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MACWCP II LLC v. Williams

Court of Appeals of Louisiana, First Circuit

September 15, 2017

MACWCP II LLC
v.
CHARLOTTE FAYE WILLIAMS

         On Appeal from the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C614201, The Honorable William Morvant, Judge Presiding

          James L. Maughan Zachary, Louisiana Attorney for Appellant, Charlotte Faye Williams

          Mary G. Erlingson Judson G. Banks Mary E. Colvin Baton Rouge, Louisiana Attorneys for Appellee, Sid J Gautreaux, III, Sheriff and Ex Officio Tax Collector for the Parish of East Baton Rouge

          Jessica C. Seale Metairie, Louisiana Attorney for Appellee, CR Properties 2015, LLC

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, J.

         This is an appeal of a summary judgment dismissing a third-party demand against Sid J. Gautreaux, III, Sheriff and Ex Officio Tax Collector for East Baton Rouge Parish, which was asserted in a suit to quiet tax title to property sold at tax sale. We reverse and remand for further proceedings.

         FACTS

         In 2008, property owned by Charlotte Williams, where she lived in a trailer with her family, was sold at tax sale for failure to pay 2007 ad valorem taxes in the amount of $32.00. In 2012, the holder of the tax deed filed a suit to quiet tax title.[1]In response, Ms. Williams claimed the tax sale was an absolute nullity and asserted a third-party demand against the Sheriff.

         Ms. Williams alleged she purchased the property in 1993 and faithfully paid taxes thereon in the amount of approximately $33.00 per year. She contends she was surprised when she received notice in 2007 that her 2006 taxes were $315.00, but paid the amount anyway. Ms. Williams claims she contacted the tax collector's office about the increase and was told the amount was correct. The 2006 tax was, in fact, incorrect, as she owed only $32.00.

         Ms. Williams alleges she received a letter in 2008 notifying her the 2007 taxes on the property had not been paid and, if left unpaid, the property would be sold. She claims she immediately called the tax collector's office and spoke to an employee who said Ms. Williams "made a big overpayment" in 2007, which was still being held in the tax collector's escrow account. Ms. Williams contends the employee told her the balance in the escrow account could be used to pay the 2007 taxes. Ms. Williams claims she instructed the employee to pay the outstanding taxes from the overpayment in the escrow account, and she was not asked to complete any additional paperwork. Ms. Williams contends she relied upon the agreement to satisfy the tax debt from the overpayment. But, the 2007 tax debt was not paid with those funds, resulting in Ms. Williams' property being sold. In 2012, months before this suit was filed, Ms. Williams received a $283.00 refund from the Sheriff, the amount of the 2006 tax overpayment.

         Ms. Williams alleges she had no knowledge her home was sold at tax sale until she was served with the petition to confirm tax title. She claims the sale occurred due to errors and omissions of the Sheriff, which she contends constitute willful, outrageous, reckless, or flagrant misconduct. Accordingly, in the event the tax sale was not declared an absolute nullity, Ms. Williams sought to recover from the Sheriff the value of her property, damages suffered during the litigation, and attorney's fees.

         On June 23, 2014, the trial court signed a judgment confirming and quieting the tax title. Ms. Williams did not appeal that judgment. The trial court later denied a motion for summary judgment filed by Ms. Williams seeking a declaration that the tax sale was null and void. Ms. Williams appealed; however, that appeal was dismissed since it was taken from a nonappealable interlocutory judgment. MACWCP II, LLC v. Williams, 2015-0876 (La.App. 1 Cir. 10/19/15) (unpublished action).

         Ms. Williams and the Sheriff then filed cross-motions for summary judgment relative to Ms. Williams' third-party demand. The Sheriffs motion asserted Ms. Williams could not meet her burden of proof at trial because she could not prove she actually spoke with someone in the Sheriffs office about applying the overpayment to her unpaid taxes. The Sheriff further alleged Louisiana Revised Statutes 47:2124 applies and provides him with immunity for the performance or failure to exercise his duties as tax collector, except when his acts or omissions constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. The Sheriffs motion for summary judgment additionally asserted Ms. Williams could not meet the heightened burden of proving his or his employees' acts were criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. Ms. Williams countered that summary judgment should be granted in her favor declaring the tax sale an absolute nullity or, alternatively, ordering the Sheriff to pay her damages and attorney's fees because the tax sale resulted from his failure to credit her overpayment held in escrow to her tax debt. The motions were heard on the same day, and the trial court granted the Sheriffs motion for summary judgment, finding Ms. Williams did not show she could prove she spoke with someone in the Sheriffs office, and even if she could, she could not meet the heightened burden of proof required by Section 47:2124 to prove an exception to immunity.

         Ms. Williams now appeals the November 30, 2016 judgment granting the Sheriffs motion for summary judgment and dismissing her claims against the Sheriff. She also asks this court to declare the June 23, 2014 judgment confirming and quieting the tax title an absolute nullity.

         DISCUSSION

         A motion for summary judgment shall be granted only if the motion, memorandum, and supporting documents show 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. Pro. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607, 610.

         A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F. The burden of proof is on the mover. See La. Code Civ. Pro. art. 966D(1). However, if the mover will not bear the burden of proof at trial on the matter before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must 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 adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. art. 966D(1). Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La.App. 1 Cir. 4/26/17), 220 So.3d 79, 82.

         The Sheriff moved for summary judgment, in part, on the basis that he is immune from liability to Ms. Williams pursuant to Section 47:2124, which pertinently provides:

B. Liability shall not be imposed on tax collectors or tax assessors or their employees based upon the exercise or performance or the failure to exercise or ...

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