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Jefferson Parish School Board v. Timbrian LLC

Court of Appeals of Louisiana, Fifth Circuit

May 9, 2019




          COUNSEL FOR DEFENDANT/APPELLANT, TIMBRIAN, LLC Scott L. Sternberg, Michael S. Finkelstein, Joseph R. Marriott

          COUNSEL FOR INTERVENOR/APPELLEE, PARISH OF JEFFERSON Michael G. Fanning, Guice A. Giambrone, III, Richard E. Gruner, Jr.

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson


         This appeal arises from a property dispute in Jefferson Parish, Louisiana. Appellant, TimBrian, L.L.C., challenges the granting of a July 2017 Motion for Summary Judgment in favor of Jefferson Parish, which summarily declared Jefferson Parish owner of a disputed piece of immovable property. For the following reasons, we reverse the district court's judgment granting summary judgment in favor of Jefferson Parish and affirm the district court's judgment denying TimBrian's Motion for Summary Judgment. This matter is remanded for further proceedings consistent with this opinion.


         The parties to the instant appeal, TimBrian, L.L.C. ("TimBrian"), [1] Jefferson Parish School Board ("the School Board"), and Jefferson Parish, have previously sought review from this Court regarding a different set of procedural issues arising in this case and stemming from the same basic facts reiterated below.[2]

         The property in dispute in this case ("the Property") has, for many years, been used by the School Board as a playground in the front of Metairie Academy for Advanced Studies located on Metairie Road in Jefferson Parish.[3] TimBrian acquired the Property at a tax sale held by the Sheriff and Ex-Officio Tax Collector for Jefferson Parish in exchange for payment of $111, 318.29, which included unpaid property taxes and other costs. A Tax Sale Certificate dated September 27, 2010, was recorded in the Jefferson Parish Clerk of Court's conveyance records on November 4, 2010.

         TimBrian filed a Petition for Monition in the 24th Judicial District Court on May 19, 2014 to cure any defects in the tax sale and to quiet title to the Property. On August 13, 2014, the district court in that matter rendered a "Judgment Confirming and Homologating Sale," which perfected TimBrian's title to the Property. This judgment was recorded in the Jefferson Parish conveyance records on August 13, 2014.

         On December 22, 2014, the School Board filed a "Petition to Annul Tax Sale," naming TimBrian as a defendant. The School Board alleged the Property, which TimBrian purchased at the tax sale, included portions of land owned by the School Board and further alleged the tax sale was an absolute nullity. The School Board prayed for a judgment declaring it owner of the portions of the Property described in the petition, as well as for judgment nullifying the tax sale, nullifying the judgment homologating the tax sale, cancelling the inscriptions of the tax sale, and homologating judgment from the conveyance records.

         On February 10, 2015, TimBrian filed an answer, exceptions and a reconventional demand seeking damages against the School Board, and a declaratory judgment naming TimBrian as the owner of the Property. The School Board subsequently filed its first supplemental and amending petition to annul the tax sale on April 1, 2015, which added Jefferson Parish as a defendant to the proceedings and alleged that Jefferson Parish owned the Property. The School Board further alleged that it had enjoyed possession of the Property since 1939, and that it had acquired predial servitudes of use, passage and right of way through its possession, thereby, entitling it to notice of the tax sale. Thus, the School Board sought a declaratory judgment recognizing its predial servitudes. It also alleged that, as the true owner of the Property, Jefferson Parish was also entitled to notice of the tax sale proceedings and bore the responsibility to attack and seek to nullify the tax sale and judgment of homologation to protect the School Board's peaceful possession of the Property.

         On June 4, 2015, the School Board filed a second supplemental and amending petition, which contained minor amendments to its prior allegations.[4] In its answer to the amending petitions to annul the tax sale, TimBrian incorporated its reconventional demand, including an eviction claim alleged against the School Board. In response to the original, first amending and second amending petitions, Jefferson Parish filed an answer and cross-claim against TimBrian and the School Board seeking a declaratory judgment recognizing Jefferson Parish as the owner of the Property.

         On May 23, 2016, Jefferson Parish filed a motion for summary judgment seeking a declaration recognizing it as owner of the Property and for judgment dismissing TimBrian's reconventional demand. The district court denied the motion as premature due to outstanding discovery issues. After completing additional discovery, Jefferson Parish and the School Board filed a motion to re-urge the previously filed summary judgment motion. In response, TimBrian filed an opposition and a cross-motion for summary judgment seeking dismissal of Jefferson Parish's cross-claim.

         The district court heard oral argument on both summary judgment motions, and entered a judgment on July 21, 2017, granting Jefferson Parish's motion for summary judgment. In its judgment, the district court declared that "Jefferson Parish is the owner of the property at issue by dedication from Hypolite de Courval in the year 1837." The judgment also denied TimBrian's motion for summary judgment and further stated that "all reconventional demands of defendant TimBrian, LLC asserting ownership of the property at issue are hereby DISMISSED." The judgment did not address the claims alleged by the School Board against Jefferson Parish and TimBrian.

         On July 31, 2017, Jefferson Parish, the School Board, and TimBrian filed a timely "Joint Consent Motion for New Trial" requesting that the district court amend the July 21, 2017 judgment to include a legal description of the Property. The district court granted the motion for new trial and amended the judgment on August 1, 2017. On August 31, 2017, TimBrian filed a motion for devolutive appeal, which the district court granted. On March 28, 2018, this Court dismissed TimBrian's appeal without prejudice and remanded it for further proceedings, finding that this Court lacked appellate jurisdiction over the matter because "the judgment declaring Jefferson Parish as the owner of the Property [was] not designated as a partial final judgment pursuant to La. C.C.P. art. 1915(B)."[5]

         On May 9, 2018, the parties filed a joint motion to have the amended July 21, 2017 judgment declared a partial final judgment pursuant to La. C.C.P. art. 1915(B)(1), which was granted on May 10, 2018. On May 16, 2018, TimBrian filed a motion for devolutive appeal.

         It is from the amended July 21, 2017 judgment that TimBrian appeals.

         ASSIGNMENTS ...

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