying the effects of the unrecorded interests, except as between the parties. La. C.C. arts. 3338 and 3343 ; Cimarex Energy, supra at 944,. An unrecorded act affecting immovable property has no legal effect as to third parties, even where the third party has actual knowledge of the unrecorded act, or if the unrecorded act is referred to in a recorded one. Judice-Henry-May Agency, Inc. v. Franklin , 376 So.2d 991, 992 (La. App. 1st Cir. 1979), writ denied , 381 So.2d 508 (La. 1980). Under the public records doctrine, a third party purchaser is entitled to rely on the absence from the public records of any unrecorded interest in the property and may rely on the ownership status of real property as reflected on the face of the public record. Neeb v. Graffagnino , 13-687 (La. App. 5 Cir. 2/26/14), 136 So.3d 353, 357.

The rule that what is not recorded is not effective does not mean that what is recorded is effective in all events. Stated another way, the fact that a document is recorded does not mean that it is valid and effective against third parties. See Evans v. City of Baton Rouge , 10-1364 (La. App. 1 Cir. 2/14/11), 68 So.3d 576, 580. Consequently, the failure of a creditor to record a mortgage on immovable property in the mortgage records results in the failure to protect that creditor's interest in the property as to third parties who are not a party to or personally bound by the mortgage. Similarly, the failure to record a proper or effective notice of lis pendens , as we have determined that Ms. McClain failed to do herein, results in the notice having no legal effect against third party purchasers and, as such, they are not bound by the outcome of the litigation that forms the basis of the improper notice. Williams v. Williams, supra.

In the case sub judice , it has been established that no mortgage or other security interest in favor of Ms. McClain has ever been executed much less recorded against the Property. It has also been established that, because neither NMP, Ms. Haggard, nor Statler has any ownership interest in the Property, they cannot now be ordered to execute or record a mortgage or security interest against the Property. It has further been established that at the time Statler purchased the Property from NMP and, thereafter, sold the Property to VJI, a third party, the public records showed no mortgage or security interest in Ms. McClain's favor encumbering the Property. Similarly, it has been established that the notice of lis pendens filed by Ms. McClain had no legal effect against VJI, a third party, at the time that it was recorded.

For these reasons, we conclude that Ms. McClain has no cause of action against VJI to record a mortgage or to recognize a security interest in her favor against the Property. We also conclude that Ms. McClain has no cause of action against VJI to annul either the transfer of the Property from NMP to Statler or the subsequent sale of the Property from Statler to VJI, because VJI's rights to the Property are not inferior to her notice of lis pendens , which we have determined had no legal effect against VJI.

We find the case of Williams v. Williams , supra , to be instructive and that it supports our legal conclusions reached herein. In Williams , the plaintiff, Agnes Williams, brought suit against the defendant, Michael Williams, seeking to annul an alleged donation of immovable property she made to Michael on grounds of ingratitude.

Attached to her petition was a notice of lis pendens evidencing that it had been recorded in the conveyance records of Iberville Parish. Thereafter, Michael sold the property to a third party, Kimberly Legarde, whom Agnes later joined as a defendant. Kimberly filed an exception of no cause of action averring that the notice of lis pendens was ineffective because it had not been properly filed in the mortgage records as required by La. C.C.P. arts. 3751 and 3752. The trial court agreed and maintained Kimberly's exception, finding that the notice of lis pendens filed by Agnes was improper and, thus, was ineffective as to Kimberly, a third party purchaser. Accordingly, the trial court dismissed Agnes' claims against Kimberly and declared Kimberly to be the owner of the property. Williams , 886 So.2d at 480.

On appeal, Agnes challenged the trial court's judgment contending that the trial court erred in maintaining the exception of no cause of action because her recording of the notice of lis pendens in the conveyance records (rather than the mortgage records as required by La. C.C.P. art. 3752 ) was sufficient under the Louisiana public records doctrine to provide notice to a prospective third party purchaser that there was pending litigation involving the property being transferred. The appellate court disagreed stating that, based on the requirements for a proper notice of lis pendens set forth in La. C.C.P. art. 3752, "effective notice is achieved only upon 'its registry in the mortgage records.' " Id. at 481. The court found that the general provisions of the public records doctrine did not relieve Agnes of her duty to comply with the clear and unambiguous provisions specifically governing the filing of a proper notice of lis pendens . Id. at 482. Consequently, the court agreed that the notice of lis pendens filed by Agnes was ineffective against third party purchasers and, as such, determined that Agnes failed to state a cause of action against Kimberly. Specifically, because of the improperly filed notice of lis pendens , the court held that Kimberly could not be bound by the outcome of the litigation between Agnes and Michael to annul the transfer of the property. Id.

As in Williams , the facts, as established by Ms. McClain's original petition, supplemental and amending petition, and attached notice of lis pendens and accepted as true for purposes of this exception, demonstrate that there was no mortgage or security interest recorded against the Property, and that at the time the notice of lis pendens was recorded, the parties against whom it was to be effective no longer had any ownership interest in the Property and, thus, the notice of lis pendens was without legal effect against third parties. Accordingly, we find that VJI has established that Ms. McClain has failed to state a cause of action against VJI upon which the relief she seeks can be granted. In short, VJI cannot be bound by the outcome of the litigation between Ms. McClain and Ms. Haggard, NMP and Statler to annul the transfers of the Property, where the lis pendens recorded by Ms. McClain was ineffective. Thus, we find the trial court did not err in sustaining VJI's exception of no cause of action and dismissing Ms. McClain's claims against it with prejudice. This assignment of error is without merit.

The Fraud Exception to the Public Records Doctrine

In her final assignment of error, Ms. McClain contends, in alternative, that the trial court erred in failing to find that the fraud exception to the public records doctrine applies in this case to save a mortgage in her favor that was never prepared, executed or recorded against the Property. We disagree.

An exception to the public records doctrine exists where a mortgage is cancelled from the public records through fraud, error, or mistake. Schudmak v. Prince Phillip Partnership , 573 So.2d 547, 550 (La. App. 5 Cir. 1991). The cancellation of a mortgage through fraud, error, or mistake, without the consent or knowledge of the holder, does not deprive the holder of his security, even as against third parties dealing with the property in good faith reliance on the public records. Id. Generally, those cases involving fraudulent or erroneous cancellations, in which the exception to the public records doctrine has been applied, involve mortgage holders who did not know or consent to the cancellation and who had no way of knowing of the wrongful cancellation of the mortgage, and no means of protecting their security interests in the property. Id. ; Central Bank v. Frost , 552 So.2d 508, 512 (La. App. 2nd Cir. 1989), writ denied, 556 So.2d 59 (La. 1990), cert. denied, 498 U.S. 827, 111 S.Ct. 83, 112 L.Ed.2d 55 (1990). In such cases, mortgage holders are limited in the methods available to correct the wrongful cancellations and to protect their security interests. Therefore, the exception to the public records doctrine is necessary in the interest of justice. Schudmak, 573 So.2d at 550-551.

In the case sub judice , to support her contention that the fraud exception applies, Ms. McClain relies on the Fourth Circuit's unpublished opinion in Deutsche Bank Nat'l Trust Co. v. McNamara , 17-173 (La. App. 4 Cir. 10/18/17), --- So.3d ----, 2017 WL 4700650, 2017 La. App. LEXIS 1867, writ denied , 17-1918 (La. 2/2/18), 235 So.3d 1111. McNamara holds that the public records doctrine does not provide protection for innocent third party purchasers where a mortgage does not appear from the public records due to fraud, error, or mistake. Specifically, Ms. McClain avers that the mortgage against the Property herein does not appear in the public records due to fraud on the part of Ms. Haggard, NMP and Statler.

Ms. McClain's reliance on McNamara , however, is misplaced as it is factually distinguishable from the instant case. In McNamara , the property owners mortgaged the property to a bank called WMC. Of significance is the fact that WMC's mortgage was actually prepared, executed and recorded in the public records . Thereafter, WMC sold the note and the mortgage to Deutsche Bank. The mortgage was later mistakenly canceled without the knowledge or consent of Deutsche Bank. Later, after having defaulted on their mortgage, the McNamaras sold the property to a third party. Deutsche Bank then filed suit against the McNamaras and the third party purchaser seeking to reinstate the mortgage that was previously canceled by mistake. In reversing the trial court's judgment sustaining an exception of no cause of action in favor of the third party purchaser, the appellate court, applying the exception to the public records doctrine, held that if a mortgage was recorded and then canceled inadvertently through fraud or error, and without the mortgage holder's knowledge or consent, the mortgage holder states a valid cause of action against the third party purchaser to have the mortgage reinstated. McNamara , --- So.3d at ----, 2017 WL 4700650, at *5-6, 2017 La. App. LEXIS 1867 at 14.

In the instant matter, not only was a mortgage on the Property never executed or recorded, a mortgage was never even prepared. Unlike McNamara -which presupposes the existence of a recorded mortgage-in the case sub judice , because there was never a mortgage recorded, there was no mortgage to be canceled by fraud, error or mistake. Had Ms. McClain's mortgage or Deed of Trust on the Property been recorded, and then accidently or fraudulently canceled, then, arguably, McNamara would apply. Absent a mortgage, McNamara is inapplicable and the fraud and/or mistake exception to the public records doctrine does not apply. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment sustaining VJI's exception of no cause of action, dismissing Ms. McClain's claims against it, with prejudice, and ordering cancellation of the notice of lis pendens .

AFFIRMED.

      NMP, LLC is an Oregon limited liability company that is not registered to do business in Louisiana. According to the allegations contained in the record, Ms. Haggard is the sole owner and managing member of NMP.

      The Cash Sale Without Warranty reflects that NMP paid the purchase price in full and that, having done so, NMP's debt obligation to Federal Home for the purchase of the Property was discharged. Consequently, once the cash sale was recorded on March 1, 2016, the public records reflected that NMP paid the full purchase price for the Property to Federal Home and owned it without encumbrances thereon to secure the payment of the purchase price.

      The Promissory Note was also never recorded.

      The Act of Cash Sale reflects that Ms. Haggard appeared on behalf of Statler, pursuant to a Certificate of Authority executed by all of its members, and that Ms. Haggard executed all closing documents associated with Statler's sale of the Property to VJI.

      Ms. McClain avers that NMP's act of transferring the Property to Statler, an asset of substantial value, which transfer occurred after NMP's obligation to Ms. McClain arose, caused or increased the insolvency of NMP, giving Ms. McClain the right to have the transfer of the Property annulled and the Property returned to NMP, pursuant to La. C.C. art. 2036 et seq.

      In her arguments on appeal, Ms. McClain avers that the 2006 amendment to La. C.C.P. art. 3752 did not impose a requirement that the notice of lis pendens identify the name of the record owner of the property in order to be effective against third parties.

      La. C.C.P. art. 3751 provides:
      The pendency of an action or proceeding in any court, state or federal, in this state affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person not a party thereto unless a notice of pendency of the action or proceeding is made, and filed or recorded, as required by Article 3752.

      La. C.C.P. art. 3752 provides:
      The notice referred to in Article 3751 shall be in writing, signed by the plaintiff, defendant, or other party to the action or proceeding who desires to have the notice recorded, or by a counsel of record for such party showing the name of the persons against whom it is to be effective, the name of the court in which the action or proceeding has been filed, the title, docket number, date of filing, and object thereof, and the description of the property sought to be affected thereby.

      Though Ms. Haggard was the sole managing member of NMP, and a co-owner of Statler, the two limited liability companies are wholly separate and distinct legal entities.

      The establishment of a mortgage is an alienation or transfer or real rights in the property. Pursuant to La. C.C. art. 3290, "[a] conventional mortgage may be established only by a person having the power to alienate the property mortgaged." [Emphasis supplied.]

      The Louisiana's public records doctrine, embodied in La. R.S. 9:2721 et seq ., provides that no acts concerning immovable property shall have effect against third parties until deposited in the office of the parish recorder or register of conveyances of the parish where the immovable property is located. See La. R.S. 9:2721(A).

      We are constrained to note that Ms. McClain's failure to ensure that the Deed of Trust or mortgage was properly executed and recorded against the Property; her failure to review the public records prior to filing the notice of lis pendens , wherein she would have been apprised that NMP had previously sold the Property to Statler; and her failure to amend her pleadings and the notice of lis pendens prior to Statler's sale of the Property to VJI to include that she was seeking to annul the transfer of the Property from NMP to Statler, and to add Statler as a "party against whom the notice was to be effective," all contributed to the loss of any cause of action she may have had against VJI upon which the relief she seeks could have been granted.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    Charles BROOKS v. SHAMROCK CONSTRUCTION COMPANY, INC., GHK Developments, Inc., and Walgreens Louisiana Company, Inc.
    NO. 18-CA-226
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, CHARLES BROOKS, Tracey R. Bryan
    COUNSEL FOR DEFENDANT/APPELLANT, SHAMROCK CONSTRUCTION COMPANY, INC. AND WALGREENS LOUISIANA COMPANY, INC., Christopher K. LeMieux, Jonathan S. Forester, Cynthia M. Bologna
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   JOHNSON, J.

Defendants/Appellants, Shamrock Construction Company, Inc. (hereinafter referred to as "Shamrock") and Walgreens Louisiana Company, Inc. (hereinafter referred to as "Walgreens"), appeal a judgment from the 24th Judicial District Court, Division "F," that annulled a prior order dismissing the lawsuit of Plaintiff/Appellant, Charles Brooks, against them. For the following reasons, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

This matter originates from 24th Judicial District Court case number 717-787, which was assigned to Division "A". In that action, Charles Brooks v. Shamrock Construction Company, Inc., et al. , Mr. Brooks filed suit against Howard Pile Driving Company, Inc., Suddy's Excavating Service, L.L.C, GHK Developments, Inc., Shamrock and Walgreens for alleged damages he incurred to his apartment complex during the construction of a nearby Walgreens location. During the course of the discovery phase, Shamrock filed multiple motions to compel and for sanctions against Mr. Brooks relating to the production of propounded documents. In a judgment rendered on February 13, 2015, the trial court granted Shamrock's motions filed on October 27, 2014 and ordered Mr. Brooks to provide the outstanding documents responsive to Shamrock's request within 20 days and pay $951.30 in sanctions.

On May 13, 2015, Shamrock filed a "Motion to Dismiss and for Sanctions" against Mr. Brooks, alleging he failed to comply with the February 13th judgment and requesting dismissal of the action. The trial court granted Shamrock's motion on May 15, 2015, without conducting a contradictory hearing, and dismissed Mr. Brooks' action against any and all parties with prejudice. The trial court also ordered Mr. Brooks to pay $931.30 in sanctions to Shamrock. On October 8, 2015, Shamrock sent a letter to Mr. Brooks' attorney to inform her that the action had been dismissed and it would seek additional attorney's fees and seizure of property to enforce the judgment, unless Mr. Brooks satisfied the sanctions order. Mr. Brooks' attorney replied to Shamrock's letter on October 13, 2015 and enclosed a check in the amount of $951.30.

In response to the dismissal, Mr. Brooks filed a "Motion to Vacate Order of Dismissal." It was heard by the trial court on February 1, 2017 and denied on February 6, 2017. In its written reasons for judgment, the trial court detailed the delays encountered in the matter over discovery and the extensions allowed to Mr. Brooks. The court found that it did not have the discretion to vacate the May 15th order of dismissal, and Mr. Brooks could have filed a motion for new trial within seven days of receiving notice of the dismissal. However, it could not consider the motion to vacate as a motion for new trial because the delay for applying for a new trial had expired prior to the time Mr. Brooks' motion to vacate was filed.

On March 9, 2017, Mr. Brooks filed a "Petition for Absolute Nullity under C.C.P. art. 2002," which was assigned to Division "F". In the petition, Mr. Brooks alleged the May 15, 2015 order in case number 717-787 that dismissed his action against all of the parties was an absolute nullity because Shamrock failed to request proper service of its motion to dismiss; as a result, he was never served with Shamrock's motion and was completely unaware that the motion had been filed. He also alleged that the May 15th order was an absolute nullity because Shamrock failed to request a contradictory hearing on its motion to dismiss, which was a violation of his due process rights. Mr. Brooks argued that-in addition to the lack of service and a contradictory hearing-the order of dismissal was rendered in error because it dismissed all five of the listed defendants from the action on Shamrock's motion, even though Shamrock did not represent the other four defendants. He further argued the order was erroneously rendered because he complied fully with the trial court's February 13, 2015 discovery order and supplied the outstanding discovery to Shamrock, despite Shamrock's assertion that he failed to do so.

In their "Answer to 'Petition for Absolute Nullity under C.C.P. art. 2002,' " Defendants, Shamrock and Walgreens, asserted that Mr. Brooks was present in the Parish where the order was rendered and did not attempt to enjoin its enforcement. Defendants claimed that they were not required to set the motion to dismiss for hearing, and they timely mailed a copy of the motion to dismiss to Mr. Brooks' attorney. They also asserted that Mr. Brooks voluntarily acquiesced in the ruling when he delivered payment of the sanction to Shamrock. Thus, Defendants contended Mr. Brooks could not annul the May 15, 2015 order on any of the grounds enumerated in La. C.C.P. art. 2002.

A trial on Mr. Brooks' petition was held January 30, 2018. In its oral reasons for judgment, the trial court found that a motion to dismiss on a discovery issue required a contradictory hearing, and Mr. Brooks was not served in compliance with La. C.C.P. arts. 1313 or 1314 in case number 717-787. Additionally, because there were two orders for sanctions entered in the amount of $951.30, the trial court found that Mr. Brooks did not acquiesce to the dismissal order by delivering a payment in that amount to Shamrock. The court reasoned that the payment of one sanction did not satisfy the other sanction. In a written judgment dated January 30, 2018, the trial court found that the order rendered on May 15, 2015, in Division "A," should have been annulled in accordance with La. C.C.P. art. 2001, et seq. , vacated the May 15th order, and taxed all court costs against Shamrock and Walgreens. Defendants filed the instant appeal of the January 30th judgment.

ASSIGNMENTS OF ERROR

On appeal, Defendants allege the trial court erred in: 1) granting Mr. Brooks' "Petition for Absolute Nullity under C.C.P. Art. 2002," when the facts alleged in the petition did not implicate one of the exclusive vices of form listed in La. C.C.P. art. 2002 ; 2) concluding that the trial judge in the underlying matter was required to conduct a contradictory hearing before dismissing Mr. Brooks' case; and 3) concluding that Mr. Brooks did not voluntarily acquiesce in the May 15, 2015 order of dismissal by paying the sanctions awarded and subsequently failing to move for a new trial, appeal, or collaterally attack the order for more than 13 months.

LAW AND ANALYSIS

Grounds for absolute nullity and necessity of a contradictory hearing

Defendants allege the trial court erred in finding that Mr. Brooks asserted a valid claim for absolute nullity under La. C.C.P. art 2002 in his petition for nullity. They argue that Mr. Brooks' petition did not contest the order of dismissal on jurisdictional grounds but, instead, contested the order for vice of form. They contend that the failure of service of Shamrock's motion to dismiss on Mr. Brooks was not a vice of form for the May 15, 2015 order of dismissal, as contemplated by La. C.C.P. art. 2002, and the petition failed to state a proper ground for absolute nullity. Instead, Defendants maintain that Mr. Brooks' petition was more closely aligned with an action for relative nullity under La. C.C.P. art. 2004 -which has a one-year prescriptive period-and Mr. Brooks' petition for relative nullity was untimely filed. Defendants further argue that the proper mechanisms for Mr. Brooks to contest the May 15th order were to file a motion for new trial or appeal the order of dismissal because the ruling was allegedly contrary to the law, not file an action for nullity nearly 13 months after the order was properly issued.

Defendants further alleged the trial court erred in concluding Mr. Brooks was entitled to contradictory hearing prior to the dismissal of his lawsuit. They argue that an ex parte dismissal of Mr. Brooks' action without a hearing was proper because Shamrock was clearly entitled to the dismissal. They assert that Mr. Brooks had a repeated pattern of willfully refusing to adequately and timely respond to discovery requests propounded on him, and that the trial judge warned him that the lawsuit would be dismissed if he failed to comply with the third discovery order. Because Mr. Brooks failed to comply with the discovery order within the time permitted, Defendants further contend that the trial judge had the broad discretion in sanctioning Mr. Brooks with dismissal of his lawsuit without conducting another contradictory hearing due to Mr. Brooks' repeated pattern of violating the discovery orders.

In opposition, Mr. Brooks avers the trial court in the instant matter properly vacated the May 15th order of dismissal because it was an absolute nullity. Mr. Brooks asserts that he suffered extreme prejudice and was deprived of the opportunity to oppose false statements, as a result of Shamrock's improper actions of failing to serve its motion and failing to set it for a contradictory hearing. He contends that Shamrock's motion to dismiss required service and a contradictory hearing. Consequently, he maintains that Shamrock's actions amounted to a violation of his constitutional due process and violated multiple Rules of Civil Procedure and Uniform Rules of Court.

Whether a trial court properly granted or denied a petition for nullity is a question of law, and questions of law are reviewed under the de novo standard of review. Nunez v. Superior Hospitality Systems, Inc. , 14-668 (La. App. 5 Cir. 12/23/14), 166 So.3d 1004, 1007. According to La. C.C.P. art. 2002, a final judgment shall be annulled if it is rendered: 1) against an incompetent person not represented as required by law; 2) against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid final default judgment has not been taken; or 3) by a court which does not have jurisdiction over the subject matter of the suit. With the exceptions of when a defendant voluntarily acquiesces in the judgment or was present in the parish at the time of the judgment's execution and did not attempt to enjoin its enforcement, an action to annul a judgment on the grounds listed in La. C.C.P. art. 2002 may be brought at any time. Id. Grounds for nullifying a judgment include insufficient service and lack of due process. Nunez , 166 So.3d at 1008. La. C.C.P. art. 2002 has been interpreted to also provide for a nullity action by a defendant-in-rule. Dixon v. Champagne , 12-308 (La. App. 1 Cir. 2/25/13), 2013 WL 692539 (unpublished opinion).

In the matter before us, Mr. Brooks sought to annul an ex parte order of dismissal in case number 717-787 in favor of Defendants. Shamrock's motion to dismiss was not served on Mr. Brooks or his counsel via certified mail, registered mail, commercial carrier, or by a sheriff. The dismissal of Mr. Brooks' action was imposed by the trial court as a discovery sanction, pursuant to La. C.C.P. art. 1471(A)(3), for failing to comply with the February 13, 2015 order to provide outstanding documents responsive to Shamrock's requests. Prior to the filing of Shamrock's motion, Mr. Brooks provided documentation to Shamrock responsive to the trial court's order.

Pursuant to La. C.C.P. art. 1312,

Except as otherwise provided in the second paragraph hereof, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable.
No service on the adverse party need be made of a motion or petition for an appeal, of a petition for the examination of a judgment debtor, of a petition for the issuance of garnishment interrogatories in the execution of a final judgment, or of any pleading not required by law to be in writing.
(Emphasis added).

Furthermore, La. C.C.P. art. 963 provides, in pertinent part, "If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. The rule to show cause is a contradictory motion." When a motion requires supporting proof to demonstrate noncompliance with an order, an ex parte judgment granting the motion is erroneous. See , Succession of Miller , 432 So.2d 1043, 1046 (La. App. 1 Cir. 1983).

Here, because Mr. Brooks produced documentation responsive to the trial court's order, Shamrock's motion to dismiss required supporting proof that Mr. Brooks did not comply with the February 13th order and a judicial determination of the sufficiency of Mr. Brooks' compliance with the order. Essentially, Shamrock was not clearly entitled to dismissal of Mr. Brooks' action, and the motion to dismiss was required to be served on Mr. Brooks and tried contradictorily. Because Shamrock's motion required the setting of a court date for a contradictory hearing, we find that Shamrock failed to comply with La. C.C.P. art. 1313(C) by only mailing its motion to dismiss to Mr. Brooks' counsel through regular mail.

Furthermore, we find that Shamrock's motion to dismiss failed to request a contradictory hearing be set by the trial court. Since Shamrock's motion was granted ex parte , Shamrock was not required by the trial court to prove its entitlement to dismissal, and Mr. Brooks was deprived of the opportunity to present evidence in defense of the motion. Dismissal of a claim with prejudice is a harsh sanction that should only be imposed in extreme circumstances and only after the litigant has been afforded the opportunity to be heard. Dufour v. Dow Chemical Co. , 12-912 (La. App. 5 Cir. 5/23/13), 119 So.3d 630, 633-34, citing Black v. Comfort , 08-239 (La. App. 5 Cir. 10/28/08), 996 So.2d 1187, 1189.

Accordingly, because Shamrock failed to serve its motion to dismiss and request a contradictory hearing, we find that the motion had insufficient service, and Mr. Brooks was deprived of his due process rights. Therefore, upon de novo review, we find that the ex parte May 15, 2015 order in case number 717-787 was an absolute nullity. Additionally, because an action to annul an absolutely null judgment can be brought at any time, we find that Mr. Brooks' petition for absolute nullity was timely filed and stated a valid ground for an absolute nullity.

Voluntary acquiescence

Defendants alleged the trial court erred in concluding that Mr. Brooks did not voluntarily acquiesce in the May 15, 2015 order of dismissal. They contend the facts of the matter establish Mr. Brooks clearly acquiesced in the May 15th order by paying the sanctions awarded.

Mr. Brooks argues that he made one payment of $951.30, which was payment of the sanctions ordered at the February 2, 2015 hearing on Shamrock's motion to compel. He maintains there is no evidence in the record to support there was an additional $951.30 payment, as ordered in the dismissal on May 15th. As such, he contends that he has in no way acquiesced to the order dismissing his entire case.

As previously mentioned, a defendant who voluntarily acquiesced in a judgment may not annul that judgment on any of the grounds enumerated in La. C.C.P. art. 2002. La. C.C.P. art. 2003.

At the trial on Mr. Brooks' petition for nullity, the trial court found that Mr. Brooks did not acquiesce in the May 15, 2015 judgment. It was orally reasoned that two orders of sanctions were entered by the court in case number 717-787, and the payment of one did not satisfy the other. The trial judge ultimately made a factual finding that the $951.30 payment was not made in reference to the May 15th order. After review of the record, we cannot find that the trial court's finding was manifestly erroneous.

DECREE

For the foregoing reasons, upon de novo review, we find that the ex parte May 15, 2015 order of dismissal in case number 717-787 was an absolute nullity. Accordingly, we affirm the trial court's January 30, 2018 judgment that vacated the May 15, 2015 order. Defendants are assessed the costs of this appeal.

AFFIRMED

      The Clerk of Court for the 24th Judicial District Court did not officially mail notice of dismissal to Mr. Brooks until March 3, 2016, over ten months after the order was signed.

      A copy of the motion is not included in the record before us. Therefore, the date it was filed by Mr. Brooks cannot be ascertained.

      Assignments of error one and two are interrelated and will be jointly discussed.

      La. C.C.P. art. 1471(A)(3) provides that a court may dismiss an action or proceeding or any part thereof for a party's failure to obey an order to provide or permit discovery.


text:
    Shane SALATHE v. The PARISH OF JEFFERSON THROUGH the DEPARTMENT OF SEWERAGE
    NO. 18-CA-447
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
   COUNSEL FOR PLAINTIFF/APPELLANT, SHANE SALATHE, Richard C. Trahant, Jack E. Morris, Metairie

COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, CONSOLIDATED SEWERAGE DISTRICT NO. 1 OF THE PARISH OF JEFFERSON, Guice A. Giambrone, III, Metairie, Jacob K. Best, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, ALTERRA AMERICA INSURANCE COMPANY, Patrick J. McShane, Danica B. Denny, Kathleen P. Rice, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, AMERICAN ALTERNATIVE INSURANCE COMPANY, Tara E. Clement, Jameson M. Taylor, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, AMERISURE MUTUAL INSURANCE COMPANY, Glen E. Mercer, Kourtney T. French, New Orleans

Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.

SUSAN M. CHEHARDY CHIEF JUDGE

On appeal, appellants - Shane Salathe, the Parish of Jefferson, and its insurer, American Alternative Insurance Company - seek review of the trial court's grant of partial summary judgment in favor of Alterra America Insurance Company and Amerisure Insurance Company. For the following reasons, we reverse the partial summary judgment.

Factual and Procedural History

On November 7, 2014, the Consolidated Sewerage District No. 1 of the Parish of Jefferson (hereinafter "the Parish") and Fleming Construction Company, LLC (hereinafter "Fleming") entered a contract for replacement or restoration of existing sewer mains in Jefferson Parish. The "Standard General Conditions of the Construction Contract" (hereinafter "General Conditions Contract") between the Parish and Fleming required Fleming to procure certain insurance policies naming the Parish as an additional insured, including, inter alia , a commercial general liability and umbrella policy and also indemnifying the Parish, except in the instance of the sole negligence of the Parish.

On or about August 26, 2014, Fleming procured from Amerisure the Commercial General Liability policy bearing Policy No. GL 20778990301, (hereinafter "Amerisure policy"), effective from August 1, 2014 through August 1, 2015, with the limit of $1,000,000.00 per occurrence. Further, Fleming procured from Alterra America Insurance Company the Commercial Excess Liability policy bearing Policy No. MAXA3EC50001291 (hereinafter "Alterra policy"), effective from August 1, 2014 through August 1, 2015, with the limit of $5,000,000.00 per occurrence.

On January 8, 2015, the Parish issued a work order to Fleming to "Change all 4 Discharge Base Elbows, rails & all piping in wet wells" at Lift Station E7-6 in Metairie. On February 5, 2015, a Fleming foreman, Shane Salathe, appellant herein, descended a ladder into the wet well to perform his work. As Mr. Salathe ascended the ladder to exit the wet well, he grasped the door to the well to steady himself. When he put pressure on the door, the locking arm on the hatch door failed, allowing the door to slam, which caused Mr. Salathe to fall off of the ladder. Mr. Salathe fell almost thirty feet to the bottom of the well and suffered a traumatic brain injury and paraplegia.

On May 1, 2015, Mr. Salathe filed a petition for damages, naming the Parish as defendant. In his petition, Mr. Salathe contends that the Parish is liable for his injuries through its negligence in, inter alia , failing to maintain the hinge on the door to the well, which failed and caused his injuries. On August 7, 2017, Mr. Salathe filed a "Second Amended Supplemental, Restated and Superseding Petition" adding, as defendants, the Parish's insurer, American Alternative Insurance Company (hereinafter "AAIC"), and Fleming's insurers, Amerisure and Alterra (hereinafter "Fleming's insurers") because of their contractual obligation to defend and indemnify the Parish as a named insured.

On October 16, 2017, Fleming's insurers filed their joint motion for partial summary judgment asking the trial judge to declare that the contractual indemnity and insuring agreements between the Parish and Fleming are "void, null, and unenforceable" under Louisiana law. To their motion, Fleming's insurers attached a copy of Jefferson Parish Resolution No. 113647, including the General Conditions Contract.

On February 2, 2018, Mr. Salathe filed his opposition to Fleming's insurers' motion for partial summary judgment contending, inter alia , that their motion did not raise any issues directed at his action against Fleming's insurers and, thus, the motion is of no moment to his case. On April 10, 2018, the Parish and its insurer, AAIC, filed their opposition to Fleming's insurers' motion for partial summary judgment contending that, even if the indemnity provision is void, the contractual obligation requiring the Parish to be a named insured on Fleming's commercial and excess liability policies is allowed by statute. On April 18, 2018, Fleming's insurers filed a reply memo in support of their motion for partial summary judgment urging a finding that the contractual indemnity provision at issue is void and unenforceable.

On April 25, 2018, the trial court heard argument and granted partial summary judgment in favor of Fleming's insurers "to the extent that the indemnity provision would be interpreted to require indemnification for Jefferson Parish's own negligence and with regard to Jefferson Parish being named as an additional insured under the policy." On May 9, 2018, the trial judge signed a written judgment finding:

the contractual indemnity and insuring agreements between the Parish ... and Fleming ... are void .... Based on the foregoing ruling, all claims asserted by Shane Salathe against Amerisure ... under [CGL] policy number GL 20778990301 ... and against Alterra ... under [CEL] policy number MAXA3EC50001291 ... are dismissed, with prejudice , with each party to bear its own costs. (Emphasis added.)

The trial judge certified this as a partial final judgment. Mr. Salathe, the Parish, and AAIC all seek review of that partial final judgment.

Law and Argument

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court's consideration of whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C. , 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852.

The version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearing in this case provides, "a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966(A)(4). Further, "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." La. C.C.P. art. 966(D)(2). Comment (k) of La. C.C.P. art. 966 explains that "[s]ubparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion."

The burden is on the party seeking summary judgment to establish that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). Specifically, an appellate court must determine whether any genuine issues of material fact exist and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The interpretation of an insurance policy is usually a legal question that can be properly resolved on a motion for summary judgment. Robinson v. Heard , 01-1697 (La. 2/26/02), 809 So.2d 943, 945. However, a summary judgment declaring lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence in support of the motion for summary judgment, under which coverage could be afforded. Davis v. Scottsdale Ins. Co. , 13-255 (La. App. 5 Cir. 10/30/13), 128 So.3d 471, 475, writ denied , 13-2818 (La. 2/14/14), 132 So.3d 967.

Turning now to the matters at hand, Mr. Salathe, in his appellate brief, argues that the trial judge erred in granting Fleming's insurers' motion for partial summary judgment and dismissing his claims against them for insurance coverage under the Amerisure and Alterra policies. Specifically, Mr. Salathe points out that, in their motion, Fleming's insurers did not ask for his claims against them to be dismissed but rather that the "contractual indemnity and insuring obligations between" the Parish and Fleming be deemed void. Mr. Salathe argues that the motion for partial summary judgment did not seek a judgment against him so it cannot adjudicate his claims. We agree.

First, we note that the written judgment signed on May 9, 2018 does not comport with the trial judge's verbal judgment rendered at the hearing on the motion for partial summary judgment. More importantly, as Mr. Salathe points out, La. C.C.P. art. 966(F) provides that summary judgment may be rendered or affirmed "only as to those issues set forth in the motion under consideration by the court at that time."

Our careful review of their motion for partial summary judgment reveals that Fleming's insurers only prayed that the "contractual indemnity and insuring obligations between" the Parish and Fleming be deemed void as a matter of law, not that Mr. Salathe's claims be dismissed. Accordingly, summary judgment cannot be rendered as to Mr. Salathe's claims. See Rand v. City of New Orleans , 14-2506 (La. 6/30/15), 173 So.3d 1148, 1151. This judgment is reversed with respect to Mr. Salathe's claims against Fleming's insurers, Amerisure and Alterra.

Next, the Parish and AAIC argue that the trial court erred in finding that the Parish does not remain as an "additional insured" under the commercial general liability and commercial excess liability policies. For the following reasons, we reverse the trial court's grant of summary judgment in favor of Flaming's insurers.

Under La. C.C.P. art. 966(D)(2), "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." Comment (k) of La. C.C.P. art. 966 explains that "[s]ubparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion." Moreover, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Props. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183.

To the motion for partial summary judgment seeking to void portions of Fleming's contract with the Parish, Fleming's insurers attached only one exhibit: a copy of Jefferson Parish Resolution 113647. Later, Fleming's insurers introduced evidence that this resolution was a true and correct copy of the resolution produced by the Parish in discovery. However, there is no supporting affidavit to authenticate this document. Our own review of the document reveals that it is only a generic blank version of a resolution; Fleming is not mentioned in the document and, thus, it is not a copy of the contract between the parties.

More importantly, the insurers did not produce copies of either of their policies that are the subject of this motion. As summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, it seems intuitive that a copy of the policy must be reviewed in order to interpret it. Here, there were no copies attached to this motion. Accordingly, we find that Fleming's insurers, as movers for partial summary judgment, did not meet their burden of proof that they were entitled to judgment as a matter of law. For the foregoing reasons, we reverse the trial court judgment granting partial summary judgment.

Costs

La. C.C.P. art. 2164 mandates that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. Further, this court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable. La. C.C.P. art. 2164.

In the instant case, the written judgment provided to the trial court by counsel for Fleming's insurers did not accurately reflect the verbal judgment of the trial court at the hearing. This mistake caused Mr. Salathe to incur the cost of appealing the judgment to preserve his claims against Fleming's insurers. Thus, Fleming's insurers shall bear all costs of Mr. Salathe's appeal.

Conclusion

In conclusion, we reverse the trial court's grant of partial summary judgment in favor of Amerisure and Alterra. As they are not the prevailing party, Amerisure and Alterra shall bear all costs of this appeal.

REVERSED .

MOLAISON, J. CONCURS IN THE RESULT.

      At all times pertinent to this litigation, Amerisure also carried workers' compensation insurance for Fleming Construction, Inc., which is not the subject of this appeal. Further, Amerisure carried an Owners and Contractors' Protection ("OCP") Liability Policy issued to Fleming, naming Jefferson Parish as an additional insured, which is at issue in this litigation but not the subject of this appeal.

      Pursuant to Acts 2015, No. 422, § 1, effective January 1, 2016, La. C.C.P. art. 966 was extensively revised.


author: WINDHORST, J.

text:
    Laura Meine DUNCAN v. Scott Furm Mofford DUNCAN
    NO. 18-CA-85
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, LAURA MEINE DUNCAN, D. Douglas Howard, Jr., New Orleans, Meagan L. Miller
    COUNSEL FOR DEFENDANT/APPELLANT, SCOTT FURM MOFFORD DUNCAN, Marc D. Winsberg, Robin Penzato Arnold, Jonathan D. Gamble
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Appellant, Dr. Scott Furm Mofford Duncan, appeals the trial court's March 19, 2018 amended judgment which granted appellee's, Laura Meine Duncan's, exceptions of no cause of action and res judicata , and dismissed appellant's Motion to Reduce Child Support and First Supplemental and Amended Motion to Reduce Child Support with prejudice. For the reasons stated herein, that portion of the March 19, 2018 amended judgment granting Ms. Duncan's exception of res judicata and dismissing Dr. Duncan's Motion to Reduce Child Support and his First Supplemental and Amended Motion to Reduce Child Support is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Procedural History and Facts

The parties were married on June 11, 1994. Three children were born of the marriage: MacKenzie Duncan, born October 14, 1998; Parker Duncan, born July 18, 2000; and Connor Duncan, born June 22, 2003. On March 10, 2014, Ms. Duncan file a petition for divorce and incidental matters, including a request for child support.

On June 6, 2014, the parties entered into a consent judgment concerning custody and child support. The parties agreed to joint custody of the three minor children, with Ms. Duncan designated as the domiciliary parent and reasonable visitation with Dr. Duncan. The consent judgment further provided that:

Scott Furm Mofford Duncan shall pay child support in the amount of $13,000.00 per month, effective March 10, 2014, to be paid in $6,500.00 installments on the 15th and 30th of each month beginning June 15, 2014. The parties agree to opt out of child support being paid through DCFS.
The Court finds in accordance with Stogner v. Stogner, 739 So.2d 762 (La. 1999), that this consent judgment is a deviation from the Child Support Guidelines, and further constitutes a conventional obligation that promotes the children's continued support and upbringing pursuant to the mandate of the Louisiana Supreme Court in Dubroc v. Dubroc, 388 So.2d 377 (La. 1980). The Court has considered the guidelines to review the adequacy of the agreed upon amount, and further finds that said support agreement is in the best interest of the minor children.

On June 22, 2017, Dr. Duncan filed a Motion to Reduce Child Support contending that "the parties' oldest daughter, MacKenzie Duncan, born on October 14, 2000 [sic]," reached the age of majority and graduated from high school. He asserted that this was a material change in circumstance warranting a reduction in his child support obligation. In response, Ms. Duncan filed exceptions of res judicata , no cause of action, vagueness, and ambiguity. In her exception of res judicata , Ms. Duncan alleged that the June 6, 2014 consent judgment, which set an in globo child support amount, could not be reduced because the consent judgment previously adjudicated the effect of their oldest child reaching the age of majority and provided that the in globo amount of child support would remain in effect until the youngest child attained the age of majority. Ms. Duncan's exception of no cause of action alleged that a child reaching the age of majority does not by itself constitute a material change in circumstance warranting a reduction of an in globo child support award. Dr. Duncan filed an opposition to Ms. Duncan's exceptions. On September 12, 2017, the Domestic Commissioner overruled Ms. Duncan's exception of res judicata and sustained Ms. Duncan's exception of no cause of action, giving Dr. Duncan fifteen days to amend his Motion to Reduce Child Support. On September 13, 2017, Dr. Duncan filed a First Supplemental and Amended Motion to Reduce Child Support.

On September 14, 2017, Ms. Duncan filed an objection to the Domestic Commissioner's judgment overruling her exception of res judicata . On September 18, 2017, Dr. Duncan filed an objection to the Domestic Commissioner's judgment sustaining Ms. Duncan's exception of no cause of action as to his original Motion to Reduce Child Support.

On December 5, 2017, the trial court heard both parties' objections. The parties agreed that they were only addressing Dr. Duncan's original Motion to Reduce Child Support, not his First Supplemental and Amending Motion to Reduce Child Support. At the conclusion of the hearing, the trial court sustained the exception of no cause of action and took the exception of res judicata under advisement.

On December 18, 2017, the trial court rendered judgment sustaining Ms. Duncan's exception of res judicata . On December 20, 2017, the trial court rendered another judgment granting Ms. Duncan's exceptions of no cause of action and res judicata . The trial court issued written reasons the same day. On January 4, 2018, Dr. Duncan filed a motion for devolutive appeal. On March 16, 2018, this Court ordered the trial court to amend both December judgments to include appropriate decretal language, i.e. , the dismissal of Dr. Duncan's Motion to Reduce Child Support. On March 19, 2018, the trial court rendered an amended judgment granting Ms. Duncan's exceptions of no cause of action and res judicata, and dismissing Dr. Duncan's Motion to Reduce Child Support and his First Supplemental and Amended Motion to Reduce Child Support.

Discussion

In his first assignment of error, Dr. Duncan contends that the trial court erred in granting Ms. Duncan's exception of res judicata . He asserts that child support awards are an exception to (i.e ., are excluded from) res judicata , citing La. R.S. 13:4232, and as such, child support awards are never final and res judicata is inapplicable. Ms. Duncan contends that the 2014 consent judgment awarding an in globo child support award is a conventional obligation that is final and subject to res judicata . In his third assignment of error, Dr. Duncan also contends that the trial court improperly dismissed his First Supplemental and Amended Motion to Reduce Child Support in the March 19, 2018 amended judgment because it was not before the trial court. Dr. Duncan contends that Ms. Duncan did not file an exception or responsive pleading to his First Supplemental and Amended Motion to Reduce Child Support. Additionally, according to the October 6, 2017 minute entry, the First Supplemental and Amended Motion to Reduce Child Support was continued without date. Therefore, Dr. Duncan argues that it was improper for the trial court to dismiss his First Supplemental and Amended Motion to Reduce Child Support.

Appellate courts review an exception of res judicata using the de novo standard of review. Woodlands Dev. L.L.C. v. Regions Bank, 16-324 (La. App. 5 Cir. 12/21/16), 209 So.3d 335, 340 ; Reed v. Cowboy's W. Store & Trailer Sales, Inc., 16-462 (La. App. 3 Cir. 3/1/17), 214 So.3d 987, 997, writ denied, 17-0559 (La. 5/19/17), 219 So.3d 1108. The doctrine of res judicata is stricti juris , and any doubt concerning application of the principle of res judicata must be resolved against its application. Bourgeois v. A.P. Green Indus., 09-753 (La. App. 5 Cir. 3/23/10), 39 So.3d 654, 657.

La. R.S. 13:4231 provides:

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:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(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.

Therefore, a second action is precluded when all of the following are satisfied: (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 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. Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049, 1053.

R.S. 13:4232 sets forth exceptions to the general rules of res judicata . It provides that in actions for matters incidental to divorce, the judgment has the effect of res judicata only as to causes of action actually adjudicated. R.S. 13:4232 B. Child support is a matter incidental to divorce. La. C.C. art. 105. Because child support is a matter incidental to divorce, when a party raises new allegations pertaining to changes in circumstances affecting a child's best interest, the limitation to the general res judicata rules set forth in La. R.S. 13:4232 B applies. Richardson v. Richardson, 02-2415 (La. App. 1 Cir. 7/9/03), 859 So.2d 81, 85 ; See also, La. C.C. art. 142 ; La. R.S. 9:311. Child support awards are never final and are always subject to modification.

Duhe v. O'Donnell, 15-683 (La. App. 5 Cir. 5/26/16), 193 So.3d 455, 458-459, citing Granger v. Granger, 11-77 (La. App. 3 Cir. 6/15/11), 69 So.3d 666. Regardless of language in a consent agreement to the contrary, child support judgments are always reviewable and subject to modification where a material change in circumstances has been shown. Toups v. Kauffman, 16-248 (La. App. 4 Cir. 11/23/16), 204 So.3d 1044, 1049.

The 2014 consent judgment's language does not specifically preclude Dr. Duncan from requesting a reduction of child support based upon his oldest child reaching the age of majority and graduating high school. Dr. Duncan's new allegations might warrant a reduction of child support under La. C.C. art. 142 or La. R.S. 9:311 and therefore, fall within the exception to (i.e ., are excluded from) res judicata . Because an award of child support is always subject to modification based on a material change in circumstances, regardless of any language in a consent judgment to the contrary, upon de novo review, we find the trial court erred in granting Ms. Duncan's exception of res judicata . Accordingly, the trial court's judgment granting Ms. Duncan's exception of res judicata and its dismissal of Dr. Duncan's Motion to Reduce Child Support and First Supplemental and Amended Motion to Reduce Child Support is reversed, and the matter is remanded for further proceedings. Because we are reversing the trial court's judgment granting Ms. Duncan's exception of res judicata and the dismissal Dr. Duncan's original and supplemental and amended motion to reduce, Dr. Duncan's third assignment of error contending that the trial court erred in dismissing his First Supplemental and Amended Motion to Reduce Child Support is moot.

In his second assignment of error, Dr. Duncan contends that the trial court erred in sustaining Ms. Duncan's exception of no cause of action in response to his original Motion to Reduce Child Support.

Appellate courts review exception of no cause of action de novo because the exception raises a question of law and the lower court's decision is based only on the sufficiency of the petition. Wood v. Wood, 14-405 (La. App. 5 Cir. 11/25/14), 165 So.3d 181, 185. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, and that is done by determining whether the law affords a remedy on the facts alleged in the pleading. Wood, 165 So.3d at 185 ; Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So.2d 114, 118.

Dr. Duncan's First Supplemental and Amending Motion to Reduce Child Support raises the question of whether the exception of no cause of action as to his original Motion to Reduce Child Support is moot and no longer presents a justiciable controversy.

It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. First Nat'l Bank v. Pearl River Fabricators, Inc., 06-2195 (La. 11/16/07), 971 So.2d 302, 307 ; Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance, 9-0601 (La. 10/20/98), 720 So.2d 1186, 1193 ; St. Charles Parish School Bd. v. GAF Corp., 512 So.2d 1165, 1170 (La. 1987).

In order to avoid deciding abstract, hypothetical or moot questions, courts require that cases submitted for adjudication be justiciable, ripe for decision, and not brought prematurely. Louisiana Associated Gen. Contrs. v. State ex rel. Div. of Admin., Office of State Purchasing, 95-2105 (La. 3/8/96), 669 So.2d 1185, 1193 ; First Nat'l Bank, 971 So.2d at 307 ; St. Charles Parish School Bd., 512 So.2d at 1171. An issue is moot when a judgment or decree on that issue has been "deprived of practical significance" or "made abstract or purely academic." Perschall v. State, 96-0322 (La. 7/1/97), 697 So.2d 240 ; Louisiana Associated Gen. Contrs., 669 So.2d at 1193. If the case is moot, then the court has no subject matter jurisdiction. St. Charles Parish School Bd., 512 So.2d at 1171.

Here, Dr. Duncan filed a First Supplemental and Amended Motion to Reduce Child Support and this amended motion was not the subject of Ms. Duncan's exception of no cause of action. Thus, the issue of whether Dr. Duncan's original Motion to Reduce Child Support stated a cause of action is moot.

Furthermore, the wording used in an amended petition may have the effect of superseding and replacing allegations in an original petition. Santiago v. Tulane Univ. Hosp. & Clinic, 12-1095 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 685 ; Williamson v. Hospital Service District No. 1 of Jefferson, 04-0451 (La. 12/1/04), 888 So.2d 782 (Although plaintiff's counsel acknowledged that the original pleadings were abandoned by virtue of amendment, the appellate court should have reviewed plaintiff's petition as supplemented and amended without reference to allegations in original petition that were substituted or abandoned); Coleman's Heirs v. Holmes' Heirs, 147 So.2d 752 (La. App. 3 Cir. 1962) (the court found that where the plaintiffs cause of action in the original petition conflicted with the cause of action in the supplemental petition, and where the supplemental petition did not expressly retain or abandon the prayers in the previous petition, it was presumed that the previous petition was abandoned); Bologna Bros. v. Stephens, 23 So.2d 645, 646-647 (La. App. 2 Cir. 1945) (the court relied on the language, "Plaintiffs supplement and amend their original and supplemental petitions ... to read as follows ," to find that the plaintiffs abandoned their original petition.). Based on the language of Dr. Duncan's First Supplemental and Amended Motion to Reduce Child Support, we conclude that the allegations in his original motion, upon which the exception of no cause of action was granted, had already been superseded, substituted and/or abandoned.

Conclusion

For the reasons stated herein, we conclude that portion of the March 19, 2018 amended judgment granting Ms. Duncan's exception of res judicata and dismissing Dr. Duncan's Motion to Reduce Child Support and his First Supplemental and Amended Motion to Reduce Child Support is reversed, and the matter is remanded for further proceedings consistent with this opinion.

REVERSED IN PART; REMANDED

      La. C.C. art. 142 provides that a child support award "may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary."

      La. R.S. 9:311 provides that a child support award may be modified when "the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award."


author: WICKER, J.

text:
    STATE of Louisiana v. Matthew D. NELLON
    NO. 18-KA-385
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Zachary Popovich
    COUNSEL FOR DEFENDANT/APPELLANT, MATTHEW D. NELLON, Kevin V. Kelly
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   WICKER, J.

In this criminal appeal, defendant, Matthew Nellon, seeks review of the denial of his motion to suppress filed prior to his convictions for attempted possession of heroin in violation of La. R.S. 14:27 and 40:966(C) and possession of oxycodone in violation of La. R.S. 40:967(C) -both arising from defendant's guilty pleas. Because we find that defendant failed to preserve review of any pretrial rulings in accordance with State v. Crosby , 338 So.2d 584 (La. 1976), we decline to consider relator's assignment of error on appeal. We further affirm defendant's convictions but vacate his sentences due to an error patent and remand the matter to the trial court for resentencing.

STATEMENT OF THE CASE

On August 24, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant with one count of possession of heroin in violation of La. R.S. 40:966(C) and one count of possession of oxycodone in violation of La. R.S. 40:967(C). Defendant was arraigned and pled not guilty. On January 19, 2017, defendant filed a motion to suppress evidence, contending that the officers who seized the evidence at issue during a traffic stop did not have reasonable suspicion or probable cause to search his vehicle.

On March 16, 2017, the trial court conducted a hearing on defendant's motion to suppress evidence. The trial judge took the matter under advisement and, on May 9, 2017, issued a judgment denying defendant's motion to suppress. On July 26, 2017, this Court considered and denied defendant's writ application seeking review of the denial of defendant's motion to suppress evidence. State v. Nellon , 17-K-336 (La. App. 5 Cir. 7/26/17) (unpublished writ decision). On November 13, 2017, the Louisiana Supreme Court declined to consider defendant's writ application as it was untimely filed. State v. Nellon , 17-1482 (La. 11/13/17), 229 So.3d 478.

On February 26, 2018, the state amended count one of the bill of information to reflect the amended charge of attempted possession of heroin in violation of La. R.S. 14:27 and 40:966. On the same date, defendant withdrew his not guilty pleas and pled guilty to the amended bill of information. After a colloquy with defendant and the acceptance of his pleas, the trial court sentenced defendant in accordance with the plea agreement to two years at hard labor on each count with the sentences "to run concurrently with each other, and concurrent with any other sentence." This appeal follows.

DISCUSSION

On appeal, defendant does not challenge the validity of his guilty pleas, nor does he challenge the sentences imposed for his attempted possession of heroin and possession of oxycodone convictions. In his sole assignment of error on appeal, defendant seeks review of a prior ruling denying his motion to suppress the evidence.

Generally, when a defendant pleads guilty, he waives all non-jurisdictional defects in the proceedings leading up to the guilty plea. State v. Williams , 18-197 (La. App. 5 Cir. 11/07/18), 259 So.3d 593, 2018 WL 5813263, 2018 La. App. LEXIS 2184. An unqualified guilty plea precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. However, a defendant may preserve for appellate review a prior adverse ruling if, at the time he enters his guilty plea, he expressly reserves his right to appellate review of a specific ruling. State v. Crosby , 338 So.2d 584, 588 (La. 1976) ; State v. King , 99-1348 (La. App. 5 Cir. 5/17/00), 761 So.2d 791, 793.

The record reflects that defendant in this case entered unqualified guilty pleas and, therefore, waived all non-jurisdictional defects in the proceedings which occurred prior to his guilty pleas. The record reflects that during the guilty plea proceedings, defendant did not preserve any rulings for appeal under the holding in State v. Crosby , supra . This Court has consistently held that a defendant's failure to reserve the right to appeal under Crosby precludes appellate review of a prior denial of a motion to suppress. See State v. Nelson , 17-650 (La. App. 5 Cir. 5/23/18), 248 So.3d 683, 688 ; State v. Turner , 10-995 (La. App. 5 Cir. 9/27/11), 75 So.3d 491, 492, writ denied , 11-2379 (La. 4/27/12), 86 So.3d 625 ; State v. Landry , 02-1242 (La. App. 5 Cir. 4/29/03), 845 So.2d 1233, writ denied , 03-1684 (La. 12/19/03), 861 So.2d 556. Accordingly, defendant has not preserved review of the denial of his motion to suppress and we thus decline to consider his assignment of error on appeal.

ERRORS PATENT

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ;

State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). Our review reflects the following error patent:

The record reflects an inconsistency between the transcript and the uniform commitment order (UCO) that renders defendant's sentences indeterminate. The transcript reflects that the trial judge ordered defendant's two sentences to run "concurrent with any other sentence." The UCO, however, more specifically states that the sentences "shall be concurrent with any or every sentence the offender is now serving" and additionally reflects that the sentences are to be served concurrent with "any other sentence the Defendant may be serving [in] Jefferson, 24th JDC." When there is a discrepancy between the minute entry or commitment and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983).

La. C.Cr.P. art. 879 provides that "[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence." We find defendant's sentences to be indeterminate because the trial judge in sentencing defendant, did not specify whether the sentences were ordered to run concurrently with specific sentences imposed or with any other sentences imposed that defendant may have been serving at the time of his sentencing. See State v. Wiley , 16-645 (La. App. 5 Cir. 4/12/17), 216 So.3d 393, 400 ; see also State v. Jones , 13-367 (La. App. 5 Cir. 12/27/13), 131 So.3d 1065, 1070 (wherein this Court recognized this distinction in sentencing, finding the "open-ended" statement that a sentence be served with "any other sentence" is distinguishable from a sentence ordered to be served concurrently with "any sentence [the defendant] may be serving," requiring correction.) Accordingly, we vacate defendant's sentences and remand this matter to the trial court to clarify defendant's sentences. See State v. Wiley , supra .

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED

      Defendant also filed motions to suppress a statement and identification, which were never heard by the trial court. However, defendant did not object to the trial court's failure to hear these outstanding motions before pleading guilty. When the trial court does not hear or rule on a pretrial motion, and the defendant does not object prior to pleading guilty, the motion is considered waived. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      Defendant challenged the officers' decision to detain him while waiting for a canine sniff to be performed, citing Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). This Court, in our July 26, 2017 disposition denying defendant's writ application, found:
      The trial court found that the officers executed a lawful traffic stop and had reasonable suspicion to detain relator further and call for a canine unit based on relator's nervous demeanor, including excessive sweating, refusal to make eye contact with the officers, shifting from side to side, and looking at his vehicle when questioned about contraband in his vehicle. We note that there was no testimony regarding the exact length of time for the stop. Based on our review of the writ application and the evidence presented at the suppression hearing, the trial court did not abuse its discretion in denying relator's motion to suppress.
      We further note, that in the event of a conviction after trial, relator has an adequate remedy on appeal. Accordingly, this writ application is denied.

      Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, when the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that plea bargain is not kept. The record reveals no irregularities in defendant's guilty pleas and, again, defendant does not contend on appeal that his pleas were not entered into freely and voluntarily.