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Barrie v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

May 23, 2018

JUDY BARRIE
v.
CITY OF NEW ORLEANS AND TIFFANY A. ROMANO

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-11343, DIVISION "D-12" Honorable Nakisha Ervin-Knott, JUDGE

          John A. E. Davidson Christopher J. Davidson DAVIDSON & DAVIDSON, APLC 2901 COUNSEL FOR PLAINTIFF/APPELLEE.

          Eric O. Person COUNSEL FOR DEFENDANT/APPELLANT.

          (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dale N. Atkins).

          Dale N. Atkins Judge.

         Defendant-Appellant, 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.

         FACTS AND PROCEDURAL HISTORY

         This 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[1] and December 6, 2011. Notices of the hearings and judgments were sent to Romano at 5930 Monticello Avenue in Dallas, Texas.

         On 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 language:

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.

         Petition, ¶ VII.

         On 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.

         A 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.

         On 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.

         ASSIGNMENTS OF ERROR

         Romano 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.

         DISCUSSION

         The Long-Arm Service on Romano Satisfied the Requirements of Due Process

         In 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.

         At the 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.[2] Thus, under Louisiana's long-arm statute, service by certified mail was authorized.[3] "Service of process so made has the same legal force and ...


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