CHRISTOPHER T. STOW-SERGE v. SIDE BY SIDE REDEVELOPMENT, INC., 2320 DELACHAISE INC., AND MARITIME EXPERT SERVICES LLC
NO. 2020-CA-0015
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
JUNE 10, 2020
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2018-01528, DIVISION “M“, Honorable Paulette R. Irons, Judge
Judge Roland L. Belsome
(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)
Christopher T. Stow-Serge
ODOM & DESROSHES, LLC
650 Poydras Street, Suite 2020
New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLEE
J. Christopher Ford
ATTORNEY AT LAW
4480 General DeGaulle Drive
Suite 203
New Orleans, LA 70131
COUNSEL FOR DEFENDANT/APPELLANT
APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED
JUNE 10,
RLB
RML
RBW
This is a dispute between two tax sale purchasers over ownership of immovable property located at 2320 Delachaise Street in New Orleans, Louisiana (the Property). Side by Side Redevelopment, Inc. (SBS),1 the current possessor of the Property, appeals the trial court‘s partial summary judgment on the issue of ownership in favor of the Plaintiff, Christopher Stow-Serge, the most recent tax title purchaser. For the reasons that follow, we convert the appeal to an application for supervisory writ, and deny the writ.
Appellate courts have a duty to determine whether subject matter jurisdiction exists to entertain an appeal, even if the parties fail to raise the issue. Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. This appeal is from a partial final judgment, a judgment declaring Plaintiff to be the owner of the Property. Although the judgment determines ownership interest, the judgment does not terminate the litigation between the parties. In particular, the reconventional demand filed by the Defendants, SBS and 2320 Delachaise, Inc., for reimbursement remains between the parties. The right to appeal the partial final judgment is governed by
FACTUAL AND PROCEDURAL BACKGROUND
The Property has been the subject of tax sales and related litigation for more than a decade. The tax sale at issue in this case occurred on September 9, 2014, wherein Plaintiff acquired 100% interest in the Property by tax sale title. The tax sale certificate was executed and, later, recorded in the conveyance records on October 27, 2014.
On February 20, 2018, after the expiration of the three-year redemptive period,4 Plaintiff filed a Petition to Quiet Title and for Declaratory Judgment. He named the following Defendants: 1) SBS; 2) 2320 Delachaise, Inc.; and 3) Maritime Expert Services,
SBS and 2320 Delachaise, Inc. filed exceptions and an answer to the lawsuit. Additionally, they filed a reconventional and third party demand against Plaintiff and Maritime Expert Services to annul their tax sales and for reimbursement expenses. These two Defendants further filed a third party demand against the City of New Orleans for damages as well as reimbursement expenses. Meanwhile, Maritime Expert Services executed a quit claim deed in favor of Plaintiff and was dismissed from Plaintiff‘s lawsuit with prejudice.
Later, Plaintiff filed a motion for partial summary judgment seeking to quiet title, be declared 100% owner of the Property, and to cancel the lis pendens filed by SBS. After a hearing, the trial court granted partial summary judgment in favor of Plaintiff as to ownership and cancelled the lis pendens filed by SBS. SBS now challenges that judgment.
DISCUSSION
While SBS raises numerous assignments of error, the only issue before this Court is whether the trial court erred in granting partial summary judgment confirming Plaintiff‘s ownership of the property through tax sale purchase. “Motions for summary judgment are reviewed de novo ‘under the same criteria governing the trial court‘s consideration of whether summary judgment is appropriate.‘” Weddborn v. Doe, 15-1088, p. 4 (La. App. 4 Cir. 5/4/16), 194 So.3d 80, 84 (internal quotation omitted).
The fundamental issue in this case is whether the tax sale to Plaintiff was valid. Jurisprudence has long established that deprivation of property requires notice and the opportunity to be heard. Cent. Properties v. Fairway Gardenhomes, LLC, 16-1855, p. 8 (La. 6/27/17), 225 So3d 441, 447. The United States Supreme Court recognized that an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id. If the name and address of the interested party is reasonably ascertainable, notice by mail is a constitutional precondition to a matter affecting the property interest of a party. Mennonite Bd. Of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).
A tax sale confers on the tax sale purchaser ... only tax sale title. If the tax sale title is not redeemed within the redemptive period, then at the termination of the redemptive period, tax sale title transfers to its holder ownership of the tax sale property, free of the ownership and other interest, claims, or encumbrances held by all duly notified persons...
Thus, in adherence with federal due process requirements, the statutory language creates a two-step process in order for title of the property to transfer ownership: 1) expiration of the redemptive period; and 2) notification of all required persons. It is well-recognized that the “the term ‘tax sale’ actually denotes that it is the tax lien that is purchased in the form of tax sale title, albeit with future rights of ownership after due notice to all ‘tax sale parties’ and the expiration of the redemptive period, as well as the filing of a suit to quiet title.” Cent. Properties, 16-1855, p. 12, 225 So.3d at 449.
In its motion for summary judgment, Plaintiff attached a certified copy of the tax certificate, which is prima facie evidence of the regularity of all matters regarding the tax sale and the validity of the tax sale. See
A redemption nullity is the only nullity challenge which may be applicable in this case. A “redemption nullity” is “the right of a person to annul a tax sale in accordance with
“Duly notified” means, with respect to a particular person, that an effort meeting the requirements of due process of law has been made to identify; and to provide that person with a notice that meets the requirements of
- Whether the effort resulted in actual notice to the person,
- Whether the one who made the effort was a public official or a private party.
- When, after the tax sale, the effort was made.
B. (1) For each property for which tax sale title was sold at tax sale to a tax sale purchaser, each collector shall within thirty days of the filing of the tax sale certificate, or as soon as practical thereafter, provide written notice to the following persons that tax sale title to the property has been sold at tax sale. The
notice shall be sent by postage prepaid United States mail to each tax notice party and each tax sale party whose interest would be shown on a thirty-year mortgage certificate in the name of the tax debtor and whose interest was filed prior to the filing of the tax sale certificate. (2) The notice shall specify the property upon which the taxes are delinquent, the amount of taxes due, and the manner in which the property shall be redeemed and shall be sufficient if in the following form[.]
The record in this matter reflects that the Plaintiff purchased the Property at a tax sale recorded on October 27, 2014. The affidavit of Bryan Barrios, Chief Executive Officer of Archon Information Systems, L.L.C., states that Archon conducted the sale at issue and was responsible to notify the interested parties. Archon identified SBS as an interested party and attempted to make calls as well as provided multiple notices by U.S. mail. On behalf of the City of New Orleans, tax collection division, Archon mailed a post-sale redemption notice to SBS on December 5, 2014, more than six months before the expiration of the redemptive period on October 27, 2017.
The notice was mailed by first-class, pre-paid U.S. postage to “Side By Side Redevelopment, Inc. C/O William W. Alden”8 at 2930 Canal Street, Suite 401, New Orleans, Louisiana, which is the address registered with the Louisiana Secretary of State‘s Office. The post-tax sale notice included notice of the sale of 2320 Delachaise Street to Plaintiff for 2013 delinquent taxes. It listed the tax bill number 614322309 and recorded instrument number 04-16955. It further notified SBS of their right to redeem the property that would expire on October 27, 2017. It left a contact number for questions and an address and email address of a person with which they could redeem their property.
Under these undisputed facts, an effort meeting the requirements of due process of law to provide notice in accordance with
SBS argues that the post-sale redemptive notice was not sufficient for two reasons: 1) they did not actually receive the notice; and 2) the notice did not contain the amount of the taxes owed as required by
First, SBS argues that it did not actually receive the December 5, 2014 notice. In support of its argument, SBS points to the affidavit of Raqeul Wilbert, who stated that she worked the front desk for Suite 401. She further testified that since she was unaware SBS was owned by Dr. Alden; she did not deliver any mail addressed to SBS to Dr. Alden. While this argument appears to be disingenuous as the address caption on the letter included Dr. Alden by name, this fact is not material because actual notice to the person is not required under
Generally, statutes using mandatory language prescribe the result to follow (a penalty) if the required action is not taken. If the terms of the statute are limited to what is required to be done, i.e., procedural rules, then the statute is considered directory even though mandatory language is employed. Marks v. New Orleans Police Dep‘t, 06-0575, p. 10 (La. 11/29/06), 943 So.2d 1028, 1035 (citations omitted). Provisions designed to secure order, system, and dispatch by guiding the discharge of duties are usually construed as directory even if worded in the imperative. Id., 06-0575, p. 11, 943 So.2d at 1035.
Despite SBS‘s argument to the contrary, there is no dispute that an effort meeting the requirements of due process of law to provide notice in accordance with
Given the redemptive period expired and SBS was duly notified of the tax sale and the expiration of the redemptive period, there is no genuine issue of material fact as to the validity of the tax sale. Since there are no genuine issues of material fact precluding summary judgment as a matter of law, the trial court was correct in granting summary judgment as to Plaintiff‘s ownership interest.
Accordingly, the writ application is denied.
APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED
Notes
When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
This Court has converted a non-appealable judgment to an application for supervisory writs when the following two conditions are met:
- The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal; and
- When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court‘s decision would terminate the litigation.
Mandina, Inc. v. O‘Brien, 13-0085, p. 8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 104; see also Stelluto v. Stelluto, 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39 (observing that “the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts“).