Brookewood Investments Co. v. Sixty-Three Twenty-Four Chef Menteur Highway L.L.C.Brookewood Investments Co. v. Sixty-Three Twenty-Four Chef Menteur Highway L.L.C.
| ,This mаtter comes to us on remand from the Supreme Court of Louisiana for reconsideration of our earlier decision set forth in Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C.,
1¾After careful review of the Smitko decision, although it dealt with tax sales that were apparently of no legal force or effect and absolutely null for failure to give proper notice and want of due process, we find the Supreme Court did nоt address the central issue presented by the case presently before us; that is, who is responsible for reimbursing the tax purchaser following a failed tax sale. Accordingly, we find that the Smitko decision sheds no new light upon, and does not change, our early ruling.
Smitko involved a motion for summary judgment brought by the tax sale purchaser in its action to quiet title to real property. The appellate court had affirmed the trial court’s ruling granting summary judgment, which confirmed and quieted the title of the tax purchaser on the basis that the former property owner had failed to timely file a separate action or recon-ventional demand to institute proceedings to annul the tax sale within the statutory
While Smitko, and the other cases relied upon by Brookewood,
|fiBrookewood contends that the legislature’s enactment of La. R.S. 47:2153C(1) essentially overruled Westwego, Lindner, and its progeny. We disagree. La. R.S. 47:2153C(1) provides:
In the absence of actual notice of the sale to a tax sale party, including a transferee, or the demonstration of a reasonable effort to provide notice, where the name and address of the tax sale party were reasonably ascertainable or where the transfer was recorded after the tax collector completed his pre-sale party research, the tax collector shall cancel the sale of the property and refund the tax sale purchaser the tax sale purchase price.
The general rule against retroactive application of legislative enactments and its exceptions is codified in La. C.C. art. 6, which provides that that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 5 (La.5/9/97),
Article 6 requires a two-fold inquiry. First, we must ascertain whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends unless the enactment impairs contractual obligations or vested rights. If no such intent is expressed, the enactment must be classified as substantive, procedural, or interpretive. Id., p. 6,
La. Acts 2012, No. 886, § 1, which enacted La. R.S. 47:2153C(1), contains no clear and unmistakable expression of legislative intent regarding retrospective application. A careful review of La. Acts 2012, No. 886, § 1, reveals that the legislative amendment makes a change in the party responsible for reimbursing the tax purchaser— from the tax debtor to the tax collector— creating a substantive change in the law. Accordingly, we conclude the legislative changes reflected in the amendment to La. R.S. 47:2153C(1) are substantive, and can only be applied prospеctively. Thus, applying the law in effect at the time the tax sale in the instant case occurred, as well as at the time the judgment annulling the sale for lack of notice was rendered, Brookewood’s right of reimbursement is against the tax debtоr, Sixty-Three, and not the City.
Accordingly, for the foregoing reasons, determining that Smitko does not change or alter our previous decision in Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C.,
AFFIRMED.
Notes
. We summarize our prior decision as follows:
The tax purchaser, Brookewood Investments Co., L.L.C. (“Brookewood”), purchased property at a tax sale conducted by the City of New Orleans (“City”) for thе full amount of unpaid ad valorem taxes due on the property in the amount of $591,343.03, plus costs. In due course, Brookewood filed a motion for writ of seizure and possession, seeking corporeal possession of the property. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C. ("Sixty-Three”), the record property owner, and Jacob Morreale filed a reconventional demand seeking to annul the tax sale on the basis that the City had assessed the property in an erroneous name and failed to provide the requisite notice of the delinquent taxes and tax sale to the proper owner of record, Sixty-ThreeBrookewood then filed a third-party demand against the City and its Ex-Officio Tax Collector seeking reimbursement for the monies it paid in the event the tax sale was declared an absolute nullity. The trial court, having determined that the City failed to provide the proper statutory notice to Sixty-Three, rendered judgment annulling the tax sale and ordered that the judgment would take effect only upon payment of the taxes, costs, and interest by Sixty-Three as provided for in La. Const. Art. VII, § 25(C). The trial court further ruled that Brookewood's sole source for reimbursement for monies paid at the tax sаle was against Sixty-Three, the tax debtor and property owner of record, and not the City. On appeal, this court amended the trial court judgment by declaring the tax sale to be an absolute nullity, and relying upon La. Const. Art. VII, § 25(C), Westwego Canal & Terminal Co., Inc. v. Pitre,197 La. 374 ,1 So.2d 550 (1941), and Lindner v. City of New Orleans,116 La. 372 ,40 So. 736 (1906) and its progeny, affirmed that Brookewood’s right of reimbursement is solely against Sixty-Three and not the City.
. In Mennonite, the mortgagee of a property contested a tax sale that occurred after the homeowner failed to pay her property taxes. The mortgagee was not provided notice of the homeowner/mortgagor’s delinquent payment of the taxes or the subsequent tax sale. Id. at 794,
. Brookewood relies upon the following cases, in addition to Smitko, in support of its position that its right of reimbursement is against the City and not Sixty-Three: Jamie Land Co., Inc. v. Atwood,
. In Westwego, the Court affirmed the lower court’s detеrmination that, pursuant to La. Const. Art. X, § 11 (1921), providing that "[n]o judgment annulling a tax sale shall have effect until the price and all taxes and costs paid, with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser,” when a tax sale is declared null, other than "sales annulled on account of the taxes having been paid prior to the date of the tax sale,” the record owner of the property is the party responsible for reimbursing the tax purchaser. Id.,
. In Lindner, the tax purchaser sought reimbursement from the City after a failed tax sale. The Louisiana Supreme Court, in affirming the trial court’s dismissal of the suit on the City's еxception of no cause of action, reiterated that the tax purchaser’s only remedy, as provided in La. Const. Art. 233 (1898), was to recover the amounts paid by him, together with costs and interest, from the property owner and not the City. Specifically, the Lindner court noted that "[a] tax sale, in
. We are somewhat at a loss to explain precisely why Brookewood wants to seek reimbursement from the City in view of La. Const, art. XII, § 10(C) and the jurisprudence interpreting that provision.