Breaux v. Cozy Cottages, LLC.

• Court: Court of Appeal of Louisiana
• Writing for the Court: SAUNDERS, Judge.
• Citation: Breaux v. Cozy Cottages, LLC., 151 So.3d 183 (La. App. 2014)
• Decision Date: 12 November 2014
• Docket Number: No. 14–597.,14–597.
• Parties: Samuel R. BREAUX, II v. COZY COTTAGES, LLC.

151 So.3d 183

Samuel R. BREAUX, II

v.COZY COTTAGES, LLC.

No. 14–597.

Court of Appeal of Louisiana, Third Circuit.

Nov. 12, 2014.

James M. Garner, Elwood FrancisXavier Cahill, Jr., John T. Balhoff, II, Paul R. Trapani, III, Sher Garner Cahill Richter Klein & Hilbert L.L.C., New Orleans, LA, for Defendant Applicant, Chicago Title Insurance Company.

David Frank Dwight, Stephen C. Dwight, Dwight Law Firm, Claude P. Devall, J. Lee Hoffoss, Jr., Donald Wayne McKnight, Hoffoss Devall, L.L.C., Lake Charles, LA, for Defendant Respondent, Cozy Cottages, L.L.C.

Hon. Cecil R. Sanner, District Attorney 38th JDC, Cameron, LA, for Respondent, Richard Abshire, Richcore, Inc., Jessica Abshire.

Charles Schrumpf, Law Offices of Oliver and Charles Schrumpf, P.L.C., Sulphur, LA, for Plaintiff Respondent, Samuel R. Breaux, II.

Dennis R. Sumpter, Sumpter Law Offices, Sulphur, LA, for Respondent, Dennis R. Sumpter.

James Huey Gibson, Allen & Gooch, Lafayette, LA, for Respondent, Charles K. Watts, Seale, Smith, Zuber & Barnette, Lawrence R. Anderson, Jr.

Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.

Opinion

SAUNDERS, Judge.

This is a case involving a dispute over title to immovable property located in Cameron Parish, Louisiana. Two parties claim title to the same tract of land from two separate chains of title. Samuel R. Breaux, II (hereafter “Plaintiff”) filed suit for declaratory judgment against Cozy Cottages, LLC (hereafter “Cozy Cottages”), seeking recognition of his right of ownership.

FACTS AND PROCEDURAL HISTORY

This case revolves around a title dispute over Lot 8, located in the Edmond Doiron Subdivision in Cameron Parish (hereafter “the property”). Lot 8 of the Edmond Doiron Subdivision in Cameron Parish came into being in 1883 when Edmond Doiron's children partitioned his property. His son, Edward Doiron, received Lot 8. Edward Doiron had ten children. One of them was Antoine Doiron. Antoine Doiron had no children, but was married to Mary Viola Doiron, who had a son, Lawrence Marsh.

Antoine Doiron died testate in 1952. His testament, executed on March 31, 1949, provided that his wife, Mary Viola Doiron, be given “use, enjoyment, rents, royalties, and income of and from all lands owned by me, or in which I may have an interest, in Cameron Parish, Louisiana, to have and to hold the same for her and during her natural life.” The next paragraph of the testament provided that the “reversion and remainder of my lands above mentioned, from and after the decease [sic] of my said wife, to my brothers and sisters, in fee simple, share and share alike.” A judgment of possession was signed on November 15, 1952, which decreed that Antoine Doiron's wife, Mary Viola Doiron, be “sent into possession, as owner, of the use and usufruct, and all emoluments, issuing and emanating from the rent, royalties, and incomes from that certain property, left by the deceased in Cameron Parish, Louisiana.” Then, the property is described. Finally, the next paragraph orders that Antoine Doiron's widow “be sent into possession, as owner, of the above estate, free and clear of any inheritance tax.”

Antoine Doiron's wife, Mary Viola Doiron, died in 1983. In 1988 and 1989, the Cameron Parish Tax Assessor's office sent notices of a tax sale in the name of the Viola Doiron Estate. It is undisputed that the notices were sent through Lawrence Marsh, the son of Mary Viola Doiron, who was the tax sale purchaser.

Lawrence Marsh was married to Mabel Marsh, and their son is Robert Marsh. Lawrence Marsh's testament willed his entire estate to his wife, Mabel. After Lawrence Marsh died, Mabel Marsh and Robert Marsh sold their interest in the property to Plaintiff.

Cozy Cottages claims title to the property at issue from a completely different chain of title, beginning with persons named Clarville Doiron and Isaac Doiron. Clarville Doiron sold part of the property to Clarence Turner on October 18, 1949. Isaac Doiron sold part of the property to Clarence Turner on March 22, 1958. The record contains no information as to who these persons may be or the source of their title. From the sales to Clarence Turner, the property changed hands multiple times, eventually leading to the purchase by Cozy Cottages from Richard, Jessica, and Marion Abshire, and the Abshire's company, Richcore Enterprises, in 2008. It is from this complicated set of facts that this dispute arises.

Plaintiff filed suit for declaratory judgment, claiming title to the property at issue following his purchase in 2005. Cozy Cottages claims an interest in the same property, following its purchase in 2008 from the Abshires and Richcore Enterprises. Cozy Cottages purchased title insurance from Chicago Title Insurance Company (hereafter “Chicago Title”) in conjunction with its 2008 purchase of the property. Through the course of several supplemental and amended third-party petitions, Cozy Cottages filed third-party demands against Chicago Title, seeking defense of Plaintiff's claims against it or damages, and damages for failing to cure additional defects in the title. All parties filed separate motions for summary judgment.

In its motion for summary judgment, Chicago Title sought dismissal of Cozy Cottages' claims against it, asserting:

1. Plaintiff has no claims against Cozy Cottages because the tax sales were absolute nullities for failure to give all owners notice of the tax sale, thus, Cozy Cottages has no claims against Chicago Title;

2. coverage under the insurance policy issued to Cozy Cottages terminated because Cozy Cottages failed to cooperate when it hired new counsel prior to consummation of a settlement negotiated by the law firm hired by Chicago Title to represent Cozy Cottages; and

3. Chicago Title has no duty to defend Cozy Cottages against the claims of Plaintiff because the policy provides that Chicago Title has the option to defend, tender policy limits, or settle with or pay parties other than the insured.

Cozy Cottages also filed a motion for summary judgment seeking dismissal of Plaintiff's claims against it, asserting that Plaintiff has no interest in the property because the tax sales were absolute nullities for failure to provide all owners with notice of the tax sale. All parties' motions for summary judgment were denied.

Chicago Title filed a writ application, No. 14–486, requesting review of the trial court's denial of its motion for summary judgment seeking to have Cozy Cottages' claims against Chicago Title dismissed. Cozy Cottages filed a writ application, No. 14–597, requesting review of the trial court's denial of its motion for summary judgment seeking dismissal of Plaintiff's claims against Cozy Cottages. Because there is an issue common to both writ applications, we consolidate the two writs and address them in a single opinion. We find the trial court did not err in failing to grant either motion for summary judgment and, thus, deny these writs.

STANDARD OF REVIEW

Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possibly useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988). This court has stated, “[t]he exercise of supervisory jurisdiction by appellate courts is within their plenary power. La. Const. art. 5, § 10. Appellate courts generally will not exercise such jurisdiction unless an error in the trial court's ruling will cause the petitioner irreparable injury or an ordinary appeal does not afford an adequate remedy.” Borrel's, Inc. v. City of Marksville, 05–48, p. 1 (La.App. 3 Cir. 6/1/05), 904 So.2d 938, 939 (citing Stevens v. Patterson Menhaden Corp., 191 So.2d 692 (La.App. 1 Cir.1966), writ denied, 250 La. 5, 193 So.2d 524 (1967) ).

“Appellate courts review summary judgments de novo, applying the same criteria that govern a trial court's determination of a motion for summary judgment.” Johnson v. State Farm Ins., 08–1250, p. 2 (La.App. 3 Cir. 4/1/09), 8 So.3d 808, 810. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). Thus, we “review[ ] the record de novo to determine whether there is any genuine issue of material fact.” Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12–1472, p. 5 (La.3/19/13), 112 So.3d 209, 214, cert. denied, ––– U.S. ––––, 134 S.Ct. 197, 187 L.Ed.2d 45 (2013).

DISCUSSION

Nullity of the tax sales

Chicago Title and Cozy Cottages maintain summary judgment dismissing the claims of Plaintiff is appropriate because notice of the tax sale was not given to the siblings of Antoine Doiron, the alleged naked owners of the property. Although there is no dispute that the siblings of Antoine Doiron or the heirs of the siblings of Antoine Doiron were not notified of the pending tax sale, we find summary judgment inappropriate on this issue.

Notice of a tax sale to the property owner is a prerequisite to the validity of the tax sale. Failure to give the requisite notice is a violation of Due Process and the subsequent tax sale is an absolute ity. Quantum Res. Mgmt., 112 So.3d 209. However, the notice requirement announced in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), will not serve to retroactively undo prescription that has already accrued. Quantum Res. Mgmt., 112 So.3d 209.

Antoine Doiron died in 1952. All succession rights are “governed by the law in effect on the date of the decedent's death.” La.Civ.Code art. 870(B). At the time of his death, former La.Civ.Code art. 1030 (1870), provided a...