220 So. 3d 1
La. Ct. App.2017Background
- City of New Orleans acquired property in 2003 for unpaid 1992 ad valorem taxes; City later sold the property to Engine 22 in 2007 via deed imposing redevelopment obligations.
- Engine 22’s deed was executed in 2007 but not recorded until March 2011.
- Before recordation, the City conducted a tax sale for 2008/2009 taxes; Land and Structure purchased and recorded that tax sale in November 2010.
- Engine 22 sued in June 2011 to annul Land and Structure’s tax sale, alleging the City owned the property at the time and/or Engine 22 received no proper notice.
- Land and Structure filed exceptions (no cause of action, no right of action, prescription, non-joinder); the trial court denied them and this court converted the appeal to a writ and reviewed the denials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| No cause of action — can petition to annul tax sale for lack of notice | Engine 22: tax sale is an absolute nullity due to lack of proper notice; constitution and statute recognize annulment suits | Land & Structure: petition fails to state a legal remedy | Court: petition states a cause of action; denial affirmed (suit to annul for lack of notice is recognized) |
| No right of action — is Engine 22 entitled to sue to annul? | Engine 22: as purchaser by deed from the City (even if deed unrecorded at sale time), it has standing to attack a sale lacking proper notice | Land & Structure: Engine 22 breached deed obligations and thus lacked entitlement to notice/title; sale should stand | Court: Defendant failed to prove breach or rescission; Engine 22 has a right of action to seek annulment; denial affirmed |
| Prescription — is the annulment suit time-barred? | Engine 22: tax sale is an absolute nullity for lack of notice and may be attacked at any time; statutory redemptive periods presuppose notice | Land & Structure: suit prescribed after redemptive period expired | Court: where lack of proper notice renders sale an absolute nullity, action is not barred by prescription; denial affirmed |
Key Cases Cited
- Box v. French Market Corp., 593 So.2d 836 (La. App. 4th Cir. 1992) (interlocutory judgment appeal/writ procedure)
- Stelluto v. Stelluto, 914 So.2d 34 (La. 2005) (appellate conversion of appeal to writ/application of supervisory jurisdiction)
- Cititax Group, L.L.C. v. Gibert, 108 So.3d 229 (La. App. 4th Cir. 2012) (tax sale without proper notice is an absolute nullity)
- Moses v. Moses, 174 So.3d 227 (La. App. 4th Cir. 2015) (standards for exception of no cause of action)
- Blanchard v. Blanchard, 112 So.3d 243 (La. App. 1st Cir. 2012) (pleading standards and resolving doubt in favor of maintaining a cause of action)
- Sutter v. Dane Investments, Inc., 985 So.2d 1263 (La. App. 4th Cir. 2008) (affirming annulment of tax sale for lack of notice even years after sale)
- Benoit v. Allstate Ins. Co., 773 So.2d 702 (La. 2000) (distinguishing cause of action from right of action)