text:
    MACWCP II LLC v. Charlotte Faye WILLIAMS
    NO. 2017 CA 0004
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 15, 2017

      James L. Maughan, Zachary, Louisiana, Attorney for Appellant, Charlotte Faye Williams
    Mary G. Erlingson, Judson G. Banks, Mary E. Colvin, Baton Rouge, Louisiana Attorneys for Appellee, Sid J Gautreaux, III, Sheriff and Ex Officio Tax Collector for the Parish of East Baton Rouge
    Jessica C. Seale, Metairie, Louisiana Attorney for Appellee, CR Properties 2015, LLC
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

11 This is an appeal of a summary judgment dismissing a third-party demand against Sid J. Gautreaux, III, Sheriff and Ex Officio Tax Collector for East Baton Rouge Parish, which was asserted in a suit to quiet tax title to property sold at tax sale. We reverse and remand for further proceedings.

FACTS

In 2008, property owned by Charlotte Williams, where she lived in a trailer with her family, was sold at tax sale for failure to pay 2007 ad valorem taxes in the amount of $82.00. In 2012, the holder of the tax deed filed a suit to quiet tax title. In response, Ms. Williams claimed the tax sale was an absolute nullity and asserted a third-party demand against the Sheriff.

Ms. Williams alleged she purchased the property in 1993 and faithfully paid taxes thereon in the amount of approximately $38.00 per year. She contends she was surprised when she received, notice in 2007 that her 2006 taxes were $315.00, but paid the amount anyway. Ms. Williams claims she contacted the tax collector’s office about the increase and was told .the amount was correct. The 2006 tax was, in fact, incorrect, as she owed only $32.00.

Ms. Williams alleges she received a letter in 2008 notifying her the 2007 taxes on the property had not been paid and, if left unpaid, the property would be sold. She claims she immediately called the tax collector’s office and spoke to an employee who said Ms. Williams “made a big over-paymént” in 2007, which was still being held in the tax collector’s escrow account. Ms. Williams contends the employee told her the balance in the escrow account could be used to pay the 2007 taxes. Ms. Williams claims she instructed the employee to pay the outstanding] ⅞ taxes from the overpayment in the escrow account, and she was not asked to complete any additional paperwork. Ms. Williams contends she relied upon the agreement to satisfy the tax debt from the overpayment. But, the 2007 tax debt was not paid with those funds, resulting in Ms. Williams’ property being sold. In 2012, months before this suit was filed, Ms. Williams received a $283,00 refund from the Sheriff, the amount of the 2006 tax overpayment.

Ms. Williams alleges she had no knowledge her home was sold at tax sale until she was served with the petition to confirm tax title. She claims the salé occurred due to errors and omissions of the Sheriff, which she contends constitute willful, outrageous, reckless, or flagrant misconduct. Accordingly, in the event the tax sale was not 'declared an absolute nullity, Ms. Williams sought to recover from the Sheriff the value of her property, damages suffered during the litigation, and attorney’s fees.'

On June 23, 2014, the trial court signed á judgment confirming and quieting the tax title'. Ms. Williams did not appeal that judgment. The trial court later denied a motion for summary judgment filed by Ms. Williams seeking a declaration that the tax sale was null and void. Ms. Williams appealed; however, that apjpeal was dismissed since it was taken from 'a nonap-pealable interlocutory judgment. MACWCP II, LLC v. Williams, 2015-0876 (La. App. 1 Cir. 10/19/15) (unpublished action).

Ms. Williams and the Sheriff then'filed cross-motions for summary judgment relative to Ms. Williams’ third-party demand. The Sheriffs motion asserted Ms. Williams could not meet her burden of proof at trial because she could not prove she actually spoke with someone in the Sheriffs office about applying the overpayment to her unpaid taxes. The Sheriff further alleged Louisiana Revised Statutes 47:2124 applies and provides him with immunity for the performance or failure to exercise his duties as tax collector except when his |sacts or omissions constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. The Sheriffs motion for summary judgment additionally, asserted . Ms. Williams could not meet the. heightened burden of. proving his or his employees’ acts were criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. Ms. Williams countered that summary judgment should be granted in her favor declaring the tax sale an absolute nullity or, alternatively, ordering the Sheriff to pay her-damages and attorney’s fees because the tax sale resulted from his failure to credit her overpayment held in escrow to her tax debt. The motions were heard on the same day, and the trial court granted the Sheriffs motion for summary judgment, finding Ms. Williams did not show she could prove she spoke with someone in the Sheriffs office, and even if she could, she could not meet the heightened burden of proof required by Section 47:2124 to prove an exception to immunity.

.•Ms. Williams now appeals the November 30, 2016 judgment granting the Sheriffs motion for summary judgment and dismissing .her claims against the Sheriff. She also asks this court to declare the June 23, 2014 judgment confirming and quieting the tax title an absolute nullity. - ,

. DISCUSSION

A motion for summary judgment shall be granted only if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro., art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607, 610.

14A sumniary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F. The burden of proof is on the mover. See La. Code Civ. Pro. art. 966D(1). However, if the mover will not bear the burden of proof at trial on' the matter before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, - or defense. Thereafter, the adverse party must' produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. -Code Civ. Pro. art. 966D(1). Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive láw applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82.

The Sheriff moved for summary judgment, in part, on the basis that he is immune from liability to Ms, Williams pursuant to Section 47:2124, which pertinently provides:

B. Liability shall not be imposed on tax collectors or tax assessors or their employees based upon the exercise or performance or the failure -to exercise or perform their duties under this Chapter.
C. The provisions of Subsection B of this Section are not applicable to acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

On appeal, Ms. Williams contends Section 47:2124 is inapplicable because the conduct at issue occurred prior to the section’s enactment. The Sheriff argues we should not consider this issue since it was not raised at the trial court. We reject the Sheriffs argument because a determination of the applicable substantive law is |fia threshold decision to our de novo review to determine if there are genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. See La. Code Civ. Pro. art. 966A(3); Binkley v. Landry, 00-1710 (La. App. 1 Cir. 9/28/01), 811 So.2d 18, 22-23, writ denied, 01-2934 (La. 3/8/02), 811 So.2d 887 (considering the substantive law applicable to the summary judgments, the appellate court determined the immunity provision of the statute on which the motions for summary judgment were based was not retroactively applicable to the facts of the case).

Louisiana Civil Code article 6 sets forth the general rule against retroactive application of legislative enactments and its exceptions, stating, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the' contrary.” Additionally, Louisiana Revised Statutes 1:2 provides that “[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated.” To determine whether a law should be retroactively applied, courts, must first ascertain whether the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, the inquiry is. at an end. If the-legislature did not, the court must classify the enactment as substantive, procedural, or interpretive. Born v. City of Slidell, 15-0136 (La. 10/14/15), 180 So.3d 1227, 1235. Notwithstanding this analysis, even where the legislature has expressed its intent to give a law retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights. Born, 180 So.3d at 1235.

Section 47:2124 was enacted by Acts 2008,' No. 819, section 1, which became effective January 1, 2009. The legislature expressed no intent regarding | (¡retroactive application. Therefore, we must determine whether Section 47:2124 is substantive, procedural, or interpretive, according to the following guiding principles set forth by the Louisiana Supreme Court:

Substantive laws establish new rules, rights, and duties or change existing ones. Procedural láws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Interpretive laws -merely establish the meaning'the interpreted statute had from the time of its enactment.

Born, 180 So.3d at 1236 (quoting Segura v. Frank, 93-1271, 93-1401 (La. 1/14/94), 630 So.2d 714, 723, cert. denied sub nom. All state Insurance Company v. Louisiana Insurance Guaranty Association, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994)) (internal citations omitted);

The revision comments for Section 47:2124 recognize that the section is new and operates to limit the liability of tax collectors and tax assessors for their actions relating to the collection of taxes, tax sales, and property adjudications, and further operates to shift the burden of notifying interest holders away from tax collectors and tax assessors. Finally, the revision comments recognize that Section 47:2124 is based on .Louisiana Revised Statutes 9:2798.1, but does not limit the immunity provided to policymaking or discretionary acts.

We find Section 47:2124 is a substantive law. It establishes the specific immunity of tax collectors and tax assessors, which is more expansive than the general immunity provided under Section 9:2798.1 to the state and its political subdivisions from liability for policymaking and discretionary acts. Consequently, Section 47:2124 is to be. applied only prospectively from its January 1, 2009 effective date and cannot be applied retroactively to shield the Sheriff from liability for the cause of action asserted by Ms. Williams in her third-party demand.

|7The Sheriff argues that even if the specific immunity provision of Section 47:^124 does not apply, the general immunity provision of Section 9:2798.1 affords him immunity’ for the acts alleged by Ms. Williams. The summary judgment procedure specifies that summary judgment may be' rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F. The Sheriffs motion for summary judgment on the issue of immunity was limited to Section 47:2124. The issue of whether Section 9:2798.1 affords immunity to the Sheriff for the cause of action asserted in Ms. Williams’ third-party demand was not raised in the motion for summary judgment and cannot be considered in this appeal. Compare, 220 So.3d at 83.

As an alternative basis for his motion for summary judgment, the Sheriff contends Ms. Williams will be unable to meet her burden of proof at trial because she cannot prove she spoke with someone in the Sheriffs office about applying her 2006 overpayment to the 2007 tax debt. The Sheriff contends Ms. Williams’ deposition testimony establishes that Ms. Williams does not know whether she called the tax collector, the tax assessor, or the clerk of court, and cannot identify the person to whom she spoke. Specifically, the Sheriff points to the following deposition testimony by Ms. Williams:

Q. All right. Now, when you called [ (after receiving the letter that she had not paid her taxes and that her property was in danger of being sold) ], did you call the tax collector, the assessor, or the clerk?
A. I don’t remember. They switched me over, so I must have called the wrong one.
Q. All right. So whoever told you this information about the overpayment, you don’t know whether you had called the tax collector — ■
A. I’m not sure.
Q. —or the assessor, or the clerk; is that right?
LA. That’s right.
Q. You called, you don’t know if it was the tax collector, or the assessor—
A. I’m not sure.
Q. —or the clerk? Okay. So you made this phone call. Tell me what they said again, please.
A. To pay for ’07?
Q. Yes, ma’am.
A. I called and asked them why was the payment so much and I had only been paying, sometimes it was 36, sometimes 39, one time it was 42, down the line. And so the lady said hold on just a minute, got my lot number, all the information, and she come back on the phone and told me that the payment would be took out of the overpayment that I made in ’06 is when I made the overpayment. Q. Now, this person that you spoke to, I’m assuming you don’t know who it was?
A. No, I don’t.
Q. You didn’t get a name or anything? A. No.
Q. ... You don’t know if it was the sheriffs office you talked to or not, correct?
A. I think it was the tax assessor’s office.

The Sheriff contends the summary judgment should be upheld since Ms. Williams cannot sustain her claim that it was the acts or omissions of the Sheriff that caused her property to be sold. The Sheriff argues the tax assessor is not a party to this suit, and there is no rational basis for holding the Sheriff liable for any representations that may have been made by the tax assessor’s office.

After de novo review of the summary judgment evidence, we find genuine issues of material fact preclude summary judgment. The Sheriffs burden was to point out an absence of factual support for an essential element of Ms. Williams’ 19claim. Ms. Williams admittedly cannot identify the particular person who allegedly told her the 2007 taxes would be paid from the 2006 overpayment funds. However, Ms. Williams testified she called about her delinquent taxes and her call was transferred to someone who accessed her account, told her she made an overpayment, and informed her the overpayment could be credited to her tax debt. The • summary judgment evidence also establishes that overpayment amounts could be applied to satisfy tax debts. Rather than pointing out an absence of factual support, the Sheriff, has shown that the question of whether Ms. Williams spoke with an employee of the Sheriffs office will depend on a credibility determination regarding Ms. William’s description of the phone call and its contents, as well as reasonable inferences that can be made. When considering a motion for summary judgment, courts cannot make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubts must be resolved in the opponent’s favor. Willis, 775 So.2d at 1050. Resolution of this issue must be reserved to the trier of fact. The Sheriff has not met his burden of proof on the motion for summary judgment. Therefore, the trial court’s judgment granting summary judgment in favor of the Sheriff and dismissing Ms. Williams’ claims against him is reversed.

The remaining issues- raised by Ms. Williams relate to her claim that the tax sale and judgment confirming the tax title are invalid, including that they are absolute nullities. Ms. Williams raised these issues in her motions for summary judgment, which the record reflects were set for hearing with the Sheriffs motion. The trial court’s judgment does not contain a ruling on Ms. Williams’ motions for summary judgment. However, it is well-settled that silence in a judgment of the trial court as to any issue, claim, or demand placed before'the court is deemed a | ^rejection of-the claim and the relief sought is presumed to be denied. See L.J.D. v. M.V.S., 16-0008 (La. App. 1 Cir. 1/25/17), 212 So.3d 581, 584: When ah unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to her, in addition to the review of the final judgment. City of Baton Rouge v. Douglas, 16-0655 (La. App. 1 Cir. 4/12/17), 218 So.3d 158, 162. Thus, the denial of Ms. Williams’ motions for summary judgment are subject to consideration in this appeal.

Although the denial of the motions for summary judgment are subject to re-, view, the tax deed holder contends the issues regarding the validity of the tax sale and judgment confirming the tax title cannot be considered because Ms. Williams failed to timely appeal the June 23, 2014 judgment that confirmed the tax sale. The tax deed holder argues the June 23, 2014 judgment is final and definitive, barring further litigation regarding the sale’s validity. Ms. Williams does not dispute that she did not appeal the June 23, 2014 judgment. Nonetheless, it is well settled that .an absolute nullity may be attacked m any court at any time. See Miles v. Our Lady of the Lake Regional Medical Center, 01-2272 (La. App. 1 Cir. 10/2/02), 836 So.2d 136, 138. Therefore, Ms. Williams’ failure to appeal the June 23, 2014 judgment does not bar her challenge that it is absolutely nuil.

Ms. Williams attacks the tax sale and judgment confirming the tax title on the following grounds: 1) the 2007 tax obligation was extinguished under the doctrine of compensation; 2) she was not provided with post-sale notice as required by Louisiana Revised Statutes 47:2183; and 3) the trial court lacked subject matter jurisdiction to render the June 23, 2014 judgment because the tax deed holder lacked standing because it acquired no rights in the •property.

A judgment rendered by a court without subject matter jurisdiction is an absolute nullity, which may be recognized at any time. La; Code Civ. Pro. art. |112002A(3). Although Ms. Williams characterizes her argument as a challenge to the trial court’s subject matter jurisdiction to render the June 23, 2014 judgment, she is actually arguing the tax deed holder/plaintiff did not have a real and actual interest in the action. In other words, Ms. Williams argues the tax deed holder/plaintiff did not have a right of action. Compare Miller v. Conagra, Inc., 08-0021 (La. 9/8/08), 991 So.2d 445, 455. An objection of no right of •action is waivable if not properly raised; it does not determine the court’s subject matter jurisdiction. See Miller, 991 So.2d at 455. By failing to appeal the June 23, 2014 judgment, which was rendered over Ms. Williams’ objection as to the tax deed holder/plaintiffs right of action, Ms. Williams effectively waived her objection. See Miller, 991 So.2d at 455. Ms. Williams’ argument that the June 23, 2014 judgment is absolutely null on this basis is without merit.

Ms. Williams’ other arguments relate to the validity of the tax sale itself. Notice is a recognized constitutional requirement; therefore, failure to give the required notice is fatal to a tax sale. See Smitko v. Gulf S. Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So.3d 750, 757. The tax sale occurred in 2008 and is governed by the law in effect at that time. See Central Properties v. Fairway Gardenhomes, LLC, 16-1855 (La. 6/27/17), 225 So.3d 441, 448 (2017 WL 2837152). Under former Louisiana Revised Statutes 47:2180, to give property owners reasonable notice so as not to deprive them of constitutionally-protected property rights, the tax collector was required to provide the taxpayer with written notice, sent by certified mail return receipt requested, alerting each record owner of the immovable property that the owner’s failure to pay the taxes within twenty days would result in the sale of the property. See Smitko, 94 So.3d at 757.

[iaHere, Ms. Williams does not dispute that she received pre-sale notice of the tax sale. Rather, she argues the tax sale is absolutely null because she did not receive appropriate post-sale notice! The Louisiana Supreme Court has recognized that under the applicable statutory law, the failure to give post-sale notice does not nullify a tax sale if the property owner was provided the statutorily-required pre-sale notice of delinquency and tax sale. See Hamilton v. Royal International, 05-0846 (La. 2/22/06), 934 So.2d 25, 30-31, cert. denied, 549 U.S. 1112, 127 S.Ct. 937, 166 L.Ed.2d 704 (2007). Ms. Williams’ argument to the Contrary is without merit.

Finally, we also find Ms. Williams’ argument regarding extinguishment of the 2007 tax obligation is without merit. The argument raises a defense on the merits and is not grounds for holding the tax sale or judgment quieting tax title to be absolute nullities.

CONCLUSION

For the foregoing reasons, the November 30, 2016 summary judgment dismissing Ms, Williams’ third-party .demand against Sid J. Gautreaux, III, in his official capacity as Sheriff and ex officio tax collector for East Baton Rouge Parish is reversed. This matter is remanded for tether proceedings consistent with the views expressed herein. Costs of this appeal in the amount of $3,151.50 are assessed to Sheriff Gautreaux.

NOVEMBER 30, 2016 JUDGMENT REVERSED; REMANDED.

Pettigrew, J. Concurs

      . The original plaintiff in this suit was MACWCP II LLC, who acquired the tax deed after a series of transfers from the original tax sale purchaser. During the course of these proceedings, further transfers occurred, leading to the substitution of parties, with CR Properties 2015, LLC, being the plaintiff in the underlying suit at the time the judgment confirming the tax title was rendered and the appellee to this appeal. •

      . Moreover, an appellate court may notice ex proprio motu that the law does not, extend a remedy to a particular defendant. Dennis v. Wiley, 09-0236 (La. App. 1 Cir. 9/11/09), 22 So.3d 189, 193, writ denied, 09-222 (La. 12/18/09), 23 So.3d 949.

      . The Official Revision Comments connected with statutes are not part of the law, but can be useful in determining legislative intent. Central Properties v. Fairway Gardenhomes, LLC, 16-1855 (La. 6/27/17), 225 So.3d 441, 448 (2017 WL 2837152).

      . The tax deed holder filed a brief responding to Ms. Williams' nullity arguments.

      . Neither the substantive revisions to the law on tax sales by Acts 2008, No. 819, section 1, effective January 1, 2009, nor the Louisiana Supreme Court's analysis of the revised law in the recent case of Central Properties v. Fairway Gardenhomes, LLC, 16-1855, 16-1946 (La. 6/27/17), 225 So.3d 441, 448 (2017 WL 2837152), are applicable to the facts of this case.


source: Caselaw Access Project

author: HOLDRIDGE, J. CRAIN, J.,

license: Public Domain

text:
    SUCCESSION OF Dudley BOURG
    NO. 2016 CA 1347
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 21, 2017

      Philip A. Spence Houma, Louisiana, Attorney for .Plaintiffs/Appellants, Jenny Marie Hotard Picou and Geralyn Ann Hotard Verdin
    Jan S. Brunet Houma, Louisiana, Attorney for Defendants/Appellees, Diana Neal Bourg and Anita Bourg Arceneaux ■
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.HOLDRIDGE, J.
   HOLDRIDGE, J.

|2In this familial property dispute, the plaintiffs appeal the judgment of the trial court that enforced a settlement agreement. We affirm.,

FACTS

The parties are Diana Neal Bourg and her three daughters, Jenny Marie Hotard Picou, Geralyn Ann Hotard Verdin, and Anita Bourg Arceneaux. Jenny and Gera-lyn were born to Diana and Gerald Joseph Hotard. After Gerald’s death in 1958, Diana married Dudley Bourg, and Anita was born, Dudley died in 1976.

At issue are the parties’ rights to property located in Montegut, Louisiana. The property is comprised of two contiguous tracts of land; one was Gerald’s separate property, and one was the community property of Gerald and Diana. A house built by Gerald and Diana was destroyed by Hurricane Betsy, then rebuilt by them partially on Gerald’s separate property. Diana and Anita now live in that house. Geralyn and her daughter each live in mobile homes located on the property.

The property was allegedly involved in the succession proceedings of both Gerald and Dudley. Jenny and Geralyn filed a petition to nullify the judgment of possession from Dudley’s 2013 succession, claiming it awarded Diana and Anita property that was previously adjudicated to them (Jenny and Geralyn) in Gerald’s succession, Diana and Anita answered, denying Jenny and Geralyn’s claim that the same property was involved in both-successions, explaining that land was conveyed in Gerald’s succession, but Dudley’s succession dealt with buildings on the land, specifically a brick house. Diana and Anita also asserted a reconventional demand seeking to partition the disputed property because they, along with Géralyn and Geralyn’s daughter, could no longer live on the property peacefully.

On September 28, 2015, the parties and their attorneys appeared for a bench trial and engaged 'in settlement negotiations with the trial court. At the conclusion |aof the negotiations, the trial court stated it had a “lengthy discussion with the attorneys” in an attempt to resolve the pending issues. The trial court pointed out that a home on the disputed property was destroyed, then rebuilt and elevated, raising questions a6out whether the house and land, respectively, was separate or community property. The trial court said a partition in kind (a physical division of the property) was possible, and continued, saying “The parties have struggled in trying to deal with the issues and come up with some appropriate resolution. And they have, at this point,, come up with a possible solution, and they have signed an agreement on a map that is being held by the Court.”

The trial court then outlined, the agreement reached to divide the property as shown on the map. The trial court explained that in exchange for the agreement, Jenny and Geralyn gave up any right to the property where the house is located; Diana and Anita gave -up any rights to the remaining property; and Anita gave up any rights in the house in favor of her mother. The trial court clarified that Diana would own the house, and the remaining property would be carved out around it. The trial court explained that as additional consideration for the agreement, Jenny and Geralyn would each receive $10,000. The parties confirmed their signatures on the map and acknowledged on the record that the trial court’s description matched their understanding of the agreement. The trial court noted that a completed survey would need to be signed by the parties, after which the remaining issues could be resolved.

In January, 2016, Diana and Anita filed a motion and rule to show cause alleging they engaged a registered land surveyor to prepare a final map to divide the property and prepared a consent judgment, but Jenny and Geralyn refused to sign. Diana and Anita asked that the' surveyor’s map be used to finally divide the property. Jenny and Geralyn opposed the motion, arguing they did not voluntarily consent to divide the property as shown on the map signed September 28, 2015,14the day “of the scheduled bench trial. They claimed théy felt intimidated and coerced to sign and referenced á “miscommunication” between them and their former attorney. Jenny and Geralyn additionally argued the surveyor’s map was not in accordance with the proposed agreement and included property not part of the partition proceeding.

The parties appeared in court on February 26, 2016, for Jenny and Geralyn to show- cause why the surveyor’s map should not be used to.divide the property. The trial court continued the hearing after discussing a number of issues with counsel in chambers and hearing suggestions to help resolve differences, including “moving some of the lines, changing some of the previous agreements in connection with this matter.” The trial court noted “a number of options” being considered;'arid reset the hearing to allow the attorneys and their clients to resolve the issues without further litigation expenses. The trial eourt expressed hope that the parties would reach an agreement, but cautioned there would need to be “some remedial language” arid “a number of things that we’re going to need to probably clean up.”

On March 31, 2016, the parties returned to court. The trial court heard testimony on whether a settlement was reached on September 28, 2015, and whether the surveyor’s map should be used to finally divide the property. Both Jenny and Geralyn testified they signed the map on September 28, 2015, but only after their attorney said if they did not sign, Geralyn and her daughter would have to move their trailers. Jenny testified the September 28, 2015, map was signed because they “felt threatened.” Jenny and Geralyn said they believed dividing the property according to the surveyor’s map was inequitable. Gepa-lyn further stated there was no intent to include her father’s separate property in any settlement. Geralyn denied agreeing to allow the judgment of possession rendered in Dudley’s succession to stand.

[sAfter hearing testimony from both sides, the trial court found a binding agreement was reached on September 28, 2015, as acknowledged by the parties on the record and as shown on the map signed by the parties on that date. The trial court found the surveyor’s map did not accurately reflect the parties agreement and the map signed September 28, 2015. would be enforced. A -judgment reflecting the September 28, 2015 agreement was signed by the trial court on June .6, 2016..

Jenny arid-Geralyn suspensively appealed, -contending the trial court erred in finding a binding agreement.

DISCUSSION

A compromise ⅛ á contract whereby the parties, through concessions made by-one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. Civ. Code art. 3071. Louisiana Civil Code article 3072 sets forth the formal requirements for a compromise, stating that a compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from-the record, of the proceedings. Like other contracts, a compromise agreement is the law between the parties, and must be interpreted according to the parties’ true intent. The party who attempts to rely on theexistence, of a compromise agreement bears the burden of proving the, requirements for a valid compromise, including the parties’ intent to settle. Swire v. Lafayette City-Parish Consol. Government, 04-1459 (La. 4/12/05), 907 So.2d 37, 55.

On appeal, Jenny and Geralyn raise one argument concerning the form of the compromise, and the remainder of their contentions involve the trial court’s factual findings as to the existence of a compromise. They argue on appeal that since this case involves the- transfer of immovable property, pursuant to Louisiana Civil Code article 3073, the compromise must comply with the form requirements under Louisiana Civil Code article 1839 for transferring immovable property in addition |fito the formal requirements of Article 3072. Under Louisiana Civil Code article 1839, a transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath. La. Civ. Code art. 1839.

Legislation is the solemn, expres-siop of the legislative will; thus, the interpretation of legislation is primarily the search for legislative intent. See La. Civ. Code art. 2; In re Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122, 1128. The starting point for interpretation of any code article is the language of the article itself. River Parish Financial Services, LLC v. Gill, 15-0811 (La. App. 1 Cir. 12/23/15), 186 So.3d 181, 183. Laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other. See La. Civ. Code art. 13; Acurio v. Acurio, 16-1395 (La. 5/3/17), 224 So.3d 935, 938 (2017 WL 1709823). The legislature is presumed to have acted with deliberation and to have enacted each article in light of the preceding law involving the same subject matter and court decisions involving those articles. See La. R.S. 24:177C; Rebel Distributors Corporation, Inc. v. LUBA Workers’ Comp., 13-0749 (La. 10/15/13), 144 So.3d 825, 836. Courts must interpret a law in a way that harmonizes and reconciles it with other provisions dealing with the same subject matter. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La. 11/29/06), 943 So.2d 1037, 1045. Additionally, courts must give effect to all parts of a law and, if avoidable, should not give an interpretation that makes any part superfluous or meaningless. See Holly & Smith Architects, Inc., 943 So.2d at 1045.

Louisiana Civil Code article. 3073 provides, “When a compromise effects a transfer or renunciation of rights, the parties shall have the capacity, and the contract shall meet the requirement of form, prescribed for the transfer or 1 ^renunciation.” Although the Official Revision Comments published with statutes are not law, they can be useful in determining legislative intent. Central Properties v. Fairway Gardenhomes, LLC, 16-1855 (La. 6/27/17), 225 So.3d 441, 448 (2017 WL 2837152). Comment (a) to Article 3073 indicates, “[tjhis Article is new. It reflects in part the principle contained in Article 3072 of the Louisiana Civil Code of 1870,” which contained requirements regarding capacity. Prior to the 2007 amendments, the Civil Code articles on compromises contained a capacity requirement, but did not specify a form requirement for contracts, relating to the type of rights being transferred.

The longstanding practice in the trial court concerning compromises involving immovable property is that the compromise is recited on the record, then the parties prepare a contract that conforms to the'requirements of Article 1839 to transfer the property. Article 3071 of the Code of 1870 (which was in effect until 2007) provided in part that “[t]he agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.” Current Article 3071 was not intended. to change this practice or law. See Revision Comments — 2007(a) to Article 3071 (“This- Article is new. It is not intended to change the law.”)

Prior Civil Code Article 3071 and current Article 3073 recognize that more than one contract may be involved with a compromise dealing with immovable property. By using two different terms, “compromise” and “contract,” the legislature clearly intended that they have different meanings. A compromise is defined as a contract by Louisiana Civil Code article 3071, and Louisiana Civil |sCode article 1906 defines a contract, stating, “A contract is an agreement by two or more parties whereby- obligations are created, modified, or extinguished.” While all compromises are contracts, not all contracts are compromises. Therefore, by its plain language, Article 3073 requires that when a compromise effects the transfer of rights, the parties must have the capacity to enter into the compromise, and if the initial compromise agreement is written or if a subsequent contract is entered into transferring the rights of the parties,- that written contract must meet the requirements of form necessary to transfer those rights. The word “contract” in Article 3073 refers to a written compromise or, if the initial compromise is recited in open court, to this additional written contract that the parties may choose to enter into to transfer immovable property or to perform the compromise, as opposed to the actual compromise agreement. Therefore, a compromise involving immovable property is only subject to the formal requirements of Article 3072 and that the parties entering the compromise must have capacity to do so under Article 3073. A compromise agreement is not subject to any additional formal requirements (other than those contained in Civil Code article 3072) unless the parties enter into a written contract involving the transfer of immovable property, in which case the requirements of Civil Code article 1839 must be met.

The remainder of Jenny and Geralyn’s contentions concern the trial court’s determination that a compromise was reached, which is a factual determination subject to the manifest error standard' of review. See Chaney v. New Orleans Private Patrol, 11-2077, p.2, 2012 WL 2061403 (La. App. 1 Cir. 6/8/12). Under the manifest error standard, a reviewing court may not merely decide if it would have 1¡found the facts of the case differently. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110, 1115; see also Hall v. Folger Coffee Company, 03-1734 (La. 4/14/04), 874 So.2d 90, 98. Rather, to reverse a trial court’s factual conclusion, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. Hayes, 193 So.3d at 1115-16; Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). Reasonable evaluations of credibility and inferences of fact should not be disturbed, even if the appellate court feels its own evaluations and inferences are- as reasonable. Hayes, 193 So.3d at 1116; Richardson v. Bridgefield Cas. Ins. Co., 14-1587 (La. App. 1 Cir. 8/10/15), 181 So.3d 61, 65.

The trial court found the parties entered a valid compromise on September 28,2015. The trial court explained that everyone' was present in court with their attorneys when the pending matters were explained, and the parties agreed to divide the property as shown on the map, and according to the terms.outlined on the record. The trial court observed that Diana, Anita,' Jenny, and Geralyn each confirmed that the division of property as reflected on the map and outlined by the trial court was then-agreement, and they signed the map, indicating their agreement.

On appeal, Jenny and Geralyn ar-' gue there was no discussion of settling the nullity action filed in Dudley’s succession. However, the record reveals the trial court did inform the parties they were present for the nullity action. That action raised issues regarding the ownership of the disputed land. The parties agreed to divide the ownership of the disputed land in accordance with the map, as shown by their signatures and verbal agreements made on, the record in open court. A compromise settles only those differences the parties clearly intended to settle, |10including the necessary consequences of what they express. La. Civ. Code art 3076. Resolution of the nullity action was implied in the agreement and was a necessary consequence of settling the property dispute.

Jenny and Geralyn also argue their consent was coerced. At the March 31, 2016, hearing, Jenny and Geralyn argued they did not willfully enter the agreement, which included separate property of their father that was not part of the partition, saying they felt coerced and threatened. Jenny testified the September 28, 2015 agreement was only tentative, and she signed the map only because she was informed that if she did not, the trial court would annul the judgment from her father’s succession. Jenny also said she was told they would need to determine the feasibility of moving a telephone pole so another driveway could be added. Jenny testified she .signed the map on September 28, 2015, despite concerns over the telephone pole, after being told she had five minutes to sign or her sister and niece would have to move. Jenny believed the division of property reflected on the September 28, 2015 map was inequitable.

Geralyn similarly testified regarding the inclusion of her father’s separate property in the property division. However, she acknowledged she always viewed the entire property as one tract. Geralyn admitted telling the trial court on September 28, 2015, she understood and agreed with the property division, but argued she did so only because she believed she and her daughter may have to move. Geralyn said she did not understand the'matter would have proceeded to trial had she not signed the map.

The trial court explained that on September 28,2105, the parties were informed the proceeding was to partition the property, including a possible partition by licitation at a sheriffs sale with everything sold. The trial court explained that if the property were sold, the parties would have to move. To avoid that, the parties agreed to a partition in kind, with certain concessions, including h, Anita giving up her rights, and Diana and Anita making $10,000 payments to Jenny and Geralyn. The trial court also indicated all the issues, including the relocation of a telephone pole, were discussed prior to the parties’ September 28,2015 agreement.

We find no manifest error in the trial court’s determination that the parties entered a valid compromise on September 28, 2015. The record establishes a meeting of the minds as to what was conveyed to each party and an intent to resolve their disputes.' The trial court rejected the claims that Jenny and Geralyn were coerced into signing the map, which determination was reasonable based on its evaluation of the credibility of the parties, and that determination will not be disturbed on appeal. See Hayes, 193 So.3d at 1116; Richardson, 181 So.3d at 65. The record shows that after September 28, 20Í5, the parties considered altering the agreement, but could not agree. The trial court did not. err in enforcing the September 28, 2015 compromise.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Jenny Marie Hotard Picou and Geralyn Ann Hotard Verdin.

AFFIRMED.

Crain, J. concurs and assigns reasons

CRAIN, J.,

concurs.

hThe legislature’s amendment and reenactment of Louisiana Civil Code articles 3071-3078 were not intended to change the law, but merely to reproduce the substance of the former articles and to clarify and reflect principles' contained in the former articles and jurisprudence. City of Baton Rouge v. Douglas, 07-1153 (La. App. 1 Cir. 2/8/08), 984 So.2d 746, 748-49, writ denied, 08-0939 (La. 6/20/08), 983 So.2d 1284; see also Acts 2007, No. 138, § 1; 2007 Official Revision Comments, La. Civ. Code arts. 3071-3078. The jurisprudence interpreting the articles governing compromises establishes that a compromise agreement recited on the record in open court will be treated as though it is a written contract, conferring upon each party the right to judicially enforce the agreement even though the substance may later be written in a. more-convenient form. See Morris, Lee & Bayle, LLC v. Macquet, 14-1080 (La. App. 4 Cir. 3/23/16), 192 So.3d 198, 209. This principle is also reflected in revision comment (b) to Article 3072, which provides that when parties reach a valid oral settlement in court they may mutually compel each other to reduce the agreement to writing. Further, Louisiana Code of Civil Procedure article 1916B provides that when parties to a contested matter reach a compromise agreement recited on the record in open court, the court'may order counsel for a party to prepare and submit a judgment to the court for signa-: ture.

Article 3073 requires that when “a compromise” effects a transfer of rights, “the contract” shall meet the requirement of form prescribed for the transfer.- Applying well-established rules of statutory construction, and. considering the ^particular wording of -the article in relation to the other articles governing compromises, as well as the jurisprudence on the subject, I agree with the majority’s rejection of the interpretation suggested by Jenny and Geralyn that a compromise recited on the record in open court must meet- the form requirements for the transfer of -immovable property. Instead, by its plain language, Article 3073 requires that “the contract” reflecting “the compromise” meet the specified form requirements for the transfer of rights.

In this case, the terms of’the parties’ agreement were set forth on the record in open court on September 28, 2015. The parties acknowledged their agreement to the court and signed the 'map reflecting the agreed upon division of the property. The agreement was capable of being transcribed from the record, and therefore complied with the requirements for a “compromise” under Article 3072. Accord, Catalanotto v. Catalanotto, 14-0708 (La. App. 1 Cir. 12/10/14), 168 So.3d 463, 466 (recognizing that the parties’ agreement in open court to stipulations regarding community property constituted a binding compromise); Reon v. Reon, 07-1277 (La. App. 3 Cir. 4/2/08), 982 So.2d 210, 211 (recognizing a binding compromise of community property issues based upon agreements made in open court). Diana and Anita sought to compel Jenny and Geralyn to reduce the compromise to writing. After finding that a valid compromise was achieved, the trial court ordered that a judgment be prepared to reduce the compromise to writing in accordance with Louisiana Code of Civil Procedure article 1916B.

I agree the trial court did not err in determining the parties entered a valid compromise on September 28, 2015. The record establishes a meeting of the minds as to what was conveyed and an intent to resolve the parties’ disputes. The trial court rejected the claims that Jenny and Geralyn were coerced into signing the map, which determination was reasonable based on its evaluation of the credibility of the parties. See Hayes Fund for First United Methodist Church of Welsh. LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15) 193 So.3d 1110, 1116; Richardson v. Bridgefield Casualty Insurance Company, 14-1587 (La. App. 1 Cir. 8/10/15), 181 So.3d 61, 65. The record shows that after September 28, 2015, the parties considered altering the agreement, but could not agree. Consequently, the trial court did not err in enforping the September 28, 2015 compromise by rendering the June 6, 2016 judgment.

        . Article 3072 of the Code of 1870 provided:
      A man to transact must have the capacity to dispose of the things included in the transaction.
      The tutor of a minor or the curator of a person interdicted or absent can not make a transaction without being authorized thereto by the judge.

      . To interpret Louisiana Civil Code article 3073 to require compromises which are recited in open court that concern immovable property to meet the requirements of Louisiana Civil Code article 1839 would have a chilling effect on settlements requiring the transfer of immovable property, which are entered in open court and recited on the record. Those compromises would be invalid unless the parties could simultaneously prepare and sign the necessary contracts to transfer title to the property which meet the form requirements of Article 1839. Such an interpretation would add additional formality requirements to a compromise recited in open court which are not contained in Louisiana Civil Code article 3072.


author: HIGGINBOTHAM, J.

text:
    Connie B. VILLENUVE v. Michael Eugene CASH and Brenda Sue Cash
    NO. 2016 CA 1530
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 21, 2017

      Robert H. Harrison, Jr., Watson, LA Attorneys for Defendants-Appellants, Michael Eugene Cash and Brenda Sue Cash
    Maryanna B. Haynes, Brian K. Abels, Denham Springs, LA, Carlton Jones, III, Ryan R. Brown, Baton Rouge, LA, Attorneys for Plaintiff-Appellee, Connie B. Vil-lenuve
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

12This appeal concerns the review of a judgment declaring a donation inter vivos of immovable property null and void for lack of authentic form.

BACKGROUND

Connie B. Villenuve is a widow with no children. In 2012, Ms. Villenuve was living on approximately 25 acres of property in Denham Springs, Louisiana. She originally acquired the property, including three houses and a bam, from her parents. On July 31, 2012, Ms. Villenuve went with her neighbors and close friends, Michael Eugene Cash and Brenda Sue Cash, to a local notary’s office to sign documents that she believed were related to the succession of her husband so that she could sell the Cashes two acres of land for their daughter. Instead, Ms. Villenuve signed a document in which she purported to donate all of her property to the Cashes, which was not her intention. Ms. Villenuve had previously executed a will that left all of the property to the Cashes upon her death, but she never intended to donate the property to them while she was still living.

The Cashes informed Ms. Villenuve later that same day that they now owned all of her property. Upon learning this news, Ms. Villenuve became very upset and returned to the office of the notary, Sandra M. Allen Causey, to attempt to have the donation revoked. She was not successful. Approximately one week later, the Cashes moved into one' of the empty houses on the property where Ms. Villenuve still lived. At that point, the previously close relationship between Ms. Villenuve and the Cashes quickly deteriorated, leading to a complete lack of trust and many phone calls to the local sheriffs office concerning harassment and trespassing, as well as threats to evict each other from the property. Ms, Villenu-ve subsequently-revoked her will.

On September 13, 2013, Ms. Villenuve filed a petition against the Cashes, seeking to declare- the act of donation an absolute nullity and to return Ms. Villenuve into full [¡¡possession and ownership of the property, to cancel and erase the act of donation from the Livingston Parish conveyance records,, for an injunction enjoining the Cashes from filing any eviction proceedings against Ms. Villenuve, and for damages. Ms. Villenuve alleged that at the time that she signed the document, she did not understand that she -was transferring all of her property to the Cashes, whom she had trusted. She also alleged that at the time she was under duress and the Cashes had perpetrated a fraud in misrepresenting what she was signing. Additionally, Ms. Villenuve alleged that the act of donation document was void and without effect, because it was not executed in. the presence of two witnesses as required by law. The Cashes answered .the petition, generally denying all of the allegations and requesting that the lawsuit be dismissed.

The matter proceeded to a bench trial on October 14, 2015. The trial court signed a judgment in favor of Ms. Villenu-ve on December 30, 2015, granting all of the remedies she sought in her petition, including a declaration that the act of donation was an absolute nullity. In reasons for judgment, the trial court explained that the donation document was void for proper form because one of the witnesses was not present at the execution of the donation arid the other witness did not actually observe any of the parties or the riotary sign the document. The Cashes filed a motion for new trial, which was denied by the trial court. The Cashes then filed a motion for devolutive appeal, which the trial court granted. The record was lodged in this Court on N ovember 22, 2016.

On appeal, the Cashes contend the trial court erred in finding that the act of donation: (1) was an absolute nullity; (2) was not an authentic act; and (3) was subject to | revocation for the Cashes’ acts of ingratitude. Ms. Villenuve maintains that the trial court’s judgment should be affirmed since the act of donation was not signed in the presence of two witnesses as required by law for an authentic act.

DISCUSSION

Louisiana Civil Code article 1541 requires that donations inter vivos be accomplished by authentic act under the penalty of absolute nullity. An “authentic act” is defined as a “writing executed before a notary public ,,., in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.” La. Civ. Code art. 1833(A) (emphasis added). Any material deviation from the requirements governing authentic acts is fatal. Hardin v. Williams, 468 So.2d 1302, 1304 (La. App. 1st Cir.), affd, 478 So.2d 1214 (La. 1985). To invalidate an act that purports to be authentic on its face, the proof must be strong and convincing in order to overcome the presumption of validity. See Eschete v. Eschete, 2012-2059 (La. App. 1st Cir. 2/27/14), 142 So.3d 985, 987.

In this case, it is undisputed that all of the parties and the notary signed the document, that purported to be a donation of immovable property. The dispute revolves around the witnesses to the document, Ronald A. Causey (the notary’s husband) and Merrell Borne (a woman., who .was at the notary’s office for other business), and whether the act of donation was executed “in the presence” of the two witnesses. Conflicting testimony was presented at the trial.

Ms. Villenuve, stated that no witnesses were actually present at the notary’s desk while she, the notary, and the Cashes signed the document. Ms. Villenuve noted that Mr. Causey was not at the office at the time of the signing, and while Ms. Borne was physically in the notary’s office, she was. sitting on a couch in the waiting area. Furthermore, there was a waist-high wall partition that divided the desk area from the waiting area, and the partition blocked the view into each area.

LMs. Borne verified that she was at the notary’s office sitting in the waiting area at the time that the document was being signed. She testified that she did not actually witness or see any person sign the document, and when she signed as a witness after the parties had signed, the other witness was not present. Ms. Borne also stated that the waist-high partition blocked the view of the desk area if a person was seated in the waiting area. She admitted that she was not paying any attention to the people that were at the notary’s desk and when she was presented the document for her signature as a witness, the others had already signed it.

The Cashes both testified that everyone was present in the notary’s office at the time of the signing, including Mr. Causey, but they admitted that Ms. Borne was sitting on the couch about eight to ten feet away from the desk area, and she was called over to sign as a witness after everyone else had signed the document. Mr. Cash stated that his view of Ms. Borne was not blocked; however, he was not questioned about whether Ms. Borne could actually see what was going on at the desk from where she was sitting. Ms. Cash testified that the witnesses were not physically present at the desk when the parties and the notary signed the document, but they were in the office.

In contrast, Mr. Causey testified that he always stands where he can see the parties sign the documents when he is a witness, and he recalled seeing the parties, the notary, and the other witness in the same roqm on the day of this particular signing. However, Mr. Causey could not verify whether Ms. Borne was near the desk when everyone signed the document. The notary, Ms. Causey, described her office as one room containing a half-wall located between the waiting area and her desk area. She testified that a person could see over the wall from one area to the other. Ms. Causey insisted that Ms. Villenuve and the Cashes were sitting at the desk with her for the signing of the document, and her husband was in that area as well. She stated that Ms. Borne and her husband both saw the parties sign the document; however, she later admitted that she could not recall where Rthe witnesses were exactly located during the signing, but they were in the vicinity of the parties.

In its reasons for judgment, the trial court expressly found that Mr. Cau-sey was “not present at the execution of the donation” and Ms. Borne did “not observe any of the parties nor the [n]otary sign the document, and only affixed her signature later.” The trial court believed “the unbiased and very credible testimony of [Ms.] Borne” and rejected the testimony of the Cashes, the notary, and Mr. Cau-sey. Under these specific facts, we cannot conclude that the trial court was unreasonable in crediting Ms. Borne’s unbiased -testimony and rejecting the statements made by the Cashes, the notary, and the notary’s husband. We perceive no manifest or clear error in the trial court’s factual findings. Moreover, we agree with the trial court’s determination that the act of donation did not meet the requirements of an authentic act as contemplated by La. Civ. Code art. 1833. Clearly, the act of donation was not executed “in the presence of two witnesses.”

The purpose of the authentic act requirements is to ensure the validity of a signature on a document and that the person whose name appears on a document is the person who actually signed the document. The notary and witnesses attest to seeing the party sign the document. Eschete, 142 So.3d at 988. The notary and both witnesses must be present to witness the contracting parties’ signatures. Id., 142 So.3d at 988-89. See also Brumfield v. Brumfield, 457 So.2d 763, 765 (La. App. 1st Cir. 1984). In this case, Ms. Borne clearly testified that she did not visually observe any signatures to the act of donation before she signed the document as a witness; therefore, the strict requirements of an ^authentic act were not met. See Hardin, 468 So.2d at 1304. Accordingly, we find no merit in the Cashes’ assignments of error numbers one and two.

Given our reasoning that the act of donation was an absolute nullity for lack of authentic form, we pretermit consideration of the now moot issue of whether the act of donation was subject to revocation for the Cashes’ alleged acts of ingratitude.

CONCLUSION

The judgment of the trial court is hereby affirmed. Costs of this appeal are assessed to defendants-appellants, Michael Eugene Cash and Brenda Sue Cash.

APPEAL MAINTAINED; JUDGMENT AFFIRMED.

      . Ms. Villenuve and her husband, Frank Bernard Villenuve, bought two acres- from her' parents, Cecil and Mary Bovard, in 1980, and then in 1991, she acquired another 22.7 acres from her .parents as. her -separate property,

      . This Court issued a rule to show cause "to the parties, stating that the appeal appeared to be untimely pursuant to La. Code Civ, P. art. 3662 because the delay for taking a devol-utive appeal from a judgment rendered in a possessory action is thirty days after the notice of the denial of the motion for new trial. After the parties filed briefs on the timeliness of the appeal, another panel of this Court maintained the appeal while reserving .the final determination of the timeliness issue to this panel to which the appeal was assigned. We have reviewed the allegations and prayer in Ms.. Villenuve's petition, and find that the nature of the action was one seeking to declare the act of donation an absolute nullity. Ms. Villenuve’s request to be returned to full possession of the property was based on the declaration that the act of donation was null and that she was the owner of the property. Thus, wé find that- this action is one primarily seeking to annul the act of donation rather than an action to be maintained in possession of property. Therefore, ■ the appeal is timely and will be maintained, because it was taken within sixty days of the notice of the denial of the motion for new trial as required by La. Code Civ. P. art. 2087(A).

      . It is obvious from its reasons for judgment that the trial court accepted Ms. Borne’s factual version of the events surrounding the execution of the act of donation. It is well settled that a trial court's findings of fact will not be set aside absent a finding that they are manifestly erroneous or clearly wrong, and where there is conflict in the testimony reasonable inferences of fact should not be disturbed upon review even though the reviewing court may feel its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). See also Stobart v. State through Dept. of Transp. and Development, 637 So.2d 880, 882 (La. 3993). Where different, yet permissible, views of the evidence exist, the trial court’s choice from among the different permissible views cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883. Credibility determinations of the trial court are subject to the strictest deference, and the manifest error-clearly wrong standard demands great deference for those findings. Theriot v. Lasseigne, 93-2661 (La. 7/5/94), 640 So.2d 1305, 1313.


author: HOLDRIDGE/J.

text:
    ZACHARY MITIGATION AREA, LLC v. TANGIPAHOA PARISH COUNCIL
    2016 CA 1675
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: SEPTEMBER 21, 2017

      DeVan Pardue, Springfield, LA, Attorney for Plaintiff/Appellant, Zachary Mitigation Area, LLC
    Scott M. Perrilloux, District Attorney, Clifton T. Speed, Assistant District Attorney, Greensburg, LA, Attorneys for Defendant/Appellee, Tangipahoa Parish Council
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE/J.

UThe plaintiff-appellant, Zachary Mitigation Area, LLC (Zachary), seeks reversal of the trial court’s judgment denying its petition for a temporary restraining order (TRO), preliminary injunction, permanent and mandatory injunction, declaratory judgment, writ of mandamus, and damages against- defendant-appellee,..Tan-gipahoa Parish Council. For the following reasons, we affirm in part, vacate in part, and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

In - May of 2016, Tangipahoa Parish Council advertised for bids in connection with the purchase of mitigation credits relating to its efforts to expand the Tangi-pahoa Parish Landfill. Zachary alleged that it was the lowest responsive bidder and timely submitted its bid before the deadline. However, Tangipahoa Parish Council accepted the bid (proposal) of Jamestown Mitigation Bank, L.L.C. (Jamestown) alleging that it was the lowest bidder.

On May 26, 2016, Zachary filed a petition seeking a TRO, preliminary- injunction, permanent and mandatory injunction, declaratory judgment, writ of mandamus, and damages. The trial court granted Zachary’s TRO, prohibiting Tangipahoa Parish Council from awarding a contract or signing a contract with any other bidder other than Zachary. On June 16, 2016, Tangipahoa Parish Council 13filed a Rule to Dissolve the TRO, alleging that the public bid “law did not apply and further alleging that the- “wetland mitigation credits are intangible property representing a ‘service’ to be performed by the mitigation bank to offset the ecological impact that the development ... would have to the environment.”

The trial court set a hearing on Zachary’s preliminary injunction and Tangipahoa Parish Council’s Rule to Dissolve the TRO for June 20, 2016. After hearing arguments from both parties and testimony from two expert witnesses, the trial court dissolved Zachary’s TRO and denied its petition for preliminary, permanent, and mandatory injunctive relief, declaratory judgment, writ of mandamus, and damages. On September 1, 2016, the trial court signed written reasons for judgment. On October 13, 2016, Zachary suspensively appealed the trial court’s reasons for judgment.

On December 29, 2016, this Court issued a rule to show cause order stating that the matter appeared to be non-appealable because Zachary was appealing reasons for judgment signed on September 1, 2016 and not a final judgment. See La. C.C.P. art. 1918; Cameron Parish Police Jury v. All Taxpayers, 2017-55 (La. App. 3 Cir. 2/21/17), 212 So.3d 663, 675, writ denied, 2017-0504 (La. 5/1/17), 221 So.3d 71. Based on the defect in Zachary’s appeal, this court, ex proprio motu, issued an interim order on February 21, 2017, remanding the case to the trial court for the limited purpose of supplementing the record with a final judgment. Thereafter, the trial court supplemented the record with a final judgment signed on October 24, 2016, curing the defect and making the appeal valid. The judgment dissolved Zachary’s TRO and denied Zachary’s petition for a preliminary injunction, permanent and mandatory injunction, writ of mandamus, declaratory judgment and damages, presumably dismissing all of Zachary’s claims. From this judgment, Zachary assigns as error on appeal:

|41.) The denial of requested relief and dismissal of [Zachary’s] spit is erroneous and contrary to law because the public bid law does not allow a public entity to waive requirements for bids after all bids have been received.
2.) The ruling of the trial court in. determining that public bid law does not apply to mitigation credits is erroneous and contrary to law because there was no evidence to be considered and the parties only had notice of a hearing on [Zachary’s] preliminary injunction and[Tangipa-hoa Parish Council’s] rule to dissolve restraining order.

DISCUSSION

Preliminary Injunction

We must first consider whether the trial court erred in denying Zachary’s request for a preliminary injunction. A preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties pending a trial on the merits. Acadian Ambulance Service, Inc. v. Parish of East Baton Rouge, 97-2119 (La. App. 1 Cir. 11/6/98), 722 So.2d 317, 322, writ denied, 98-2995 (La. 12/9/98), 729 So.2d 583.

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. La. C.C.P. art. 3601(A). Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury, loss, or damage if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. Adler v. Williams, 2016-0103 (La. App. 1 Cir. 9/16/16), 203 So.3d 504, 512-13. However, a showing of irreparable injury is not necessary when the act sought to be enjoined is unlawful, or a deprivation of a constitutional right is involved. Dale v. Louisiana Secretary of State, 2007-2020 (La. App. 1 Cir. 10/11/07), 971 So.2d 1136, 1141.

| (Although a trial court’s judgment on a preliminary injunction constitutes an interlocutory ruling, a party aggrieved by a judgment granting or denying a preliminary injunction is entitled to an appeal. La. C.C.P. art. 3612(B); Acadian Ambulance Service, Inc., 722 So.2d at 322. Appellate review of a trial court’s issuance of a preliminary injunction will not be disturbed on review unless a clear abuse of discretion is shown, Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 2004-0270 (La. App. 1 Cir. 3/24/05), 906 So.2d 660, 663. This broad standard is based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion. Harvey v. State, 2014-0156 (La. App. 4 Cir. 12/16/15), 183 So.3d 684, 700, writ denied, 2016-0105 (La. 3/4/16), 188 So.3d 1060.

In the instant matter, Zachary claims that it is entitled to a preliminary injunction, prohibiting Tangipahoa Parish Council from awarding the contract to any bidder other than Zachary. Zachary alleges that a showing of irreparable injury, loss, or damage is not necessary since the conduct sought to be restrained is unconstitutional or unlawful, ie. Tangipahoa Parish Council’s action is in direct violation of La. R.S. 38:2212, et seq. This allegation is based on Zachary claiming that Tangipa-hoa Parish Council violated Louisiana Public Bid Law by not awarding Zachary the contract for the proposed landfill project despite it being the lowest bidder. Zachary further alleges that it is entitled to a preliminary injunction because it is “a business to make money [and] [t]he funds the Parish will pay to Zachary Mitigation pursuant to the contract, will enable [it] to continue its business, pay its employees and expenses, and make a profit.”

Tangipahoa Parish Council counters that Louisiana Public Bid Law does not apply to the instant matter because the contract at issue is a public service contract, | fiwhich is not subject to the bidding requirements of Louisiana Public Bid Law. The Supreme Court held that the public bid law was intended to apply to “public works” and not to public service contracts. American Waste and Pollution Control Co. v. Madison Parish Police Jury, 488 So.2d 940, 944 (La. 1986); see also B & C Electric Inc. v. East Baton Rouge Parish School Board, 2002-1578 (La. App. 1 Cir. 5/9/03), 849 So.2d 616, 620. A public work is defined as the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity. La. R.S. 38:2211(A)(12). Tangipahoa Parish Council argues that Louisiana Public Bid Law is meant to regulate the purchase of materials or supplies, or contracts for the construction of public works, which this contract does not. Tangipahoa Parish Council is not purchasing land or any., other tangible assets, but rather is purchasing a service through a procedure that references wetland mitigation credits.

, Based on the foregoing, we find that the trial court did not abuse its discretion in denying Zachary’s request for a preliminary injunction. The determination of whether the contract falls under Louisiana Public Bid Law will have to be made at trial on the merits of the permanent injunction and declaratory judgment. Therefore, we find that the trial court did not abuse its vast discretion in denying the preliminary injunction and finding that Zachary failed to carry its burden .of proving that it was entitled to relief as a matter of law or. that it would likely prevail on the merits.

Dismissal of Remaining Claims

We must now consider another issue in this appeal — whether the trial court erred in denying Zachary’s claim for a permanent and mandatory injunction, declaratory judgment, ■ writ of mandamus, and damages, when the parties only -had 17notice of a hearing on Zachary’s preliminary injunction and Tangipahoa Parish Council’s Rule to Dissolve the TRO.

As á general rule, “[t]he principal demand, as opposed to the [preliminary] injunction, is' determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the injunction may touch upon or decide issues regarding the merits.” Weatherly v. Sanchez, 2015-0534 (La. App. 4 Cir. 11/25/15), 181 So.3d 218, 222. While in some cases the merits of an action may be decided during an interlocutory proceeding, this is only when the parties have expressly agreed to submit the case for final decision at the hearing on the rule for a preliminary injunction. See City of Baton Rouge v. State, ex rel. Dep’t of Social Services, 2007-0005 (La. App. 1 Cir. 9/14/07), 970 So.2d 985, 995; see also Transworld Drilling Co. v. Texas General Petroleum Co., 517 So.2d 1262, 1263 (La. App. 4 Cir. 1987) (“The trial of a rule for a preliminary injunction cannot replace a trial on- the merits, in the absence of such a stipulation by the parties”).'

The record in the instant matter reveals that there was no stipulation between the parties agreeing to dispose of the entirety of the case during the preliminary injunction proceeding. The trial court denied Zachary’s claim for a permanent and mandatory injunction, declaratory judgment, .writ of mandamus, and damages without sufficient notice beforehand to the parties that the merits would be under consideration at the hearing for the preliminary injunction and Rule to Dissolve the TRO. Absent such notice, Zachary is entitled to a trial on the merits of its claims.

IsAIthough the trial court properly acted within its discretion to deny Zachary’s preliminary injunction, it was without authority to deny Zachary’s other claims absent an evidentiary trial on the merits. Accordingly, the trial court erred in dismissing Zachary’s claim for a permanent and mandatory injunction, declaratory judgment, writ of mandamus, and damages.

TRO

Zachary also appeals the trial court’s judgment, granting Tangipahoa Parish Council’s Rule to Dissolve the TRO. The review of the granting or denial of a petition for a TRO is governed by La. C.C.P. art. 3612(A), which provides that “[t]here shall be no appeal from an order relating to a temporary restraining order.” Louisiana jurisprudence has consistently held that an appellate court has no authority on appeal to consider the propriety of the trial court judgment refusing to grant or dissolve a temporary restraining order. See Zeringue v. St. James Parish School Board, 2013-444 (La. App. 5 Cir. 11/19/13), 130 So.3d 356, 358; Gaumnitz v. Williamson, 36,177 (La. App. 2 Cir. 8/14/02), 824 So.2d 531,535. Accordingly, the trial court’s, granting of Tangipahoa Parish Council’s Rule to Dissolve the TRO is not properly before this Court and will not be considered for review. Delesdernier v. Floyd, 2015-331 (La. App. 5 Cir. 12/23/15), 182 So.3d 1159, 1163.

CONCLUSION

For the above reasons,, we affirm the trial court’s denial of Zachary’s request for a preliminary injunction and do noteonsider the trial court’s granting of Tangipahoa Parish Council’s Rule to Dissolve the TRO. In all other respects, the judgment is vacated, and this matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are divided equally between the parties.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

      . It is improper to cumulate a petition for writ of mandamus with a petition for injunc-tive relief, declaratory judgment, and damages since a petition for a writ of mandamus is a summary proceeding and the other actions are ordinary proceedings, See La, C.C.P. arts. 462, 2592(6). However, since Tangipa-hoa Parish Council failed to file a dilatory exception raising the objection of-improper cumulation, the objection is waived. See La, C.C.P, arts. 926(A)(7) & (B).

      . Mitigation credits are. used by the United States Army Corps of Engineers (Corps of Engineers) to assess and quantify the ecological value of an impact to wetlands into a mathematical number.

      . In order to expand the landfill, Tangipahoa Parish Council was required by the Corps of Engineers to purchase wetland mitigation credits from select mitigation banks in order to mitigate the impact of its landfill expansion into areas designated as wetlands.

      . On June 17, 2016, Zachary • amended its petition and named additional defendants; .however, the record does not. reveal whether they were served.

      . Tangipahoa Parish Council argues that the trial court granted a peremptory exception raising the objection of no cause of action sua sponte as to Zachary's demands. First, this argument lacks merit because in order to raise the exception of no cause of action on its own motion, the trial court is required to provide notice to all parties and set the matter for hearing. Claborne v. Housing Authority of New Orleans, 2014-1050 (La. App. 4 Cir. 4/15/15), 165 So.3d 268, 288, writ denied, 2015-0946 (La. 9/11/15), 176 So.3d 1039. Sec-ond, Zachary's petition states a cause of action for a declaratory judgment and therefore should not have been dismissed without a full trial on the merits. See La. C.C.P. art. 1879.


author: PENZATO, J.

text:
    Ronald HERNDON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2017 CA 0007
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 21, 2017

      Ronald Herndon, Angie, Louisiana, Plaintiff-Appellant, In Proper Person
    Debra A. Rutledge, Baton Rouge, Louisiana, Attorney for Defendant-Appellee, Louisiana Department of Public, Safety and Corrections
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

1 ¡Appellant, Ronald Herndon, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (Department), housed at Rayburn Correctional Center (Rayburn Correctional) in Angie, Louisiana, appeals a judgment of the district court that dismissed his petition for judicial review without prejudice. Based on our review of the record, we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On October 21, 2015, Herndon filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC) seeking review of Administrative Remedy Procedure (ARP) No. RCC-2015-473. In RCC-2015-473, he claimed that he was sexually assaulted by a female offícér on July 15, 2015. During an investigation, the officer stated that she was conducting a pat down frisk of Herndon after he exited the area that medication was distributed, the “Pill Call.” She denied Herndon’s accusation that the- reason she searched him was because another inmate informed her that Herndon was selling his medication, and she denied putting her hands in his pocket, Herndon’s original allegation. On July 30, 2015, after an investigation, the ARP filed by Herndon was rejected. At the second step, Herndon’s request was again denied, finding that there was no reason to doubt the credibility of the officer, which was corroborated by a lieutenant.

After exhausting his administrative remedies, Herndon filed this petition for judicial review, asserting that he was sexually assaulted by the officer during a “shake down.” Herndon requested relief in the form of instructing the officer as to the appropriateness of her actions. The Department answered the petition, denying that the officer sexually assaulted Hern-don.

laThe 19th JDC Commissioner (Commissioner) issued a recommendation pursuant to La. R.S. 15:1177(A)(5) and (9) dismissing the petition for failure to present a substantial rights violation, and thereby failing to state a cause of action or cognizable claim for which relief could be granted. Herndon did file a traversal after receiving the Commissioner’s report. The district' court adopted the recommendation of the Commissioner after a de novo review of the record, and signed a judgment in accordance therewith on July 14, 2016. It is from this judgment that Herndon appeals.

DISCUSSION

Herndon’s petition for judicial review was filed in accordance with Corrections Administrative Remedy Procedure, La. R.S. 15:1171, et seq. Louisiana Revised Statutes 15:1177(A)(9) sets forth the appropriate standard of review- by the district court, which functions as an appellate court when reviewing the Department’s administrative decisions. Lightfoot v. Stalder, 00-1120 (La. App. 1 Cir. 6/22/01), 808 So.2d 710, 717, writ denied, 01-2295 (La. 8/30/02), 823 So.2d 957. A review is mandated to be conducted by the district court without a jury and must be confined to the record. La. R.S. 15:1177(A)(5). Specifically, the court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative findings are: (1) in violation of constitutional or statutory provision's, (2) in excess of the statutory authority of the agency, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary, capricious' or characterized by an abuse of discretion, or 14(6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9); Lightfoot, 808 So.2d at 715-16.

On review of the district court’s judgment under La. R.S. 15:1177, no deference is owed by the court of appeal to the 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. McCoy v. Stalder, 99-1747 (La. App. 1 Cir. 9/22/00), 770 So.2d 447, 450-51.

At the outset, We note that Herndon originally did, not file a brief with this court. After notifying him of such, Hern-don filed a document on February 21, 2017, indicating that on November 27, 2016, he mailed a brief to this court. The only brief in possession of this court is the one filed February 21, 2017, and it does not comply with Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4. Hern-don does not specifically assign any errors and offers no argument as to the merits of his matter. However, out of an interest of justice since Herndori is a pro se -inmate, we will address- the issues he raised' in his petition for judicial review filed in the 19th JDC. See La. C.C.P. art. 2164.

Herndon requested that the officer be punished “to the fullest extent” for allegedly sexually assaulting him. Herndon originally complained that the officer requested whether he had anything in his pockets upon leaving the “Pill Call.” He claimed that she removed his shirt from his pants, had him unbuckle his belt and pants, and “checked inside [his] waist band and the inside of [his pockets].” He asserted that feeling around in his pants exceeded the officer’s authority and that other inmates received a “regular pat down.”

After careful consideration of the administrative record, we conclude that the record fully supports the findings and recommendations of the Commissioner, as adopted by the district court. In recommending that the appeal be dismissed, the Commissioner noted that Herndon had failed to show, that his substantial rights | Rhad been prejudiced, within the meaning of La. R.S. 15:1177(A)(9). The Commissioner concluded that because no penalty was imposed or served by Herndon, and only a pat down of an incarcerated person took place, that no substantial right, meaning a “liberty interest” or other protected due process right, was implicated. The Commissioner explained that if the punishment or discipline affects only the custody status or classification of an inmate and not the date of eventual release, (such as a loss of good-time would),- and is not a dramatic departure from expected prison life, due process merely requires the prisoner to be given the opportunity to give his version of the incident. Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997), citing Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (no liberty interest is created by a change in the quality of confinement as opposed to the quantity thereof.). After our review of the record, we agree with the Commissioner.

The Due Process. Clause procedural protections are not triggered by any substantial deprivation imposed by prison authorities. Giles v. Cain, 99-1201 (La. App. 1 Cir. 6/23/00), 762 So.2d 734, 738, citing Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the-considerations underlying our penal system. Giles, 762 So.2d at 738, citing Sandin, 515 U.S. at 485, 115 S.Ct. at 2301. Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law. No inmate has a constitutionally protected interest in an ordinary prison disciplinary proceeding unless he suffers some “atypical and substantial hardship” on the inmate in relation to the ordinary incidents of prison life. Giles, 762 So.2d at 738. The type of liberty interest requiring some measure of due process by the state would be those interests in freedom from restraint, where the- penalty'imposed unusually difficult | (¡hardships on the inmate, or a “dramatic departure from basic conditions” in relation to the ordinary instances of serving a prison sentence at hard labor. Sandin, 515 U.S. at 485, 115 S.Ct. at 2301.

Herndon has alleged no “atypical and substantial hardship” or “dramatic departure from basic conditions.” In State v. Guirlando, 509 So.2d 172, 173-74 (La. App. 1 Cir. 1987), quoting, State v. Patrick, 381 So.2d 501, 503 (La. 1980), we stated:

While we have recognized that prisoners are not totally bereft of Fourth Amendment rights by virtue of their incarceration, we have also declared these rights are diminished in nature and scope because of confinement for criminal conduct. We have expressly recognized and declared that an inmate’s expectations of privacy are considerably .less, than those of the free members of our society in general. State v. Dauzat, 364 So.2d 1000 (La. 1978); See also Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), which upheld warrantless room searches and visual body cavity searches of inmates.

A prisoner’s exercise of constitutional rights is limited by the fact of incarceration as well as by valid penological interests such as institutional security. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). Infringement of an inmate’s constitutional rights is permissible if the actions of prison officials are reasonably related to a valid penological interest. O’Lone, 482 U.S. at 349, 107 S.Ct. at 2404. Institutional security justifies a search of an inmate leaving-the “Pill Call.” A routine pat-down is understood to include a search of the groin area. See Terry v. Ohio, 392 U.S. 1, 17 n.13, 88 S.Ct. 1868, 1877 n.13, 20 L.Ed.2d 889 (1968) (describing a routine pat-down as involving “the groin and area about the testicles”).

Herndon was leaving an area of the prison which contained contraband to rejoin the general population. The Supreme Court has described the mechanism for a standard pat-down search involving precisely the acts of. which Herndon complains. See Terry, 392 U.S. at 17, n.13, 88 S.Ct. at 1877 n.13. (“[T]he officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough ^search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire. surface of the legs down to the feet.”).

Herndon has not pleaded any facts to show that the search of his person, -including the genital area, was an “atypical and substantial hardship” or-a “dramatic departure from basic conditions” of being incarcerated. Herndon’s claim that he was searched in his genital area does not involve a “liberty interest” or other protected due process right. Therefore, we agree with the Commissioner that the pat-down search of .Herndon did not rise to the level of a “substantial right” for which a right of judicial review exists,

CONCLUSION

For the above and foregoing reasons, we conclude that the district court did not abuse its discretion in. affirming the .Department’s decision to reject the claims of Ronald Herndon. Thus, the district court’s dismissal of the matter was appropriate under the circumstances. All costs of this appeal are.assessed to Appellant, Ronald Herndon.

AFFIRMED.

      . The office of Commissioner of the 19th JDC was created by statute, La. R.S. 13:711, to ' hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The Commissioner’s written findings and recommendations aré submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5); see Martinez v. Tanner, 11-0692 (La. App. 1 Cir. 11/9/11), 79 So.3d 1082, 1084 n.3, writ denied, 11-2732 (La. 7/27/12), 93 So.3d 597.