Opinion
NO. 2013 CA 1086
02-18-2014
PUMPKIN MOBILE HOME PARK, LLC v. HENRY FRANK HARRISON, PHYLLIS UNDERWOOD HARRISON, ET AL.
Charles J. Fulda Benjamin J. Brouillette Baton Rouge, Louisiana Attorneys for Plaintiff/Appellant, Pumpkin Mobile Home Park, LLC Frank M. Edwards John B. Edwards Bradley A. Stevens Amite, Louisiana Attorneys for Defendant/Appellee, Estate of Henry Frank Harrison; Phyllis Underwood Harrison; Pumpkin Park, Inc. Scott Sledge Hammond, Louisiana Attorney for Defendant/Appellee, Terry Leroy Stewart
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
21st Judicial District Court,
In and for the Parish of Tangipahoa,
State of Louisiana
Trial Court No. 2013-0000122
The Honorable Elizabeth P. Wolfe, Judge Presiding
Charles J. Fulda
Benjamin J. Brouillette
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellant,
Pumpkin Mobile Home Park, LLC
Frank M. Edwards
John B. Edwards
Bradley A. Stevens
Amite, Louisiana
Attorneys for Defendant/Appellee,
Estate of Henry Frank Harrison;
Phyllis Underwood Harrison;
Pumpkin Park, Inc.
Scott Sledge
Hammond, Louisiana
Attorney for Defendant/Appellee,
Terry Leroy Stewart
BEFORE: WHIPPLE, C.J., WELCH, AND GRAIN, JJ.
GRAIN, J.
Plaintiff, Pumpkin Mobile Home Park, LLC, appeals a judgment sustaining a peremptory exception of res judicata and a declinatory exception of lis pendens, and dismissing its suit with prejudice. We amend the judgment and affirm as amended.
FACTS AND PROCEDURAL HISTORY
This is the second suit brought by plaintiff regarding its rights to certain immovable property located in Hammond, Louisiana. In the first suit, docketed as number 2010-0001880 in the 21st Judicial District Court, plaintiff asserted a possessory action and related claims against Henry Frank Harrison, Phyllis Underwood Harrison, and Pumpkin Park, Inc. (the Harrison defendants). The trial court dismissed plaintiffs claims against the Harrison defendants after sustaining an exception of no right of action. This court affirmed. Pumpkin Mobile Home Park, LLC v. Harrison, 11-1293, 2012WL992114 (La. App. 1 Cir. 3/23/12) (unpublished case), writ denied, 12-1266 (La. 9/28/12), 98 So. 3d 838 (Pumpkin I). In the first suit, plaintiff additionally asserted claims against Terry Leroy Stewart, which were unaffected by the judgment in favor of the Harrison defendants.
After the Louisiana Supreme Court denied writs in Pumpkin I, plaintiff instituted this second suit against the Harrison defendants and Stewart regarding its interest in the same property. The trial court sustained a peremptory exception of res judicata asserted by the Harrison defendants and a declinatory exception of lis pendens asserted by Stewart, and dismissed all of plaintiff's claims with prejudice. This appeal followed.
RES JUDICATA
The doctrine of res judicata is codified in Louisiana Revised Statute 13:4231, which 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.
The central inquiry is whether a second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. La. R.S. 13:4231, Comments-1990, comment (a); Matheme v. TWH Holdings, LLC, 12-1878 (La. App. 1 Cir. 12/6/13), ___ So. 3d ___, ___. The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Matheme, ___ So. 3d at ___.
The burden of proving the facts essential to sustaining the exception of res judicata is on the party pleading the exception. Landry v. Town of Livingston Police Dept., 10-0673 (La. App. 1 Cir. 12/22/10), 54 So. 3d 772, 776. If there is any doubt as to its application, the exception of res judicata must be overruled and the second suit maintained. Pierrotti v. Johnson, 11-1317 (La. App. 1 Cir. 3/19/12), 91 So. 3d 1056, 1063. The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Id.
In support of their exception of res judicata, the Harrision defendants submitted documentary evidence including the petition filed in the prior suit, the trial court's judgment, and this court's decision in Pumpkin I. In general, when a party raises the exception of res judicata, the court must examine not only the pleadings but also the entire record in the first suit to determine whether the suit is barred by res judicata. Middleton v. Livingston Timber, Inc., 11-2215 (La. App. 1 Cir. 6/8/12), 94 So. 3d 153, 155. However, in the instant case, the Harrison defendants assert the res judicata effect of a judgment sustaining an exception of no right of action. Thus, the trial court had before it the relevant evidence necessary to decide the exception.
In the first suit, plaintiff asserted a possessory action against the Harrison defendants. A possessory action is "one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed." La. Code Civ. Pro. art. 3655. The required elements of a possessory action are: (1) possession of the immovable property or real right at the time of the disturbance; (2) quiet and uninterrupted possession of the property by the plaintiff and his ancestors in title "for more than a year immediately prior to the disturbance," unless evicted by force or fraud; (3) a disturbance in fact or law; and (4) filing of the possessory action within one year of the disturbance. La. Code Civ. Pro. art. 3658.
In Pumpkin I, this court determined that plaintiff did not fall within the class of individuals entitled to bring a possessory action because plaintiff acquired ownership and possession of the property less than one year prior to the alleged disturbance. Further, plaintiff could not rely on tacking his possession to that of his ancestors in title because the act of sale through which plaintiff claims its interest does not include or describe the disputed property, and tacking generally is not allowed with respect to property beyond one's title. Pumpkin I, 2012WL992114 at p.3 (citing Loutre Land and Timber Company v. Roberts, 10-2327 (La. 5/10/11), 63 So. 3d 120, 125). This court further recognized that plaintiff had no right of action against the Harrison defendants for the additional claims related to their sale of the property, stating:
In its original petition, plaintiff appears to be asserting a cause of action in fraud, in addition to a possessory action, based on its allegations that the Harrisons recorded the November 2009 sale of the disputed property to Stewart despite their knowledge that the parties to the October 2008 sale intended that the disputed property be included in that sale. To the extent that plaintiff does attempt to assert a cause of action in fraud against the Harrisons, we note that it possesses no right to do so. The three basic elements to an action for fraud are; (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to the other party; and (3) the resulting errorPumpkin I, 20I2WL992114 at p.3, n.5 (emphasis added).
must relate to a circumstance substantially influencing the other party's contractual consent. See La. C.C. art. 1953[;] Terrebonne Concrete, LLC v. CEC Enterprises, LLC, 11-0072 (La. App. 1st Cir.8/17/11), 76 So.3d 502, 509, writ denied, 11-2021 (La.11/18/11), 75 So.3d 464. In this case, there was no privity of contact (sic) between plaintiff and the Harrisons, nor does plaintiff allege that the Harrisons made any misrepresentations or omissions of fact to it. If a cause of action exists with respect to either the October 2008 sale or the November 2009 sale, that cause of action lies with the parties thereto, and not with plaintiff.
Plaintiff admits that this second suit again alleges a possessory action against the Harrison defendants. Plaintiff argues that the judgment dismissing its first suit does not bar this second suit because this second suit includes additional factual allegations, including physical possession of the property for more than one year prior to the suit being filed. However, the deficiency recognized in the first suit was not that the suit was premature because plaintiff had not possessed the property for sufficient time before filing suit. Rather, the deficiency was that the plaintiff had possessed the property for less than one year at the time of the alleged disturbance. This second suit asserts the same facts regarding the time plaintiff took possession of the property and the alleged disturbance less than one year later. The issue of whether the plaintiff falls within the class of individuals entitled to bring a possessory action based on those factual allegations was litigated in the first suit. In fact, in Pumpkin I, this court recognized that plaintiff would be unable to assert additional facts that would cure the defect in the first petition because "its failure to meet the sequential requirement of [Louisiana Code of Civil Procedure article] 3658 is not a deficiency that can be remedied by amendment of the petition." Pumpkin I, 2012WL992114 at p.3.
After reviewing the petition filed in this second suit, we conclude that the claims asserted against the Harrison defendants are barred by the res judicata effect of the judgment in the first suit, which determined that plaintiff is not a member of the class of persons entitled to proceed with these claims against the Harrison defendants. The trial court correctly sustained the exception of res judicata and dismissed plaintiff's claims against the Harrison defendants.
In its petition, plaintiff claims it is seeking damages including "a call in warranty against [the Harrison defendants] who guaranteed the title," and for "rescission of the entire sale." Although plaintiff did not specifically assert these causes of action in the first suit, they clearly arise out of the transaction or occurrence that was the subject matter of the first suit. In Pumpkin I, this court recognized "there was no privity of [contract] between plaintiff and the Harrisons [(the Harrison defendants)]" and if a cause of action exists with respect to the Harrison defendants' sale of the property, "that cause of action lies with the parties thereto, and not with plaintiff." Pumpkin I, 2012WL99214 at p.3, n.5. Thus, to the extent plaintiff is asserting new causes of action in this second suit related to the Harrison defendants' sale of the property, we recognize, as we did in Pumpkin I, that plantiff has no right of action.
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LIS PENDENS
Plaintiff additionally contends that the trial court erred in sustaining the exception of lis pendens urged by Stewart.
When two or more suits are pending in Louisiana courts between the same parties in the same capacities and are based on the same transaction or occurrence, the defendant may have all but the first suit dismissed by filing a declinatory exception of lis pendens. La. Code Civ. Pro. arts. 531, 925A(3). The test for lis pendens is whether a final judgment in the first suit would be res judicata in the second suit. Code v. Department of Public Safety and Corrections, 11-1282 (La. App. 1 Cir. 10/24/12), 103 So. 3d 1118, 1125, writ denied, 12-2516 (La. 1/23/13), 105 So. 3d 59. As with the exception of res judicata, the critical inquiry is whether the second suit asserts a cause of action that arises out of the same transaction or occurrence that was the subject matter of the first suit. Code, 103 So. 3d at 1125. See also La. R.S. 13:4231, comments-1990, comment (a); Matherne, ___ So. 3d at ___.
In addition to the claims asserted against the Harrison defendants in this second suit, plaintiff asserts claims against Stewart based on the alleged disturbance of plaintiffs possession of the property. Stewart responded with a declinatory exception of lis pendens, arguing that this suit arises from the same transaction or occurrence as the first suit, which is still pending against him in another division of the trial court. Plaintiff does not dispute that the first suit is pending against Stewart, but contends that the exception of lis pendens should have been denied because this second suit asserts claims against the Harrison defendants, who are no longer parties to the first suit, and includes claims of damages that plaintiff has incurred since the first suit was filed.
After careful review, we find no error in the trial court's judgment sustaining the exception of lis pendens. We have already determined that the claims asserted in the second suit against the Harrison defendants are barred by res judicata. Moreover, the fact that new or additional parties are added to a second suit will not defeat an exception of lis pendens. Dean v. Delacroix Corp., 04-0831 (La. App. 4 Cir. 5/11/05), 904 So. 2d 46, 49. Proper analysis of the exception requires comparison of the demands asserted in each suit against the particular defendant urging the exception of lis pendens. See Capital One, N.A. v. Service Door & Millwork, LLC, 11-0691, 2011WL5420374, p.3 (La. App. 1 Cir. 11/9/11) (unpublished). Plaintiff does not dispute that the first suit is pending between it and Stewart in the same capacities. Further, the second suit asserts a cause of action against Stewart that arises out of the same transaction or occurrence that is the subject matter of the first suit, namely plaintiff's rights to the property and the alleged disturbance thereof Therefore, the trial court properly sustained the exception of lis pendens as to the demands against Stewart.
The trial court erred, however, in dismissing the claims against Stewart with prejudice, rather than without prejudice. The exception of Us pendens is declinatory, meaning that its function is to decline the jurisdiction of the court. La. Code Civ. Pro. arts. 923; 925A(3). It does not defeat the action. La. Code Civ. Pro. art. 923. A dismissal with prejudice has the effect of a final judgment of absolute dismissal after trial. La. Code Civ. Pro. art. 1673, After sustaining the exception of lis pendens, the trial court should have dismissed the claims against Stewart without prejudice. See Capital One, N.A., 2011WL5420374 at p.5; Enterprise Property Grocery, Inc. v. Selma, Inc., 39,012 (La. App. 2 Cir. 10/27/04), 886 So. 2d 614, 617; accord Dupre v. Floyd, 02-0153 (La. App. 1 Cir. 12/20/02), 845 So. 2d 370, 371. Accordingly, the trial court's judgment will be amended to provide for dismissal without prejudice of the claims against Stewart.
CONCLUSION
For these reasons, the trial court's April 17, 2013 judgment is amended to provide that the claims against Terry Leroy Stewart are dismissed without prejudice. As amended, the judgment is affirmed. Costs of this appeal are assessed to Pumpkin Mobile Home Park, LLC.
AFFIRMED AS AMENDED.