Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elysian, Inc. v. Neal Auction Co., Inc.

Court of Appeals of Louisiana, Fourth Circuit

March 20, 2019

ELYSIAN, INC. AND CUSACHS FAMILY COLLECTION, L.L.C.
v.
NEAL AUCTION COMPANY, INC., PHILIP B. ALFORD, JOHN J. BOOTH, CELESTE W. LINGLE, AND JOHN DOE INSURANCE COMPANY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10398, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

          Isaac H. Ryan Kermit L. Roux, III DEUTSCH KERRIGAN & STILES, L.L.P. COUNSEL FOR PLAINTIFFS/APPELLANTS

          Mary Ellen Roy Dan Brian Zimmerman Lauren E. Burk PHELPS DUNBAR LLP George Read Coleman SAMUEL AND COLEMAN, LLC COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          Joy Cossich Lobrano Judge.

         Plaintiffs, Elysian, Inc. and Cusachs Family Collection, L.L.C., (hereinafter "plaintiffs"), filed the instant appeal from the district court's judgment that granted an exception of lis pendens, and dismissed their complaint without prejudice. After reviewing the record and applicable law, we find that lis pendens does not apply, reverse the judgment of the district court, and remand the matter for further proceedings.

         The case concerns the sale of items contained in an art collection that was on display at the New Orleans Museum of Art for over a century. The Gaspar Cusachs Collection (the "collection") is a large group of historical artifacts originally assembled and owned by Gaspar Cusachs (1855-1929). Plaintiffs equally share ownership of the collection.

         In May 2015, Neal Auction Company, Inc. and Philip B. Alford, president and senior auctioneer (hereinafter "Neal"), began discussions with plaintiffs about allowing Neal to sell by auction the items in the collection. In February 2016, Neal and plaintiffs executed a written consignment agreement permitting Neal to place the collection for auction; they were the only parties to the agreement.

         John Booth, Jr. and Celeste Lingle, as Cusachs' descendants, both claimed an interest in the collection. On November 10, 2016, Booth and Lingle filed a petition for preliminary injunction, temporary restraining order and permanent injunction ("Injunction suit") against: (1) Neal (without Alford); (2) Dawn Storms, individually and as manager of the Cusachs Family Collection, L.L.C. (plaintiff herein); (3) David Lingle, individually and in his capacity as trustee for the Elysian Fields Trust, a trust formed to deal with the collection; (4) Elysian, Inc. ("Elysian"), a corporation to which David Lingle purportedly transferred the assets of the collection (plaintiff herein); and (5) an unnamed insurance company.[1] The Injunction suit, filed less than one month before the scheduled auction, sought to deposit one-half of the proceeds from the auction into the registry of the court, less the amount due Neal, so the court could determine who was entitled to the remainder of the proceeds. Once the auction was held, one-half of the proceeds were immediately distributed to plaintiff, the Cusachs Family Collection.

         Elysian filed a motion for summary judgment, seeking to dismiss the entire suit on the merits. Before the summary judgment could be heard, Elysian filed a motion to dissolve the preliminary injunction so that the proceeds held in the registry of the court could be properly disbursed.

         Both motions were heard by the district court and, in June 2017, the court granted the motion to dissolve, thereby vacating its preliminary injunction. Conversely, the court denied Elysian's motion for summary judgment without reasons.

         On October 27, 2017, while the Injunction suit was pending, plaintiffs filed a new lawsuit against various defendants including Neal and alleged fourteen separate causes of action, including inter alia, fraud, breach of contract, conversion, conspiracy, abuse of process, and bad faith ("Auction suit"). The Auction suit was assigned to a different division of the court but was later transferred to the same division where the Injunction suit was pending. The district court, however, denied plaintiffs' motion to consolidate the two matters.

         On November 17, 2017, Elysian re-urged its motion for summary judgment in the Injunction suit. The motion was granted. Elysian was instructed to submit a proposed judgment.

         In response to the Auction suit filed on October 27, 2017, Neal filed a declinatory exception of lis pendens and a dilatory exception of nonconformity of the petition in late December 2017. Relying on La. C.C.P. art. 531, Neal argued that the Injunction suit and the Auction suit were both pending, both suits involved the same "transaction or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.