Bilbe v. Foster, 176 So. 3d 542

Plaintiff Kathleen Bilbe owned property in New Orleans with unpaid ad valorem taxes for 2007 and 2010; she purchased the property in 2006.
2010 tax bill (mailed Dec. 2009) included 2010 taxes/fees and unpaid 2007 taxes; Bilbe made a partial payment toward 2007 in Feb 2010 and paid the full outstanding balance in July 2011 after receiving a notice of potential tax sale.
Bilbe sued Norman Foster, Director of Finance, alleging he acted arbitrarily/capriciously outside his duties and deprived her of constitutional rights (42 U.S.C. § 1983), challenging inclusion of 2007 taxes on a 2011 tax-sale notice.
Procedural history: Bilbe filed suit (2012); trial court denied her second motion to amend the petition (June 30, 2014); granted Foster’s summary judgment and denied Bilbe’s (Sept. 22, 2014); denied Bilbe’s motion for new trial (Dec. 1, 2014). Appeal followed.
Key factual points: the 2011 notice included both 2007 and 2010 unpaid taxes; Bilbe conceded receipt of the 2011 notice; she did not pay 2010 taxes prior to the notice and did not make payments under protest.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of second motion to amend petition	Amendment merely clarified constitutional bases, named official capacity, and clarified damages; undue to deny.	Trial court within discretion to deny post-answer amendment; denial not appealable until final judgment.	Denial affirmed; no abuse of discretion and review proper as part of appeal from final judgment.
Cross motions for summary judgment — § 1983 claim based on inclusion of 2007 taxes on 2011 tax-sale notice	Inclusion of 2007 taxes on 2011 notice violated La. R.S. 47:2131 (three-year limit to proceed to tax sale) and was arbitrary/capricious, depriving Bilbe of constitutional rights.	Foster complied with statutory duties (notice of delinquency and tax sale); 2011 notice also included 2010 unpaid taxes making property eligible for sale; inclusion of prior taxes was objectively reasonable and not misleading.	Foster’s summary judgment granted; Bilbe’s denied. Court held no genuine issue of material fact and Bilbe offered no evidence of arbitrary/capricious conduct or due-process deprivation.
Motion for new trial	Trial court’s summary judgment was contrary to law and evidence; therefore new trial required.	Trial court properly exercised discretion; Bilbe presented no supporting authority or evidence to show miscarriage of justice.	Denial affirmed; no abuse of discretion and judgment not contrary to law/evidence.

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (U.S. 1999) (elements required to state a § 1983 claim)
Moresi v. State Through Dept. of Wildlife & Fisheries, 567 So.2d 1081 (La. 1990) (official immunity when performing judicial/legislative functions)
Lambert v. Riverboat Gaming Enforcement Div., 706 So.2d 172 (La. App. 1 Cir. 1997) (absolute immunity principles for certain official acts)
Our Lady of the Lake Hosp., Inc. v. Smith, 639 So.2d 730 (La. 1994) (summary judgment standards; genuine issue definition)
Rivet v. State Dept. of Transp. & Dev., 800 So.2d 777 (La. 2001) (standard for granting new trial when judgment appears contrary to law and evidence)
Smith v. Casino-New Orleans Casino, 101 So.3d 507 (La. App. 4 Cir. 2012) (summary judgment granted when no genuine factual issue remains)