FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
259, 736 C/W 260, 723 HONORABLE PATRICIA EVANS KOCH, DISTRICT
C. Cedars Lineage Law, LLC COUNSEL FOR DEFENDANTS/APPELLANTS:
Michaela Elouise Jordan DeVos John Scott Martin
Paul Cicardo, Jr. Attorney at Law COUNSEL FOR
PLAINTIFF/APPELLEE: Billie Thi Le
L. Hooter, Rapides Parish Clerk Of Court DEFENDANT/APPELLEE:
In Proper Person
composed of John D. Saunders, Phyllis M. Keaty, John E.
Conery, Van H. Kyzar, and Candyce G. Perret, Judges.
J., dissents and assigns written reasons.
Perret, J., dissents for the reasons assigned by Judge Keaty.
E. CONERY JUDGE
Jordan DeVos and John Scott Martin (DeVos and Martin) appeal
the trial court's April 9, 2018 judgment dismissing their
exceptions of no cause or right of action against Billie Thi
Le (Ms. Le) and their petition for writ of mandamus against
Robin Hooter, the Rapides Parish Clerk of Court, on the basis
that the sale of property on September 13, 2013 from Leeanna
Vanderwater Lu (Ms. Vanderwater) to DeVos and Martin, under
instrument number 1610399, was set aside and declared
invalid. Based on this ruling, the trial court found that Ms.
Le was the lawful owner of the immovable property located at
5815 Bruyninckx, Alexandria, Louisiana. For the following
reasons, we reverse.
AND PROCEDURAL HISTORY
Vanderwater came into possession of the immovable property at
issue, a house and lot situated at 5815 Bruyninckx,
Alexandria, Louisiana, on March 3, 2011, by the judgment of
possession recorded in Rapides Parish Conveyance Book 1882,
page 535. The name on the judgment of possession was Leeanna
L. Vanderwater Lu.
8, 2017, Ms. Le and Ms. Vanderwater entered into a buy-sell
agreement for Ms. Le to purchase the property from Ms.
Vanderwater (the Le buy-sell agreement). The name signed on
the Le buy-sell agreement was "Leeanna Ann
Vanderwater." The closing was scheduled for August 17,
2017 at the office of Ms. Le's attorney, Mr. Michael S.
Tudor. After Ms. Vanderwater was informed of the closing
date, on the morning of the closing she informed Mr. Tudor
that she no longer wished to proceed with the sale to Ms. Le
and canceled the closing.
August 28, 2017, Ms. Le filed a petition for specific
performance and damages in the Ninth Judicial District Court
claiming breach of the Le buy-sell agreement. The case was
assigned civil docket number 259, 736. Ms. Le also filed a
notice of lis pendens in the mortgage records of Rapides
Parish in Book 3036, Page 630, on August 30, 2017, with a
specific reference to the civil docket number (August 2017
notice). No municipal address or legal description was
included in the August 2017 notice, only the civil docket
number of Ms. Le's specific performance suit filed in the
civil suit records.
September 13, 2017, Ms. Vanderwater executed an act of sale
in order to convey the same property to DeVos and Martin. Ms.
Vanderwater testified that about two weeks before the
execution of the act of sale between herself and DeVos and
Martin, she informed DeVos and Martin of Ms. Le's pending
suit, and showed them the actual petition with her citation
DeVos testified that she never had notice of the pending
lawsuit, but, was aware through discussions with Ms.
Vanderwater of a threat of a lawsuit. Ms. DeVos testified
that prior to the act of sale on September 13, 2017, she
neither told her closing attorney, Mr. Marion French, nor her
friend, Sallie McManus of Lawyer's Abstract, who did the
chain of title, of the threat of a lawsuit over the sale of
the property at issue. Ms. DeVos testified that Ms.
Vanderwater informed her that Ms. Le had failed to attend the
previous closing and hence she was selling the property to
DeVos and Martin. The trial court in its reasons for judgment
specifically found that DeVos and Martin did not discover
that there was a pending lawsuit by Ms. Le until December of
2017, some three months after they purchased the property at
issue, thereby implicitly finding that the testimony of Ms.
Vanderwater as to giving actual notice of the suit to DeVos
and Martin was not credible.
Mr. French, the closing attorney, nor Ms. McManus, the
abstractor, noted the August 2017 lis pendens notice in the
mortgage records prior to the sale of the property to DeVos
and Martin, as neither examined the mortgage records after
the August 30, 2017 filing of the notice, notwithstanding
that the actual sale to DeVos and Martin did not take place
until September 13, 2017. Neither of them checked the suit
records to determine whether the "threatened"
lawsuit had been filed and whether it may have affected title
to the subject property.
January 5, 2018, after Ms. Le discovered that Ms. Vanderwater
had sold the property in question to DeVos and Martin, she
filed a first supplemental and amending petition naming DeVos
and Martin as additional defendants in the pending lawsuit,
and seeking declaratory relief that she be declared owner of
the property. A second notice of lis pendens was filed in the
mortgage records of Rapides Parish, which included the
municipal address of the property (January 2018 notice.) By
contrast, the municipal address was not contained in the
August 2017 notice. However, as with the August 2017 notice,
the civil docket number of the pending suit for specific
performance was listed in the January 2018 notice. DeVos and
Martin responded to Ms. Le's lawsuit with exceptions of
no cause and no right of action.
and Martin subsequently filed a petition for a writ of
mandamus and declaratory relief against Robin Hooter in her
official capacity as Rapides Parish Clerk of Court claiming
that the August 2017 notice was defective on its face, and
requesting that the trial court issue an order cancelling the
August 2017 notice from the Rapides Parish Mortgage records.
February 18, 2018, a trial was held on Ms. Le's claims
against Ms. Vanderwater. After Ms. Vanderwater testified, the
proceedings concluded with a consent judgment in which Ms.
Vanderwater agreed to, and the trial court ordered her to,
execute the documents necessary to convey ownership of the
property located at 5815 Bruyninckx, Alexandria, Louisiana to
Ms. Le, contingent on the outcome of a later determination by
the trial court of the validity of the August 2017 notice
filed on behalf of Ms. Le. Ms. Le was also required to
deposit the sales price for the property of $50, 000 into the
registry of the court. The consent judgment was signed on
February 28, 2018.
consent judgment specifically severed and reserved for a
subsequent trial the claims of DeVos and Martin seeking a
writ of mandamus, along with their exceptions of no cause or
right of action, and Ms. Le's claims against DeVos and
Martin in her suit for specific performance.
and Martin filed a motion for summary judgment on or about
February 20, 2018, against Ms. Le's supplemental and
amending petition, which was heard on March 9, 2018. The
trial court denied the motion for summary judgment and found
there was a genuine issue of material fact as to the validity
of the August 2017 notice.
March 21, 2018, all of the remaining issues were heard by the
trial court. After hearing testimony from Ms. DeVos and her
former closing attorney, Marion French, along with John
Tudor, the original attorney who handled the initial aborted
sale of the property to Ms. Le, the trial court found in
favor of Ms. Le. In oral reasons given on the record, the
trial court denied DeVos and Martin's petition for a writ
of mandamus, as well as the exceptions of no cause and right
of action. The trial court further ordered that the sale
between Ms. Vanderwater and DeVos and Martin be set aside and
declared invalid. All claims by DeVos and Martin against
Robin Hooter were dismissed. All costs were assessed against
DeVos and Martin. The judgment was signed on April 9, 2018,
from which DeVos and Martin have now timely appealed.
1) The trial court erred as a matter of law in finding that
the Notice of Lis Pendens filed on August 28, 2017, was valid
notice that satisfied the requirements of Louisiana Code
of Civil Procedure articles 3751 and 3752.
2)The trial court erred in permitting a Notice of Lis Pendens
which encompassed any property of a potential debtor to be
declared valid ...