Patten/Jenkins BR Popeyes, L.L.C. v. SRG Baton Rouge II, LLC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 1160

PATTEN/ JENKINS BR POPEYES, L.L.C.

VERSUS

SRG BATON ROUGE II, L.L.C.

C JUN 16 2020
JUDGMENT RENDERED:

Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge • State of Louisiana
Docket Number 681458 • Section 21 • Division D

The Honorable Janice Clark, Judge Presiding

Geoffrey D. Westmoreland ATTORNEY FOR APPELLANT
Shreveport, Louisiana PLAINTIFF— Patten/ Jenkins BR
Popeyes, L.L. C.

Jimmy Roy Faircloth, Jr. ATTORNEYS FOR APPELLEE
Charles S. Weems, III DEFENDANT— SRG Baton Rouge
B. Gene Taylor, III II, L.L. C.
Alexandria, Louisiana

BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.

0
NO I j 1
4
loh (Afs w pt0A s
T, <

WELCH, J.

In this lessor -lessee dispute, Patten/ Jenkins BR Popeyes, L.L.C.

Patten/ Jenkins") seeks review of the trial court' s judgment sustaining a

declinatory exception raising the objection of lis pendens filed by SRG Baton

Rouge II, L.L. C. (" SRG"), which dismissed Patten/Jenkins' s claims against SRG.

For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Pursuant to an assignment and assumption of a lease agreement, SRG leased

the immovable property located at 2137 Staring Lane, Baton Rouge, Louisiana,

from Patten/ Jenkins on March 8, 1999 in order to operate a Popeye' s restaurant on

the leased premises. The March 8, 1999 lease was for a twenty-year term— from

March 8, 1999, to March 8, 2019. 1 On April 1, 2019, Patten/ Jenkins initiated

3
eviction proceedings2 following the termination of the lease . Patten/ Jenkins

alleged that although section 28 of the lease contained an option to extend

provision, SRG failed to properly exercise the option to extend the lease beyond its

termination date. Therefore, Patten/Jenkins sought judgment in its favor ordering

SRG to vacate the leased premises immediately and deliver possession thereof to

Patten/ Jenkins, as well as reasonable attorney' s fees as provided for by the lease.

SRG answered the rule for eviction and filed an affirmative defense and a

declinatory exception raising the objection of lis pendens. In its objection of lis

pendens, SRG argued that it previously filed a petition for declaratory judgment,

specific performance, reformation, and damages against Patten/ Jenkins on

1 On September 30, 2013, SRG assumed the March 8, 1999 lease between FFCA Acquisitions
Corporation, as original lessor ( Patten/ Jenkins' s predecessor -in -interest), and Sailormen, Inc., as
original lessee ( SRG' s predecessor -in -interest).

2 See Docket Number 681458, Section 21, Division D, Nineteenth Judicial District Court (" 19th
JDC"), Parish of East Baton Rouge, State of Louisiana.

3 Patten/ Jenkins alleged the lease terminated on March 8, 2019. In its answer, however, SRG
stated that based on an estoppel certificate executed by Patten/ Jenkins when the lease was
assigned and assumed by SRG, the termination date of the lease became March 31, 2019.

2

February 7, 2019, seeking declaratory relief and specific performance regarding

the enforcement of its exercised option to purchase the leased premises and

specifically for the continuation of occupancy by SRG during such reasonable time

as was required to complete the valuation and acquisition protocol as set forth in

the lease.' SRG further alleged that in its pending lawsuit, Patten/Jenkins filed an

answer and reconventional demand, alleging that SRG continued to occupy the

leased premises despite the expiration of the lease and prayed for judgment in its

favor against SRG. SRG argued that the two pending suits involved the same

parties in the same capacities and arose out of the same transaction and occurrence,

namely, SRG' s right to continue in occupancy under the lease. SRG averred that a

final judgment in its first -filed suit and on Patten/ Jenkins' s reconventional demand

would be res judicata in Patten/ Jenkins' s second -filed suit. SRG contended that

Patten/ Jenkins' s rule for eviction should therefore be dismissed.

In answering the rule for eviction, SRG admitted the existence of the lease

with Patten/ Jenkins and admitted that it did not exercise the option to extend the

lease as provided for in section 28; however, SRG averred that it instead exercised

the option to purchase the leased premises as provided for in section 23 of the lease

by timely sending the required option to purchase written notice to Patten/ Jenkins

on December 13, 2018, within the ninety -day period preceding the termination of

the lease. SRG further contended that section 23 of the lease allowed the closing

of the purchase to extend past the termination date of the lease and allowed the

lessee to remain in occupancy during the purchase closure process. Accordingly,

SRG pled as an affirmative defense its continued right of occupancy under the

lease.

Patten/ Jenkins opposed SRG' s objection of lis pendens. Following a

hearing, the trial court sustained SRG' s objection of lis pendens and dismissed
4 See Docket Number 679391, Section 27, Division J, 19th JDC, Parish of East Baton Rouge,
State of Louisiana.

3

Patten/ Jenkins' s rule for eviction in a judgment signed on June 27, 2019.

Patten/ Jenkins now appeals.

LAW

The objection of lis pendens is raised by a declinatory exception. La. 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. La. 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.,

2000- 2144 ( La. App. 1St Cir. 11/ 9/ 01), 813 So. 2d 441, 448, writ denied, 2002-

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. La. C. E. art.

103( A)(2).

Louisiana Code of Civil Procedure article 531 codifies the doctrine of lis

pendens:

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 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, 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 or occurrence, which is determined on a case- by-case basis; and 3)

between the same parties in the same capacities. The test established to determine

0

if an objection of lis pendens should be sustained is the same as that for res

judicata, thus, an objection 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., 2014- 1708 ( La. 10/ 14/ 15), 180 So. 3d

2665 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 Say.

Bank v. G & C Development, L.L.C., 2012- 1034 ( La. App. 1St Cir. 2/ 15/ 13), 113

So. 3d 10859 1089.

Furthermore, the fact that different types of relief are requested by the

pending suits— ordinary versus summary— does not exclude consideration of the

objection of lis pendens when those suits involve the transaction or occurrence

between the same parties in the same capacities. See Spallino v. Monarch Sign

Co., 2000- 447 ( La. App. 3" Cir. 10/ 11/ 00), 771 So. 2d 784, 788. While finding

the sameness of objects between two suits was necessary in order to grant an

exception of lis pendens under the former version of La. C. C. P. art. 531, it is no

longer required under the amended and current version of La. C. C. P. art. 531 cited

above. 5 See Spallino, 771 So. 2d at 788; see also TMF Hotel Properties, L.L.C.

v. Crescent City Connections 501( C) 7 Gris-Gris Pleasure Aide & Soc. Club,

2018- 0079 ( La. App. 4" Cir. 11/ 28/ 18), So. 3d , 2018 WL 6204331, at

5, writ denied, 2019- 0110 ( La. 3/ 18/ 19), 267 So. 3d 87.

5 Prior to its amendment by 1990 La. Acts 521, § 2 ( eff. Jan. 1, 1991), the former version of La.
C. C. P. art. 531 stated, in part:

When two or more suits are pending in a Louisiana court or courts on the same
cause of action occurrence, between the same parties in the same capacities, and
having the same object, the defendant may have all but the first suit dismissed by
excepting thereto as provided in Article 925.

5

The party filing the objection 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, 2005- 0253 ( La. App. 1St

Cir. 5/ 8/ 09), 2009 WL 1270295, at * 3 ( unpublished). A trial court' s ruling on an

objection of lis pendens, pursuant to La. C. C. P. art. 531, presents a question of law;

thus, it is reviewed de novo. TMF Hotel Properties, L.L.C., So. 3d at ,

2018 WL 6204331, at * 2.

DISCUSSION

The first requirement for lis pendens to apply is that two or more suits must

be pending in a Louisiana court or courts. La. C. C. P. art. 531; Aisola, 180 So. 3d

at 269. SRG filed a petition for declaratory judgment, specific performance,

reformation, and damages on February 7, 2019 in the 19th JDC. See Docket

Number 679391, Section 27, Division J, 19th JDC, Parish of East Baton Rouge,

State of Louisiana. Patten/ Jenkins filed a rule for eviction on April 1, 2019 in the

19th JDC. See Docket Number 681458, Section 21, Division D, 19th JDC, Parish

of East Baton Rouge, State of Louisiana. Thus, there were two suits pending in the

19th JDC, a Louisiana court. The first requirement is met.

The second requirement for lis pendens to apply is that the two pending suits

involve the same transaction or occurrence. La. C. C. P. art. 531; Aisola, 180 So. 3d

at 269. No one test exists to determine what constitutes the same transaction or

occurrence; such determination is made on a case- by- case basis. Matter of

Commitment of Cole, 2018- 1760 ( La. App. 1St Cir. 4/ 17/ 19), 276 So. 3d 601, 609.

Nevertheless, the jurisprudence has identified some definitions, including the

following: " a group of facts so connected together as to be referred to by a single

legal name; as ... a contract"; or "[ a] ll logically related events entitling a person to

institute legal action against another generally are regarded as comprising a

transaction or occurrence."' Hy -Octane Invs., Ltd. v. G & B Oil Prods., Inc.,

on

97- 28 ( La. App. 3" Cir. 10/ 29/ 97), 702 So. 2d 1057, 1060 ( internal citations

omitted).

The first -filed suit by SRG is an ordinary proceeding wherein SRG sought

declaratory judgment and specific performance, including but not limited to: the

recognition of SRG' s option to purchase the leased premises; enforcement of

SRG' s option to purchase and the enforcement of Patten/ Jenkins' s obligation

associated with the option to purchase; and the recognition and enforcement of

SRG' s continued occupancy of the leased premises during the option to purchase

process. SRG further sought reformation of the lease should the court be unable to

interpret the lease to allow for its continuation of occupancy during the option to

purchase process. Additionally, in its reconventional demand in the first -filed suit,

Patten/ Jenkins alleged that SRG " continue[ d] to occupy the property ... despite

notice that [ Patten/ Jenkins] would not allow holding over under the expired lease."

The second -filed eviction suit by Patten/Jenkins is a summary proceeding

whereby Patten -Jenkins sought judgment on its rule for eviction ordering SRG to

vacate the leased premises immediately and deliver possession thereof to

Patten/ Jenkins as a result of the termination of the lease and SRG' s failure to

exercise the option to extend the lease.

Both SRG' s declaratory action and Patten/ Jenkins' s eviction suit involve the

question of whether SRG has a right to continue its occupancy of the leased

premises. Patten/ Jenkins filed a reconventional demand in SRG' s declaratory

action, specifically alleging that SRG continued to occupy the leased premises

despite the expiration of the lease. The transaction or occurrence here is the lease.

Both the declaratory action and the eviction suit are based on an interpretation of

the lease. See TMF Hotel Properties, L.L.C., So. 3d at , 2018 WL

6204331, at * 6. Thus, the second lis pendens element— the same transaction or

occurrence— is satisfied.

7

The third and final requirement for lis pendens to apply requires the same

parties in the same capacities. La. C. C. P. art. 531; Aisola, 180 So. 3d at 269. This

requirement has been equated with the " identity of parties" element for res

judicata. TMF Hotel Properties, L.L.C., So. 3d at , 2018 WL 6204331,

at * 6. This requirement does not mean that the parties must have the same

physical identity, but that the parties must appear in the same capacities in both

suits. Wicker v. Louisiana Farm Bureau Cas. Ins. Co., 2018- 0225 ( La. App. 1St

Cir. 9/ 21/ 18), 257 So. 3d 817, 823. Identity of parties exists whenever the same

parties, their successors, or others appear, so long as they share the same " quality"

as parties. Mandalay Oil & Gas, L.L.C. v. Energy Dev. Corp., 2001- 0993 ( La.

App. 1st Cir. 8/ 4/ 04), 880 So. 2d 129, 140, writ denied, 2004- 2426 ( La. 1/ 28/ 05),

893 So. 2d 72.

The first -filed suit involved a petition for declaratory judgment, specific

performance, reformation, and damages regarding the March 8, 1999 lease. In that

proceeding, SRG appeared in its capacity as lessee under the lease. Patten/ Jenkins

was a party to that suit as the lessor. The second -filed suit involved a rule for

eviction as a result of the termination of the March 8, 1999 lease. In that

proceeding, Patten/ Jenkins appeared in its capacity as lessor under the lease, and

SRG appeared in its capacity as lessee. The two pending suits clearly involve the

same parties in their same capacities as lessor and lessee under the March 8, 1999

lease. Furthermore, given that SRG' s declaratory action and Patten/ Jenkins' s

eviction suit are both based on the same March 8, 1999 lease, both cases, by

definition, involve the same parties. See TMF Hotel Properties, L.L.C., So.

3d at , 2018 WL 6204331, at * 8. Thus, the third and final lis pendens

element— the same parties in the same capacities— is satisfied.

Accordingly, based on our de novo review, we find that SRG has met its

burden of proving the elements of lis pendenstwo or more suits are pending in a

8

Louisiana court or courts; on the same transaction or occurrence; between the same

parties in the same capacities. La. C. C. P. art. 531; Aisola, 180 So. 3d at 269. It is

clear that a final judgment in SRG' s first -filed suit regarding its right to continued

occupancy under the March 8, 1999 lease would be res judicata in Patten/Jenkins' s

subsequently -filed eviction suit. See Aisola, 180 So. 3d at 269. Based on these

reasons, we affirm the trial court' s judgment sustaining SRG' s objection of lis

pendens and dismissing Patten/ Jenkins' s eviction suit.

DECREE

The trial court' s June 27, 2019 judgment that sustained the declinatory

exception raising the objection of lis pendens filed by SRG Baton Rouge II, L.L.C.

and dismissed Patten/ Jenkins BR Popeyes, L.L.C.' s claims against SRG Baton

Rouge II, L.L.C. is hereby affirmed.

AFFIRMED.

E

PATTEN/JENKINS BR POPEYES, L.L.C. NO. 2019 CA 1160

VERSUS COURT OF APPEAL

SRG BATON ROUGE II, L.L.C. FIRST CIRCUIT

STATE OF LOUISIANA

HOLDRIDGE, J., concurring.

I concur in the result only. However, I agree that the court could sustain the

exception raising the objection of lis pendens filed by SRG Baton Rouge II, L.L.C.

but not for the reasons stated in the majority opinion. The main issue for this court

to decide was whether an exception raising the objection of lis pendens should have

been granted by the trial court under the facts of this case. SRG filed a petition for

declaratory judgment, specific performance, reformation, and damages against

Patten/ Jenkins on February 7, 2019. On April 1, 2019, Patten/ Jenkins filed an

eviction proceeding against SRG, the plaintiff in the first -filed suit. SRG filed an

answer to the rule for eviction alleging an affirmative defense in accordance with

La. C. C. P. art. 4732( A). See also La. C. C. P. art. 4735. In the eviction suit, SRG

filed an exception raising the objection of lis pendens since its first -filed suit for

declaratory judgment and damages was still pending. The trial court granted the

exception and the majority opinion affirms the trial court.

However, the majority does not explain why the exception can be granted in

this limited situation. Eviction is a special procedure in the Code of Civil Procedure

that is designed to allow a lessor to be restored in possession of his property when

the lessee no longer has the right to occupy or possess the property. See La. C. C. P.

art. 4701 et seq.; Terrebonne Parish Port Commission v. Eagle Dry Dock &

Marine Repairs, L.L.C., 2014- 0010 ( La. App. 1 Cir. 7/ 7/ 15), 2015 WL 4094331 at

p.* 9 ( unpublished); Matthews v. Horrell, 2006- 1973 ( La. App. 1 Cir. 11/ 7/ 07), 977

So. 2d 62, 72; Citizens Bank & Trust Co. v. Carr, 583 So. 2d 864, 866 ( La. App. 1

Cir.), writ denied, 588 So.2d 109 ( La. 1991). Eviction is a summary proceeding

involving the sole issue ofwhether the lessor is entitled to possession of the property.
See La. C. C. P. art. 4731; Terrebonne Parish, 2014- 0010 at p.* 9; Citizens Bank,

583 So. 2d at 866. To make that determination, the court must decide if the lessor

proved that the lease was terminated for any valid reason, as well as any defenses

which may be offered by the lessee to prove that it still has the right to possess the

leased property. See Terrebonne Parish, 2014- 0010 at p.* 9.

Normally the eviction proceeding is filed first, resulting in one of the

following outcomes: the lessee is evicted, the court denies the eviction, or the court

converts the eviction proceeding to an ordinary action and hears evidence as to the

lessee' s claim to possess or own the property. If the lease has terminated and the

lessor has the right to occupy the property and the lessee no longer has the right to

occupy or a valid defense, the trial court after a hearing " shall render immediately a

judgment of eviction ordering the lessee or occupant to deliver possession of the

premises to the lessor." La. C. C. P. art. 4732( B). This summary eviction proceeding

cannot be cumulated with any ordinary proceedings ( such as an action for past due

rent or damages) or with an ordinary proceeding for declaratory judgment and

damages filed by the lessee. See La. C. C. P. arts. 462 and 463 ( which state in order

to cumulate "[ a] ll of the actions cumulated are mutually consistent and employ the

same form of procedure.") An eviction proceeding and a proceeding for declaratory

judgment and damages are not mutually consistent and do not employ the same

FORM OF PROCEDURE ( as one is an ordinary proceeding and one is a summary

proceeding). See La. C. C. P. art. 1871. The entire reason for an eviction proceeding

is to allow a lessor to quickly obtain possession of his property after the lessee' s

right to possess is terminated by the terms of the lease. To allow a cumulation of an

eviction proceeding with an ordinary proceeding would defeat the entire purpose of

the eviction proceeding since the lessor would have to wait until a trial in an ordinary

proceeding before obtaining possession of his leased property. Similarly, to grant an

Fa

exception raising the objection of lis pendens in a valid eviction proceeding

whenever a lessee has previously filed a suit contesting a lease would delay the

timely eviction ofthe lessee since the lessor would be forced to wait until the eviction

and other matters are decided in an ordinary proceeding.

While the majority cites Spallino v. Monarch Sign Co., 2000- 447 ( La. App.

3 Cir. 10/ 11/ 00), 771 So.2d 784, 788, 1 to support its statement that an objection of

lis pendens is not excluded from consideration where different types of relief are

requested as long as the suits involve the same transaction or occurrence between

the same parties in the same capacities, such is not always the case with an eviction

proceeding and a declaratory judgment and damages proceeding. A valid summary

eviction proceeding and an ordinary declaratory judgment and damages proceeding

cannot be cumulated and therefore are not subject to a lis pendens exception since

there is no statutory provision which would mandate that a plaintiff 's valid eviction

proceeding would be delayed for months or years while the defendant' s suit for

declaratory judgment and damages is being heard.

With that said, the result in this case is correct. SRG, the defendant/ lessee in

the eviction proceeding, filed an answer raising the issue that it does have the right

to possess and occupy the premises due to the provision of the lease which granted

it an option to purchase the property and remain on the premises until the sale was

completed. Since SRG raised a valid defense to Patten/ Jenkins' s, the

plaintiff/lessor' s, right to occupy or possess the premises, a summary eviction

proceeding was not proper and the issue as to SRG' s right to occupy must be decided

in an ordinary proceeding. See Matthews, 977 So. 2d at 76. Where the ownership

1 In Spallino v. Monarch Sign Co., 2000- 447 ( La. App. 10/ 11/ 00), 771 So. 2d 784, 787, the court
stated, " In our opinion, the fact that different types of relief are requested does not always exclude

consideration of the exception of lis pendens when the suits involve the same issues." However,

the proper interpretation of the statutory provisions would dictate that the fact that different types
of relief are requested always excludes the consideration of the objection of lis pendens unless the
summary proceeding must be converted to an ordinary proceeding to properly adjudicate the issues
in both suits.

3

or the right to possession of immovable property is an issue, summary eviction

procedure is not the proper procedure. See La. C. C. P. art. 4705; see, e. g., also

Robinson Ventures, LLC v. Dowl, 2004- 2149 (La. App. 4 Cir. 4/ 20/ 05), 901 So. 2d

587, 589, writ denied, 2005- 1747 ( La. 1/ 27/ 06), 922 So. 2d 548. Since the trial court

in the eviction proceeding found that there was an issue as to whether the lessee had

a right to continue to possess the property in question, the plaintiff was not entitled

to use the summary eviction proceeding. In this case, a trial in an ordinary

proceeding was necessary to determine if SRG had the right to continue to possess

the property by virtue of the provisions of the lease agreement. Since the question

as to which party had the right to possess the property necessitated a trial in an

ordinary proceeding, the objection of lis pendens was properly granted and

Patten/ Jenkins' s eviction proceeding could be cumulated with the defendant' s

previous suit for the declaratory judgment and damages since both actions will now

proceed by ordinary process.

M