Larto Lake, LLC v. Sit Gen. Partner, LLC
| Citation | 287 So.3d 36 |
| Decision Date | 27 November 2019 |
| Docket Number | 19-228 |
| Parties | LARTO LAKE, LLC v. SIT GENERAL PARTNER, LLC, et al. |
| Court | Court of Appeal of Louisiana (US) |
Michael E. Kramer, Attorney at Law, 6658 Kinloch Street, Winnsboro, LA 71295, (318) 435-7525, Counsel for Defendant/Appellant: SIT II, LLC
Jonathan T. Gaspard, The Gaspard Law Firm, P. O. Box 546, Marksville, LA 71351, (318) 240-7329, Counsel for Plaintiff/Appellee: Larto Lake, LLC
Bradley Burget, Attorney at Law, P. O. Box 298, Jonesville, LA 71343, (318) 339-8526, Counsel for Plaintiff/Appellee: Larto Lake, LLC
Ronald S. Bryant, Usry, Weeks & Matthews, 1615 Poydras, Suite 1250, New Orleans, LA 70112, (504) 592-4600, Counsel for Defendant: Catahoula Parish Sheriff Toney Edwards
Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges
SIT II, LLC ("SIT II") appeals the trial court's grant of summary judgment in favor of Larto Lake, LLC ("Larto Lake"), ordering the annulment of a tax sale. We affirm.
By cash deed dated May 15, 2010, Acalre Holdings, LP ("Acalre") sold certain immovable property in Catahoula Parish, Louisiana to Larto Lake. Listed as the address for both Acalre and Larto Lake was 534 Wisteria Street, Bellaire, TX 77401. David Ferdman was listed as the managing partner for each company. After receiving tax notices at the 534 Wisteria Street, Bellaire, TX 77401 address, Larto Lake paid the property taxes for 2010 and 2011. However, the property taxes for 2012 were unpaid. The Tax Collector for Catahoula Parish ("Tax Collector") mailed a "Notice of Delinquent Taxes" to Larto Lake at 534 Wisteria Street, Bellaire, TX 77401. This notice was returned bearing the United States Postal Service mark "RETURN TO SENDER, UNCLAIMED, UNABLE TO FORWARD" as of March 21, 2013, and a different address, 5202 Braeburn Drive, Bellaire, TX 77401-4815, was handwritten on the front of the envelope. Without further investigation, on May 8, 2013, the Tax Collector sold the immovable property to SIT II at a tax sale.
The Tax Collector mailed notice of the tax sale to Larto Lake at the 5202 Braeburn Drive, Bellaire, TX 77401-4815 address as well as the 534 Wisteria Street, Bellaire, TX 77401 address. The notices were returned marked "RETURN TO SENDER, UNCLAIMED, UNABLE TO FORWARD." In addition to the Tax Collector's notice, SIT II sent at least seven certified letters to Larto Lake at the 534 Wisteria Street, Bellaire, TX 77401 address, attempting to advise it of the tax sale. All those letters were returned "unclaimed."
On October 5, 2017, Larto Lake filed suit against SIT II, LLC1 seeking the annulment of the tax sale and the recovery of title to the subject immovable property. Larto Lake alleged that the required notices regarding delinquent property taxes and the subsequent notice of tax sale were never received. SIT II contended the notices forwarded to Larto Lake, despite being returned, constituted reasonable notice under the circumstances sufficient to satisfy the notice requirements of Louisiana law.
On August 22, 2018, Larto Lake moved for summary judgment, alleging there was no dispute as to the material facts. SIT II filed an opposition to the motion for summary judgment. After conducting a hearing, the trial court granted Larto Lake's motion for summary judgment.
SIT II now appeals the trial court judgment, contending the trial court erred in finding that there was no dispute as to the material facts concerning the sufficiency of service of the Notice of Tax Sale dated May 8, 2013, whereby SIT II purchased property belonging to Larto Lake.
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co ., 06-63 (La. 11/29/06), 950 So.2d 544. It is well accepted that an appellate court reviews a motion for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Wright v. La Power & Light , 06-181 (La. 3/9/07), 951 So.2d 1058. A motion for summary judgment is properly granted only if the pleadings, memoranda, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law.2 La.Code Civ.P. art. 966(A)(4). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett , 04-0806 (La. 6/25/04), 876 So.2d 764. "A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate." Larson v. XYZ Ins. Co. , 16-745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416.
The burden of proof remains with the mover to show that no material issues of fact exist. La.Code Civ.P. art. 966(D). The mover must present supportive evidence that the motion for summary judgment should be granted. Robicheaux v. Adly, 00-1207 (La.App. 3 Cir. 1/31/01), 779 So.2d 1048. Once the mover has made a prima facie showing that the motion for summary judgment should be granted, the burden of proof shifts to the nonmoving party to present evidence demonstrating the existence of issues of material fact which preclude summary judgment. Hayes v. Autin , 96-87 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied , 97-281 (La. 3/14/97), 690 So.2d 41.
SIT II contends that whether the notices of tax sale were mailed to Larto Lake's correct address is a material fact which is in dispute. Thus, it urges us to find the trial court erred when it granted Larto Lake's motion for summary judgment.
This tax sale case comes to us on a grant of a motion for summary judgment filed by the tax debtor; thus, the primary legal issue is whether the lower court correctly found that summary judgment in favor of the tax debtor was warranted. Because the trial court granted summary judgment in favor of the tax debtor, accepting its claim that the tax sale was null and void because it was conducted without affording due process of law to the record property owner, the law governing tax sales underlies our review of the grant of summary judgment.
It is well-settled that, under the Fourteenth Amendment to the United States Constitution and La.Const. art. 1, § 2,3 deprivation of property by adjudication must be preceded by notice and opportunity to be heard appropriate to the nature of the case. Mullane v. Cent. Hanover Bank & Trust Co ., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ; Tietjen v. City of Shreveport , 09-116 (La. 5/11/10), 36 So.3d 192. In Mullane , 339 U.S. at 314, 70 S.Ct. 652, the Supreme Court established that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." See also Tietjen , 36 So.3d at 195 ; Hamilton v. Royal Int'l Petroleum Corp ., 05-846 (La. 2/22/06), 934 So.2d 25, cert. denied , 549 U.S. 1112, 127 S.Ct. 937, 166 L.Ed.2d 704 (2007).
In Mennonite Bd. of Missions v. Adams , 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Supreme Court recognized that the sale of property for nonpayment of taxes is an action affecting a property right protected by the Due Process Clause of the Fourteenth Amendment. In Mennonite , the mortgagee of a property contested a tax sale that occurred after the homeowner had failed to pay her property taxes. The mortgagee was not provided notice of the homeowner/mortgagor's delinquent payment of the taxes or the subsequent tax sale. The Supreme Court held that "a mortgagee possesses a substantial property interest that is significantly affected by a tax sale" and, therefore, "is entitled to notice reasonably calculated to apprise him of a pending tax sale." Id . at 798, 103 S.Ct. 2706. The Supreme Court stated: "Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable." Id . at 800, 103 S.Ct. 2706. Because the mortgagee was not afforded its constitutional right to due process, the Supreme Court reversed the decision that upheld the tax sale.
Article 7, Section 25(A) 4 of the Louisiana Constitution of 1974 requires the tax collector to provide notice of the tax delinquency and the tax sale to all owners of record of any interest in the property. Lewis v. Succession of Johnson , 05-1192 (La. 4/4/06), 925 So.2d 1172.5 In La.R.S. 47:2153,6 the legislature set forth the manner by which notice of delinquencies in immovable property taxes must be provided in compliance with La.Const. art. 7, § 25 (A). Louisiana Revised Statutes 47:2153 provides in pertinent part:
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