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First Bank & Trust v. Simmons

Court of Appeals of Louisiana, Fourth Circuit

April 22, 2015

FIRST BANK AND TRUST
v.
NORBERT A. SIMMONS; CONSOLIDATED WITH: NORBERT A. SIMMONS
v.
FIRST BANK AND TRUST; CONSOLIDATED WITH: FIRST BANK AND TRUST, ET AL.
v.
NORBERT A. SIMMONS, ET AL. CONSOLIDATED WITH: NORBERT A. SIMMONS
v.
FIRST BANK AND TRUST, ET AL

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-09750 C/W 2014-06211, DIVISION "I-14". Honorable Piper D. Griffin, Judge.

Mark C. Landry, NEWMAN MATHIS BRADY & SPEDALE, APLC, Metairie, LA, FOR PLAINTIFF/APPELLANT.

Albert A. Thibodeaux, Michael G. Bagneris, Daniel E. Davillier, DAVILLIER LAW GROUP, FOR DEFENDANT/APPELLEE.

Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Rosemary Ledet.

OPINION

Rosemary Ledet, J.

Page 1026

[2014-1210 La.App. 4 Cir 1] This case has a complex procedural background involving four separate, but interrelated lawsuits. This case originated as a bank's action to collect on a continuing guaranty. The bank, First Bank and Trust (" FB& T" ), ultimately obtained a judgment against the continuing guarantor, Norbert A. Simmons. After FB& T began enforcing the judgment in Florida (the state where Mr. Simmons resided), Mr. Simmons filed two suits in the Civil District Court for Orleans Parish (" CDC" ) seeking to annul the judgment. The present dispute between the parties stems from the trial court's rulings in those suits on the following matters: (i) Mr. Simmons' motions to transfer his two suits from the divisions of CDC to which they were randomly allotted to the division in which the judgment was rendered; (ii) Mr. Simmons' motion to consolidate his second suit with the judgment suit; (iii) FB& T's declinatory exception of lis pendens filed in Mr. Simmons' second suit, which was based on Mr. Simmons' first suit; and (iv) the issuance of a preliminary injunction in Mr. Simmons' second suit against the enforcement of the judgment.

[2014-1210 La.App. 4 Cir 2] To provide a framework for analysis, we begin by setting forth a brief description of each of the four pertinent suits between the parties, which is as follows:

1. First Bank and Trust v. Norbert A. Simmons, CDC No. 2010-09750, allotted to Division " I." This suit was filed on September 20, 2010, and was entitled " Petition for Breach of Guaranty Agreement" (the " Collection Suit " ). On January 14, 2011, a judgment was rendered confirming a default in this suit against Mr. Simmons.
2. Norbert A. Simmons v. First Bank and Trust and Joseph C. Canizaro, CDC No. 2014-01475, allotted to Division " A." This suit was filed on February 11, 2014, and was entitled " Petition for Damages and Declaratory Judgment" (" Simmons Suit One " ). In 2014, Simmons Suit One was transferred to Division " I."
3. Edward Neely and Sheryl Neely v. First Bank and Trust, CDC No. 2014-03225, allotted to Division " A." This suit was filed on March 31, 2014, and was entitled " Petition for Declaratory Judgment" (the " Neelys '

Page 1027

Suit " ). Mr. Simmons filed a petition for intervention in this suit (the " Intervention " ).
4. Norbert A. Simmons v. First Bank and Trust, CDC No. 2014-06211, allotted to Division " C." This suit was filed on June 24, 2014, and was entitled " Petition to Annul Judgment" (" Simmons Suit Two " ). In 2014, Simmons Suit Two was transferred to Division " I" and consolidated with the Collection Suit.

Three of the four suits are presently before us for consideration; the suit that is not before us is the Neelys' Suit.

In Simmons Suit One, FB& T[1] filed a writ application seeking review of the trial court's interlocutory judgments transferring Simmons Suit One from Division " A" to Division " I" of CDC, and denying its motion to vacate the order of transfer (our case No. 2014-C-1101). In Simmons Suit Two (which has now been consolidated with the Collection Suit ), FB& T filed both a writ application and an [2014-1210 La.App. 4 Cir 3] appeal. In its writ application, FB& T sought review of the trial court's interlocutory judgment overruling, in part, its exception of lis pendens and its judgment ordering that Simmons Suit Two be transferred from Division " C" to Division " I" and consolidated with the Collection Suit (our case No. 2014-C-1100). In its appeal, FB& T sought review of the trial court's grant of Mr. Simmons' request for a preliminary injunction (our case Nos. 2014-CA-1210 c/w 2014-CA-1211). This court, granting FB& T's motion, consolidated the two writ applications and then consolidated the two writ applications with the appeal for decision.

For the reasons that follow, we deny FB& T's writ application in Simmons Suit One. We grant in part FB& T's writ application in Simmons Suit Two and reverse the trial court's ruling, denying in part of FB& T's exception of lis pendens ; otherwise, we deny FB& T's writ application. Given our finding that FB& T is entitled to the dismissal without prejudice of Mr. Simmons' suit in Simmons Suit Two, we dismiss FB& T's appeal as moot and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On February 11, 2008, Mr. Simmons executed a continuing guaranty in FB& T's favor (the " Guaranty" ).[2] At the time the Guaranty was signed, Mr. Neely [2014-1210 La.App. 4 Cir 4] had one existing loan with FB& T; he was preparing to enter into another loan with FB& T.

On January 29, 2008, two weeks before Mr. Simmons signed the Guaranty, Mr. Neely entered into the first loan with FB& T (" Loan One" ). The promissory note for Loan One was signed not only by Mr. Neely, but also by his mother, Sheryl Neely

Page 1028

(Mr. Simmons' sister) (collectively " the Neelys" ).[3] The purpose for Loan One was to consolidate the Neelys' debt on multiple (seven) properties. The mortgage in connection with Loan One encumbered several properties.

On the day after the Guaranty was executed, February 12, 2008, Mr. Neely entered into the other loan with FB& T (" Loan Two" ). The purpose for Loan Two was to purchase immovable property located at 1141 Robert E. Lee Boulevard in New Orleans, Louisiana. The promissory note for Loan Two was signed only by Mr. Neely. The mortgage in connection with Loan Two encumbered only the Robert E. Lee Boulevard property.

The Neelys defaulted on Loan One. In response, on September 20, 2010, FB& T filed the Collection Suit against Mr. Simmons. According to FB& T's petition in the Collection Suit, Mr. Simmons signed the Guaranty in which he " absolutely and unconditionally guaranteed" payment of " all past, present, and future obligations" owed to FB& T by the Neelys. In the Collection Suit, FB& T alleges that the Neelys defaulted on the note for Loan One and that as of [2014-1210 La.App. 4 Cir 5] September 17, 2010, the payoff amount of the note was $1,134,572.49, not including other fees that continued to accrue daily.[4] The Collection Suit was served on Mr. Simmons via the Louisiana Long Arm Statute, La. R.S. 13:3201-3207 (the " LAS" ).[5] A default was entered against Mr. Simmons. On January 14, 2011, the trial court confirmed the default and rendered judgment against Mr. Simmons in the Collection Suit. Notice of the judgment was mailed to Mr. Simmons, but he failed to file a motion for new trial or an appeal. Hence, the judgment became final.

Mr. Neely also defaulted on Loan Two. On January 26, 2011, FB& T commenced an executory proceeding against Mr. Neely as to the property securing Loan Two--the Robert E. Lee Boulevard property. Thereafter, FB& T and the Neelys entered into negotiations. As a result of the negotiations, on August 29, 2011, FB& T and the Neelys entered into a Forbearance Agreement, which was silent regarding Mr. Simmons' obligations under the Guaranty.

[2014-1210 La.App. 4 Cir 6] Thereafter, FB& T recorded and began enforcing the judgment in Florida, where Mr. Simmons resided.[6] On February 11, 2014,

Page 1029

Mr. Simmons filed Simmons Suit One in CDC. In this suit, he named as defendants FB& T and Joseph C. Canizaro, FB& T's chairman of the board. In Simmons Suit One, Mr. Simmons made the following factual allegations:

o Edward Neely asked Mr. Simmons to provide a continuing guaranty specifically regarding the Robert E. Lee property only. Mr. Simmons agreed to provide a continuing guaranty for the purchase of this property only.
o Mr. Simmons never received notice of this suit [the Collection Suit ] and did not have the opportunity to address the substantive allegations contained in that petition.
o Mr. Simmons did not sign this continuing guaranty [that purports to cover all loans whatsoever from FB& T to the Neelys].[7]
[2014-1210 La.App. 4 Cir 7] o [I]n violation of the Forbearance Agreement, FB& T and/or Mr. Canizaro had sought to enforce in Florida the judgment it obtained against Mr. Simmons in Louisiana attempting to seize his assets and attempting to place liens on his property [in Florida], all the while collecting payment from the Neelys under the Forbearance Agreement.
o Mr. Simmons contacted Mr. Canizaro after FB& T's judgment was registered in Florida, and FB& T began attempting to [seize] Mr. Simmons' assets there.
o Mr. Simmons told Mr. Canizaro he had never been served with the lawsuit regarding the continuing guaranty and that he was very often not at his home in Miami, Florida.
o Mr. Canizaro seemed surprised that FB& T was attempting to seize Mr. Simmons' assets when the Neelys were in compliance with the terms and conditions of the Forbearance Agreement. Mr. Canizaro told Mr. Simmons that, so long as the Neelys were in compliance with the Forbearance Agreement, FB& T should not be attempting to collect on the judgment relative to the continuing guaranty Mr. Simmons allegedly executed.
o Mr. Canizaro further assured Mr. Simmons that he would put a stop to any collection efforts to the extent they were still ongoing by FB& T.

Page 1030

o [D]espite these assurances to Mr. Simmons, Mr. Canizaro ordered FB& T to continue to attempt to seize Mr. Simmons' assets and lien Mr. Simmons' property in Florida.
o FB& T has provided no accounting of the application of the funds seized from Mr. Simmons to the Neelys' indebtedness to either the Neelys or Mr. Simmons.

Based on the above allegations, Mr. Simmons asserted the following nine causes of action in Simmons Suit One : (1) breach of Forbearance Agreement,[8] (2) fraud or intentional misrepresentation, (3) fraud in the inducement, (4) negligence, (5) negligent misrepresentation, (6) promissory estoppel, (7) unjust enrichment, (8) novation,[9] and (9) declaratory relief.

[2014-1210 La.App. 4 Cir 8] The ninth cause of action was a request for the trial court to order that the Guaranty was unenforceable and that the judgment obtained based on it was null and void. Particularly, the declaratory relief sought in the petition was for the court to order " the continuing guaranty relied upon by [Mr.] Canizaro and/or FB& T in seeking and being awarded a default judgment against Simmons unenforceable, and the default judgment null and void." In addition, Mr. Simmons requested injunctive relief, which he expressly excluded from his request in the petition for a jury trial. The injunctive relief he requested was a judgment by the trial court that " all ongoing attempts by [Mr.] Canizaro and/or First Bank and Trust to seize Mr. Simmons' assets or lien his property cease and no further attempts by [Mr.] Canizaro and/or First Bank and Trust in this regard occur in the future."

In response to Simmons Suit One, FB& T filed exceptions of no cause of action and res judicata. Its exception of no cause of action was based on the Louisiana Credit Agreement Statute, La. R.S. 6:1121-1124.[10] Its exception of res judicata was based on the judgment, which it contended precluded all claims regarding the enforceability and validity of the Guaranty. Based on the exceptions, FB& T contended that the only claim made in the petition in Simmons Suit One that could remain was Mr. Simmons' ninth cause of action for declaratory relief that the judgment rendered against him was a nullity; it contended that the petition [2014-1210 La.App. 4 Cir 9] should be dismissed except for the nullity of judgment claim. In its exceptions, FB& T specifically reserved its right to assert any and all exceptions and defenses as related to the nullity of judgment claim.

On March 31, 2014, before the exceptions in Simmons Suit One were heard, the Neelys filed their own suit against FB& T--the Neelys' Suit. In their suit, the Neelys alleged that FB& T had breached, or was planning to breach, the Forbearance Agreement. On May 6, 2014, Mr. Simmons filed an intervention in the Neelys' Suit --the Intervention. In the Intervention, Mr. Simmons named as defendants FB& T, Mr. Canizaro, and the Neelys, seeking indemnity from Mr. Neely.

Page 1031

According to FB& T, the Intervention was an almost verbatim recitation of the claims asserted in Simmons Suit One. In response to the Intervention, FB& T reasserted the same exceptions it filed in connection with Simmons Suit One ; in addition, it filed an exception of lis pendens.[11]

On June 24, 2014, Mr. Simmons filed Simmons Suit Two, which was captioned a " Petition to Annul Judgment." In this suit, Mr. Simmons named as defendant only FB& T. In his petition in Simmons Suit Two, Mr. Simmons made the following averments:

o Petitioner has not voluntarily acquiesced in the judgment and was not present in Orleans Parish when the judgment was rendered.[12] Additionally, petitioner has not waived his objection to jurisdiction.
[2014-1210 La.App. 4 Cir 10] o Vice of Form [La. C.C.P. art. 2002]--Petitioner was not legally cited to appear and made no appearance in the proceedings in the above captioned action. . . . Because of the failure of First Bank to comply with the strict requirements of LSA-R.S. 13:3204 [the LAS,] the petitioner has suffered the deprivation of the legal right to appear and challenge the claims of FB& T and otherwise assert a defense to said claims.[13]
o Vice of Substance (Fraud & Ill Practices) [La. C.C.P. art. 2004]--Mr. Simmons did not guarant[ee] the loan agreement that is the subject matter of the judgment that FB& T was attempting to execute against the petitioner in the State of Florida [Loan One].[14] . . . FB& T had not credited Mr. Simmons for the payments received from the Neelys [under the Forbearance Agreement.]

Page 1032

In Simmons Suit Two, Mr. Simmons also sought a temporary restraining order (" TRO" ) to prevent FB& T from taking further steps in the execution and enforcement (collection efforts) of the judgment in the Collection Suit, as well as preliminary and permanent injunctive relief. Finally, he requested a new trial.

Contemporaneously with the allotment of Simmons Suit Two, Mr. Simmons filed an ex parte motion to transfer Simmons Suit Two from Division " C" --the division to which it was randomly allotted--to Division " I" --the division to which [2014-1210 La.App. 4 Cir 11] the Collection Suit was originally allotted. He contended that the suit should be transferred because the petition in Simmons Suit Two sought to annul the judgment rendered in the Collection Suit. A transfer order was signed that same day by the judges of both divisions " C" and " I."

In Simmons Suit Two , the trial court in Division " I" subsequently granted Mr. Simmons' request for a TRO, ordering that FB& T be restrained from undertaking or continuing the prosecution of any collection efforts against Mr. Simmons in regards to the January 14, 2011 judgment in the Collection Suit. The trial court also set a preliminary injunction hearing for July 2, 2014, ordering that the application was " to be heard upon the verified pleadings and/or supporting affidavits only." See La. C.C.P. art. 3609.

On June 25, 2014, Mr. Simmons filed a motion in the Collection Suit to consolidate that suit with Simmons Suit Two. FB& T filed an opposition to the motion to consolidate and a motion to vacate the order of transfer. On June 26, 2014, FB& T filed a declinatory exception of lis pendens in Simmons Suit Two, which was the first pleading FB& T filed in that suit.[15] Meanwhile, Mr. Simmons filed an ex parte motion to transfer Simmons Suit One from Division " A" to Division " I," asserting that both the Collection Suit and Simmons Suit Two were pending in that division. FB& T filed an opposition, contending that the Collection [2014-1210 La.App. 4 Cir 12] Suit had been reduced to judgment and that it was no longer pending; hence, it contended that it would be impossible to consolidate the Collection Suit and Simmons Suit One for trial. The trial court ordered that the motion to transfer be heard on the same date as the preliminary injunction and the other motions.

On July 2, 2014, a hearing was held on both the preliminary injunction and the various motions. In the Collection Suit, the trial court granted Mr. Simmons' motion to consolidate that case with Simmons Suit Two. In Simmons Suit One, the trial court granted the motion to transfer the suit from Division " A" to Division " I." [16] In Simmons Suit Two, the trial court denied the motion to vacate the order transferring

Page 1033

the case from Division " C" to Division " I." In Simmons Suit Two, the trial court declined to dismiss the case in its entirety on the exception of lis pendens ; instead, it dismissed without prejudice all claims other than those seeking nullity of the judgment in the Collection Suit. Thus, the trial court ordered that Simmons Suit Two " may proceed, as to the direct action to annul the judgment rendered against [Mr.] Simmons" in the Collection Suit ; it overruled the exception of lis pendens in that respect.

In Simmons Suit Two, the trial court granted a preliminary injunction.[17] From the trial court's judgment granting the preliminary injunction in Simmons Suit Two, [2014-1210 La.App. 4 Cir 13] FB& T appeals. As noted, FB& T also filed two applications for supervisory writ, seeking review of the trial court's related interlocutory rulings. We thus have before us for decision two writ applications and one appeal.

DISCUSSION

Although FB& T raises multiple issues in its appeal and writ applications, we find the following two issues dispositive: (i) whether the trial court erred in transferring Simmons Suit One and Simmons Suit Two to the division in which the Collection Suit was originally allotted and consolidating Simmons Suit Two with the Collection Suit ; and (ii) whether the trial court erred in overruling in part [2014-1210 La.App. 4 Cir 14] FB& T's

Page 1034

exception of lis pendens in Simmons Suit Two. Our resolution of these two issues renders it unnecessary to reach the other issues raised in FB& T's writ applications and appeal.[18] We separately address each of the dispositive issues.

(i) Transfer and consolidation of cases

FB& T's argument regarding the transfer and consolidation of the cases is three-fold. First, it argues that the trial court erred by ordering the transfer of Simmons Suit Two from Division " C" to Division " I" (and by refusing to vacate that order). Second, it argues that the trial court erred by consolidating Simmons Suit Two with the Collection Suit. And, third, it argues that the trial court erred by ordering the transfer of Simmons Suit One from Division " A" to Division " I."

The issues presented in this case regarding the transfer and consolidation of cases are questions of law. Questions of law are reviewed by appellate courts de novo " without deference to the legal conclusions of the courts below." Durio v. Horace Mann Ins. Co., 11-0084, p. 14 (La. 10/25/11), 74 So.3d 1159, 1168; see also Jackson v. Pfeifer, 13-0440, 13-0450, p. 4 (La.App. 4 Cir. 7/31/13), 156 So.3d 113, 116 (citing Hospitality Consultants, LLC v. Angeron, 09-1738, p. 5 (La.App. 4 Cir. 6/9/10), 41 So.3d 1236, 1240). The standard of review for an appellate court addressing a question of law is simply whether the trial court's interpretive decision was legally correct. 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, [2014-1210 La.App. 4 Cir 15] L.L.C., 12-1014, pp. 7-8 (La.App. 4 Cir. 8/21/13), 122 So.3d 1152, 1157-58, writ denied, 13-2414 (La. 1/10/14), 130 So.3d 327; Olavarrieta v. St. Pierre, 04-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568.

Interdivisional transfers are governed by La. C.C.P. art. 253.2, which provides:

After a case has been assigned to a particular section or division of the court, it may not be transferred from one section or division to another section or division within the same court, unless agreed to by all parties, or unless it is being transferred to effect a consolidation for purpose of trial pursuant to Article 1561. However, the supreme court, by rule, may establish uniform procedures for reassigning cases under circumstances where an expeditious disposition of cases may be effectuated.

Under Article 253.2, a case can be transferred to another division in only three circumstances: (i) when the parties consent; (ii) when the transfer is for consolidation for trial, as provided in La. C.C.P. art. 1561; and (iii) when a Supreme Court rule permits the transfer. See State v. Sprint Communs. Co., L.P., 96-3094, p. 6 (La. 9/9/97), 699 So.2d 1058, 1063 (noting, albeit in the negative, the three circumstances as follows: " [i] the parties did not consent, [ii] the initial transfer was not for consolidation, and [iii] no Supreme Court rule permitted the transfers." ).[19]

Page 1035

[2014-1210 La.App. 4 Cir 16] In this case, we conclude, contrary to FB& T's contentions, that the interdivisional transfers were permitted by a Supreme Court rule--La. Dist. Ct. R. 9.3, App. 9.3, Civil District Court Orleans Parish (" CDC App. 9.3" )--and thus were proper under La. C.C.P. art. 253.2.[20] Explaining our finding, we address in [2014-1210 La.App. 4 Cir 17] steps each of FB& T's three contentions, which are as follows: (1) because it did not consent, the transfer could only be valid if it was for consolidation for trial under La. C.C.P. art. 1561; (2) the inclusion of CDC App. 9.3 in the appendices to the uniform rules for the district courts does not dictate a different result; and (3) CDC App. 9.3, despite its inclusion in the appendices, is invalid because it does not provide a uniform rule.

The first step is FB& T's argument that because it objected, the transfers could only be valid under La. C.C.P. art. 253.2 if the transfers were for consolidation for trial under La. C.C.P. art. 1561, which provides in pertinent part:

When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate, and, in the event a trial date has been set in a subsequently filed action, upon a finding that consolidation is in the interest of justice. The contradictory hearing may be waived upon the certification by the mover that all parties

Page 1036

in all cases to be consolidated consent to the consolidation.

La. C.C.P. art. 1561 (A) (Emphasis supplied). In support, FB& T cites In re Dendinger, 99-1624 (La.App. 4 Cir. 7/21/99), 766 So.2d 554).[21]

According to FB& T, the trial court erred in concluding that it could transfer two of Mr. Simmons' cases, and consolidate one of them, based on the fact that the Collection Suit was the first-filed case. Given the Collection Suit was reduced to a final judgment in 2011, FB& T submits that the Collection Suit was no longer [2014-1210 La.App. 4 Cir 18] " pending" in 2014 and no longer susceptible of being consolidated for trial pursuant to La. C.C.P. art. 1561. FB& T argues that " [a] case that has been resolved by final judgment cannot be consolidated with a case that has not been resolved by final judgment."

FB& T's argument poses the question of whether a pending case can be consolidated with one that is not still pending. It unnecessary in this case to address that question since it is based on the assumption that the transfers were pursuant to La. C.C.P. art. 1561, which includes the " pending" language.[22] The transfers were not pursuant to La. C.C.P. art. 1561; rather, the transfers were pursuant to CDC App. 9.3, which provides for transfer to the earlier case in the division in which the original case was allotted " whether or not such earlier case is still pending." For the same reason, FB& T's reliance on the Dendinger case is misplaced. As Mr. Simmons points out, unlike the Dendinger case, this case involves a district court rule that specifically requires suits to annul a judgment be " transferred to the division to which the original case was allotted." [23]

[2014-1210 La.App. 4 Cir 19] The next step in FB& T's argument is its contention that CDC App. 9.3--insofar as it provides for the transfer to a division in which there is no longer a pending case--conflicts with two statutory provisions--La. C.C.P. art. 253.1, which provides that

Page 1037

all " pleadings filed shall be randomly assigned to a particular section or division of the court," and Article 253.2, quoted above. FB& T contends that a district court's enactment of a local rule cannot override La. C.C.P. arts. 253.1 and 253.2. In support, FB& T cites State v. Cooper, 10-2344 (La. 11/16/10), 50 So.3d 115, for the propositions that random allotment is a statutory requirement and that statutory requirements " trump both the uniform rules, and the district court rules found in the appendices." FB& T thus contends that CDC App. 9.3--the CDC local rule in the appendices providing for the re-allotment between divisions (transfer) of cases growing out of earlier cases such as a petition for nullity--is invalid.

FB& T's argument is based on the well-settled principle that a local rule cannot override a statutory enactment. See Rodrigue v. Rodrigue, 591 So.2d 1171 (La. 1/10/92) (holding that local rules of court cannot conflict with legislation). In this case, however, FB& T's argument is belied by the Supreme Court's promulgation, pursuant to the last sentence of La. C.C.P. art. 253.2, of La. Dist. Ct. R. 9.3,[24] which provides:

[2014-1210 La.App. 4 Cir 20] All pleadings filed shall be randomly assigned to a particular section or division of the court in accordance with La. Code Civ. Proc. art. 253.1 before presentation of a pleading to any judge. The method of allotment for each district court is set forth in Appendix 9.3.

Pursuant to La. Dist. Ct. R. 9.3, the CDC's local rules for allotment of cases and transfer and consolidation are set forth in CDC App. 9.3. Hence, CDC App. 9.3 is a Supreme Court rule for reassigning case as contemplated by the last sentence of La. C.C.P. art. 253.2.

The last step in FB& T's argument is its contention that CDC App. 9.3, despite its inclusion in the appendix to La. Dist. Ct. R. 9.3, is invalid because it does not provide a uniform rule. FB& T contends that " [t]he [L]egislature did not intend, and the Supreme Court did not allow, district courts to decide in what cases they would chose to transfer cases by placing something that was not uniform, in Appendix 9.3." Stated otherwise, it contends that the Legislature's mandate in the last sentence of La. C.C.P. art. 253.2 " did not contemplate, and the Supreme Court rule [La. Dist. Ct. R. 9.3] does not allow, district courts to abrogate the law regarding random allotment, or transfer for the purpose

Page 1038

of consolidation only, by placing an entry in Appendix 9.3."

[2014-1210 La.App. 4 Cir 21] FB& T additionally argues that the Legislature's mandate to the Supreme Court in the last sentence of La. C.C.P. art. 253.2 was that it adopt " uniform rules" for the transfer of cases. FB& T acknowledges that La. Dist. Ct. R. 9.3 allows district courts to enact local rules as to the manner in which random allotment is to be accomplished and to submit them for inclusion in Appendix 9.3. FB& T, however, contends that district courts are allowed to place only " certain procedures into Appendix 9.3." FB& T contends that " allowing each district court to decide for itself how . . . cases should be transferred or consolidated is not a " uniform rule' contemplated by C.C.P. art. 253.2."

Contrary to FB& T's suggestion, La. C.C.P. art. 253.2 does not refer to the Supreme Court adopting uniform rules; rather, it refers to the Supreme Court adopting uniform procedures.[25] The statutory provision states that the Louisiana Supreme Court " by rule, may establish uniform procedures." La. C.C.P. art. 253.2.[26] Pursuant to La C.C.P. art. 253.2, the Supreme Court adopted La. Dist. Ct. R. 9.3, which refers to each district court's own allotment rule. We find it logical to assume that the Supreme Court's reference in La. Dist. Ct. R. 9.3 to each district court's own allotment rule contemplates that the district courts would not all have the same allotment rules. The CDC's allotment rule, CDC App. 9.3, codifies the [2014-1210 La.App. 4 Cir 22] longstanding policy in that court requiring that suits for nullity of judgment be allotted to the same division that rendered the original suit.[27] The basis for this policy is that the nullity action is said to " grow out of" the earlier case. Moreover, the CDC is not the only district court in this

Page 1039

state that has such a local rule; the Nineteenth Judicial District Court has a similar local rule, which provides for the transfer of suits " growing out of suits or proceedings previously pending" to the division in which the original suit was docketed.[28]

[2014-1210 La.App. 4 Cir 23] This type of local rule " provide[s] for automatic consolidation (by reallotment between divisions) of related cases." 1 Frank L. Maraist and Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE § 10:8 (1999).[29] Allowing a nullity action that " grows out of" a prior proceeding to be reallotted to the division in which the prior judgment was issued does not involve the type of re-allotment of cases that the Supreme Court cautioned against in the Sprint case. See Joyner v. Liprie, 41,535, p. 8 (La.App. 2 Cir. 11/1/06), 942 So.2d 620, 625 (addressing a similar issue and concluding that the local rules at issue did " not involve the deliberate reassignment of particular cases which alarmed the supreme court in the Sprint case." ).[30] The facts of this case are

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not analogous to the scenario presented in the Sprint case in which two class actions were filed and randomly [2014-1210 La.App. 4 Cir 24] allotted and then assigned to a trial judge who purportedly was more experienced in class action lawsuits. Nor are the facts of this case analogous to the scenario presented in the Boh case in which twenty-eight separate suits filed by various homeowners were consolidated solely for pre-trial purposes.

Summarizing, the transfers and the consolidation at issue in this case were pursuant to CDC App. 9.3, which is a Supreme Court rule for reassigning cases contemplated by La. C.C.P. art. 253.2. Accordingly, the trial court did not err in granting the motions to transfer Simmons Suit One and Simmons Suit Two to Division " I" ; denying the motion to vacate the transfer of Simmons Suit Two ; and granting the motion to consolidate Simmons Suit Two and the Collection Suit.

(i) Lis pendens

The denial of an exception of lis pendens presents for review a question of law. See Glass v. Alton Ochsner Med. Found., 02-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405; Krecek v. Dick, 13-0804, pp. 3-4 (La.App. 4 Cir. 2/19/14), 136 So.3d 261, 264. As noted earlier, the standard of review of the appellate court in reviewing a question of law is whether the court's interpretive decision is legally correct. 727 Toulouse, L.L.C., 12-1014 at p. 7, 122 So.3d at 1157.

The governing code article is La. C.C.P. art. 531. As amended in 1990,[31] Article 531 provides:

[2014-1210 La.App. 4 Cir 25] 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.

Since the 1990 amendment to La. C.C.P. art. 531, " the requirements for establishing lis pendens conform to the requirements of res judicata, and the test for lis pendens is whether a final judgment in the first suit would be res judicata in the subsequently filed suit." Citizens Sav. Bank v. G & C Development, L.L.C., 12-1034, pp. 6-7 (La.App. 1 Cir. 2/15/13), 113 So.3d 1085, 1089.[32] Even before the 1990 amendment, this was referred to as a " fair test" for determining lis pendens. 1 Frank L. Maraist and Harry T. Lemmon, LOUISIANA CIVIL LAW

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TREATISE: CIVIL PROCEDURE § 6.5 (1999).

The jurisprudence has identified the following three requirements for lis pendens to apply:

1. Two or more suits pending.[33]
2. The suits involve the same transaction or occurrence, which can be determined on a case-by-case basis.[34]
3. The suits involve the same parties in the same capacities, and " [t]he " identity of parties' prerequisite for res judicata does not mean that the parties must be [2014-1210 La.App. 4 Cir 26] the same physical or material parties, so long as they appear in the same quality or capacity." [35]

FB& T contends that, regardless which test applies, its exception of lis pendens should have been granted and the entire second suit, Simmons Suit Two, dismissed. FB& T submits that a judgment in the First Simmons Suit --either annulling, or refusing to annul, the judgment--would be res judicata. Likewise, FB& T submits that the three requirements the jurisprudence has identified are met. First, two suits are pending-- Simmons Suit One and Simmons Suit Two. Second, Simmons Suit One has one party that Simmons Suit Two does not__Mr. Canizaro; otherwise, the parties in both suits are the same. As to the common parties in the pending suits--FB& T and Mr. Simmons--the second requirement for lis pendens is satisfied. Third, the claims in Simmons Suit Two arise out of the same transaction or occurrence that forms the basis of the claims made in Simmons Suit One.

Although the trial court agreed in part with FB& T that the tests for lis pendens were met and partially dismissed the petition in Simmons Suit Two, the trial court disagreed in part and partially denied the exception. In this regard, the trial court, in its judgment on the exception of lis pendens, ordered as follows:

o [A]ny and all claims made in the above captioned matter, other than the direct action to annul the judgment rendered against Norbert A. Simmons, in [the Collection Suit ], be and the same are hereby dismissed, without prejudice, as said claims arise out of the same transaction or occurrence that forms the basis of the claims made in [ Simmons Suit One ].
o The action may proceed, as to the direct action to annul the judgment rendered against Norbert A. Simmons, in [the Collection Suit ], and the Exception of Lis Pendens is overruled, as to that claim.

The trial court partially denied FB& T's exception of lis pendens based on its finding that the suit in Simmons Suit One did not assert a direct action to annul the [2014-1210 La.App. 4 Cir 27] judgment. The trial court orally reasoned that in order to assert a direct action for nullity, it was necessary to file a petition for nullity. The trial court thus found it significant that the petition in Simmons Suit One was entitled " Petition for Damages and Declaratory Judgment; " in contrast, the petition in Simmons Suit Two was entitled " Petition to Annul Judgment."

To the extent the trial court relied on the caption of the first suit, we find its reliance misplaced. The caption of a

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pleading is not controlling; rather, courts look to the substance of the pleading. See Smith v. Cajun Insulation, Inc., 392 So.2d 398, 402, n. 2 (La. 1980) (noting that it is well-settled that courts look beyond the caption, style and form of pleadings to determine from the substance of the pleadings the nature of the proceeding).[36] Nonetheless, the trial court correctly noted that a request for nullity of judgment--to the extent it is based on a relative nullity--must be brought by petition or by a direct action to annul the judgment.[37] Contrary to the trial court's finding, Simmons Suit One, as FB& T contends, was an ordinary suit in which a nullity claim was asserted, albeit cumulated with a damages claim.

FB& T submits that when, as was done in Simmons Suit One, a suit is brought that clearly seeks a declaration that the judgment is a nullity, there is no [2014-1210 La.App. 4 Cir 28] prohibition against that suit, which is an ordinary proceeding, being cumulated with other claims that must use ordinary process. See La. C.C.P. art. 462.[38] In support, FB& T cites Eldred v. Fleming, 10-0794 (La.App. 4 Cir. 1/20/11), 56 So.3d 432, as an example of a case wherein a defendant was allowed to cumulate claims for a relative nullity with a claim for damages. FB& T further points out that, in Simmons Suit One, it neither filed an exception of improper cumulation nor an exception of no cause of action challenging the assertion of the nullity claim in that case. Instead, FB& T specifically represented to the trial court in the exceptions that it did file--no cause of action based on the Credit Agreement Statute and res judiciata based on the default judgment--that Mr. Simmons' nullity claim should survive its exceptions. Indeed, FB& T asserted that Mr. Simmons' only viable claim in his petition in that case was his nullity of judgment claim.

Continuing, FB& T submits that all of Mr. Simmons' claims, to the extent they are otherwise viable, should be asserted in one lawsuit-- Simmons Suit One. FB& T contends that the trial court's denial of its exception of lis pendens, if allowed to stand, will result in two lawsuits proceeding against the same defendant--FB& T--brought by the same plaintiff--Mr. Simmons--seeking to [2014-1210 La.App. 4 Cir 29] annul the same judgment--the judgment in the Collection Suit. FB& T contends that this is the exact outcome that lis pendens is designed to preclude. FB& T notes that the trial court seemed to conclude that because the petition in Simmons Suit One sought relief in addition to nullity of the judgment, Simmons Suit Two should remain

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stripped of anything other than the demand for nullity of judgment. FB& T, however, emphasizes that the trial court's holding " does not strip [ Simmons Suit One ] of its demand that the judgment be annulled, nor does it explain why two lawsuits, both seeking nullity of the same judgment, can be allowed to proceed." [39] We find this argument persuasive.

To summarize, we find that there are two suits pending, that the suits are between the same parties in their same capacities,[40] and that the suits arise from the same transaction or occurrence. We thus find that the trial court erred in failing to grant FB& T's exception of lis pendens and dismiss without prejudice Simmons Suit Two. Our finding that FB& T is entitled to dismissal of Simmons Suit Two on [2014-1210 La.App. 4 Cir 30] the basis of lis pendens dictates that we vacate the preliminary injunction issued in that suit. See Calbert v. Batiste, 09-2646, p. 2, n. 3 (La. 3/12/10), 31 So.3d 332 (noting that its " finding the exceptions of lis pendens were properly sustained renders all other issues moot, and therefore, we pretermit discussion of these issues." ). As another court has commented, " [o]f course, when this suit is remanded for further proceedings, the issue of injunctive relief can immediately be re-presented to the trial judge." Slater v. Slater, 336 So.2d 965, 967 (La.App. 4th Cir. 1976).[41]

DECREE

For the foregoing reasons, we reverse the trial court's decision denying in part First Bank and Trust's exception of lis pendens in Norbert A. Simmons v. First Bank and Trust, CDC No. 2014-06211; we grant the exception of lis pendens and dismiss the suit without prejudice. Given

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our dismissal of the suit, we vacate the preliminary injunction that was issued in the suit. In all other respects, we affirm the trial court's rulings in these consolidated matters. Stated otherwise, we deny the application for supervisory writs in our case No. 2014-C-1101; grant the application for supervisory writs in part and deny in part in our case No. 2014-C-1100; and vacate the preliminary injunction and thus dismiss as moot the appeal in [2014-1210 La.App. 4 Cir 31] our case Nos. 2014-CA-1210 c/w 2014-CA-1211. Finally, we remand to the trial court for further proceedings consistent with the view expressed in this opinion.[42]

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


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