LIBERTAS TAX FUND I LLC VERSUS DANIEL J. MOMPOINT, MARIE RENEE RIMPEL MOMPOINT, UNITED STATES OF AMERICA, UNITED STATES OF AMERICA, DEPARTMENT OF TREASURY - INTERNAL REVENUE SERVICE, STATE OF LOUISIANA AND STATE OF LOUISIANA, DEPARTMENT OF REVENUE
NO. 20-CA-105
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
October 05, 2020
MARC E. JOHNSON JUDGE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 796-182, DIVISION “D” HONORABLE SCOTT U.
VACATED AND REMANDED
MEJ
JGG
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
LIBERTAS TAX FUND I LLC
Wesley M. Plaisance
Laura S. Achord
COUNSEL FOR DEFENDANT/APPELLANT,
DANIEL J. MOMPOINT AND MARIE RENEE RIMPEL MOMPOINT
Christopher J. Davidson
John A. E. Davidson
JOHNSON, J.
Defendants/Appellants, Daniel J. Mompoint and Marie Renee Rimpel Mompoint (hereinafter referred to as “the Mompoints“), appeal the trial court‘s default judgment concerning a quiet title action and a partition by licitation in favor of Plaintiff/Appellee, Libertas Tax Fund I, LLC (hereinafter referred to as “Libertas“), from the 24th Judicial District Court, Division “D“. For the following reasons, we vacate the final default judgment confirming the quieting of the tax sale title and partition by licitation, and we remand the matter to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
According to the record in this matter, Libertas filed a petition against the Mompoints, the United States of America, the United States of America, Department of Treasury - Internal Revenue Service, the State of Louisiana, and the State of Louisiana - Department of Revenue on June 12, 2019. In its petition, Libertas sought a judgment from the trial court that would confirm its tax sale title and 1% ownership of certain immovable property in Jefferson Parish—3660 Lake Aspen Dr. W., Gretna, Louisiana—owned by the Mompoints, as well as the partition by licitation of the same immovable property. Libertas alleged that the three-year peremptive period to redeem its tax sale title to the property had expired, and the tax sale title had not been annulled or redeemed by the Mompoints or any other party. Libertas also sought a settlement of the accounts between the co-owners. The petition was answered by the Louisiana Department of Revenue; however, it was the only party to answer the petition.
Libertas filed a “Motion for Entry of Preliminary Default” on January 9, 2020. Due to the failure of the Mompoints to file responsive pleadings within the time delay allowed by law, Libertas sought a preliminary default judgment against them.1 The trial court granted the motion on January 9, 2020. On January 22, 2020, Libertas filed its “Motion to Confirm Default Judgment.” In support of its motion, Libertas submitted an affidavit from its manager, Keith Richard, attesting to Libertas’ 1% ownership in the immovable property and its desire for a partition of the property; a tax sale certificate for the immovable property; the original purchase agreement for the property signed by the Mompoints in 1992; two notices of federal tax liens on the property dated March 5, 2010 and March 14, 2012; and, two notices of Louisiana state tax assessments and liens on the property dated October 16, 2012 and February 20, 2014.
On January 27, 2020, the trial court granted Libertas’ motion for confirmation, without a hearing in open court, and rendered a default judgment against the Mompoints and the United States defendants. In its judgment, the trial court declared Libertas as the 1% owner of the immovable property; enjoined the defendants from claiming any rights to the portion owned by Libertas; reformed the tax sale certificate to mirror the legal description of the property set forth in the judgment; terminated the encumbrances on the property recorded in Jefferson Parish; appointed the Sheriff for the Parish of Jefferson to partition the property at a public
After the final judgment was rendered, Libertas and the Louisiana Department of Revenue moved the court for a “Consent Partial Final Judgment,” wherein the parties agreed to partially erase and cancel certain encumbrances on the property recorded in Jefferson Parish. The trial court granted the joint motion and rendered a consent judgment on January 30, 2020. Subsequently, Libertas and the United States defendants also moved the trial court for a “Consent Partial Final Judgment,” wherein the parties agreed to partially erase and cancel certain encumbrances on the property recorded in Jefferson Parish. That motion was granted by the trial court, and the consent judgment was rendered on February 10, 2020. The judgment further ordered that the proceeds of the partition sale belonging to the Mompoints be deposited in the registry of the court and the encumbrances held by the United States defendants attach only to the Mompoints’ proceeds.
The instant suspensive appeal of the Mompoints followed.
ASSIGNMENTS OF ERROR
On appeal, the Mompoints allege: 1) the trial court erred in confirming the preliminary default judgment without a hearing in open court; 2) the trial court rendered an invalid default judgment because the judgment is not precise, definite, or certain; 3) the trial court erred in finding in favor of Libertas because Libertas failed to establish a prima facie case for confirming the preliminary default judgment; and, 4) the trial court erred in allowing Libertas to demand a partition by licitation before it is a true co-owner.
LAW AND ANALYSIS
General Precepts of Law
Generally, an appellate court‘s review of a default judgment is governed by the manifest error standard of review. ASI Fed. Credit Union v. Leotran Armored Sec., LLC, 18-341 (La. App. 5 Cir. 11/7/18) 259 So.3d 1141, 1147-48, citing Arias v. Stolthaven New Orleans, LLC, 08-1111 (La. 5/5/09); 9 So.3d 815, 818. However, when the court of appeal “finds that a reversible legal error or manifest error of material fact was made in the trial court, it is required to re-determine the facts de novo from the entire record and render a judgment on the merits.” Id. at 1148. Although a presumption exists that the record supports a default judgment, the presumption does not exist when the record upon which the judgment is rendered indicates otherwise. Id., citing Morice v. Alan Yedor Roofing, 16-532 (La. App. 5 Cir. 2/8/17); 216 So.3d 1072, 1079-80.
In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Mount v. Hand Innovations, LLC, 12-326 (La. App. 5 Cir. 11/27/12); 105 So.3d 940, 943, citing Arias, supra. Confirmation of a default judgment is similar to a trial. It requires, with admissible evidence, “proof of the demand sufficient to establish a prima facie case.” Id., citing
The Mompoints allege the trial court erroneously confirmed the preliminary default judgment without a hearing in open court. They argue that Libertas failed to supply sufficient information needed to proceed without a hearing in open court, e.g., a certification that the suit was based on a conventional obligation or proof of tax payments, attorney‘s fees or expenses. They further argue that Libertas failed follow the requirements set forth in
Libertas maintains that the trial court was authorized to confirm the preliminary default judgment in chambers. It contends that the instant matter is an action to confirm a tax sale title and partition, and the matter is not grounded in contract or tort or based on an open account, promissory note, or other negotiable instrument. Thus, Libertas argues that the specific evidentiary requirements set forth in
According to
In this matter, the trial court confirmed Libertas’ preliminary default judgment without a hearing in open court. Libertas attached exhibits to its motion to confirm the preliminary default judgment. However, none of the exhibits were accepted into evidence by the trial court.
In Precept Credit Opportunities Fund, L.P. v. Brown, 20-114 (La. App. 4 Cir. 7/22/20); --- So.3d ---, 2020 WL 4199728, the Louisiana Fourth Circuit reviewed a similar confirmation of a default judgment regarding the quieting of a tax sale title. In that matter, the plaintiff claimed that it acquired sole ownership of tax sale property and sought a preliminary default against the defendants, which was granted by the trial court. Four days after the trial court entered an order of preliminary default, the plaintiff filed a motion to confirm the preliminary default judgment. On the same day the motion was filed, the trial court rendered a final default judgment without a hearing in open court, quieting the plaintiff‘s tax sale title to the property. Id. at p. 1.
On appeal, the Fourth Circuit found that the plaintiff failed to offer competent evidence sufficient to support the confirmation of a final default judgment. The court reasoned,
[T]he record does not reflect that the trial court held a hearing in open court, wherein evidence was formally introduced and admitted. Instead, Plaintiff submitted a motion and supporting memorandum to confirm default judgment. Plaintiff attached its affidavit that included three exhibits to its supporting memorandum. However, the record does not reflect any request to admit these exhibits or the entire record into evidence. Moreover, Plaintiff did not present live testimony or offer a certified copy of the tax deed into evidence. As a result, Plaintiff did not admit any evidence on the record by which it could prove the elements of its case as required by La. C.C.P. art. 1702(A) .
When considering whether a hearing in open court was required for a confirmation of a preliminary default judgment to quiet a tax sale title, the Fourth Circuit explained,
As discussed,
La. C.C.P. arts. 1702(B)(1) and(C) and1702.1 do specify certain claims and situations wherein a plaintiff may confirm a default judgment using hearsay evidence without a hearing when mandatory itemizations and certifications of proof are present. However, Plaintiff‘s claim to quiet title does not fall within one of the foregoing exceptions underLa. C.C.P. art. 1702(B)(1) or(C) that would allow hearsay evidence by way of affidavit and exhibits, nor does its submission comply with the strict mandates ofLa. C.C.P. art. 1702.1 , which is necessary to proceed to a final judgment without a hearing. Thus, a hearing with live testimony and evidence was required. Accordingly, the failing to conduct a hearing and obtain competent evidence sufficient to establish the elements of a prima facie case by which a final default judgment could be confirmed is a fatal procedural defect.
We agree with the Fourth Circuit‘s rationale in Precept Credit Opportunities Fund, L.P.. Accordingly, we find that the trial court legally erred in failing to conduct a hearing in open court and obtain competent evidence sufficient to establish the elements of a prima facie case by which a final default judgment could be confirmed in favor of Libertas, and those failures were fatal procedural defects. As such, we find that Libertas’ claim to quiet tax title does not fall within one of the exceptions under
DECREE
For the foregoing reasons, we find the final default judgment rendered by the trial court to be fatally flawed. Accordingly, we vacate the final default judgment in favor of Libertas Tax Fund I, LLC, which confirmed Libertas’ quiet title action and
VACATED AND REMANDED
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 5, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL
CLERK OF COURT
20-CA-105
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
WESLEY M. PLAISANCE (APPELLEE) CHRISTOPHER J. DAVIDSON (APPELLANT)
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JOHN A. E. DAVIDSON (APPELLANT)
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LAURA S. ACHORD (APPELLEE)
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PHILIP J. GIORLANDO (APPELLEE)
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