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Tour Holdings, LLC. v. Larre

Court of Appeals of Louisiana, First Circuit

December 6, 2018

TOUR HOLDINGS, LLC.
v.
FRANK S. LARRE (a/k/a Frank 3. Larre), SOUTHERN TRACE INVESTMENTS, INC., THOMAS P. REEVES, JERRI GROSS REEVES, 3 P MORGAN CHASE BANK, N.A., TANIA O. PAZ, FIRST FRANKLIN FINANCIAL CORPORATION, and THEIR SUCCESSORS, HEIRS, and ASSIGNS

          On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2017-12482 Honorable Raymond S. Childress, Judge Presiding

          Jonathan R. Fleming Covington, Louisiana Counsel for Plaintiff/Appellee Tour Holdings, L. L.C.

          Jane Faia Mentz New Orleans, Louisiana Counsel for Defendant/Appellant Tania O. Paz

          BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.

          MCCLENDON, J.

         A tax debtor seeks review of a judgment confirming and quieting a tax title, asserting that she was not properly served with the underlying petition. Finding that the debtor's remedy under the circumstances is to file a petition for nullity with the trial court, we dismiss the instant appeal.

         FACTS AND PROCEDURAL HISTORY

         This dispute concerns the confirmation and quieting of tax titles obtained by Tour Holdings, L.L.C. Among the confirmed titles was a property in Mandeville, which was previously owned by Tania 0. Paz, a tax debtor. In its petition to quiet the tax title filed on May 30, 2017, Tour Holdings, L.L.C. indicated that Ms. Paz was "either located out of state or [her] whereabouts are unknown." A curator ad hoc was appointed to represent Ms. Paz in the proceedings, which resulted in a judgment rendered on October 26, 2017, that confirmed Tour Holdings, L.L.C.'s title to the Mandeville property.

         After the judgment was rendered against her, Ms. Paz filed the instant appeal, asserting that the judgment in favor of Tour Holdings, L.L.C. was absolutely null because she was not served with notice of the petition as required for a valid judgment under LSA-C.C.P. art. 1201.[1] She further contends that appointment of a curator ad hoc was not authorized under LSA-R.S. 47:2266 and that any attempt to complete service on Ms. Paz by serving the curator was improper and ineffective.

         DISCUSSION

         Absent an express waiver, citation and service thereof are essential in all civil actions. LSA-C.C.P. art. 1201. Under Louisiana law, a petition and citation for quieting tax title must be served on the defendant as in ordinary suits. LSA-R.S. 47;2266(A)(2). If a tax sale party is a nonresident of the state, is unknown, or his residence is unknown, the court shall appoint a curator ad hoc to represent him and receive service. Id.

         On appeal, Ms. Paz asserts that before a curator can be appointed to represent her, as authorized by LSA-R.S. 47:2226(A)(2), Tour Holdings, L.L.C. was required to make a reasonable and diligent effort to determine her whereabouts. See Security Homestead Ass'n v. Fuselier, 591 So.2d 335, 339 (La. 1991). Ms. Paz notes that she was never served with the original petition and citation. Ms. Paz also states that she resides at 3605 Connecticut Avenue, Kenner, Louisiana 70065. Ms. Paz contends that because she is a Louisiana resident, Tour Holdings, L.L.C.'s request for a curator implies that Ms. Paz's address was unknown and unable to be learned after a diligent search.

         Ms. Paz contends that there is evidence to support the conclusion that Mr. Joseph Todd Tournillon, member, apparent manager, and registered agent for service of process of Tour Holdings, L.L.C, knew or had learned of Ms. Paz's location before the "Petition to Quiet Tax Titles" was filed on May 30, 2017. Ms. Paz avers that her address was obtainable from a simple internet search of her name. Additionally, Ms. Paz asserts that Mr. Tournillon was in contact with her and communicated with her by telephone on several occasions. Ms. Paz avers that considering the foregoing, it is reasonable to conclude that no search, much less a diligent one, was ever made to determine her address.[2] Ms. Paz asserts that because she was not properly served with process as required by law, the judgment quieting the tax title is an absolute nullity. See LSA-C.C.P. arts. 1201 and 2002(A)(2) and Tunnard v. Simply Southern Homes, LLC, 07-0945 (La.App. 1 Cir. 3/26/08), 985 So.2d 166, 168.

         In opposition, Tour Holdings, LLC. maintains that nothing raised in Ms. Paz's assignments of error was submitted to the trial court. Rather, all issues relevant to her assignments of error are being presented to this court as a matter of first impression. Because these issues were not presented, Tour Holdings, LLC. notes that the ...


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