Annie Walker VS Devant K. Smith and Martha C. Smith
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA 1411111aYIJf1W0 FIRST CIRCUIT NO 2010 CA 0721 ANNIE WALKER VERSUS DEVANT K SMITH AND MARTHA C SMITH Judgment Rendered October 29 2010 Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No 2006 002798 The Honorable L J Hymel Judge Presiding Annie Walker PlaintiffAppellant Pro Se Amite Louisiana Walter Antin Jr Hammond Louisiana Counsel for DefendantsAppellees Devant K Smith and Martha C Smith BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY I The plaintiff the purchaser of immovable property at a tax sale appeals a judgment on the defendants reconventional demand declaring her tax title null by reason of deficient notice of the sale to the defendants the owners of the immovable property For the following reasons we affirm the trial court judgment We also deny the defendants answer to the appeal s seeking damages for frivolous appeal FACTUAL AND PROCEDURAL BACKGROUND Procedural History Through Prior Appeal On May 16 2001 the plaintiff Annie Walker purchased immovable property in Tangipahoa Parish for the total sum of 415 at a sheriffs tax 96 sale for delinquent taxes The defendants Devant K Smith and Martha C Smith were the owners of the property and the delinquent tax debtors On August 28 2006 Ms Walker filed a petition to quiet tax title pursuant to former La R 47 in the 21st Judicial District Court for S 2228 the Parish of Tangipahoa She alleged that the defendants could not be found and that their lastknown address was in Mississippi and requested that a curator ad hoc be appointed to represent the defendants for purposes of service pursuant to the abovecited statute On September 25 2006 the defendants through their own retained counsel filed a combined pleading including exceptions an answer and a reconventional demand In their answer the defendants asserted a general denial of the allegations of Ms Walker petition Although the defendants s captioned their reconventional demand as a Reconventional Demand to 1 This statute was repealed by Acts 2008 No 819 2 effective January 1 2009 However Section 1 of the same act enacted the new La R 47 effective January S 2266 1 2009 which reproduces the substance of and combines former La R 47 and S 2228 1 2228 47 La R 47 Comment 2008 S 2266 2 Annul Tax Sale and for Damages they did not allege the nullity of Ms s Walker tax title nor did they set forth a cause of action to annul the tax sale or pray for judgment annulling the tax sale They simply alleged that the notices and other formal requirements for the tax sale were not satisfied They further alleged that Ms Walker refused their offer of reimbursement of taxes paid and costs and expenses incurred Finally the defendants alleged that Ms Walker and her representatives trespassed upon the property causing damage to the property and movable property on it and causing them pain and suffering and mental anguish The defendants as plaintiffs in reconvention prayed for a money judgment for damages attorney fees and court costs but did not pray for annulment of the tax sale The defendants filed a motion for summary judgment on October 20 2006 seeking the dismissal of Ms Walker petition to quiet the tax title s Ms Walker responded with a cross motion for summary judgment At the conclusion of the hearing on both motions on April 12 2007 the trial court scheduled another limited hearing and deferred its ruling until May 21 2007 Following the hearing of May 21 2007 by judgment signed that day the trial court granted the defendants motion for summary judgment and dismissed Ms Walker petition with prejudice s Z The defendants did allege in their exceptions raised in a combined filing with their answer and reconventional demand that notice of the tax sale was deficient and the tax sale was therefore null However after the original hearing on their exceptions was continued without date the defendants never requested that their exceptions be heard before the hearing on the summary judgment that determined the merits of Ms Walker s principal action As we noted in our original opinion the exceptions were therefore waived Walker v Smith 082489 p 8 n La App 1st Cir 6 11 So 1244 4 09 12 3d table unpublished opinion This circumstance however would not serve to preclude the defendants from again raising the issue of the tax sale nullity in the context of their s reconventional demand as there was no final judgment on the exceptions dispositive of the issue 3 Although the record does not expressly confirm it the trial court obviously denied Ms s Walker cross motion for summary judgment Arguably the dismissal of Ms Walker s cause of action should have been without prejudice But as the summary judgment was not appealed it is final and definitive as to Ms Walker cause of action to quiet the tax s title 3 On July 30 2007 the defendants filed a Motion to Enforce Judgment Asserting that the summary judgment dismissing Ms Walker s petition had not been appealed the defendants moved for an order compelling her to execute a deed transferring the property at issue back to them On August 23 2007 Ms Walker filed a motion opposing the defendants Motion to Enforce Judgment and seeking to declare the summary judgment a nullity For unrelated reasons all judges of the trial court recused themselves from hearing this action and a judge ad hoc was appointed On November 28 2007 the defendants filed a Rule to Show Cause again seeking enforcement of the summary judgment as prayed for in their previous motion On January 25 2008 Ms Walker who was by then unrepresented by counsel filed another Motion in Opposition to Defendants Motion to Enforce Judgment On January 30 2008 the trial court heard the defendants Rule to Show Cause or renewed Motion to Enforce Judgment and at the conclusion of the hearing took the matter under advisement On March 25 2008 the trial court signed its judgment granting the defendants motion to enforce the summary judgment The judgment recited that Ms Walker first motion in opposition and to declare the s summary judgment a nullity filed on August 23 2007 was denied and that the defendants Motion to Enforce Judgment was granted The judgment further provided that the sheriff deed for the tax sale was declared null s and void and without effect and that the clerk of court was to so mark the deed recorded in the conveyance records that Ms Walker was ordered to execute the necessary documents transferring the property to the defendants and that the defendants were ordered to pay Ms Walker all sums of money 2 she paid for property taxes plus interest thereon On April 11 2008 the trial court denied Ms Walker second Motion in Opposition to Defendants s Motion to Enforce Judgment by an ex parte judgment Ms Walker appealed the March 25 2008 judgment On June 12 2009 we reversed that judgment on the grounds that the defendants improperly used summary procedure rather than ordinary procedure to seek annulment of the tax sale over Ms Walker proper procedural objection s and that the trial court further erred in overruling that objection We remanded the matter for further proceedings Walker v Smith 08 2489 La App 1 st Cir 6 11 So 1244 table unpublished opinion 09 12 3d Procedural History Following Remand On June 15 2009 the defendants filed an amended reconventional demand After reciting the procedural history of the case through this s court decision of June 12 2009 the defendants further alleged that they remained in possession of the property at all pertinent times that notice of the tax sale was not given as required by law and that the tax sale was therefore null that they reimbursed Ms Walker for all taxes and costs paid by her and that she wrongfully claimed title to the property thereby causing them injury The defendants prayed for judgment annulling the tax sale and for damages attorney fees and costs Ms Walker answer to that pleading was filed on July 13 2009 In s her answer besides generally denying most of the defendants allegations Ms Walker affirmatively alleged that the defendants were in fact properly served with notice by mail at their last known address in Mississippi that the defendants failed to mitigate their damages by failing to notify the sheriff of their change of address prior to the tax sale and that the defendants claims F1 in their reconventional demand were barred by res judicata On the same date Ms Walker filed a peremptory exception of res judicata essentially on the grounds that the failure of both the May 21 2007 summary judgment to address the issue of the nullity of the tax sale and this court prior decision s reversing the judgment of March 25 2008 precluded further litigation on the issue of the validity of the tax sale On July 22 2009 the defendants filed a motion for partial summary judgment seeking judgment annulling the tax sale on the grounds that the prior summary judgment of May 21 2007 was a final and definitive determination of the issue of insufficiency of notice of the tax sale precluding relitigation of that issue by reason of collateral estoppel or issue preclusion and therefore entitling them to judgment as a matter of law annulling the tax sale On August 19 2009 Ms Walker filed a cross motion for summary judgment arguing that the tax sale was valid the defendants reconventional demand be dismissed and the trial court recognize her as owner of the subject property On the same day she also filed a second exception of res judicata supplementing and clarifying her prior peremptory exception to include specific reference to the doctrine of collateral estoppel or issue preclusion Ms Walker exceptions of res judicata the defendants motion for s partial summary judgment and Ms Walker cross motion for summary s judgment were heard on August 25 2009 At the conclusion of the hearing the trial court overruled the exceptions and denied both motions and its 4 Although the caption of this pleading does not so state its allegations appear to incorporate a reconventional demand of Ms Walker seeking damages from the defendants based upon their malicious prosecution of their claims to ownership of the subject property and other alleged wrongful acts The appeal record contains no answer by the defendants to that purported cause of action B7 judgment to that effect was later signed on September 1 2009 Following the hearing the trial court further set the trial on the merits of the defendants reconventional demand on November 9 2009 and instructed Ms Walker to subpoena any witnesses 30 days prior to trial On September 17 2009 the defendants filed a second amended reconventional demand adding the allegations that the sheriff notice to s them by certified mail was sent to an incorrect address that their correct address could easily have been found in the Tangipahoa Parish public records that they never received prior notice of the tax sale and that the sheriff took no additional steps to provide them notice Ms Walker filed her answer to the second amended reconventional demand on October 8 2009 On October 2 2009 the defendants filed a third amended reconventional demand with a certificate of service on Ms Walker by mail In that pleading they added allegations that two banks holding collateral mortgages on the subject property were not given notice of the unpaid taxes and tax sale that the addresses of the banks were ascertainable from the Tangipahoa Parish public records and that such lack of notice further served to render the tax sale null and void The defendants further alleged that the tax sale was unconstitutional by reason of lack of notice to the mortgagee banks and that former La R 47 was unconstitutional if S 2180 A 1 interpreted to require a mortgagee to request such notice On October 20 2009 Ms Walker served interrogatories by facsimile telecopier and mail upon the defendants through their attorney seeking 5 The accompanying motion for leave of court to file the third amended reconventional demand was not signed until November 2 2009 6 The former statute was repealed by Acts 2008 No 819 2 effective January 1 2009 1 of the same act and its substance was reproduced in current La R 47 by S 2159 Because the constitutionality of the statute was neither argued at trial nor used as a basis for its decision by the trial court we need not address that issue in this appeal 7 among other information the names of all witnesses that the defendants might call at trial On November 3 2009 the defendants filed and served by mail their trial witness and exhibit lists along with a pretrial memorandum incorporating detailed statement of the facts proposed findings of fact and proposed conclusions of law Ms Walker filed her answer to the third amended reconventional demand on November 4 2009 On the same date she filed a peremptory exception of no right of action making the objection that the defendants had no right of action to raise the issue of lack of notice to the mortgagee banks as grounds for annulling the tax sale The exception was set for hearing on the morning of trial On November 6 2009 Ms Walker filed a motion to compel responses to discovery as well as a motion to continue the trial on the grounds that the defendants had not properly responded to discovery and that she was blindsided or unfairly surprised by new issues and witnesses supporting the allegations of the defendants third amended reconventional demand Both motions were set for hearing on the morning of trial Trial on the merits was held on November 9 2009 The trial court referred Ms Walker peremptory exception of no right of action to the s merits After testimony was presented evidence introduced and argument presented the trial court ruled in favor of the defendants on their reconventional demand and overruled Ms Walker peremptory exception s of no right of action On November 23 2009 the trial court signed the judgment in favor of the defendants on their reconventional demand prepared by counsel for the defendants incorporating detailed findings of fact In addition to annulling E and vacating the tax sale and Ms Walker tax title the judgment overruled s Ms Walker peremptory exception of no right of action s Ms Walker now appeals ASSIGNMENTS OF ERROR Ms Walker assigns the following error on the part of the trial court 1 The trial court committed manifest error in denying s otion ontinue plaintiff m to c 2 The trial court committed manifest error in curing ompel s otion plaintiff m to c sic by compelling the defendants to copy and submit the discovery material to plaintiff in open court on the very day of and actually in fact during the very trial itself 3 The trial court erred in allowing the defendants to photocopy their third amended reconventional demand and furnish it to plaintiff at trial as service thereof thereby essentially once again effectively failing to meet the mandates of ordinary procedure in this matter especially considering s plaintiff urges sic for a continuance 4 The trial court committed manifest error in allowing the subpoenaed representatives of Omni Bank and Gulf Coast Bank or any other defendant subpoenaed witnesses to testify This error was due to the defendants maliciously aforethought failure to timely submit a witnesstestimony list to plaintiff 5 The trial court committed manifest error in allowing Mr Douglas Curet to testify as an expert witness this error being due to the defendants failure to timely submit a witnesstestimony list to plaintiff 6 The trial court committed reversible error in denying s laintiff eremptory xception p p e of n r of a o ight ction regarding the eleventh hour claims made via a third amended reconventional demand 7 The trial court erred in finding that the Tangipahoa failed to take further steps beyond that which was mandated by statute to locate defendants upon return of the original notice of sale by certified mail Parish Sheriff Office s 8 The trial court erred in finding that the defendants met their burden of proof to establish that the tax sale was invalid and a nullity 0 DISCUSSION Preliminary Procedural Observations Ms Walker first second and sixth assignments of error relate to s interlocutory judgments of the trial court denying her motions and peremptory exception of no right of action Although interlocutory judgments are generally nonappealable we have held that in appropriate cases when an unrestricted appeal is taken from a final judgment the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment Dean v Griffin Crane Steel Inc 05 1226 p 4 n La App 1st Cir 5 935 3 06 2d So 186 189 n writ denied 06 1334 La 9 937 So 387 3 06 22 2d As we noted in our prior opinion in this matter the summary judgment of May 21 2007 dismissed Ms Walker principal action with s prejudice and was not appealed and it was therefore final and definitive as to her cause of action to quiet her tax title As we also noted in that opinion the supreme court in Fellman v Kay 147 La 953 966 86 So 406 411 La 1920 held that a judgment rejecting the plaintiffs demand in an action under former La R 47 was res judicata as to his right to limit the S 2228 time within which the defendant could bring an action to annul the plaintiff s tax title but was not res judicata as to the issue of the validity of the tax title However the statutory doctrine of res judicata has since been significantly revised and since 1991 incorporates the principle of collateral estoppel or issue preclusion Because the issue of the adequacy of notice of the tax sale was actually determined by the trial court and essential to its ruling on the defendants motion for summary judgment collateral estoppel or issue preclusion should bar relitigation of the issue and entitle the 10 defendants to judgment in their favor on the merits of their reconventional demand See La R 13 and Chaisson v Central Crane Service S 4231 3 100112 p 2 La App 1st Cir 7 10 29 3d So Thus the substantive contentions of the defendants motion for partial summary judgment denied by the trial court on August 28 2009 in fact had merit However because the defendants did not seek supervisory review of the trial s court judgment denying that motion and did not seek judgment at trial on the basis of res judicata our decision in this appeal will be based upon the merits of the factual case presented at trial and we choose not to notice the issue of collateral estoppel or issue preclusion on our own Sufficiency ofService of Third Amended Reconventional Demand In her third assignment of error Ms Walker contends that service of the defendants third amended reconventional demand was not made until the day of trial when the defendants handed her a photocopy of that pleading in open court However the record reflects and Ms Walker concedes in brief that she was mailed and received a copy of the pleading prior to trial Additionally she filed her answer to that pleading on November 4 2009 without raising any objection to service by declinatory The reasons for the trial court judgment denying the motion for partial summary s judgment which if granted would have terminated this litigation are not apparent from the record Our prior decision in this matter was predicated upon the defendants improper use of a rule to show cause employing summary procedure to initially seek the annulment of the tax sale by asserting the benefit of collateral estoppel The codal definition of summary proceedings encompasses two separate concepts 1 a true summary proceeding by which the parties obtain an expedited trial on the merits and 2 a summary procedure used to determine incidental issues arising in the course of either an ordinary summary or executory proceeding Bardwell v Faust 061472 p 7 La App 1st Cir 5 962 So 13 17 writ denied 07 1174 La 9 964 So 334 07 4 2d 07 21 2d Given the basis for our prior opinion the trial court may have concluded that the motion for partial summary judgment was not a proper procedural means for determining the issue of the validity of the tax sale We would emphasize however that the defendants motion for partial summary judgment was filed in the context of an ordinary proceeding rather than a true summary proceeding as the defendants by that time had cured their prior error by properly seeking annulment of the tax sale through their reconventional demand employing ordinary procedure rather than solely by rule or motion 8 See La C art 927 P B 11 exception or in that answer Under these circumstances any later objection to sufficiency of service was waived See La C arts 925 and P C A 928 Mooring Fin Plan 401 Profit Sharing Plan v Ninth Ward Hous K Corp p 3 La App 4th Cir 9 18 So 797 799 and Sam v Feast 09 16 3d 001163 pp 5 6 La App 1st Cir 3 802 So 680 683 84 Ms 01 28 2d s Walker third assignment of error has no merit Denial of Continuance and Admission of Witness Testimony at Trial In their third amended reconventional demand the defendants reiterated their prior allegation that they did not receive proper notice of the tax sale but added allegations that the mortgagee banks likewise did not receive proper notice thereby rendering the tax sale absolutely null based upon the rationale of Mennonite Bd of Missions v Adams 462 U 791 S 103 S 2706 77 L 180 1983 Ms Walker urges on appeal that the Ct 2d Ed foregoing amended pleading alleged wholly new claims and demands and was clearly designed to blindside her She contends that the trial court erred in its disposition of her motion to compel discovery responses and more importantly in failing to grant her a continuance of the trial to allow her to review the defendants discovery responses and to undertake additional discovery if necessary One of the peremptory grounds for a continuance set forth in La P C art 1602 is when the party applying for the continuance shows that he has been unable with the exercise of due diligence to obtain evidence material to his case Emphasis added A party seeking a continuance on peremptory grounds has the burden of proving the existence of the requirements of La C art 1602 See Armstrong v State Farm Fire P Cas Co 423 So 79 81 La 1982 Louisiana Code of Civil Procedure 2d 12 article 1601 also authorizes the discretionary continuance of a trial in any case if there is good ground therefor The trial court must consider the particular facts of a case when deciding whether to grant or deny a continuance The trial court should consider the diligence and good faith of the party seeking the continuance and other reasonable grounds and may also weigh the condition of the court docket fairness to the parties and other litigants before the court and the need for orderly and prompt administration of justice Absent a clear abuse of discretion in granting or denying a continuance the ruling of the trial court should not be disturbed on appeal Denton v Vidrine 060141 p La App lst Cir 12 951 So 274 284 writ denied 07 0172 La 06 28 2d 07 18 5 957 So 152 A trial judge has wide discretion in the control of 2d his docket in case management and in determining whether a motion for continuance should be granted and appellate courts interfere in such matters only with reluctance and in extreme cases Willey v Roberts 95 1037 p 3 La App 1st Cir 12 664 So 1371 1374 writ denied 960164 95 15 2d La 3 669 So 422 96 15 2d The basic objectives of the Louisiana discovery process are 1 to afford all parties a fair opportunity to obtain facts pertinent to the litigation 2 to discover the true facts and compel disclosure of these facts wherever they may be found 3 to assist litigants in preparing their cases for trial 4 to narrow and clarify the basic issues between the parties and 5 to facilitate and expedite the legal process by encouraging settlement or abandonment of less than meritorious claims Hodges v S Farm Bureau Cas Ins Co 433 So 125 129 La 1983 2d However the goal of our discovery and pretrial procedure is not to necessarily protect parties from all surprise at trial but only from unfair 13 surprise As noted above the diligence of a party in pursuing discovery and preparing for trial has long been recognized as a relevant factor in the trial s court exercise of its discretion to grant or deny a continuance See Shows v Shoney Inc 98 1254 pp 5 6 La App 1st Cir 7 738 So s 99 29 2d 724 72930 By the time Ms Walker filed her motion to continue the trial this litigation had been ongoing for over three years and the central issue of alleged lack of proper notice to the defendants of the tax sale had been extensively argued in the context of various exceptions motions and the prior appeal The record does not show that Ms Walker pursued any formal discovery from the defendants until October 20 2009 when she served her discovery requests by mail upon the defendants less than three weeks before trial The defendants detailed witness and exhibit lists were served and filed on November 3 2009 less than 15 days after Ms Walker served her discovery requests upon the defendants counsel Additionally much of the information she sought was contained in affidavits and other evidentiary documents previously exchanged in connection with the numerous pretrial motions and exceptions filed and opposed by the parties The information relating to the existence of the mortgages on the subject property and the lack of notice to the mortgagee banks as alleged in the third amended reconventional demand was obviously just as available to Ms Walker prior to trial as to the defendants as the evidence shows that most if not all of that information was public record Ms Walker made no actual showing at trial that the bank witnesses were in fact unknown to her prior to her propounding discovery to the defendants less than three weeks before trial Additionally considering the substance of the bank witnesses 9 One of the bank witnesses Donald Lucas was even specifically identified by name and employer in the third amended reconventional demand as was the subject matter of his trial testimony lack of notice of the tax sale to Omni Bank 14 testimony relating only to the lack of notice to the mortgagee banks she has not articulated on appeal any sound or legitimate reason why a continuance would have made any difference in her trial preparation or cross examination of those witnesses Finally contrary to Ms Walker s characterization the defendants amendments to their reconventional demand did not add new claims rather they simply supplemented the detail of the factual allegations supporting their original cause of action for annulment of the tax sale based upon inadequate notice to them While the timing of those amendments after the matter had been set for trial is somewhat troubling their substance did not as a practical matter result in unfair prejudice to Ms Walker for the reasons stated above Based upon our careful review of all pertinent circumstances we agree with the trial court conclusion that the defendants adequately s responded to Ms Walker discovery requests prior to trial and that she was s not unfairly surprised Further it is quite evident from the trial court oral s reasons for judgment and written findings of fact that the basis for its ruling was its finding of lack of adequate notice to the defendants rather than to the mortgagee banks Accordingly we find no abuse of discretion in the trial s court denial of Ms Walker motion to continue the trial and the admission s of the testimony of the bank witness and expert legal witness and there is no reversible error Ms Walker first second fourth and fifth assignments of s error have no merit Exception ofNo Right ofAction Ms Walker excepted to the third amended reconventional demand raising the issue of lack of notice to the mortgagee banks on the grounds that the defendants had no right of action to assert the nullity of the tax sale with regard to the mortgagees interests as opposed to their own The trial 15 court referred the issue to the merits at trial Ms Walker contends that the trial court committed error in overruling her exception and in allowing evidence of the lack of notice to the mortgagee banks to be presented by the defendants at trial Ms Walker does not contest the fact that neither of the mortgagee banks received notice of the tax sale Rather she challenges the right of the defendants to seek annulment of the tax sale based upon lack of adequate notice to the mortgagee banks Arguably Ms Walker argument might very well have merit with s respect to the procedural right of the defendants to seek annulment of the tax sale based solely upon lack of notice to other parties with ownership interests in the subject property In the case of Lewis v Succession of Johnson 05 1192 pp 1722 La 4 925 So 1172 118284 the 06 2d supreme court determined that the sheriff failed to send adequate written notice to three of the four coowners of the property sold at tax sale and held that such failure rendered the tax sale null and void However after so holding the court still found it necessary to determine whether the fourth co s owner onefourth interest had been divested Although the court ultimately found that the fourth coowner did not receive adequate notice its separate analysis of the adequacy of notice with regard to the individual one fourth interests in the property suggests that inadequacy of notice to one coowner or to a mortgagee invalidates the tax sale only as to that s person individual interest Id 05 1192 at p 22 925 So at 1182 2d However as we have noted above the ultimate basis of the trial s court judgment in this matter was its finding that the defendants did not receive adequate notice of the tax sale rather than lack of adequate notice to the mortgagee banks Thus if the trial court committed any error in LLB overruling the peremptory exception of no right of action such was harmless error Ms Walker sixth assignment of error has no merit s Annulment of the Tax Sale Ms Walker seventh and eighth assignments of error are directed to s the trial court findings of fact and decision on the merits at trial s At the time the sheriff mailed notice to the defendants of the impending tax sale at issue former La R 47 set forth the statutory S 2180 requirements for notice of delinquent taxes and tax sales In pertinent part the statute provided A 1 On the second day of January each year or as soon a thereafter as possible the tax collector shall address to each taxpayer who has not paid all the taxes which have been assessed to him on immovable property or to the record owner of the property for which the taxes are delinquent or to the actual owner in the event the record owner is deceased written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice or that the property will be sold according to law b On the second day of January of each year or as soon thereafter as possible in each year following the year in which the original notice of delinquency is made pursuant to Subparagraph a herein the tax collector shall address to each taxpayer who has not paid all the taxes which have been assessed to him on immovable property a written notice in the manner provided herein The notice shall specify the property upon which the taxes are delinquent the amount of taxes due and the manner in which the property may be redeemed The notice shall be made each year until the property is no longer redeemable as provided in Article VII Section 25 of the B Constitution of Louisiana The cost of mailing the notice shall be considered cost for purposes of redemption 2 Any taxpayer may designate one additional person to be notified in the event of a delinquency Such designated person shall receive the same notification as the delinquent taxpayer and such notice shall be made in the manner provided for herein 10 The statute was repealed by Acts 2008 No 819 2 effective January 1 2009 Section 1 of the same act enacted current La R 47 and B which generally S 2153 A reproduces the substance of the former statute with certain modifications See La R S 2153 47 Comments 2008 a 17 B The tax collector shall send to each taxpayer by certified mail with return receipt requested the notice prescribed herein provided that in cities containing a population of over fifty thousand persons the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer In the event the certified notice is returned as being undeliverable by the post office the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor property in the advertising required s for unknown owners in Subsection C of this Section After the tax collector shall have completed the service by the notices herein required either by mail or by personal or domiciliary service he shall make out a proces verbal stating therein the names of delinquents so notified their post office addresses a brief description of the property the amount of taxes due and how the service of notice was made Such proces verbal shall be signed officially by him in the presence of two witnesses and filed in the office of the clerk of court for recording and preservation This proces verbal shall be received by the courts as evidence The tax collector shall be entitled to collect actual mailing costs of each certified with return receipt notice and mileage shall be charged for service of this notice A like charge will be made if the property is adjudicated to the state or any subdivision thereof C The tax collector shall publish one general notice substantially in the form set forth herein addressed to all unknown owners of assessed immovable property situated in his parish and to nonresident owners of such property whose post office address is unknown in which he shall describe the property as described in the tax roll Such notice shall be published once a week for two weeks in a newspaper published in his parish or if there be none published in the parish then such notice shall be given in the manner provided by law for judicial sales He shall pay for the publication and shall be entitled to collect as costs therefor the pro rata share of the publication costs from each unknown owner or from the property assessed to him The collector shall certify on his tax rolls that he has published the notices and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding The evidence showed and the trial court found that the defendants purchased the subject property on March 24 1994 that they executed a collateral mortgage the same day in favor of Gulf Coast Bank and Trust Company listing the address of the property as their residence address and 18 that the mortgage was still recorded in the mortgage records of Tangipahoa Parish and in existence on the date of the tax sale At the time they purchased the subject property the defendants resided in Gulfport Mississippi Mr Smith testified at trial that he and his wife actually resided on the subject property from July 1998 through August 2005 when damage from Hurricane Katrina forced them to temporarily relocate their residence Even after they relocated however they continued to use the property address as s their primary address until sometime in 2007 Voluminous documentary evidence corroborated Mr Smith testimony A notice of federal tax lien s was filed in the parish conveyance records against the defendants in August 1998 and a certificate of release of the lien was filed in those records in May 1999 listing the defendants address as that of the subject property Both defendants registered to vote in Tangipahoa Parish in 1999 listing the address of the subject property as their residence address and the records of the registrar of voters confirmed that they both remained active voters through 2009 with no change in address The defendants also introduced in evidence a photocopy of Mr Smith Louisiana driver license issued on s s May 8 2000 listing his address as that of the subject property as well as a motor vehicle registration certificate issued to him on April 12 1999 listing the subject property address s And on June 26 2000 the defendants executed a second collateral mortgage on the subject property in favor of Omni Bank recorded in the mortgage records listing their residence address as that of the subject property This second collateral mortgage like that in favor of Gulf Coast Bank and Trust Company was still in existence and recorded when the sheriff mailed the notice of the tax sale 19 The notice of delinquent taxes mailed by the sheriff of Tangipahoa Parish was sent by certified mail on March 12 2001 to the defendants former address in Mississippi rather than to the address for the subject property It was returned stamped as undeliverable with no forwarding address with an additional handwritten notation of FOE forwarding order expired No notice of the tax sale was sent to either of the mortgagee banks Ms Walker on the other hand contends that the Mississippi mailing address to which the sheriff sent notice was the defendants correct address and therefore the subsequent publication of legal notice of the tax sale in the local newspaper pursuant to former La R 47 satisfied the S 2180 C requirements of due process She further contends that the defendants failure to notify the sheriff of their change in mailing address essentially served to relieve him of any burden of undertaking further inquiry to ascertain their new address for purposes of delivering notice of the tax sale We disagree It is well settled that the giving of notice of tax delinquency required by La Const art VII 1 A 25 and La R 47 is mandatory and S 2180 that failure to give this notice is constitutional grounds for the annulment of a tax sale Hamilton v Royal Int Petroleum Corp 05 846 p 6 La 1 06 22 2 934 So 25 30 cent denied 549 U 1112 127 S 937 166 2d S Ct 2d Ed L 704 2007 Whether a tax collector has properly notified a delinquent taxpayer of an impending tax sale a fundamental due process right must be closely scrutinized by the courts should the notice be challenged Id 05 846 at p 9 934 So at 32 Due process requires that 2d such notice must be sent by mail or other means certain to ensure actual notice if the party name and address are reasonably ascertainable s 20 Vincson Inc v Ingram 01 2655 p 3 La App 1st Cir 11 835 So 02 8 2d 813 815 citing Mennonite Bd of Missions 462 U at 800 103 S at S Ct 2712 It has been repeatedly held by the courts of our state that where the tax s debtor correct address is known and used certified mail with return receipt requested is a reasonable method of notifying the tax debtor of the impending tax sale Vincson Inc 01 2655 at p 3 835 So at 815 2d However where the mailing of a tax notice is required and a mailed notice is returned to the tax collector undelivered or unclaimed the tax collector must take additional reasonable steps to notify the tax debtor of a delinquency Lewis 05 1192 at p 9 925 So at 1178 To determine the 2d reasonableness of the tax collector actions the methods of attempted s notice must be examined Advertisements of tax sales have generally been held as insufficient to provide notice except in the case of unknown owners whose identities are not readily ascertainable Id 051192 at p 11 925 2d So at 1179 Thus notice of the tax delinquency by publication of an advertisement for an upcoming tax sale alone does not pass constitutional muster if the owners of the property can be identified or are easily discovered Id 05 1192 at p 12 925 So at 1179 2d In the Lewis case the supreme court noted that a simple search of the conveyance records would have revealed the addresses of the coowners who did not receive notice of the tax sale by mail Id 051192 at p 17 925 2d So at 1182 In the Vinson Inc case cited above the notice mailed by the sheriff was returned marked FOE as was the notice to the defendants here In that case we observed that as the delinquent taxpayer was a corporation required to file annual reports with the secretary of state a simple call by the s would have provided him with the correct heriff 21 address for notice and was an additional reasonable step that could have been taken Id 01 2655 at p 5 835 So at 816 2d The facts of this matter fall squarely within the relevant holdings of the cases cited in the preceding paragraph Although the nature and duration of defendants residence on the subject property and their use of its mailing address were vigorously contested by the parties at trial the trial court obviously found the defendants testimony and evidence on that issue to be credible The trial court provided detailed written findings of fact and oral reasons supporting its determination that notice of the tax sale was deficient and that the sheriff did not take additional reasonable steps to provide notice to the defendants such as simply examining the public records of the parish as required by the applicable law and jurisprudence The overwhelming preponderance of the evidence summarized above supports the trial court s determination that the tax sale was null and void based upon the applicable law Accordingly we find no manifest error The judgment of the trial court must therefore be affirmed Damages for Frivolous Appeal The recovery of damages for frivolous appeal is authorized by La P C art 2164 Our courts have been very reluctant to grant such damages under this article as it is penal in nature and must be strictly construed Additionally because appeals are favored in our law penalties for the filing of a frivolous appeal will not be imposed unless they are clearly due Guarantee Sys Constr Restoration Inc v Anthony 971877 La App 1st Cir 9 728 So 398 405 writ denied 98 2701 La 12 98 25 2d 98 18 734 So 636 Damages for frivolous appeal will not be awarded unless it 2d 11 The collateral mortgage in favor of Gulf Coast Bank and Trust Company listed Mr s Smith full name of Devant King Smith thus the defendants telephone listing of King Smith in the telephone book arguably should have prompted the sheriff to undertake further inquiry by telephone at the number listed for that name 22 appears that the appeal was taken solely for the purpose of delay or that the s appellant counsel or as here the appellant pro se does not seriously believe in the position he advocates Id We cannot conclude that the foregoing criteria exist with regard to this appeal We therefore deny the defendants answer to the appeal DECREE The judgment of the trial court annulling the tax sale of the subject property is affirmed The answer to the appeal of the defendantsappellees Devant K Smith and Martha C Smith is denied All costs of this appeal are assessed to the plaintiff appellant Annie Walker AFFIRMED ANSWER TO APPEAL DENIED 23
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