267 So. 3d 735
La. Ct. App.2018Background
- Tour Holdings, L.L.C. filed a petition to quiet tax title (May 30, 2017) for a Mandeville property previously owned by Tania O. Paz.
- The petition alleged Paz was either out of state or her whereabouts were unknown; a curator ad hoc was appointed to represent her and accept service.
- The trial court entered judgment on October 26, 2017, confirming and quieting Tour Holdings’ tax title.
- Paz appealed, asserting she was a Louisiana resident who was never personally served, that Tour Holdings failed to conduct a diligent search before seeking a curator, and that service on the curator was ineffective.
- Tour Holdings contended it conducted searches of parish records and internet searches, published notice, and could not locate Paz, justifying appointment of a curator ad hoc.
- The appellate court found the record lacked evidence to resolve service/diligence disputes, held those factual issues belong to a nullity (annulment) suit in the trial court, and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of service of process | Paz: she was never served; judgment is absolutely null for lack of service | Tour: process could not be completed; curator accepted service after published notice and searches | Court: record insufficient to resolve; claim of insufficient service must be litigated in a nullity suit, not raised for first time on appeal |
| Requirement of a "diligent search" before appointing curator ad hoc | Paz: Tour failed to conduct reasonable/diligent search and thus could not rely on curator appointment | Tour: performed parish record searches, internet searches, and published notice—could not find Paz | Court: factual dispute requiring additional evidence; appellate record lacks necessary proof—remedy is annulment action in trial court |
| Validity of service on curator ad hoc in lieu of personal service | Paz: service on curator was improper and ineffective because she was locatable | Tour: curator appointment and service were proper given inability to locate Paz | Court: cannot decide on appeal given no evidentiary record; trial court nullity proceeding required to resolve service method |
| Proper procedural remedy when service sufficiency is contested on appeal | Paz: appealed judgment as absolute nullity | Tour: contends issues were not raised below; record contains no evidence | Court: generally requires separate suit to annul judgment so factual hearings can be held; dismissed appeal and directed party to seek nullity in trial court |
Key Cases Cited
- Security Homestead Ass'n v. Fuselier, 591 So.2d 335 (La. 1991) (diligent-search requirement before appointing curator ad hoc)
- Decca Leasing Corp. v. Torres, 465 So.2d 910 (La. App. 2d Cir.) (appeal dismissed where record insufficient to determine adequacy of service; proper remedy is suit for nullity)
- Corte v. Cash Technologies, Inc., 843 So.2d 1162 (La. App. 1st Cir.) (service sufficiency ordinarily must be raised in annulment action, not first on appeal)
- Hazey v. McCown, 818 So.2d 932 (La. App. 1st Cir.) (appellate court cannot receive new evidence not in record)
- Tunnard v. Simply Southern Homes, L.L.C., 985 So.2d 166 (La. App. 1st Cir.) (failure of service renders judgment absolutely null)