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Newman Hoffoss & Devall, LLP v. Newman

Court of Appeals of Louisiana, Third Circuit

March 22, 2017

NEWMAN HOFFOSS & DEVALL, LLP, AND HOFFOSS & DEVALL, LLC
v.
RALEIGH NEWMAN, APLC

         ON APPLICATION FOR SUPERVISORY WRITS OF REVIEW FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 13-3389 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

          Barry A. Roach Larry A. Roach, Inc.Counsel for Relator: Raleigh Newman, APLC

          Russell J. Stutes, Jr. Shelley Bouillion Stutes & Lavergne, LLC Counsel for Respondents: Newman, Hoffoss & Devall, LLP Hoffoss & Devall, LLC

          Court composed of Marc T. Amy, Phyllis M. Keaty, and David E. Chatelain, [*] Judges.

          PHYLLIS M. KEATY JUDGE.

         Defendant-Relator, Raleigh Newman, APLC, seeks supervisory writs from the judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, the Honorable Clayton Davis presiding, which denied Relator's Notice and Exception of Lis Pendens and which ordered the Clerk of Court for Calcasieu Parish to "cancel and discharge of record[] a Notice of Lis Pendens . . . filed in the Mortgage Records" and which "expressly requested, authorized, and directed [the Clerk of Court for Calcasieu Parish], by order of [the] Court to cancel the recordation of the aforementioned Notice of Lis Pendens by virtue of this order and upon submission of the requisite cancellation form submitted by counsel for Plaintiffs." For the following reasons, we grant the writ application, reverse the trial court's judgment denying the exception of lis pendens, and order the suit bearing district court docket number 2013-3389 dismissed without prejudice.

         FACTUAL AND PROCEDURAL BACKGROUND

         The instant litigation and the connected litigation giving rise to the lis pendens issue arise out of an acrimonious demise of a law partnership. On April 1, 2013, Raleigh Newman[1] filed a petition, bearing the district court's docket number 2013-1538, seeking, in pertinent part:

II. A temporary restraining order issue herein, without bond, enjoining and restraining each party to the agreement forming Newman, Hoffoss & Devall, LLP, or anyone acting on their behalf, from disposing of or altering in any way any client contracts, records or documents that pertain in any way to the partnership of Newman, Hoffoss & Devall, LLP and practice of law which existed since the formation of Newman, Hoffoss & Devall, LLP until such time that there is a formal accounting between the parties.
III. A rule issue herein ordering all parties to show cause on the date and hour to be set by this Honorable Court why a preliminary injunction and finally a permanent injunction should not issue herein in the form of the temporary restraining order described herein.

         The caption to this petition names the Defendants as "HOFFOSS & DEVALL, LLC, et al[.]" Nowhere in the petition does it set forth who constitutes the "et al[.]" in the caption, and there is no specific paragraph of the petition which clearly sets forth the names of the Defendants. Instead, the petition states:

1.
On January 6, 2010, RALEIGH NEWMAN, APLC, a practicing attorney, entered into a partnership for the practice of law with Hoffoss & Devall, LLC, through its partners, J. Lee Hoffoss, Jr. and Claude P. Devall, Jr., which firm would be known as Newman, Hoffoss & Devall, LLP.
2.
On January 21, 2010, Newman, Hoffoss & Devall, LLP (N H D) a Louisiana Limited partnership represented therein by all of its partners, Raleigh Newman, A Professional Law Corporation (RN) Hoffoss & Devall, LLC, a Louisiana Limited Liability Company; Hoffoss & Devall LLC (H & D), a Louisiana Limited Liability Company represented therein by all of its members, J. Lee Hoffoss, Jr. and Claude P. Devall, Jr., Raleigh Newman, A Professional Law Corporation (RN), a Louisiana Professional Law Corporation represented therein by its duly authorized president, Raleigh Newman, and C. Raleigh Newman, Sr., John Lee Hoffoss, Jr., and Claude Pierson Devall, Jr., individually, entered into an operating agreement for the operation of Newman, Hoffoss & Devall, LLP.

         Raleigh Newman filed his First Supplemental and Amending Petition on July 15, 2013. This amended petition did not add or alter any parties to the suit; however, it added a claim for an accounting "between the parties as to a proper division of fees resulting from the partnership business as well as from the conduct of the individual partners of the partnership, " and added to the prayer for relief that "[t]here should be a full accounting as outlined hereinabove."

         On July 23, 2013, Newman, Hoffoss & Devall, LLP, a domestic limited liability partnership (hereinafter sometimes NHD), and Hoffoss & Devall, LLC, a domestic limited liability company (hereinafter sometimes HD), filed their Petition in Suit for Partnership Termination, and for Damages, and for Declaratory and Other Relief, which bears the district court's docket number of 2013-3389. The only defendant named in the suit is Raleigh Newman, APLC. This petition outlines the factual history of the creation of the NHD partnership and the disagreements giving rise to the end of the parties' business arrangement. In pertinent part, this petition prays for the following relief:

II. After due proceedings had, and the lapse of all legal delays, there be judgment herein in favor of NEWMAN, HOFFOSS & DEVALL, LLP and HOFFOSS & DEVALL, LLC and against defendant, RALEIGH NEWMAN, APLC, as follows:
A. Terminating NEWMAN, HOFFOSS & DEVALL, LLP effective January 1, 2012;
B. All fees paid to RALEIGH NEWMAN, APLC by NEWMAN, HOFFOSS & DEVALL, LLP after January 1, 2012 are to be returned to NEWMAN, HOFFOSS & DEVALL, LLP; and
C. Appoint HOFFOSS & DEVALL, LLC to perform an accounting of NEWMAN, HOFFOSS & DEVALL, LLP, and to serve as the sole member of the Liquidation Committee of NEWMAN, HOFFOSS & DEVALL, LLP, and to wind down the business of NEWMAN, HOFFOSS & DEVALL, LLP.
III. In the alternative, should this Court find that NEWMAN, HOFFOSS & DEVALL, LLP has not terminated as of March 12, 2013, HOFFOSS & DEVALL, LLC be allowed to take possession of all cases being worked on by RALEIGH NEWMAN, APLC as of March 12, 2013 and prohibit any partner of RALEIGH NEWMAN, APLC from taking any further action toward the prosecution and funding of any cases in the possession of RALEIGH NEWMAN, APLC as of March 12, 2013.

         On August 19, 2016, the Plaintiff's Second Supplemental and Amending Petition was filed in 2013-1538. This pleading asked that the caption of the subject case be changed to read:

RALEIGH NEWMAN, Individually and as Agent for RALEIGH NEWMAN, APLC
VS.
HOFFOSS & DEVALL, LLC and NEWMAN, HOFFOSS & DEVALL, LLP

         Although the pleading asked that the name of the Plaintiff be changed throughout the original petition and the first supplemental and amending petition to read as set forth in the new caption, this pleading does not provide a specific paragraph naming the defendants to the suit. It added a claim that Hoffoss & Devall, LLC, and Newman, Hoffoss & Devall, LLP, had violated the partnership agreement and breached their fiduciary duties to the partners resulting in damage to the Plaintiff for which recovery was being sought. The prayer for relief then provides, in pertinent part:

II. There should be a full accounting as outlined hereinabove;
III. After due proceedings had and the lapse of all legal delays, there be judgment herein incorporating the findings of the final accounting reached between the parties.
IV. After due proceedings had and the lapse of all legal delays, there be judgment herein in favor of petitioner, RALEIGH NEWMAN, APLC, and against defendants, HOFFOSS & DEVALL, LLC and NEWMAN, HOFFOSS & DEVALL, LLP, awarding unto Petitioner such damages that Petitioner suffered as a result of Defendants' violation of the Partnership Agreement and breach of their fiduciary duties as partners, together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings.

         On April 7, 2016, in docket number 2013-3389, Raleigh Newman, APLC, filed a Notice of Lis Pendens. On July 21, 2016, NHD and HD filed a Motion for Rule to Show Cause Why Lis Pendens Should Not Be Denied. After filing the second supplemental and amending petition in 2013-1538 which is discussed above, Raleigh Newman, APLC, filed a memorandum in support of the exception of lis pendens. NHD and ...


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