187 So. 3d 480
La. Ct. App.2013Background
- In 2005 Pamplemoussier, L.L.C. purchased an 80% undivided interest in property at a tax sale for unpaid 2004 taxes; a tax deed was recorded and the property was not redeemed.
- In 2010 Pamplemoussier sued to confirm and quiet tax title; the Poches reconvened, alleging the tax sale was null because required post-sale notices under former La. R.S. 47:2183(C) were not sent.
- At trial Pamplemoussier introduced a certified tax deed; the Poches offered no live testimony and attempted to rely on a sworn affidavit asserting they received no post-sale notice (the affidavit was objected to).
- The trial court annulled the tax sale; the court of appeal reversed and rendered judgment confirming the sale.
- The majority held the tax deed is prima facie evidence of regularity, the Poches bore the burden to rebut that presumption with competent evidence, and they failed to do so; hearsay affidavit and counsel argument were not competent to rebut.
- A dissent argued that failure by the purchaser to comply with the post-sale notice statute implicates due process and should render the sale null, and that the purchaser bore the burden to prove notice was given.
Issues
| Issue | Pamplemoussier (Plaintiff) Argument | Poche (Defendant) Argument | Held |
|---|---|---|---|
| Whether the tax sale is invalid for failure to provide post-sale notice under former La. R.S. 47:2183(C) | Either the post-sale notices were sent, or even if they were not, noncompliance would not invalidate the sale | Noncompliance with §2183(C) is a fatal defect that nullifies the sale and deprives owners of their redemption right | Tax sale confirmed; defendants failed to rebut presumption of regularity with competent evidence, so sale stands |
| Who bears burden to prove notice/noncompliance | Once presumption is rebut, purchaser must prove compliance | Poches contended purchaser must show notice was sent after they alleged noncompliance | Court: tax deed creates prima facie regularity; Poches had burden to present competent evidence rebutting that presumption; they did not |
| Admissibility/evidentiary effect of the Poches’ affidavit claiming no notice | N/A (affidavit offered by Poches) | Affidavit shows no post-sale notice was received | Court: affidavit is hearsay and not competent absent statutory authorization; cannot be considered to rebut presumption |
| Remedy for statutory noncompliance (nullification) | Noncompliance should not necessarily defeat the sale (or plaintiff argued notices were sent) | Failure to provide required post-sale notice should nullify sale to protect constitutional redemption rights | Court did not decide whether §2183(C) noncompliance itself mandates nullification; instead reversed because plaintiffs’ evidence was unrebutted. Dissent would nullify sale on due process grounds |
Key Cases Cited
- Smitko v. Gulf South Shrimp, Inc., 94 So.3d 750 (La. 2012) (a tax purchaser’s suit to quiet tax title places title at issue and former owners may raise defenses to defeat tax title)
- Lewis v. Succession of Johnson, 925 So.2d 1172 (La. 2006) (tax deed is prima facie evidence of regularity of tax adjudication proceedings)
- Cressionnie v. Intrepid, Inc., 879 So.2d 736 (La. App. 1 Cir. 2004) (former owner bears burden to prove irregularities; if rebutted purchaser must then prove requisites for valid sale)
- Hamilton v. Royal Int’l Petroleum Corp., 934 So.2d 25 (La. 2006) (addressed public-official post-sale notice statute and held lack of statutory post-sale notice by tax collector did not necessarily nullify sale)
- Michael F. Smith, CPA v. Alford, 906 So.2d 674 (La. App. 1 Cir. 2005) (sworn affidavits are hearsay and not competent evidence unless statute authorizes their use)