LPR, L.L.C. v. Lynn C. Naquin and Denise Diaz NaquinLPR, L.L.C. v. Lynn C. Naquin and Denise Diaz Naquin
Plaintiff, L.P.R., L.L.C., appeals the judgment of the trial court denying its petition to confirm tax title to certain immovable property and granting the reconventional demand to annul the tax sale filed by defendants, Lynn C. Naquin and Denise Diaz Naquin. For the reasons that follow, we reverse and remand.
FACTUAL AND PROCEDURAL HISTORY
This is a suit brought by plaintiff to confirm tax title relative to Lot Number 15, Addition Number 2, in Ridgefield Heights Subdivision (the “Property“), after acquiring tax sаle title at a tax sale in Lafourche Parish. The Property was owned by defendants, Lynn C. Naquin and Denise Diaz Naquin.
In connection with delinquent taxes owed on the Property, notices of tax sale were sent on behalf of the Lafourche Parish Sheriff to “Naquin, Lynn C. and Naquin, Denise D.” via first class mail to the address of their residence on March 15, 2012 and April 5, 2012. There was no indication in the records of the sheriff‘s office that either the March 15th or April 5th dual notices were returned to sender.1 Another notice of tax sale was sent to “Lynn and Denise Naquin” at their residence via certified mail on April 13, 2013. However, the April 13th notice was returned to sender as unclaimеd, unable to forward. Separate from the notices of tax sale sent to defendants, interested party notices of tax sale were sent to “Lynn C. Naquin” at the same address used in the other notices via first class mail and certified mail on May 31, 2012. The notice sent via first class mail was not returned to sender, and the notice sent via certified mail was actually received and signed on June 4, 2012.
After being advertised in the Daily Comet on May 18, 2012 and June 15, 2012, the Lafourche Parish Sheriff, Craig Webre, conducted the tax sale on June 20, 2012. Plaintiff purchased the tax sale title to 100% of the whole of the Property at the tax
Additionally, delinquent taxes were owed on the Property to the City of Thibodeaux. Notices of tax sale were sent via certified mail to “Mr. Lynn & Mrs. Denise Naquin” and to “Lynn C. Naquin” prior to the sale, and these notices were received and signed. The City of Thibodeaux conducted a tax sale on June 20, 2012 at which time Michael McCoy purchased a tax sale title to five percent (5%) of the whole of the Property. Thereafter, post-tax sale notices, dated July 29, 2012, were sent to both “Lynn C. Naquin” and “Lynn and Denise Naquin” via regular mail on August 6, 2012, neither of which were returned to sender. On December 22, 2016, plaintiff purchased the undivided five percent (5%) interest in the Property acquired by Michael McCoy at the City of Thibodeaux tax sale.
On July 19, 2017, plaintiff filed suit to quiet and confirm the title to the Property in accordance with
At the conclusion of the civil bench trial on February 28, 2020, the trial court ordered post-trial memoranda, and the matter was taken under advisement. On April 7, 2020, the trial court issued reasons for judgment as well as a judgment denying plaintiff‘s petition to confirm the tax sale title acquired at that Lаfourche Parish tax sale because plaintiff failed to show that proper notice was provided to defendants. The trial court deemed the tax sale null and granted defendants’ reconventional demand to annul the tax sale. While the trial court determined that the City of
Plaintiff timely filed a motion for new trial, which was denied by the trial court on May 6, 2012. Plaintiff then filed the instant appeal of the trial сourt‘s April 7, 2020 judgment. Plaintiff assigns the following errors for this court‘s review:
(1) The trial court erred in placing the burden of proof on plaintiff to show that the Lafourche Parish tax sale was valid;
(2) The trial court erred in finding the Lafourche Parish tax sale defective and that the defendants were deprived of their due process rights;
(3) The trial court erred in annulling instead of confirming the tax sale title from the Lafourche Parish tax sale; and
(4) Alternatively, the trial court erred in failing to indicate that the annulment of the Lafourche Parish tax sale would be set aside unless defendants paid the purchase price, all taxes and costs paid, and ten percent (10%) interest within one year from the date of the judgment annulling the sale.
STANDARD OF REVIEW
In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court‘s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592 (La. 12/8/15), 193 So.3d 1110, 1115. However, legal findings of a trial court are assessed by a court of appeal using the de novo legal standard of review. Kevin Associates, L.L.C. v. Crawford, 2003-0211 (La. 1/30/04), 865 So.2d 34, 43. To the extent a trial court‘s decision was based on its erroneous interpretation or apрlication of law, such decision is not entitled to deference. Id. (quoting Kem Search, Inc. v.Sheffield, 434 So.2d 1067, 1071-72 (La. 1983)). Accordingly, a court of appeal is required to determine whether the trial court applied the law appropriately. Voisin v. Int‘l Companies & Consulting, Inc., 2005-0265 (La. App. 1st Cir. 2/10/06), 924 So.2d 277, 279, writ denied, 2006-1019 (La. 6/30/06), 933 So.2d 132.
Moreover, it is well-settled that where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Legal error occurs when a trial cоurt applies incorrect principles of law and such errors are prejudicial, i.e., when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court‘s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 1997-0541 (La. 2/6/98), 708 So.2d 731, 735.
LAW AND DISCUSSION
(A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs’ sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, intеrest, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.
Before referencing the “manner provided by law,” mentioned in Section 25(A)(1) and (D) for notices and quieting tax title, it is important to note that our review is confined to the statutes in effect at the time of the tax sale on June 20, 2012, as the law in effect on the date of the sale is controlling. See Central Properties v. Fairway Gardenhomes, LLC, 2016-1855, (La. 6/27/17), 225 So.3d 441, 448. The laws pertaining to the payment and collection of property taxes, tax sales, and adjudicated property (Chapter 5 of Subtitle III of Title 47 of the Louisiana Revised Statutes), in particular the manner by which the requisite constitutional notice is effected, were substantively revised in 2008 through La. Acts, No. 819, which was made effective on January 1, 2009. Id. While these statutes were significantly amended again in 2012 by La. Acts, No. 836 (and again in later years), the 2012 amendments did not become effective until August 1, 2012, which was after the tax sale in this case. See Alpha Capital US Bank v. White, 2018-0827 (La. App. 1st Cir. 12/21/18), 268 So.3d 1124, 1128 n.4, writ denied, 2019-0135 (La. 3/18/19), 267 So.3d 89.
Pursuant to
In furtherance of the purpose stated in
In accordance with
Importantly, the term “tax sale property” is defined in
Prior to the enactment of Act 819 of 2008, it was well-settled that a property owner hаd to be given pre-sale notice that was reasonably calculated to apprise him
In this case, a redemption nullity is the only challenge that could be applicable. A “redemption nullity” is speсifically defined as “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 R.S. 47:2156, 2157, 2206, 2236, or 2275, or with service of a petition and citation in accordance with R.S. 47:2266, regardless of any of the following:
(a) Whether the effort resulted in actual notice to the person.
(b) Whether the one who made the effort was a public official or a private party.
(c) When, after the tax sale, the effort was made.
The applicable redemptive period is provided in
The proceedings to quiet tax title referenced in
A. (1) After expiration of the redemptive period, an acquiring person may institute an ordinary proceeding against the tax sale parties whose interests the petitioner seeks to be terminated. The petition shall contain a description of the property, the time and place of the sale, and the name of the officer who made the sale, the page and record book and date of filing of the tax sale certificate, [...], notice that the petitioner is the holder of tax sale title to the property by virtue of tax sale [...], and notice that the title and full ownership in the property will be confirmed unless a proceeding to annul is instituted within six months after the date of service of the petition and citation. This suit shall be brought in the parish in which the property is located unless it lies in two or more parishes, in which case this suit may be instituted in either of the parishes.
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B. In all cases when tax titles havе been quieted by prescription of five years under the provisions of Article VII, Section 25 of the Louisiana Constitution, the purchaser, donee, or his heirs or assigns may, either obtain a judgment of the court confirming the title by suit in the manner and form in Subsection A of this Section, except that the delay for answer shall be ten days instead of six months, provided that the failure to bring suit shall in no manner affect such prescriptive titles.
When a tax purchaser sues to quiet a tax title, he puts that title at issue, and the former owner may avail himself of any defense sufficient to defeat the tax title, e.g., the defense of a redemption nullity pursuant to
In its first assignment of error, plaintiff argues that the trial court incorrectly placed the burden of proof on plaintiff to show that the Lafourche Parish tax sale was valid in its suit to confirm tax title. While plaintiff sought to confirm the tax title acquired at the Lafourche Parish tax sale and put the title at issue, plaintiff attached a copy of the Tax Sale Certificate as well as the Amended Tax Sale Certificate to its supplеmental and amending petition and included the requisite allegations set forth in
In ruling that plaintiff “failed to show that proper notice was ever given to the defendants” and deeming the tax sale null, the trial court failed to apply the law
The tax collector shall authenticate and file in accordance with law, in person or by deputy, in the political subdivision‘s name, a tax sale certificate to purchasers of any property to which tax sale title was sold for taxes, in which he shall relate in substance a brief history of the proceedings had, shall describe the property, state the amount of the taxes, interest, penalties, and costs and the bid made for the property, and the payment made to him in cash, cashier‘s check, certified check, money order, credit card, or wire transfer, or other payment method, shall sell tax sale title, and shall conclude the sale with the statement that the property shall be redeemable at any time during the applicable redemptive period beginning on the day when the tax sale certificate is filed with the recоrder of conveyances in the parish in which the property is located. The tax sale certificate shall contain the full name and address of the tax sale purchaser.
There is no requirement that the tax sale certificate contain “the names of delinquents so notified, their post office addresses, [...] and how the service of notice was made” as required under former
Defendants asserted affirmative defenses of nullity of the tax sale, lack of proper pre-sale notice and post-sale redemption notice, and failure to provide requisite procedural due process in response to plaintiff‘s petition to confirm tax title and also filed a reconventional demand asserting their nullity action. Accordingly, defendants bore the burden of proving that the tax sale was invalid or establishing a redemption nullity sufficient to defeat the tax title. See Id.; Cressionnie, 879 So.2d at 739. In improperly placing the burden on plaintiff, the trial court legally erred,
In connection with their assertion of a redemption nullity pursuant to
The post-tax sale notices sent to both “Lynn & Denise Naquin” and to “Lynn C. Naquin” to defendants’ residential address via first class mail on August 3, 2012 were sent at least six months prior to the termination of the three-year redemptive period in this case. Neither of these notices were returned to sender. These written notices were sent in accordance with
CONCLUSION
In light of the foregoing, we find merit in plaintiff‘s assignments of error.16 Accordingly, we reverse that portion of the April 7, 2020 judgment of the trial court denying the petition to confirm tax title filed by LPR, L.L.C. and granting the
REVERSED AND REMANDED
Notes
Louisiana Revised Statute 47:2266 provides, in pertinent part, as follows:
(1) After expiration of the redemptive period, an acquiring person may institute an ordinary proceeding against the tax sale parties whose interests the petitioner seeks to be terminated. The petition shall contain a description of the property, the time and place оf the sale, and the name of the officer who made the sale, the page and record book and date of filing of the tax sale certificate, [...], notice that the petitioner is the holder of tax sale title to the property by virtue of tax sale [...], and notice that the title and full ownership in the property will be confirmed unless a proceeding to annul is instituted within six months after the date of service of the petition and citation. This suit shall be brought in the parish in which the property is located unless it lies in two or more parishes, in which case this suit may be instituted in either of the parishes.
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B. In all cases when tax titles have been quieted by prеscription of five years under the provisions of Article VII, Section 25 of the Louisiana Constitution, the purchaser, donee, or his heirs or assigns may, either obtain a judgment of the court confirming the title by suit in the manner and form in Subsection A of this Section, except that the delay for answer shall be ten days instead of six months, provided that the failure to bring suit shall in no manner affect such prescriptive titles.
On June 20, 2012, La. R.S. 47:2153 provided, in pertinent part, as follows:
A. No later than the first Monday of February of each year, or as soon thereafter as possible, the tax collector shall send a written notice by certified mail, return receipt requested, to each tax notice party when the tax debtor has not paid all the statutory impositions which have been assessed on immovable property, notifying the person that the statutory impositions on the immovable property shall be paid within twenty days after the sending of the notice or as soon thereafter before the tax sale is scheduled, or that tax sale title to the property will be sold according to law. [...]
B. (1)(a) At the expiration of twenty days’ notice, counting from the day when the last of the written notices are sent, or as soon thereafter as practicable, the tax collector shall proceed to publish a notice to the tax debtors of the delinquency and to advertise for sale the consolidated delinquent tax list under one form two times within thirty days in the official journal of the political subdivision. [...]
Both La. R.S. 47:2153(A) and (B)(1)(a) provide safe harbor forms to utilize in conformity with the statutory requirements.
Specifically, the trial court determined as follows:
The notice was insufficient to meet the requirements of Louisiana Revised Statutes 47:2153, in that: (i) notice was provided to only Denis Diaz Naquin and further indicates that Lynn C. Naquin, a co-owner of the property, was never provided notice of the tax sale; (ii) it does not state the address to which the notice was allegedly mailed; (iii) it does not state that notice was sent with return receipt requested; (iv) it does not provide the dates the required pre-sale notice was provided; and (v) there are no copies of any notices or return receipts attаched.
Further, the amended and corrected tax sale certificate executed by the Lafourche Parish Sherriff was also insufficient in that it only added Co-defendant Lynn Naquin to the caption of [the] document and adding her as a co-owner of the immovable property. The remaining four deficiencies listed above were still unremedied.
The version of La. R.S. 47:2156(B) in effect at the time of the tax sale on June 20, 1012 provided, in pertinent part, as follows:
For each property for which tax sale title was sold at tax sale to a tax sale purchaser:
(1) If the redemptive period is greater than two years, each January or as soon as practical thereafter, each tax collector shall send a written notice by United States mail, postage prepaid, 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 that tax sale title to the property has been sold at tax sale.
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(3) The notice shall be given until the end of the applicable redemptive period. 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 [...].
Section 2156(B)(3) further sets forth a safe harbor form for compliance with the prescribed notice.