Opinion
2015 CA 1911
09-06-2016
LOCKHART INSURANCE AGENCY, LLC v. RYANO & BEEZER, LLC
Walton J. Barnes, II Greenwell Springs, Louisiana Counsel for Plaintiff/Appellant Lockhart Insurance Agency, LLC Erik L. Burns Denham Springs, Louisiana Counsel for Defendant/Appellee Ryano & Beezer, LLC
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Third Judicial District Court In and for the Parish of Ascension, State of Louisiana
Case No. 112,861 The Honorable Alvin Turner, Jr., Judge Presiding Walton J. Barnes, II
Greenwell Springs, Louisiana Counsel for Plaintiff/Appellant
Lockhart Insurance Agency, LLC Erik L. Burns
Denham Springs, Louisiana Counsel for Defendant/Appellee
Ryano & Beezer, LLC BEFORE: McDONALD, McCLENDON, and THERIOT, JJ. McDONALD, J.
In this case, the plaintiff appeals a judgment dismissing its claims on the basis of lis pendens. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Gene E. Lockhart, Jr. and Juanita M. Lockhart were married in 1982. During the marriage, the Lockharts formed Lockhart Insurance Agency, LLC (Lockhart Insurance). Ms. Lockhart is a licensed insurance agent, and Mr. Lockhart did accounting work for Lockhart Insurance. Also during the marriage, the Lockharts formed Ryano & Beezer, LLC (R&B), which owned a building in Greenwell Springs, Louisiana, from which Lockhart Insurance operated. Mr. and Ms. Lockhart are the only two persons who have ever been members of either limited liability company.
The Lockharts were divorced in February 2009. Later, Mr. Lockhart filed a petition for community property partition in the Twenty-First Judicial District Court (JDC). After a trial, the Twenty-First JDC signed a final judgment partitioning the community assets; ordering Ms. Lockhart to pay Mr. Lockhart reimbursement of $115,952.31; allocating Lockhart Insurance entirely to Ms. Lockhart; ordering the dissolution of R&B; and, ordering any money in R&B's bank accounts be held in escrow pending a determination as to whether there were sufficient funds to reimburse Mr. Lockhart from the sale proceeds.
Ms. Lockhart timely appealed the partition judgment, raising several assignments of error. Relevant here, Ms. Lockhart argued that the Twenty-First JDC erred in ordering R&B's dissolution. In an unpublished opinion, this Court found merit to Ms. Lockhart's position. Lockhart v. Lockhart, 14-0581 (La. App. 1 Cir. 5/19/15), 2015 WL 2450654, *7 (unpublished) (Lockhart I). We vacated that portion of the partition judgment mandating R&B's dissolution and remanded the matter for an evidentiary hearing to determine R&B's value in accordance with LSA-R.S. 9:2801. Lockhart I, 2015 WL 2450654, *8.
In September 2014, during the pendency of Ms. Lockhart's appeal of the partition judgment, Lockhart Insurance filed the instant "Petition for Sums Due" against R&B in the Nineteenth JDC. The petition stated that Ms. Lockhart and Lockhart Insurance advanced sums for R&B's benefit, as a result of the occupancy of the Greenwell Springs property, and that R&B owed Lockhart Insurance $227,750.66. The petition described the debt owed as including the down payment on the Greenwell Springs property, as well as lawn and landscape maintenance, property taxes, building/liability insurance, two bank loans, repairs/maintenance, an alarm system, pest control, and camera monitoring for that property. The debt owed also allegedly included amounts spent on a Landmor Drive residence and a Bellingrath Subdivision lot, also in Greenwell Springs. These properties were owned by the spouses as community property.
R&B responsively filed exceptions raising the objections of improper venue, res judicata, lis pendens, and vagueness. After a change in venue to the Twenty-Third JDC, Lockhart Insurance filed a motion to fix a hearing on the remaining exceptions. After the hearing, the Twenty-Third JDC signed a judgment on September 21, 2015, granting R&B's exception of lis pendens and dismissing Lockhart Insurance's claims. Lockhart Insurance now appeals from that adverse judgment.
DISCUSSION
On appeal, Lockhart Insurance claims the trial court erred in granting R&B's exception of lis pendens and further erred by failing to allow Lockhart Insurance to submit evidence in opposition to the exception at the hearing. We address the latter argument first.
The objection of lis pendens is raised by a declinatory exception. LSA-C.C.P. art. 925. On the trial of the declinatory exception, evidence may be introduced to support or controvert any objection pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon. LSA-C.C.P. art. 930. The trial court has broad discretion in making evidentiary rulings, and its decision will not be overturned absent an abuse of that discretion. Emery v. Owens-Corp., 00-2144 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, 448, writ denied, 02-0635 (La. 5/10/02), 815 So.2d 842. Error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected and the substance of the evidence is made known to the court by counsel. LSA-C.E. art. 103(A).
In this case, Lockhart Insurance's counsel proffered three exhibits after the trial court refused to allow this evidence at the hearing on the lis pendens exception. We have reviewed the entire record, including the proffer, and conclude that Lockhart Insurance has failed to show how the trial court's exclusion of the proffered evidence affected its substantial right or had a substantial effect on the outcome of the hearing. See Raney v. Wren, 98-0869 (La. App. 1 Cir. 11/6/98), 722 So.2d 54, 60. Thus, we find the trial court did not abuse its discretion in disallowing the evidence.
We now review the correctness of the trial court's ruling on the exception of lis pendens. Louisiana Code of Civil Procedure article 531 codifies the doctrine of lis pendens and provides:
When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in [Louisiana Code of Civil Procedure] Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.
The doctrine of lis pendens prevents a plaintiff from litigating a second suit when the suits involve the same transaction or occurrence between the same parties in the same capacities. For lis pendens to apply, LSA-C.C.P. art. 531 requires that: 1) two or more suits are pending in a Louisiana court or courts; 2) on the same transaction or occurrence; and 3) between the same parties in the same capacities. The test established to determine if an exception of lis pendens should be sustained is the same as that for res judicata; thus, an exception of lis pendens should be sustained if a final judgment in the first suit would be res judicata in the subsequently filed suit. Aisola v. Louisiana Citizens Property Ins. Corp., 14-1708 (La. 10/14/15), 180 So.3d 266, 269. In determining whether this requirement is met, the crucial inquiry is not whether the second suit is based on the same cause of action as the first suit, but whether the second suit asserts a cause of action that arises out of the same transaction or occurrence that is the subject matter of the first suit. Citizens Sav. Bank v. G & C Development, L.L.C., 12-1034 (La. App. 1 Cir. 2/15/13), 113 So.3d 1085, 1089; Code v. Department of Public Safety and Corrections, 11-1282 (La. App. 1 Cir. 10/24/12), 103 So.3d 1118, 1125, writ denied, 12-2516 (La. 1/23/13), 105 So.3d 59. The party filing the exception of lis pendens has the burden of proving the facts necessary for the exception to be granted. AmSouth Bank v. Unemployment Compensation Control Systems, LLC, 05-0253 (La. App. 1 Cir. 5/8/09), 2009 WL 1270295 *3 (unpublished).
The standard of review applicable to a trial court's ruling on an exception of lis pendens under LSA-C.C.P. art. 531 is unclear. Because our affirmance would be the same under any standard of review, we need not decide the appropriate standard in this case.
The first requirement of lis pendens is that there must be two or more suits pending in a Louisiana court or courts. Because lis pendens does not address the merits of the dispute between the parties, a reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court's judgment. Louisiana Cotton Ass'n Workers' Comp. Grp. Self-Ins. Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461, 464 (La. App. 2 Cir. 1993). The parties to this appeal do not dispute that the first requirement is satisfied. The current suit was filed while the partition judgment was pending decision in this Court in Lockhart I; and, after our remand, the partition suit apparently remains pending before the Twenty-First JDC. Thus, we now consider whether R&B proved the second and third requirements of lis pendens.
The second requirement of lis pendens is that the suits must involve the same transaction or occurrence. No one test exists to determine what constitutes the same transaction or occurrence; such determination is made on a case-by-case basis. Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28 (La. App. 3 Cir. 10/29/97), 702 So.2d 1057, 1060. When the suits encompass the same subject matter and seek the same result, lis pendens may be proper. See D'Asaro v. Sawyer, 87 So.2d 346, 348 (La. Ct. App. Orl. 1956).
After reviewing the record, we conclude that Lockhart Insurance's claims in the current suit arise from the same transaction or occurrence as that at issue in the partition suit. When the petition for sums due in the current suit is compared with Ms. Lockhart's detailed descriptive list in the partition suit, her supplemental sworn detailed descriptive list and traversal therein, the Lockhart I partition judgment, and the Lockhart I partition reasons for judgment, there is sufficient evidence to support a finding that the claims asserted in the current suit were part of the subject matter asserted, adjudicated, and/or that remains pending between the spouses in the partition suit.
Notably, in its partition reasons for judgment, the Lockhart I trial court specifically noted that, "[w]hile technically [Lockhart Insurance and R&B] are legal entities and could have been dealt with separately[,] no one objected to their being handled within the community property setting of the parties." This finding indicates that the spouses considered their community property claims and the claims of the two LLCs to be part of the single transaction that was the subject matter of the partition suit. Several examples from the record support this conclusion. For example, in the partition suit's reasons for judgment, the trial court concluded that Ms. Lockhart was responsible "for all other debts owned on the building [located on the Greenwell Springs Road property] such as outstanding property taxes. (Emphasis added.) Yet, in the petition for sums due in the current suit, Lockhart Insurance makes claims against R&B for 2008, 2009, and 2010 property taxes on the Greenwell Springs Road property. Further, in her detailed descriptive lists in the partition suit, Ms. Lockhart claimed reimbursement for the Landmor residence down payment, mortgage payments, and wood flooring; and, in its reasons for judgment, the trial court specifically addressed the spouses' competing claims associated with the Greenwell Springs Road property and the Landmor residence. Yet, in the current suit, Lockhart Insurance duplicatively asserts such claims against R&B. These examples illustrate that Lockhart Insurance's current "petition for sums due" against R&B involves the same transaction being asserted by the spouses in the pending partition suit and seeks the same result.
The third requirement of lis pendens is that the suits must involve the same parties in the same capacities. The jurisprudence does not require the parties in the two lawsuits to be physically or materially identical as long as they share the same quality as parties. See Capital One, N.A. v. Service Door & Millwork, LLC, 11-0691 (La. App. 1 Cir. 11/9/11), 2011 WL 5420374 *4 (unpublished). The identity of parties requirement is satisfied when a privy of one of the parties is involved. Matherne v. TWH Holdings, L.L.C., 12-1878 (La. App. 1 Cir. 12/6/13), 136 So.3d 854, 861, writ denied, 14-0854 (La. 6/20/14), 141 So.3d 810. In its broadest sense, "privity" is the mutual or successive relationship to the same right of property, or such an identification in interest of one person with another as to represent the same legal right. Id.; also see Amsouth Bank, 2009 WL 1270295 at *5.
In this case, we find that privity exists between the spouses in Lockhart I and the limited liability companies named as parties in the current suit. That is, although the Lockharts as former spouses in the partition suit are not identical to Lockhart Insurance and R&B in this suit, we conclude that there is a successive relationship to the same rights of property involved in both suits. The spouses are the only persons who have an interest in the limited liability companies. The record clearly supports the conclusion that the spouses agreed to litigate their interests in the two limited liability companies as part of their community property partition. Accord Eustis v. Eustis, 11-800 (La. App. 5 Cir. 3/27/12), 97 So.3d 1, 8 (noting that spouses' interest in a limited liability company is an incorporeal right that can be divided under LSA-R.S. 9:2801(A)(4)(c)).
Based on our review of the record, we find that R&B carried its burden of proving the requirements of lis pendens in this case. The Lockharts' partition suit remains pending in Lockhart I, because this Court remanded the matter for an evidentiary hearing to determine R&B's value in accordance with LSA-R.S. 9:2801. After the trial court determines R&B's value, the respective claims of the spouses and the limited liability companies can be addressed. Therefore, the trial court properly granted the exception of lis pendens.
CONCLUSION
For the foregoing reasons, the trial court's September 21, 2015 judgment, granting Ryano & Beezer, LLC's exception of lis pendens, and dismissing Lockhart Insurance Agency, LLC's claims is affirmed. Costs of the appeal are assessed to Lockhart Insurance Company, LLC.
The judgment is silent regarding whether the dismissal is with or without prejudice. When an action is dismissed on procedural grounds rather than on the merits, is should be dismissed without prejudice because no adjudication on the merits has taken place. Thus, the trial court's dismissal must be considered without prejudice. Lewis v. Jindal, 15-1329 (La. App. 1 Cir. 4/15/16), 2016 WL 1545629 n.6 (unpublished), writ denied, 16-0840 (La. 6/17/16), 192 So.3d 772.
AFFIRMED. THERIOT, J., dissenting and assigning reasons.
I disagree with the majority's decision to affirm the trial court's judgment granting the exception of lis pendens in favor of the defendant-appellee, Ryano & Beezer, LLC ("Ryano & Beezer") and ordering the dismissal of the claims of the plaintiff-appellant, Lockhart Insurance Agency, LLC ("Lockhart Insurance"). I have carefully reviewed the controlling codal provisions and relevant jurisprudence and find that the trial court's judgment should be reversed.
As an introductory matter, like the majority, I acknowledge that the jurisprudence is somewhat unclear regarding the standard of review applicable to a trial court's ruling granting an exception of lis pendens under La. C.C.P. art. 531. In my opinion, the conflicting jurisprudence concerning the appropriate standard of review derives from the distinction between La. C.C.P. art. 531 and La. C.C.P. art. 532. In order to provide clarity on this issue, and because the applicable standard of review might guide our consideration of this and future appeals, I believe it is necessary to determine the standard of review that applies to a trial court's ruling on an exception of lis pendens, specifically, as it concerns an exception of lis pendens raised under La. C.C.P. art. 531.
Louisiana Code of Civil Procedure art. 531, which is at issue in the instant case, states, in pertinent part, "[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in [La. C.C.P. art.] 925." The plain language of La. C.C.P. art. 531 does not indicate that the trial court has any discretion to grant or deny a well-founded exception of lis pendens when there are two or more suits pending in Louisiana courts. The Official Revision Comments state that La. C.C.P. art. 531 establishes "strict rules of lis pendens [that] apply only when the two suits are pending in Louisiana courts." La. C.C.P. art. 531-Cmt (c).
The strict rules of lis pendens embodied by La. C.C.P. art. 531 do not apply when the first action is pending either in a federal court, or in a court of another state or a foreign country. La. C.C.P. art. 532-Cmt. (a). If the first action is pending in an out-of-state court, the matter is controlled by La. C.C.P. art. 532, which states: "When a suit is brought in a Louisiana court while another is pending in a court of another state or of the United States on the same transaction or occurrence, between the same parties in the same capacities, on motion of the defendant or on its own motion, the court may stay all proceedings in the second suit until the first has been discontinued or final judgment has been rendered." The plain language of La. C.C.P. art. 532 contains the permissive "may," which contemplates some degree of judicial discretion concerning whether to stay the proceedings. Further, the Official Revision Comments to La. C.C.P. art. 532 recognize that the provisions of La. C.C.P. art. 532 "grant[ ] the trial court discretion to stay or not to stay the proceedings in the Louisiana case." La. C.C.P. art. 532-Cmt. (c).
The Louisiana Supreme Court has accordingly held that appellate courts should analyze a trial court's judgment granting an exception of lis pendens pursuant to La. C.C.P. art. 532 under the abuse of discretion standard of review. See Southwestern Electric Power Co. v. Amax, Inc., 621 So.2d 615 (La. 1993) (per curiam). In Southwestern Electric Power Co., the Louisiana Supreme Court reversed a ruling from the appellate court granting an exception of lis pendens under La. C.C.P. art. 532. The court reinstated the trial court's ruling denying the exception and motion to stay, explaining: "Even if the conditions of La. [C.C.P.] art. 532 are met, the decision to stay a Louisiana suit rests in the sound discretion of the trial court." Id. Accord Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 36,723 (La. App. 2 Cir. 6/27/03), 850 So.2d 1027, 1031 writ denied, 03-2606 (La. 12/12/03), 860 So.2d 1157 ("[Louisiana Code of Civil Procedure] art. 532 gives the district court the discretion to grant a lis pendens exception.").
Although neither this court, nor the Louisiana Supreme Court, has ever stated the standard of review that applies to a trial court's judgment granting an exception of lis pendens under La. C.C.P. art. 531, the issue has been addressed by the appellate courts of this state. On the one hand, the Third Circuit has employed the abuse of discretion standard of review to a trial court's ruling on an exception of lis pendens arising under La. C.C.P. art. 531. See George v. Dugas, 15-939 (La. App. 3 Cir. 3/16/16), 188 So.3d 376, 380, writ granted, 16-0710 (La. 5/20/16), 191 So.3d 1060 (citing Rivers v. Bo Ezernack Hauling Contractor, LLC, 09-1495 (La. App. 3 Cir. 5/5/10)). Yet, it should be noted that in Rivers, 37 So.3d at 1090, the appellate court quoted Brooks Well Services, Inc., supra, for the applicable standard of review for an exception of lis pendens raised under La. C.C.P. art. 531, notwithstanding the fact that the court in the former case only addressed the standard of review for an exception of lis pendens raised under the distinct provisions of La. C.C.P. art. 532.
On the other hand, the Fourth Circuit has determined that a trial court's judgment granting an exception of lis pendens under La. C.C.P. art. 531 is subject to de novo review. In Krecek v. Dick, 13-0804 (La. App. 4 Cir. 2/19/14), 136 So.3d 261, 264 and 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 12-1014 (La. App. 4 Cir. 8/21/13), 122 So.3d 1152, 1157, writ denied, 13-2414 (La. 1/10/14), 130 So.3d 327, the appellate court held that a trial court's ruling on an exception of lis pendens under La. C.C.P. art. 531 presents a question of law that is reviewed on appeal de novo, i.e., the appellate court should ask whether the trial court's interpretive decision is legally correct.
I agree with the jurisprudence from the Fourth Circuit and likewise believe that a trial court's judgment granting an exception of lis pendens under La. C.C.P. art. 531 should be reviewed de novo. I am persuaded by the fact that the standard of review articulated by the appellate court in 727 Toulouse, L.L.C., supra, and Krecek, supra, comports with the other cases in which this court has addressed the standard of review applicable to question of law. See e.g., Thinkstream, Inc. v. Rubin, 06-1595 (La. App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100, writ denied, 07-2113 (La. 1/7/08), 973 So.2d 730 (recognizing, in the context of a special motion to strike, that appellate review of questions of law is limited to determining "whether the trial court was legally correct or legally incorrect.").
Moving beyond the applicable standard of review to address the merits of this appeal, I believe that the trial court legally erred by granting the exception of lis pendens in favor of Ryano & Beezer, because I do not believe that Ryano & Beezer, as the exceptor, bore its burden of proving the facts necessary for the trial court to grant the exception of lis pendens. Specifically, I do not believe that Ryano & Beezer satisfied its burden of establishing the second and third requirements for granting an exception of lis pendens under La. C.C.P. art. 531.
In order for lis pendens to apply, La. C.C.P. art. 531 requires that: 1) two or more suits are pending in a Louisiana court or courts; 2) on the same transaction; and 3) between the same parties in the same capacity. The test established to determine if an exception of lis pendens should be sustained is the same as that for res judicata; thus, an exception of lis pendens should be sustained if a final judgment in the first suit would be res judicata in the subsequently filed suit. See Aisola v. Louisiana Citizens Property Ins. Corp., 14-1708 (La. 10/14/15), 180 So.3d 255, 269. In this case, the first requirement for granting an exception of lis pendens under La. C.C.P. art. 531 is uncontested. The second and third requirements are what remain in dispute.
The second requirement for granting an exception of lis pendens is that the suits must involve the same transaction or occurrence. There is no one test to determine what constitutes the same transaction or occurrence; such determination is made on a case-by-case basis. See Black v. Exxon Mobil Corp., 14-524 (La. App. 5 Cir. 11/25/14), 165 So.3d 1013, 1015; Travcal Properties, LLC v. Logan, 10-323 (La. App. 3 Cir. 10/6/10), 49 So.3d 466, 470. Generally, all logically related events entitling a person to institute legal action against another are regarded as comprising the same transaction or occurrence for purposes of lis pendens. Travcal Properties, LLC, 49 So.3d at 470-71 (quoting Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28 (La. App. 3 Cir. 10/29/97), 702 So.2d 1057, 1060). However, where two actions involve separate and distinct occurrences, and a judgment in either would not constitute res judicata in the other, the second requirement is not met. See Krecek, 136 So.3d at 265.
In the instant suit, Lockhart Insurance did assert some claims against Ryano & Beezer that were previously litigated in the community property partition proceeding between Mr. and Ms. Lockhart. Nevertheless, the two lawsuits involve legally distinguishable causes of action that do not arise out of the same transaction or occurrence for purposes of lis pendens, and, in addition, a judgment rendered in the community property partition proceeding would not be res judicata in the case sub judice. The assets and liabilities of Lockhart Insurance and Ryano & Beezer were relevant in the community property partition proceeding only by virtue of La. R.S. 9:2801. Mr. and Ms. Lockhart each had a community property interest in Lockhart Insurance and Ryano & Beezer. The assets and liabilities of the two juridical entities were therefore relevant to the valuation and the subsequent division of Mr. and Ms. Lockhart's community property under La. R.S. 9:2801, which provides, in pertinent part:
A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
* * *
(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities....
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct....
(e) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.
(f) Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation....
The valuation of Lockhart Insurance and Ryano & Beezer under La. R.S. 9:2801 -- incident to the division of Mr. and Ms. Lockhart's community property -- is clearly distinguishable from any independent cause of action belonging to Lockhart Insurance concerning Ryano & Beezer's indebtedness to it, even if the basis for the alleged indebtedness was, in part, contested in the community property partition proceeding between Mr. and Ms. Lockhart. In our opinion in Lockhart I, we recognized that the Twenty-First Judicial District Court's authority over Lockhart Insurance and Ryano & Beezer in the community property partition proceeding was limited by virtue of La. R.S. 9:2801, wherein we explained:
We find that the trial court manifestly erred in ordering that Ryano & Beezer be dissolved, rather than valuing Ryano & Beezer in accordance with La. R.S. 9:2801. Thus, we vacate the order that Ryano & Beezer be dissolved, and we remand the case so that the trial court can value Ryano & Beezer and use that value in calculating the parties' assets and liabilities and determining any balancing payments that may be owed.Lockhart I, 2015 WL 2450654, *7 (emphasis added).
Even assuming, arguendo, that the two suits arose from the same transaction or occurrence, it does not appear that the third requirement for granting an exception of lis pendens is satisfied in this case. The third requirement for granting an exception of lis pendens is that the suits must involve the same parties in the same capacities. The jurisprudence does not require the parties in the two lawsuits to be physically or materially identical. The only requirement is that the parties be the same in the legal sense of the word. Consequently, the identity of the parties requirement is satisfied whenever the same parties, their successors, or others appear in the same quality as parties. See Black, 165 So.3d at 1016.
Simply put, the two cases at issue here do not involve the same parties in the same capacities. It is undisputed that Lockhart Insurance and Ryano & Beezer were not parties to the community property partition proceeding between Mr. and Ms. Lockhart. Though Mr. and Ms. Lockhart are the sole members of the two juridical entities that are parties to this appeal, it is well-settled under Louisiana law that limited liability companies are separate legal entities, distinct from their members. See e.g., Louisiana State University System Research & Technology Foundation v. Qyntessa Biologics, L.L.C., 14-0311 (La. App. 1 Cir. 12/12/14), 168 So.3d 468, 475 n.8.
The majority correctly notes that, in the trial court's written reasons for judgment in the community property partition proceeding, ordering, in part, the dissolution of Lockhart Insurance and Ryano & Beezer -- prior to our reversal of same -- the trial court stated: "While technically Lockhart [Insurance] and Ryano & Beezer are legal entities that could have been dealt with separately[,] no one objected to their being handled within the community property setting of the parties." In my view, this finding actually supports the conclusion that there is a legal distinction between Lockhart Insurance and Ryano & Beezer and Mr. and Ms. Lockhart. In any event, I can find no legal support for the majority's contention that this finding in any way indicates that the claims of Lockhart Insurance and Ryano & Beezer were part of a single transaction that was the subject matter of the community property partition proceeding.
With respect to the identity of the parties requirement, the majority fails to heed the guidance of this court's decision in Peck & Vantine v. Hebert, 589 So.2d 57 (La. App. 1 Cir. 1991). In that case, a domestic partnership engaged in the business of public accounting brought suit against a former partner of the firm to recover certain sums of money and to have certain property declared to be the property of the partnership. Peck & Vantine, 589 So.2d at 58. The trial court granted the defendant's exception of lis pendens, and we reversed. We explained that a partnership constitutes a separate juridical person, distinct from its members, which enjoys the right to sue on its own behalf to protect partnership rights. We therefore concluded that, for purposes of La. C.C.P. art. 531, a pending action brought by the defendant against a present member of the partnership did not involve the same parties as a subsequent action brought by the partnership in its own right. See Peck & Vantine, 589 So.2d at 59-60.
The version of La. C.C.P. art. 531 then in effect required there to be two or more suits on "the same cause of action, between the same parties in the same capacities, and having the same object." Though there have been changes to La. C.C.P. art. 531 since we rendered our opinion in Peck & Vantine, there have been no changes to the identity of the parties requirement. See and compare Peck & Vantine, 589 So.2d at 60, n.2; La. C.C.P. art. 531.
In conclusion, I do not believe that Ryano & Beezer bore its burden of proving the second and third requirements for granting the exception of lis pendens under La. C.C.P. art. 531. Therefore, I believe the majority errs by affirming the trial court's judgment granting the exception of lis pendens in favor of Ryano & Beezer and ordering the dismissal of Lockhart Insurance's claims. I respectfully dissent.