Hebert v. WiseHebert v. Wise
The issue raised on appeal in this action to annul a tax sale of immovable property is whether the trial court erred in granting the plaintiffs’ motion for summary judgment and annulling the sale based on lack of notice. We reverse.
The executor of the estate of Rena L. Pemble, A. Leon Hebert, and Pemble‘s legatees, H.C. McCall, III, and London McCall (plaintiffs), filed suit on September 27, 1991 to annul a tax adjudication and sale of property owned by Pemble. They named as defendants Rodney Wise; Baton Rouge Renovation Project, Inc. (BRRP); Dennis Stine, Commissioner of the Division of Administration of the State of Louisiana (Commissioner); William J. Guste, Jr., Attorney General of the State of Louisiana (AG); Ronald J. Gomez, Secretary of the Department of Natural Resources of the State of Louisiana (Secretary); and Elmer B. Litchfield, Sheriff of East Baton Rouge Parish, Louisiana (Sheriff). In their petition, the plaintiffs alleged that on June 11, 1986, the Sheriff adjudicated a lot and house at 147 St. Charles Street in Baton Rouge owned by Pemble for unpaid 1985 property taxes; that on August 7, 1991, that property was sold at a tax sale to Wise, who subsequently sold it to BRRP; that Pemble was interdicted in 1984; and that her curator never received notice of the tax delinquency or sale. The plaintiffs alleged that the tax sale should be annulled because the lack of notice violated their state and federal due process rights.1
The Commissioner, AG and Secretary filed a peremptory exception raising the objection of prescription which was later voluntarily dismissed without prejudice. The Sheriff responded to the plaintiffs’ requests for admissions but did not answer the plaintiffs’ petition.2 Wise and BRRP answered.3 The plaintiffs then moved for a summary judgment against “the defendants” alleging that the tax sale was an absolute nullity because the defendants failed to give the plaintiffs proper notice of the tax delinquency and this lack of notice violated the plaintiffs’ due process rights under the United States Constitution and the Louisiana Constitution, and their statutory rights under
On this appeal, the appellants contend that the trial court erred in finding no material issue of fact regarding the plaintiffs’ lack of notice, in failing to find that the plaintiffs cause of action was prescribed, and in failing to find that the plaintiffs are estopped under the doctrine of equitable estoppel from annulling the sale. Based on our determination regarding the notice issue, we pretermit the appellants’ contention regarding equitable estoppel. The prescription issue is disposed of in our consideration of the appellants’ writ. Hebert v. Wise, 95 CW 1623 (La.App. 1st Cir. 12/14/95); 667 So.2d 1240.
The undisputed material facts upon which the plaintiffs relied in their motion for summary judgment were that Pemble was domiciled at 4200 Essen Lane in Baton Rouge from March, 1983 until her death in October, 1990.5 Pemble was interdicted on January 21, 1985 by judgment of the Nineteenth Judicial District Court. H.C. McCall, III, qualified as provisional curator on August 7, 1984, and after Pemble‘s interdiction recorded his permanent bond on April 29, 1985 in the parish mortgage and conveyance records. In February, 1991, McCall was relieved of his duties as Pemble‘s curator because Hebert was appointed executor in Pemble‘s succession. On April 6, 1986, the Sheriff‘s office sent a notice of tax delinquency of $218.95 by certified mail to 147 St. Charles addressed to “LaCroix, Rena L. Pemble.” The letter was returned as undelivered and marked “Vacant.” The records of the Sheriff‘s office do not show that any steps other than the undelivered tax notice posted by certified mail were taken or attempted by the staff of the Sheriff‘s office to apprise Pemble of a tax delinquency. The records do not show that notice was given or attempted to be given to Pemble‘s curator. Hebert stated in his affidavit that he had examined the 1985 Louisiana Polk‘s Baton Rouge Suburban Directory and located a listing for “Pemble Rena” at 4200 Essen Lane, which is where Pemble resided at that time; Hebert attached a copy of the pertinent page from the directory to his affidavit. Four public notices were published of a proposed state land sale of Pemble‘s property; no notice of the sale to Wise was given to Pemble‘s curator or the executor of her succession.
This court must determine if the trial court erred in annulling the adjudication and sale based on due process violations. See Drury v. Watkins, 546 So.2d 1280 (La.App. 1st Cir.), writ denied, 551 So.2d 1323 (La. 1989). This court has set aside a tax sale where the notice did not meet due process requirements, despite the passage of the five year period within which a tax debtor or his successor in title may seek to set aside a tax sale under
The statutory requirements for notice of a tax delinquency are set forth in
In this case, the plaintiffs failed to meet their burden of showing that their due process rights were violated by the lack of notice, such that the trial court erred in granting the motion for summary judgment and annulling the tax sale. The plaintiffs were entitled to notice by mail or other means as certain to ensure actual notice as a minimum constitutional precondition if the curator‘s name and address were reasonably ascertainable. The plaintiffs did not show on their motion for summary judgment that the curator‘s name was reasonably ascertainable by the Sheriff, such that mail or equivalent notice to the curator was required. In the Mennonite case, the name of the mortgagee for whom the Court required mail notice was reasonably ascertainable because it was readily identifiable from the land records. However, in this case, the plaintiffs stated in an affidavit that the curator‘s bond was recorded in the parish mortgage and conveyance records; the plaintiffs did not submit certified copies of those records showing such recordation of the bond, nor did they submit proof that the judgment of interdiction was recorded in the conveyance records.
Where, as in this case, the plaintiffs have not shown that the name of a party with a protectable interest is recorded in the land records, under both Mullane and Mennonite, we must consider whether, under all the pertinent circumstances, it is reasonable to expect the Sheriff to have identified the name of Pemble‘s curator. Whether such identification is reasonably to be expected depends on the burden the Sheriff would have to undertake and on the likelihood that the names would be brought to the Sheriff‘s attention without undertaking such burden. See Bender v. City of Rochester, N.Y., 765 F.2d 7 (2d Cir.1985). Though language in Mennonite emphasizes that a party‘s ability to protect its own interests does not relieve the government of its due process obligations, 462 U.S. at 799, 103 S.Ct. at 2712, the initial determination of what obligation due process imposes must take into account what the interested party, or someone obligated to act on its behalf, is likely to do. See Bender, 765 F.2d at 11. In this case, the
In considering what the interested party is likely to do to protect his property rights, we think the Sheriff was entitled to expect that one appointed to administer an estate that includes immovable property would place something in the mortgage and conveyance records to put the world on notice of the owner‘s interdiction and would also obtain mail addressed to the interdict. A curator is a fiduciary who is empowered to act on the interdict‘s behalf, and as administrator of the interdict‘s estate, had the legal duty to collect and preserve the interdict‘s assets and to pay the interdict‘s debts.
The tutor shall take possession of, preserve, and administer the minor‘s property. He shall enforce all obligations in favor of the minor and shall represent him in all civil matters. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.
A curator at all times must act exclusively in the best interest of the interdict. He must scrupulously administer the affairs of the interdict and explore every avenue available in fulfilling his duty to the interdict. Haynes v. Haynes, 545 So.2d 1245 (La.App. 2d Cir. 1989); In Re Interdiction of Ronstrom, 436 So.2d 588 (La.App. 4th Cir.), writs denied, 437 So.2d 285 (La.1983). Thus, the curator in this case was legally obliged to preserve and administer the interdict‘s property, and the receipt of mail and payment of taxes are merely incidents of that administration. If a curator is to fulfill these fiduciary obligations, it is entirely reasonable to assume that he will make some effort to obtain mail sent to the interdict. If the mail contains a notice that the government is taking some action against property of the interdict, it is reasonable to assume that the curator will take steps to preserve the property. In light of all of the pertinent circumstances, we do not believe the name of the curator was reasonably ascertainable for purposes of applying Mennonite and determining whether due process required the Sheriff to mail the curator notice.
Our analysis is entirely consistent with the holding in Mennonite. The Supreme Court‘s concern that the mortgagee was not likely to receive actual notice arose from the fact that the mortgagor, who did receive mailed notice, was said not to be in “privity” with his mortgagee. Mennonite, 462 U.S. at 799, 103 S.Ct. at 2711. The privity that was lacking in Mennonite clearly is present in this case because the curator of an interdict‘s estate is in privity with the interdict. Unlike a mortgagee who will not learn of the contents of his mortgagor‘s mail unless the mortgagor chooses to inform him, a curator will always, if he is fulfilling his legal duties, take steps to receive the interdict‘s mail and learn of proceedings pending against the interdict‘s property. Moreover, unlike a mortgagor who has failed to protect his own interest in mortgaged property and who has no incentive to inform his mortgagee of a pending foreclosure sale, the curator is legally obligated to preserve the interdict‘s assets in order to protect himself from liability for breach of fiduciary duty.
We are aware of this court‘s statements in Drury and Childress v. Johnson, 387 So.2d 1217 (La.App. 1st Cir.), writ denied, 393 So.2d 744 (La.1980), that, when a mailed notice is required and such notice is returned to the tax collector undelivered or unclaimed, the tax collector must take additional reasonable steps to notify the tax debtor and the failure of the tax collector to perform this obligation renders the tax sale void. Both of these cases are distinguishable from the instant case. In Drury, the record owner of the property had died and the sheriff sent a notice of delinquency to the decedent‘s address, despite repeated notices by the heirs
For the foregoing reasons, the judgment of the trial court granting the summary judgment is reversed, the motion for summary judgment is denied, and the case is remanded to the district court for further proceedings. Costs of this appeal and those incurred in connection with the motion for summary judgment are cast against the appellees.
REVERSED AND REMANDED.