Bandaries v. Cassidy

86 So. 3d 125, 11 La.App. 3 Cir. 1267, 2012 WL 716431, 2012 La. App. LEXIS 273
CourtLouisiana Court of Appeal
DecidedMarch 7, 2012
DocketNo. 11-1267
StatusPublished
Cited by7 cases

This text of 86 So. 3d 125 (Bandaries v. Cassidy) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bandaries v. Cassidy, 86 So. 3d 125, 11 La.App. 3 Cir. 1267, 2012 WL 716431, 2012 La. App. LEXIS 273 (La. Ct. App. 2012).

Opinion

GENOVESE, Judge.

| plaintiff, Nathan Madro Bandaries, appeals the trial court’s judgment dismissing his lawsuit against Defendant, Joanna Cas-sidy, pursuant to an exception of lis pen-dens, and ordering Mr. Bandaries to pay $2,500.00 in sanctions to Ms. Cassidy plus costs. Ms. Cassidy has answered the appeal seeking damages for frivolous appeal. For the following reasons, we affirm and render.

FACTS AND PROCEDURAL HISTORY

Mr. Bandaries filed a Petition Seeking Return of Funds Advanced to Defendant to Maintain Her Real Property, in the Natchitoches Parish City Court, naming Ms. Cassidy as a Defendant. Ms. Cassidy responded with an Exception of Lis Pen-dens and Motion for Sanctions wherein she asserted:

That the sums prayed for in the instant suit are already at issue in a case between the same parties herein pending in the Civil District Court for the Parish of Orleans, namely, Madro Bandaries v. Joanna Cassidy, No. 2010-2840, Division “E” c/w Joanna Cassidy v. Madro Bandaries, No. 2010-2781, Division “I.” (hereinafter “CDC suit”). Additionally, the sums prayed for in the instant suit were also prayed for in Bandaries v. Cassidy, 10th JDC No. 83345, Section “B”, (hereinafter “10th JDC suit”), however, that case was dismissed on an Exception of Lis Pendens.

Additionally, in support of her request for sanctions, Ms. Cassidy asserted that “[t]his lawsuit constitutes an abuse of process as it is clearly intended to harass and impoverish Ms. Cassidy” contending that these actions justified the imposition of sanctions against Mr. Bandaries.

Following a hearing on November 10, 2010, the trial court sustained Ms. Cassi-dy’s exception of Us pendens, dismissed the claims asserted against her, and ordered Mr. Bandaries to pay her $2,500.00 in sanctions plus costs.

| ^ASSIGNMENTS OF ERROR

On appeal, Mr. Bandaries asserts that the trial court erred in sustaining Ms. Cassidy’s exception of lis pendens and in imposing sanctions against him. In her Answer to Appeal, Ms. Cassidy seeks an award of damages for frivolous appeal.

LAW AND DISCUSSION

Lis Pendens

The basis for an exception of lis pendens is La.Code Civ.P. art. 531, which provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

[128]*128Thus, three requirements must be satisfied for dismissal of a suit pursuant to an exception of lis pendens. “First, there must be two or more suits pending. Second, the suits must involve the same transaction or occurrence. Third, the suits must involve the same parties in the same capacities.” Travcal Properties, LLC v. Logan, 10-323, p. 4 (La.App. 3 Cir. 10/6/10), 49 So.3d 466, 469.

In the instant matter, Mr. Bandar-ies admits in his brief to this court that he does not dispute the fact that two suits are pending. The two suits are the present action and the CDC suit. We note that at the time the present exception of lis pen-dens was granted, the trial court made reference to the 10th JDC suit. That suit had been dismissed by the Tenth Judicial District Court pursuant to an exception of lis pendens, but was on appeal and not yet definitive.. That judgment has since been affirmed by this court in Bandaries v. Cassidy, 11-161 (La.App. 3 Cir. 6/1/11), 66 So.3d 564. As a reviewing court, we must consider the exception of “lis pen-dens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court judgment.” Am. Nat'l Gen. Ins. Co. v. Howard, 07-1527, p. 4 (La.App. 3 Cir. 4/30/08), 981 So.2d 863, 866 (quoting Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 36,723, p. 6 (La.App. 2 Cir. 6/27/03), 850 So.2d 1027, 1031, writ denied, 03-2606 (La.12/12/03), 860 So.2d 1157). Therefore, when considering the remaining two requirements of La.Code Civ.P. art. 531, we shall do so relative to the instant action and the CDC suit.

Mr. Bandaries argues that “the ‘same transaction or occurrence’ requirement of the law suit at issue and the [CDC] suit are not met[.]” He argues that “the two actions rest entirely on separate and distinct causes of action, thus barring lis pendens.” Mr. Bandaries notes that by virtue of an amendment of his pleadings in the CDC suit, that suit is limited to a claim for legal services rendered, while in this action the claims arise in tort. .

The trial court, in its Reasons for Judgment, stated as follows:

There is no question that both [the CDC suit and the 10th JDC suit] were between the same parties and were based on the same transactions or occurrences as this lawsuit in Natchitoches City Court. Based on the [P]laintiffs allegations in the three lawsuits, Mr. Bandaries began to assist Ms. Cassidy both as a lawyer and a friend both with advice and with money in February, 2009. This dual assistance continued until February or March 2010. The [CDC suit, the 10th JDC suit,] and the instant suit all request a money judgment from the [Defendant for the alleged financial assistance given by [P]laintiff to [D]efendant during the time period described above. The specific sums sought in this City Court lawsuit were also prayed for in the other two.

Both the trial court and this court reached the same conclusion when considering the exception of lis pendens filed in the 10th JDC suit. When addressing the issue of “the same transaction or occurrence” this court opined:

|4The trial court found as follows: “[B]oth lawsuits concern the exact same transaction and occurrence. Both involve the same series of loans by Ban-daries to [ ] Cassidy and Cassidy’s refusal to repay those loans. Both lawsuits seek the same amount and both describe the same circumstances leading up to and following the loans.”
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[129]*129Since the law of res judicata is applicable to determine whether an exception of lis pendens should be granted, we look to La.R.S. 13:4281 to determine what is intended by the terms “transaction or occurrence.” That statute provides, in pertinent part that “[i]f 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.” Comment (b) to the statute states that:

R.S. 13:4231 also changes the law by adopting the principle of issue preclusion. This principle serves the interests of judicial economy by preventing relitigation of the same issue between the same parties.

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Bluebook (online)
86 So. 3d 125, 11 La.App. 3 Cir. 1267, 2012 WL 716431, 2012 La. App. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bandaries-v-cassidy-lactapp-2012.