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Chapman v. Settles

Court of Appeals of Louisiana, Fourth Circuit

February 20, 2019

JAMES CHAPMAN
v.
DOROTHY M. SETTLES COURT OF APPEAL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-09673, DIVISION "J" Honorable D. Nicole Sheppard, Judge.

          Deidre Katrina Peterson THE PETERSON LAW FIRM, LLC, COUNSEL FOR PLAINTIFF/APPELLANT.

          Eric Oliver Person, COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins.

          Dale N. Atkins Judge.

         Plaintiff/appellant, James Chapman, seeks to appeal the trial court's denial of his motion for summary judgment in which he sought a judgment of possession based on ten-year acquisitive prescription. This Court does not have appellate jurisdiction over a denial of summary judgment. For the reasons that follow, we convert the appeal to an application for supervisory writ, grant the writ, but deny the relief requested by Mr. Chapman.

         BACKGROUND

         James Chapman purchased the property at 308-310 Cherokee Street from the City of New Orleans on June 14, 2005, for $15, 000.00. The City previously obtained ownership of the same property via tax sale in August 1988 after Ms. Dorothy Settles failed to pay her property taxes.

         The City of New Orleans held the property for approximately 17 years before Mr. Chapman purchased the property at a Sheriff's auction in 2005 pursuant to former La. R.S. 33:4720.11 (repealed in 2008). The Act of Sale between the City of New Orleans and Mr. Chapman provides: "pursuant to La. R.S. 33:4720.11, et seq., Seller does hereby grant, bargain, sell, convey, assign, transfer, set over and deliver, without warranty of title, but with full substitution and subrogation in and to any and all actions of warranty which it has or may have against any and all preceding owners or vendors, unto Purchaser, the [property]."

         In 2016, having held the property for more than ten years, Mr. Chapman filed a Petition for Declaratory Judgment by Adverse Possession, which named the prior owner, Ms. Dorothy M. Settles, as the defendant. Mr. Chapman's petition alleges that he has been in possession of the property as owner since the Act of Sale, June 14, 2005; he has openly possessed and maintained the property as his own, without interruption; and he has continued to pay taxes on the property.

         Ms. Settles filed an Answer and Reconventional Demand, denying that Mr. Chapman could own the property because, Ms. Settles claims, she did not receive actual notice of the tax sale in accordance with her due process rights. The reconventional demand states that Ms. Settles acquired the property through a Judgment of Possession issued in succession proceedings in 1983. Ms. Settles' reconventional demand further acknowledges that Mr. Chapman purchased a claim over the subject property.

         Mr. Chapman filed a motion for summary judgment seeking a judgment of possession based on ten-year acquisitive prescription. In opposition to the motion for summary judgment, Ms. Settles and her son submitted affidavits indicating that P.O. Box 764 was never a proper address for Ms. Settles. She argued that Mr. Chapman is not entitled to ten-year acquisitive prescription because he does not hold just title.

         At the summary judgment hearing, the court found that the tax collector was required to send to each taxpayer by certified mail, return receipt requested, notice of the delinquency and the sale, pursuant to former La. R.S. 47:2180, which was in effect at the time of the sale. The district court denied the motion for summary judgment, stating that "it is unclear whether Ms. Settles ...


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