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Patton v. The Unopened Succession of Dearie

Court of Appeals of Louisiana, Fourth Circuit

October 11, 2017

CLYDE PATTON
v.
THE UNOPENED SUCCESSION OF ROY L. DEARIE AND CLIFFORD COONEY

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00597, DIVISION "F" Honorable Christopher J. Bruno, Judge

          Jonah Freedman JONAH FREEDMAN LAW, LLC COUNSEL FOR PLAINTIFF/APPELLEE.

          Eric Oliver Person ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT.

          (Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown).

          Paula A. Brown Judge.

         This matter involves the validity of title to property purchased in a tax sale ("the Property"). Defendants-Appellants, the Unopened Succession of Roy L. Dearie and Clifford Cooney, appeal the motion for summary judgment granted in favor of the Plaintiff-Tax Purchaser, Clyde Patton. The judgment granted Mr. Patton's Petition to Quiet Title (the "Petition"), conveying to him a 67% undivided ownership interest in the Property. For the reasons that follow, we affirm.

         FACTS AND PROCEEDINGS BELOW

         According to the Petition, the Property was assessed to Mr. Dearie. The Succession of Mr. Dearie was found delinquent in its payment of ad valorem taxes for 2011. The municipal address for the Property is 1006 Milan Street, New Orleans, Louisiana, 70115. As a result of the delinquency, the City of New Orleans, through its Tax Collector ("the City"), sent notice of the public tax sale to Mr. Dearie-via certified mail-at the Milan Street address, the contact address registered in the Conveyance Office for Orleans Parish. The certified mail receipt was signed for by C.E. Cooney[1] on August 7, 2012. The notice advertised the Milan Street property for a public tax sale scheduled to take place on September 25, 2012. On the date of the tax sale, Mr. Patton was the winning bidder and paid the delinquent taxes in the amount of $1, 109.74. Thereafter, on November 26, 2012, the City executed a tax sale certificate to Mr. Patton, which conveyed to him a 67% interest in the property. The certificate was recorded in the Notarial Archives of Orleans Parish on December 28, 2012.

         On January 19, 2016, Mr. Patton filed the Petition and requested a curator be appointed. The Petition named the Unopened Succession of Roy L. Dearie[2] (the "Unopened Succession") and Mr. Cooney[3] as defendants. Mr. Patton alleged that he had paid taxes and other assessments on the property from 2012 through 2016, which totaled $53, 124.12. He maintained that the three-year redemptive period had expired[4] since the recordation of his tax sale certificate. Hence, pursuant to La. R.S. 47:2266A(1), [5] as the owner and possessor of a valid tax sale certificate, he requested that his title to the property be confirmed and quieted against all other interests, claims, or encumbrances held by all duly notified persons. The Petition gave notice to the Unopened Succession and Mr. Cooney that title to the Property would be confirmed unless proceedings to annul were instituted within six months from service of citation of the Petition. The Petition also requested the appointment of a curator (the ―Curator') to represent the absent defendant, the Unopened Succession, and "his heirs, successors, administrators, or assigns, [ ] surviving spouse, if any, and their heirs, successors, administrators or assigns." After failed attempts to serve Mr. Cooney, Mr. Patton filed a Motion to Appoint a Special Process Server, which was granted on March 16, 2016.[6]

         The trial court appointed the Curator on January 19, 2016; the Curator was served on February 18, 2016. The Curator's answer, filed on March 1, 2016, denied the allegations of the Petition. The Curator's Note of Evidence represented the following: 1) all attempts to contact Mr. Cooney by telephone failed; 2) there had been no response to the "whereabouts" advertisements placed in the Times-Picayune on April 10, April 13, and April 15, 2016; 3) the internet people search engines did not yield any contact results; and 4) Mr. Cooney had not responded to the certified mail sent to the 1006 Milan Street address. The Note of Evidence also represented that no other heirs had contacted the Curator and that a succession for Mr. Dearie had not been opened.

         On July 18, 2016, Mr. Cooney and Patricia Deynoodt filed an answer, reconventional demand, and third party demand. Their answer alleged that Mr. Cooney and Ms. Deynoodt were heirs of Mr. Dearie and challenged the validity of the tax sale, claiming, in part, that Ms. Deynoodt and other unnamed heirs never received any pre-sale notice or post-sale redemption notice of the tax sale. The reconventional demand named Mr. Patton as a defendant. It alleged that the tax sale was null because Mr. Patton refused to provide a redemption figure to Mr. Cooney and the City's method of tax collection contained fees and charges that were not constitutional. In the third party demand, they contended that the underlying tax sale was invalid on its face. They argued that Louisiana law does not allow for less than 100% acquisition of the Property. Based on that argument, the Louisiana Attorney General was named as a defendant to defend the constitutionality of the 67% interest conveyed to Mr. Patton.[7]

         Mr. Patton denied the allegations of the reconventional demand.[8] On August 12, 2016, he filed a motion for summary judgment, requesting that the trial court grant the Petition. In the motion, he alleged summary judgment relief was appropriate because the Property had not been redeemed within the three-year statutory period and all notice requirements and other formalities of the tax sale procedure had been followed.

         The trial court conducted a hearing on the summary judgment motion on September 23, 2016. At the hearing, the Curator reiterated that she was unsuccessful in locating any of the heirs. The trial court found Mr. Cooney had not produced any countervailing evidence to show that he paid taxes on the Property, notified the other heirs of the tax sale litigation, or redeemed the Property within the statutory three-year period. Determining there were no issues of disputed fact and finding Mr. Patton had complied with the statutory notice requirements, the trial court granted Mr. Patton's motion for summary judgment. [9]

         Subsequently, Mr. Cooney and Ms. Deynoodt filed a motion for new trial. The motion alleged the trial court had not considered their claim that the transfer of 67% interest in the property acquired by way of a tax sale was unconstitutional. The trial court denied the motion.

         This devolutive appeal followed.

         DISCUSSION

         On appeal, Appellants raise as their only assignment of error that the trial court should have nullified the tax sale because all interested parties did not receive pre-sale and post-sale notice, in violation of the guarantees provided by the United States Constitution. Specifically, Appellants contend that with the exception of Mr. Cooney, Patricia Deynoodt and other heirs did not receive pre-sale or post-sale notice. Appellants claim that pursuant to La. R.S. 47:2156, all interested parties are required to be sent pre-tax sale notice, as well as post-tax sale notice; and of the two notices, post-sale notice is the "more important notice."

         I. Notice ...


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