FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-11343,
DIVISION "D-12" Honorable Nakisha Ervin-Knott,
A. E. Davidson Christopher J. Davidson DAVIDSON &
DAVIDSON, APLC 2901 COUNSEL FOR PLAINTIFF/APPELLEE.
O. Person COUNSEL FOR DEFENDANT/APPELLANT.
composed of Chief Judge James F. McKay, III, Judge Daniel L.
Dysart, Judge Dale N. Atkins).
N. Atkins Judge.
Tiffany A. Romano ("Romano"), challenges the
district court's order granting summary judgment in favor
of Plaintiff-Appellee, Judy Barrie ("Barrie"), and
declaring Barrie the owner of the property located at 122
16th Street in New Orleans. For the reasons that
follow, we find that the judgment of the district court
should be reversed.
AND PROCEDURAL HISTORY
matter concerns ownership of the property located at 122
16th Street in New Orleans ("the
property"), which became blighted in the aftermath of
Hurricane Katrina. Romano, the record owner, had moved to
Dallas, Texas around the time of the hurricane, leaving the
property unoccupied. Following administrative hearings, the
property was adjudicated a public nuisance due to blight on
two occasions, on July 22, 2009 and December 6, 2011. Notices of
the hearings and judgments were sent to Romano at 5930
Monticello Avenue in Dallas, Texas.
December 13, 2011, the property was posted on the City of New
Orleans ("City") Blight Status website. In May
2012, Barrie filed an Affidavit of Intent to Possess under
La. R.S. 9:5633(2), which provides for three-year acquisitive
prescription of blighted properties if various statutory
requirements are met. Over the next six months, Barrie
attempted to comply with the various filing and posting
requirements of La. R.S. 9:5633, took corporeal possession,
and on November 5, 2012, Barrie applied to the City for a
demolition permit for the property. The City denied the
permit based on its practice of not granting demolition
permits for non-title owners. On December 6, 2012, Barrie
filed a Mandamus Petition against the City and Romano,
seeking an order directing the City to issue a demolition
permit to Barrie. The petition also included the following
Petitioner hereby seek[s] to serve Tiffany A. Romano with
notice of these proceedings in order that she might present
evidence that the property was not declared blighted by the
City of New Orleans on July 22, 2009, and further to assert
any opposition she might have to the demolition of said
property or the recognition of Judy Barrie as sole owner of
the property upon completion of said demolition.
March 3, 2013, long-arm service of the citation and mandamus
petition was sent via certified mail to Romano at the
Monticello address, but it was returned unclaimed.
hearing on the mandamus petition was held on July 26, 2013.
The City opposed the mandamus arguing that Barrie had not
complied with the requirements of La. R.S. 9:5633, and citing
its practice of not issuing demolition permits to non-title
owners such as Barrie. During the court's colloquy with
counsel, the district judge specifically asked whether
demolition was required to ameliorate a public safety issue
(to which Barrie's counsel responded in the affirmative),
and if Barrie would be willing to indemnify the City for any
damages claimed by Romano (also eliciting an affirmative
response). On August 7, 2013, the district court entered its
judgment directing the issuance of mandamus ordering the City
to issue the demolition permit. The district court
specifically included language requiring Barrie to indemnify
the City for any damage claims brought by Romano. On October
30, 2013, the City issued a demolition permit, and on
November 13, 2013, the City issued a certificate of
completion for the permitted work.
December 12, 2013, Barrie filed her First Supplemental and
Amending Petition to Quiet Title, Injunction and Appointment
of Curator Ad Hoc. A curator was appointed on December 13,
2013. Subsequently, the curator located Romano who retained
counsel. Through her attorney, Romano filed an Answer and
Reconventional Demand on February 4, 2014. In her pleadings,
Romano alleged, inter alia, that she was entitled to
damages because Barrie had not complied with the requirements
of La. R.S. 9:5633 and unlawfully demolished the improvements
to the property. Barrie filed an Answer and Reconventional
Demand on March 27, 2014, and on July 7, 2017, Barrie filed
an Exception of Res Judicata, arguing that the issues raised
in Romano's reconventional demand were barred by the
judgment in the first (mandamus) suit. Following a hearing on
the res judicata issue, the district court granted summary
judgment quieting title and naming Barrie the sole owner,
based on its finding that res judicata barred Romano's
claims. This timely devolutive appeal followed.
asserts that the district court erred in the following
particulars: (1) ruling that the issue of ownership and
judgment was barred by res judicata, because the August 7,
2013 mandamus judgment was limited to the issue of the
demolition permit; (2) ruling that the August 7, 2013
Judgment was res judicata on the issue of whether Barrie had
complied with all requirements of La. R.S. 9:5633, when
Louisiana R.S. 9:5633 was not mentioned in that judgment; (3)
ruling that the allegations that Barrie did not comply with
La. R.S. 9:5633 were first raised in 2017, when those claims
were raised in Romano's Answer and Reconventional Demand
filed on February 4, 2014; and (4) ruling that the
appointment of a curator ad hoc was not necessary
under La. R.S. 13:3204(B), because Barrie did not prove that
notice required by due process was afforded to Romano. We
address each individually; because we consider it a threshold
issue, we address the due process/notice question first.
Long-Arm Service on Romano Satisfied the Requirements of Due
Romano's fourth assignment of error, she argues that
because she did not receive adequate notice of the mandamus
suit, the district court erred in failing to appoint a
curator ad hoc to represent her interests in the
mandamus proceeding. This issue raises a question of law, and
thus we review it de novo. Durio v. Horace
Mann Ins. Co., 2011-0084, p. 14 (La. 10/25/11), 74
So.3d 1159, 1168.
time Barrie's mandamus action was filed, Romano was a
resident of Texas. However, her ownership of real property in
Louisiana made her subject to personal jurisdiction
here. Thus, under Louisiana's long-arm
statute, service by certified mail was
authorized. "Service of process so made has the
same legal force and ...