text:
    BROOKEWOOD INVESTMENTS CO., L.L.C. v. SIXTY-THREE TWENTY-FOUR CHEF MENTEUR HIGHWAY L.L.C. and Jacob V. Morreale.
    No. 2012-CA-1205.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Scott J. Sonnier, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Charles E. McHale, Jr., New Orleans, LA, Lawrence Blake Jones, Errol B. Conley, Scheuermann & Jones, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| ¡.The plaintiff, Brookewood Investments Co., L.L.C. (“Brookewood”), appeals the trial court’s judgment that failed to adjudicate a tax sale as an absolute nullity, in addition to its determination that Brooke-wood’s only source of reimbursement is from the defendant, Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C. (“Sixty-Three”) and Jacob Morreale (“Morreale”) and not the City of New Orleans (“the City”). For the following reasons, we amend the trial court’s judgment and affirm the judgment as amended.

In 2006, Brookewood filed a motion for writ of seizure and possession, seeking corporeal possession of certain immovable property located at 6324 Chef Menteur Highway, New Orleans, Louisiana. Brookewood had acquired the property, which was assessed in the name of Mr. V.A. Morreale, on 10 November 2003 at a tax sale conducted by the City of New Orleans subsequent to the accumulation of $591,343.03 in unpaid ad valorem taxes for years 1999, 2000, 2001, and 2002. Brooke-wood paid the full amount of the taxes, in addition to $140.00 in costs. A tax deed memorializing the transaction was recorded at CIN 281131 on 20 April 2004 in the Orleans Parish conveyance records.

^Responding to Brookewood’s motion, Sixty-Three and Morreale filed a recon-ventional demand seeking to annul the tax sale on the grounds that the City had assessed the property in an erroneous name and failed to provide the requisite notice to the proper owner of record. At the time of the advertisement and eventual tax sale, the assessment records indicated that the property was owned by V.A. Morreale for nearly forty years. Pursuant to an Act of Capital Contribution dated 30 September 1994, Sixty-Three became the owner of the property; recordation of this property transfer was never made.

Brookewood then filed a third-party demand against the City and Norman S. Foster, in his capacity as the Ex-Officio Tax Collector of the City. Brookewood averred that pursuant to La. C.C. art. 2033, in the event the tax sale was deemed an absolute nullity, it would be owed reimbursement by the City in the full amount of the taxes and costs associated with the 10 November 2003 tax purchase since the City’s agents or officers erred by failing to serve notice of the transfer to the proper owner of record.

On 16 November 2011, following a trial on the merits and determining that the City failed to comply with the notice requirements set forth in La. R.S. 47:2180, the trial court rendered judgment annulling the tax sale and ordering the “judgment to take effect only upon the defendant owner of record making full Inpayment of the taxes, costs and interest at ten percent per annum accruing as of 10 November 2003.” Additionally, the trial court ruled that while reimbursement is owed to Brookewood for the funds it expended in the 2008 tax sale purchase, the City is not the responsible party, but rather, the defendant owner of record is Brookewood’s sole source of relief.

On 24 February 2012, the trial court issued a final judgment decreeing the tax sale and the related tax deed a nullity and, further ordered that, pursuant to La. Const. Art. VII, § 25(C) and La. R.S. 47:2290 and 2291, Sixty-Three is liable to Brookewood in the amount of $1,617,698.20, with interest thereon at the rate of ten percent annum from the date of the signing of the judgment. The judgment further declared that all other prior judgments were preliminary and/or interim in nature.

Brookewood’s timely appeal followed.

Brookewood’s appeal raises two questions of law, which we review de novo. Louisiana Municipal Association v. State, 04-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836; Provident Bank v. Leslie, 08-1449, p. 5 (La.App. 4 Cir. 1/13/10), 28 So.3d 1196, 1199.

IsFirst, Brookewood avers that although the trial court ruled the tax sale a nullity, it erroneously failed to adjudicate the tax sale an absolute nullity. We agree.

“Under the Fourteenth Amendment to the United States Constitution and Louisiana Constitution Article I, § 2, a person is protected against a deprivation of his life, liberty or property without ‘due process of law.’” Hamilton v. Royal International Petroleum Corp., 05-846, p. 9 (La.2/22/06), 934 So.2d 25, 32 (citations omitted). The fundamental requirement of procedural due process is notice and the opportunity to be heard at a meaningful time and in a meaningful manner. Id.

La. Const. Art. VII, § 25(A) requires that prior to conducting a tax sale of property for nonpayment of taxes, the political subdivision must give notice to the delinquent owner in the manner provided by law. Further, in enacting La. R.S. 47:2180, the legislature established the manner in which notice of delinquency of taxes on immovable property is to be provided in compliance with La. Const. Art. VII, § 25. “In sum, notice is a constitutional requirement, and want of notice is 17fatal to a tax sale.” Lewis v. Succession of Johnson, 05-1192, p. 8 (La.4/4/06), 925 So.2d 1172, 1177 (citing Adsit v. Park, 144 La. 934, 81 So. 430 (1919)). The Louisiana Supreme Court has held that, as a matter of law, failure to satisfy the Fourteenth Amendment due process notice requirement renders the tax sale null and void in its entirety, or absolutely null. See C & C Energy, L.L.C. v. Cody Investments, L.L.C., 09-2160, p. 10 (La.7/6/10), 41 So.3d 1134, 1141; Orleans District Redevelopment Corp. v. Ocwen Loan Servicing, 11-0260, p. 12 (La.App. 4 Cir. 12/21/11), 83 So.3d 105, 112; Padilla v. Schwartz, 06-1517, p. 11 (La.App. 4 Cir. 3/11/09), 11 So.3d 6, 14; Sutter v. Dane Investments, Inc., 07-1268, p. 9 (La.App. 4 Cir. 6/4/08), 985 So.2d 1263, 1269.

Accordingly, as a matter of law, we amend the trial court judgment to reflect that the tax sale at issue was an absolute nullity.

Next, Brookewood, relying on La. C.C. art. 2033, (see footnote 4, supra), contends the trial court erred in determining that its only right of reimbursement for monies expended relative to the tax sale, plus interest and cost, is against the tax debtor. In ordering Sixty-Three to reimburse Brookewood, the trial court relied upon La. Const. Art. VII, § 25(C), which states in pertinent part:

No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser.

Further, Brookewood avers that, where the tax sale is deemed a complete nullity, the provisions of the constitution do not apply. Specifically, Brookewood 1 scontends that upon finding the tax sale an absolute nullity, in order to restore the parties to the situation that existed prior to the invalid tax sale as is required by La. C.C. art. 2033, the court need not apply the constitution. Moreover, when applying La. C.C. art. 2033 to the tax sale at issue, Brookewood contends the City is the responsible party for returning the consideration.

In support of its position that its right of reimbursement is against the City and not Sixty-Three, and that the trial court erroneously applied La. Const. Art. VII, § 25(C), Brookewood cites several cases addressing the absolute nullity of a tax sale when notice of the sale is found lacking. However, we hold the cases relied upon by Brookewood are inapposite to the instant case because none of them address the issue of who is the responsible party for reimbursing the tax purchaser after a tax sale is annulled for insufficient notice.

In addressing the issue of “who is required to pay whom,” and determining that Brookewood’s sole right of reimbursement is against Sixty-Three, the trial court found the decision in Westwego Canal & Terminal Co., Inc. v. Pitre, 197 La. 374, 1 So.2d 550 (La.1941), was directly on point. In Pitre, the purchase of the | ¡plaintiffs immovable property at a tax sale had previously been declared an absolute nullity. In the proceedings, the tax purchaser was enjoined from interfering with the owner’s possession of the property, with a reservation to the tax purchaser of any reimbursement right she had for the amount paid for the property at the tax sale. Applying the express provision found in La. Const. Art. X, § 11(1921), providing that “[n]o judgment annulling a tax sale shall have effect until the price and all taxes and costs paid, with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser,” the court remanded the matter to the trial court to afford the tax purchaser an opportunity to prove the amount of reimbursement to which she was entitled from the property owner. On remand, the property owner attempted to amend its petition claiming, in the alternative, that because the sale was declared an absolutely nullity, the tax purchaser was not entitled to recover the amount she paid for the property. The Court held that the trial court was correct in its determination that, pursuant to La. Const. Art. X, § 11(1921), when a tax sale is declared null, other than “sales annulled on account of the taxes having been paid prior to the date of the tax sale,” the record owner of the property is the party responsible for reimbursing the tax purchaser. Id., 197 La. at 377, 1 So.2d at 551.

We find the Supreme Court’s decision in Lindner v. City of New Orleans, 116 La. 372, 40 So. 736 (1906) and its progeny to be dispositive of the reimbursement issue in this case. In Lindner, the tax purchaser, who was evicted following suit filed by the record owner of the property because the sale had not been sufficiently advertised, sought reimbursement from the City in an amount for [ inwhich the owner subsequently sold the property, in addition to costs and attorney’s fees he expended in connection with acquiring the property at the tax sale. The Court, in affirming the trial court’s dismissal of the suit on the City’s exception of no cause of action, stated the following:

It appears that in the litigation with the owner of the property, plaintiff recovered the amounts paid by him therefor, together with costs and interest, as provided by article 233 of the Constitution of 1898. This being the remedy provided by our fundamental law, he has no standing for the prosecution of this suit, and even had he availed himself of the remedy so provided, the case would be the same since the fault would have been his. A tax sale, in the absence of special legislation to the contrary, is generally held to be subject to the rule caveat emptor, and the purchaser assumes the risk of all legalities and irregularities in the proceedings, of which, as they are open to his inspection, he is presumed to have notice.
He is therefore without recourse against the municipality at the instance of which the sale is made, and which, not pretending to sell its own property, warrants neither the title nor the return of the price. [Citations omitted; emphasis added.]

Id. See Riddell v. City of New Orleans, 8 Teiss. 3, 8 Orleans App. 3, 1910 WL 1592 (La.App.Orl.1910)(holding that Lindner was “correctly decided that ... the only remedy of the purchaser at a tax sale afterwards annulled, was to reclaim from the owner, the purchase price paid.” [Emphasis added.]); Riddell v. Ringe, 11 Teiss. 157, 1914 WL 1935 (La.App.Orl.1914)(pursuant to Article 233 of the InConstitution of 1913, the tax debtor must reimburse all costs expended by the purchaser at the tax sale before the former can get benefit of judgment annulling the tax sale); In re Land Development Co. of La., 12 Teiss. 147, 1915 WL 1633 (La.App.Orl.1915)(holding that a judgment annulling a tax sale has no effect until the tax debtor reimburses to the tax purchaser the price and all taxes paid by him with interest as provided by the constitution); Mattern v. Parqutt, 10 La.App. 769, 771, 123 So. 189, 190 (La.App.Orl.1929)(applying La. Const. Art. X, § 11 (1921)) (a judgment annulling a tax sale could not be executed until the tax debtor paid to the tax purchaser the amount paid by the latter for the property at the tax sale, and all taxes, with interest at the rate of ten per cent per annum on all items); Robinson v. Zor, Inc., 174 So.2d 154, 157 (La.App. 4th Cir.1965); Garry v. Zor, Inc., 181 So.2d 828, 832-33 (La.App. 4th Cir.1966).

Therefore, we hold that, there being no material change in the Louisiana Constitutions of 1898, 1913, 1921, and 1974 regarding the provision requiring that no judgment annulling a tax sale shall have effect until the price, taxes, costs, et cet-era, be previously paid to the purchaser, Lindner and its progeny remain the law of this state. Accordingly, we affirm the trial court’s judgment holding that Brooke-wood’s right of redemption is solely against the tax debtor or record owner of the property, Sixty-Three, and not against the City.

CONCLUSION

Based upon the foregoing, we amend the trial court judgment to reflect the [ 12absolute nullity of the tax sale, and affirm the judgment as amended.

AMENDED; AFFIRMED AS AMENDED.

      . The record on appeal is devoid of certain pleadings. See La. C.C.P. art. 2128. Therefore, we glean the facts from that part of the record before us.

      . According to the record, Conveyance Office Book ("COB”) 660, folio 44 reflected that Vincent A. Morreale and Jacob V. Morreale acquired the immovable property at issue in 1964; records held in COB 679, folio 450 reflect that, in 1968, Jacob Morreale obtained sole ownership of the property.

      . The record is silent as to whether Sixty-Three or Jacob Morreale made any effort to notify the assessor’s office of the ownership change.

      . La. C.C. art. 2033 provides, in pertinent part:

        An absolutely null contract ... that has been declared null by the court, is deemed never to have existed. The parties must be restored to the situation that existed before the contract was made.
      Cf., La. C.C. art. 2506 (1870).

      . The 24 February 2012 judgment further ordered that "pursuant to Article VII, Section 25(C) of the Louisiana Constitution and La. R.S. 47:2290 and 2291, the declaration of nullity shall only be effective and cancelation and removal of the related tax deed filed as CIN 281131 from the conveyance records for Orleans parish, shall only take place upon Sixty-Three Twenty Four Chef Menteur Highway, L.L.C. making full and complete payment to Brookewood Investment Co., L.L.C. of the amount set forth [above] within one year from the date of the signing of this Judgment and upon an Order of this court issued pursuant to La. R.S. 47:2291(D).” In addition, the judgment ordered that, pursuant to La. R.S. 47:2291 C, the failure of Sixty-Three to make full and complete payment within one year of the signing of the judgment would result in a vacating of the declaration of nullity, and further, that Sixty-Three’s re-conventional demand to annul the tax sale would be dismissed with prejudice.

      . La. R.S. 47:2180 was repealed by Acts 2008, No. 819, § 2, effective 1 January 2009. At the time of the tax sale in question, it provided:
      Immovable Property, Notice of Delinquency
      A. (l)(a) On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes which have been assessed to him on immovable property or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
      (b) On the second day of January of each year, or as soon thereafter as possible, in each year following the year in which the original notice of delinquency is made pursuant to Subparagraph (a) herein, the tax collector shall address to each taxpayer who has not paid the taxes which have been assessed to him on immovable property a written notice in the manner provided herein. The notice shall specify the property upon which the taxes are delinquent, the amount of taxes due, and the manner in which the property may be redeemed. The notice shall be made each year until the property is no longer redeemable as provided in Article VII, Section 25(B) of the Constitution of Louisiana. The cost of mailing the notice shall be considered cost for purposes of redemption.
      (2) Any taxpayer may designate one additional person to be notified in the event of a delinquency. Such designated person shall receive the same notification as the delinquent taxpayer and such notice shall be made in the manner provided herein.
      B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. In the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor's property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal domicilary [sic] service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed, in the parishes other than the parish of Orleans, in the office of the clerk of court for recording and preservation. In the parish of Orleans, such proces verbal shall be filed in the office of the state tax collector for the city of New Orleans and preserved for record. This proces verbal shall be received by the courts as evidence. The tax collector shall be entitled to collect actual mailing costs of each certified, with return receipt, notice, and mileage shall be charged for service of the notice. A like charge will be made if the property is adjudicated to the state or any subdivision thereof.
      C. The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all known owners of assessed immovable property situated in his parish, and to non resident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish, then such notice shall be given in the manner provided by law for judicial sales. He shall pay for the publication costs from each unknown owner or from the property assessed to him. The collector shall certify on his tax rolls that he has published notices, and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding.
      D. Within thirty days after the tax sale, or as soon thereafter as possible, the tax collector shall research the records of the clerk of court for transfers on all property sold. Within thirty days of finding a transfer of any property sold at a tax sale, the tax collector shall attempt to serve the new owner with a certified notice that the property was sold and include in the notice the amount necessary to redeem the property. This notice shall also advise the owner that the property may be redeemed at any time within three years from the date of recordation of the sale. This shall serve as the required notice to the record owner in Subsection A of this section.

      . According to Brookewood, before the tax sale occurred, Sixty-Three owned the property, upon which there was a tax lien in favor of the City for unpaid ad valorem taxes, and Brookewood had not yet paid $591,343.03 in consideration for the sale of the property to the City. Moreover, after the tax sale occurred and by virtue of the tax deed issued by the City, Brookewood was the owner of the property, Sixty-Three had a right to redeem the property from Brookewood, and the City received $591,343.03 from Brookewood in consideration of the tax sale. Brookewood contends that in order for the parties to be restored to the status that existed prior to the sale in accordance with article 2033, (1) the tax sale and deed must be cancelled in the conveyance records, which will restore Sixty-Three Twenty as the record owner of the property, (2) the tax lien of the City must be restored, and (3) consideration must be returned by the City to Brookewood. Brooke-wood avers that by requiring Sixty-Three, rather than the City, to reimburse the consideration, the trial court fails to restore the parties to the pre-sale status because Sixty-Three remains deprived of its property-until it remits payment to Brookewood, which includes a thirty percent collection penalty imposed by the City over and above the amount of the taxes that were actually due, plus interest and costs associated with the defective sale.

      . Brookewood cited the following cases in support of its position on appeal: Jamie Land Co., Inc. v. Atwood, 06-2057 (La.App. 1 Cir. 6/8/07), 965 So.2d 873; Sutter v. Dane Investments, Inc., 07-1268, 07-1269 (La.App. 4 Cir. 6/4/08), 985 So.2d 1263; and Cressionnie v. Intrepid, Inc., 03-1714 (La.App. 1 Cir. 5/14/04), 879 So.2d 736.

      . La. Const. Art. 233 (1898) provided, in pertinent part:
      No judgment annulling a tax sale shall have effect until the price and all taxes and costs paid, with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser.

      . La. Const. Art. 233 (1913), stated the identical language of La. Const. Art. 233 (La.1898) as set forth in footnote 9 above.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    DELTA BLACK, L.L.C. v. PARISH OF ST. BERNARD, Parish of St. Bernard through the Housing, Redevelopment and Quality of Life Commission, and Road Home Corporation.
    No. 2012-CA-1153.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.
    Dane S. Ciolino, Dane S. Ciolino, L.L.C., Metairie, LA, David C. Jarrell, The Law Offices of David C. Jarrell, APLC, Chal-mette, LA, for Plaintiff/Appellant.
    Jeanne N. Juneau, William M. McGoey, Chalmette, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

|,Delta Black, L.L.C. (“Delta Black”), the plaintiff/appellant, seeks review of a 10 May 2012 judgment, wherein the trial court dismissed its claims and rendered judgment in favor of the defendants, the Parish of St. Bernard (“the Parish”) and the Parish of St. Bernard Housing, Redevelopment, and Quality of Life Commission (“HRQLC”). For the reasons that follow, we reverse the judgment of the trial court, grant the permanent injunction requested, and remand the matter for further proceedings consistent with this opinion.

This case arises out of the Lot Next Door Program (“LNDP”) implemented by the Road Home Corporation, operating under the trade name of the Louisiana Land Trust (“LLT”). Following Hurricane Katrina, numerous properties were sold to the Road Home Corporation as part of the Road Home Grant Program. The respective parishes were then tasked with the responsibility of disposing of these properties.

The HRQLC adopted the LNDP to dispose of these LLT properties located in the Parish. The LNDP was designated to benefit those who had returned after ^Hurricane Katrina by giving adjacent property owners the right of first refusal to purchase the LLT properties at a substantial discount. The HRQLC implemented a hierarchy of the rights of first refusal to provide a mechanism to deal with competing claims in circumstances in which there were multiple adjacent properties. The protocol consisted of two key criteria: (1) the relative position of the adjacent property; and (2) the homestead exempt status of the adjacent property. The first criterion was ostensibly aimed at maintaining the appearance of a neighborhood by focusing on street frontage; therefore, preference would be given to side adjacent properties over rear-adjacent properties. The second criterion was ostensibly aimed at giving preference to homestead-exempt properties over non-homestead-exempt properties. If there were still competing claims after applying this protocol, the Road Home property would be split between the competing prospective purchasers.

In August 2007, the property at issue, 6200 Birch Street in Meraux, Louisiana (“the LLT property”), was sold to the Road Home Program. It was held in abeyance until such time that a protocol for disposing of the property was implemented. The LLT provided the Parish with a listing of properties that were included in LNDP. As of 1 July 2009, the LLT property was on a list prepared by Global Risk Solutions, Inc. (“GRS”), the contractor administering the LNDP program. According to the LNDP guidelines, all homestead and non-homestead exempt owners in the adjacent area of available properties would be notified in writing of the possible eligibility to “purchase an adjacent former neighbor’s | ^property” that was sold to LLT. The “initial contact letter” explained the particulars of the program and also referred the recipients to the LNDP’s website.

At all material times, Delta Black owned the property at 6206 Birch Street, the only property that is immediately adjacent, in other words, “next door,” to the LLT property. In fact, given the configuration of the subdivision, 6206 Birch Street is the only side adjacent property to the LLT property. Judith Landry, the ex-wife of then St. Bernard Parish Councilman Wayne Landry, owned two parcels of property in the area, 2021 Margaret Lane, which is not adjacent to or contiguous with the LLT property and Lot 31-G-5 of Story Plantation, a piece of property that is rear adjacent to the LLT property.

The property on Margaret Lane was the family home of Wayne and Judith Landry. It was purchased by them in 1989 and was transferred to her alone in the community property settlement following their divorce in 2002. Lot 31-G-5 was purchased by them in April 1995 (also acquired by Ms. Landry following the divorce); it was then a non-homestead exempt property. It was separated from the Margaret Street property by a drainage ditch over which a servitude existed. As of 2 August 2010, the two properties were taxed together, thereby applying the homestead exemption to Lot 31-G-5.

According to the Parish, a test or pilot program was established by the HRQLC to test the LNDP. On 1 May 2009, it is alleged that Councilman Landry |4selected the LLT property to be on of those “test” cases, allowing it to be one of the first fourteen properties transferred under the program. Ms. Landry was an interested purchaser even before the initial contact letters were sent out to “approximately 24 test properties” providing notice of the properties available in the program. Pursuant to the appellate record, no notice was ever sent to Delta Black despite it being directly next door to the LLT property.

In June 2009, several changes were made to the GRS computer log regarding the LLT property and 2021 Margaret Lane. On 1 June 2009, the “relationship of potential buyer” (Ms. Landry) was changed from “Interested (from, Parish)— not next door to Next Door.” On 12 June 2009, the relationship was changed from “Next Door to Interested (from Parish)— possible next door.” Finally, on 24 August 2009, the relationship was changed from “Interested (from Parish) — possible next door to Next Door.” This final change was made per information from Clay Cossé, then Executive Director of the Parish’s Department of Housing and Redevelopment. It was noted in the log that “the back of this property (Margaret Lane) is next door to the Birch Property.”

The contact notice was sent to Ms. Landry on 8 September 2009; the log reflects that it was delivered the next day, 9 September 2009, at 1:52 P.M. Ms. Landry sent in her written response on 14 September 2009. Again, the record reflects that only Ms. Landry received notice of the availability of this LLT property.

| ¡As a result, Ms. Landry was allowed to proceed with the execution of the purchase agreement with the HRQLC to purchase the LLT property. Delta Black alleges that “by shear chance of a whistleblower,” it learned about these events after the purchase agreement was executed. Delta Black objected to the transfer to Ms. Landry on the basis that the rules promulgated by the HRQLC mandated that Delta Black, not Ms. Landry, be given the right of first refusal. Although it is alleged that some of the members of the HRQLC initially supported Delta Black’s position, the HRQLC voted on 5 August 2010 to transfer the property to Ms. Landry. Delta Black also alleges that Councilman Landry was present at these meetings and influenced the decision.

Delta Black filed the instant lawsuit on 6 August 2010, seeking injunctive relief, judicial review of the HRQLC decision, and declaratory judgment on factual issues pertaining to the disposition of the LLT property. The trial court issued a temporary restraining order, prohibiting the sale, transfer, or conveyance of the LLT property.

Before the hearing on the preliminary injunction, the parties stipulated that this case would be “controlled by the facts and circumstances in existence on or before August 5, 2010.” The 27 August 2010 hearing was continued until 19 November 2010. At that time, the trial court granted the preliminary injunction, maintaining the status quo.

In the meantime, Ms. Landry executed a quitclaim deed with Terry Tedesco, Inc. whereby she obtained ownership of a portion of a 20-foot servitude adjoining [¡¡2021 Margaret Lane (Lot 7) with Lot 31-G-5, thereby making them contiguous. She also purchased the servitude running behind Lots 8, 9,10, 11,12,18, and 14 (2025-2049 Margaret Lane).

Finally, on 26 October 2010, Ms. Landry secured Resolution PC-R-7-10 from the St. Bernard Parish Planning Commission that approved a re-subdivision of Lot 7 (2021 Margaret Lane), Lot 31-G-5, and the portion of ground being “a portion of a 20-foot servitude adjoining Lots 7, 8, 9,10, 11,12,13, and 14” into Lot 7-A.

Delta Black filed a motion for partial summary judgment requesting declaratory relief on the geographic relationship of Lot 31-G-5 and 2021 Margaret Lane prior to 16 August 2010. The trial court granted the motion in part, declaring “that at all material times prior to August 16, 2010, Lot 31-G-5 of Story Plantation was not contiguous with 2021 Margaret Lane (Lot 7, Square B, St. Bernard Grove Plantation).” However, the court declined to declare that Lot 31-G-5 of Story Plantation did not independently qualify as a bona fide homestead and that Ms. Landry qualified for and claimed a homestead exemption on 2021 Margaret Lane.

At the request of the parties, the trial on the merits was set for submission on the record and with documentary evidence submitted to the trial court. On 10 May 2012, the trial court issued a judgment “declaring that -the property bearing ^municipal address 2021 Margaret Lane, which includes former Lot 31-G-5, is rear-adjacent to the lot bearing municipal address 6200 Birch Street” and “that all Delta Black, L.L.C.’s other claims for relief be dismissed.”

In denying the other requested relief, the trial Court reasoned that:

It appears that this summary was drafted with the most common scenario in mind: one normal-sized residential lot with equally sized residential lots on either side. The summary does not explicitly take into account LLT lots with only one side-adjacent neighbor (e.g., corner lots), irregularly shaped lots, lots with more than three adjacent lots, or cases where two or more adjacent lots are all owed by the LLT.
* * *
The full rules for these transfers may take those exceptional circumstances into consideration, but there is nothing in the record to indicate what those rules may be.
* * *
Therefore, it is not for this Court to decide the disposition of the property at issue here.

The court sent the issue of the proper disposition of the LLT lot back to HRQLC. On 22 May 2012, Mr. Jarrell, on behalf of Delta Black, appeared to address this issue. After application of the Hierarchy Summary and consideration of the trial court’s ruling, the HRQLC concluded that Ms. Landry’s property at 2021 Margaret Lane, which includes the former Lot 31-G-5, is rear-adjacent to 6200 Birch Street, and the lot designated 6200 Birch should be sold to Ms. Landry.

Delta Black timely filed this suspensive appeal for this court to review the actions taken below.

In reviewing denials of preliminary or permanent injunctions, we utilize the abuse of discretion standard of review. A.M.E. Disaster Recovery Services, Inc. v. City of New Orleans, 10-1755 (La.App. 4 Cir. 8/24/11), 72 So.3d 454. The Louisiana Supreme Court declared that trial courts are vested with wide discretion in deciding whether to refuse or grant declaratory relief. Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 00-2517, p. 3 (La.2/21/01), 779 So.2d 726, 728.

Even without first addressing the fundamental unfairness surrounding the transfer of this LLT property, we find that the trial court erred in its application of the “Summary of the Hierarchy of Lot Next Door Potential Purchasers.” As recognized by the Parish and the trial court, at the time the LNDP was begun in 2009, Delta Black owned the only side adjacent property to the LLT property. Therefore, it was entitled to notice of its right of first refusal with regard to the purchase of 6200 Birch, even with the special designation as a “test” case. While the Parish argues that the word “adjacent” also means “nearby,” the diagrams that explain the first three tiers of the Hierarchy Summary deal only with contiguous side adjacent properties, not those nearby or in the rear.

The record also reflects that Ms. Landry was given preferential treatment where this LLT property is concerned. Under the given scenario, she was not entitled to preferential treatment over Delta Black, as her property, Lot 31-G-5, is rear-adjacent, not side adjacent to the LLT property. In reviewing the Hierarchy Summary in evidence, Delta Black is a “2nd Tier, Priority 3” or even a “3rd Tier” (both of which address a non-homestead exempt residence) purchaser, whereas |flMs. Landry falls within the “4th Tier,” “Rear Adjacent Homestead Exempt Residences.” Thus, Delta Black had the right of first refusal regarding the purchase of the property in question.

Based on the foregoing, we reverse the judgment of the trial court and grant the permanent injunction prohibiting the sale, transfer, or conveyance of 6200 Birch Street, Meraux, Louisiana, from the Parish to Ms. Landry. In addition, we order the Parish to provide Delta Black with the first right to purchase 6200 Birch Street. Should Delta Black decline, the Parish may then offer the property to Ms. Landry.

JUDGMENT REVERSED; PERMANENT INJUNCTION GRANTED; REMANDED.

      . A draft of the initial contact letter is available on the LNDP’s website, www. lotnextdoorsbp.com.

      . 2021 Margaret Lane is legally designated as "Lot 7, Square B, St. Bernard Grove Plantation.”

      .The servitude was owned by Terry Tedesco, Inc. that had acquired the property from St. Bernard Grove, Inc. in 1977.

      . This matter was submitted to the court on briefs. Delta Black states that contact notice was deliberately not sent to it; the Parish does not refute that.

      . Shortly thereafter, in November 2010, the Parish instituted the next phase of its LNDP: "St. Bernard Parish’s Lot Next Door Program-Back Door Properties." In order to be eligible to purchase a back door, the eligible property must have a 75% common rear with the LLT back door lot. Notice of this next phase may also be found on the LNDP’s website, www.lotnextdoorsbp.com.

      . The fact that Ms. Landry now owns the 20-foot servitude on the other side of the LLT property is no moment.


author: ROSEMARY LEDET, Judge.

text:
    Susan MENARD v. CITY OF NEW ORLEANS ENFORCEMENT AND HEARINGS BUREAU.
    No. 2012-CA-1161.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 2013.

      Susan A. Menard, Ernest C. Menard, Laplace, LA, Plaintiff/Appellant, In Proper Person.
    Joyce G. Joseph, Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

_JjThis is a quo warranto action. The plaintiff, Susan Menard, appeals the trial court’s judgment dismissing her petition for writ of quo warranto. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 8, 2012, Ms. Menard filed the petition for writ of quo warranto, challenging the authority of the Acting Director of the City of New Orleans Department of Safety and Permits, Pura Bascos, and the Chief Building Inspector for the City of New Orleans, John Odom, in their official capacities, in issuing a stop work order on the property located at 6017 Canal Boulevard, New Orleans, LA 70124 (“the Property”). The stop work order was litigated in municipal court. The court upheld the action of the Department of Safety and Permits, finding Susan and Ernest Menard guilty of violating the stop work order. They were sentenced and appealed the municipal court judgment to criminal district court. On June 29, 2012, a judgment was rendered in the criminal district court affirming the | ¡/Menards’ convictions for violating the stop work order. Subsequently, the Menards sought review with this Court of the criminal district court’s judgment. On December 13, 2012, the writ was denied. State v. Menard, 12-1123 (La.App. 4 Cir. 12/13/12) (unpub.).

Ms. Menard’s petition for writ of quo warranto was heard by the civil district court on May 18, 2012. Ms. Menard’s petition was denied and the judgment was rendered and signed by the district court judge on June 12, 2012, which stated that the City “has shown by authority the Director of the Department of Safety and Permits acts ...” and that Ms. Menard, “through this Quo Warranto proceeding, erroneously seeks to appeal from or re-litigate the facts and merits of the Stop Work Order, of which a final judgment was issued in Orleans Parish Municipal Court, resulting in a judgment against the plaintiff, and whose appeal of that judgment was denied.... ”

In response to the adverse judgment, on June 15, 2012, Ms. Menard filed the instant appeal.

DISCUSSION

As a preliminary matter, we will address the Department of Safety and Permits’ Motion to Dismiss Appeal for Lack of Jurisdiction. The Department of Safety and Permits asserts that the June 12, 2012 judgment, denying Ms. Menard’s petition for writ of quo warranto, is not a final judgment, but an interlocutory judgment and is not subject to appeal.

|sOn January 4, 2012, Ms. Menard filed a “Petition for Appeal Taken from an Administrative Adjudication Hearing of the Code Enforcement and Hearings Bureau Case No. CEHB-11-7968.” Ms. Menard’s petition sought to appeal a judgment rendered by an administrative hearing officer on December 7, 2011, which found the Property to be a public nuisance and blighted based on alleged housing code violations.

The Louisiana Supreme Court has held that judicial review of the decision of an administrative agency is an exercise of a court’s appellate jurisdiction pursuant to La. Const. art. V, § 16(B), rather than a district court’s original jurisdiction under La. Const. art. V, § 16(A). Willows v. State, Dept. of Health and Hospitals, 08-2357, p. 6 (La.5/5/09), 15 So.3d 56, 60.

Ms. Menard’s petition for writ of quo warranto was filed under the same district court case number as her administrative appeal. However, the petition for writ of quo warranto was not a review of an administrative action under the district court’s appellate jurisdiction. The district court’s review of the petition for writ of quo warranto falls under the court’s original jurisdiction. The district court denied the petition for writ of quo warranto; thus, dismissing the petition. The judgment is final as to that matter and is appealable. Therefore, the Department of Safety and Permits’ Motion to Dismiss Appeal for Lack of Jurisdiction is denied.

As it relates to the instant appeal we will only address Ms. Menard’s second Uassignment of error since the issue is dispositive of the case. Ms. Menard asserts that the court denied the writ of quo warranto for reasons other than the issue before the court, which, she asserts, is a demand that the Department of Safety and Permits demonstrate the authority under which the department regulates activities specifically exempted by law from the Department’s general regulatory oversight.

In the instant case, Ms. Menard filed a writ of quo warranto pursuant to La. C.C.P. art. 3901, which provides:

Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.

In a quo warranto action, the defendant has the burden of showing by what authority he or she claims to hold office. Crutcher v. Tufts, 04-0653, p. 7 (La.App. 4 Cir. 2/16/05), 898 So.2d 529, 533. If the court finds that burden is not met, that the defendant is claiming or holding office without authority, it is required to render judgment forbidding him or her from doing so. Id. (citing La. C.C.P. art. 3902). The court may also render judgment declaring who is entitled to office and, when necessary, directing an election be held. Id.

I sIn this case, to show by what authority Ms. Bascos and Mr. Odom claim to hold office, the Department of Safety and Permits submitted to the trial court that:

Pura S. Bascos is employed by the City of New Orleans as the Acting Director of the Department of Safety and Permits, duly appointed in her official capacity by Hon. Mitchell J. Landrieu, Mayor of the City of New Orleans and granted authority to direct all functions as the bone fide public official heading the Department of Safety and Permits. John (“Johnny”) Odom is employed in his official capacity as the Chief Building Inspector for the City of New Orleans, Department of Safety and Permits, whose duties and responsibilities consist of performing functions of the Department of Safety and Permits.

In support of its argument, the Department of Safety and Permits submitted an affidavit signed by Ms. Bascos. The Department of Safety and Permits also cites to the Home Rule Charter of the City of New Orleans, Article IV, Section 4-702, which describes in detail the functions of the Department of Safety and Permits.

|(iA writ of quo warranto is narrow in scope and is to be given only a limited use, which is to prevent usurpation of office or of powers. State v. Banta, 03-0200, p. 3 (La.App. 1 Cir. 2/23/04), 872 So.2d 1110, 1112; La. C.C.P. art. 3901. It is undisputed that Ms. Bascos and Mr. Odom lawfully hold their public office. Ms. Menard’s challenge is to their authority to issue a stop work order forbidding work not regulated by the New Orleans Municipal Code Ordinance. Essentially, Ms. Me-nard is asking the court to determine whether Ms. Bascos and Mr. Odom have exceeded the scope of their powers as Director of Department of Safety and Permits and Chief Building Inspector for the City of New Orleans.

This Court, in Plaquemines Parish Council v. Petrovich, 629 So.2d 1322 (La.App. 4th Cir.1993) clarified the challenge of a writ of quo warranto contemplated by La. C.C.P. art. 3901. In the Petrovich case, writs of quo warranto were petitioned relating to the scope of the parish president’s powers over the control and operation of the Port District. This Court determined in Petrovich that:

C.C.P. art. 3901 contemplates a challenge to (1) the authority of one to claim or hold a public office; (2) the authority of one to claim or hold an office in a corporation; and (3) the authority of a corporation to exercise certain powers. The article makes no mention of a challenge to the exercise of powers by one lawfully holding public office. C.C.P. art. 3902 provides for remedies when (1) the court finds that a person is holding or claiming a public or corporate office without authority; and (2) the court finds that a corporation is exceeding its powers. A court is not authorized to issue a remedy \ gander quo warranto relating to the exercise of powers by one lawfully holding public office.

Id. at 1326 (Emphasis supplied).

In filing the petition for writ of quo warranto, Ms. Menard went beyond a challenge to the authority of one who claims or holds a public office. According to the record in the instant case, the Department of Safety and Permits has proved by what authority the Director and Chief Inspector of the Department of Safety and Permits lawfully hold office. Thus, we find no error in the district court’s denial of Ms. Menard’s Petition for writ of quo warran-to.

CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed.

AFFIRMED

      . On February 7, 2012, Ms. Menard filed a "Motion to Add Plaintiff/Appellant,” which sought to add her spouse, Ernest Menard, as a party. The motion was denied by the district court because Mr. Menard did not sign the motion. Mr. Menard was never formally added as a party to the case; however, his signature appears throughout the record on several pleadings.

      . Ms. Menard alleges the following assignments of error:
      1. The court incorrectly determined that the issue(s) had been previously litigated and ruled upon.
      2. The court denied the Writ of Quo War-ranto based on other than the issue before the court, that issue being a demand that the Department of Safety and Permits demonstrate that authority under which the Department regulates activities specifically exempted by law from the Department’s general regulatory oversight.
      [a] The Department of Safety and Permits failed to offer lawful authority for specific challenged actions.
      [b] The actions of the Department of Safety and Permits were legislative.

      . The Home Rule Charter of the City of New Orleans, Article IV, Section 4-702 provides:
      The Department of Safety and Permits, headed by a Director of Safety and Permits, shall:
      (1) Administer and enforce the zoning and building code ordinances and all state and municipal laws and regulations under which permits are required, as to all officers, departments, boards and governmental agencies and to all persons, firms and corporations, public and private, except as may be otherwise provided herein or by applicable state or municipal law.
      (2) Issue permits and to that end:
      (a) Receive all applications for permits and determine whether the applicant is entitled thereto according to laws, ordinances and regulations under which the permit is required. No permit shall be issued until after certification by the appropriate office, department or board interested or affected, if any.
      (b) Issue the permit if the application is approved and the fee paid, or notify the applicant in writing of any refusal and the reasons therefor.
      (3) Make or cause inspections, tests or examinations to be made when prerequisite for the issuance of a permit and no certification is required from another office department or board. When such certification is required, the Chief Administrative Officer shall by rule provide for the making of the necessary inspections, tests or examination.
      (4) Revoke, suspend, or cancel any permit which has been violated or which has been issued in violation of the zoning or building code ordinances or other applicable state or municipal law. Any revocation, suspension or cancellation shall be in writing and shall state the reasons therefor.
      (5) Provide clerical and other staff assistance required by the boards which are a part of or attached to this Department.
      (6) Provide data for the undertaking of studies of housing accommodations in the City in cooperation with the City Planning Commission or any other appropriate agencies.
      (7) Make or cause to be made inspections of substandard structures and authorize demolition of property when hazardous to the public health, safety, or welfare.
      (8) Recommend terms to be incorporated in any franchise, permit, or privilege to be granted by the City for issuance of Certificates of Public Necessity and Convenience for the regulation and supervision of all passenger vehicles for hire on the streets and other public places as provided by ordinance pursuant to Section 3-131(2) of the City Charter.
      (9) Perform such other duties as are required by this Charter or assigned in writing by the Mayor.


author: STEWART, J.

text:
    Joe L. DAVIDSON, Sr., Plaintiff-Appellant v. GLENWOOD RESOLUTION AUTHORITY, INC. f/k/a Glenwood Regional Medical Center; Codman & Shurtleff, Inc.; Johnson & Johnson, Inc.; and John Does 1-10, Defendants-Appellees.
    No. 47,640-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 2013.

      Wilkinson, Carmody & Gilliam, Shreveport, LA, by Mark E. Gilliam, David L. Bruce, for Appellant Joe L. Davidson, Sr.

      Hayes, Harkey, Smith & Cascio, Monroe, LA, by Harry M. Moffett, IV, Laura S. Achord, for Appellees Glenwood Regional, Medical Center and Glenwood Resolution Authority, Inc.
    Nelson, Zentner, Sartor & Snellings, Monroe, LA, by F. Williams Sartor, Jr., for Appellee, Robert K. White, M.D.
    Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

Lin this medical malpractice action, the trial court dismissed the claims of the plaintiff, Joe L. Davidson, Sr. (“Mr. Davidson”), upon granting exceptions of prescription filed on behalf of the defendants, Glenwood Resolution Authority, Inc., f/k/a Glenwood Regional Medical Center (“Glen-wood”) and Robert Keith White, M.D. (“Dr. White”). Mr. Davidson now appeals. Finding no error in the trial court’s judgment, we affirm.

FACTS

On April 6, 2006, Dr. White performed surgery on Mr. Davidson at Glenwood to repair an abdominal aortic aneurysm. A piece of a Bookwalter retractor used during the surgery was inadvertently left in Mr. Davidson’s abdominal cavity. On March 27, 2009, Mr. Davidson filed a complaint with the Patient’s Compensation Fund, and on April 24, 2009, he filed his original petition against Glenwood. In both filings, Mr. Davidson alleged that he did not discover the presence of a foreign metal object in his abdominal cavity until April 24, 2008, when an MRI he was undergoing for an unrelated condition had to be stopped because of the metal object. In a supplemental petition filed on October 4, 2011, Mr. Davidson added Dr. White as a defendant and alleged that a CT scan done on October 28, 2008, confirmed that the metal object was part of the retractor used during the abdominal surgery performed by Dr. White.

Glenwood and Dr. White filed peremptory exceptions of prescription. They asserted that Mr. Davidson had knowledge of the metal object in his body as early as July 12, 2006, and no later than September 2006, that this | ^knowledge sufficed to begin the running of prescription, and that Mr. Davidson’s malpractice claim filed in 2009 was untimely.

In opposition to the exceptions, Mr. Davidson asserted that he did not learn that the metal object was a piece of the retractor used in the abdominal surgery performed by Dr. White at Glenwood until November 16, 2008, when Dr. William Ferguson (“Dr. Ferguson”) informed him of the results of the CT scan done in October 2008. Mr. Davidson claimed that prior to November 16, 2008, the doctors who examined him and performed tests believed the object to be part of a penile implant. Therefore, Mr. Davidson asserted that his complaint was filed within one year of discovery and within three years of the act of malpractice in accordance with La. R.S. 9:5628.

The trial court heard the exceptions on January 25, 2012. Dr. White testified, and the parties offered exhibits into evidence. In addition to the facts already mentioned, the evidence established that Mr. Davidson had undergone a second surgery on July 3, 2006, when Dr. Gerard Henry (“Dr. Henry”) removed a penile prosthesis that was causing medical problems. According to Dr. Henry’s deposition, he removed the entire three-piece implant.

On July 12, 2006, Mr. Davidson felt a “square corner” in his abdomen. He stated in his deposition that he knew “there was something there that [he] didn’t think should be there.” So, he went to Dr. Mark Dollar (“Dr. Dollar”), who ordered a scrotal sonogram that was negative for a ^foreign body. Mr. Davidson did not recall the specifics of his conversation with Dr. Dollar.

On August 15, 2006, Mr. Davidson was treated at Glenwood’s emergency room (“ER”) following an automobile accident. A CT scan revealed a metallic structure in Mr. Davidson’s pelvis. Dr. Warren Green (“Dr. Green”), the radiologist, noted in his report that the object “may be related to the patient’s prosthesis.” Dr. Charles Blackmon (“Dr. Blackmon”), the ER physician who treated Mr. Davidson,, first stated in his deposition that he was not sure whether he discussed Dr. Green’s finding with Mr. Davidson. He then stated that he did talk to him about the object, told him he did not know what it was, and advised him to follow up with his physician. Mr. Davidson did not recall this discussion with Dr. Blackmon.

Dr. Green stated in his deposition that he contacted Dr. White about the finding because he was concerned whether Mr. Davidson had given an erroneous history about his penile implant being removed and he believed that Dr. White had operated on Mr. Davidson three weeks prior for the aortic aneurysm. Dr. Green stated that he and Dr. White looked at the film together and could not determine what the object was. However, Dr. Green stated that Dr. White was “fairly certain that it wasn’t part of a penile prosthesis.” Dr. Green never spoke with Mr. Davidson.

Dr. 'White, the only witness to testify before the trial court, stated that he contacted Mr. Davidson within 24 to 48 hours after speaking with Dr. Green about the object shown on the CT scan. He explained to Mr. Davidson that the scan showed a metal object in the pelvis near the rectum |4and that because it refracts he could not see the details. He told Mr. Davidson that he was concerned that it could be related to the surgery he performed. According to Dr. White, Mr. Davidson stated that he felt fine and did not want anything done about it. Dr. White also testified that he then saw Mr. Davidson on a couple of occasions at Glen-wood’s wellness center while swimming and asked him to come to this office to talk.

Mr. Davidson stated in his deposition that he did not recall speaking with Dr. White in September 2006 about a foreign object in his body. However, he did remember that Dr. White called his house after the MRI incident in April 2008 and stated this was his “second attempt.” He recalled that Dr. White asked if he was having any pain and advised him to leave it alone if not. Mr. Davidson also recalled seeing Dr. White a time or two at the wellness center, but he stated that he “would never infringe on his [Dr. White’s] rights by talking about medical things.”

An x-ray ordered by Dr. D.J. Donald in late September 2006 while treating Mr. Davidson for back pain also showed a metal object. Dr. Donald stated in his deposition that he told Mr. Davidson that the X-ray showed something that he believed to be the penile implant. They did not discuss it further. Mr. Davidson stated in his deposition that he did not recall any discussion with Dr. Donald about the metal object.

After the hearing, the trial court granted the exceptions of prescription. In its oral reasons for judgment, the trial court found Dr. White to be “very credible.” Based on Dr. White’s testimony, the trial court concluded that Mr. Davidson had sufficient notice sometime in the zone of IsAugust 15 to September 18, 2006, to begin the running of the prescriptive period. The claims against Glenwood and Dr. White were prescribed when Mr. Davidson first filed his complaint with the Patient Compensation Fund in March 2009.

Mr. Davidson now appeals the judgment that granted the exceptions and dismissed his claims.

DISCUSSION

Mr. Davidson assigns two errors for our review. First, he asserts that the trial court made an error of law by applying the wrong legal standard for determining when prescription began. He argues that this legal error requires a de novo review of the record on appeal. Second, he asserts that the trial court was manifestly erroneous in its factual determination as to when he had notice sufficient to start the running of the prescriptive period.

The prescriptive periods for medical malpractice actions are provided by La. R.S. 9:5628(A), which states:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is a victim of a tort. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502; White v. Willis-Knighton Medical Center, 632 So.2d 1198 (La.App. 2d Cir.1994), writ denied, 638 So.2d 1098 (La.1994). The supreme court in Campo, supra, explained what constitutes constructive knowledge as follows:

Constructive knowledge is whatever is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription. Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Even if a malpractice victim is aware that .an undesirable condition has developed after the medical treatment, prescription-will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.

Id., 2001-2707, p. 12, 828 So.2d at 510-511, citations omitted.

Prescription does not begin to run at the earliest possible indication that a patient may have suffered some wrong. Guitreau v. Kucharchuk, 1999-2570 (La.5/16/00), 763 So.2d 575, citing Jordan v. Employee Transfer Corp., 509 So.2d 420 (La.1987). A plaintiff is not required to rush to file suit against every person who may have caused him damage. A plaintiff must be able to state a cause of action, including both a wrongful act and resultant damages. Guitreau, supra. However, “[ijgnorance of the actual extent of injuries differs from ignorance of actual harm, which delays commencement of prescription.” Id., p. 6-7, 763 So.2d at 580.

17With these principles in mind, we consider Mr. Davidson’s argument that the trial court erred as a matter of law by applying incorrect standards in assessing when he had the requisite knowledge to begin the running of prescription. Mr. Davidson asserts that the trial court’s references to the “time zone” when he, Mr. Davidson, should have known “something was amiss of a nature that would put him on notice sufficient enough” to begin prescription shows that the court applied an incomplete definition of constructive notice from Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285 (La.1970). Referring to constructive notice, Cartwright explained that whatever is “enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead.” Mr. Davidson correctly states that the supreme court in Jordan, supra, referred to the Cartwright language as an “incomplete definition” of the kind of notice required to start prescription. The Jordan court explained that prescription does not begin at the earliest possible indication that some wrong has been suffered and should not be used to force a person to rush to file suit against all persons who might have caused damage. Id. Mr. Davidson asserts that he did not discover, and that it was not reasonable for him to have discovered, that he had a cause of action against Dr. White and Glenwood until he learned from Dr. Ferguson on November 16, 2008, that the piece of metal was from the retractor used during the surgery to repair his abdominal aortic aneurysm. He maintains that by applying the wrong legal standard, the trial court made a clearly | ¿wrong factual determination as to when he possessed knowledge of his cause of action sufficient to begin prescription.

After carefully reviewing the record and considering the arguments on behalf of Mr. Davidson, we find no error of law by the trial court. Appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 2009-0571 (La.4/1/11), 61 So.3d 507; Bellard v. American Cent. Ins. Co., 2007-1335 (La.4/18/08), 980 So.2d 654. Even so, the language referred to by Mr. Davidson in the trial court’s oral reasoning and the arguments put forth do not demonstrate that the trial court relied on an incorrect or incomplete definition of constructive notice to determine when Mr. Davidson had the requisite knowledge to begin the running of prescription. Based on the evidence presented by both parties, the trial court made a factual determination as to when Mr. Davidson had knowledge of facts indicating that he was a victim of a tort. In doing so, the trial court rejected Mr. Davidson’s contention about when he discovered the alleged malpractice.

When evidence is introduced at the trial of a peremptory exception, the trial court’s factual conclusions are reviewed under the manifest error or clearly wrong standard articulated in Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261; Bailey v. Haynes, 37,038 (La.App.2d Cir.4/9/03), 843 So.2d 584, writ denied, 2003-1209 (La.10/10/03), 856 So.2d 1207. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, then this court may not reverse even though convinced that as trier of fact |9we would have weighed the evidence differently. Stobart, supra; Carter; supra.

The evidence established that as early as July 12, 2006, Mr. Davidson could feel a “square corner” in his abdomen and knew there was something that should not be there. He saw Dr. Dollar, his primary physician, but the test ordered by Dr. Dollar did not find anything. On August 15, 2006, the CT scan taken after his automobile accident revealed the presence of the metal object. Dr. Blackmon, the ER physician, indicated that he advised Mr. Davidson to follow up with his physician about it. Dr. Green, the radiologist, who first noted the presence of the metal object on the CT scan, contacted Dr. White. According to Dr. White’s testimony, he then contacted Mr. Davidson. Also, in September 2006, Dr. Donald noted the presence of the metal object on an X-ray taken while treating Mr. Davidson for back pain. He told Mr. Davidson about it and that be believed it was probably his penile implant. We note that at this time, Mr. Davidson knew that his penile implant had been removed and, according to Dr. White, had been informed that the object could be related to the abdominal surgery. In his deposition, Mr. Davidson generally claimed not to recall the discussions about the metal object with either Dr. Blackmon, Dr. Donald, or Dr. White.

The trial court specifically found Dr. White, who testified at the hearing, to be “very credible.” Dr. White testified that he called Mr. Davidson after being contacted by Dr. Green about the CT scan on August 15, 2006. Dr. White did not give an exact date but believed that he spoke with Mr. Davidson within 24 to 48 hours of going over the scan with Dr. |10Green. According to Dr. White, he told Mr. Davidson that the scan showed a metal object in his pelvis near the rectum and that he was concerned it could be related to the surgery he performed. He wanted Mr. Davidson to come to his office for additional tests to identify the object. Mr. Davidson refused, saying that he felt fine and did not want anything done. Dr. White also claimed that he asked Mr. Davidson to come to his office on a couple of occasions when he saw him at a wellness center. Though Mr. Davidson had no recollection of the conversation related by Dr. White, he did admit in his deposition that Dr. White called him after the MRI incident and stated that this was his “second attempt.” Mr. Davidson’s deposition also included a reference to his cell phone records showing a call from Dr. White’s office to Mr. Davidson’s cell phone and a return call on September 20, 2006.

Based on Dr. White’s testimony and the other evidence presented, it was reasonable for the trial court to conclude that Mr. Davidson had constructive, if not actual, notice shortly after August 15, 2006, that there was a metal object in his abdominal cavity and that it was likely related to the surgery performed by Dr. White on April 6, 2006. The fact that Mr. Davidson felt a square corner in his abdomen as early as July 12, 2006, coupled with the CT scan of August 15, 2006, which showed the presence of a metal object and Dr. White’s call soon thereafter about it possibly being related to his surgery, constitutes notice enough to excite attention and put an injured party on guard and call for inquiry.

At that time, Mr. Davidson was in his early seventies. He had operated a large farming business, and he had some college education. I^Though he apparently was not suffering from the presence of the metal object in his abdomen, he knew there was something that should not be there. Even discounting Dr. White’s testimony, both Dr. Blackmon and Dr. Donald stated in their depositions that they mentioned to Mr. Davidson the metal object shown on their respective scans. This occurred in August and September of 2008 and would have given Mr. Davidson knowledge of the actual harm suffered as a result of an act of malpractice. The presence of a foreign metallic object in the abdominal cavity is not a natural occurrence; it is likely there as a result of some negligent oversight. Mr. Davidson had two surgeries in a relatively short period of time — the surgery by Dr. White on April 6, 2006, and the surgery by Dr. Henry on July 3, 2006, to remove the infected penile implant. Dr. Henry’s deposition relates that he saw Mr. Davidson on September 1, 2006, and on June 25, 2007, yet Mr. Davidson did not mention anything to him about the metal object or feeling something in his abdomen that shouldn’t be there. Had he inquired, he would have learned from Dr. Henry that the only metal in the implant was two small pieces of titanium in the pump, which had been removed. Mr. Davidson also refused to follow up with Dr. White. This is a case where reasonable inquiry and the exercise of reasonable diligence would have led to the discovery the alleged malpractice.

The law does not require that a plaintiff be informed of possible malpractice by an attorney or medical practitioner before prescription begins to run. Heirs of Jackson v. O’Donovan, 44,314 (La.App.2d Cir.5/13/09), 12 So.3d 435. Yet, this is exactly what would be required under Mr. | ^Davidson’s argument. Finding that Mr. Davidson did not learn that he had a claim against Dr. White and Glenwood until informed by Dr. Ferguson that the piece of metal was from the re-tractor used during the surgery by Dr. White would require this court to ignore the law on constructive notice and the evidence adduced at trial of the exceptions.

We find no manifest error in the trial court’s judgment. The defendants proved that Mr. Davidson’s claims against them were prescribed when filed more than one year from when he would have had actual or constructive notice sufficient to begin the prescriptive period.

CONCLUSION

For the reasons stated, we affirm the trial court’s judgment granting the defendants’ exceptions of prescription and dismissing with prejudice the claims of the plaintiff. The plaintiff is to bear the costs of appeal.

AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    RIVER GARDEN APARTMENTS v. Marie ROBINSON.
    No. 2012-CA-0938.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 2013.

      Jacob Kansas, Jacob Kansas, Attorney at Law, Gretna, LA, for Plaintiff/Appellee, River Garden Apartments.
    Eric Foley, Renae Davis, Southeast Louisiana Legal Services, New Orleans, LA, for Defendant/Appellant, Marie Robinson.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

| jThis appeal arises from Marie Robinson’s eviction from River Garden Apartments. The trial court found that Ms. Robinson violated her lease and gave her twenty-four hours to vacate. Ms. Robinson alleged that the trial court’s denial of her exception of prematurity and exception to vagueness are reversible error. Ms. Robinson also argues that River Garden Apartments did not have sufficient evidence from which a trier of fact could reasonably conclude that Ms. Robinson, her household, or her guests engaged in criminal activity that was either drug related or threatened the health, safety, or right to peaceful enjoyment of the premises.

We find that the trial court did not err in denying defendant’s exception of prematurity or vagueness. We also find that there is sufficient evidence to conclude that Ms. Robinson’s guests engaged in criminal activity that threatened the health, safety, or right to peaceful enjoyment of the premises.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ms. Robinson leased an apartment from River Garden Apartments (“River Garden”). Her rental unit was a part of public housing as funding was received from the U.S. Department of Housing and Urban Development. Additionally,J^River Garden acts as an agent or instrument of the Housing Authority of New Orleans in operating the public housing units contained at the River Garden development. For the purposes of federal statutes and regulations, River Garden is considered a public housing agency.

Following complaints made to River Garden management and at least one letter titled “Disturbing the Peaceful Enjoyment,” Ms. Robinson received a notice to vacate her residence at 1811 Chippewa Street in the River Garden complex. River Garden cited her residence as a meeting place for narcotics dealers and guests of 1811 Chippewa Street selling narcotics in and around the premises as its reasoning for the eviction. The notice further indicated that Ms. Robinson was previously-warned about the lease violations. Furthermore, the problem had become a safety and nuisance issue for the residents and management of River Garden. The notice informed Ms. Robinson that due to criminal activity by members of her household and others under her control, her lease was terminated.

Ms. Robinson secured counsel with Southeast Louisiana Legal Services after she received her notice to vacate. Ms. Robinson’s counsel then arranged an informal conference with River Garden management. During the conference, Ms. Robinson’s counsel was able to review pertinent documents relating to her eviction maintained in her tenant file.

Subsequently, a trial on the rule for possession was held. During the hearing, Armand Clavo, Quality of Life Director at River Garden, testified that Ms. Robinson was not evicted for engaging in criminal activity. Rather, the individuals Ms. Robinson invited or allowed to be at her residence, participated in criminal activity while on the property that resulted in her eviction.

[ 3Jayson Germann, who patrols River Garden for criminal violations, testified that on several occasions he set up surveillance on Ms. Robinson’s residence. He stated that he always considered it a “hub ... where if you visit the River Garden, that’s where you see people congregating ... and you see a lot of ... very suspicious people.” Mr. Germann further stated he spends a lot of time on his detail sitting near Ms. Robinson’s residence to make sure his presence is known so that no criminal activity -will occur.

Mr. Germann testified that during his patrol duties, he observed a man who was visiting Ms. Robinson’s residence engaged in criminal activity around the residence. Based on his observations, Mr. Germann arrested the individual for possession with the intent to distribute pharmaceutical pills.

Mr. Germann also testified that he was to inform management of any lease violations; and at which time, he began taking photographs during his patrol duties. On one occasion, he took a photograph of two gentlemen who were often seen at Ms. Robinson’s residence. One gentleman became so irate when Mr. Germann took a photograph, Mr. Germann testified he “almost [arrested him] for threats and disturbing the peace,” but elected not to do so.

Officer David Aranda, who lives next door to Ms. Robinson, testified at the hearing that on two occasions he spoke to Ms. Robinson’s son and Ms. Robinson’s brother about smoking marijuana outside her residence. Officer Aranda explained to Ms. Robinson’s brother that he was not to be smoking marijuana outside and that the person whose name is on the lease is responsible for every guest. He further stated that on another occasion he spoke with Ms. Robinson’s son and her [4son’s guest who were smoking marijuana on the porch steps of the residence. He informed them that they were not to smoke marijuana outside, and if they chose to smoke they needed to do it elsewhere, not in front of a residence. Officer Aranda stated that he spoke with Mr. Clavo about the marijuana issue but did not file a formal complaint. Moreover, Officer Aranda testified that “it is just a hostile environment for anybody and their family, children and families ... I feel uncomfortable sometimes if I am coming home late at night, I’ll have to make a pass or two just to make sure that it is safe to go inside.” When asked by the trial court if he felt his health, safety, and right to peaceful enjoyment of the residence was affected, Officer Aranda stated “[o]ne hundred percent.”

The trial court found that due to criminal activity taking place at or near Ms. Robinson’s apartment, the health, safety, and right to peaceful enjoyment of the premises by others was affected. From the trial court’s judgment, Ms. Robinson filed a suspensive appeal to this court.

STANDARD OF REVIEW

Am appellate court must review factual determinations made by the trial court using the manifest error or clearly wrong standard. Cottingim v. Vliet, 08-1263, p. 4 (La.App. 4 Cir. 8/12/09), 19 So.3d 26, 28-29; Fairway Estates Homeowners Ass’n, Inc. v. Jordan, 08-0949, p. 2 (La.App. 4 Cir. 5/20/09), 15 So.3d 1011, 1013. “When the factual findings are based on the credibility of witness’s testimony, the appellate court must give great deference to the fact finder’s decision to credit a witness’s testimony.” Cottingim v. Vliet, supra, (quoting Watters v. Dep’t of Soc. Servs., 08-0977, p. 8 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1142). Even if an appellate court feels “its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of 1 ^credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Cormier v. Comeaux, 98-2378, p. 5 (La.7/7/99), 748 So.2d 1123, 1127; River Garden Apartments v. Horton, 06-0540, p. 2 (La.App. 4 Cir. 1/24/07), 948 So.2d 399, 401. Therefore, “[i]f a review of the entire record demonstrates that the trial court’s factual findings were reasonable, the appellate court must affirm.” Pitts v. Louisiana Citizens Prop. Ins. Corp., 08-1024, p. 3 (La.App. 4 Cir. 1/7/09), 4 So.3d 107, 108-09; River Garden Apartments v. Horton, supra.

If the trial court reaches its decision based upon questions of law, the appellate court must review the record using the de novo standard of review. Green v. Auto Club Group Ins. Co., 07-1468, p. 2 (La.App. 4 Cir. 10/1/08), 994 So.2d 701, 703; Cottingim v. Vliet, 08-1263 at p. 4, 19 So.3d at 29.

Ms. Robinson contends the trial court erred in denying her exception of prematurity and exception of vagueness. Additionally, Ms. Robinson argues that River Garden did not prove by a preponderance of evidence from which a trier of fact could reasonably conclude that Ms. Robinson, her household, or her guests had engaged in criminal activity that was either drug related or threatened the health, safety, or right to peaceful enjoyment of the premises. From our review of the record and the disputed issues, we find this case presents issues of law and fact.

PREMATURITY EXCEPTION

Ms. Robinson contends the trial court erred in denying her exception of prematurity. She asserts River Garden’s failure to provide notice in accordance with federal law as well as the lease mandates a reversal.

|fiA public housing agency may initiate an eviction proceeding without first granting an administrative hearing if the grievance involves criminal activity. 24 C.F.R. § 966.51(a)(2)(i). The relevant federal regulation provides:

When the PHA [public housing agency] is not required to afford the tenant the opportunity for a hearing under the PHA administrative grievance procedure for a grievance concerning the lease termination (see § 966.51(a)(2)), and the PHA has decided to exclude such grievance from the PHA grievance procedure, the notice of lease termination under paragraph (l )(3)(i) of this section shall:
(A) State that the tenant is not entitled to a grievance hearing on the termination.
(B) Specify the judicial eviction procedure to be used by the PHA for eviction of the tenant, and state that HUD has determined that this eviction procedure provides the opportunity for a hearing in court that contains the basic elements of due process as defined in HUD regulations.
(C) State whether the eviction is for a criminal activity as described in § 966.51(a)(2)(i)(A) or for a drug-related criminal activity as described in § 966.51(a)(2)(i)(B).

24 C.F.R. § 966.4(Z)(S)(v) (emphasis added).

The relevant contractual lease provision provides:

XIV (d)(1) The notice of termination to Resident shall state specific reasons for the termination, shall inform Resident of his/her right to make such reply as he/ she may wish, and of Resident’s right to examine The Site Manager documents directly relevant to the termination or eviction.

In the instant case, Ms. Robinson was not granted an administrative hearing. Because the notice to vacate was due to criminal activity, the notice failed to comply with subsections (A) and (B) of 24 C.F.R. § 966.4(Z )(3)(v). The notice was required to state that Ms. Robinson was not entitled to a grievance hearing and was required to state the judicial eviction proceeding to be used by River Garden and 17that HUD had determined that the eviction proceeding contains all the elements of due process as defined in HUD regulations.

Similarly, in accordance with the contractual lease, the notice was required to inform Ms. Robinson of her right to make a reply and her right to examine the site manager’s documents relating to the eviction. The record reflects that the notice to vacate lacked the foregoing information. Accordingly, Ms. Robinson’s notice to vacate violated federal regulations and the contractual provisions of her lease. We therefore, consider whether these violations mandate reversal.

Reversal is not warranted unless the error harmed or prejudiced the complaining party’s cause. Boutte v. Winn-Dixie Louisiana, Inc., 95-1123, p. 9 (La.App. 3 Cir. 4/17/96), 674 So.2d 299, 305. The party alleging error has the burden of showing that the error was prejudicial to their case. Id.

We find that Ms. Robinson was not harmed or prejudiced by River Garden’s failure to provide notice as required by federal law and the contractual provisions of her lease. Ms. Robinson received a “Notice to Vacate” on April 5, 2012, stating she had thirty days to vacate her apartment. The notice alleged the reasons for the termination of her lease were due to confirmed complaints involving criminal activity. Ms. Robinson obtained counsel and had an informal conference with River Garden. At the conference, Ms. Robinson and her counsel obtained copies of the pertinent information in her tenant file regarding the eviction. Likewise, Ms. Robinson was represented by counsel at the trial on the rule for possession and had an opportunity to cross-examine witnesses and present a defense.

A review of the record demonstrates that Ms. Robinson was not harmed or prejudiced by River Garden’s failure to abide by federal regulations and contractual provisions of the lease. For these reasons, we find the trial court did not [ serr in denying Ms. Robinson’s exception of prematurity and reversal is not mandated.

EXCEPTION OF VAGUENESS

Ms. Robinson alleges the notice to vacate failed to provide sufficient detail of alleged criminal activity that constituted violations of the lease.

A reason for eviction and proper notice are essential requirements for a lessee to have due process. Flores v. Gondolier, Ltd., 375 So.2d 400, 403 (La.App. 3rd Cir.1979); See also Louisiana State Museum v. Mayberry, 348 So.2d 1274, 1276 (La.App. 4th Cir.1977). This court has held that “minimum requirements of due process require notification of the reason for eviction to allow preparation of a defense if any is available.” Louisiana State Museum v. Mayberry, supra.

The record reflects that Ms. Robinson received a thirty day notice to vacate. The notice to vacate listed the grounds for termination as Ms. Robinson’s home had become a meeting place for neighborhood narcotics dealers and guests at her residence were observed selling narcotics in the neighborhood. The notice to vacate also noted that Ms. Robinson was previously warned about the violations and at that meeting she stated the problem would cease. Moreover, the notice to vacate cited that the problem continued even after the warning and had become a safety and nuisance issue for the residents and management at River Garden.

We find that Ms. Robinson was afforded due process. Ms. Robinson received a notice to vacate that provided detailed reasons for her eviction. | ^Moreover, Ms. Robinson was aware of the safety and nuisance issues as she was previously informed in writing and warned that such activity was a violation of her lease. Ms. Robinson, upon receiving the notice to vacate, also had the opportunity to review her tenant file with regard to her eviction at an informal conference. Thus, Ms. Robinson had adequate and sufficient notice to prepare a defense. We find the trial court did not commit reversible error in denying Ms. Robinson’s exception of vagueness.

SUFFICIENCY OF EVIDENCE

Ms. Robinson contends River Garden did not prove by a preponderance of evidence from which a trier of fact could reasonably conclude that Ms. Robinson, her household, or her guests had engaged in criminal activity that was either drug related or threatened the health, safety, or right to peaceful enjoyment of the premises.

River Garden does not contend that Ms. Robinson engaged in criminal activity that resulted in her eviction. River Garden does contend, however, that her household or her guests engaged in criminal activity that led to her eviction. This court has previously determined that where the lease refers to “a guest or other person under the tenant’s control,” the tenant controls who has access to the premises and the tenant is responsible for their activities. River Garden Apartments v. Horton, 06-0540 at p. 3, 948 So.2d at 399. Likewise, under 24 C.F.R. 5.100 “other person under the tenant’s control” refers to:

[T]he person, although not staying as a guest (as defined in this section) in the unit, is, or was at the time of the activity in question, on the premises (as premises is defined in this section) because of an invitation from the tenant or other member of the household who has express or implied authority to so consent on behalf of the tenant.

|in24 C.F.R. 5.100 also defines premises as “the building or complex or development in which the public or assisted housing dwelling is located, including common areas and grounds.”

Here, the trial court heard testimony of witnesses and determined that Ms. Robinson had violated the terms of her lease. Specifically, the trial court found that the health, safety, and right to peaceful enjoyment of the residence were affected. Although Ms. Robinson was not personally involved in the criminal activity alleged, members of her household, guests, and others persons under her control participated in the complained of criminal activities.

Members of her household through their actions allowed or invited guests and other persons to the property; and, therefore, fell under Ms. Robinson’s control. The household members, guests, and other persons allowed on the property participated in the complained of activity that resulted in Ms. Robinson’s eviction.

At the hearing, Mr. Germann testified that during his patrol, he observed a man who was visiting Ms. Robinson’s residence engaged in criminal activity around the residence. Based on his surveillance, Mr. Germann arrested the individual for possession with the intent to distribute pharmaceutical pills.

Mr. Clavo testified that he received complaints of criminal activity and addressed the issue with Ms. Robinson prior to the notice to vacate. Similarly, at the hearing, there was testimony that a former River Garden resident, who was no longer permitted at River Garden, was seen at Ms. Robinson’s residence. The former resident was no longer allowed at River Garden due to “criminal-related activity” that occurred at his former River Garden apartment.

| nThe trial court also heard testimony from Officer Aranda who testified that he had occasion to witness Ms. Robinson’s brother, her son and her son’s guest smoking marijuana in front of her residence on more than one occasion. Officer Aranda addressed his concerns with Mr. Clavo. Additionally, Officer Aranda testified that he often feels uncomfortable coming home due to the hostile environment created by the number of people that congregate outside Ms. Robinson’s residence.

On appellate review, this court gives great deference to the trial court’s findings of fact and credibility determinations of witness testimony. In light of the testimony and the record, we find that there was sufficient evidence available for the trial court to reasonably conclude that Ms. Robinson was in violation of her lease. Members'of her household and the guests invited and allowed on the premises engaged in illegal activity that threatened the safety, health, and peaceful enjoyment of the premises.

DECREE

We find that trial court correctly denied Ms. Robinson’s exception of prematurity and vagueness. Furthermore, the trial court had sufficient evidence to reasonably conclude that Ms. Robinson’s household and guests engaged in criminal activity that threatened the health, safety, or right to peaceful enjoyment of the premises. Accordingly, we affirm.

AFFIRMED

      . Mr. Germann is employed by the New Orleans Police Department and has a detail patrolling River Gardens for criminal violations. He is responsible for informing management of lease violations; however, he is not responsible for enforcement of the lease provisions.

      . During the first month of her lease, Ms. Robinson received a letter from River Garden titled "Disturbing the Peaceful Enjoyment,” requesting her presence at a mandatory meeting to discuss her household’s alleged involvement in a recent disturbance. The letter alleged that while New Orleans police officers attempted to disperse a crowd from the corner of St. James and Chippewa Streets, several of the subjects ran into her apartment. The letter also advised Ms. Robinson that harboring persons from a fleeing prosecution is a violation of her lease agreement.