ELYSIAN, INC. AND CUSACHS FAMILY COLLECTION, L.L.C.
NEAL AUCTION COMPANY, INC., PHILIP B. ALFORD, JOHN J. BOOTH, CELESTE W. LINGLE, AND JOHN DOE INSURANCE COMPANY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10398,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
H. Ryan Kermit L. Roux, III DEUTSCH KERRIGAN & STILES,
L.L.P. COUNSEL FOR PLAINTIFFS/APPELLANTS
Ellen Roy Dan Brian Zimmerman Lauren E. Burk PHELPS DUNBAR
LLP George Read Coleman SAMUEL AND COLEMAN, LLC COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Tiffany G. Chase
Cossich Lobrano Judge.
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.
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
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.
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. 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
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.
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.
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.
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.
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