STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 08-36
ANTHONY JOSEPH CANNATA
VERSUS
RODNEY BONNER, JR., ET UX.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-812 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and J. David Painter, Judges.
AFFIRMED.
David Frank Dwight 1400 Ryan Street Lake Charles, LA 70601 (337) 439-3138 Counsel for Plaintiff/Appellant: Anthony Joseph Cannata Robert Michael McHale, Jr. 631 Kirby Street Lake Charles, LA 70601 (337) 990-0093 Counsel for Defendant/Appellee: Robert Foreman EZELL, JUDGE.
Anthony Cannata appeals a trial court judgment granting a permanent
injunction in favor Robert Foreman which enjoined the Sheriff of Calcasieu Parish
from selling property pursuant to executory process proceedings started by Mr.
Cannata. The trial court granted the permanent injunction finding that the north half
of the property was owned by Mr. Foreman and not Lori and Rodney Bonner who had
executed a mortgage on both the north and south halves of the property in favor of
Mr. Cannata.
FACTS
In 1999, the Bonners filed a petition seeking to enforce an agreement to sell
immovable property in a lease-purchase agreement they had entered into with Mr.
Foreman. On October 15, 2001, a stipulated judgment was entered into ordering Mr.
Foreman to execute a deed conveying the property to the Bonners for the sum of
$13,250. Mr. Foreman refused to comply with the stipulated judgment, so the
Bonners filed a rule for contempt. Judgment was signed on June 7, 2002, declaring
them owners of the property.
On May 11, 2005, Mr. Foreman filed a motion to amend judgment. He sought
to amend the judgment declaring the Bonners the owners of the following described
property:
Commencing at a point 662 feet East of the Northwest Corner of the Northeast quarter of the Northwest quarter of Section 12, Township 8, Range 8, thence South 640 feet, thence East 331.4 feet, thence North 640 feet, thence West 331.4 feet to a point of commencement.
Mr. Foreman claimed that the property description should have declared that
it was the south half of the above described property. He argued that he never
intended to sell the north half and that the Bonners only intended to buy the south
half. Apparently, this mistake began with the lease-purchase agreement and
1 continued to be copied in other documents The trial court denied the motion to
amend as untimely.
Mr. Foreman suspensively appealed the decision to this court. This court
agreed that it was too late to attack to the judgment. However, we found that his
motion to amend was in the nature of an action for reformation of a deed which has
a prescriptive period of ten years pursuant to La.Civ.Code art. 3499. Finding that all
parties were well aware of the erroneous description, this court ordered that the
description of the property be reformed to reflect that only the south half of the
property described was sold to the Bonners. In an unpublished opinion, judgment
was rendered by this court on December 6, 2006.
Between the judgment of the trial court and this court’s judgment, while the
appeal was pending, the Bonners executed a bearer mortgage on July 14, 2006,
covering both the south and north halves of entire property. On February 14, 2007,
two months after judgment of this court, Mr. Cannata filed a petition for executory
process on the property based on the ownership claim because the mortgage provided
that it became due if there was the institution of any legal proceedings to enforce a
mortgage, lien, privilege, or claim against the property.
Mr. Foreman filed a petition for injunction as owner of the north half of the
property. On April 18, 2007, a temporary restraining order was issued restraining the
sheriff from proceeding with the sale set for April 25, 2007. Mr. Cannata filed a
motion to dissolve the temporary restraining order which was granted on April 25,
2007.
A hearing was held on June 25, 2007. The trial court granted a permanent
injunction enjoining the sale of the north half of the property. The trial court ruled
that the sale of the south half of the property could proceed. Judgment was signed on
2 July 18, 2007. Mr. Cannata appealed the judgment.
DISCUSSION
Mr. Cannata argues that the trial court erred in recognizing Mr. Foreman as
owner of the property in a summary proceeding. He further claims that executory
process against the property should be allowed to proceed since there was no
challenge to the validity of the note and mortgage.
Pursuant to Louisiana Code of Civil Procedure Article 1092, a person claiming
ownership of property seized may intervene and seek injunctive relief, as Mr.
Foreman did. At the time of Mr. Foreman’s intervention, ownership had been
determined by this court. The trial court did not decide the issue of ownership as
claimed by Mr. Cannata; it only recognized what had already been determined. As
a matter of fact, it was the decision of this court that prompted Mr. Cannata to seize
the property under the terms of the mortgage.
Mr. Cannata claims that he has a valid note and mortgage over both halves of
the property. Relying on the public records doctrine, he claims that he is an innocent
third party whose rights could not be affected by the pending litigation over
ownership. Mr. Cannata points out that when the note and mortgage were executed,
the Bonners had a trial court judgment which recognized them as owners of both
halves of the property.
We agree with Mr. Cannata that a description of property can be reformed to
reflect the intent of the parties as long as the rights of innocent third parties have not
intervened. W.B. Thompson & Co. v. McNair, 199 La. 918, 7 So.2d 184 (1942);
Marsh Cattle Farms v. Vining, 30,156 (La.App. 2 Cir. 1/23/98), 707 So.2d 111, writ
denied, 98-478 (La. 4/24/98), 717 So.2d 1167; M.R. Bldg. Corp. v. Bayou Utils., Inc.,
25,759 (La.App. 2 Cir. 5/4/94), 637 So.2d 614. However, for the following reasons,
3 we find that Mr. Cannata was not an innocent third party.
The Bonners did receive judgment in the trial court which designated them as
owners of both the north and south halves of the land. Mr. Foreman suspensively
appealed the judgment. Therefore, the appeal suspended the operation of the
judgment. Hollingsworth v. City of Minden, 01-2658 (La. 6/21/02), 828 So.2d 514;
Wetherbee v. Lodwick Lumber Co., Inc., 194 La. 352, 193 So. 671 (1940). We do
note that a lis pendens was not filed pursuant to Louisiana Code of Civil Procedure
Article 3751. Filing a notice of lis pendens would have definitely put any third party
on notice that there was pending litigation affecting title to the property, and the
outcome of the litigation would be binding on the third party. Campbell v. Melton,
01-2578 (La. 5/14/02), 817 So.2d 69.
Regardless, at the hearing it was revealed that counsel for Mr. Cannata had also
represented the Bonners in their dispute as to ownership of the property. The
mortgage and note between the Bonners and Mr. Cannata was also executed in the
same attorney’s office.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 08-36
ANTHONY JOSEPH CANNATA
VERSUS
RODNEY BONNER, JR., ET UX.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-812 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and J. David Painter, Judges.
AFFIRMED.
David Frank Dwight 1400 Ryan Street Lake Charles, LA 70601 (337) 439-3138 Counsel for Plaintiff/Appellant: Anthony Joseph Cannata Robert Michael McHale, Jr. 631 Kirby Street Lake Charles, LA 70601 (337) 990-0093 Counsel for Defendant/Appellee: Robert Foreman EZELL, JUDGE.
Anthony Cannata appeals a trial court judgment granting a permanent
injunction in favor Robert Foreman which enjoined the Sheriff of Calcasieu Parish
from selling property pursuant to executory process proceedings started by Mr.
Cannata. The trial court granted the permanent injunction finding that the north half
of the property was owned by Mr. Foreman and not Lori and Rodney Bonner who had
executed a mortgage on both the north and south halves of the property in favor of
Mr. Cannata.
FACTS
In 1999, the Bonners filed a petition seeking to enforce an agreement to sell
immovable property in a lease-purchase agreement they had entered into with Mr.
Foreman. On October 15, 2001, a stipulated judgment was entered into ordering Mr.
Foreman to execute a deed conveying the property to the Bonners for the sum of
$13,250. Mr. Foreman refused to comply with the stipulated judgment, so the
Bonners filed a rule for contempt. Judgment was signed on June 7, 2002, declaring
them owners of the property.
On May 11, 2005, Mr. Foreman filed a motion to amend judgment. He sought
to amend the judgment declaring the Bonners the owners of the following described
property:
Commencing at a point 662 feet East of the Northwest Corner of the Northeast quarter of the Northwest quarter of Section 12, Township 8, Range 8, thence South 640 feet, thence East 331.4 feet, thence North 640 feet, thence West 331.4 feet to a point of commencement.
Mr. Foreman claimed that the property description should have declared that
it was the south half of the above described property. He argued that he never
intended to sell the north half and that the Bonners only intended to buy the south
half. Apparently, this mistake began with the lease-purchase agreement and
1 continued to be copied in other documents The trial court denied the motion to
amend as untimely.
Mr. Foreman suspensively appealed the decision to this court. This court
agreed that it was too late to attack to the judgment. However, we found that his
motion to amend was in the nature of an action for reformation of a deed which has
a prescriptive period of ten years pursuant to La.Civ.Code art. 3499. Finding that all
parties were well aware of the erroneous description, this court ordered that the
description of the property be reformed to reflect that only the south half of the
property described was sold to the Bonners. In an unpublished opinion, judgment
was rendered by this court on December 6, 2006.
Between the judgment of the trial court and this court’s judgment, while the
appeal was pending, the Bonners executed a bearer mortgage on July 14, 2006,
covering both the south and north halves of entire property. On February 14, 2007,
two months after judgment of this court, Mr. Cannata filed a petition for executory
process on the property based on the ownership claim because the mortgage provided
that it became due if there was the institution of any legal proceedings to enforce a
mortgage, lien, privilege, or claim against the property.
Mr. Foreman filed a petition for injunction as owner of the north half of the
property. On April 18, 2007, a temporary restraining order was issued restraining the
sheriff from proceeding with the sale set for April 25, 2007. Mr. Cannata filed a
motion to dissolve the temporary restraining order which was granted on April 25,
2007.
A hearing was held on June 25, 2007. The trial court granted a permanent
injunction enjoining the sale of the north half of the property. The trial court ruled
that the sale of the south half of the property could proceed. Judgment was signed on
2 July 18, 2007. Mr. Cannata appealed the judgment.
DISCUSSION
Mr. Cannata argues that the trial court erred in recognizing Mr. Foreman as
owner of the property in a summary proceeding. He further claims that executory
process against the property should be allowed to proceed since there was no
challenge to the validity of the note and mortgage.
Pursuant to Louisiana Code of Civil Procedure Article 1092, a person claiming
ownership of property seized may intervene and seek injunctive relief, as Mr.
Foreman did. At the time of Mr. Foreman’s intervention, ownership had been
determined by this court. The trial court did not decide the issue of ownership as
claimed by Mr. Cannata; it only recognized what had already been determined. As
a matter of fact, it was the decision of this court that prompted Mr. Cannata to seize
the property under the terms of the mortgage.
Mr. Cannata claims that he has a valid note and mortgage over both halves of
the property. Relying on the public records doctrine, he claims that he is an innocent
third party whose rights could not be affected by the pending litigation over
ownership. Mr. Cannata points out that when the note and mortgage were executed,
the Bonners had a trial court judgment which recognized them as owners of both
halves of the property.
We agree with Mr. Cannata that a description of property can be reformed to
reflect the intent of the parties as long as the rights of innocent third parties have not
intervened. W.B. Thompson & Co. v. McNair, 199 La. 918, 7 So.2d 184 (1942);
Marsh Cattle Farms v. Vining, 30,156 (La.App. 2 Cir. 1/23/98), 707 So.2d 111, writ
denied, 98-478 (La. 4/24/98), 717 So.2d 1167; M.R. Bldg. Corp. v. Bayou Utils., Inc.,
25,759 (La.App. 2 Cir. 5/4/94), 637 So.2d 614. However, for the following reasons,
3 we find that Mr. Cannata was not an innocent third party.
The Bonners did receive judgment in the trial court which designated them as
owners of both the north and south halves of the land. Mr. Foreman suspensively
appealed the judgment. Therefore, the appeal suspended the operation of the
judgment. Hollingsworth v. City of Minden, 01-2658 (La. 6/21/02), 828 So.2d 514;
Wetherbee v. Lodwick Lumber Co., Inc., 194 La. 352, 193 So. 671 (1940). We do
note that a lis pendens was not filed pursuant to Louisiana Code of Civil Procedure
Article 3751. Filing a notice of lis pendens would have definitely put any third party
on notice that there was pending litigation affecting title to the property, and the
outcome of the litigation would be binding on the third party. Campbell v. Melton,
01-2578 (La. 5/14/02), 817 So.2d 69.
Regardless, at the hearing it was revealed that counsel for Mr. Cannata had also
represented the Bonners in their dispute as to ownership of the property. The
mortgage and note between the Bonners and Mr. Cannata was also executed in the
same attorney’s office.
Notice or knowledge of an agent, while the agency or relationship exists and
while the agent is acting within the scope of his authority, is notice and knowledge
to his principal. Marpco, Inc. v. South States Pipe & Supply, 377 So.2d 525 (La.App.
3 Cir. 1979). Therefore, Mr. Cannata’s counsel’s knowledge of the pending lawsuit
affecting ownership of the property constituted actual knowledge on Mr. Cannata’s
behalf when Mr. Cannata entered into the mortgage at the attorney’s office. Id.;
Smart Document Solutions, LLC v. Miller, 07-670 (La.App. 3 Cir. 10/31/07), 970
So.2d 49, writ denied, 08-210 (La. 3/28/08), ____ So.2d ____; Bell v. Demax Mgt.
Inc., 01-692 (La.App. 4 Cir. 7/24/02), 824 So.2d 490. A lis pendens is not necessary
when the third person has actual notice of the pending litigation. Richardson Oil Co.
4 v. Herndon, 157 La. 211, 102 So. 310 (1924).
We find that the trial court was correct in granting a permanent injunction. Mr.
Foreman was declared owner of the north half of the property by this court in its
previous decision. Mr. Cannata had knowledge that there was litigation affecting title
to this property when he entered into the note and mortgage with the Bonners.
Therefore, Mr. Foreman was entitled to a permanent injunction to prevent the sale of
the north half of the property he owned.
The judgment of the trial court is affirmed. Costs of this appeal are assessed
to Anthony Cannata.