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Alpha Capital U.S. Bank v. White

Court of Appeals of Louisiana, First Circuit

December 21, 2018


          On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. C634083, Honorable Timothy E. Kelley, Judge Presiding

          Dele A. Adebamiji Felicia E. Adebamiji Baton Rouge, Louisiana, Counsel for Defendant/Appellant Zenobia A. White.

          Melissa T. Castille Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Alpha Capital.


          McCLENDON, J.

         This appeal arises from an action to quiet title on certain immovable property brought by a tax sale purchaser who acquired a tax sale certificate on the property. The trial court ruled in favor of the plaintiff. For the reasons that follow, we affirm the trial court's judgment. We deny the relief requested by the plaintiff in its answer to the defendant's appeal.


         This matter originally came before the court in 2016 on appeal filed by the defendant, Zenobia A. White. See Alpha Capital U.S. Bank d/b/a Alpha Capital v. Zenobia A. White, 16-0261 (La.App. 1 Cir. 10/31/16), (unpublished) 2016 WL 6427738. However, because the trial court had not ruled on Ms. White's motion for new trial, the appeal was premature, and the case was remanded to the trial court. The motion for new trial was subsequently denied, and Ms. White filed the instant suspensive appeal challenging the trial court's judgment granting Alpha Capital U.S. Bank d/b/a Alpha Capital's motion for summary judgment, dismissing her petition to annul, quieting Alpha Capital's tax title, and recognizing Alpha Capital as owner of the subject property.

         As set forth in this court's prior opinion, the subject property is located at 3250 Lone Oak Drive in East Baton Rouge Parish and was purchased by Ms. White in 2000. Ms. White failed to pay the ad valorem taxes due on the property in 2010. In April 2011, the Parish of East Baton Rouge sent notice of the delinquent taxes to Ms. White by certified mail to 1375 Francis Harriet Drive, Ms. White's previous address. The notice was returned as "Unclaimed Unable to Forward."

         As a result of the tax delinquency, a tax sale was conducted by the Sheriff and Tax Collector for East Baton Rouge Parish on June 6, 2011. Alpha Capital purchased the tax sale certificate. On June 30, 2011, Alpha Capital's tax sale certificate was recorded in the East Baton Rouge Parish conveyance records; the certificate specifically states that the tax debtor or any interested person has three years from the date of recordation to redeem the subject property. Thereafter, on October 2, 2013, Alpha Capital sent a Legal Notice of Right to Redeem Tax Sale by regular and certified mail to Ms. White at both the 1375 Francis Harriet Drive address and the 3250 Lone Oak Drive address. The certified letter sent to Ms. White at 3250 Lone Oak Drive was received and signed for on Ms. White's behalf. Ms. White did not redeem the tax sale certificate, and the redemption period lapsed on June 30, 2014.

         On October 6, 2014, Alpha Capital filed suit to quiet title. Ms. White responded by filing, in proper person, a petition to annul tax sale on November 20, 2014.[1] On December 17, 2014, Alpha Capital filed its answer and affirmative defenses to the nullity suit. Alpha Capital filed a motion for summary judgment on June 3, 2015, seeking to dismiss Ms. White's petition to annul the tax sale and requesting judgment quieting the tax title of the subject property and recognizing it as owner of the subject property. The exhibits Alpha Capital attached to its motion for summary judgment included a certified copy of the tax sale certificate; the envelope sent by East Baton Rouge Parish in April 2011 that was returned as undeliverable; the affidavit of the title abstractor for Alpha Capital regarding the mailing of the legal notice to Ms. White of her right to redeem the tax sale at the 3250 Lone Oak Drive address; the mailed legal notice to the same address; the signed return receipt of the legal notice; and the returned unclaimed envelope that Alpha Capital sent to Ms. White at the 1375 Frances Harriet Drive address in October 2013.[2] Ms. White did not file an opposition to the motion. Following a hearing on December 14, 2015, at which Ms. White was present but unrepresented, the trial court granted Alpha Capital's motion for summary judgment. The trial court signed a judgment that date, confirming and quieting Alpha Capital's tax title.


         Alpha Capital's motion for summary judgment was filed in June 2015. Under the law in effect at the time, as well as the current version of LSA-C.C.P. art. 966, appellate courts review motions for summary judgment de novo, using the same criteria that govern the trial court's determination of whether the motion should be granted.[3] See LSA-C.C.P. art. 966 (prior to 2015 La. Acts, No. 422 §1, eff. Jan. 1, 2016). Thus, the appellate court asks the same questions as the trial court, i.e. whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See Barrilleaux v. Bd. of Sup'rs of Louisiana State Univ., 14-1173 (La.App. 1 Cir. 4/24/15), 170 So.3d 1015, 1019, writ denied sub nom. Barrilleaux v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 15-1019 (La. 9/11/15), 176 So.3d 1048.

         Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B(2); Tomaso v. Home Depot, U.S.A., Inc., 14-1467 (La.App. 1 Cir. 6/5/15), 174 So.3d 679, 681. The summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action." LSA-C.C.P. art. 966A(2). The purpose of the procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 769 (per curiam). The interpretation of a statute is a question of law that may be decided by summary judgment. See Louisiana Workers' Comp. Corp. v. Landry, 11-1973 (La.App. 1 Cir. 5/2/12), 92 So.3d 1018, 1021, writ denied, 2012-1179 (La. 9/14/12), 99 So.3d 34.

         The mover bears the burden of proving he is entitled to summary judgment. LSA-C.C.P. art. 966C(2). If the mover will bear the burden of proof at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Hines, 876 So.2d at 766. Such an affirmative showing will then shift the burden of production to the party opposing the motion, requiring the opposing party to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery. Id.


         Ms. White maintains that her due process rights were violated because she did not receive notice of the delinquent taxes and notice of the tax sale prior to the issuance of the tax certificate concerning her property. It is undisputed that the East Baton Rouge Parish tax collector sent notice of the tax delinquency and of the tax sale to Ms. White's previous address, not the address of the subject property. The notice was returned as unclaimed, and no additional notices were sent prior to the tax sale. Ms. White contends that, without proper pre-sale notice, the tax sale was an absolute nullity, and the trial court erred in granting summary judgment. In contrast, Alpha Capital insists that the timely post-sale notice received by Ms. White, which advised her of her redemption rights, satisfied the requirements of due process pursuant to current law. Alpha Capital argues that this notice gave Ms. White ample time to redeem the tax sale certificate and retain her property. Ms. White does not dispute that she received the notice mailed to her by Alpha Capital within the redemptive period. Alpha Capital alleges that Ms. White failed to take action to redeem the property within the redemptive period; therefore, she may not pursue a redemption nullity as a matter of law.

         By means of 2008 La. Acts, No. 819, effective January 1, 2009, the Louisiana Legislature comprehensively amended, restated, and organized the law governing the payment and collection of property taxes, tax sales, and adjudicated property. Act 819 enacted a new Chapter 5 of Subtitle III of Title 47 of the Louisiana Revised Statutes of 1950.[4] Some of the stated purposes of Act 819, also known as the 2008 revision, were to encourage the payment and efficient collection of property taxes, to provide a fair process for the redemption of tax sale property, and to encourage the return of such properties to commerce "through clear procedures that allow interested persons to carry out the ...

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