Opinion
No. 2016–C–0133.
04-08-2016
ON LEONG CHINESE MERCHANTS ASSOCIATION v. AKM ACQUISITIONS, L.L.C., Aaron K. Motwani, and Marcus L. Giusti.
Granted. The portion of the court of appeal's judgment affirming the dismissal of relator's suit with prejudice is vacated and set aside. The case is remanded to the district court, which is instructed to grant relator a reasonable opportunity to amend its petition to remove the objection raised by the exception of no cause of action. See La. C.C.P. art. 934. In all other respects, the writ is denied.
JOHNSON, Chief Justice, dissents.
WEIMER, J., dissents for the reasons assigned by HUGHES, J.HUGHES, J., dissents and assigns reasons.
CRICHTON, J., additionally concurs and assigns reasons.
HUGHES, J., dissenting.
I respectfully dissent. As this court has previously recognized, plaintiff has stated a cause of action for possession. Plaintiff claims its possession has been interrupted physically by having locks changed and by a disturbance in law through a fraudulent Act of Sale filed into the Public Records. Plaintiff has not pleaded ownership. As has been noted in the jurisprudence, litigants in a possessory action must walk a fine line to avoid invoking a petitory action. See Goal Properties, Inc. v. Prestridge, 15–225 (La.App. 3 Cir. 10/7/15), 177 So.3d 126, 129. When the courts recognize "implicitedly" or "in essence" a claim not specifically made, they do the litigants and property law in general a disservice. Therefore I would grant the writ to reverse the exception of no cause of action that was granted and allow the matter to proceed to trial.
Instead, faced with dismissal, this court gives plaintiffs another opportunity to amend its petition, not to plead additional facts to support a cause of action heretofore found lacking on the facts pleaded, but rather to "remove the objection raised by the exception of no cause of action." Presumably this vague phrase used by the majority refers to the allegations that the Act of Sale is fraudulent and the prayer that it be nullified. This will deprive the plaintiff of its argument that its possession has been disturbed in law. If defendants wish to rely on the Act of Sale to prove ownership, they should have the burden of proof. By forcing plaintiff to now assert the petitory action in order to avoid dismissal, the courts have wrongfully shifted the burden of proof on ownership from defendants to plaintiffs.
CRICHTON, J., additionally concurs and assigns reasons.
Although plaintiff attempts to allege a possessory action, its petition also requests that the court declare "the spurious Act of Sale null" and require "defendants to cancel and erase all recordation of the null Act of Sale from the public records." Such relief will necessarily require the court to consider the validity of defendants' title. However, it is clear that the validity of title cannot be raised in the context of a possessory action. La. C.C.P. art. 3661 ; Bd. of Trustees of Louisiana Annual Conference of United Methodist Church, S. Cent. Jurisdiction v. Revelation Knowledge Outreach Ministry, LLC, 13–0814 (La.App. 5 Cir. 5/28/14), 142 So.3d 353.
Based on the current allegations of plaintiff's petition, I agree the portion of the petition relating to the validity of defendants' title is inconsistent with a cause of action for return of possession of the property at issue. However, pursuant to La. C.C.P. art. 934, I believe plaintiff is entitled to an opportunity to cure this defect, either by deleting the allegations relating to title or converting the action to a petitory action.