Liberty Bank & Trust Co. v. Booth

553 So. 2d 1055, 1989 La. App. LEXIS 2391, 1989 WL 144474

• Court: Louisiana Court of Appeal
• Decided: November 30, 1989
• Docket: No. 89-C-1036
• Status: Published

Opinions

SCHOTT, Chief Judge.

On the application of Liberty Bank and Trust Company, Relator, we grant certiora-ri in order to consider the validity of the judgment of the trial court sustaining an exception of lis pendens filed by respondents, Dr. and Mrs. Dennis J. Booth.

In March, 1988 respondent, Dr. Booth, and others filed a complaint against relator and others in the United States District Court seeking damages for securities fraud. Respondent alleged that relator induced him to invest $100,000 individually and $200,000 from pension trusts under his administration and prayed for judgment in these amounts. In November, 1988 respondent, Dr. Booth, by supplemental and amending complaint sought to have two promissory notes for $100,000 each dated October 22, 1987 declared null and void. He alleged that these notes were given to relator in connection with the fraudulent scheme.

On August 12, 1988 relator filed suit against respondents on the two $100,000 notes in the Civil District Court for the Parish of Orleans. Respondents filed an exception of lis pendens on the basis of the pending suit in the federal court. The trial court sustained the exception and specifically declined to follow Bank of New Orleans & Trust Co. v. Seavey, 374 So.2d 696 (La.App. 4th Cir.1979); writ granted 377 So.2d 118; reversed on other grounds 383 So.2d 354; on remand to court of appeal 399 So.2d 642; writ denied 401 So.2d 1196. The Seavey case is indistinguishable from the instant one and would dictate a reversal of the judgment of the trial court. However, for the reasons assigned by Judge (now Justice) Lemmon in his dissent to the original opinion of this court and Judge Redmann in his dissent to the opinion on remand in Seavey we overrule the Seavey case.¹

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

WILLIAMS, J., dissents with reasons.

1 . In accordance with the internal rules of the court the proposal to overrule the Seavey case was referred to the court en banc and by a majority note, Ciaccio, J., recused, the court en banc approved this proposal.