author: JgFITZSIMMONS, J.

text:
    Wallace BEN v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2003 CA 1664.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.

      David J. L’Hoste, New Orleans, Counsel for Plaintiff/Appellant Wallace Ben.
    Albert Thibodeaux, New Orleans, Counsel for Defendant/Appellee Housing Authority of New Orleans.
    Robert R. Boland, Jr., Baton Rouge, Counsel for Allen H. Reynolds Director, Department of State Civil Service.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   JgFITZSIMMONS, J.

Plaintiff, Wallace Ben, appeals the Civil Service Commission’s reinstatement of his termination by the employer-defendant, the Housing Authority of New Orleans (HANO). We affirm.

FACTS AND PROCEDURAL BACKGROUND

Mr. Ben was a civil service employee with permanent status. HANO notified Mr. Ben that he was being terminated from his position as a police officer for insubordination and threatening his superior officer with a gun. Mr. Ben appealed his dismissal, and the matter was heard by a referee appointed by the Civil Service Commission (commission). The referee found that Mr. Ben was insubordinate when he twice refused to follow a direct order from a superior officer; and, after the refusals, engaged in a heated exchange with his superior. However, the referee did not find that the acts of insubordination merited dismissal of an officer with no prior disciplinary action during his almost three years with HANO. In place of the termination, the referee imposed a thirty-day suspension.

HANO applied to the commission for a rehearing. After a review of the record and transcript, the commission found as follows:

On the day of the events in question, another subordinate police officer called [stating] that he would not be able to assume his post, and appellant’s lieutenant called for ..., the appellant [Mr. Ben], to come to a housing project to assume the post of the absent police officer. The lieutenant, himself, proceeded to this post and parked inside the fence surrounding the housing project to await the arrival of the appellant [Mr. Ben], The appellant finally arrived, but the lieutenant felt that an inordinate amount of time had been spent by the appellant in getting to his new post. The lieutenant was aware that part of the delay was caused by the inability to contact the appellant by radio, but the lieutenant testified he also suspected the appellant had not come directly to the location of this new post. The lieutenant’s suspicions were fueled by the fact that the appellant did not come into the gate of the housing project, but parked on the median of the roadway that ran beside the project. In addition, the lieutenant’s uncontradicted testimony was that he had verbally reprimanded the appellant in the past for not traveling directly from one post to another, but, instead, obtaining a meal in the course of the traveling. In this case, the appellant admitted that he had, in fact, | .-¡stopped by an “eatery” to obtain a meal which he had with him in the HANO vehicle parked in the median.
The appellant[Mr. Ben] remained in the HANO police unit in which he had arrived and had parked on the median. It is not clear whether he saw the approach of the lieutenant from the lieutenant’s own police unit. Whatever the case, both the appellant and the -lieutenant agree that when the lieutenant arrived at the driver’s side window of appellant’s unit the appellant saw the lieutenant standing outside the closed window, but did not lower the window until asked to do so by the lieutenant. Both the appellant and the lieutenant agree that conversation then ensued about the inability of the appellant to have been contacted by radio at his previous post, and that the lieutehant asked the appellant to hand him the radio the appellant stated he had in his possession and that was located between the two seats of the HANO vehicle. It is further agreed that the appellant refused to give the radio to his lieutenant, and it is also agreed that further communication ensued between the two about this refusal and culminated in the appellant stating to the lieutenant to “get up off me,” and the appellant’s opening of the vehicle’s door and his partial exit from that door in the direction of his lieutenant. What stopped the appellant’s exit was the slippage of his service pistol from his lap. The appellant caught the falling pistol in his hand and the. lieutenant backed away with a mollifying statement or statements. The lieutenant testified he believed he was being assaulted by the appellant. The appellant then re-entered the vehicle, closed the •door, and put the pistol -in its holster. How the pistol came to be in the appellant’s lap and not in its holster is explained by the appellant. The appellant states that he habitually would, remove his service pistol from its holster and place it in his lap while at a post in order for the pistol to be more readily accessible. His lieutenant and Chief of Police, however, testified that the appellant knew or should have known that while a police officer is on duty, the service pistol should be removed from the holster only to defend life. This conflict, however, need not be resolved as the appellant was not charged by his appointing authority with any fault in removing- the pistol from the holster, and, in fact, the pistol was in the appellant’s lap. •
We readily conclude that the appellant was guilty of gross insubordination in failing to follow the directive of his lieutenant that the radio be given to the lieutenant by the appellant. It was a reasonable directive related to the performance of appellant’s duties, but was intentionally disobeyed by the appellant. The appellant states that he refused to turn over the radio because it was located in such a position that when he moved to pick it up the pistol on his lap would have been exposed to the view of the lieutenant. He states that he did not want the lieutenant to see the pistol because he felt that the lieutenant would then accuse him of pointing the pistol at the lieutenant. We do not consider this as mitigation. The directive given to the appellant was clear, related to police work, and had to be obeyed. The refusal to obey the directive constituted willful, gross insubordination by the appellant.
Upon suffering the insubordination, it might have been a proper course for the lieutenant to remove himself from the area, seek a | replacement for the appellant, and to begin the proceedings to terminate the appellant. An equally proper course, however, was for [him], as a lieutenant of police, to berate his subordinate officer for the insubordination. Whatever its level, the appellant testified that some communication occurred before he exited the vehicle thereby exposing his pistol and causing his lieutenant to believe he was being assaulted. There are two conclusions that can readily be drawn from the appellant’s actions at this point. The first is that the proffered excuse for the insubordination in refusing to turn over the radio had no validity as the appellant readily and voluntarily abandoned the hiding of the gun. The second is that the appellant was escalating his insubordination by moving from the vehicle towards his lieutenant in a threatening manner and under' circumstances that caused him to actually forget about the pistol in his lap. It was the Referee’s conclusion that at this point the appellant was angry with his lieutenant, and the record and transcript readily support this conclusion.
Cause for appellant’s termination from his position as a police officer was shown by his intentional insubordination to his lieutenant in refusing to hand over his radio. The resulting sequence of events is the natural result of such insubordination at the hands of a police officer who has no respect for authority and the actions of appellant in those events constitute an extension of the original insubordination. The appellant has proven himself to be a police officer with little or no respect for authority. The police forces of our society are subject to various levels of control from an immediate^ 'supervisor through to the highest court of our society. These police forces have a great deal of power and authority that may be applied immediately upon the members of society they seek to police. Because of this, respect for these levels of authority is critical to the maintenance of an effective, efficient, and trustworthy police force.... While the HANO police force is not a true military society, it certainly is a quasi-military unit and the minimal conduct demanded of its members is respect for and obedience to higher authority. The appellant has proven himself unwilling or unable to conform to this basic standard for a police officer.

For these reasons, the commission reversed the referee’s decision, and reinstated the termination of Mr. Ben by HANO. In response, Mr. Ben appealed to this court. In his appeal, Mr. Ben asserts that his dismissal was not an appropriate discipline for his infraction and the commission’s decision was arbitrary and capricious.

| ^APPLICABLE LEGAL PRECEPTS

Louisiana Civil Service Rules 13.36(f)3 and 5 provide that the commission may modify or reverse a referee’s decision on an issue of law; and, after a review of the recording or transcript of the hearing before the referee, modify or reverse on an issue of fact. See also La. Const, art. 10, § 12(A). The final decision of the commission is subject to review by the court of appeal on any question of law or fact. La. Const, art. 10, § 12(A). The appellate court should not disturb the commission’s factual findings in the absence of manifest error. Decisions regarding cause for dismissal should not be reversed unless the decision was arbitrary, capricious, or an abuse of the commission’s discretion. Walters v. Department of Police of New Orleans, 454 So.2d 106, 113 (La.1984).

A permanent classified civil service employee cannot be disciplined without cause. La. Const, art. 10, § 8. Cause exists whenever the employee’s conduct is detrimental to the efficient and orderly operation of the public service that employed him. Burst v. Board of Commissioners, Port of New Orleans, 93-2069, p. 5 (La.App. 1 Cir. 10/7/94), 646 So.2d 955, 958, writ not considered, 95-0265 (La.3/24/95), 651 So.2d 284. By its very nature, the refusal to obey a direct ordef impairs the efficient operation of a public service. Housing Authority of Morgan City v. Gibson, 598 So.2d 545, 550 (La.App. 1 Cir.), writ denied, 604 So.2d 1000 (La.1992). This is particularly true if the employment is in a quasi-military capacity, such as a police officer. See Malone v. Department of Corrections, Louisiana Training Institution-Ball, 468 So.2d 839, 841 (La.App. 1 Cir.1985). One specific act of willful disobedience or insubordination may be sufficient legal cause for termination. See Thomas v. Department of Corrections, Office of Probation and Parole, 442 So.2d 554 (La.App. 1 Cir.1983).

| fiAfter a thorough review of the record, we cannot say that the findings of fact by the commission were manifestly wrong. The record here provides a reasonable basis for finding that (1) Mr. Ben, while on duty guarding a project that he believed was in a dangerous area, specifically refused to obey a superior’s direct order, (2) Mr. Ben, during the confrontation, became visibly angry toward his superior and used inappropriate and disrespectful language, and (3) the gross insubordination impaired the efficient and orderly operation of the HANO police service. The facts as found by the commission evince more than a single act of serious and material insubordination by a police officer while on duty. Mr. Ben’s excuse for reporting late was an inoperable radio. Whether the radio was working, a question concerning an obviously important means of communication between officers on duty, was a legitimate concern. Mr. Ben’s refusal to obey such a legal, direct order cannot be excused by his fear that he would be reprimanded for a possible misunderstanding involving the un-holstered gun. Nor can his apparent anger at being asked to turn over the radio excuse the disrespectful words and actions. Certainly, reasonable minds might differ on whether termination was the only possible discipline. However, we cannot conclude that the commission’s analysis of the seriousness of gross insubordination in a quasi-military organization, and the commission’s resulting decision under these particular facts, were arbitrary or capricious exercises of its authority.

For these reasons, we affirm. The costs of the appeal are assessed to Mr. Ben.

AFFIRMED.


source: Caselaw Access Project

author: | ¡WHIPPLE, J. .

license: Public Domain

text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. Celeste Stewart BYNUM.
    No. 2003 CA 1671.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 2004.
    Rehearing Denied June 28, 2004.

      Charles K. Watts, Baton Rouge, George B. Dean; Jr., Monroe, for Plaintiff/Appellant, Mortgage Electronic Registration Systems, Inc.
    Kathleen E. Petersen, Fred Duhe’, Assistant Attorneys General, for Interve-nor/Appellee, State of Louisiana.
    L. Stephen Rastanis, Baton Rouge, for Defendant, Celeste Stewart Bynum.
    Before: WHIPPLE, KUHN and MCDONALD, JJ.
   | ¡WHIPPLE, J. .

Plaintiff, Mortgage Electronic Registration Systems,. Inc., appeals the judgment of the trial court nullifying a purported transfer of property upon which it had granted a mortgage and holding that the notice of lis pendens filed by the State of Louisiana outranked its mortgage. For the following reasons, we modify and affirm.

FACTS AND PROCEDURAL HISTORY

On August 20, 2001, the State of Louisiana instituted a forfeiture proceeding against Kemp J. Oubre and Martisa Henderson in the Nineteenth Judicial District Court, wherein the State sought, in part, forfeiture of immovable property owned by Oubre. Specifically, the State contended that Henderson had pled guilty to one felony count of money laundering of more than $100,000.00, in violation of LSA-R.S. 14:230, as a result of her receipt and transfer of fraudulently obtained Medicaid funds on behalf of her business, T & K Rehabilitation Services. The State further averred that its criminal investigation revealed that Henderson had used $117,439.13 of the illegally obtained Medicaid funds to construct a house located at 58867 Captain T. Harris Street in Plaque-mine, Louisiana, and that the house and property were listed in the name of Oubre, a former boyfriend of Henderson. Accordingly, pursuant to LSA-R.S. 46:437.1, et seq., the Medical Assistance Programs Integrity Law, the State sought an order of forfeiture of the home from Oubre, in that it was derived from illegally obtained Medicaid funds.

Oubre was served with a copy of the forfeiture petition on September 24, 2001. Thereafter, on October 8, 2001, Oubre executed a “Quitclaim Deed,” through which he transferred to Celeste Stewart-Bynum whatever “right, title, interest and claim” he had to the subject property for the stated consideration of $1.00. The quitclaim deed was recorded in the conveyance Lrecords of Iberville Parish the following day, October 9, 2001. On October 22, 2001, Bynum then borrowed $151,300.00 from Aegis Mortgage Corporation, and, as security for the note, executed a mortgage on the property in favor of Mortgage Electronic Registration Systems, Inc. (MERS). Despite the earlier quitclaim deed, Bynum and Oubre also executed an act of cash sale on October 22, 2001, in conjunction with the mortgage, with a stated consideration of $178,000.00. The act of cash sale and mortgage, however, were not immediately recorded in the mortgage and conveyance records.

On November 6, 2001, the State filed in the mortgage records of Iberville Parish a Notice of Lis Pendens, giving notice of its claim against the property located at 58867 Captain T. Harris Street in Plaquemine. See LSA-C.C.P. arts. 3751-3753. The notice of lis pendens contained the title, docket number and date of filing of the State’s forfeiture petition, as well as the State’s allegations regarding its right to forfeiture of the property at issue. In addition to listing the municipal address of the property, the notice of lis pendens also gave a full legal description of the property to which it claimed an interest.

On December 6, 2001, subsequent to the State’s filing of its notice of lis pendens, Aegis recorded the Oubre to Bynum act of cash sale and its mortgage in the conveyance and mortgage records of Iberville Parish, respectively.

Thereafter, on June 20, 2002, MERS filed a petition entitled “Suit on Note with Recognition of Mortgage,” naming Bynum as defendant. In its petition, MERS contended that Bynum had defaulted on the note and mortgage affecting the subject property, and it sought judgment in its favor in the amount of $151,071.64 and recognition of its mortgage.

14Subsequently, the State, through the Attorney General, intervened in the matter, seeking to have the sale of the property from Oubre to Bynum declared null as a simulated sale and requesting that the Sheriff of Iberville Parish be ordered to hold any proceeds of any judicial sale until further order of the court regarding the ranking of the State’s and MERS’ claims to the property at issue.

The State’s intervention was tried on April 9, 2003. The evidence at the trial established that Bynum had been approached by Kenneth Bradford and Tyrone Dunn, who requested that she “help out” one of Dunn’s friends whose family was losing their home. According to By-num, Bradford and Dunn told her that she would be paid $5,000.00 to complete the transaction and that they would buy the house back from her within one year. Accordingly, Bynum executed the quitclaim deed and subsequently also executed an act of cash sale and mortgage. Bynum testified that a false W-2 and payroll check were presented to Aegis to obtain the mortgage, that she never had access to the house she had allegedly acquired, that she received $5,000.00 for her actions in executing the documents and that she had no knowledge of what happened to the rest of the loan money.

The testimony at the trial of the intervention also established that a contradictory hearing had taken place in the forfeiture proceeding, and judgment had been rendered in favor of the State with regard to the funds utilized in the construction of the home on Oubre’s property.

At the close of the trial, the trial court found as a fact that the alleged sale of the property was fraudulent and, thus, declared the sale null and void. The court further ruled that the State’s notice of lis pendens outranked MERS’ mortgage. Accordingly, the court rendered judgment declaring the quitclaim deed and act of cash sale between Oubre and Bynum null and | ^ordering that the notice of lis pen-dens filed by the State on November 6, 2001 outranked the mortgage filed by Aegis on December 6, 2001.

From this judgment, MERS appeals, contending that the trial court erred: (1) in failing to hold that the State’s forfeiture and lien ranking rights under LSA-R.S. 46:437.6 and 46:437.7 are subject to the Public Records Doctrine pursuant to LSA-R.S. 46:437.6(B), which requires the State to file a notice of lis pendens under the Louisiana Civil Code; (2) in failing to hold that MERS’ mortgage outranked the State’s notice of lis pendens where Oubre transferred the property to Bynum prior to the State recording its lis pendens and the lis pendens failed to name Bynum, the record owner of the property; and (3) in holding that the language of LSA-R.S. 46:437.7(0 or LSA-R.S. 46:437.9(0 provides an exception to the Public Records Doctrine and allows the State to void a mortgage against property acquired by a mortgagee who relied upon the public records.

DISCUSSION

In 1997, the Louisiana Legislature enacted the Medical Assistance Programs Integrity Law, LSA-R.S. 46:437.1 et seq., to combat and prevent fraud and abuse committed by health care providers participating in medical assistance programs. LSA-R.S. 46:437.2. The Law grants the State the right to pursue damages, penalties and other remedies from health care providers and others who through fraud obtain payments from medical assistance programs to which they are not entitled. See LSA-R.S. 46:437.2(B). 1 ^Pursuant to LSA-R.S. 46:437.7, a court may order forfeiture of property by the health care provider or other person where the property was derived directly or indirectly from gross proceeds traceable to payments obtained fraudulently from a medical assistance program. Additionally, if the State can demonstrate that property was transferred to a third party to avoid paying of recovery, or in an attempt to protect the property from forfeiture, the court may order the third party to forfeit the transferred property. LSA-R.S. 46:437.7(A)(2).

The Medical Assistance Programs Integrity Law also grants the State a privilege against all property owned by the health care provider or other person from whom recovery is due. However, the privilege shall be effective as to third parties only under certain circumstances, as follows:

A. Recovery shall be granted a privilege under state law as to all property owned by the health care provider or other person from whom recovery is due and shall be effective as to third parties only if notice of pendency, lis pendens, is placed on the property, if recorded and reinscribed in accordance with Civil Code Articles 3320 through 3327, or if the conditions of Subsection C of this Section are applicable.
C. If property is transferred to a third party to avoid paying of recovery, or in an attempt to protect the property from forfeiture, the privilege provided in Subsection A of this Section shall rank ahead of any. other privilege, mortgage, or secured interest on the transferred property obtained or possessed by the person who obtains an ownership interest in the transferred property.

LSA-R.S. 46:437.9.

|7In support of its position at the trial of its intervention that its privilege outranked MERS’ mortgage, the State argued that its notice of lis pendens was recorded in accordance with Civil Code articles 3320 through 3327 and was filed in the mortgage records prior to MERS’ recordation of its mortgage. Additionally, the State argued that the conditions of Subsection (C) of LSA-R.S. 46:437.9 were also met in that the property had been transferred to a third person (Bynum) in an attempt to protect the property from forfeiture and a mortgage had then been placed on the property. Thus, the State contended, its privilege outranked the mortgage placed on the transferred property by Bynum. In ruling in favor of the State and finding that the State’s privilege outranked the MERS mortgage, the trial court held that the Medical Assistance Programs Integrity Law, as newer legislation, superceded the Public Records Doctrine.

On appeal, MERS contends that the trial court erred in ruling that the State’s privilege outranked its mortgage because: (1) LSA-R.S. 46:437.9 does not contain any language providing that the State’s forfeiture and privilege rights are not subject to the Public Records Doctrine; (2) the State’s notice of lis pendens was defective, and thus, ineffective as to MERS, in that it did not list the record owner of the property; and (3) Subsection (C) of LSA-R.S. 46:437.9 is inapplicable under the facts herein in that the mortgage over which the State seeks priority ranking was not “obtained or possessed” by the person who obtained an ownership interest in the transferred property (ie., Bynum), but instead was “obtained or possessed” by an innocent third party who relied upon the public records in granting the mortgage (ie., MERS).

Pursuant to Subsection (A) of LSA-R.S. 46:437.9, the State’s privilege is effective as to third parties only if (1) a notice of lis pendens is ^properly filed, or the conditions of Subsection (C) are applicable. The purpose of a notice of lis pen-dens is to give effective notice to third persons of the pendency of an action affecting title to, or asserting a mortgage or lien on, immovable property. LSA-C.C.P. art. 3751; Campbell v. Melton, 2001-2578, p. 5 n. 4 (La.5/14/02), 817 So.2d 69, 74 n. 4; L.E.C., Inc. v. Collins, 332 So.2d 565, 568 (La.App. 1st Cir.1976). The recordation of the notice of lis pendens makes the outcome of the suit of which notice is given binding on third parties. Campbell, 2001-2578 at p. 5 n. 4, 817 So.2d at 74 n. 4.

Subsection (A) of LSA-R.S. 46:437.9 clearly states that the State’s notice of lis pendens must be recorded in accordance with Civil Code articles 3320 through 3327. Louisiana Civil Code article 3320 provides that a mortgage, privilege or other encumbrance is given the effect of re-cordation when it is filed with the recorder of mortgages. Moreover, LSA-C.C. art. 3321(3) provides that to be given the effect of recordation, a document filed to create a legal privilege “must be in the form prescribed by the law for the establishment of the encumbrance.” Louisiana Code of Civil Procedure article 3751 provides that the pendency of an action affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person unless a notice of pendency of the action (ie., a notice of lis pendens) is filed or recorded as required by LSA-C.C.P. art. 3752. The form prescribed by law for a notice of lis pendens is found in LSA-C.C.P. art. 3752, which likewise requires that the notice of lis pendens be filed in the mortgage office of the parish where the property is located 19and which provides that the notice of lis pendens has effect “from the time of the filing for recordation.”

Clearly, these codal provisions, LSA-C.C. arts. 3320 and 3321 and LSA-C.C.P. arts. 3751 and 3752, embody the concept of the Public Records Doctrine. The Public Records Doctrine provides that no written instrument affecting immovable property shall be binding on or affect third persons “unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated.” See LSA-R.S. 9:2721(A). The Public Records Doctrine is essentially a negative doctrine declaring that what is not recorded is not effective except between the parties, and that a third party in purchasing, or otherwise dealing with, immovable property is entitled to rely upon the absence from the public records of any unrecorded interest in the property. LSA-R.S. 9:2722; Hospital Service District No. 2 of Parish of Lafourche v. Community Bank of Lafourche, 2000-1035, p. 10 n. 9 (La.App. 1st Cir.6/22/01), 790 So.2d 688, 696 n. 9.

Accordingly, we conclude that under the provisions of LSA-R.S. 46:4S7.9(A), where the State’s privilege is dependent upon its filing of a notice of lis pendens, the ranking of its privilege is clearly subject to the Public Records Doctrine, but the State’s privilege may outrank a prior recorded privilege, mortgage or security interest where the conditions of Subsection (C) of LSA-R.S. 46:437.9 are met. Thus, we next consider MERS’ argument that the State’s notice of lis pendens was ineffective in that it failed to name the record owner of the property.

As stated above, LSA-C.C.P. art. 3752 prescribes the form for a notice of lis pendens, and it states, in pertinent part, as follows:

The notice referred to in Article 3751 [notice of lis pendens] shall be in writing, signed by the plaintiff, defendant, or other party to the action or proceeding who desires to have the notice 1 inrecorded, or by a counsel of record for such party, showing the name of the court in which the action or proceeding has been filed, the title, docket number, date of filing, and object thereof, and the description of the property sought to be affected thereby.

The sole purpose of the notice of lis pendens is to inform the general public of the precise property involved in litigation which affects the title to the property or asserts privilege on that property. L.E.C., Inc., 332 So.2d at 568. Given that the purpose of a notice of lis pendens is to inform the public of the precise property to which a claim or privilege has been asserted, LSA-C.C.P. art. 3752 understandably requires that the notice of lis pendens contain “the description of the property sought to be affected thereby.” Notably absent from the requirements of a notice of lis pendens as set forth in article 3752, however, is the name of the record owner of the property.

In support of its contention that the State’s notice of lis pendens was ineffective as to third parties, MERS relies upon the Third Circuit Court of Appeal opinion of Cardinal Federal Savings Bank v. Corporate Towers Partners, Ltd., 629 So.2d 462, 464-465 (La.App. 3rd Cir.1993), writ denied, 94-0071 (La.3/11/94), 634 So.2d 396. In that ease, the court was faced with the question of ranking of liens, | n notices of lis pendens and a subsequently granted mortgage. Cardinal Federal Savings Bank, 629 So.2d at 463. In affirming the trial court’s conclusion that the mortgage outranked the prior recorded liens, the court of appeal held that a lien must be perfected in the name of the true owner of the subject property to be effective against third parties. Cardinal Federal Savings Bank, 629 So.2d at 464. With regard to the ranking of the mortgage and the prior recorded notices of lis pendens, the court of appeal also noted that the notices of lis pendens did not list the proper name of the owner of the property and likewise concluded that notices of lis pendens were ineffective against the mortgage holder’s claim. Cardinal Federal Savings Bank, 629 So.2d at 464-465. However, in reaching its conclusion, the court of appeal also stated that there is no law or jurisprudence that considers the suit index the “public records” for purposes of title searches and that the notice of lis pendens had been “improperly filed.” Cardinal Federal Savings Bank, 629 So.2d at 464-465. Thus, it is unclear from our reading of the opinion whether the court of appeal concluded that the notices of lis pendens at issue therein were “improperly filed” because they failed to name the true owner of the property at issue or because they were filed in the suit records rather than in the mortgage records as required by LSA-C.C.P. art. 3752.

Nonetheless, we note that the Third Circuit in reaching its opinion in Cardinal Federal Savings Bank did not cite to LSA-C.C.P. art. 3752, which specifically delineates the requirements for a notice of lis pendens. As stated above, LSA-C.C.P. art. 3752, while requiring a description of the property at issue, simply does not require that the record owner be listed in the notice of lis pendens. Accordingly, to the extent that Cardinal Federal Savings Bank stands for the proposition that a notice of lis pendens must contain the name of the record owner of the property to be effective against third parties, we decline to follow it.

In the instant case, the State’s notice of lis pendens complied with all of the requirements set forth in LSA-C.C.P. art. 3752 and was filed in accordance with the provisions of LSA-C.C. art. 3320, as required by LSA-R.S. 46:437.9(A). Accordingly, we conclude that the State’s notice of lis pendens was effective as to third parties from the date on which it was recorded in the mortgage records for the Parish of Iberville, i.e., on November 6, 2001. MERS’ mortgage was not recorded in the mortgage [^records until December 6, 2001. Rank of a creditor’s claim is established by the priority of its registry in the appropriate public record. LSA-C.C. art. 3308; LSA-R.S. 9:2721; United Credit Plan of Gretna v. Pullen, 448 So.2d 95, 99 (La.1984). Thus, the trial court properly held that the State’s privilege granted pursuant to LSA-R.S. 46:437.9 outranked MERS’ mortgage. We note that the language of the judgment provides that the “Lis Pendens” filed by the State outranked MERS’ mortgage. Technically, it is the privilege granted by LSA-R.S. 46:437.9, which is effective as to third parties upon the filing of the lis pendens, that outranks MERS’ mortgage. For purposes of clarity, we modify the trial court’s judgment accordingly.

Accordingly, because we find no error in the trial court’s conclusion that the State’s notice of lis pendens was valid and that its privilege outranked MERS’ mortgage, we pretermit consideration of MERS’ argument that the provisions of Subsection (C) are inapplicable to the facts herein.

DECREE

For the above and foregoing reasons, the portion of the April 21, 2003 judgment of the trial court addressing the issue of ranking is modified to provide:

IT IS FURTHER ORDERED that the privilege granted to the State of Louisiana pursuant to LSA-R.S. 46:437.9, which became effective as to third parties upon the filing of the notice of lis pendens by the State of Louisiana on November 6, 2001, with the Iberville Parish Clerk of Court’s Office in Mortgage Book 363, Entry 019, shall outrank the mortgage in the sum of $151,300.00 filed by Aegis Mortgage Corp. (successor in interest being plaintiff Mortgage Electronic Registration Systems, Inc.) on December 6, 2001, with the Iberville Parish Clerk of Court’s Office in Mortgage Book 364, Entry 143.”

In all other respects, the judgment is affirmed. Costs of this appeal are assessed against Mortgage Electronic Registration Systems, Inc.

MODIFIED AND AFFIRMED.

      . For purposes of determining whether this matter is properly before us on appeal, we note that pursuant to LSA-C.C.P. art. 1915(A)(4), a partial final judgment may be rendered by the trial court where the court signs a judgment on an incidental demand, when the principal and incidental demand have been tried separately. See also LSA-C.C.P. art. 1038. Although the trial court designated the judgment at issue as final for purposes of immediate appeal, we note that a partial final judgment rendered pursuant to LSA-C.C.P. art. 1915(A) is appealable without being so designated. LSA-C.C.P. art. 1915, Comment — 1999; Motorola, Inc. v. Associated Indemnity Corporation, 2002-0716, pp. 10-11 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 720-21.

      . Prior to forfeiture of the property, the State, through the secretary of the Department of Health and Hospitals or the attorney general, must prove by clear and convincing evidence at a contradictory hearing that the property is subject to forfeiture under the Medical Assistance Programs Integrity Law. LSA-R.S. 46:437.7(B).

      . If the property is transferred to another person within six months prior to or after the occurrence of a violation for which recovery is due or within six months prior to or after the institution of a criminal, civil or departmental investigation or proceeding, such a transfer shall be prima facie evidence that the transfer was to avoid paying recovery or an attempt to protect the property from forfeiture. LSA-R.S. 46:437.7(C).

      . Louisiana Revised Statute 46:437.6(B) also provides that the State "may place a notice of pendency of action, lis pendens, on the property of a health care provider or other person during the pendency of a criminal, civil, or departmental proceeding” pursuant to "Code of Civil Procedure Articles 3751 through 3753.”


author: LGAIDRY, J.

text:
    Melissa Cornes Maraist, Wife of/and Patrick Ellis MARAIST, Individually and on Behalf of Their Minor Daughter, Brittany Maraist v. ALTON OCHSNER MEDICAL FOUNDATION, Ochsner Health Plan, Medical Center of Baton Rouge, Inc., Health Trust Options, Inc., d/b/a Health Trust Inc., Lois H. Gesn, M.D., Shaun M. Kemmerly, M.D. and David C. Kemp, M.D.
    No. 2002 CA 2677.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 2004.

      Harry T. Widmann, Metairie, Counsel for Plaintiff/Appellant Melissa Cornes Ma-raist, wife oPand Patrick Ellis Maraist, individually and on behalf of their minor daughter, Brittany Maraist.
    Stephanie Laborde, Covington, Counsel for Defendaht/Appellee Louisiana Patient’s Compensation Fund.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   LGAIDRY, J.

This is an appeal from a district court judgment upholding an administrative adjudication by the Louisiana Patient’s Compensation Fund Oversight Board. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In February 1992, Brittany Maraist, daughter of plaintiffs, Melissa Comes Ma-raist and Patrick Ellis Maraist (the Ma-raists), suffered severe neurological injuries as the result of medical malpractice. The Maraists sued and ultimately settled with the health care provider, and then proceeded against the Louisiana Patients’ Compensation Fund (PCF). The PCF settled with the Maraists for their general damages, medical expenses through August 31, 1995, and parental custodial care through September 30, 1995, with the Ma-raists reserving their rights against the PCF with respect to medical expenses and custodial care from those dates forward.

The Maraists were reimbursed by the PCF for the actual costs incurred by them to hire sitters to care for Brittany and were also reimbursed for their own time. The reimbursement for the sitters was at the rate of $11.00 per hour, and the reimbursement for the Maraists’ time was at a rate of $6.00 per hour. The Maraists were reimbursed for care for Brittany twenty-four hours per day, seven days per week, regardless of the fact that some of their time was spent sleeping, caring for their other small children, and performing household tasks, in recognition of the fact that Brittany might need care from them at any time.

The Maraists were reimbursed at the above rates from the time of the injury through August 12, 1997. On August 12, 1997, the Maraists sent a letter to the PCF, requesting that the reimbursement rate for care they personally provided be increased to $15.00 per hour. The PCF Claims UCommittee held an administrative hearing on April 2, 1998 to consider the request, and after the hearing, the committee made a recommendation that the Ma-raists’ hourly reimbursement rate be raised from $6.00 per hour to $8.00 per hour. The committee recommended that the increase not be made retroactive. The committee’s recommendation was adopted by the PCF Oversight Board on October 1, 1998, and the Maraists filed a petition for judicial review in accordance with La. R.S. 49:964(A)(1).

The trial court held a judicial review hearing and afterwards found that grounds for reversing or modifying the administrative decision of the PCF’s Oversight Board did not exist. A judgment affirming the PCF’s decision was rendered on September 26, 2002, and this appeal followed.

On appeal, the Maraists make the following assignments of error:

1. The district court committed an error of law in that it applied the “arbitrary and capricious” standard when, in actuality, the “preponderance of the evidence” standard governed.
2. The unrefuted and indisputable testimony offered by plaintiffs below demonstrated that this case is indistinguishable from Kelty v. Brumfield, 96-0869 (La.App. 4 Cir. 3/12/97), 691 So.2d 242, and the trial court erred in not granting relief consistent with that decision.
3. The district court erred in not making the increase awarded by the PCF Oversight Board retroactive from October 1995, with interest and attorney fees.

DISCUSSION

When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. Once a final | ¿judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Blair v. Stadler, 99-1860, p. 9 (La.App. 1 Cir. 1/31/01), 798 So.2d 132, 139; Blanchard v. Allstate Ins. Co., 99-2460, p. 5 (La.App. 1 Cir.10/18/00), 774 So.2d 1002, 1005, writ denied, 01-0285 (La.3/23/01), 787 So.2d 997.

Standard of Judicial Review

Louisiana Revised Statutes 49:964(G) provides that the district court may reverse or modify the decision of the administrative agency on judicial review only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

The Maraists claim that the district court erred in applying the “arbitrary and capricious” standard instead of the “preponderance of theRevidence” standard. A review of the trial court’s judgment reveals that this claim is baseless. The trial court judgment states that:

[T]he Court finds that the administrative decision rendered by the Louisiana Patients’ Compensation Fund Oversight Board regarding the proper hourly rate for parental custodial care provided to Brittany by her parents is reasonable, supported by the evidence, not arbitrary or capricious, and within the discretionary authority of the Board to decide such matters.

Thus, it is clear that the court considered both the “preponderance of the evidence standard” and the “arbitrary and capricious” standard, and determined that reversal or modification of the Board’s decision was not warranted. This assignment of error is without merit.

Distinguishability from Kelty

The plaintiffs next assert that their case is factually indistinguishable from Kelty v. Brumfield, 96-0869 (La.App. 4 Cir. 3/12/97), 691 So.2d 242, and the trial court erred in not awarding relief consistent with Kelty.

In Kelty, the plaintiffs’ child was born with severe mental and physical handicaps because of an act of medical malpractice. The Keltys settled with the health care provider, and it was determined that they were also entitled to future care and related medical benefits under La. R.S. 40:1299.43. After an administrative hearing, the Board’s Claims Committee made an award to the Keltys which included payment for custodial care.

The Keltys filed a petition for judicial review, arguing that the Board’s decision was manifestly erroneous and an abuse of discretion. The Keltys demanded that Mrs. Kelty be paid for twenty-four hours per day for custodial care and that Mr. Kelty be paid for sixteen hours per day for custodial care. The Keltys also requested that the rate of reimbursement for custodial care be increased from $6.00 per hour to $31.00 per hour. The trial court rendered a judgment on January 22, 1996, which found the payment of [ fi$6.00 per hour to be manifestly erroneous and modified the award to increase the rate of reimbursement. On appeal, the Board argued that it was limited to reimbursement at a rate of $6.00 per hour because, in December of 1993, the Board adopted a rule that imposes a $6.00 per hour limit on services provided by a family member, regardless of their level of training. See LAC 37:111, Chapter 19 § 1917(B). The court of appeal declined to address the efficacy of the Board’s limit on the value of services provided by a family member because the rule had no retroactive effect under La. R.S. 49:954(B), and the Keltys filed for custodial care reimbursement ten years prior to the rule’s enactment. Because the court found that the $6.00 limit imposed by LAC 37:111, Chapter 19 § 1917(B) was not applicable to the Keltys’ case, and because they found that the services provided by the Keltys were more comparable to nursing care than sitter care, even though the Keltys were not formally trained, licensed, or certified, the court awarded them $15.00 per hour for custodial care. The court based its finding that the care provided by the Keltys was more akin to nursing care than sitter care on the following facts:

1. The Keltys fed the child four times per day through a gastro-intestinal tube, which involved administering medications, feeding, monitoring for vomiting, and gas release through the gastro-intestinal tube after the feeding. The feedings lasted approximately one and a half hours each, with the first feeding beginning at 8:45 a.m. and the last feeding concluding at 2:10 a.m.
2. Mrs. Kelty provided both physical and occupation therapy for the child every day, for which Mrs. Kelty received informal training by therapists.
|73. The child received a daily bath, which required the assistance of both parents because she could not sit unattended.
4. At least every other day, the Keltys administered either a suppository or an enema to facilitate elimination because the child’s bowels could not function independently.
5. The Keltys monitored the child for a gag reflex twenty-four hours per day to prevent her from aspirating vomit, which could be lethal.

Regarding the Kelty’s request that they be paid for twenty-four hours per day for Mrs. Kelty’s services and sixteen hours per day for Mr. Kelty’s services, the court noted that, although the child required continual monitoring, it was unrealistic to assume that at all times one of the parents attended to her to the exclusion of all other tasks. In addition, the court noted that parents are obligated to provide a certain level of care for their children. The court estimated from the testimony in the record that the amount of time Mrs. Kelty spent completing tasks other than caring for the child and the amount of time she would have normally spent caring for the child would be approximately four to five hours per day. Therefore, the court reduced the Keltys’ daily reimbursement amount by twenty percent.

Although Brittany Maraist’s condition and needs are similar to the Keltys’ child, Brittany’s daily care is primarily provided by sitters who have been trained by Melissa Maraist. On a typical weekday, the sitters arrive at 8:00 a.m. and provide the great majority of Brittany’s care until 5:00 p.m. In addition, the sitters generally care for Brittany an additional five to fifteen hours during the weekend. These sitters are paid for in full by the PCF. When the sitters are not present, Brittany’s parents, primarily her mother, provide her care. The care provided by the Maraists after the sitters leave consists of the following:

| sl. When the sitters leave at 5:00 p.m., Brittany is usually sitting strapped in a chair to give her a different position. Melissa checks on Brittany while she cooks dinner and does homework with her older child.
2. At 7:00 p.m., Melissa changes Brittany’s diaper and positions her in her bed.
3. At 9:00 p.m., Melissa gives Brittany her last feeding, puts on a nighttime diaper, connects her water pump, and Brittany goes to sleep. The Maraists have a baby monitor so that they can monitor Brittany while she is sleeping. Periodically, when Brittany is sick or is having a bad seizure, the Maraists provide care during the night; however, typically both Brittany and the Maraists sleep through the night without interruption.
4. Between 7:30 and 8:00 a.m., Melissa removes Brittany’s pillows and turns off her water pump. The sitters arrive to care for Brittany at 8:00 a.m.

Unlike the Keltys, the Maraists have sitters who primarily care for Brittany. The sitters provide all but one of Brittany’s feedings, medications, and treatments on weekdays, and provide about half of them on weekends. In addition, during the time the sitters are paid by PCF to provide care for Brittany, they occasionally care for the Maraists’ two other children, at no additional cost to the Maraists. Moreover, the majority of the time that the Maraists are providing Brittany’s care, she is asleep, and about half of that time the Maraists are also asleep. This case is factually distinguishable from Kelty, and this assignment of error is without merit.

| ¿Retroactivity of Award, Interest, and Attorneys’ Fees

The Maraists next assert that the district court erred in not making the increase awarded by the PCF Oversight Board retroactive to October 1995, with interest and attorney fees.

Subsequent to their settlement of parental custodial care through September 30, 1995, the Maraists made claims for reimbursement on a regular basis for parental custodial care. They accepted the reimbursement each time. Finally, in August of 1997, the Maraists’ attorney sent a letter to the PCF, stating “At this time I must demand that the compensation for the Maraist’s [sic] be corrected and increased to $15.00 per hour on a 24 hour per day basis with credit for those times when the private duty nurse is on service.” There was no request that the award be made retroactive. Also, the Maraists’ claim for an increase was based on then-assertion that their case is factually indistinguishable from Kelty; however, as we have already pointed out, there are significant factual distinctions between this case and Kelty, and the circumstances warranting an increased award in Kelty simply do not “exist here. The fact that the Oversight Board elected to increase the Ma-raists’ rate of compensation at the time of their 1997 request does not effect the previous payments made under the settlement. Thus, the trial court did not err in refusing to modify the decision of the Oversight Board to make the increase retroactive.

The Maraists’ demand for attorney-fees is governed by La. R.S. 40:1299.43(E)(2), which provides that the court “shall award reasonable attorney fees to the claimant’s attorney if the court finds that the patient’s compensation fund unreasonably fails to pay for medical care within thirty days after submission of a claim for payment of such benefits.”

|10The trial court, in declining to award attorney fees, found that the PCF did not unreasonably fail to pay for medical care within thirty days after submission of a claim. This finding is supported by the record. The Maraists do not assert that the PCF has failed to pay any of then-claims for reimbursement within thirty days of submission. Furthermore, the Maraists did not even request an increase in the award until August 12, 1997, so it cannot be argued that the PCF was unreasonable in failing to pay them an increased amount in October of 1995. Finally, in their attorney’s letter to PCF requesting an increase, the Maraists do not ask that the rate of compensation be made retroactive; they simply ask that it be increased based upon the increase recently awarded to the Keltys. The denial of attorney fees was appropriate.

The Maraists were awarded judicial interest on the increase from $6.00 per hour to $8.00 per hour; their argument on appeal is that this award of interest should be made retroactive to October 1995. Since we have decided that the increase should not be made retroactive to October 1995, interest retroactive to that date is likewise inappropriate.

This assignment of error is without merit.

DECREE

For the above reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed to appellants, Melissa and Patrick Maraist.

AFFIRMED.

      . La. R.S. 49:964(A)(1) provides that a person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under Title 49, Chapter 13.