Hope Developers & Charbonnet, Inc. v. Ourso

COVINGTON, Judge. This court issued a Show Cause Order pursuant to a motion to dismiss filed by the plaintiffs-appellees, which are a partnership in commendam and a corporation. A recitation of other litigation is deemed appropriate. Ann Cook Ourso, appellant herein, and William D. Ourso were husband and wife. They were legally separated in August, 1980. A community property settlement was entered into, in which agreement she transferred her interest in certain immovable property in which the appellees herein also have an interest. Mr. Ourso is not a disinterested party to this action because he has an ownership participation in one or both of the appellees. Three suits have since arisen. In one suit, Mrs. Ourso sued to annul the community property settlement agreement and, in connection therewith, filed a notice of lis pendens. The suit for annulment was decided adversely to her. Mover alleges that no appeal was taken by her. In another action, Mrs. Ourso sued Mr. Ourso on a promissory note given by him in August, 1980, as part of the consideration in the settlement agreement. She obtained a judgment in excess of $200,000 and recognition of a mortgage on certain immovable property. He has appealed and that case bears docket number 83 CA 0534 in this court. In yet another suit, the matter sub judice, plaintiffs sought and obtained a judgment ordering that the notice of lis pendens be canceled. Mrs. Ourso appealed and her appeal was previously maintained by this court, Watkins, J., following a motion by these movers to dismiss it as being taken untimely. Now, the plaintiffs-appellees-movers ask that the appeal be dismissed as being moot. Counsel for Mrs. Ourso has not favored us with a brief in opposition thereto. However, while there are numerous allegations relative to the suit to annul and its denouement, there is no authentic documentation in the record upon which we might safely rely in order to ascertain the necessary facts to enable us to make a determination of this issue. The movers have not borne the burden of proof. Therefore, the motion to dismiss is denied, at movers’ cost. MOTION DENIED.