Gulotta v. Cutshaw

• Decision Date: 31 January 1972
• Docket Number: No. 8677,8677
• Citation: 258 So.2d 555
• Parties: George GULOTTA et al. v. Lelia O. CUTSHAW.
• Court: Court of Appeal of Louisiana — District of US

Page 555

258 So.2d 555

George GULOTTA et al. v. Lelia O. CUTSHAW.

No. 8677.

Court of Appeal of Louisiana, First Circuit.

Jan. 31, 1972.

Rehearing Denied March 22, 1972.

Writ Granted April 18, 1972.

William O. Templet, of Middleton & Templet, Plaquemine, for appellant.

Joseph B. Dupont, of Dupont & Dupont, Plaquemine, for appellees.

Before LANDRY, BLANCHE and TUCKER, JJ.

LANDRY, Judge.

Defendant appeals from a declaratory judgment rendered in favor of plaintiffs decreeing null and void, for lack of assessment, a tax sale to defendant's author in title, and decreeing plaintiffs owners of certain real property situated in Iberville Parish. We reverse and dismiss plaintiffs' action as of nonsuit on the ground that an action for declaratory judgment is not appropriate in this instance.

The allegations of plaintiffs' petition and the evidence show that petitioners claim ownership of property described as the first and second lots 14, Marengo Subdivision, Iberville Parish, each containing 25 acres of land, as heirs of Carlo Gulotta, husband of Mary C. Gulotta. The property was acquired by Gulotta on December 21, 1904. Subsequently Gulotta conveyed a one-third interest in the land to third parties but reacquired same in 1907. The property was duly assessed in Gulotta's name for the years 1907 through 1911, and taxes paid thereon. Thereafter the property disappeared from the tax rolls of Iberville Parish and did not reappear thereon until 1958, in which year it was assessed in the name of the Estate of Walter S. Row. Taxes assessed in Row's name for the year 1958 were not paid, the property was duly advertised for sale for nonpayment of the taxes assessed in Row's name, and sold to defendant Lelia O. Cutshaw on March 20, 1959, after full compliance with all legal requirements. Neither plaintiffs nor defendant were in physical possession of the property when this action was instituted.

It is alleged and conceded that Row had no record title of subject property when the assessment thereon was made in his name for the year 1958. Judgment was rendered December 10, 1951, placing Row's heirs in possession of his estate. The judgment does not include subject property. It appears, however, from argument of counsel for defendant before the trial court that in a proper action, when the tax sale is directly attacked, that subject tracts were inadvertently omitted from a sale wherein Row acquired other tracts in Marengo Subdivision.

The date of Carlo Gulotta's death is not of record. The judgment of possession rendered in his succession August 3, 1925, does not include subject property. On February 23, 1959, judgment of possession was rendered in the Succession of Angelina Gulotta, daughter of Carlo and Mary C. Gulotta, and wife of Antonio Rizzo, recognizing her named children as owners of their mother's share in subject property, and placing them in possession thereof. By judgment dated June 18, 1962, judgment was rendered in the Succession of Mary C. Marino, widow of Carlo Gulotta, recognizing plaintiffs as owners of all said decedent's interest in subject property. On February 19, 1959, supplemental judgment was rendered in the Succession of Carlo Gulotta recognizing his widow, M. Marino Gulotta, and the remaining plaintiffs herein, as decedent's heirs, and as such, owners and entitled to possession of subject property in certain proportions. By letter dated March 23, 1960, the assessor of Iberville Parish directed the Sheriff to assess subject property to plaintiffs for the years 1957, 1958 and 1959. Pursuant thereto the property was placed on the rolls as directed and taxes for the years 1957, 1958, and 1959 paid thereon that same date by plaintiffs. Since defendant's acquisition in 1959, taxes on subject property have been annually assessed to her and paid. The property has also been assessed to plaintiffs for the years 1957, to date, it being noted, however, that taxes assessed to plaintiffs for the years 1957, 1958 and 1959 were not assessed and paid until March 23, 1960, after defendant had acquired the property at a tax sale.

Plaintiffs' petition alleges a dispute of ownership, that a justiciable issue exists between the parties, and that plaintiffs are entitled to a declaratory judgment determining the rights of the litigants regarding the property. It is significant that nowhere in plaintiffs' petition is the tax sale to defendant assailed as being void. The sole reference to any purported infirmity in defendant's tax title is contained in paragraph 8 of the petition which reads in full as follows:

'8.

The following described property, appeared again on the tax rolls in the year 1958, without an indication of acquisition by Row such as a sale, succession, etc., in the estate of Walter S. Row and was sold for taxes, March 20, 1959, in sale #6886, recorded in C.B. 148, E. 204, for $15.28 to Leila O. Cutshaw and has been assessed in Leila O. Cutshaw's name ever since, to-wit:

'Front and back lot 14 plantation Maringo 50 acres."

During trial plaintiffs attempted to introduce evidence: (1) which would show that defendant was in bad faith and guilty of fraud in conspiring to have the property assessed in Row's name for the year 1958, knowing that Row had no interest in the land, and (2) that the tax sale was an absolute nullity and therefore not immune from attack after expiration of the five year prescriptive period provided for in La.Const. Art. X, Section 11.

Defendant timely objected to any and all evidence which would show her alleged fraud or that the tax sale in question was an absolute nullity and therefore exempt from the effect of the prescriptive period of the cited constitutional provision. The basis of defendant's objections was that such proof would constitute a prohibited enlargement of the pleadings. Counsel for defendant pointed out to the trial court that the petition was devoid of either allegations of fraud or contention that the tax sale was a nullity and should be declared so.

Over defendant's objections, the trial court permitted plaintiffs to introduce evidence to establish fraud on defendant's part. After hearing the evidence, the court concluded plaintiffs failed to prove the charge and dismissed this issue from the suit.

Despite defendant's timely objection, the lower court also permitted plaintiffs to introduce evidence to establish that the estate of Walter S. Row never owned an interest in subject property because the records of Iberville Parish failed to disclose any acquisition of the land by said decedent. Despite defendant's protests that the evidence was inadmissible because the tax sale was not directly attacked as being void, the lower court also...