Rourke v. Estate of Dretar

• Decision Date: 23 May 2018
• Docket Number: NO. 17–CA–672,17–CA–672
• Citation: 248 So.3d 653
• 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.
• Court: Court of Appeal of Louisiana — District of 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.

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.²According 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 3006Roberta Street in Metairie, Louisiana.³Four 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 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.⁶In 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.⁸On 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 "Actof 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 3006Roberta 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).⁹

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

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