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LLC v. Land & Structure, LLC

Court of Appeals of Louisiana, Fourth Circuit

April 5, 2017

ENGINE 22, LLC
v.
LAND & STRUCTURE, LLC LAND & STRUCTURE, L.L.C.
v.
MARIE EVA YAEGER KERN, MARIE FRANCIS KERN CUCULLU ENGINE 22, L.L.C. GREGORY K. SURREY, DAVID POSNER, CITY OF NEW ORLEANS

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00581C/W 2016-02612, DIVISION "M" Honorable Paulette R. Irons, Judge

          John A. E. Davidson Christopher J. Davidson DAVIDSON & DAVIDSON, APLC COUNSEL FOR PLAINTIFF/APPELLEE

          Lizette M. Radovic MILLER-RADOVIC, LLC COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)

          Madeleine M. Landrieu Judge

         The plaintiff, Engine 22, L.L.C. ("Engine 22"), filed an action in the district court to annul a tax sale of a certain property from the City of New Orleans ("the City") to the defendant, Land and Structure, L.L.C. ("Land and Structure"). Land and Structure filed a competing action to confirm its title to the property. These two actions were consolidated in the district court. Land and Structure asserted various exceptions in response to the suit to annul. The trial court rendered written judgment denying these exceptions on April 14, 2016. Land and Structure filed the instant appeal from that judgment, contending that the exceptions of no right of action, no cause of action and prescription were erroneously denied.

         JURISDICTION

         This court lacks appellate jurisdiction to review a judgment denying exceptions, which is an interlocutory, rather than a final, judgment. See La. C.C.P. arts. 1841, 2083; Box v. French Market Corporation, 593 So.2d 836 (La.App. 4thCir. 1992). However, as the motion for appeal was filed within the thirty-day time period allowed for taking a writ application, we exercise our discretion to convert the appeal to a writ application. We grant the writ application and consider the issues presented under our supervisory jurisdiction. See Stelluto v. Stelluto, 2005-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39.

         FACTS AND PROCEEDINGS BELOW

         There is no disagreement among the parties as to the essential facts of this matter. On November 20, 2003, the City acquired the property at issue as a result of the failure of the owners, Mr. and Mrs. Frank Kern, to pay their 1992 ad valorem taxes.

         In 2007, Engine 22 purchased the property from the City at a sale of abandoned property. The deed reflecting the sale to Engine 22 states: "Purchaser agrees to renovate, develop and/or resubdivide the property in accordance with the plans submitted by Purchaser to the City within 270 days from the date hereof…" The deed also provides that in the event the purchaser violates the obligations it has agreed to, the City may enforce the purchaser's obligations "by any means or remedy…allowed by law, " or may "revoke, rescind and dissolve this sale by ordinary, summary or executory process…." This deed was executed before two notaries, with Engine 22 signing on April 19, 2007, and the City's representative signing on December 18, 2007. For reasons not reflected in the record, this deed was not recorded in the public records until March 31, 2011, nearly three and a half years after its execution.

         After the deed was executed, but before it was recorded in the public record, the City conducted a tax sale for unpaid 2008/2009 ad valorem taxes by the prior owner, Mr. Kern. Land and Structure purchased the property at this tax sale, which was recorded on November 4, 2010. On June 19, 2011, Engine 22 filed a petition to annul the tax sale to Land and Structure. In its petition, Engine 22 alleges the sale should be nullified because the property was owned by the City and therefore not subject to taxation in 2008 and 2009. Alternatively, Engine 22 alleges the tax sale is an absolute nullity because there was no notice issued to Engine 22. Land and Structure asserted four exceptions to Engine 22's suit: no cause of action, no right of action, prescription and non-joinder of a party (the City). The trial court conducted a hearing on these exceptions on April 4, 2016 and signed a judgment denying them the same day. Engine 22 seeks review of the denial of three of the exceptions, namely; no cause of action, no right of action, and prescription.[1]

         DISCUSSION

         Exception of No ...


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