Williams v. Williams

886 So. 2d 478, 2003 La.App. 1 Cir. 2089, 2004 La. App. LEXIS 1629, 2004 WL 1418401
CourtLouisiana Court of Appeal
DecidedJune 25, 2004
DocketNo. 2003 CA 2089
StatusPublished
Cited by3 cases

This text of 886 So. 2d 478 (Williams v. Williams) 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
Williams v. Williams, 886 So. 2d 478, 2003 La.App. 1 Cir. 2089, 2004 La. App. LEXIS 1629, 2004 WL 1418401 (La. Ct. App. 2004).

Opinion

| .WHIPPLE, J.

In this appeal, plaintiff challenges the judgment of the trial court maintaining the exception of no cause of action filed by one of the defendants herein and declaring that the defendant was the owner of certain immovable property at issue. Specifically, the trial court ruled that plaintiffs notice of lis pendens, which was filed in the conveyance records rather than in the mortgage records, was ineffective as to defendant, a third party purchaser. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 25, 1996, plaintiff, Agnes Williams, filed suit against defendant, Michael L. Williams, seeking to have an alleged donation by Agnes to Michael of certain immovable property in Iberville Parish set aside on the grounds of ingratitude. Attached to the petition was a notice of lis pendens, bearing a stamp evidencing recordation in the conveyance records of Iberville Parish.

Thereafter, on May 80, 1997, Michael sold the property at issue to a third party. On April 20, 2000, Michael then filed a peremptory exception raising the objection of failure to join a indispensable party, ie., the party to whom he sold the property. The exception was ultimately denied, and, following trial on the merits, the trial court rendered judgment revoking the donation.

On appeal, this court reversed the trial court’s judgment, concluding that the party to whom the property had been sold (whom this court listed as “Charles Le-gard”) was an indispensable party whose joinder was necessary for complete and equitable adjudication of this matter. Accordingly, this court reversed the judgment and remanded the matter for further | .proceedings. Williams v. Williams, 2000-2262, pp. 4-5 (La.App. 1st Cir.5/10/02), 818 So.2d 900, 902-903.

On December 11, 2002, after remand of the matter, Agnes joined Kimberly and Charles Legarde as defendants. The Le-gardes responded by filing exceptions of no cause of action, contending that Agnes had no cause of action against Charles Legarde in that he was not the owner of the property in question and that the notice of lis pendens filed on June 25, 1996 with the petition in this matter was ineffective as to Kimberly Legarde because it had not been filed in the mortgage records as required by LSA-C.C.P. arts. 3751 and 3752.

Following a hearing, the trial court maintained both exceptions, dismissed Agnes’ suit against Kimberly and Charles Legarde, and declared Kimberly Legarde to be the owner of record of the property. From this judgment, Agnes appeals only the ruling maintaining the exception of no cause of action as to Kimberly Legarde.

DISCUSSION

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations presented. Industrial Companies, Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. Therefore, the court reviews the petition and accepts the well-pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is [480]*480legally entitled to the relief sought. B & C Electric, Inc. v. East Baton Rouge Parish School Board, 2002-1578, p. 4 (La.App. 1st Cir.5/9/03), 849 So.2d 616, 619. Furthermore, the facts shown in any annexed ^documents must also be accepted as true. B & C Electric, Inc., 2002-1578 at p. 4, 849 So.2d at 619. In reviewing a trial court’s ruling maintaining an exception of no cause of action, the reviewing court conducts a de novo review because the exception raises a question of law. B & C Electric, Inc., 2002-1578 at p. 4, 849 So.2d at 619.

In her petition, Agnes alleged that she had donated certain immovable property to Michael and that she sought to revoke the donation to Michael on the grounds that he had engaged in cruel treatment and ingratitude. Together with her petition, Agnes filed a notice of lis pendens which, by the stamp affixed thereto, reflects that the notice was filed in the conveyance records of Iberville Parish rather than in the mortgage records.

In support of her exception of no cause of action, Kimberly Legarde argued, and the trial court agreed, that LSA-C.C.P. arts. 3751 and 3752 provide that to be effective against third parties, a notice of lis pendens must be filed in the mortgage records of the parish in which the immovable property is located. On appeal, Agnes contends that the trial court erred in its ruling because the recording of the notice of lis pendens in the conveyance records is sufficient to provide notice to a prospective purchaser that there was pending litigation involving the property being transferred.

The purpose of a notice of lis pen-dens is to give effective notice to third persons of the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property. LSA-C.C.P. art. 3751; Campbell v. Melton, 2001-2578, p. 5 n. 4 (La.5/14/02), 817 So.2d 69, 74 n. 4; L.E.C., Inc. v. Collins, 332 So.2d 565, 568 (La.App. 1st Cir.1976). The proper recor-dation of the notice of lis pendens makes the outcome of the suit of which notice is given binding on third parties. Campbell, 2001-2578 at p. 5 n. 4, 817 So.2d at 74 n. 4.

1 .¡Louisiana Code of Civil Procedure article 3751 provides that the pendency of an action affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person unless a notice of pendency of the action (ie., a notice of lis pendens) is filed or recorded as required by LSA-C.C.P. art. 3752. The form prescribed by law for a notice of lis pendens is found in LSA-C.C.P. art. 3752, which requires that the notice of lis pendens “shall be recorded in the mortgage office of the parish where the property to be affected is situated” and provides that the notice of lis pendens has effect “from the time of the filing for re-cordation.” (Emphasis added).

On appeal, Agnes argues that the language of LSA-C.C.P. art. 3752 requiring recordation in the “mortgage office” should be read to mean “the Office of the Clerk and Recorder of Mortgages” of the particular parish where the property is situated. Thus, she argues that the notice of lis pendens at issue, although recorded in the conveyance records rather than the mortgage records, was properly filed in that it was filed in the “office” of the Clerk and Recorder for Iberville Parish. This filing, she therefore asserts, constitutes public notice to all parties. We disagree.

As set forth above, the plain wording of LSA-C.C.P. art. 3752 sets forth that a notice of lis pendens be filed in the “mortgage office.” In interpreting prior Act 22 [481]*481of 19041 which likewise required that a notice of lis pendens be filed in the “mortgage office,” the Louisiana Supreme Court held that “the only effective notice is the filing of the notice of lis pendens, and its registry in the mortgage records.” Continental Securities Corporation v. Wetherbee, 187 La. 773, 808, 175 So. 571, 582 (1937)(on rehearingXemphasis added).

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Bluebook (online)
886 So. 2d 478, 2003 La.App. 1 Cir. 2089, 2004 La. App. LEXIS 1629, 2004 WL 1418401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-williams-lactapp-2004.