CAITLIN COOLEY VERSUS ERROL G. WILLIAMS, IN HIS OFFICIAL CAPACITY AS ASSESSOR FOR THE PARISH OF ORLEANS
NO. 2022-CA-0564
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
January 30, 2023
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-04545, DIVISION “L” Honorable Kern A. Reese, Judge
Chief Judge Terri F. Love
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Rachael D. Johnson)
Jonathan D. Lewis
Daniel E. Davillier
Charles Ferrier Zimmer, II
DAVILLIER LAW GROUP, LLC
935 Gravier Street, Suite 1702
New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLANT
John Jurgen Weiler
Reese F. Williamson
WEILER & REES, LLC
909 Poydras Street
Suite 1250
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
The Assessor was within his authority to deny Ms. Cooley a homestead exemption based on her failure to prove valid ownership of the subject property. Finding that the district court properly denied Ms. Cooley‘s request for a writ of mandamus, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Flag Boy Properties, L.L.C. (“Flag Boy“) purchased an immovable piece of property located at 930 Forstall Street at an Orleans Parish Tax Sale. Flag Boy recorded an affidavit as set forth in
Ms. Cooley applied for a homestead exemption. The Assessor denied Ms. Cooley‘s application for a homestead exemption. In its denial, the Assessor explained that Ms. Cooley‘s predecessor in interest, Flag Boy, purchased the subject property and then sold the property to Z Squared without quieting title to the property. Z Squared also failed to quiet the title to this tax sale property.
Ms. Cooley filed a petition for writ of mandamus seeking to overturn the Assessor‘s decision to deny her application for a homestead exemption. Following the conclusion of the hearing, the district court took the matter under advisement, and subsequently, issued a judgment denying Ms. Cooley‘s writ of mandamus. Ms. Cooley now appeals the district court‘s judgment.
On appeal, Ms. Cooley raises the following assignments of error: (1) the district court erred as a matter of law by failing to issue a writ of mandamus directing the Assessor to perform his ministerial duty and to issue Ms. Cooley her constitutionally guaranteed homestead exemption; and (2) the district court erred by (i) considering the application of
STANDARD OF REVIEW
Appellate courts normally “review a trial court‘s decision to deny a request for a writ of mandamus under an abuse of discretion standard.” Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566, p. 13 (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037. “‘[A] trial court‘s findings of fact in a mandamus proceeding are subject to a manifest error standard of review.‘” Jarquin v. Pontchartrain Partners, L.L.C., 19-0737, p. 7 (La. App. 4 Cir. 1/22/20), 289 So.3d 1129, 1134 (quoting Commodore v. City of New Orleans, 19-0127, p. 9 (La. App. 4 Cir. 6/20/19), 275 So.3d 457, 465-66). However, where statutory interpretation is at issue in mandamus proceedings, appellate courts apply a de novo standard of review. Town of Sterlington v. Greater Ouachita Water Co., 52,482, p. 12 (La. App. 2 Cir. 4/10/19), 268 So.3d 1257, 1265, writ denied, 19-00913 (La. 9/24/19), 279 So.3d 386, and writ denied, 19-00717 (La. 9/24/19), 279 So.3d 931 (citing Newman Marchive P’ship, Inc. v. City of Shreveport, 07-1890, p. 3 (La. 4/8/08), 979 So.2d 1262, 1265). In a mandamus proceeding, “questions of law, such as the proper interpretation of a statute, are reviewed by appellate courts under the de novo standard of review, and the appellate court is not required to give deference to the lower court in interpreting a statute.” Commodore, 19-0127 at p. 9, 275 So.3d at 465-66.
DISCUSSION
The issue before this Court is whether the district court properly denied Ms. Cooley‘s petition for writ of mandamus. “A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.”
The public officer sought to be compelled in this matter is the Assessor. The Assessor is charged with the statutory duty of assessing the properties in Orleans Parish and setting an official value for the properties so the same can be applied to the City‘s tax rolls. The Assessor is also responsible for issuing homestead exemptions to Orleans Parish property owners.
The right to a homestead exemption is created and guaranteed by
The issue of whether the trial court should have denied Ms. Cooley‘s petition for writ of mandamus depends upon whether Ms. Cooley truly owned the property located at 930 Forstall Street. The tax sale procedures were overhauled by the enactment of 2008 Sess. Law Serv. Act 819 (H.B. 337) (“Act 819“), which became effective January 1, 2009. Central Properties v. Fairway Gardenhomes, LLC, 16-1855, 16-1946, p. 10 (La. 6/27/17), 225 So.3d 441, 448. Pursuant to these revisions, “the tax collector no longer auctions the real estate itself; instead, the tax collector auctions a tax sale title to the property, as evidenced by a tax sale certificate per
Prior to the tax sale, the tax collector is required to provide to the property owner notice of the tax delinquency and of the pending tax sale.
After the expiration of the three-year redemptive period, another notice of tax sale must be provided to the owner.
For this notice, if five years have elapsed since the tax sale certificate was recorded, the required notice must provide the owner with 60 days to file suit to challenge the tax sale.
A review of the statutory language of
Subsection (E) provides that recording the Subsection D affidavit “shall operate as a cancellation, termination, release, or erasure of record of all statutory impositions due and owing to the political subdivision prior to the recordation of the tax sale certificate, and of all interests, liens mortgages, privileges, and other encumbrances recorded against the property and listed in the affidavit.”
“[T]he recorder of mortgages and recorder of conveyances shall treat as canceled, terminated, released, or erased, as applicable, all the liens, privileges, mortgages, interests, or other encumbrances canceled, terminated, released, or erased under Subsection E of this Section, only insofar as they affect the property.”
For the purposes of Subsections (E) and (F) to
Louisiana courts have held that “[t]he tax sale purchaser does not acquire title and full ownership in a tax sale property until there is a judgment in a suit to quiet title (
Ms. Cooley takes the position that the recordation of the Subsection D Affidavit is sufficient to confirm and quiet tax sale title to the property at issue. However, such interpretation places the deprivation of one person‘s rights to their property solely on the unilateral assertion of the tax sale purchaser, who has a self-interest to acquire full title to the property. Under Ms. Cooley‘s theory, all a tax sale purchaser needs to do is file an affidavit claiming that the purchaser took all of the necessary steps to notify the owner as required, and if the purchaser so states in the affidavit, he or she will then be considered the new property owner, free and clear of all encumbrances. Such an outcome would create harmful results and also violate public policy.
Assessors in Louisiana have a duty to provide an application for homeowners to apply for a homestead exemption.
of the application process, the homeowner applying for the exemption must show to the assessor that he or she qualifies for the exemption. As such, the homeowner must show that they have valid ownership of the property. In the instant case, Ms. Cooley cannot show that she has valid ownership of the property. From her predecessors in interest, Ms. Cooley only acquired a tax sale title, which is only the set of rights acquired by a tax sale purchaser, and not valid ownership of the property. There has also never been a proper judicial proceeding instituted to quiet title to the property. The only actions that Ms. Cooley took were to apply to the Assessor for a homestead exemption, and when that was unsuccessful, to file a petition for a writ of mandamus to force the Assessor to issue a homestead exemption.
This Court discussed the parameters to issue a writ of mandamus in Humane Soc‘y of New Orleans v. Landrieu, 13-1059, p. 3 (La. App. 4 Cir. 2/26/14), 135 So.3d 1195, 1197, (quoting A.M.E. Disaster Recovery Servs. Inc. v. City of New Orleans, 10-1755, p. 8 (La. App. 4 Cir. 8/24/11), 72 So.3d 454, 459), as follows:
“‘A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law [ ... ]’
La. C.C.P. art. 3863 . A writ of mandamus is an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief.’ Hoag v. State, 040857, p. 6 (La. 12/01/04), 889 So.2d 1019, 1023. The remedy ‘must be used sparingly ... to compel action that is clearly provided by law.’ Hamp‘s Const., L.L.C. v. Hous. Auth. of New Orleans, 10–0816, pp. 3–4 (La. App. 4 Cir. 12/01/10), 52 So.3d 970, 973, quoting Allen v. St. Tammany Parish Police Jury, 96–0938, p. 4 (La. App. 1 Cir. 2/14/97), 690 So.2d 150, 153. ‘Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised.’ Hamp‘s, 100816, p. 4, 52 So.3d at 973. ‘The remedy is not available to command the performance of an act that contains any element of discretion, however slight.’ Id.”
Here, we find the Assessor acted within his discretion to deny Ms. Cooley‘s application for homestead exemption as the evidence did not show that she was the valid owner of the property located at 930 Forstall Street. Accordingly, the district court properly denied Ms. Cooley‘s petition for writ of mandamus.
CONCLUSION
For the above and foregoing reasons, we affirm the judgment of the district court
AFFIRMED