PIERCE v. SAMARITAN CENTER INC (2025)

This matter arises out of a dispute regarding a strip of land in Mandeville, Louisiana. The trial court dismissed the action on a declinatory exception raising the objection of lis pendens pursuant to La. Code Civ. P. art. 531. For the following reasons, we vacate and remand for further proceedings.

BACKGROUND

Linda Faciane ¹ Latil Pierce owns a parcel of land, Lot 3 in Square 18, with the municipal address of 2021 Madison Street in Mandeville, Louisiana. Ms. Pierce contends that her property, which she acquired via a donation from her mother in November 2004, consists of Lot 3 and a strip of land approximately 10-12 feet wide along the eastern boundary of Lot 3 that was originally the rear portions of three abutting Lots 4, 5, and 6 in Square 18, that front Girod (a/k/a Gerard) Street. Ms. Pierce also maintains that her ancestors in title have owned and possessed the strip of land along the eastern boundary of Lot 3, which was marked by a wire fence, since at least 1960.

The Samaritan Center, Inc., disputes Ms. Pierce's claim to the strip of land at the rear of Lot 6. Samaritan contends that it acquired Lot 6 in November 2015 via cash sale from ancestors in title that have possessed the entirety of Lot 6, including the disputed strip of land, undisturbed for at least 30 years. After Ms. Pierce's son allegedly trespassed onto Lot 6 to erect a fence that had been removed, Samaritan asserts it filed a petitory action against Ms. Pierce and her son, William P. Latil, on August 12, 2022, in Division A of the 22nd Judicial District Court (the “first lawsuit”). In the first lawsuit, which is not a part of the appellate record, Samaritan claims it sought a declaratory judgment that it was the rightful record title owner of Lot 6, including the disputed strip at issue, and that Ms. Pierce and her son had disturbed Samaritan's peaceful possession by entering Lot 6 and erecting a fence inside the boundary line of Lot 6 in an attempt to “reclaim” the disputed strip of land. Samaritan also contends that in the first lawsuit, it sought recognition as the owner by title to the disputed strip, not merely as a possessor. In response, Ms. Pierce and her son filed a reconventional demand in the first lawsuit, seeking a declaratory judgment that recognized Ms. Pierce's lawful ownership by possession of the disputed strip via 30 years acquisitive prescription and damages. The appellate record before us does not contain Samaritan's petition or Ms. Pierce's original reconventional demand filed in the first lawsuit.

While the first lawsuit allegedly remained pending, Ms. Pierce filed a separate lawsuit against Samaritan in Division H of the 22nd Judicial District Court (the “second lawsuit”) on September 21, 2023, which was the same day she purportedly amended her reconventional demand in the first lawsuit. In the second lawsuit, Ms. Pierce sought to establish ownership to the disputed strip by record title, or alternatively, by acquisitive prescription for 10 or 30 years. In response, Samaritan filed a declinatory exception raising the objection of lis pendens in the second lawsuit, citing its pending petition in the first lawsuit. Samaritan's exception seeks dismissal of the second lawsuit pursuant to La. Code Civ. P. art. 531, arguing that Ms. Pierce's second lawsuit is substantially the same as her reconventional demand filed in the first lawsuit which arises from the same underlying occurrence and involves the same parties in the same capacities.² Samaritan maintains that in both lawsuits, Ms. Pierce seeks to establish record title ownership, or alternatively, by acquisitive prescription due to 30 years possession of the disputed strip. Ms. Pierce opposed Samaritan's exception and attached various documents to her opposition memorandum that attempted to show her record title to the strip of land. Ms. Pierce also attached as an exhibit to her opposition, her first supplemental and amended reconventional demand that she had filed in response to Samaritan's petition in the first lawsuit.

After a hearing on February 1, 2024, where no evidence was offered or introduced, the trial court sustained the exception of lis pendens and dismissed the second lawsuit. The trial court assigned reasons for its judgment and signed a judgment dismissing the second lawsuit on February 20, 2024. Ms. Pierce appealed, arguing the trial court erred in sustaining Samaritan's exception of lis pendens, by comparing the wrong pleadings, by failing to recognize that the first lawsuit was a possessory action and the second lawsuit was a petitory action, and by failing to consider the 2023 amendments to La. Code Civ. P. art. 3657 regarding possessory and petitory actions.

DISCUSSION

In connection with this appeal, Ms. Pierce filed a “Motion for Leave of Court to Attach Exhibit,” seeking to attach Samaritan's 2022 petition from the first lawsuit to her appellate brief as an exhibit. Ms. Pierce noted that the referenced pleading is not in the appellate record and she recognized that the pleading is necessary for this court to properly adjudicate her appeal. Evidence not properly and officially offered and introduced cannot be considered by an appellate court, even if it is physically placed in the record. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88; Landis Const. Co., L.L.C. v. State, 2015-1167 (La. App. 1st Cir. 2/29/16), 199 So.3d 1, 2-3. As an appellate court, we have no jurisdiction to receive new evidence. Rathe v. Rathe, 2017-1326 (La. App. 1st Cir. 8/21/18), 256 So.3d 1001, 1007. Further, documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Denoux, 983 So.2d at 88. Unlike Ms. Pierce's amended reconventional demand filed in the first lawsuit, Samaritan's petition filed in the first lawsuit was never attached to any pleading or other document that was filed into the record of the second lawsuit. Also, because no evidence was properly and officially introduced and admitted at the lis pendens hearing, the petition and the reconventional demand filed in the first lawsuit cannot be considered on appeal. A court may not consider an exhibit filed in the record which was not filed into evidence unless it is introduced and is admissible at the trial or hearing. See Tranum v. Hebert, 581 So.2d 1023, 1026-1027 (La. App. 1st Cir.) writ denied, 584 So.2d 1169 (La. 1991).

We recognize that the trial court may take judicial notice of certain filings under La. C.E. art. 202; however, no party requested the trial court to take judicial notice of the pleadings at issue or of the other lawsuit record as a whole.³ Accordingly, since the petition and reconventional demand filed in the first lawsuit were never filed into the record of the second lawsuit, were never properly introduced into evidence, nor taken judicial notice of at the lis pendens hearing, those pleadings cannot form part of the record nor should they be attached to Ms. Pierce's appellate brief. As such, this court correctly denied Ms. Pierce's motion in a separate unpublished action on December 23, 2024, and instructed Ms. Pierce to seek supplementation of the record at the trial court if she believed the pleading should be included in the appellate record. See La. Code Civ. P. arts. 2132 and 2088(A)(4). No supplementation has been filed.

We find that the grounds for Samaritan's lis pendens exception do not appear on the face of Ms. Pierce's petition filed in the second lawsuit. Samaritan bore the burden of proving, through the submission of evidence, why the exception should be granted.⁴ Because of the lack of evidence, we are left with nothing on which to base a finding as to the correctness of the trial court's judgment even though the trial court noted in its reasons that it had carefully reviewed and compared the prayers for relief contained within the pleadings filed in the two lawsuits. See Cheramie v. Allstate Ins. Co., 213 So.2d 84, 85 (La. App. 1st Cir. 1968). See also General Elec. Capital Auto Lease, Inc. v. Jackson, 584 So.2d 1209, 1210 (La. App. 2d Cir. 1991). Through clerical inadvertence or otherwise, the record on appeal does not contain any evidence on which the trial court could have based its ruling. We cannot take judicial cognizance of suit records of other courts. Moreover, the transcript of the hearing on the exception of lis pendens does not reflect that the parties made any admissions or stipulations which may have been the basis of the trial court's decision. See Jenks v. Gulla, 383 So.2d 1052, 1052-1053 (La. App. 1st Cir. 1980). The hearing consisted entirely of oral argument. Accordingly, without addressing the assignments of error or the merits of Ms. Pierce's appeal, we find that the trial court's judgment sustaining the exception of lis pendens and dismissing Ms. Pierce's action must be vacated and set aside. The matter is remanded to the trial court for further proceedings.

CONCLUSION

Based on a lack of evidence, we vacate the trial court's February 20, 2024 judgment sustaining The Samaritan Center, Inc.’s declinatory exception raising the objection of lis pendens and dismissing Linda Faciane Latil Pierce's petition. We remand this matter for further proceedings. All costs of this appeal are equally assessed to The Samaritan Center, Inc., and Linda Faciane Latil Pierce.

VACATED AND REMANDED.

FOOTNOTES

1.   The name “Faciane” appears interchangeably throughout the record and briefs as “Faclane” and “Faciane.” We use “Faciane” in this opinion as that is the spelling in the caption of the judgment, as well as in Ms. Pierce's signatures on her affidavit and the donation document.

2.   Louisiana Code of Civil Procedure article 531 provides:When two or more actions 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 action dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the actions, but the first final judgment rendered shall be conclusive of all.

3.   Louisiana Code of Evidence article 202 provides for mandatory judicial notice of federal and state laws and of certain ordinances, as well as notice of various other legal matters, on request by a party and with proper documentation. A court may take judicial notice of its own proceedings; however, documents of other courts must be introduced as evidence in the record in the trial court. See United General Title Ins. Co. v. Casey Title, Ltd., 2001-600 (La. App. 5th Cir. 10/30/01), 800 So.2d 1061, 1065.

4.   The party filing an exception of lis pendens has the burden of proving the facts necessary for his exception to be sustained. Patten/Jenkins BR Popeyes, L.L.C. v. SRG Baton Rouge II, L.L.C., 2019-1160 (La. App. 1st Cir. 6/16/20), 306 So.3d 453, 457. A trial court's ruling on an exception of lis pendens presents a question of law; thus, an appellate court's review is de novo. Id. at 457-458. When the grounds to support the declinatory exception do not appear from the petition, citation, or return thereon evidence may be introduced to support or controvert the exception pleaded. La. Code Civ. P. art. 930. Thus, Samaritan had the burden of proving that at the time Ms. Pierce filed the second suit against Samaritan, there already existed a pending action between the same parties in the same capacities and based on the same transaction or occurrence. See La. Code Civ. P. art. 531.

WOLFE, J.