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Succession of Pritchett

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017

SUCCESSION OF OLEE PRITCHETT
v.
CARL FARNO, ET AL. WILBERT LYNN PRITCHETT

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NOS. 2016-07269, 2016-10813, DIVISION "L-6" Honorable Kern A. Reese, Judge.

          Andrew W. Horstmyer COUNSEL FOR PLAINTIFF/APPELLANT

          Stephen D. Marx CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore

          Judge Marion F. Edwards, Pro Tempore.

         Appellant, Wilbert Lynn Pritchett, appeals two judgments of the trial court in these consolidated matters relating to the succession of his father, Olee Pritchett. For reasons that follow, we affirm both judgments.

         Olee Pritchett died intestate in New Orleans on September 12, 2001. At the time of his death, Mr. Pritchett owned immovable property located at 1011 Treme Street in New Orleans (the property), which was the only asset of the succession. Mr. Pritchett's sister, who lived out of state, paid the property taxes on the property until her death a few years later. No maintenance was done on the property since Mr. Pritchett's death, and the property fell into disrepair.

         Sometime in 2013, Carl Fanaro, the sole member and manager of Oyster Ventures, LLC (Oyster), a Louisiana limited liability company involved in property preservation and rehabilitation, became interested in the home. By this time the property was blighted and uninhabitable. It had no door, no electricity, and no water or gas connections. It was severely damaged by termites, and extensive vegetation covered the roof.[1] Mr. Fanaro began researching the ownership of the property. He learned that the property was owned by Olee Pritchett, who was deceased. He also learned from relatives that Mr. Pritchett had a surviving son who was still living somewhere in Louisiana. That son was reportedly indigent and spent some time in prison, and relatives had lost contact with him.

         The record shows that an "Affidavit of Intent to Possess" was filed by adjoining property owners pursuant to La. R.S. 9:5633 in November of 2015 seeking to acquire the property by acquisitive prescription.[2] However, it does not appear the neighbors were successful in their attempt at acquisition of the property. Subsequently, the property was transferred to Jean Marcel St. Jacques, LLC in a tax sale on May 5, 2016. The property had several blight liens and was the subject of a foreclosure for code enforcement liens by the City of New Orleans in the amount of $17, 235. A notice of seizure in that foreclosure action was issued as a prelude to a sheriff's sale as evidenced by a "Request for Issuance of Writ of Fieri Facias" filed by the city.

         In May of 2016, Oyster redeemed the property by paying the tax redemption cost of $10, 408.90 to the City of New Orleans. Oyster was also able to prevent the sheriff's sale in the foreclosure proceeding by paying the blight liens.

         In July of 2016, Oyster filed a "Petition for Administration" seeking to be appointed administrator of the succession of Olee Pritchett as a creditor of the succession pursuant to La. C.C.P. art. 3098A(3)[3]. The sworn descriptive list attached to the petition values the property at $40, 000, subject to $30, 000 in encumbrances. Oyster furnished the required security and was appointed administrator of the succession.

         The following day, Oyster filed a "Petition for Private Sale" of the property. The petition alleged that no effort has been made to satisfy the succession debts or maintain the property and that the property is in "substantial disrepair". The petition sought to sell the interest in the property to Deep South Home Buyers, LLC (Deep South) for $40, 000. An appraisal for that amount is attached to the petition and signed by Keith Toso, a licensed appraiser. Also attached is a document from the Orleans Parish Assessor's Office verifying the assessed value of the property. The sale was advertised, and on August 9, 2016, the court authorized the sale as prayed for in the petition. Since the purchase, Deep South has obtained a permit from the City to begin restoration of the property.

         The deceased's son, Wilbert Lynn Pritchett, [4] learned of the tax sale from a neighbor. He consulted an attorney, and on September 26, 2016, filed a petition to be substituted for Oyster as administrator of the succession. The petition also requests the return of the proceeds of the sale of the property to the succession. Oyster opposed the petition and filed an exception of no cause of action, as well as a motion to disqualify Mr. Pritchett based, on multiple felony convictions.

         On November 2, 2016, Wilbert Pritchett filed a separate action against several defendants including Oyster and Deep South[5], seeking to nullify the judgment homologating the tableau of distribution and to cancel the sale of the property to Deep South.

         The two matters were consolidated in the district court, but were heard separately and decided in two separate judgments. The trial court denied Wilbert Pritchett's petition to be substituted for Oyster as administrator of the succession in a judgment dated December 27, 2016, and denied the exception of no cause of action and the motion to disqualify (Judgment One). The trial court denied the petition to nullify the judgment homologating the tableau of distribution and to cancel the sale of the property to Deep South in a judgment dated February 22, 2017 (Judgment Two). Wilbert Pritchett appealed both judgments. The matters were consolidated on appeal.

         JUDGMENT ONE

         The first judgment on review is the December 27, 2016 judgment denying Wilbert Pritchett's petition to remove and substitute the succession administrator, forfeit bond and all other relief and claims asserted by Mr. Pritchett against the administrator, Oyster Ventures, LLC, with prejudice.

         In brief to this Court, Wilbert Pritchett assigns five errors relating to this judgment. Mr. Pritchett argues the decision to confirm Oyster's appointment as succession administrator based on creditor status violated his constitutional right to redeem the property as sole heir of the deceased. He further argues that the trial court erred in failing to inquire about the nature or origin of the debt in Oyster's claim to be a creditor of the succession. Wilbert Pritchett argues that Oyster acted prematurely by hiring an appraiser and negotiating the sale of the home before the appointment of the administration of the succession, and that Oyster filed the petition for appointment before it was actually a creditor of the succession.

         Mr. Pritchett also argues that he accepted the succession years earlier, was registered to vote at the address of the property, and has lived in the home since 1958. At the hearing Wilbert Pritchett testified that he lived in the property without electricity, water or gas connections and used a blanket for a front door. However, he acknowledged that he did not pay the taxes or the blight liens, and did not do any maintenance or repairs on the home because he was depressed and financially unable to do so. Mr. Pritchett also admitted to being a convicted felon.

         In support of his initial argument relating to the violation of his constitutional rights to redeem the property, Wilbert Pritchett argues that Louisiana Constitution Article VII 25(B)(2)[6], which is specific to blighted properties in the City of New Orleans and provides for an eighteen month redemption period, should be applied rather than La. C.C.P. art. 3097A(3).[7]

         Mr. Pritchett's argument is unconvincing. "It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character."[8] However, the rules of statutory construction apply only when there is a conflict between laws which deal with the same subject. In the matter before us there is no conflict between the cited constitutional article that provides for a shortened period for redemption of blighted property sold at a tax sale, and the code article setting forth persons qualified to become a succession representative. The subject of the two laws is different, and therefore, the laws are not in conflict.

         The property was purchased in a tax sale in May of 2016. Oyster redeemed the property in July of 2016. The relevant documents to support the redemption by Oyster are contained in the record and Mr. Pritchett does not dispute the validity of the documents or the relevant facts. As we understand his argument, Mr. Pritchett asserts he should have be given the full eighteen months provided for in Louisiana Constitution Article VII 25(B)(2) to redeem his father's property, regardless of the redemption by Oyster. He argues that the redemption by Oyster, which was less than four months after the tax sale, infringed on his constitutional due process rights to redeem his father's home within the eighteen months allowed by the Louisiana Constitution. Simply put, the period of eighteen months he should have had to redeem the property was unconstitutionally shortened by Oyster's act in redeeming the property sooner.

         We find no legal support for Mr. Pritchett's argument. Oyster points out that the succession benefited from the prompt action because the redemption prevented the sheriff's sale of the property that was formally requested by the city in July of 2016. It is also evident from the record that Mr. Pritchett did not pay any of the taxes or code enforcement fines due on the property, although he claimed to live in the property since 1958.

         "Any person may redeem tax sale title to property, but the redemption shall be in the name of the tax debtor."[9] The law does not restrict redemption of property to the owner or the heirs of the owner. Nor does the law provide for a waiting period before the redemption can occur. Louisiana Constitution Article VII, § 25(B)(2) provides that abandoned property in the City of New Orleans which is blighted "shall be redeemable for eighteen months after the date of recordation of the tax sale by payment…" Under the law Oyster had the constitutional right to redeem the property in Olee ...


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