author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Robert Earl BASS, Jr., Appellant
    No. 52,014-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    JASON ROGERS WILLIAMS & ASSOCIATES, By: Jason Rogers Williams, Nicole Burdett, New Orleans, Brad Scott, Counsel for Appellant
    ROBERT S. TEW, District Attorney, MICHAEL J. FONTENOT, Assistant District Attorney, Counsel for Appellee
    Before BROWN, MOORE, and PITMAN, JJ.
   PITMAN, J.

A unanimous jury found Defendant Robert Earl Bass, Jr., guilty as charged of second degree murder. The trial court sentenced him to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. He now appeals. For the following reasons, we affirm Defendant's conviction and sentence.

FACTS

On December 10, 2015, a grand jury indicted Defendant on one count of second degree murder in violation of La. R.S. 14:30.1. The bill of indictment alleged that between the dates of November 11-15, 2015, he committed the murder of Brandon Albritton. On January 5, 2016, Defendant pled not guilty.

A jury trial began on January 17, 2017. Detective Chris Fulmer of the Monroe Police Department testified that at 9:40 p.m. on November 11, 2015, the police department received a call about a murder. During the investigation that followed, law enforcement went to 205½ Filhiol Avenue, a garage apartment located behind 205 Filhiol Avenue, and learned that Ronald Redfearn and Allison Rogers lived in the apartment. Det. Fulmer stated that a .380 caliber shell casing was found in the alley behind 205½ Filhiol Avenue and noted that no weapon or bullet was found.

Grant Cookston testified that the weekend before the shooting, he and Albritton went to Filhiol Avenue so Albritton could purchase drugs. At approximately 9:00 p.m. on November 11, 2015, he picked up Albritton and they returned to the alley behind Filhiol Avenue so that they could purchase drugs again. He gave Albritton $20 to purchase methamphetamine and remained in the car while Albritton exited and walked past the left side of the car. Approximately five minutes later, a black man walked up from the left side of the car and asked him for a ride. He told the man he could not give him a ride. The man then walked around the car and stopped and stood by the passenger side. Approximately two minutes later, Albritton returned and spoke with the man, who asked Albritton if they could give him a ride. Albritton turned away from the man, and the man drew out a gun and shot Albritton, who fell into the passenger seat. Mr. Cookston observed that Albritton was bleeding, and he started his car, put it in reverse and drove away. He noted that Albritton's body was only partially inside the car and that his feet were dragging on the ground. He drove to a nearby donut shop and called 911. He testified that he had difficulty identifying the shooter in the photographic lineup presented by the police. He was conflicted between the men in the first and fifth photographs because he was trying to determine which man's hairstyle was more consistent with that of the shooter.

Ronald "Joey" Redfearn testified that he had lived in the apartment at 205½ Filhiol Avenue for several months at the time of the shooting. He grew up with Albritton, and Albritton would come to the apartment to exchange clothing for methamphetamine. He stated that he had known Defendant for approximately two years and that Defendant frequently visited him. He testified that Defendant and Albritton met several days before the shooting, and Defendant later told him that he would have shot Albritton if he had had his gun. He noted that Defendant usually carried an automatic gun. He testified that on the night of the shooting, Defendant was at his apartment when Albritton arrived. Defendant went outside, and Albritton later left the apartment and walked toward the alley. He noted that Defendant was in the backyard at this time and followed Albritton. He recalled hearing a "pow" that sounded like a firecracker or gun followed by the sound of a car "taking off" and "burning rubber." He then saw Defendant walking back through the yard from the direction of the alley. The next day he learned that Albritton had been shot.

Allison Roberts testified that Redfearn is her boyfriend and that they lived at 205½ Filhiol Avenue. She stated that she knew both Albritton and Defendant. She testified that several days before the shooting, Defendant shaped his hand like a pistol and stated that if he had a gun he would have shot Albritton and that he would "gut him up" the next time he saw him. She stated that on the evening of the shooting, she, Redfearn, Timothy Millien, Ashley Frith and Defendant were at the apartment. She did not see any other black men at the apartment that night. She was not under the influence of drugs or alcohol because she was pregnant. Albritton walked into the apartment and greeted everyone, including Defendant, who then walked outside. Albritton stayed for 10 or 15 minutes or less and then left the apartment and walked toward the alley. Approximately three minutes later, she was standing outside and heard from the direction of the alley a "pop," which sounded like a firecracker or a small hand pistol, followed by the sound of car wheels spinning. She then saw Defendant walking in "kind of fast pacing" from the direction of the alley. He asked her for the keys to Redfearn's truck, but she said no. He then asked her to let him go inside, but she said no because she wanted everyone to leave. She observed Defendant walk away from the apartment, noting that Defendant was wearing a Raiders flat bill hat. She further testified that Defendant owned a gun. She recalled that Ashley Frith told her that she saw Defendant with a gun on the night of the shooting.

Ashley Frith testified that she was at the apartment on the night of the shooting. She admitted that she was under the influence of Suboxone, Xanax and methamphetamine, so she did not remember everything that happened that evening. She recalled seeing a black man at the apartment and noted that she did not see him with a gun. She stated that she did not know Albritton and did not see him that evening. She heard a loud "pop" when she was standing outside and thought it was fireworks. She did not recall telling Roberts that she saw a black man with a gun that night, but noted that her failure to remember might be due to the drugs she had taken.

Timothy Millien testified that he knows Redfearn and visited him many times at his apartment; has known Defendant for several years; and met Albritton a few times. He stated that on the evening of the shooting, he was at Redfearn's apartment and was under the influence of methamphetamine. He observed Defendant leave the apartment as Albritton arrived. He noted that Defendant was the only black male present at the apartment that evening. When he walked outside, he did not see Defendant. He heard a "pop" followed by "squealing" tires. He later observed Defendant asking someone for a ride.

Lieutenant Jeremy Kent testified that on November 11, 2015, he was working as a detective with the Monroe Police Department and responded to a shooting at a donut shop. When he arrived at the donut shop, he met Cookston. Albritton had already been transported to the hospital. Some of Albritton's clothing remained in the parking lot, and the pockets of his clothing contained his wallet, some cologne, a Sharpie, a loose $20 bill and a pocketknife. He noted that the weather was stormy with rain and wind, which prevented him from processing Cookston's car, so he had the car towed to the police department. He and Cookston then attempted to locate the scene of the crime. On November 16, 2015, he showed a photographic lineup to Cookston. He noted that Cookston had a difficult time identifying a suspect and "went back and forth" between the men in the first and fifth photographs, eventually choosing the man in the fifth photograph. This man was later determined to be incarcerated at the time of the shooting. Defendant was featured in the first photograph. Lt. Kent stated in his report that Cookston had difficulty selecting a photograph because of the different hairstyles of the men in the photographs. He further testified that on November 16, 2015, Sgt. Samehea Turner of the Ouachita Parish Sheriff's Office contacted him, and he took her recorded statement regarding a conversation she had had with Defendant. Defendant was developed as a suspect and later arrested. He also testified that no bullet or gun was found at the scene of the shooting and that no evidence was recovered after a search of Defendant's residence.

Sgt. Samehea Turner testified that she has known Defendant and his family for 20 years, that their families attended church together and that she considered him a friend. She testified that on the morning of the day she contacted Lt. Kent, Defendant walked up to her vehicle while she was in the drive-through line at a donut shop and asked what she knew about the homicide that occurred on Filhiol Avenue. She was unaware of the shooting at that time and told Defendant so. Defendant asked her to look up the offense up on her phone, but she was bothered by his questions and changed the subject of their conversation. Defendant again told her to look up the offense on her phone and then said to her "that's not how it happened, they tried to rob me." She noted that Defendant was referring to the incident on Filhiol Avenue. Defendant asked her to keep their conversation between her, him and God. When she later learned that there had been a homicide on Filhiol Avenue, she contacted the Monroe Police Department.

Dr. Frank Peretti, accepted as an expert in the field of forensic pathology, testified that he performed the autopsy on Albritton. He stated that Albritton's cause of death was a gunshot to the head. He noted that the gun was fired from a distance of two or more feet away from Albritton and that the bullet entered the right temple above the ear and exited on the left temple. He stated that Albritton was shot on November 11, 2015, but was kept on life support and not declared dead until November 15, 2015, so that his organs could be harvested and donated.

During the trial, Juror No. 21, Dr. Cynthia Brown-Manning, advised the bailiff that after seeing Frith and Millien and hearing their testimony, she recognized, and confirmed, them as incarcerated persons she saw and was involved with during an intake process as part of her contract work with the Ouachita Correctional Center. She stated that her interaction with them would have been a five-minute examination in which she listened to their hearts and lungs. She also stated that there was no discussion of this case and that she could remain fair and impartial in these proceedings. The state objected to her remaining on the jury on grounds that the confidential interactions of this juror with these two witnesses might influence her assessment of their credibility during deliberations. The defense had no objection to her remaining on the jury. The trial court noted that due to her interaction with the two witnesses, she had additional information about them that the remainder of the jury would not be privy to and that she obtained this information through the physician-patient relationship, which could unfairly influence her ability to deliberate the case. Accordingly, the trial court sustained the state's challenge for cause and excused her from the jury.

After the state rested, the defense moved for a directed verdict on the grounds that the evidence presented by the state was insufficient for a guilty verdict. The trial court found that the motion was without merit and denied it. The defense rested. On January 19, 2017, a unanimous jury found Defendant guilty as charged of second degree murder.

On May 10, 2017, Defendant filed a motion to reconsider sentence, a motion for appeal, a motion for new trial and a motion for post-verdict judgment of acquittal. The trial court denied these motions as premature.

A sentencing hearing was held on May 23, 2017. The trial court sentenced Defendant to the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence.

On May 30, 2017, Defendant filed a motion for new trial, a motion for appeal, a motion for post-verdict judgment of acquittal and a motion to reconsider sentence.

On June 1, 2017, the trial court vacated and set aside Defendant's sentence because his motions for new trial and post-verdict judgment of acquittal were pending.

On June 26, 2017, a hearing was held on Defendant's post-trial motions. The trial court denied Defendant's motion for post-verdict judgment of acquittal and motion for new trial. The defense waived sentencing delays, and the trial court proceeded with resentencing Defendant. It reviewed Defendant's postsentence investigation report, detailing his criminal, social educational and work history and the factual basis for the conviction and sentence. It found no mitigating circumstances and noted that Defendant had shown no apparent remorse. It then sentenced Defendant to the mandatory sentence of life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence.

On June 28, 2017, Defendant filed a motion to reconsider sentence, claiming that his sentence was excessive. The trial court denied the motion on July 6, 2017.

Defendant appeals.

DISCUSSION

Insufficient Evidence

In his first assignment of error, Defendant argues that the evidence presented at trial was insufficient for any rational trier of fact to have found him guilty. He contends that there were no eyewitnesses or physical evidence linking him to the shooting, that no witnesses placed him at the scene at the time of the murder and that another individual was identified in a photographic lineup as the shooter. He states that he was in the yard at the time of the shooting. He also contends that Sgt. Turner misinterpreted his statements to her when he was inquiring about the homicide on Filhiol Avenue.

The state asserts that the evidence presented at trial was sufficient to support Defendant's conviction of second degree murder. Regarding Cookston's difficulty choosing the shooter from a photographic lineup due to the hairstyles of the men in the photographs, the state notes that Defendant was bald at the time of his arrest, and all of the men in the photographs had hair. It points out that Roberts testified that Defendant was wearing a baseball cap on the evening of the shooting. It emphasizes that Defendant was seen coming from the alley at a fast pace shortly after the shot was fired; that he was known to carry a gun and was seen with a gun on the evening of the shooting; and that several days before the shooting, he said he would have shot Albritton if he had had a gun. The state contends that Defendant admitted his involvement in the shooting by telling Sgt. Turner that "they tried to rob me."

The standard of review for a sufficiency of the evidence claim is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Hearold , 603 So.2d 731 (La. 1992) ; State v. Smith , 47,983 (La. App. 2 Cir. 5/15/13), 116 So.3d 884. See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robertson , 96-1048 (La. 10/4/96), 680 So.2d 1165.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Allen , 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied , 02-2595 (La. 3/28/03), 840 So.2d 566, and 02-2997 (La. 6/27/03), 847 So.2d 1255, and cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed. 2d 90 (2004). An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in a light most favorable to the prosecution. Id. When the direct evidence is thus viewed, the facts established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Id. , citing State v. Sutton , 436 So.2d 471 (La. 1983), and State v. Owens , 30,903 (La. App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied , 98-2723 (La. 2/5/99), 737 So.2d 747.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome , 49,004 (La. App. 2 Cir. 4/9/14), 136 So.3d 979, writ denied , 14-0990 (La. 1/16/15), 157 So.3d 1127, citing State v. Moore , 44,429 (La. App. 2 Cir. 8/26/09), 20 So.3d 1137. If a case rests essentially upon circumstantial evidence, that evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Broome , supra .

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 62 (2000). A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 8/30/02), 827 So.2d 508.

La. R.S. 14:30.1 provides, in pertinent part, that second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm.

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent need not be proven as a fact, but it may be inferred from the circumstances of the offense and the defendant's actions. State v. Graham , 420 So.2d 1126 (La. 1982) ; State v. Allen , 41,548 (La. App. 2 Cir. 11/15/06), 942 So.2d 1244. Specific intent to kill or inflict great bodily harm, as required to convict for second degree murder, may be inferred from the extent and severity of the victim's injuries. State v. Thornton , 47,598 (La. App. 2 Cir. 3/13/13), 111 So.3d 1130. Specific intent may be inferred when a wound is inflicted at close range, such as shooting someone in the head. State v. Christopher , 50,943 (La. App. 2 Cir. 11/16/16), 209 So.3d 255, writ denied , 16-2187 (La. 9/6/17), 224 So.3d 985. Specific intent to kill may be inferred from a defendant's act of deliberately pointing a gun and firing it at a person. State v. Freeman , 45,127 (La. App. 2 Cir. 4/14/10), 34 So.3d 541, writ denied , 10-1043 (La. 11/24/10), 50 So.3d 827. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Allen , 828 So.2d 622, supra .

When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 16-1479 (La. 5/19/17), 221 So.3d 78. Positive identification by only one witness is sufficient to support a conviction. Id.

The testimonial evidence presented at trial shows that Defendant killed Albritton while having the requisite specific intent to kill or inflict great bodily harm. Several witnesses placed Defendant at the scene at the time of the shooting. Redfearn testified that when Albritton left the apartment and walked toward the alley, Defendant was in the yard and followed him. He then heard a "pow" and observed Defendant walking back through the yard from the direction of the alley. Roberts testified that Defendant was outside when Albritton left the apartment and walked toward the alley. She stated that approximately three minutes after Albritton left, she heard a "pop" and then observed Defendant walking from the direction of the alley. Further, when speaking with Sgt. Turner, Defendant placed himself at the scene and implicated himself in the shooting by asking about the homicide that occurred on Filhiol Avenue and stating "that's not how it happened, they tried to rob me."

Although Cookston had difficulty identifying the shooter from a photographic lineup and ultimately did not choose a photograph of Defendant, he testified that the shooter was a black male who walked into the alley and asked him for a ride. Roberts testified that she did not see any other black men at the apartment that evening besides Defendant. She noted that Defendant asked her for the keys to Redfearn's truck. Millien testified that Defendant was the only black man present that evening and that he observed Defendant asking someone for a ride.

Redfearn and Roberts both testified that Defendant owned a gun. Roberts stated that Frith told her that she saw Defendant with a gun on the evening of the shooting. Frith testified that she did not remember telling this to Roberts, but she admitted that she was under the influence of Suboxone, Xanax and methamphetamine at the time, which could have affected her memory.

By shooting Albritton in the head at close range, Defendant committed an act for which specific intent may be inferred. Further, Redfearn and Roberts both testified that several days before the shooting, Defendant commented that he would have shot Albritton if he had had his gun.

Considering the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the state proved beyond a reasonable doubt that Defendant killed Albritton by shooting him in the head and had the specific intent to kill or inflict great bodily harm.

Accordingly, this assignment of error lacks merit.

Dismissal of Juror

In his second assignment of error, Defendant argues that the trial court impermissibly excused juror Dr. Brown-Manning without cause after the trial had commenced. He contends that the state did not present evidence that the witnesses, i.e., Frith and Millien, were booked into prison while she was working there. He states that she never said that she knew either witness, but that she could have possibly interacted with them. He also argues that she maintained that she could remain fair and impartial. He further contends that the state never stated that it would have challenged her as a juror during voir dire had it known the information that was later revealed.

The state argues that the trial court did not abuse its discretion in dismissing Dr. Brown-Manning as a juror. It notes that during voir dire, she never disclosed that she was a contract physician with the Ouachita Correctional Center or that two witnesses had been her patients. It asserts that had this information been disclosed during voir dire, it would have exercised a peremptory challenge due to the juror's connection to these two witnesses. It notes that the physician-patient privilege precluded sufficient questioning of the juror to determine her knowledge of Frith and Millien.

Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties. La. C. Cr. P. art. 789(A). The trial court has the discretion to decide whether a juror has become disqualified to perform his or her duties and, if so, what action to take. State v. Fuller , 454 So.2d 119 (La. 1984).

The trial court did not abuse its discretion in dismissing Dr. Brown-Manning as a juror. She examined Frith and Millien as patients during an intake process as part of her contract work with Ouachita Correctional Center. Although she stated that they did not discuss the case sub judice and that she could remain fair and impartial, physician-patient privilege prevented the parties and the court from sufficiently questioning her as to what information she might have learned about Frith and Millien and how that information might impact her assessment of their credibility in this case, which is a significant part of the fact finder's role in reaching a verdict.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the conviction and sentence of Defendant Robert Earl Bass, Jr.

AFFIRMED.

      See State v. Davenport , 13-1859 (La. 5/7/14), 147 So.3d 137.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    Kenneth L. RAMSEY and Sarah K. Ramsey, Plaintiff-Appellees v. LOUISIANA STATE RACING COMMISSION, Defendant-Appellant
    No. 52,039-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    RHEA PATRICIA LONEY, ASSISTANT ATTORNEY GENERAL, Counsel for Appellant
    WILLIAM S. MARSHALL, JR., Counsel for Appellees
    Before BROWN, GARRETT, and McCALLUM, JJ.
   McCALLUM, J.

This Court is called upon to determine the outcome of a horse race. Specifically, this litigation regards which horse-"Coalport" or "Benwill"-won the September 6, 2014, "Unbridled Stakes" at Louisiana Downs racetrack in Bossier Parish, Louisiana. The appellees are Kenneth Ramsey and Sarah Ramsey (the "Ramseys"), who own Coalport. The appellant is the Louisiana State Racing Commission (the "Commission").

The parties agree that Coalport was the first horse to finish the race. However, the Louisiana Downs stewards initiated an inquiry as to whether Coalport fouled Benwill (by drifting in front of him so as to impede or interfere with his course or speed), and thereby changed the outcome of the race. Additionally, Donnie Meche, Benwill's jockey, filed an objection after the race whereby he raised the same issue. The Board of Stewards for Louisiana Downs (the "Stewards") determined that Coalport fouled Benwill, and that, but for the foul, Benwill would have won the race. On that basis, Coalport was demoted to second place and Benwill was declared the official winner. The Ramseys appealed to the Commission, which affirmed the Stewards' decision. Thereupon, the Ramseys appealed to the 26th Judicial District Court, which reversed the Commission and reinstated Coalport as the winner. In so doing, the trial court held: (1) the Commission applied the wrong standard of review, which was more deferential than the preponderance standard which the Commission should have used; and (2) the evidence was insufficient to support a finding that Coalport's foul of Benwill altered the outcome of the race.

In this appeal, the Commission urges the following assignments of error: (1) the trial court erred in finding that the Commission's decision was not supported by a preponderance of the evidence; (2) the trial court erred in determining that the Commission applied the incorrect burden of proof; and (3) the trial court failed to give the Commission any deference regarding its determinations of witness credibility.

The Ramseys concede that Coalport fouled Benwill; the point of contention is whether the outcome of the race would have been different but for the foul.

DISCUSSION

Law

Substantive law. The governing substantive law is as follows:

A leading horse is entitled to any part of the track, but if any horse swerves, or is ridden to either side, so as to interfere with or impede any other horse, it is a foul. The offending horse may be disqualified, if in the opinion of the stewards the foul altered the finish of the race, regardless of whether the foul was accidental, willful or the result of careless riding.

35 La. Admin. Code Pt. V, 7901.

Standard of review in district court . The Louisiana Administrative Procedure Act (the "APA") includes La. R.S. 49:964 ("Section 964"), which governs judicial review of administrative adjudications. Subsection (G) thereof provides the bases on which the district court may reverse the agency's decision, as follows:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues. (Emphasis added).

Any one of the six grounds listed in La. R.S. 49:964(G) is sufficient to modify or reverse an agency decision. Doc's Clinic, APMC v. State ex rel. Dept. of Health & Hosps., 2007-0480 (La. App. 1 Cir. 11/2/07), 984 So.2d 711, 718.

However, the authority to review facts de novo comes with a limitation: if the agency "has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not," the reviewing court must give "due regard" to the agency's determination of credibility issues. Furthermore, judicial review is generally confined to the record, as developed in the administrative proceedings. La. R. S. 49:964(F).

The Louisiana jurisprudence reflects two opposing views regarding the standard of review applicable in an APA case before a court of appeal. Below, we examine each of line of authority separately. For reference purposes only, we designate them the "prevailing view" and the "minority view."

Prevailing view. In Odom v. S. Nat. Gas Co. , 46,598 (La. App. 2 Cir. 8/17/11), 72 So.3d 437, 443, this Court stated:

Under the Administrative Procedure Act, LSA-R.S. 49:964(G), the district court and court of appeal may reverse or modify the agency's determination if the substantial rights of the party seeking review have been prejudiced because the administrative findings, inferences, conclusions or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess of the agency's statutory authority, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence in the record. Smith v. State , supra ; Bailey v. EnerVest , supra. (Emphasis added).

Accord Jones v. S. Nat. Gas Co. , 46, 347 (La. App. 2 Cir. 4/13/11), 63 So.3d 1080, writ not cons. , 2011-1242 (La. 9/23/11), 70 So.3d 800. It must be noted that Section 964(G), by its terms, applies to "the court"-it does not say that it applies to "the district court and court of appeal." That interpretation is apparently the statutory basis for the majority view that, in APA cases, courts of appeal conduct de novo review.

In Smith v. State Dept. of Health & Hosps. , 39, 368 (La. App. 2 Cir. 3/2/05), 895 So.2d 735, writ denied , 2005-1103 (La. 6/17/05), 904 So.2d 701, this court stated:

When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court's judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal.

Accord Bailey v. Enervest Operating Co., LLC, 45, 553 (La. App. 2 Cir. 6/30/10), 43 So.3d 1046 ; Jones, supra ; Odom, supra ; Clark v. Louisiana State Racing Comm'n , 2012-1049 (La. App. 4 Cir. 12/12/12), 104 So.3d 820, 826-7, writ denied , 2013-0386 (La. 4/1/13), 110 So.3d 589 ; Spears v. Louisiana Bd. of Practical Nurse Examiners , 16-587 (La. App. 5 Cir. 6/15/17), 223 So.3d 679 ; Holmes v. Louisiana State Board of Nursing , 2013-2154 (La. App. 1 Cir. 8/5/14), 156 So.3d 183, 187 ; Mayo v. Municipal Police Bd. of Review , 98-1864 (La. App. 1 Cir. 11/5/99), 745 So.2d 188.

This Court, as well as the First Circuit and the Fourth Circuit, has further stated that the appellate court reviews the agency's decision, not that of the district court. Smith, supra ; Holmes, supra ; Clark, supra.

Minority view . In Multi-Care, Inc. v. State Dept. of Health & Hosps., 2000-2001 (La. App. 1 Cir. 11/9/01), 804 So.2d 673, the First Circuit, applying La. R.S. 49:964(G)(6) (as amended by Acts 1997, No. 128 § 1), held that the appellate court does "defer to the trial court's factual determinations and use[s] a manifest error standard of review where the Legislature has empowered... [the trial court]...with the function of fact-finding." Id. at 675. Accord St. Martinville, LLC v. Louisiana Tax Comm'n , 2005-0457 (La. App. 1 Cir. 6/10/05), 917 So.2d 38. The Multi-Care court relied on Virgil v. American Guarantee & Liab. Ins. Co., 507 So.2d 825, 826 (La. 1987).

Analysis

We have reviewed the evidence in the record and hold that the trial court's decision must be affirmed regardless of which standard of review we use. The trial court committed no manifest error, and its decision to reinstate Coalport was supported by a preponderance of the evidence. Our decision herein does not depend on which standard of review is applied to this case; it would be the same regardless.

We agree with the learned trial judge's assessment of the race. While Coalport did foul Benwill, such did not alter the outcome of the race. This is due primarily to the relative speeds of the horses and the proximity of the foul's occurrence to the location of the finish line. Benwill was gaining on Coalport at the end of the race, but not at a fast enough rate to overtake him before the finish line, even had the foul not occurred. The videos of the race show that the foul occurred very close to the finish line, thus limiting its effect to such a degree that it did not and could not have caused a change in the outcome of the race. The testimony of David Hooper, the only witness accepted as an expert by the Commission, provided insight into the precise point at which the foul began. Accordingly, the Commission's argument that the trial court's decision was not supported by a preponderance of the evidence lacks merit.

The Commission's argument that the trial court erred in not granting "due regard" to the Commission's credibility determinations is erroneous. The district court is, in effect, bound by Section 964(G)(6) to use a preponderance of the evidence standard upon judicial review of factual findings. The Commission is therefore required to use the same standard. Instead, however, the transcripts indicate that the Commission informally adopted the same standard of review used by the National Football League. Chairman Wright of the Commission elaborated that the Commission will not reverse decisions by stewards unless it is "clearly reversible-indisputable." Additionally, the motion to uphold the Stewards' decision, which carried unanimously, was phrased as follows: "I would like to make a motion that we uphold the stewards' ruling. I have seen no indisputable evidence that would change my mind."

The Commission's application of the wrong standard of review rendered inapplicable the directive of Section 964(G)(6) to give "due regard" to the Commission's credibility determinations. "Where one or more trial court legal errors interdicted the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence." Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731, 735. Evans applies by analogy in the APA context. Because the Commission applied the wrong standard of review, and such could easily have influenced its decision, the Commission's credibility determinations are not entitled to any deference.

Accordingly, the Commission's assignment of error regarding the trial court's finding that the Commission used the incorrect standard of review lacks merit, as does the assignment that the trial court should have given deference to the Commission's credibility determinations.

DECREE

The judgment of the trial court is affirmed. Appellate costs are not assessed. La. R.S. 13:4521.

AFFIRMED.

      There were actually two hearings held before the Commission. At the first hearing, the Ramseys' expert witness, David Hooper, was unavailable, as was Rosie Napravnik, Coalport's jockey. The Commission refused to grant the Ramseys a continuance, and proceeded to affirm the stewards without first considering the testimony of Hooper or Napravnik. Thereafter, the trial court ordered the Commission: (1) to allow the Ramseys to introduce this testimony; and (2) reweigh the evidence in light thereof and render a new decision accordingly. After the second hearing, the Commission affirmed its prior decision.


author: CHEHARDY, C.J.

text:
    Rebecca ROURKE v. The ESTATE OF Debra Frances DRETAR, Kenneth John Dretar, Individually, and in his Capacity as Independent Administrator of the Sucession of Debra Frances Dretar, 3006 Roberta, LLC, Louisiana Housing Program, L.L.C., Bayou Triangle Developement, Inc.
    NO. 17-CA-672
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, REBECCA ROURKE, Harry A. Rosenberg, Christopher K. Ralston, Arthur R. Kraatz, Lillian M. Grappe, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, SEC RESOURCES LLC, Ryan M. McCabe, Charles L. Stern, Jr., New Orleans, Mark C. Landry, Metairie
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   CHEHARDY, C.J.

On appeal, SEC Resources, L.L.C. ("SEC") challenges the partial default judgment granted in favor of Rebecca Rourke rescinding the sale of immovable property to 3006 Roberta, L.L.C. Further, SEC has filed a peremptory exception of nonjoinder in this Court. For the following reasons, we sustain the exception of nonjoinder, vacate the partial default judgment, and remand for joinder of the absent party, and further proceedings consistent with this opinion.

Factual and Procedural History

In the summer of 2014, Rebecca Rourke, who is unable to work due to disability and receives Social Security disability benefits as her regular source of income, was experiencing financial difficulties and mental health issues, requiring psychiatric treatment. During this time, Debra Dretar, an acquaintance of Ms. Rourke, assisted her by paying for her prescriptions and some past due bills.

In August of 2014, Debra Dretar learned that Ms. Rourke would soon inherit property so Dretar offered to help Rourke secure a "Reverse Amortized Loan" on the property. According to a "preliminary contract," Ms. Rourke would "place my property at 3006 Roberta St., Metairie, La. 70003 into an LLC as designated by Louisiana Housing Program LLC (Debra Dretar)" in exchange for payments of $800.00 per month for 10 years at 6% interest per annum.

On November 6, 2014, Ms. Rourke was placed into full ownership of immovable property located at 3006 Roberta Street in Metairie, Louisiana. Four days after the Judgment of Possession was issued, Debra Dretar executed an Affidavit of Usufruct, which purported to grant Ms. Rourke the usufruct over the property for a minimum of 10 years. Further, Debra Dretar acknowledged in that affidavit that the "Equity in [Ms. Rourke's] home in the amount of approx..[sic ] $110,000 remains hers."

Thereafter, on November 11, 2014, Ms. Rourke executed an Act of Cash Sale, transferring all rights to the immovable property to 3006 Roberta, L.L.C. ("the L.L.C.") for $117,500.00. Debra Dretar signed the Act of Sale for the L.L.C. as the manager of that company. That same day, Debra Dretar on behalf of the L.L.C. purported to grant a usufruct over the immovable property in favor of Ms. Rourke. In that document, the L.L.C. also stated that it had executed an "Act of Mortgage" on the immovable property at issue in favor of SEC Resources, L.L.C. "in the principal sum of [$117,500.00] with interest ... of 14% per annum, payable ... [in] 36 monthly installments of interest only ... WITH A BALLOON PAYMENT DUE DECEMBER 1, 2017 ...." The Act of Mortgage is not contained in the record before us on appeal.

In her petition, Ms. Rourke alleges that she did not receive the purchase price of $117,500.00 because Debra Dretar directed the sale proceeds to be disbursed to Bayou Triangle Development, Inc., which is wholly owned by Debra Dretar's brother, Kenneth. In her petition, Ms. Rourke states that she has received less than $25,000.00 of the agreed upon price for her immovable property.

On January 18, 2016, Debra Dretar passed away. Kenneth Dretar, her brother, is the independent administrator of Debra Dretar's succession.

On November 9, 2016, the L.L.C., via certified mail, notified Ms. Rourke that her usufruct was "cancelled and revoked" because she was in "default of the terms" of their agreement. On December 7, 2016, a Notice to Vacate was posted on the premises at issue. On January 25, 2017, the L.L.C. filed a Petition for Order of Eviction. On March 7, 2017, the parties continued that matter without date. The matter is still pending but is not the subject of this appeal.

On May 17, 2017, Ms. Rourke, in forma pauperis with counsel acting pro bono , filed a Petition for Declaratory Judgment and Damages naming as defendants, Kenneth Dretar, individually and as the Administrator of the Succession of Debra Frances Dretar; 3006 Roberta, L.L.C.; Louisiana Housing Program, L.L.C.; and Bayou Triangle Development, Inc.

In her petition, Ms. Rourke prayed for a declaratory judgment that the "Act of Cash Sale" of the immovable property dated November 11, 2014 would be declared a nullity for lack of capacity and lack of consent due to fraud and error. Ms. Rourke further alleged that the Dretars, individually and as members of the defendant-L.L.C.s, caused her damages through fraud, which caused her to lose ownership of her immovable property. Ms. Rourke contends that she justifiably relied upon the Dretars' statements that the immovable property had an appraised value of $220,000.00, that Ms. Rourke would retain "$110,000.00 of equity" in the immovable property at issue, and that the "reverse amortized loan" would be against the remaining "value" of the property. Ms. Rourke also alleged that the Dretars conspired to commit conversion by obtaining 100% ownership of her property without payment of the purchase price to her and prayed for damages that she suffered as a result of their tortious actions.

On October 2, 2017, Ms. Rourke moved to enter a preliminary partial default against 3006 Roberta, L.L.C.; Louisiana Housing Program, L.L.C.; and Bayou Triangle Development, Inc., in accordance with La. C.C.P. art. 1701. On October 4, 2017, a judgment of preliminary default was entered against those three defendants.

On October 10, 2017, Ms. Rourke moved to confirm the preliminary default judgment on her rescission claim against only the L.L.C., which the trial court granted. In that partial default judgment, the trial court rescinded the Act of Cash Sale purporting to transfer ownership of the immovable property at 3006 Roberta Street and restored Ms. Rourke as the sole owner of that property. Further, the trial judge, reserving Ms. Rourke's remaining claims, designated the partial default judgment as a partial final judgment pursuant to La. C.C.P. art. 1915(B).

On October 23, 2017, SEC, who is not a party to this litigation in the lower court, moved for a devolutive appeal, seeking review of the partial default judgment on the basis that SEC's security interest in the property may be affected by the judgment at issue in this matter.

Standing

Our initial inquiry is whether SEC has standing to appeal this judgment when SEC is not a party to the litigation. La. C.C.P. art. 2086 provides that "[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken." The object of an appeal is to give an aggrieved party to an action recourse to a superior tribunal for the correction of a judgment of an inferior court, and such right is extended not only to the parties to the action in which the judgment is rendered, but also to a third-party when such party is allegedly aggrieved by the judgment. In re Succession of Walker , 02-625 (La. App. 5 Cir. 12/11/02), 836 So.2d 274, 277-78, writ denied , 03-110 (La. 3/28/03), 840 So.2d 572. Thus, SEC has the right to prosecute this appeal, if it could have intervened in the declaratory judgment proceedings in the district court.

La. C.C.P. art. 1091, authorizing interventions in a pending action, provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.

Jurisprudentially, we have held that the requirements for intervention are twofold: the intervenor must have a justiciable interest in, and connexity to, the principal action, and the interest must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor's rights. Atchley v. Atchley , 97-474 (La. App. 5 Cir. 1/14/98), 707 So.2d 458, 459. A "justiciable interest" is defined as "the right of a party to seek redress or a remedy against either [the] plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it." The right, if it exists, must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor's rights. Id.

Here, the declaratory action at issue is to determine the rightful owner of immovable property. It is a real action brought by the former owner against the current owner to rescind the sale. SEC, as the holder of a note secured by a mortgage on the property, has a direct justiciable interest that is related or connected to the object of the principal action. Under the law and jurisprudence, we find that SEC would have the right to intervene in the declaratory judgment proceedings in the district court and, therefore, it has the right to pursue this appeal of the declaratory judgment.

Nonjoinder

Further, on February 14, 2018, SEC filed, in this Court, a peremptory exception of nonjoinder of a party alleging that SEC's absence from the lower court proceeding rendered the default judgment obtained by Ms. Rourke an absolute nullity.

La. C.C.P. art. 927 reads:

A. The objections which may be raised through the peremptory exception include but are not limited to the following:
* * *
(4) Nonjoinder of a party under Articles 641 and 642.
* * *
B. The court may not supply the objection of prescription, which shall be specially pleaded. The nonjoinder of a party ... may be noticed by either the trial or appellate court on its own motion.

Further, La. C.C.P. art. 2163 states, in pertinent part, that, "[t]he appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record."

The prior concept of necessary and indispensable parties has been consolidated in La. C.C.P. art. 641, which reads as follows:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Clearly, SEC has an interest in this matter as it holds a mortgage, which was filed in the Mortgage records of Jefferson Parish, on the immovable property that is at issue in this litigation. Further, the adjudication of the real action in SEC's absence could impede its ability to protect that security interest. Consequently, we find that, in this factual situation, SEC is a party necessary for a just adjudication pursuant to La. C.C.P. art. 641. See Simmons v. Clark , 08-431 (La. App. 5 Cir. 1/27/09), 8 So.3d 102, 111 ; Frey v. American Quarter Horse Ass'n , 95-157 (La. App. 5 Cir. 7/25/95), 659 So.2d 849.

When an appellate court recognizes the absence of necessary parties to a suit, the appropriate remedy is to set aside the judgment at issue, remand the matter for joinder of the absent party, and retrial. See Jefferson Fin. Credit Union v. Billy's Used Cars, Towing & Recovery, L.L.C. , 10-315 (La. App. 5 Cir. 11/23/10), 54 So.3d 702, 704.

Decree

Accordingly, SEC's exception of nonjoinder is sustained. Further, we vacate the partial default judgment and remand for joinder of the absent party and further proceedings consistent with this opinion.

EXCEPTION GRANTED; JUDGMENT VACATED; MATTER REMANDED.

LILJEBERG, J., CONCURS WITH REASONS

LILJEBERG, J., CONCURS WITH REASONS

I agree with the majority's decision to grant the exception of nonjoinder of a party pursuant to La. C.C.P. art. 641 and vacate the trial court's judgment. I concur to emphasize that this Court does not grant the exception of nonjoinder and vacate the underlying judgment merely because SEC holds a mortgage on the immovable property at issue. Rather, the majority ruling is based on Ms. Rourke's allegations in the companion executory process proceedings that if the Act of Cash Sale is null and she regains ownership of the immovable property, then SEC's mortgage is also null and unenforceable against the property. Therefore, I believe SEC's absence from these proceedings would impair and impede its ability to protect its security interest. Not every scenario involving issues relating to the sale and ownership of immovable property mandates the joinder of a party with a security interest in the property.

      Ms. Rourke's parents died testate in 2011 and left the bulk of their estates to her.

      According to the petition, Debra Dretar told Ms. Rourke, who was 53 years old in November of 2014, that Ms. Rourke was too young to legally qualify for a reverse mortgage loan, which are closely regulated to protect elderly homeowners. See La. R.S. 6:1101 et seq.

      See Joint Successions of Betty Becnel Rourke wife of/and Warren Joseph Rourke , Twenty-Fourth Judicial District Court No. 708-240, Division G.

      The Affidavit of Usufruct is written on letterhead of Louisiana Housing Program, L.L.C., which is a limited liability company with one Member, Kenneth Dretar, who is Debra Dretar's brother. Further, Debra Dretar is the registered agent for that company.

      3006 Roberta, L.L.C. is a limited liability company with two officers: Debra Dretar, as Manager, and Debra Dretar's brother, Kenneth Dretar, as Member. Further, Debra Dretar is the registered agent for that company. On November 22, 2014, Debra Dretar also filed a certificate of authority to act for 3006 Roberta alleging that, as the sole member of that company, she had authority to purchase and mortgage property on the company's behalf.

      The usufruct of immovable property is a real right "on the property of another," which is an incorporeal immovable. See Millaud v. Millaud , 99-2145 (La. App. 4 Cir. 4/05/00), 761 So.2d 44, citing Comment (b) of La. C.C. art. 566 ; La. C.C. art. 535 ; Succession of Steen , 508 So.2d 1377, 1380 (La. 1987). A transfer of immovable property must be made by authentic act or by act under private signature. La. C.C. art. 1839 ; In re Williams , 11-2243 n.15 (La. 1/24/12), 85 So.3d 5, 12. Here, although the document was not signed by the notary as required by La. C.C. art. 1833, it may still be valid as an act under private signature.

      For the lower court proceedings, see SEC Resources v. 3006 Roberta, L.L.C. and the Succession of Debra Dretar , Twenty-Fourth Judicial District Court No. 773-651, Division "C." Further, the mortgage is the subject of a separate appeal, which is currently before this Court and docketed as a companion to this matter. SEC Resources L.L.C. v. 3006 Roberta, L.L.C. and the Succession of Debra Dretar , 18-29 (La. App. 5 Cir. 5/23/18), 248 So.3d 660, 2018 WL 2325104. In that appeal, SEC seeks review of the trial court's grant of a preliminary injunction stopping the sale of the immovable property to satisfy the debt secured by the mortgage. There, SEC, on July 3, 2017, filed a petition for executory process seeking to seize and sell the immovable property at 3006 Roberta Street to satisfy the debt incurred by the L.L.C. and secured by the mortgage. Five days before the sale was to take place, Ms. Rourke intervened in that suit on the basis that SEC's mortgage is a nullity and moved for a preliminary injunction, which was granted on October 11, 2017. Ms. Rourke also filed a notice of lis pendens in the mortgage records.

      3006 Roberta, L.L.C. v. Rebecca Rourke , Twenty-Fourth Judicial District Court No. 768-466, Division "C."

      Here, the trial court rendered a partial default judgment as to less than all the claims and designated it as a final judgment after an express determination that there is no just reason for delay. Thus, the ownership of the immovable property is a final judgment under La. C.C.P. art. 1915(B), which is appealable. Laviolette v. Dubose , 07-916 (La. App. 5 Cir. 3/25/08), 983 So.2d 160, 162.

      The 1995 amendments to Louisiana's joinder articles, La. C.C.P. art. 641 et seq. eliminated the categories of "indispensable" and "necessary" parties in favor of a single category of "parties needed for just adjudication." Indus. Cos. v. Durbin , 02-0665 n.6 (La. 1/28/03), 837 So.2d 1207, 1217.


text:
    SEC RESOURCES, LLC v. 3006 ROBERTA, LLC and the Succession of Debra Dretar
    NO. 18-CA-29
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, SEC RESOURCES, LLC, Ryan M. McCabe, Charles L. Stern, Jr., New Orleans, Mark C. Landry, Metairie
    COUNSEL FOR INTERVENOR/APPELLEE, REBECCA ROURKE, Harry A. Rosenberg, Christopher K. Ralston, Arthur R. Kraatz, Lillian M. Grappe, New Orleans
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   CHEHARDY, C.J.

Plaintiff, SEC Resources, L.L.C., appeals the Twenty-Fourth Judicial District Court's October 19, 2017 judgment granting a preliminary injunction enjoining the judicial sale of property. For the reasons that follow, we affirm this judgment.

FACTUAL AND PROCEDURAL HISTORY

On November 6, 2014, Rebecca Rourke was placed into possession and full ownership of her parents' immovable property, the family home where she was residing, located at 3006 Roberta Street in Metairie, Louisiana ("the property"). Her parents had died testate in 2011.

Five days later, on November 11, 2014, Ms. Rourke executed an Act of Cash Sale and sold the property to 3006 Roberta, L.L.C. ("3006 Roberta") for $117,500.00. Debra Dretar, as the manager of 3006 Roberta, executed the sale on the L.L.C.'s behalf. On this same date, and in conjunction with this act of sale, Ms. Dretar executed three other instruments. She executed a Grant of Usufruct, wherein 3006 Roberta granted a usufruct over the property to Ms. Rourke for her lifetime. Ms. Rourke signed this instrument. Ms. Dretar executed a Certificate of Authority to Act for 3006 Roberta, which authorized Ms. Dretar to act on behalf of 3006 Roberta to purchase and mortgage the property. And Ms. Dretar, on behalf of 3006 Roberta, granted a mortgage on the property in favor of SEC Resources, L.L.C. ("SEC") in the amount of $117,500.00, at issue in the instant foreclosure proceedings.

Ms. Dretar passed away on January 18, 2016. Her brother, Kenneth Dretar, is the administrator of her estate and the sole surviving member of 3006 Roberta.

On November 9, 2016, 3006 Roberta sent a Notice to Vacate and Termination of Grant of Usufruct to Ms. Rourke, notifying her that she had defaulted on the terms of the usufruct, the usufruct was cancelled, and she had ten days to vacate the property. This was followed on January 25, 2017 with a Petition and Rule to Show Cause for Order of Eviction with Reservation of Rights, alleging that Ms. Rourke had failed to maintain the property in good repair, to pay property taxes, and to maintain insurance on the property. These eviction proceedings were continued without date.

On May 17, 2017, Ms. Rourke filed a Petition for Declaratory Judgment and Damages, seeking rescission of the act of sale and damages. Ms. Rourke sought rescission of the sale on the bases of lack of capacity to contract, lack of consent due to error, and lack of consent due to fraud. She also sought damages under theories of fraud, conspiracy to commit fraud, conversion, and various other alternatives. In this petition, Ms. Rourke alleged the following.

In the summer of 2014, Ms. Rourke, who is unable to work due to disability and receives Social Security disability benefits as her regular source of income, was experiencing financial difficulties and mental health issues, requiring psychiatric treatment. During this time, Debra Dretar, an acquaintance of Ms. Rourke, began assisting her, picking up her prescriptions and giving her money to pay her past due bills. Around this time, when Ms. Dretar learned that Ms. Rourke would soon be placed into possession and full ownership of the property, Ms. Dretar suggested that Ms. Rourke obtain a reverse mortgage to maintain a steady source of income.

Ms. Rourke, however, did not qualify for a reverse mortgage because she was not yet sixty-two years old. So Ms. Dretar offered to enter into an agreement with Ms. Rourke, in a document drafted by Ms. Dretar entitled Reverse Amortized Loan. This proposed agreement provided that Ms. Rourke would "place" the property "into a limited liability company as designated by Louisiana Housing Program, L.L.C." In exchange, Ms. Dretar would issue monthly payments to Ms. Rourke over ten years in the amount of $800.00 plus 6% annual interest. The agreement further provided that Ms. Rourke would retain use of the property until she chooses to vacate the property or becomes unable to live on her own.

In addition, Ms. Dretar executed a document entitled Affidavit of Usufruct, which purported to grant Ms. Rourke a usufruct over the property for a minimum of ten years and states that Ms. Rourke would continue to own equity in the property in the amount of approximately $110,000.00. Ms. Rourke claims that after the property had been sold to 3006 Roberta, she did not receive any of the sale proceeds, but that Ms. Dretar directed the $117,500.00 to be disbursed to Bayou Triangle Development, Inc., a corporation wholly owned by Kenneth Dretar. Ms. Rourke thereafter sought the monthly payments of $800.00, to which she thought she was entitled. Obtaining each month's payment was always a hassle, and Ms. Rourke claims that, to date, she has received less than $25,000.00 from 3006 Roberta and the Dretars.

On October 4, 2017, a judgment of preliminary default was rendered against 3006 Roberta, L.L.C., Louisiana Housing Program, L.L.C., and Bayou Triangle Development, Inc. A judgment confirming default was rendered on October 10, 2017 in favor of 3006 Roberta only, in which the November 11, 2014 Act of Cash Sale was rescinded and Ms. Rourke's causes of action in tort were reserved.

Meanwhile, 3006 Roberta had defaulted on the mortgage and SEC moved to foreclose on the property, filing a petition for executory process on July 3, 2017, at issue in these proceedings. SEC alleged that it was the holder and owner of a promissory note executed on November 11, 2014 by Debra Dretar, on behalf of 3006 Roberta, payable to SEC in the amount of $117,500.00, and that this note was secured by a mortgage on the property. SEC sought an order of executory process and a writ of seizure and sale of the property.

On July 13, 2017, the writ was issued, the property was seized by the Sheriff of Jefferson Parish, and a sale was set for September 27, 2017. Five days before the sale was set to take place, on September 22, 2017, Ms. Rourke filed a Motion for Leave to File Verified Petition for Intervention and Permanent Injunction, seeking to enjoin the sale of the property. The court granted Ms. Rourke's motion for leave and set a rule to show cause for a preliminary injunction on September 26, 2017. In her petition, Ms. Rourke outlined her claims to regain ownership of the property in the companion proceedings and further alleged that the mortgage 3006 Roberta granted on the property to SEC is a nullity. The sheriff's sale was postponed and, pursuant to a joint motion, the show cause hearing was continued until October 11, 2017. SEC pled the peremptory exceptions of no cause and no right of action, which were referred to the hearing on October 11, 2017.

At the conclusion of this hearing, the court overruled SEC's peremptory exceptions, granted the motion for preliminary injunction, and set the bond amount in accordance with La. C.C.P. art. 3610. The written judgment followed on October 19, 2017 and Ms. Rourke posted bond that day. SEC thereafter devolutively appealed.

ISSUES ON APPEAL

On appeal, SEC assigns two errors:

1) Because the default judgment introduced at the preliminary injunction hearing is legally infirm for all of the reasons urged in SEC's opening brief in No. 17-CA-672, the preliminary injunction, issued in reliance on that judgment, cannot stand.
2) The district court should have denied the preliminary injunction based upon the Public Records Doctrine, which prevents the non-record matters urged by Rourke in support of her ownership claim from affecting the mortgage rights of SEC, a third party to Rourke's facially valid Act of Cash Sale.

DISCUSSION

In SEC's first assignment of error, it presents a legal argument that if the default judgment obtained by Ms. Rourke in 24th Judicial District Court No. 772-238 is invalid-which SEC maintains it is-then the preliminary injunction is likewise invalid.

Ms. Rourke intervened in these proceedings and obtained a preliminary injunction pursuant to the first paragraph of La. C.C.P. art. 1092, which provides:

A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before an adjudication of his claim of ownership.

As denoted by the use of the permissive "may," granting injunctive relief under La. C.C.P. art. 1092 is discretionary. See La. R.S. 1:3 ; La. C.C.P. art. 5053 ; Ford Motor Credit Co. v. Corbello , 482 So.2d 203, 206 (La. App. 3 Cir. 1986). And our review of the pertinent code articles and jurisprudence suggests that this discretion under La. C.C.P. art. 1092 is not controlled by the provisions generally governing injunctive relief. Cf. Gen. Motors Acceptance Corp. v. Daniels , 377 So.2d 346, 348 (La. 1979) (finding that, pursuant to La. C.C.P. art. 2752, the right of a defendant in a foreclosure proceeding to obtain an injunction under La. C.C.P. art. 2751 is governed by the general requirements governing injunctive relief as set forth in La. C.C.P. art. 3601, et seq. ). Thus, without any controlling factors outside of those contained within the article itself, we find that a trial court is vested with vast discretion when granting injunctive relief under La. C.C.P. art. 1092.

SEC offers no authority for its contention that the preliminary injunction must be vacated because the default judgment is invalid. And we find this position does not comport with the directive of La. C.C.P. art. 1092 that injunctive relief may be granted to prevent a sale of property before a third person's claim of ownership is adjudicated. Here, we have vacated the default judgment. See Rebecca Rourke v. The Estate of Debra Frances Dretar, et al. , 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653, 2018 WL 2325061. As a result, Ms. Rourke's claim of ownership remains to be adjudicated, and injunctive relief is therefore not improper under La. C.C.P. art. 1092. Insofar as SEC argues that vacating the default judgment per se necessitates vacating the preliminary injunction, we conclude this argument is without merit.

In SEC's second assignment of error, it argues that the district court erred in granting Ms. Rourke "a preliminary injunction against the foreclosure because SEC is shielded from [Ms.] Rourke's ownership claims by the Public Records Doctrine."

Louisiana's public records doctrine generally expresses a public policy that interest in real estate must be recorded in order to affect third persons. Cimarex Energy Co. v. Mauboules , 09-1170 (La. 4/9/10), 40 So.3d 931, 943. Simply put, an instrument in writing affecting immovable property which is not recorded is null and void except between the parties. Id. In this sense, the doctrine is a negative doctrine because it does not create rights in a positive sense, but rather, denies the effect of certain rights unless they are recorded. Id. ; see Camel v. Waller , 526 So.2d 1086, 1089-90 (La. 1988). Consequently, third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. Cimarex , supra .

SEC argues that because the recorded act of sale between Ms. Rourke and 3006 Roberta reflects that Ms. Rourke received the sale price and that the instrument does not indicate a lack of capacity or consent, the Public Records Doctrine precludes Ms. Rourke from relying on unrecorded alleged defects in the act of sale to attempt to regain ownership of the property unencumbered by SEC's mortgage. Therefore, SEC submits, the district court erred in granting the preliminary injunction.

The purpose of a preliminary injunction is to preserve the status quo during the pendency of further judicial proceedings. Saer v. New Orleans Regional Hosp. Org., 14-856 (La. App. 5 Cir. 3/25/15), 169 So.3d 617, 620. And a trial court enjoys vast discretion in granting injunctive relief under La. C.C.P. art. 1092.

Considering the exceptional facts and circumstances of this case, and particularly considering that we have vacated the default judgment which had set aside the sale from Ms. Rourke to 3006 Roberta, thus making Ms. Rourke's claim of ownership yet to be adjudicated, we cannot find the district court abused its vast discretion in enjoining the foreclosure proceedings to allow Ms. Rourke a reasonable amount of time to pursue her efforts to regain ownership of the property. Accordingly, at this preliminary stage of these proceedings, we decline to consider SEC's argument that the Public Records Doctrine shields SEC from Ms. Rourke's claim of ownership, and hereby reserve SEC's right to assert its Public Records Doctrine defense to Ms. Rourke's claims.

DECREE

For the foregoing reasons, the district court's judgment of October 19, 2017 is affirmed.

AFFIRMED

      See Joint Successions of Betty Becnel Rourke wife of/and Warren Joseph Rourke , Twenty-Fourth Judicial District Court No. 708-240, Division G.

      See 3006 Roberta, L.L.C. v. Rebecca Rourke , Twenty-Fourth Judicial District Court No. 768-466, Division C.

      Rebecca Rourke v. The Estate of Debra Frances Dretar, et al. , Twenty-Fourth Judicial District Court No. 772-238, Division P. These proceedings are the subject of appeal No. 17-CA-762, which was docketed before this Court as a companion case.

      Ms. Rourke's date of birth is December 12, 1960.

      Louisiana Housing Program, L.L.C. is a limited liability company with one member, Kenneth Dretar, and for which Ms. Dretar is the registered agent.