Rourke v. Estate of Dretar

Citation248 So.3d 653
Decision Date23 May 2018
Docket NumberNO. 17–CA–672,17–CA–672
Parties 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.
CourtCourt of Appeal of Louisiana (US)

248 So.3d 653

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.

248 So.3d 655

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 property1 so Dretar offered to help Rourke secure a "Reverse Amortized Loan" on the property.2 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.3 Four days after the Judgment of Possession was issued, Debra Dretar executed an Affidavit of Usufruct,4 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.5 ("the

248 So.3d 656

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.6 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.7

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.8 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.

248 So.3d 657

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...

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  • Cohen v. Cohen
    • United States
    • Court of Appeal of Louisiana — District of US
    • October 13, 2021
    ...a retrial of the case. Succession of Pedescleaux , 19-250 (La. App. 5 Cir. 2/7/20), 290 So.3d 749, 752 ; Rourke v. Est. of Dretar , 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653, 659.The Partition Judgment states that Dr. Cohen will "irrevocably name the children as the only beneficiaries......
  • Lagraize v. Basler
    • United States
    • Court of Appeal of Louisiana — District of US
    • September 9, 2020
    ...of immovable property that is at issue in the litigation is a party needed for a just adjudication. Rourke v. Estate of Dretar , 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653, 658-9. The exception of nonjoinder of a party under article 641 and 642 may be noticed by an appellate court on i......
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    ...Underwriters have standing to appeal this judgment when Underwriters are not a party to the litigation. Rourke v. Estate of Dretar , 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653. La. C.C.P. art. 2086 provides that "[a] person who could have intervened in the trial court may appeal, wheth......
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    • Court of Appeal of Louisiana — District of US
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    ...on the record. Succession of Pedescleaux , 19-250 (La. App. 5 Cir. 2/7/20), 290 So.3d 749, 751 ; Rourke v. Estate of Dretar , 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653, 658.Frank, Jr. and John contend that, as conditional joint legatees named in Frank, Sr.’s will, they are parties nee......
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