Elise Howell v. Wallace Overton; Carolann Overton; Tracy Overton; Ashley Overton Hughes; Faulkner Animal Hospital, LLC; Forrest Faulkner; And Brent Glenn

• Court: Louisiana Court of Appeal
• Decided: March 15, 2023
• Docket: 2022-CA-0695
• Status: Published

Opinion

ELISE HOWELL * NO. 2022-CA-0695

VERSUS * COURT OF APPEAL WALLACE OVERTON; * CAROLANN OVERTON; FOURTH CIRCUIT TRACY OVERTON; ASHLEY * OVERTON HUGHES; STATE OF LOUISIANA FAULKNER ANIMAL ******* HOSPITAL, LLC; FORREST FAULKNER; AND BRENT GLENN

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-10195, DIVISION “C” Honorable Sidney H. Cates, Judge ****** Judge Joy Cossich Lobrano ****** (Court composed of Judge Joy Cossich Lobrano, Judge Rachael D. Johnson, Judge Nakisha Ervin-Knott)

Elise Howell 5847 Catina Street New Orleans, LA 70124

PLAINTIFF/APPELLANT, IN PROPER PERSON

Erin Rigsby-Hawkins CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM & HAYES, LLP One Galleria Boulevard, Suite 1100 Metairie, LA 70001

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED

MARCH 15, 2023 JCL This is an injunction case arising out of the adoption of a kitten.

RDJ Plaintiff/appellant, Elise Howell (“Howell”), appeals the January 19, 2022

NEK judgment of the district court, which denied Howell’s request for preliminary

injunction. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendants/appellees, Wallace Overton and Carol Ann Overton (the

“Overtons”), who are North Carolina residents, adopted a Himalayan kitten from

Howell in New Orleans. Thereafter, disputes arose between the parties concerning

the Overtons’ subsequent care of the kitten. Howell alleges that on November 10,

2021, she held an online video interview with the Overtons, wherein she explained

the terms and conditions of the adoption contract, to which the Overtons agreed.

The Overtons then travelled to New Orleans on November 18, 2021 and brought

the kitten back to North Carolina. On December 5, 2021, Howell learned that the

Overtons had scheduled the kitten for an onychectomy, which is a declawing

procedure. Howell alleges that the procedure is in breach of the adoption

1 agreement, will harm the kitten, and that the Overtons have refused Howell’s

demands to return the kitten.

On December 9, 2021, Howell filed her initial lawsuit in the United States

District Court for the Eastern District of Louisiana. On December 17, 2021,

Howell brought the instant litigation against the Overtons1 in the Civil District

Court for the Parish of Orleans (the “district court”), wherein she filed a Complaint

and Emergency Request for Injunctive Relief, seeking an injunction, rescission of

the contract, and damages for breach of contract. On December 20, 2021, the

district court granted a temporary restraining order (“TRO”), which the district

court modified on December 28, 2021 and extended on January 10, 2022. On

January 18, 2022, a preliminary injunction hearing went forward, where Howell

appeared in proper person and was the only witness to testify. The Overtons did

not appear at the hearing but were represented by counsel and introduced the

affidavit of Wallace Overton. The district court ruled from the bench, denied the

request for preliminary injunction, and rendered a written judgment dated January

19, 2022. Howell brought the instant appeal.

LAW AND ANALYSIS

Standard of Review

Denial of a preliminary injunction is subject to appellate review for an abuse

of discretion. Jarquin v. Blanks, 18-0157, p. 2 (La. App. 4 Cir. 8/15/18), 254 So.3d

1 The other defendants were the Overtons’ adult children and the veterinarians who had allegedly

scheduled the onychectomy.

2 10, 11-12. This standard of review 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.” Meredith v. I Am Music, LLC, 18-0659, p. 4 (La. App. 4 Cir. 2/13/19),

265 So.3d 1143, 1145-46 (internal quotation omitted). Appellate courts review

errors of law de novo, while factual findings by the district court are reviewed

under the manifest error or clearly wrong standard. Historic Restoration, Inc. v.

RSUI Indem. Co., 06-1178, p. 4 (La. App. 4 Cir. 3/21/07), 955 So.2d 200, 204.

Burden of Proof

The primary issue before this Court is whether the district court erred in

finding that Howell failed to meet her burden of proof to obtain a preliminary

injunction.2 To prevail in the district court on a motion for preliminary injunction,

2 In her brief, Howell lists five assignments of error, arguing that the district court erred by:

1. wrongfully excluding admissible evidence and testimony based on the parol evidence rule;

2. wrongfully excluding admissible evidence that should have been admitted, reviewed, and considered under Article 803 of the La. Code of Evidence;

3. wrongfully requiring a writing or written contract, as opposed to competent evidence, of a $325.00 oral adoption contract in violation of La. Civil Code Article 1846;

4. wrongfully failing to issue an injunction after Defendants allegedly conceded to the provisions of the December 28, 202[1] temporary restraining order by text message, through confirmation by their counsel of record, and by judicial admission in an Affidavit, sworn to and subscribed by Defendant, Wallace Overton; and

5. wrongfully acting against public policy in holding that “by the Defendants’ own admission, the exigency of the preliminary injunction no longer exists,” thus, permitting Defendants to defeat the issuance of an injunction simply by alleging that they’ve “changed their minds” about engaging in irreparably harmful activities and should be trusted not to do so despite their numerous

3 an applicant bears the burden to establish by prima facie evidence that: (1) the

injury, loss, or damage suffered in absence of injunction may be irreparable; (2)

entitlement to relief sought; and (3) prevailing on the merits of the case is likely.

Id., 06-1178, p. 11, 955 So.2d at 208; La. C.C.P. art. 3601. In cases involving a

contractual obligation “not to do,” proof of irreparable injury is not required.

Novelaire Techs., L.L.C. v. Harrison, 08-157, pp. 5-6 (La. App. 5 Cir. 8/19/08),

994 So.2d 57, 61 (citing La. C.C. art. 1987)(other citations omitted). Existence of a

contract and its terms is a question of fact and must be proved by a preponderance

of the evidence. Danna v. Ritz-Carlton Hotel Co., LLC, 15-0651, pp. 8-9 (La. App.

4 Cir. 5/11/16), 213 So.3d 26, 33. A party claiming rights under a contract bears

the burden of proof. Favrot v. Favrot, 10-0986, p. 11 (La. App. 4 Cir. 2/9/11), 68

So.3d 1099, 1107. If the price or value is in excess of five hundred dollars, the

contract must be proved by at least one witness and other corroborating

circumstances. La. C.C. art. 1846.

The only witness to testify live at the hearing was Howell. She testified that

the adoption agreement was oral, and none of the terms were reduced to writing.

According to Howell, she communicated these terms to the Overtons during an

online video call. She informed the Overtons that the kitten should not receive

vaccinations before he is one year old and that no inhumane surgical procedures

violations of the lower court’s orders thus far, including, without limit, failing and refusing to appear for hearings set in the lower court and failing to abide by provisions set forth in the court’s December 28, 2021 temporary restraining order.

Howell’s third, fourth, and fifth assignments of error implicate the relevant burden of proof.

4 should be performed.3 She stated that all families who adopt cats from her must

agree to the same terms. The total cost for the kitten was $650, and the Overtons

paid Howell that amount. Howell testified that the Overtons had the kitten

vaccinated shortly thereafter and that the veterinarian informed her that the kitten

had become lethargic, ill, and dehydrated one week later. Howell attributed the

kitten’s medical condition to premature vaccination. Howell testified that the

Overtons changed their minds several times about whether they would have the

kitten declawed. Howell admitted in her testimony, however, that the Overtons told

her, after having done additional research, they decided not to declaw the kitten.

She also admitted that the Overtons informed her of their decision after Howell

filed her first lawsuit in federal court, but before she filed this litigation.

The Overtons did not appear live at the hearing, but they were represented

by counsel, who introduced Wallace Overton’s affidavit into evidence. Howell

complained in open court about having received the affidavit only 30 or 40 minutes

before the hearing started, but she did not object to the affidavit’s admission into

evidence. In the affidavit, Wallace Overton denied having agreed to any contract

beyond purchasing the kitten for $650. He also attested that the Overtons will not

allow the kitten to be declawed.

As a matter of law, Howell did not satisfy her burden of proving the

existence of the contract she sought to enforce. The Overtons paid Howell $650 in

3 In Howell’s brief and pleadings throughout the record, she discusses numerous other alleged

terms of the agreement, but she only provided testimony about the terms concerning vaccinations and inhumane medical procedures.

5 exchange for the kitten, and the contract in dispute was not reduced to writing.4

Under La. C.C. art. 1846, where the value or price is greater than $500, “the

contract must be proved by at least one witness and other corroborating

circumstances.” Although Howell presented her own testimony regarding the

purported terms of the contract, she did not introduce any other evidence. Howell

points to Wallace Overton’s affidavit, wherein he described their discussion in

which Howell stated that “her kittens shouldn’t have [vaccinations] until they were

1-years old.” Regardless, the affidavit is explicit that the Overtons did not agree to

any terms and conditions of the adoption, other than payment of the purchase price.

We cannot say that the district court was clearly wrong in finding that Howell

failed to meet her burden of proof to establish the existence of the terms of the

adoption agreement and that the Overtons violated such terms.

We likewise find no error in the district court’s finding of no “exigency” or

irreparable harm in the absence of a preliminary injunction. “[T]he the condition to

be enjoined must currently exist or be imminent.” Faubourg Marigny Imp. Ass’n,

Inc. v. City of New Orleans, 15-1308, p. 18 (La. App. 4 Cir. 5/25/16), 195 So.3d

606, 618. “[T]he proof of irreparable harm cannot be speculative or based upon

some uncertain future event.” Id. Wallace Overton attested in his affidavit that the

kitten will not undergo the disputed procedure. The Overtons introduced into

evidence, without objection, text message conversations in which Wallace Overton

4 In her third assignment of error and reply brief, Howell argues the amount of the contract was

$325. However, she provided no testimony that this was the purchase price, and the uncontroverted evidence at trial was that the total amount paid was $650, which the Overtons paid in two installments of $325.

6 advised Howell on December 12, 2021 that the Overtons would no longer pursue

the procedure. Howell admitted in her testimony that she was aware of the

Overtons’ statements regarding their decision before she filed this litigation in the

district court. Where the district court’s findings of fact are based on its

determinations of witnesses’ credibility, we must defer to the factfinder’s

determination. Bridges v. Anderson, 16-0432, p. 6 (La. App. 4 Cir. 12/7/16), 204

So.3d 1079, 1082-83. We recognize Howell’s sincere concern for the kitten’s well-

being. Even so, the district court could have reasonably found, on the evidence

before it, that the possibility of the procedure or other unspecified injury was

speculative and did not constitute irreparable harm. We do not find merit in

Howell’s arguments.

Evidence

Howell also argues that the district court erred in excluding evidence,5 either

because of hearsay6 or the parol evidence rule.7 The record does not reflect the

exclusion of any evidence, and there is nothing for this Court to review. The

district judge gave the opportunity to introduce exhibits, and Howell did not

introduce any documentary evidence. After the district judge stated his oral ruling,

Howell asked if she could submit affidavits of “other adoptive families.” The judge

5 Howell’s first and second assignments of error concern evidentiary issues.

6 Article 803 of the Louisiana Code of Evidence sets forth exceptions to the hearsay rule,

including the exceptions for records prepared in the regular course of business, see La. C.E. art. 803(6), and statements made for purposes of medical treatment. See La. C.E. art. 803(4). 7 Extrinsic or parol evidence is generally “not admissible to show a prior or contemporaneous

agreement varying the terms of a written contract.” Duvio v. Specialty Pools Co., LLC, 15-0423, p. 8 (La. App. 4 Cir. 6/16/16), 216 So.3d 999, 1007.

7 then expressed his opinion that these supposed affidavits were not relevant to

whether the Overtons violated the alleged agreement. Howell did not attempt to

introduce these affidavits or proffer them.8 She also did not move the district court

to hold the record open or re-open the record for the taking of additional evidence.9

We find these arguments without merit.

CONCLUSION

Accordingly, for the reasons set forth in this opinion, we affirm the

judgment of the district court.

8 The purpose of a proffer is to preserve excluded evidence and testimony so that it is available

for appellate review. Foley v. Entergy Louisiana, Inc., 06-0983, p. 30 (La. 11/29/06), 946 So.2d 144, 165 (quoting McLean v. Hunter, 495 So.2d 1298, 1305 (La. 1986)). Without the proffer, we have no way of knowing what that evidence would have been, and Howell is precluded from complaining that evidence was excluded. McLean, 495 So.2d at 1305. 9 See, e.g., Union Fed. Credit Union v. Thornton, 49,529, p. 4 (La. App. 2 Cir. 1/28/15), 162

So.3d 414, 416-17 (citing La. C.C.P. arts. 191, 1632)(other citations omitted); English v. English, 47,331, pp. 6-7 (La. App. 2 Cir. 12/5/12), 105 So.3d 994, 998.