Successions of Milton Cotaya and Edna Cotaya

SUCCESSIONS OF MILTON COTAYA AND NO. 24-CA-39
EDNA COTAYA
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 837-862, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

December 05, 2024

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Timothy S. Marcel

AFFIRMED
SJW
MEJ
TSM

COUNSEL FOR PLAINTIFF/APPELLEE,
LEE COTAYA, INDIVIDUALLY AND AS ADMINISTRATOR FOR THE
ESTATE OF EDNA COTAYA
J. Douglas Sunseri

COUNSEL FOR INTERVENOR/APPELLANT,
VICKI COTAYA TOSH
Leila M. Bonilla
Robert J. Daigre
George M. McGregor
Cesar R. Burgos
James A. Harry
William R. Penton, III

WINDHORST, J.

Appellant/succession representative, Vicki Cotaya Tosh, seeks review of the

trial court’s April 11, 2023 judgment1 dismissing her Petition to Open Succession,

Probate Will and Confirm Administrator in docket number 837-862. For the

following reasons, the trial court’s judgment is affirmed.

PROCEDURAL HISTORY

The Succession of Milton E. Cotaya, Jr. was filed in 2015 in the 22nd Judicial

District Court (“JDC”) of St. Tammany Parish by Ms. Tosh. The Succession of

Edna B. Cotaya was filed in 2016 in the 22nd JDC of St. Tammany Parish by

appellee/succession representative, Lee Cotaya (“Mr. Cotaya”).2 The cases were

subsequently consolidated in 2017 (also referred to herein as “the first filed

lawsuit”). The parties engaged in continuous litigation until August 22, 2022, when

Ms. Tosh filed an exception of lack of subject matter jurisdiction. On December 9,

2022, the trial court (1) granted Ms. Tosh’s exception of lack of subject matter

jurisdiction; (2) denied Ms. Tosh’s request to cast Mr. Cotaya with all costs and

reasonable attorney’s fees; (3) denied Ms. Tosh’s “demand to dismiss the

Successions of Milton E. Cotaya and Edna B. Cotaya and their underlying

Judgments;” and (4) “in the interest of justice,” ordered “the Succession of Milton

E. Cotaya and the Succession of Edna B. Cotaya along with all underlying pleadings,

deadlines, and orders” to be transferred to the 24th JDC pursuant to La. C.C.P. art.

932 B. Ms. Tosh did not appeal, or collaterally attack any part of this judgment.

After the costs to transfer the first filed lawsuit were paid by Mr. Cotaya3 and

while the transfer was pending, Ms. Tosh filed a new “Petition to Open Succession,

1 The record shows that docket no. 837-862 did not contain a separate judgment for this court to review.
The trial court was informed that the rulings for no. 837-862 were improperly included in the April 11, 2023
judgment for no. 838-243 consolidated with no. 838-251. The trial court subsequently rendered a separate
judgment for this case, no. 837-862, on August 2, 2024.
2 Milton and Edna Cotaya were married and had six children: Milton E. Cotaya, III, Terrence M. Cotaya,
Sr., Cathy Cotaya Reed, Lee M. Cotaya, Vicki Cotaya Tosh, and Trudi Cotaya Blackwood.
3 It is undisputed that the trial court ordered Ms. Tosh to pay the costs to transfer the first filed lawsuit, and
that Ms. Tosh refused or otherwise failed to pay the costs for the transfer.

24-CA-39 1

Probate Will and Confirm Administrator,” captioned Successions of Milton Cotaya

and Edna Cotaya, docket number 837-862 in the 24th JDC (also referred to herein as

“the second filed lawsuit”). It is undisputed that Ms. Tosh and her counsel failed to

inform the trial court of the December 9, 2022 judgment and pending transfer of the

first filed lawsuit (subsequently filed in the 24th JDC under docket numbers 838-243,

Succession of Edna B. Cotaya, and 838-251, Succession of Milton E. Cotaya, Jr.).

It is further undisputed that Ms. Tosh and her counsel also failed to notify Mr.

Cotaya, the succession representative of the Succession of Edna B. Cotaya and heir

in the first filed lawsuit, of the existence of the second filed lawsuit, despite

knowledge of the December 9, 2022 judgment and subsequent transfer of the first

filed lawsuit to the 24th JDC.

In response to the second filed lawsuit, docket number 837-862, Mr. Cotaya,

in his capacity as administrator for the Succession of Edna B. Cotaya, filed a

“Motion and Incorporated Memorandum to Remove Vicki Tosh as Executrix and

Dismiss These Proceedings,” (“motion to dismiss”) seeking to dismiss the

“improperly” second filed lawsuit in which she was appointed executrix, because

the first filed lawsuit was transferred by judgment from the 22nd JDC to the 24th JDC

and has been pending for over seven (7) years. Mr. Cotaya also contended that Ms.

Tosh made no attempts to notify any other parties to the existing first filed lawsuit

of the new second filed lawsuit, despite her knowledge of the pending transfer. Ms.

Tosh filed an opposition to the motion to dismiss and a “Motion to Strike Lee

Cotaya’s Motion to Dismiss” (“motion to strike”), arguing that the proceedings in

the first filed lawsuit were absolutely null, and that Mr. Cotaya did not have standing

to bring the motion to dismiss because he did not intervene in the second filed

lawsuit, which she argued was actually the first to be filed. The trial court set Mr.

Cotaya’s motion to dismiss and Ms. Tosh’s motion to strike for hearing on April 3,

24-CA-39 2

2023, the same day as motions were set in the first filed lawsuit (docket numbers

838-243 and 838-251).

After a contradictory hearing, the trial court rendered judgment (1) granting

Mr. Cotaya’s motion to dismiss and dismissing Ms. Tosh’s new petition filed in

docket number 837-862; and (2) denying Ms. Tosh’s motion to strike.

This appeal followed.

LEGAL ANALYSIS

On appeal, Ms. Tosh contends the trial court erred in considering Mr. Cotaya’s

motion to dismiss and dismissing her petition in docket number 837-862. First, Ms.

Tosh asserts that an exception of lis pendens was not filed in this proceeding (i.e.,

Mr. Cotaya filed a motion to dismiss the petition not an exception of lis pendens)

and that “it makes no legal sense to dismiss the first filed lawsuit with or without an

exception of lis pendens.” Even if the trial court determined that the consolidated

successions were subject to an exception of lis pendens, Ms. Tosh asserts that her

petition filed in docket number 837-862 was filed first in the 24th JDC, as indicated

by the lower docket number, and therefore, it should not have been dismissed.

Secondly, Ms. Tosh claims that Mr. Cotaya had no standing to file his motion to

dismiss in docket number 837-862 because he did not intervene in this case.

It is clearly established in Louisiana law that courts should look past the

caption of pleadings in order to ascertain their substance and to do substantial justice

to the parties. La. C.C.P. art. 865; Lawrence v. Ashton Plantation Home Owners

Association, Inc., 22-122 (La. App. 5 Cir. 06/28/22), 344 So.3d 232, 238, writ

denied, 22-1157 (La. 11/01/22), 349 So.3d 5, reconsideration not considered, 22-

1157 (La. 01/18/23), 353 So.3d 129; Smith v. Cajun Insulation, Inc., 392 So.2d 398,

402 fn. 1 (La. 1980). Based on the record, the trial court considered Mr. Cotaya’s

motion to dismiss as an exception of lis pendens. After a careful review of the

substance of Mr. Cotaya’s motion to dismiss, we find the trial court did not err in

24-CA-39 3

considering the substance of the motion to dismiss to be an exception of lis pendens.

We further find Mr. Cotaya, as the succession representative of the Succession of

Edna B. Cotaya, had standing to file the motion to dismiss in this second filed

lawsuit.

“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.” Aisola v. La. Citizens Prop. Ins. Corp., 14-1708 (La.

10/14/15), 180 So.3d 266, 269; Bufkin v. Motwani, 23-412 (La. App. 5 Cir.

03/27/24), 385 So.3d 368, 371. “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 . . .” La. C.C.P. art. 531. (Emphasis added.) Thus,

three requirements must be satisfied for dismissal of a suit pursuant to an exception

of lis pendens: (1) there must be two or more suits pending in a Louisiana court or

courts; (2) the suits must involve the same transaction or occurrence, and (3) the

suits must involve the same parties in the same capacities. Black v. Exxon Mobil

Corp., 14-524 (La. App. 11/25/14), 165 So.3d 1013, 1015; Marco Outdoor

Advertising, Inc. v. KFK Group, Inc., 20-204 (La. App. 5 Cir. 11/16/20), 307 So.3d

339, 344.

The test for ruling on an exception of lis pendens is to inquire whether a final

judgment in the first suit would be res judicata in the subsequently filed suit. Marco

Outdoor Advertising, Inc., 307 So.3d at 344. 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. Id.

24-CA-39 4

The standard of review on a trial court's decision relating to an exception of

lis pendens is whether the trial court abused its sound discretion. Id., citing Zen-

Noh Grain Corp. v. Thompson, 13-110 (La. App. 5 Cir. 08/27/13), 123 So.3d 777,

780; Bufkin, supra. The party filing the exception of lis pendens has the burden of

proving the facts necessary for the exception to be sustained. Id., citing Harris v.

La. Citizens Prop. Ins. Co., 14-120 (La. App. 5 Cir. 10/29/14), 164 So.3d 216, 222.

The law is clear that evidence not properly and officially offered, introduced,

and admitted into evidence cannot be considered, even though it is physically placed

in the record. Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La. 05/21/08), 983

So.2d 84, 88. Documents attached to memoranda do not constitute evidence and

cannot be considered as such on appeal.4 Id. However, La. C.E. arts. 201 (pertaining

to judicial notice of adjudicative facts generally), and La. C.E. art. 202 (pertaining

to judicial notice of legal matters) allow the trial court to take judicial notice

regarding specific matters. Although a court may take judicial notice of its own

proceedings, La. C.E. art. 202 does not allow, nor has it ever been interpreted to

allow, courts to take judicial notice of lawsuit records in other courts. Shannon v.

Vannoy, 17-1722 (La. App. 1 Cir. 06/01/18), 251 So.3d 442, 450. Documentation

of other courts’ proceedings must be offered into evidence in the usual manner. Id.;

La. U.R.C.A., Rule 2-1.7.

A review of the record shows that Mr. Cotaya did not introduce any evidence

in support of his motion to dismiss. Nevertheless, we find the trial court was in the

unique position to have hearings pending in the first filed lawsuit and the second

filed lawsuit on its docket on April 3, 2023. Therefore, we find the trial court was

allowed to take judicial notice of the first and second filed lawsuits, the records of

which clearly showed that the first filed lawsuit, which was transferred from the 22nd

4 This now excludes the evidentiary provisions of La. C.C.P. art. 966 pertaining to motions for summary
judgment, which did not exist at the time of the case cited, Denoux, supra, and similar cases.

24-CA-39 5

JDC, was the first filed action, not the second filed lawsuit. The trial court also

properly observed that Ms. Tosh, despite her knowledge of the pending transfer of

the first filed lawsuit, improperly filed this second lawsuit, docket number 837-862.

Moreover, we find the second filed lawsuit “asserts a cause of action that

arises out of the same transaction or occurrence that is the subject matter” of the first

filed lawsuit and involves the same parties in the same capacities. The fact that Ms.

Tosh succeeded in filing a second lawsuit in the 24 th JDC while the transfer of the

first filed lawsuit was pending, does not mean that Ms. Tosh’s petition, filed with a

lower docket number, was the first filed lawsuit. Consequently, we conclude that

Mr. Cotaya met his burden of proving the requirements for dismissal of the second

filed lawsuit.

Accordingly, we conclude the trial court did not abuse its discretion in

granting Mr. Cotaya’s motion to dismiss, denying Ms. Tosh’s motion to strike

motion, and dismissing the second filed lawsuit, docket number 837-862. The costs

of this appeal are assessed against appellant, Vicki Tosh.

DECREE

For the reasons stated herein, we affirm the trial court’s judgment.

AFFIRMED

24-CA-39 6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 5, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-39
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
J. DOUGLAS SUNSERI (APPELLEE) GEORGE M. MCGREGOR (APPELLANT) JAMES A. HARRY (APPELLANT)
ROBERT J. DAIGRE (APPELLANT) WILLIAM R. PENTON, III (APPELLANT)

MAILED
KATHRYN A. E. SUNSERI (APPELLEE) CESAR R. BURGOS (APPELLANT)
ATTORNEY AT LAW LEILA M. BONILLA (APPELLANT)
3000 18TH STREET ATTORNEYS AT LAW
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