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Custer v. Gala Investments, L.L.C.

Court of Appeals of Louisiana, Fifth Circuit

December 16, 2014

PERRY T. CUSTER, JR.
v.
GALA INVESTMENTS, L.L.C.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 699-711, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

ROBERT ANGELLE ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT

SCOTT J. SONNIER ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLEE

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst

JUDE G. GRAVOIS JUDGE

Plaintiff/appellant, Perry T. Custer, Jr., appeals a summary judgment that upheld the validity of a tax sale of property owned by him at the time of the tax sale, despite his claims that he did not receive legally effective notice of the sale. For the reasons that follow, we vacate the judgment under review and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The relevant facts in this case are not in dispute. PTC Family Investments, L.L.C. ("PTC"), of which Mr. Custer is the sole and managing member, owned the property in question, located at 456 Pellerin Drive in Kenner, Louisiana.[1] PTC owned the property and was assessed for the property taxes in 2006, the year of the tax delinquency. It is undisputed that PTC received legally effective notice of the tax delinquency on March 22, 2007, which the Sheriff sent via registered mail pursuant to La. R.S. 47:2180[2] to PTC's principal place of business on Hastings Drive in Metairie, Louisiana, which was also Mr. Custer's home. The notice's return receipt was signed as received by Mr. Custer's step-daughter.

The first advertisement of the tax sale took place on May 10, 2007 in the manner required by La. R.S. 47:2180. On May 17, 2007, PTC transferred the Pellerin Drive property to Mr. Custer individually, which Act of Transfer was recorded on May 24, 2007 in the conveyance records of Jefferson Parish. At the time of the transfer, Mr. Custer also executed a mortgage in favor of BNC Mortgage, Inc. The second advertisement of the tax sale was made on June 7, 2007. The tax sale took place on June 13, 2007, resulting in the property being purchased by Gala Investments, L.L.C. ("Gala"). It is undisputed that Mr. Custer personally, as record owner of the property since May 24, 2007 and on the date of the tax sale, was not sent a notice of the pending tax sale by the Sheriff prior to the tax sale.

On March 24, 2011, Mr. Custer filed suit against Gala to annul the tax sale on the grounds that it was an absolute nullity because no notice of the tax sale was sent to him, personally, as record owner of the property at the time of the tax sale on June 13, 2007. Gala answered the petition. Mr. Custer filed a supplemental and amending petition on May 17, 2011, further alleging that BNC Mortgage, Inc., the mortgagee on the date of the tax sale, was likewise never furnished notice of the tax sale as required by law. On January 18, 2012, Gala filed a reconventional demand and a third-party demand, seeking to confirm its tax title, and also adding U.S. Bank, N.A. ("U.S. Bank"), the successor-in-interest to BNC Mortgage, Inc., as third-party defendant.

Mr. Custer answered the reconventional demand; however, U.S. Bank failed to answer or otherwise make an appearance. Gala obtained a default judgment against U.S. Bank, which was confirmed on April 1, 2013, and which has not been appealed or otherwise challenged.

On December 20, 2013, Gala filed a motion for summary judgment urging the Court to quiet title to the subject property. Gala offered into evidence a certified copy of the tax deed. Mr. Custer opposed the motion for summary judgment, arguing that he, personally, as record owner of the property on the date of the sale, did not receive notice of the tax sale as required by law. He attached to his opposition the duly recorded Act of Transfer by PTC to himself dated May 17, 2007, as well as his affidavit stating that he did not receive notice of the tax sale, either before or after the tax sale took place. Gala filed a reply to the opposition, attaching the return receipt of the delinquency notice signed by Mr. Custer's stepdaughter, as well as a printout from the Secretary of State's Office showing that PTC's registered agent and sole officer was Mr. Custer.

The matter came up for a hearing on February 12, 2014. The trial court held the matter open for supplemental briefing. The parties appeared for additional arguments on February 19, 2014, at which time the trial court ruled in favor of Gala, finding the tax sale valid. A written judgment to that effect was signed on February 28, 2014. This timely appeal followed.

On appeal, Mr. Custer argues that the trial court erred: 1) in finding that the Sheriff gave proper notice of the tax delinquency to the record owner at the time of the sale; 2) in failing to consider that the Sheriff did not send a notice of delinquency to the mortgagee; and 3) in ...


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