Opinion
NO. 2012 CA 0689
12-21-2012
IN THE MATTER OF JOHNNY R. DAVIS PRAYING FOR MONITION
Milton Osborne, Jr. Baron M. Roberson Baton Rouge, Louisiana Attorneys for Appellant, Johnny R. Davis D. Brian Cohn Baton Rouge, Louisiana Attorney for Appellees, Ruth D. Lloyd, as Administratrix of the Succession of Lubertha D. Brantley, and Ceatrice O. Kitchen Judson G. Banks Tara L. Johnston Baton Rouge, Louisiana Attorneys for Appellee, Sid J. Gautreaux, III, Sheriff and Ex Officio Tax Collector of East Baton Rouge Parish
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 510,218
The Honorable Janice Clark, Judge Presiding
Milton Osborne, Jr.
Baron M. Roberson
Baton Rouge, Louisiana
Attorneys for Appellant,
Johnny R. Davis
D. Brian Cohn
Baton Rouge, Louisiana
Attorney for Appellees,
Ruth D. Lloyd, as Administratrix
of the Succession of Lubertha D.
Brantley, and Ceatrice O. Kitchen
Judson G. Banks
Tara L. Johnston
Baton Rouge, Louisiana
Attorneys for Appellee,
Sid J. Gautreaux, III, Sheriff and
Ex Officio Tax Collector of East
Baton Rouge Parish
BEFORE: CARTER, C.J., GUIDRY AND GAIDRY, JJ. CARTER , C. J.
Johnny R. Davis appeals a summary judgment declaring certain tax sales and a judgment confirming and homologating those tax sales to be nullities. We affirm.
FACTS AND PROCEDURAL HISTORY
This is the second appeal taken in this case. This court's prior opinion set forth the following statement of facts and procedural history:
The property that is the subject of this litigation consists of four lots located in East Baton Rouge Parish. Prior to the tax sale at issue herein, the property was owned by George and Beatrice Adams and Lubertha Dyer Brantley. The taxes on the property became delinquent in 1998, and a tax sale was ultimately held. Johnny R. Davis purchased the property at a tax sale on June 30, 1998. Davis's purchase was recorded in the conveyance records. On July 30, 2003, Davis filed a petition for monition, asking the court for judgment confirming and homologating the sale of the property. Public notice of the petition for monition was made by publication in The Advocate, a Baton Rouge, Louisiana, daily newspaper, on August 1 and 11, 2003. No opposition was made to the monition. A judgment was rendered by the court granting the monition and confirming and homologating the sale on September 9, 2003.In re Davis, 10-1435 (La. App. 1 Cir. 2/23/11), 59 So. 3d 452, 452-453.
On February 5, 2009, a petition was filed by Ruth Lloyd, the succession administratrix of Lubertha Brantley, and Ceatrice Oleen Kitchen, heir of George and Beatrice Adams, seeking to nullify both the monition judgment and the tax sale. The lawsuit also sought a writ of mandamus to compel the sheriff to accept payment of the unpaid taxes from Lloyd and Kitchen and to prepare and record a redemption deed reflecting redemption of the property by Lloyd and Kitchen. In this petition, Lloyd and Kitchen alleged that they did not receive any notice of delinquent taxes in 1997 or in any year thereafter, that the sheriff was aware that the tax notices were not delivered to them, and that their whereabouts were determinable by simple investigation. Further, they alleged that the sheriff failed to give them reasonable notice of the tax delinquency or the tax sale, although their location was easily identifiable from the public records.
Lloyd and Kitchen filed a motion for summary judgment, and after a hearing on the motion, the trial court granted summary judgment declaring the tax sale a nullity, declaring the judgment confirming and homologating the sale a nullity, ordering the sheriff to calculate the costs due under the law and allow the prior owners to redeem the property, and ordering the sheriff to record the cancellation of the tax sale in the public records.
This court determined that the judgment appealed was only a preliminary order because it did not fix the allowed costs, as required by Louisiana Revised Statutes section 47:2291. Accordingly, the appeal was dismissed, and the matter was remanded to the trial court for compliance with the statutory provisions.
After considering documentation offered by Lloyd, Kitchen, and Sheriff Gautreaux, the trial court rendered a second judgment, again declaring the tax sales and judgment confirming and homologating them to be nullities, and fixing the allowed costs as required by Section 47:2291. Davis now appeals.
DISCUSSION
Davis contends the trial court erred in rendering summary judgment declaring the tax sales to be null.
After the case was remanded to the trial court, Davis filed a peremptory exception raising the objection of prescription, wherein he asserted that he acquired the property by virtue of ten-year acquisitive prescription. See La. Civ. Code Ann. art. 3475. Lloyd and Kitchen objected to the timeliness of the exception. The trial court rendered judgment overruling the exception. Davis has not raised the issue of prescription in his appellate brief and has not filed a peremptory exception raising the objection with this court. Accordingly, we do not address the issue herein.
Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Carrollton Presbyterian Church v. Presbytery of South Louisiana of the Presbyterian Church (USA), 11-0205 (La. App. 1 Cir. 9/14/11), 77 So. 3d 975, 979, writ denied, 11-2590 (La. 2/17/12), 82 So. 3d 285, cert, denied, __ U.S. __ (2012). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966 B; Carrollton Presbyterian Church, 77 So. 3d at 979.
The burden of proof on a motion for summary judgment is on the moving party. If the moving party will not bear the burden of proof at trial on the matter that is before the court, the moving party's burden is to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the burden shifts to the adverse party to prove that there are genuine issues of material fact by providing factual evidence sufficient to establish the ability to satisfy the evidentiary burden of proof at trial. La. Code Civ. Proc. Ann. art. 966C(2).
A fact is material when its existence or nonexistence may be essential to the plaintiffs' cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Carrollton Presbyterian Church, 77So. 3d at 979. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Carrollton Presbyterian Church, 77 So. 3d at 979-980.
Before taking an action that affects a property right protected by the Due Process Clause of the Fourteenth Amendment, such as conducting a tax sale, a State must provide notice reasonably calculated to apprise interested parties of the pending tax sale. Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983); Lewis v. Succession of Johnson, 05-1192 (La. 4/4/06), 925 So. 2d 1172, 1176. In Mennonite, the Supreme Court stated that, prior to such a tax sale, "[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition." 462 U.S. at 800.
Louisiana's constitution requires notice "in the manner provided by law" prior to a tax sale. La. Const. Ann. art. 7, § 25. By Acts 2008, No. 819, §2, the Louisiana Legislature repealed sections of Louisiana Revised Statutes, Title 47, pertaining to tax sales of immovable property and enacted a new statutory scheme. The new laws became effective January 1, 2009. The tax sale conducted in this case is governed by the laws that existed prior to their repeal on January 1, 2009.
Louisiana Revised Statutes section 47:2180B required the tax collector to provide the delinquent tax payer with specific notice by certified mail, with return receipt requested. Section 2180 further provided that "[i]n the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor's property in the advertising required for unknown owners." The Louisiana Supreme Court has recognized "where the mailing of a tax notice is required, and a mailed notice is returned to the tax collector undelivered or unclaimed, the tax collector must take additional reasonable steps to notify the tax debtor of a delinquency." Lewis, 925 So. 2d at 1178.
The Sheriff's tax deed constitutes prima facie proof of the regularity of the tax adjudication proceedings. Cressionnie v. Intrepid, Inc., 03-1714 (La. App. 1 Cir. 5/14/04), 879 So. 2d 736, 739. The former owner bears the burden of proving any alleged defects based on allegations of irregularities in the tax adjudication proceedings. Id. If the former owner sufficiently rebuts the presumption of regularity, the tax purchaser must prove that all requisites for a valid sale were complied with. Id.
In support of their motion for summary judgment, Lloyd and Kitchen submitted the deposition testimony of Octave Anthaume, tax director for the East Baton Rouge Sheriff's Office. Mr. Anthaume testified that in his capacity as tax director, he is the custodian or holder of records for the Sheriff's Office. Mr. Anthaume testified that the tax records show the delinquent tax notices for the properties at issue were mailed to the address given to the Sheriff's Office by the tax assessor, and all were returned with the stamp notation "No Such Number." Mr. Anthaume explained that in a situation with multiple owners, one notice is sent for each property to the address given by the tax assessor, with the multiple owners listed as part of the address. Mr. Anthaume stated that the record keeping system in the Sheriff's Office has changed, but as far as he could tell, the Sheriff's Office has no record of any Mennonite notices in this matter. Further, Mr. Anthaume indicated that after reviewing the tax sale files, he was not aware of any documentation of any effort by the Sheriff's Office to find alternative addresses for George and Beatrice Adams and/or Lubertha D. Brantley.
Lloyd and Kitchen further supported their motion for summary judgment with their own affidavits. Lloyd attested that she is the Administratrix of the Succession of Lubertha D. Brantley, who owned an undivided one-half interest in each of the four lots sold. Lloyd further attested that she did not receive notice of any tax delinquency or tax sale, and that she reviewed Brantley's records and found no evidence of any notices. Kitchen attested that she is the sole heir of her parents, who together owned the other one-half interest in each of the four lots sold. Kitchen likewise attested that she received no notices of any tax delinquency or tax sale, and that her review of her parents' records revealed no such notice to them.
Davis contends that because the affidavits contain the signatures of two witnesses, the affidavits are actually authentic acts and cannot be considered in ruling on the motion for summary judgment. See La. Code Civ. Proc. Ann. art. 966B. This court has previously recognized that an affidavit is "a declaration or statement of facts personally known to the affiant, reduced to writing and sworn to by the affiant before an officer who has authority to administer oaths, such as a notary public." Patterson in Interest of Patterson v. Johnson, 509 So. 2d 35, 38 (La. App. 1 Cir. 1987). Moreover, "[t]here is no legal requirement that an affidavit must be made in any particular form." State v. Duhon, 95-2724 (La. 5/21/96), 674 So. 2d 944, 946. We find no authority for Davis's position that the witnesses' signatures render the affidavits inappropriate summary judgment evidence. Finally, insofar as Davis couches his argument in terms of the trial court failing to strike the affidavits, we note that although Davis did file a motion to strike, it does not appear that he filed a proposed order requesting that it be set for hearing as required by Rule 9.8A of the Rules for Louisiana District Courts. Nonetheless, we find the argument to be without merit.
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On appeal, Davis argues that summary judgment is inappropriate because Lloyd and Kitchen did not specify who should have received the tax notices for the properties. To reiterate, a fact is material when its existence or nonexistence may be essential to the plaintiffs' cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Carrollton Presbyterian Church, 77So. 3d at 979. Here, Lloyd and Kitchen established that the notices regarding these properties were undelivered and returned marked "No Such Number." The records of the Sheriff's Office do not reflect any notices sent to a different address. Thus, the name of the party that should have been listed above the address is not determinative in this case.
Davis also argues that Mr. Anthaume's deposition does not support the claim that proper notice was not given to the property owners. Davis correctly points out that Mr. Anthaume was not employed by the Sheriff's Office at the time of the tax sales at issue. However, Mr. Anthaume clearly testified as the custodian of records for the Sheriff's Office. He further testified that those records indicate that the tax delinquency and tax sale notices were returned to the Sheriff's Office with the notation "No Such Number." He saw no evidence of any further efforts to locate the property owners.
Due process requires that the property owner be properly notified before property can be sold for taxes. If notice requirements are not followed, the sale is absolutely null and void. Jamie Land Co., Inc. v. Touchstone, 06-2057 (La. App. 1 Cir. 6/8/07), 965 So.2d 873, 875. Notice must be sent by mail or other means certain to ensure actual notice if the party's name and address are readily ascertainable. Mennonite, 103 S.Ct. at 2712. Further, if the notice is returned as undelivered, the tax collector must take additional reasonable steps to notify the tax debtor of the delinquency. Lewis, 925 So. 2d at 1178. After reviewing the record de novo, we conclude that Lloyd and Kitchen met their burden of establishing that the notice requirements were not met in this case, rendering the resulting tax sales null and void.
Finally, Davis contends the trial court legally erred in annulling the judgment confirming and homologating the tax sales. He argues that since the trial court found only that the sales were nullities, as opposed to finding them to be absolute nullities, the trial court erred in annulling the judgment confirming and homologating the tax sales.
An absolute nullity is an act without legal force or effect. Smitko v. Gulf South Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So. 3d 750, 759. In Smitko, the Louisiana Supreme Court recognized that since rendition of Mennonite, the failure to give notice to a record property owner has been held to be a violation of the due process owed to the property owner, rendering the resulting tax sale null and void in its entirety. Id. Proof of such a due process violation would preclude confirmation of a tax sale. Id. Further, as the tax sales would be rendered null and void in its entirety, a subsequent judgment confirming and homologating the tax sales would also be null. The tax sales in this case are absolute nullities, as is the judgment confirming and homologating those tax sales.
CONCLUSION
For the foregoing reasons, we affirm the summary judgment declaring the tax sales and the judgment confirming and homologating the tax sales to be nullities. Costs of this appeal are assessed to Johnny R. Davis.
AFFIRMED.