138 So. 3d 6
La. Ct. App.2014Background
- Honey Bear Lodge, Inc. (HBL) purchased St. Tammany Parish property in 2004, failed to pay 2004 ad valorem taxes, and the property was sold at tax sale to Adair in 2005. HBL did not redeem within the statutory three-year period.
- Adair filed a petition to quiet tax title in April 2009. Service on HBL by certified mail to its listed Kentucky address was unsuccessful; a curator ad hoc (Joseph Oubre) was appointed and later withdrew in November 2009.
- Adair moved for summary judgment (with an order setting a February 8, 2010 hearing) and purported to serve the motion on Oubre; the sheriff’s return shows domiciliary service on Oubre’s father. HBL received no notice and did not appear; the court entered judgment recognizing Adair as owner on February 8, 2010.
- HBL later moved (Oct. 2011) for new trial/rehearing or to annul the February 2010 judgment, arguing it never received proper service because Oubre had withdrawn before the motion was served. The trial court denied relief on March 19, 2012.
- On appeal, the court held the February 8, 2010 judgment was an absolute nullity for lack of proper service, reversed the March 19, 2012 denial, maintained the appeal as timely, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the summary-judgment hearing and resulting February 8, 2010 judgment were void for lack of proper service | HBL: service was insufficient because Oubre had withdrawn as curator ad hoc before the motion/order setting the hearing was served; HBL never received notice | Adair: service on Oubre (curator ad hoc) and certified mail attempts satisfied service requirements; HBL’s remedies were untimely | Held: Judgment was an absolute nullity — Oubre had withdrawn, domiciliary service on his father and returned certified mail were insufficient under Arts. 1313/1314; HBL had no notice. |
| Whether HBL’s motion to annul/new trial was timely and appealable | HBL: attack on absolute nullity may be brought at any time; notice deadlines never began since judgment notice was not properly served | Adair: appealed as untimely (argued delays elapsed) | Held: Motion was timely; appeal from March 19, 2012 denial was timely filed within appeal period; appeal maintained. |
| Whether the trial court’s denial of the annulment motion lacked necessary decretal language making it non-final | HBL: March 2012 order effectively preserved the February 2010 judgment but identifies parties and relief | Adair: (implicitly) order may be deficient | Held: March 19, 2012 judgment contained sufficient decretal language to support appeal. |
| Proper remedies and disposition | HBL: vacate void February 2010 judgment and reverse denial of annulment | Adair: defend confirmation of tax title | Held: February 8, 2010 judgment vacated as null; March 19, 2012 judgment reversed; case remanded for further proceedings. |
Key Cases Cited
- Tunnard v. Simply Southern Homes, L.L.C., 985 So.2d 166 (La. App. 1st Cir.) (judgment against unserved defendant is null)
- Avants v. Kennedy, 837 So.2d 647 (La. App. 1st Cir.) (nullity for lack of service)
- Barrios v. Barrios, 694 So.2d 290 (La. App. 1st Cir.) (vice of form/null judgment when service absent)
- Zenon v. Liberty Mut. Fire & Cas. Ins. Co., 871 So.2d 642 (La. App. 1st Cir.) (defendant-in-rule may bring nullity action)
- Rawley v. Rawley, 357 So.2d 286 (La. App. 1st Cir.) (service on withdrawn counsel insufficient; sale null)
- Billiot v. Sea Life, Inc., 384 So.2d 1023 (La. App. 4th Cir.) (service on attorney who withdrew before notice insufficient; default invalid)
- Hill v. Lopez, 929 So.2d 80 (La. App. 1st Cir.) (summary judgment hearing required proper sheriff service when hearing set)
- Davis v. Dunn & Bush Const., 858 So.2d 451 (La. App. 1st Cir.) (trial court must ensure unrepresented litigant receives written notice after counsel withdraws)
- Roman v. LRASIF Claims Mgmt, 81 So.3d 895 (La. App. 5th Cir.) (due process requires notice to unrepresented litigant after counsel withdrawal before dismissing/entering judgment)
- Smith v. LeBlanc, 966 So.2d 66 (La. App. 1st Cir.) (service on counsel of record valid when withdrawal not yet approved)