ICLP19, LLC v. The Unopened Succession of Starks

• Docket Number: 2024-CA-0655
• Decision Date: 06 June 2025
• Citation: ICLP19, LLC v. The Unopened Succession of Starks, 2024-CA-0655 (La. App. Jun 06, 2025)
• Parties: ICLP19, LLC v. THE UNOPENED SUCCESSION OF GERALDINE STARKS, ET AL.
• Court: Court of Appeal of Louisiana — District of US

1

ICLP19, LLC v. THE UNOPENED SUCCESSION OF GERALDINE STARKS, ET AL.

No. 2024-CA-0655

Court of Appeals of Louisiana, Fourth Circuit

June 6, 2025

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISHNO. 2023-00634 DIVISION "B"Honorable Marissa Hutabarat.

James E. Uschold, Mark J. Boudreau, JAMES E. USCHOLD, PLC, COUNSEL FOR PLAINTIFF/APPELLEE.

Charles L. Stem, Richard L. Traina, STEEG LAW FIRM, L.L.C.COUNSEL FOR DEFENDANT/APPELLANT.

Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson.

SANDRA CABRINA JENKINS, JUDGE.

This matter arises from a tax sale dispute.Appellant, Shawn Starks("Mr. Starks"), seeks review of the trial court's July 15, 2024 judgment, which dismissed his reconventional demand to annul tax sale with prejudice.For the reasons that follow, we convert the appeal to a supervisory writ and we affirm the trial court's July 15 2024 judgment.

FACTUAL AND PROCEDURAL HISTORY

Robert Earl Starks("Mr. Robert Starks") and Geraldine Starks("Mrs. Starks") were owners of property located at 4829 Tulip Street, New Orleans, Louisiana ("Property").On August 13, 2019, ICLP 19, LLC ("ICLP 19") acquired a tax sale certificate of the Property.Mrs. Starks passed away on October 7, 2020 and Mr Robert Starks was her surviving spouse.^[1]Mr. Robert Starks died testate on August 4, 2021.Thereafter, on January 20 2023, Mr. Starks opened a succession for his late father.On January 23, 2023, ICLP 19 filed a petition to confirm and quiet tax sale title, naming the Unopened Succession of Geraldine Starks and the Unopened Succession of Robert Earl Starks as defendants.^[2]

A judgment of possession was rendered on January 27, 2023, placing Mr. Starks in possession of his father's interest in the Property.^[3] On April 12, 2023, ICLP19filed an amended petition to add Mr. Starks as a defendant.

On March 14, 2023, Mr. Starks filed an answer and reconventional demand for damages.Thereafter he amended his answer and reconventional demand, asserting that the purported tax sale of the property was absolutely null because the tax sale occurred before the lapse of thirty days from the date of the first advertisement.

Mr. Starks moved for summary judgment on November 6, 2023.In response, ICLP 19 filed an exception of no cause of action and an opposition to Mr. Starks's motion for summary judgment.A hearing was held on the motion for summary judgment on January 11, 2024.The trial court subsequently signed a judgment on January 24, 2024, denying Mr. Starks's motion for summary judgment.

On March 21, 2024, a hearing on the exception of no cause of action was held.The trial court sustained ICLP19's exception, and ordered Mr. Starks to amend his reconventional demand to state a cause of action by March 21, 2024.The trial court signed a judgment to that effect on April 9, 2024.Mr. Starks failed to comply with the district court's order.Thereafter, on April 24, 2024, ICLP 19 filed a motion to dismiss Mr. Starks's reconventional demand.Mr. Starks moved for a devolutive appeal on May 7, 2024.^[4] Subsequent to a contradictory hearing, the trial court signed a judgment on July 15, 2024 granting ICLP19's motion and dismissing Mr. Starks's reconventional demand with prejudice.This appeal follows.

JURISDICTION

As a preliminary matter, this Court must determine whether it has subject matter jurisdiction to consider the judgment dismissing Mr. Starks's reconventional demand on an exception of no cause of action.Appellate courts are obligated to determine, sua sponte, whether subject matter jurisdiction is present, even when the parties do not raise the issue.Rieth v. Munguia, 2023-0547, p. 2(La.App. 4 Cir.5/30/24), 391 So.3d 39, 43."Although the judgment completely dismisses the reconventional demand, the judgment does not terminate the litigation between the parties-the principal demand between the parties remains."Waiters v. de Ville, 2019-1048, p. 2(La.App. 4 Cir.4/22/20), 299 So.3d 728, 731.

The right to appeal a partial final judgment is governed by La.C.C.P. art. 1915(B), which provides in relevant part "the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay."^[5] Nonetheless, "a trial court's certification pursuant to La.C.C.P. art. 1915(B) is not determinative of jurisdiction."Rieth, 2023-0547, p. 3, 391 So.3d at 43(quotingMcGaha v. Franklin Homes, Inc., 2021-0244, p. 23(La.App. 4 Cir.2/4/22), 335 So.3d 842, 857).

Here, the July 15, 2024 judgment is not a final appealable judgment as the dismissal of Mr. Starks's reconventional demand did not terminate litigation and the trial court failed to designate the judgment as final pursuant to La.C.C.P. art. 1915(B).However, this court has exercised its discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs when certain conditions are met."The initial inquiry posed when we are determining whether to . . . convert an appeal to an application for supervisory review is whether "the motion for appeal was filed within the thirty-day delay allowed under Rule 4-3 of the Uniform Rules-Courts of Appeal for the filing of an application for supervisory writs.'"Rieth, 2023-0547, pp. 3-4, 391 So.3d at 44(quotingRamirez v. Evonir, LLC, 2014-1095, p. 5(La.App. 4 Cir.4/9/15), 165 So.3d 260, 263).The instant motion for appeal was filed on August 9, 2024, within the time limits for filing an application for supervisory writs.Accordingly, we exercise our discretion and convert the appeal to an application for supervisory writs.

EXCEPTION OF NO CAUSE OF ACTION

While Mr. Starks lists two assignments of error, the narrow issue presented in this matter is whether Mr. Stark's reconventional demand asserts a cause of action against ICLP19.^[6]

Standard of Review

An appellate court reviews a trial court's ruling on an exception of no cause of action using the de novo standard of review "because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition."Thompson v. Hous. Auth. of New Orleans, 2022-0729, p. 17(La.App 4 Cir.5/26/23), 368 So.3d 560, 571(citingHerman v. Tracage Dev., L.L.C., 2016-0082, p. 4(La.App. 4 Cir.9/21/16), 201 So.3d 935, 939).

All well-pleaded allegations of fact are accepted as true.Jackson v. City of New Orleans, 12-2742, p. 24(La.1/28/14), 144 So.3d 876, 895."'[W]ell-pleaded' refers to properly pleaded allegations conforming to the system of fact pleading embodied in the Louisiana Code of Civil Procedure.It does not include allegations deficient in material detail, conclusory factual allegations, or allegations of law."Stanley v. Housing Authority of New Orleans, 2023-0192, p. 18, 377 So.3d 389, 402(citing Strategic Med. All.II v. State, 2022-0051, p. 6(La.App. 1 Cir.11/4/22), 355 So.3d 55, 59).Ultimately, an "exception of no cause of action under La. Code Civ. Proc. art. 927 A(5) questions whether the law extends a remedy against a defendant to anyone under the factual allegations of a petition."Ass n of Cemetery Tour Guides &Companies L3C v. New Orleans Archdiocesan Cemeteries, 2024-0044, p. 7(La.App. 4 Cir.9/4/24), 401 So.3d 797, 802(quotingHenderson v. State Farm Mut. Auto. Ins. Co., 2021- 0654, p. 4(La.App. 4 Cir.12/17/21), 335 So.3d 349, 353).

Reconventional Demand-Absolute Nullity

Mr Starks's reconventional demand asserts that the tax sale of the Property occurred before the lapse of thirty days from the date of the first advertisement, therefore, the tax sale failed to satisfy the requirements of La. Const, art. VII, § 25(A)(1)andLa.R.S. 43:203.Mr. Starks's further asserts that Louisiana courts continue to recognize absolute nullity where pre-tax sale notification requirements have not been met, notwithstanding La.R.S. 47:2286.^[7] Mr. Starks relies on this Court's decision in Deichmann v. Moeller, 2018-0358(La.App. 4 Cir.12/28/18), 318 So.3d 833andWaiters v. deVille, 2020-0556(La.App. 4 Cir.12/30/20), 365 So.3d 544 to support his argument.

ICLP19 countered the reconventional demand, arguing that Mr. Starks did not state a cause of action because he did not allege one of the three exclusive grounds to annul a tax sale enumerated in La.R.S. 47:2286.

Article VII, § 25(A)(1) of the Louisiana Constitution provides, in relevant part:

There shall be no forfeiture of property for nonpayment of taxes.However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due.The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs' sales, in the manner provided for judicial sales.On the day of sale, the collector shall sell the portion of the property which the debtor points out.If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs.The sale shall be without appraisement.A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.

The Louisiana Revised Statutes addressing "Judicial advertisements, publication, exceptions" provides in pertinent part: "[w]hen two publications are required of notice of a judicial sale by public auction, the first newspaper advertisement of such notice shall be published at least thirty days before the date of the judicial sale, and the second advertisement shall...