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Le v. Lu

Court of Appeals of Louisiana, Third Circuit

May 1, 2019

BILLIE THI LE
v.
LEEANNA VANDERWATER LU, ET AL.MICHAELA ELOUISE JORDON DEVOS, ET AL.
v.
ROBIN L. HOOTER, IN HER OFFICIAL CAPACITY AS RAPIDES PARISH CLERK OF COURT

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 259, 736 C/W 260, 723 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

          Jeremy C. Cedars Lineage Law, LLC COUNSEL FOR DEFENDANTS/APPELLANTS: Michaela Elouise Jordan DeVos John Scott Martin

          Eugene Paul Cicardo, Jr. Attorney at Law COUNSEL FOR PLAINTIFF/APPELLEE: Billie Thi Le

          Robin L. Hooter, Rapides Parish Clerk Of Court DEFENDANT/APPELLEE: In Proper Person

          Court composed of John D. Saunders, Phyllis M. Keaty, John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.

          Keaty, J., dissents and assigns written reasons.

          Perret, J., dissents for the reasons assigned by Judge Keaty.

          JOHN E. CONERY JUDGE

         Michaela 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.

         FACTS AND PROCEDURAL HISTORY

         Ms. 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.

         On July 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.

         On 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.

         On 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 to answer.

         Ms. 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.

         Neither 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.

         On 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.

         DeVos 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.

         On 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.

         The 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.

         DeVos 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.

         On 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.

         ASSIGNMENTS OF ERROR

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 ...

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