Clara Wright VS Cingular Real Estate Holdings of Louisiana, L.L.C. a/k/a Cingular Real Estate Holdings
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1825 CLARA WRIGHT VERSUS CINGULAR REAL ESTATE HOLDINGS OF LOUISIANA CK L A CINGULAR REAL ESTATE HOLDINGS Judgment Rendered JUL 1 2010 On Appeal from the 22nd Judicial District Court k vow In and For the Parish of St Tammany Trial Court No 2007 15803 Division F Honorable Martin E Coady Judge Presiding Charles E McHale Jr New Orleans LA Counsel for PlaintiffAppellee Clara Wright Gary J Russo Carmen M Rodriguez Kyle M Bacon Lafayette LA Counsel for Defendant Appellant Cingular Real Estate Holdings of Louisiana L a Cingular Real C Estate Holdings BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES J This is an appeal from a summary judgment granted in favor of Clara Wright the plaintiff in this suit to quiet title to immovable property purchased in a tax sale against the former property owner Cingular Real Estate Holdings of the Southeast L on behalf of itself and its C predecessor by merger Cingular Real Estate Holdings of Louisiana L C Cingular which failed to pay the assessed 2003 ad valorem taxes The pleadings depositions answers to interrogatories and affidavits filed in this case show the following facts Cingular acquired the subject property on June 29 2001 Ms Wright purchased the property at a sheriffs sale for 283 t 1 following the failure of Cingular to pay the 2003 ad valorem taxes due to St Tammany Parish Ms Wright was issued a sheriffs deed dated June 9 2004 which was thereafter filed in the conveyance records for the parish Cingular did not redeem the property during the threeyear redemption period following the tax sale At the time that her 2007 suit was filed Ms Wright had also paid the 2004 2005 2006 and 2007 taxes The 2001 act of sale to Cingular listed its address as Glenridge Highlands Two 5565 Glenridge Connector Atlanta Georgia 30342 This is also the address that appeared in the St Tammany Parish Tax Assessor s records Cingular paid its 2002 taxes on February 5 2003 On December 1 2003 Cingular s2003 tax bill was mailed to Cingular at its Atlanta address Thereafter in April 2004 when no payment was received by St Tammany The amount of the 2003 ad valorem taxes assessed against Cingular was 137 to which was 37 added interest costs and fees amounting to 145 for the sheriff sale total price of 283 74 s 11 K Parish a delinquency notice was sent by certified mail return receipt requested to the Atlanta address Although in response to the plaintiff s2008 interrogatory inquiring as to Cingular present address Cingular gave its address as ATT s Mobility LLC Personal Property Tax Department 16331 N 72 E Way RTC 1 Redmond WA 98052 Cingular admitted that it did not provide the St Tammany Parish Tax Assessor with notice of a change of address Further Cingular made no showing in this case that the Atlanta address was incorrect in 2003 and 2004 when St Tammany Parish forwarded the original tax notice and subsequent notice of tax delinquency In addition to the general denials asserted in Cingular sanswer to the s plaintiff suit Cingular attached to its opposition to the plaintiff motion s for summary judgment the following a copy of a Cingular check dated January 24 2003 made payable to PARISH OF ST TAMMANY LA TAX COLLECTOR in the amount of 8 the affidavit of a 47 967 paralegal employed by its counsel of record who conducted a public records search of the St Tammany Parish Tax Assessor records and concluded that s the foregoing payment exceeded the 2002 tax assessments against it resulting in a substantial overpayment that was larger than the tax assessment issued against it in 2003 for the property at issue in this case 2 and the answers to interrogatories previously referenced The defenses raised by Cingular to the grant of summary judgment in the plaintiff sfavor in essence contend the content of tax notices allegedly sent to it was not proven since exact copies of the notices were not produced delinquency and post sale notices sent to the Atlanta address were without effect as they were signed for by a person who was not a Cingular 2 Specific amounts were not stated 9 employee and its January 24 2003 payment made for 2002 tax assessments exceeded the taxes then owed and the overpayment should have been applied to the 2003 tax obligation We find no merit in these assertions First we find that ample evidence was presented regarding the contents of the notices directed to Cingular by means of filing into the record sample form letters and through the deposition testimony of Deputy Sheriff Josie Willie manager of the property tax department Deputy Willie testified that the sample form letters were the type customarily sent and she further gave detailed testimony reflecting that all information statutorily required to be included in the notices had been included Deputy s Willie testimony concerning the content of the tax notices sent to Cingular was uncontradicted Next we reject any argument based on alleged defects in the post sale notices sent to Cingular The supreme court has ruled that a post tax sale notice is not necessary to satisfy due process reasoning that the opportunity for a property owner to be heard at a meaningful time and in a meaningful manner is before he becomes divested of his property After a property owner becomes divested of his property in compliance with due process rights fundamental due process does not further require that he be informed of his right to redemption of the property Further the supreme court concluded that the Louisiana Legislature had at that time included no statutory penalty for failure to provide the post sale notice Hamilton v Royal International Petroleum Corporation 2005 846 pp 610 La 3 Deputy Willie testified that threeyear redemption letters were sent to Cingular by the Sheriffs Office which were signed for on March 4 2005 May 17 2006 and March 17 2007 The record contains evidence of three signed return receipts addressed to Cingalar at its 5565 Glenridge Collector Atlanta Georgia address Two are stamped March 4 2005 and May 17 2006 respectively while the stamp date on the third is not fully legible though it appears to bear a notation of March 2007 El 06 22 2 934 So 25 30 32 cert denied 549 U 1112 127 S 937 2d S Ct a 166 L704 2007 2d Ed Nor do we find it of any consequence that a person who may not have been a Cingular employee signed the certified return receipt acknowledging delivery to Cingular of the notice of tax delinquency Former LSA R S a 1 A 2180 47 subsequently repealed by 2008 La Acts No 819 1 effective January 1 2009 and replaced by LSAR 47 required that S 2153 notice of tax delinquency be sent to the delinquent taxpayer by certified mail return receipt requested before the property could validly be sold for unpaid taxes It has repeatedly been held that where the tax debtor correct s address is known and used certified mail return receipt requested is a reasonable method of notifying the debtor and it is unnecessary that notice actually be received by the tax debtor to establish the validity of the sale even when the return receipt of the delinquency notice to the tax debtor was signed by an agent whose authority to do so was not established Dennis v Vanderwater 498 So 1097 1099 La App 3 Cir 1986 writ denied 2d 501 So 211 La 1987 citing Securities Mortgage Company v 2d Triplett 374 So 1226 La 1979 Carey v Green 177 La 32 147 So 2d 491 1933 Goodwill v Smith 29 So 188 La App 2 Cir 1947 2d Goodwin v Newsome 44 So 189 La App 2 Cir 1950 See also 2d Koeppen v Raz 29 La App 2 Cir 10 702 So 337 880 97 29 2d DeSalvo v Roussel 629 So 1366 La App 4 Cir 1993 writ denied 2d 94 0156 La 4 637 So 155 Therefore we cannot conclude that 94 22 2d in the instant case Cingular raised a question of fact as to the validity of the We note the scholarly criticism of the supreme court opinion in Hamilton by Jessica s Gladney Note Stopping Short of Justice Hamilton and Notice Requirements for the Redemption Period ofTax Sales 68 La L Rev 263 2007 5 delivery of the delinquency notice by merely asserting the person receiving the notice was not its employee Finally we reject Cingular contention that there exists an issue of s fact regarding whether the 2003 ad valorem tax for which its property was sold had been paid While Cingular alleges that St Tammany Parish was in possession of an overpayment after it paid 8 toward 2002 tax 47 967 assessments which it argues should have been applied to its 2003 tax debt the existence of an overpayment was not established Before further discussion of the overpayment issue we note that because of the conclusion we reach on the issue hereinbelow we find it unnecessary to decide whether the law provides authority for the proposition that an overpayment made on ad valorem taxes due for one year must be applied by the tax collector to taxes due the following year s Cingular overpayment argument implies that LSAC art 1893 providing in part C that c takes place by operation of law when two persons owe ompensation to each other sums of money or quantities of fungible things identical in kind and these sums or quantities are liquidated and presently due would apply to create an offset in such a situation However Cingular has cited no applicable tax law that mandates such an offset and we are impressed by the plaintiffs argument on the issue that s a concept is unreasonable and uch would place an unnecessary obstacle upon both the assessor and sheriff as tax collector for the thousands of properties that are under the sheriffs jurisdiction in St Tammany Parish Further we note that other statutorily 5 We note that there was no assertion in this case that the person signing the return receipt was unauthorized to receive mail delivered to that address merely that he was not an employee of Cingular A copy of the certified return receipt for the April 16 2004 delivery of the notice of delinquency was filed into the record showing delivery to Cingular at its Atlanta address the delivery was accepted and signed for by O Murphy Although in answers to interrogatories Cingular stated that O Murphy was not its employee when asked to list the names of Cingular employees at the Atlanta location Cingular indicated there were n one Cie prescribed remedies exist to address the circumstances alleged ia refund e could have been sought for any overpayment made in accordance with former LSA R S 47 which provided that a person who has a 1 2108 ny claim against a political subdivision for ad valorem taxes erroneously paid into the funds of that political subdivision may present such claim to the Louisiana Tax Commission within three years of the date of such payment LSAR 47 was repealed and substantially reenacted by 2008 La S 2108 1 Acts No 819 1 effective January 1 2009 as LSAR 47 or if S 2132 Cingular believed the 2003 tax assessment was erroneous it could have paid the assessed amount under protest and sought recovery of the payment in accordance with former LSAR 47 which provided that a S 2110 ny person resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax and shall give him the parish or district assessor and the Louisiana Tax Commission written notice at the time of payment of his intention to file suit for the recovery of such tax LSA R 47 was repealed and substantially S 2110 reenacted by 2008 La Acts No 819 1 effective January 1 2009 as LSA S 2134 R 47 Notwithstanding we conclude sufficiently demonstrated that an overpayment was not Although a copy of the 8 check was 47 967 produced no St Tammany Parish records were filed into the record to establish that the 8 paid for 2002 taxes was not owed in its entirety 47 967 for those taxes The affidavit of a paralegal working for Cingular s counsel who conducted a public records search on the tax assessor s Internet website was insufficient to raise an issue of fact on the issue The 2002 ad valorem tax assessed on the property at issue was 133 and there is no evidence 77 in the record to show what other tax debts the 8payment was intended to cover 47 967 7 particularly when no supporting documentation conjunction with the affidavit was submitted in Louisiana Code of Evidence Article 1005 provides The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed including data compilations in any form if otherwise admissible may be proved by copy certified as correct in accordance with Article 902 or testified to be correct by a witness who has compared it with the original If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence then other evidence of the contents may be given No explanation for Cingular failure to produce copies of the pertinent St s Tammany Parish records has been presented Furthermore this affidavit which purports to provide evidence of the contents of those records failed to reveal personal knowledge on the part of the affiant regarding the validity of the information contained on the Internet Rather the affidavit contained only the affiant hearsay statement that a staff member of the Assessor s s office told her that the website search engine accurately and completely reflects the property tax assessments made by the St Tammany Parish Tax Assessor contrary to the dictates of LSA C arts 602 801 and E C 802 Cingular has acknowledged that its burden of proof is as set forth in Cressionnie v Intrepid Inc 2003 1714 p 4 La App 1 Cir 5 04 14 879 So 736 739 which provides 2d 7 Louisiana Code ofEvidence Article 602 provides A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter Evidence to prove personal knowledge may but need not consist of the testimony of the witness himself This Article is subject to the provisions of Article 703 relating to opinion testimony by expert witnesses 8 Louisiana Code of Evidence Article 801 provides Hearsay is a statement other than one C made by the declarant while testifying at the present trial or hearing offered in evidence to prove the truth of the matter asserted 9 Louisiana Code of Evidence Article 802 provides Hearsay is not admissible except as otherwise provided by this Code or other legislation 0 The tax deed of the sheriff constitutes prima facie proof of the regularity of the tax adjudication proceedings The former owner must then carry the burden of proof in establishing any defects alleged by him based on allegations of irregularities in the tax adjudication proceedings If the defendant offers evidence sufficient to rebut the presumption of regularity it then becomes the duty of the tax purchaser to go forward and prove that all requisites for a valid tax sale were complied with Citations omitted After a careful review of the record presented on appeal we conclude that Cingular failed to establish the existence of any genuine issue of material fact as to the validity of the tax adjudication proceedings at issue herein Accordingly we find no error in the summary judgment granted in favor of plaintiff by the district court CONCLUSION For the reasons assigned the summary judgment rendered by the district court in favor of Clara Wright is affirmed All costs of this appeal are to be borne by Cingular Real Estate Holdings of the Southeast L C on behalf of itself and its predecessor by merger Cingular Real Estate Holdings of Louisiana L C AFFIRMED 70 We have reviewed the case cited by the parties subsequent to oral arguments in this matter Tietjen v City of Shreveport 2009 2116 La 5111110 3d So 2010 WL 2011581 and we do not find the discussion therein relevant to the issues before this court as the primary issue in Tietjen involved the failure of the tax assessor to send proper presale notice to the mortgagee of the tax delinquency 0
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