Judgment rendered May 25, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,499-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MARY ELIZABETH MADDEN Plaintiffs-Appellants CHUMLEY, E. GARY CHUMLEY, AND MADDEN PROPERTY MANAGEMENT, LLC
versus
DONNA LACOUR Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 626595
Honorable Ramon Lafitte, Judge
ALAN PESNELL LAWYER, LLC Counsel for Appellants By: W. Alan Pesnell
KEVIN W. HAMMOND, APLC Counsel for Appellee By: Kevin W. Hammond
J. SCHUYLER MARVIN Counsel for Intervenors/Appellees, James D. Madden and Lyda Roberts Madden
Before STEPHENS, ROBINSON, and HUNTER, JJ. HUNTER, J.
The plaintiffs, Mary Madden Chumley, E. Gary Chumley and Madden
Property Management, LLC, appeal a judgment sustaining the exception of
lis pendens of defendant, Donna LaCour. The trial court dismissed the
plaintiffs’ action without prejudice. In sustaining the exception, the trial
court found a ruling on the petition of intervention filed by James and Lyda
Madden was pretermitted as moot. For the following reasons, we affirm.
FACTS
Madden Property Management, LLC (“MPM”), is a Louisiana limited
liability company domiciled in Caddo Parish. Johnye Mae Madden was the
sole owner of MPM until 2002, when her daughter, Mary Madden Chumley
(“Chumley”), became a co-owner. On January 26, 2016, Johnye Mae
Madden (“decedent”) died in Webster Parish. Subsequently, a petition for
probate of a notarial testament was filed and the Succession of the Johnye
Mae Madden estate was opened in Webster Parish. Chumley served as
executrix of the succession until May 2019, when she was removed by the
trial court, which appointed Donna LaCour as executrix. The removal was
affirmed on appeal. Succession of Madden, 53,353 (La. App. 2 Cir. 3/4/20),
293 So. 3d 665.
While serving as executrix, LaCour noted decedent’s interest in MPM
was not listed as an asset of the estate, despite being mentioned in her will.
LaCour then issued a subpoena to Chumley and MPM seeking MPM’s
organizational and banking records. Chumley opposed the subpoena and
objected to the authority of the executrix to obtain those records. Chumley
was eventually ordered to produce the records of MPM and was later
sanctioned for failing to produce the requested records. In denying Chumley’s writ seeking review of the sanctions, a concurring justice of the
Louisiana Supreme Court noted Chumley had been held in contempt for
refusing to produce records “to support her longstanding assertion in these
proceedings that she is entitled to a higher ownership percentage” of MPM.
In re Succession of Madden, 2021-00645 (La. 9/27/21), 324 So. 3d 86.
In October 2020, the plaintiffs, Mary Madden Chumley, E. Gary
Chumley and MPM, filed a petition in the district court of Caddo Parish
against defendant, Donna LaCour, as executrix of decedent’s succession,
seeking a judgment to declare the ownership of MPM. The defendant,
Donna LaCour (“LaCour”), in her capacity as executrix for decedent’s
estate, filed an exception of lis pendens alleging the issue of the ownership
of MPM was already being litigated in the decedent’s succession
proceedings in Webster Parish when plaintiffs filed their petition. The
plaintiffs opposed the exception.
In March 2021, a petition of intervention was filed by James and Lyda
Madden, who alleged exceptions of no right of action and improper venue to
plaintiffs’ lawsuit. In June 2021, defendant filed in the succession
proceeding an amended detailed descriptive list of assets and liabilities
asserting the estate’s interest in MPM.
After a hearing, the trial court sustained the exception of lis pendens,
finding that the ownership of MPM was an issue in the earlier filed
succession and should be determined in that proceeding in Webster Parish.
Based on this ruling, the trial court found the petition and exceptions of the
intervenors were moot. The trial court rendered judgment sustaining the
exception of lis pendens and dismissing plaintiffs’ petition without
prejudice. Plaintiffs appeal the judgment. 2 DISCUSSION
The plaintiffs contend the trial court erred in granting the exception of
lis pendens. Plaintiffs argue the requirements of lis pendens are not present
because no suit was filed in Webster Parish, and the succession does not
involve the same transaction or occurrence, or the same parties, as this
action.
When two or more suits are pending in Louisiana 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.
La. C.C.P. art. 531. A civil action is the demand for the enforcement of a
legal right commenced by the filing of a pleading presenting the demand to a
court of competent jurisdiction. La. C.C.P. art. 421. A pleading includes a
petition, exception, written motion and answer. La. C.C.P. art. 852.
The plaintiffs assert in their brief there was no “suit” pending in
Webster Parish when they filed the present action. However, we note that
although Article 531 uses the term suit, the Louisiana Code of Civil
Procedure refers to a “civil action” as the beginning of a legal proceeding.
Under Article 421, a civil action commences when a petition is filed in a
court of competent jurisdiction. After a civil action commences, it is
pending under Article 531 for the purposes of lis pendens. Sims v. Sims, 247
So. 2d 602 (La. App. 3 Cir. 1971).
The record shows in March 2016, a petition for the probate of a
notarial testament was filed in district court in Webster Parish and the
Succession of Johnye Mae Madden was opened. Thus, when plaintiffs filed
this action, the succession was a civil action, or suit, pending in Webster
3 Parish for the purposes of lis pendens. Consequently, the plaintiffs’
assertion that no other action was pending lacks merit.
Plaintiffs contend the two actions do not involve the same transaction
or occurrence. Defendant argues ownership of MPM was at issue in the
succession before plaintiffs’ action was filed.
The test for deciding whether an exception of lis pendens should be
granted is whether a final judgment in the first suit would be res judicata in
the subsequently filed suit. To determine if the subject matter of the two
lawsuits is the same for res judicata, a court examines the factual basis of the
claim in the prior litigation, regardless of the form of that action. Brooks
Well Servicing, Inc. v. Cudd Pressure Control, Inc., 36,723 (La. App. 2 Cir.
6/27/03), 850 So. 2d 1027.
In this case, the record shows that when the succession executrix
issued subpoenas to obtain business records of MPM to support the estate’s
claim of an ownership interest in the limited liability company, Chumley
opposed the estate’s records request by asserting her ownership of MPM in
Webster Parish. Plaintiffs then filed the present action in Caddo Parish
asserting the same claim of Chumley’s ownership of MPM.
In addition, this court considers the issue of lis pendens in the
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Judgment rendered May 25, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,499-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MARY ELIZABETH MADDEN Plaintiffs-Appellants CHUMLEY, E. GARY CHUMLEY, AND MADDEN PROPERTY MANAGEMENT, LLC
versus
DONNA LACOUR Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 626595
Honorable Ramon Lafitte, Judge
ALAN PESNELL LAWYER, LLC Counsel for Appellants By: W. Alan Pesnell
KEVIN W. HAMMOND, APLC Counsel for Appellee By: Kevin W. Hammond
J. SCHUYLER MARVIN Counsel for Intervenors/Appellees, James D. Madden and Lyda Roberts Madden
Before STEPHENS, ROBINSON, and HUNTER, JJ. HUNTER, J.
The plaintiffs, Mary Madden Chumley, E. Gary Chumley and Madden
Property Management, LLC, appeal a judgment sustaining the exception of
lis pendens of defendant, Donna LaCour. The trial court dismissed the
plaintiffs’ action without prejudice. In sustaining the exception, the trial
court found a ruling on the petition of intervention filed by James and Lyda
Madden was pretermitted as moot. For the following reasons, we affirm.
FACTS
Madden Property Management, LLC (“MPM”), is a Louisiana limited
liability company domiciled in Caddo Parish. Johnye Mae Madden was the
sole owner of MPM until 2002, when her daughter, Mary Madden Chumley
(“Chumley”), became a co-owner. On January 26, 2016, Johnye Mae
Madden (“decedent”) died in Webster Parish. Subsequently, a petition for
probate of a notarial testament was filed and the Succession of the Johnye
Mae Madden estate was opened in Webster Parish. Chumley served as
executrix of the succession until May 2019, when she was removed by the
trial court, which appointed Donna LaCour as executrix. The removal was
affirmed on appeal. Succession of Madden, 53,353 (La. App. 2 Cir. 3/4/20),
293 So. 3d 665.
While serving as executrix, LaCour noted decedent’s interest in MPM
was not listed as an asset of the estate, despite being mentioned in her will.
LaCour then issued a subpoena to Chumley and MPM seeking MPM’s
organizational and banking records. Chumley opposed the subpoena and
objected to the authority of the executrix to obtain those records. Chumley
was eventually ordered to produce the records of MPM and was later
sanctioned for failing to produce the requested records. In denying Chumley’s writ seeking review of the sanctions, a concurring justice of the
Louisiana Supreme Court noted Chumley had been held in contempt for
refusing to produce records “to support her longstanding assertion in these
proceedings that she is entitled to a higher ownership percentage” of MPM.
In re Succession of Madden, 2021-00645 (La. 9/27/21), 324 So. 3d 86.
In October 2020, the plaintiffs, Mary Madden Chumley, E. Gary
Chumley and MPM, filed a petition in the district court of Caddo Parish
against defendant, Donna LaCour, as executrix of decedent’s succession,
seeking a judgment to declare the ownership of MPM. The defendant,
Donna LaCour (“LaCour”), in her capacity as executrix for decedent’s
estate, filed an exception of lis pendens alleging the issue of the ownership
of MPM was already being litigated in the decedent’s succession
proceedings in Webster Parish when plaintiffs filed their petition. The
plaintiffs opposed the exception.
In March 2021, a petition of intervention was filed by James and Lyda
Madden, who alleged exceptions of no right of action and improper venue to
plaintiffs’ lawsuit. In June 2021, defendant filed in the succession
proceeding an amended detailed descriptive list of assets and liabilities
asserting the estate’s interest in MPM.
After a hearing, the trial court sustained the exception of lis pendens,
finding that the ownership of MPM was an issue in the earlier filed
succession and should be determined in that proceeding in Webster Parish.
Based on this ruling, the trial court found the petition and exceptions of the
intervenors were moot. The trial court rendered judgment sustaining the
exception of lis pendens and dismissing plaintiffs’ petition without
prejudice. Plaintiffs appeal the judgment. 2 DISCUSSION
The plaintiffs contend the trial court erred in granting the exception of
lis pendens. Plaintiffs argue the requirements of lis pendens are not present
because no suit was filed in Webster Parish, and the succession does not
involve the same transaction or occurrence, or the same parties, as this
action.
When two or more suits are pending in Louisiana 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.
La. C.C.P. art. 531. A civil action is the demand for the enforcement of a
legal right commenced by the filing of a pleading presenting the demand to a
court of competent jurisdiction. La. C.C.P. art. 421. A pleading includes a
petition, exception, written motion and answer. La. C.C.P. art. 852.
The plaintiffs assert in their brief there was no “suit” pending in
Webster Parish when they filed the present action. However, we note that
although Article 531 uses the term suit, the Louisiana Code of Civil
Procedure refers to a “civil action” as the beginning of a legal proceeding.
Under Article 421, a civil action commences when a petition is filed in a
court of competent jurisdiction. After a civil action commences, it is
pending under Article 531 for the purposes of lis pendens. Sims v. Sims, 247
So. 2d 602 (La. App. 3 Cir. 1971).
The record shows in March 2016, a petition for the probate of a
notarial testament was filed in district court in Webster Parish and the
Succession of Johnye Mae Madden was opened. Thus, when plaintiffs filed
this action, the succession was a civil action, or suit, pending in Webster
3 Parish for the purposes of lis pendens. Consequently, the plaintiffs’
assertion that no other action was pending lacks merit.
Plaintiffs contend the two actions do not involve the same transaction
or occurrence. Defendant argues ownership of MPM was at issue in the
succession before plaintiffs’ action was filed.
The test for deciding whether an exception of lis pendens should be
granted is whether a final judgment in the first suit would be res judicata in
the subsequently filed suit. To determine if the subject matter of the two
lawsuits is the same for res judicata, a court examines the factual basis of the
claim in the prior litigation, regardless of the form of that action. Brooks
Well Servicing, Inc. v. Cudd Pressure Control, Inc., 36,723 (La. App. 2 Cir.
6/27/03), 850 So. 2d 1027.
In this case, the record shows that when the succession executrix
issued subpoenas to obtain business records of MPM to support the estate’s
claim of an ownership interest in the limited liability company, Chumley
opposed the estate’s records request by asserting her ownership of MPM in
Webster Parish. Plaintiffs then filed the present action in Caddo Parish
asserting the same claim of Chumley’s ownership of MPM.
In addition, this court considers the issue of lis pendens in the
procedural and factual climate existing at the time of review. La. Cotton
Ass’n Workers’ Compensation Group Self-Insurance Fund v. Tri-Parish Gin
Co., Inc., 624 So. 2d 461 (La. App. 2 Cir. 1993). We note that prior to the
hearing on the exception of lis pendens, the succession executrix filed an
amended detailed descriptive list of estate assets and an interim report
confirming the estate’s claim of an ownership interest in MPM. Thus, the
trial court could consider this filing of the executrix as an indication the 4 determination of MPM’s ownership is at issue in the succession.
Consequently, based upon this record, the succession proceeding and this
action involve the same occurrence of a dispute concerning ownership of
MPM. Plaintiffs’ contention lacks merit.
Plaintiffs argue in their brief lis pendens is improper because two
parties plaintiff in this suit, Gary Chumley and MPM, are not parties in the
succession. Defendant contends the law does not require the parties to be
the same physical parties.
Under res judicata, a judgment binds parties to the action and
nonparties, who are deemed privies of the parties, in a situation when the
nonparty’s interests were adequately represented by a party in the first action
who is considered the virtual representative of the nonparty because their
interests are so closely aligned. Forum for Equality PAC v. McKeithen,
2004-2551 (La. 1/19/05), 893 So. 2d 738.
In opposing the exception of lis pendens, plaintiffs assert Chumley is
appearing as owner of MPM, a different capacity than in the succession.
However, the record shows Chumley asserted an ownership interest in MPM
as a litigant in the succession proceeding just as she does in the present
action. In addition, we note plaintiffs’ petition alleges Chumley’s
membership interest in MPM is “split” with her husband, E. Gary Chumley,
and that she is the manager of MPM.
Our review of the allegations of plaintiffs’ petition indicates Chumley
and her husband assert they share an interest in MPM and Chumley asserts
she is acting on behalf of MPM as its manager. Thus, the record supports a
finding that as a party to the succession, Chumley adequately represented the
5 interests of the nonparties, Gary Chumley and MPM, as their virtual
representative because their interests are so closely aligned.
Based upon this record, defendant has shown the succession
proceeding and this action involve the same transaction or occurrence
between the same parties in the same capacities. Further, the record
demonstrates plaintiffs have acknowledged a judgment in the succession
proceeding is res judicata in the present action through their amendment of
the petition withdrawing their claim the executrix was not entitled to obtain
certain MPM documents based on the ruling of the district court in Webster
Parish. Consequently, the trial court did not err in sustaining the exception
of lis pendens and dismissing plaintiffs’ petition without prejudice. The
assignment of error lacks merit.
Regarding plaintiffs’ assignment of error as to the trial court’s lack of
a ruling on the petition of intervention, given the dismissal of the action filed
in Caddo Parish, the petition seeking to intervene in the plaintiffs’ lawsuit at
issue in this appeal is moot. The assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, the trial court’s judgment sustaining the
exception of lis pendens is affirmed. Costs of this appeal are assessed to the
appellants, Mary Madden Chumley, E. Gary Chumley and Madden Property
Management, LLC.
AFFIRMED.