STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CW 17-75
VERNON L. RAYNER
VERSUS
THE EVANGELINE BANK AND TRUST COMPANY
**********
ON APPLICATION FOR SUPERVISORY WRITS FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 256,986 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
SHANNON J. GREMILLION
JUDGE
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
WRIT DENIED. George Carnal Gaiennie, III Attorney at Law 1920 Jackson St. Alexandria, LA 71301 (318) 767-1114 COUNSEL FOR PLAINTIFF/RESPONDENT: Vernon L. Rayner
Thomas D. Davenport, Jr. The Davenport Firm 602 Murray Street Alexandria, LA 71301 (318) 445-9696 COUNSEL FOR DEFENDANT/APPLICANT: The Evangeline Bank & Trust Company
2 GREMILLION, Shannon, Judge.
The defendant-relator, Evangeline Bank & Trust Company (the Bank), seeks
supervisory writs from the judgment of the Ninth Judicial District Court, which
denied exceptions of no cause of action, prematurity, lack of standing, ripeness,
lack of justiciable controversy, lack of subject matter jurisdiction, and lis pendens.
For the following reasons, we find no error in the trial court’s ruling and deny the
writ.
STATEMENT OF THE CASE
The instant case arises from a donation of immovable property from Vernon
Rayner (Rayner), plaintiff-respondent, to his daughter, Christine Rayner O’Quinn
(O’Quinn). Rayner reserved the usufruct for his lifetime. In 2009 and 2014,
O’Quinn obtained four mortgages from the Bank, encumbering the property at
issue herein. O’Quinn defaulted on the mortgages in the fall of 2015, and the Bank
subsequently filed a petition for executory process against O’Quinn. Rayner
intervened therein, and O’Quinn filed for bankruptcy, resulting in a stay of the
executory proceeding before the immovable property was sold to satisfy the debt.
Rayner instituted a second proceeding in district court, seeking damages
against the Bank for the wrongful seizure of his property and usufruct. Along with
its answer to Rayner’s petition, the Bank filed exceptions of prematurity, no cause
of action, lack of standing, ripeness, lack of justiciable controversy, lack of subject
matter jurisdiction, lis pendens, and vagueness or ambiguity. All exceptions were
denied, save for the exception of vagueness or ambiguity, which was granted.
Though the Bank actually complains of seven denied exceptions, as a
practical matter, it offers only two arguments as to why Rayner’s suit against it
may not proceed: 1) Nothing has yet occurred for which our civil law provides a remedy, inasmuch as proceedings were halted before the subject property was
seized; and 2) Two other matters were instituted before this suit, which prohibit, or
at least forestall, Rayner from moving forward.
ARGUMENT ONE: PROPERTY HAS NOT BEEN SEIZED
(Exceptions of No Cause of Action, Lack of Standing, Ripeness,
and Lack of a Justiciable Controversy)
The Bank’s briefing to this court states in pertinent part that it “takes issue”
with Rayner’s claims because the property has “not been seized/or sold,” Rayner
“has not been dispossessed of his usufruct” over the property, and the Bank has
“not been placed in possession” of the property. Thus, argues the Bank, Rayner
has no cause of action, his claim is not ripe, he lacks standing, and a justiciable
controversy does not exist. We disagree.
The Bank argues that there is no cause of action for wrongful seizure,
because, while it initiated foreclosure proceedings, it had not yet seized the
property. In support of its argument, the Bank cites Dixie Sav. and Loan Ass’n v.
Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, 921, writ denied, 99-2867
(La. 12/10/99), 751 So.2d 855, wherein the court noted that “[d]amages for
wrongful seizure are allowed after an illegal seizure.”
In an exception of no cause of action, there can be no consideration of
evidence; rather, at the hearing on the exception, the allegations of the petition are
presumed to be true. La.Civ.Code art. 931. Rayner’s petition asserts that the bank
wrongfully “obtained an order for executory process which ordered issuance of a
writ of seizure and sale directing the sheriff to seize and sell” the property.
Consequently, Rayner argues the Bank and the sheriff “wrongfully seized his
property.” Rayner then goes on to allege that numerous renters have received
2 notices from the sheriff indicating that a judge ordered that they be evicted. He
further claims that he lost rental income as a result of the Bank’s actions.
While we do not address the merits of this claim, we presume them to be
true for the purpose of weighing the merits of the exception of no cause of action
before us. Accordingly, we find that Rayner has clearly stated a cause of action.
The Bank’s reliance on Dixie Sav. and Loan Ass’n v. Pitre is misplaced. The trial
court properly denied the Bank’s exception of no cause of action.
At the hearing on the exceptions, counsel for the Bank advised the trial court
that many of the exceptions overlapped. Thus, for the same reasons we find the
matter ripe, we find that Rayner has standing, and the existence of a justiciable
controversy.
ARGUMENT TWO: PREVIOUSLY-FILED LITIGATION
PROHIBITS OR FORESTALLS THIS LAWSUIT
(Exceptions of Prematurity, Subject Matter Jurisdiction, and Lis Pendens)
In dealing with these exceptions the trial court looked at three separate
actions: 1) O’Quinn’s proceedings instituted in federal bankruptcy court; 2) The
Bank’s suit seeking the institution of executory process against O’Quinn, in which
Rayner has intervened and which has been stayed by virtue of the bankruptcy; and
3) This state court matter filed by Rayner against the Bank.
With regard to subject matter jurisdiction and prematurity, there is no
indication in the record to support the Bank’s claim that Rayner intervened in the
bankruptcy proceeding. Further, Rayner claims that the bankruptcy proceeding has
been dismissed. There is no evidence of that here, either. Even if such evidence
were to be found within this writ record, it would likely only constrain or limit the
Bank’s claims against O’Quinn, since she is the one who filed for bankruptcy.
3 Nevertheless, we can state only that the record before us provides nothing
establishing any trial court error as to its denial of the Bank’s exceptions of lack of
subject matter jurisdiction and prematurity.
That leaves us to consider the Bank’s exception of lis pendens. We note first
that Rayner did file a motion to intervene in the executory process suit. The trial
court issued an order that the intervention be allowed and that Rayner’s petition for
intervention be filed. However, that same order set a hearing on Rayner’s claims,
but a hearing was never held because the matter was stayed based on the pendency
of the bankruptcy. Thus, were we to maintain the Bank’s exception of lis pendens,
we would be effectively staying Rayner from pursuing his claims against the Bank,
based on a stay arising out of the bankruptcy proceedings instituted by O’Quinn.
We find this result mitigates against applying this preclusion doctrine, and
exemplifies why our law states that lis pendens is stricti juris and “any doubt
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CW 17-75
VERNON L. RAYNER
VERSUS
THE EVANGELINE BANK AND TRUST COMPANY
**********
ON APPLICATION FOR SUPERVISORY WRITS FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 256,986 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
SHANNON J. GREMILLION
JUDGE
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
WRIT DENIED. George Carnal Gaiennie, III Attorney at Law 1920 Jackson St. Alexandria, LA 71301 (318) 767-1114 COUNSEL FOR PLAINTIFF/RESPONDENT: Vernon L. Rayner
Thomas D. Davenport, Jr. The Davenport Firm 602 Murray Street Alexandria, LA 71301 (318) 445-9696 COUNSEL FOR DEFENDANT/APPLICANT: The Evangeline Bank & Trust Company
2 GREMILLION, Shannon, Judge.
The defendant-relator, Evangeline Bank & Trust Company (the Bank), seeks
supervisory writs from the judgment of the Ninth Judicial District Court, which
denied exceptions of no cause of action, prematurity, lack of standing, ripeness,
lack of justiciable controversy, lack of subject matter jurisdiction, and lis pendens.
For the following reasons, we find no error in the trial court’s ruling and deny the
writ.
STATEMENT OF THE CASE
The instant case arises from a donation of immovable property from Vernon
Rayner (Rayner), plaintiff-respondent, to his daughter, Christine Rayner O’Quinn
(O’Quinn). Rayner reserved the usufruct for his lifetime. In 2009 and 2014,
O’Quinn obtained four mortgages from the Bank, encumbering the property at
issue herein. O’Quinn defaulted on the mortgages in the fall of 2015, and the Bank
subsequently filed a petition for executory process against O’Quinn. Rayner
intervened therein, and O’Quinn filed for bankruptcy, resulting in a stay of the
executory proceeding before the immovable property was sold to satisfy the debt.
Rayner instituted a second proceeding in district court, seeking damages
against the Bank for the wrongful seizure of his property and usufruct. Along with
its answer to Rayner’s petition, the Bank filed exceptions of prematurity, no cause
of action, lack of standing, ripeness, lack of justiciable controversy, lack of subject
matter jurisdiction, lis pendens, and vagueness or ambiguity. All exceptions were
denied, save for the exception of vagueness or ambiguity, which was granted.
Though the Bank actually complains of seven denied exceptions, as a
practical matter, it offers only two arguments as to why Rayner’s suit against it
may not proceed: 1) Nothing has yet occurred for which our civil law provides a remedy, inasmuch as proceedings were halted before the subject property was
seized; and 2) Two other matters were instituted before this suit, which prohibit, or
at least forestall, Rayner from moving forward.
ARGUMENT ONE: PROPERTY HAS NOT BEEN SEIZED
(Exceptions of No Cause of Action, Lack of Standing, Ripeness,
and Lack of a Justiciable Controversy)
The Bank’s briefing to this court states in pertinent part that it “takes issue”
with Rayner’s claims because the property has “not been seized/or sold,” Rayner
“has not been dispossessed of his usufruct” over the property, and the Bank has
“not been placed in possession” of the property. Thus, argues the Bank, Rayner
has no cause of action, his claim is not ripe, he lacks standing, and a justiciable
controversy does not exist. We disagree.
The Bank argues that there is no cause of action for wrongful seizure,
because, while it initiated foreclosure proceedings, it had not yet seized the
property. In support of its argument, the Bank cites Dixie Sav. and Loan Ass’n v.
Pitre, 99-154 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, 921, writ denied, 99-2867
(La. 12/10/99), 751 So.2d 855, wherein the court noted that “[d]amages for
wrongful seizure are allowed after an illegal seizure.”
In an exception of no cause of action, there can be no consideration of
evidence; rather, at the hearing on the exception, the allegations of the petition are
presumed to be true. La.Civ.Code art. 931. Rayner’s petition asserts that the bank
wrongfully “obtained an order for executory process which ordered issuance of a
writ of seizure and sale directing the sheriff to seize and sell” the property.
Consequently, Rayner argues the Bank and the sheriff “wrongfully seized his
property.” Rayner then goes on to allege that numerous renters have received
2 notices from the sheriff indicating that a judge ordered that they be evicted. He
further claims that he lost rental income as a result of the Bank’s actions.
While we do not address the merits of this claim, we presume them to be
true for the purpose of weighing the merits of the exception of no cause of action
before us. Accordingly, we find that Rayner has clearly stated a cause of action.
The Bank’s reliance on Dixie Sav. and Loan Ass’n v. Pitre is misplaced. The trial
court properly denied the Bank’s exception of no cause of action.
At the hearing on the exceptions, counsel for the Bank advised the trial court
that many of the exceptions overlapped. Thus, for the same reasons we find the
matter ripe, we find that Rayner has standing, and the existence of a justiciable
controversy.
ARGUMENT TWO: PREVIOUSLY-FILED LITIGATION
PROHIBITS OR FORESTALLS THIS LAWSUIT
(Exceptions of Prematurity, Subject Matter Jurisdiction, and Lis Pendens)
In dealing with these exceptions the trial court looked at three separate
actions: 1) O’Quinn’s proceedings instituted in federal bankruptcy court; 2) The
Bank’s suit seeking the institution of executory process against O’Quinn, in which
Rayner has intervened and which has been stayed by virtue of the bankruptcy; and
3) This state court matter filed by Rayner against the Bank.
With regard to subject matter jurisdiction and prematurity, there is no
indication in the record to support the Bank’s claim that Rayner intervened in the
bankruptcy proceeding. Further, Rayner claims that the bankruptcy proceeding has
been dismissed. There is no evidence of that here, either. Even if such evidence
were to be found within this writ record, it would likely only constrain or limit the
Bank’s claims against O’Quinn, since she is the one who filed for bankruptcy.
3 Nevertheless, we can state only that the record before us provides nothing
establishing any trial court error as to its denial of the Bank’s exceptions of lack of
subject matter jurisdiction and prematurity.
That leaves us to consider the Bank’s exception of lis pendens. We note first
that Rayner did file a motion to intervene in the executory process suit. The trial
court issued an order that the intervention be allowed and that Rayner’s petition for
intervention be filed. However, that same order set a hearing on Rayner’s claims,
but a hearing was never held because the matter was stayed based on the pendency
of the bankruptcy. Thus, were we to maintain the Bank’s exception of lis pendens,
we would be effectively staying Rayner from pursuing his claims against the Bank,
based on a stay arising out of the bankruptcy proceedings instituted by O’Quinn.
We find this result mitigates against applying this preclusion doctrine, and
exemplifies why our law states that lis pendens is stricti juris and “any doubt
concerning the application of lis pendens must be resolved against its application.”
Robbins v. Delta Wire Rope, Inc., 15-1757, p. 7 (La.App. 1 Cir. 6/3/16), 196 So.3d
700, 705.
That having been stated, we note that both suits involve the same parties in
the same capacities (though O’Quinn is not a party to this matter), both suits
involve the same transaction or occurrence, and both suits are pending (though the
pendency of one of them has been affected by a stay order). Indeed, counsel for
the Bank is correct in asserting that portions of Rayner’s petitions in both suits are
“nearly identical.”
Rayner’s intervention, though, seeks only to have his usufruct of the
property “released” from the threat of seizure and sale. It seeks no damages. In
fact, it expressly reserves Rayner’s rights to seek damages in another setting. In
4 other words, the intervention was an immediate and limited response necessitated
by the exigencies of the Bank’s move for executory process. The present petition
is not limited to a swiftly-filed counter-move designed merely to prevent the
immediate loss of Rayner’s rights to the property. Rather, it is a full-blown lawsuit.
It is neither summary nor executory. It seeks precisely articulated damages that are
not set out at all in the intervention. We, therefore, agree with the trial court’s
assessment that these two matters are “different beasts.”
“[T]he standard of review in the lis pendens context is whether the trial court
abused its sound discretion.” George v. Dugas, 15-939, p. 5 (La.App. 3 Cir.
3/16/16), 188 So.3d 376, 380, writ denied as improvidently granted, 16-710 (La.
11/07/16), 203 So.3d 1043. Given the above discussion, and the notion that the lis
pendens article states only that the trial court “may stay all proceedings in the
second suit,” we can find no abuse of discretion in the trial court’s denial of the
Bank’s exception of lis pendens. La.Code Civ.P. art. 532 (emphasis added).
CONCLUSION
We find no error in the trial court’s ruling denying defendant-relator,
Evangeline Bank & Trust Company’s, exceptions of no cause of action,
prematurity, lack of standing, ripeness, lack of justiciable controversy, lack of
subject matter jurisdiction, and lis pendens. Defendant-relator’s writ to this court
is denied.
WRIT DENIED.