Preview:

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 18 FROM: CLERK OF THE SUPREME COURT OF LOUISIANA

The Opinions handed down on the 4th day of April, 2006, are as follows:

BY CALOGERO, C.J.:

2005-C -1192

GABRIEL LEWIS, JR. v. SUCCESSION OF MATTHEW JOHNSON, ET AL. (Parish of St. Landry) We reverse the judgment of the Court of Appeal. We declare the tax sale to plaintiff, Gabriel Lewis, as absolute nullity with regard to Matthew Johnson, Sr., Myrtle Johnson Franklin, Deola Mae Johnson James and Aaron Perry Johnson, Sr.'s individual one-fourth interests in the property. We, therefore, annul the tax sale. REVERSED.

04/04/2006 SUPREME COURT OF LOUISIANA No. 2005-C-1192 GABRIEL LEWIS, JR. VERSUS SUCCESSION OF MATTHEW JOHNSON, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF ST. LANDRY CALOGERO, Chief Justice In this case, we are called upon to decide whether a practice of providing notice of the delinquent property taxes on immovable property, to only one co-owner of property owned with others in indivision, deprives the other co-owners of due process, thus rendering a subsequent tax sale null and void. The district court and court of appeal held this tax sale valid, finding that the tax collector provided sufficient notice to the property owners, defendants' ancestors in title. Following our review of the facts and applicable legal principles, we find that the delinquent tax notice provided to only one co-owner of immovable property in this case is deficient, rendering the subsequent tax sale null and void with regard to the other co-owners' interests in the property. Further, a tax collector may not substitute for actual or written notice a publication advertising a tax sale, which is similarly deficient for failing to list each property owner's name or failing to furnish an additional means of reasonable identification of the property. FACTS AND PROCEDURAL HISTORY On June 15, 1994, the Sheriff and Tax Collector of the Parish of St. Landry (hereinafter "sheriff") sold a thirteen-acre property to Plaintiff, Gabriel Lewis, Jr.

1

(hereinafter referred to as "Lewis") for the sum of $90.00.1 At the time of the St. Landry Parish tax sale, Deola Mae Johnson James, Matthew Johnson, Sr., Myrtle Johnson Franklin, and Aaron Perry Johnson, Sr. (hereinafter collectively referred to as "the Johnson siblings") co-owned the thirteen-acre property. Defendants,

Matthew Johnson, Jr., Saida Johnson Baker, Sidney B. Johnson, Allen Johnson, Charles Franklin, Cynthia Franklin Steward, and Aaron Perry Johnson, Jr. (hereinafter collectively referred to as "the Johnson heirs") inherited the property from the four Johnson siblings. On April 2, 2003, Lewis filed a petition to quiet tax title. The Johnson heirs challenged this petition and argued that the sale was null because they had not received proper notice of the tax sale, which violated the coowners' rights to due process under the Fourteenth Amendment of the United States Constitution. Prior to the tax sale, the thirteen-acre tract had been in the Johnson family name since 1962 when Laura Aaron Johnson, wife of Ned Johnson, acquired the property in a partition with the heirs of Simon Aaron. Fifteen years later in 1977, Laura Johnson sold the thirteen acre-tract to her four children, who in the act of sale are identified as "Deola Mae Johnson James, Matthew Johnson, Sr., Myrtle Johnson Franklin, and Aaron Perry Johnson, Sr." The four siblings remained the record coowners at the time of the tax sale in 1994. The St. Landry Parish's Assessor's Office assessed the thirteen-acre tract in the name of "Johnson, Matthew, et als., c/o Deola Mae James, 4020 Ave. M, Galveston, TX 77550." Although the record does not indicate why only Deola Mae, instead of all four co-owners, received the annual tax notice, it was she who was the only co-

The immovable property consisted of a thirteen-acre piece of land in Section 14, T-7-S, R-3-E, designated as "Tract 2" in St. Landry Parish. 2

1

owner that had received the tax notice for sixteen successive years.2 At trial, Chief Deputy Priscilla Taylor of the St. Landry Parish Assessor's Office testified concerning the practice of preparing the tax rolls as follows: "We normally send one tax notice. If the property is undivided it doesn't matter how many people own it, we only generate one tax notice." According to her, in the ordinary course of business, the assessor assesses the property in the name of the first named vendee in the act transferring title, unless the property owners request that the property be assessed in a name other than the first named vendee. The assessor sends no notice to the remaining co-owners. Until 1993, the United States Post Office successfully delivered the tax notice to Deola Mae Johnson James, and the property taxes were timely paid. In 1993, however, the taxes were not paid. A delinquent tax notice was prepared and sent to "Johnson, Matthew, et als., c/o Deola Mae James, 4020 Ave. M, Galveston, TX 77550." The sheriff sent the notice by certified mail return receipt requested on three separate dates, but on each occasion, the notice was returned and marked unclaimed by the United States Postal Service. Consequently, the sheriff advertised in The Daily World, a newspaper published in the city of Opelousas, Louisiana, the upcoming tax sale on three different occasions: May 23, 1994, June 5, 1994, and June 14, 1994. In short, the newspaper notice stated that the thirteen-acre tract would be sold at 10:00 a.m. on Wednesday, June 15, 1994, for non-payment of the 1993 property taxes.3 The sheriff did not make any other attempts to notify Deola Mae nor any
Not only does the record not indicate why Deola Mae was the only sibling notified, but there was no testimony or other proof concerning the reason for this exclusion of the other siblings. Testimony from the Johnson siblings was not available when the case was tried because none of the four, Deola Mae or her three siblings, survived. A photocopy of the advertisement purchased by the Sheriff is included in the record and is reproduced below: PUBLIC NOTICE LEGAL NOTICE TAX SALE (continued...) 3
3 2

attempt, apparently, to find and/or notify the other co-owners. At the tax sale, Lewis purchased two tracts, the thirteen-acre tract of land involved in this case and a second property, a fifteen-acre tract of land that had also been owned by the Johnson siblings before they sold that tract to one J.C. Guillory on August 18, 1993, almost ten months before the involved tax sale. On April 11, 1996, the sheriff executed a certificate of redemption for the fifteen-acre tract after receiving $319.23 from Deola Mae Johnson James.4 When Lewis attempted to quiet title to the thirteen acre tract in 2003, the Johnson heirs contested the tax sale. They alleged that not a single Johnson sibling had received proper notice of the tax sale. The Johnson heirs sought dismissal of Lewis's lawsuit. The district court rendered judgment in favor of Lewis and upheld the tax sale.
3

(...continued) OF IMMOVABLE PROPERTY TAX DEBTORS AND NOTICE OF MORTGAGE CREDITORS STATE OF LOUISIANA VS. DELINQUENT TAX DEBTORS PARISH OF ST. LANDRY LOUISIANA By virtue of authority vested in me by the constitution and laws of the State of Louisiana, I will sell at the principal front door of the Court House in which the civil district court of said parish is held, at the legal hour for judicial sales beginning at 10:00 a.m. on Wednesday, June 25, 1994, continuing on each succeeding day until said sales are completed, immovable taxes are now due to the State of Louisiana and Parish of St Landry, and Levee District, to enforce collection, assessed in the year 1993 from the 31st of December, 1993, at the rate of fifteen percent per annum until paid and costs.... 01 05087000.00 JOHNSON, MATHEW, ET ALS C/O DEOAAS VM VT TAXES OWED ARE 45.37 WITH INTEREST AN D 15.00 AC N PRUDENTIALS S COURVILLE E W PREIS-609226 (Y-20511) 01 05087500.00 JOHNSON, MATHEW, ET ALS C/O DEOLA M E AENX0 TAXES OWED ARE 64.00 WITH INTEREST ASOED 13 AC IN SEC 14 T-7S R-3E LOT 2 611185 (0 [verbatim]

The Johnson heirs argue that the sheriff erroneously applied this payment to the fifteenacre tract instead of the thirteen-acre tract. We need not ascertain whether the Johnson heirs' contention in this regard is correct. Whether true or not, that has no bearing on our resolution of this case. 4

4

Assigning reasons for judgment, the district court determined that the sheriff had taken the proper steps by mailing the appropriate tax notices, issuing the appropriate delinquency notices, and making the appropriate advertisements. The district court further added that neither the sheriff nor the assessor could have easily ascertained the addresses of the various owners of the property.5 The Johnson heirs appealed the district court's judgment to the Court of Appeal, Third Circuit, arguing that the tax sale was invalid because none of the coowners of the property had received proper notice. Rejecting the Johnson heirs' argument, the court of appeal majority affirmed the district court judgment. Lewis v. Succession of Johnson, 04-1413 (La. App.3 Cir. 4/20/05), 900 So.2d 1114. After acknowledging the obvious, that the sale of property at a tax sale is an action that affects property rights under the Fourteenth Amendment, the court of appeal agreed with the district court's finding that the sheriff had taken additional reasonable steps to notify the taxpayer of the delinquency after the original notice was returned undelivered. Id. The panel opined that to require the sheriff or the assessor to conduct a title search would impose an overly burdensome duty. Id. The appellate court concluded that, under La. Rev. Stat. 47:2180, the sheriff had taken the requisite steps by sending legal notice to the owners' "duly designated representative," Deola Mae, at the valid and duly designated address, followed by proper publication of the tax sale on three separate occasions. Id. The Johnson heirs filed an application for writ of certiorari in this court, seeking review of the lower courts' rulings. In their application, the Johnson heirs essentially adopted the argument of the dissenting judge in the court of appeal. The dissenting judge found, and the Johnson heirs argued, that because the sheriff and the

The Johnson heirs contend that a simple search in the conveyance records would have provided the names and addresses of all of the co-owners. 5

5

Assessor's Office did not provide reasonable notice to all of the co-owners of the property as required under the Fourteenth Amendment and United States Supreme Court precedent, the tax sale is an absolute nullity. Our court has not had occasion to address this Fourteenth Amendment issue as it applies in a case of co-owners after 1983 when the United States Supreme Court rendered its opinion in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L. Ed. 2d 180 (1983). We granted this application to consider the merit of the Johnson heirs' arguments. Lewis v. Succession of Johnson, 05-1192 (La. 12/9/05), __ So.2d ___. LAW AND DISCUSSION The Johnson heirs contend that none of their four ascendants had received notice of the tax sale and consequently, that the tax sale of June 15, 1994 is null and void. We must, therefore, determine whether the tax sale is null and void because of the deficiencies in the notice that was given. In this case, the sheriff sent notice by registered mail to Deola Mae James on three separate occasions, but did not send notice to her siblings, causing this court to evaluate the notice provided to the siblings separately from the notice provided to Deola Mae. Thus, we must address whether the sheriff sufficiently notified the Johnson siblings of their delinquent property taxes as required by the Fourteenth Amendment and whether the subsequent tax sale deprived the Johnson siblings of their property rights as co-owners of the immovable property. In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L. Ed.2d 180 (1983), the United States Supreme Court recognized that the sale of property for nonpayment of taxes is an action that affects a property right protected by the Due Process Clause of the Fourteenth Amendment.6 In Mennonite, the

6

The Fourteenth Amendment to the United States Constitution states: (continued...) 6

mortgagee of a property contested a tax sale that occurred after the homeowner had failed to pay her property taxes. Mennonite, 462 U.S. at 794. The mortgagee was not provided notice of the mortgagor's delinquent payment of the taxes or the subsequent tax sale. Id. After evaluating the mortgagee's claim from a due process perspective, 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. More specifically, and of even greater relevance to the case before us, the Supreme Court has held that notice must be sent by mail or other means certain to ensure actual notice if the party's name and address are readily ascertainable. Mennonite, 462 U.S. at 800. Mennonite is not the only authority requiring notice to the record owner of property. La. Const. art. VII,

Download 05C1192.pdf

Louisiana Law