Caitlin Cooley v. Errol G. Williams, in His Official Capacity as Assessor for the Parish of Orleans

• Court: Louisiana Court of Appeal
• Decided: January 30, 2023
• Docket: 2022-CA-0564
• Status: Published

Opinion

CAITLIN COOLEY * NO. 2022-CA-0564

VERSUS * COURT OF APPEAL ERROL G. WILLIAMS, IN HIS * OFFICIAL CAPACITY AS FOURTH CIRCUIT ASSESSOR FOR THE PARISH * OF ORLEANS STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-04545, DIVISION “L” Honorable Kern A. Reese, Judge ****** Chief Judge Terri F. Love ****** (Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Rachael D. Johnson)

Jonathan D. Lewis Daniel E. Davillier Charles Ferrier Zimmer, II DAVILLIER LAW GROUP, LLC 935 Gravier Street, Suite 1702 New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

John Jurgen Weiler Reese F. Williamson WEILER & REES, LLC 909 Poydras Street Suite 1250 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED January 30, 2023 TFL

DNA The plaintiff, Caitlin Juleann Cooley (“Ms. Cooley”), appeals the district

RDJ court’s denial of her petition for writ of mandamus filed against the defendant, Erroll

G. Williams, in his official capacity as Assessor for the Parish of Orleans (“the

Assessor”), wherein Ms. Cooley sought to have the district court issue a writ of

mandamus ordering the Assessor to reverse his decision to deny Ms. Cooley’s

application for a homestead exemption.

The Assessor was within his authority to deny Ms. Cooley a homestead

exemption based on her failure to prove valid ownership of the subject property.

Finding that the district court properly denied Ms. Cooley’s request for a writ of

mandamus, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Flag Boy Properties, L.L.C. (“Flag Boy”) purchased an immovable piece of

property located at 930 Forstall Street at an Orleans Parish Tax Sale. Flag Boy

recorded an affidavit as set forth in La. R.S. 47:2157(D) with the Orleans Parish

Recorder of Mortgages. Flag Boy sold the aforementioned property to Z Squared

1 Enterprises, L.L.C. (“Z Squared”). Thereafter, Z Squared sold the property to Ms.

Cooley.

Ms. Cooley applied for a homestead exemption. The Assessor denied Ms.

Cooley’s application for a homestead exemption. In its denial, the Assessor

explained that Ms. Cooley’s predecessor in interest, Flag Boy, purchased the subject

property and then sold the property to Z Squared without quieting title to the

property. Z Squared also failed to quiet the title to this tax sale property.

Ms. Cooley filed a petition for writ of mandamus seeking to overturn the

Assessor’s decision to deny her application for a homestead exemption. Following

the conclusion of the hearing, the district court took the matter under advisement,

and subsequently, issued a judgment denying Ms. Cooley’s writ of mandamus. Ms.

Cooley now appeals the district court’s judgment.

ASSIGNMENTS OF ERROR

On appeal, Ms. Cooley raises the following assignments of error: (1) the

district court erred as a matter of law by failing to issue a writ of mandamus directing

the Assessor to perform his ministerial duty and to issue Ms. Cooley her

constitutionally guaranteed homestead exemption; and (2) the district court erred by

(i) considering the application of La. R.S. 47:2157, and (ii) holding that this statutory

scheme does not effectively quiet title to the property, when (iii), that issue was not

properly before the trial court in the mandamus proceeding.

2 STANDARD OF REVIEW

Appellate courts normally “review a trial court’s decision to deny a request

for a writ of mandamus under an abuse of discretion standard.” Constr. Diva, L.L.C.

v. New Orleans Aviation Bd., 16-0566, p. 13 (La. App. 4 Cir. 12/14/16), 206 So.3d

1029, 1037. “‘[A] trial court’s findings of fact in a mandamus proceeding are subject

to a manifest error standard of review.’” Jarquin v. Pontchartrain Partners, L.L.C.,

19-0737, p. 7 (La. App. 4 Cir. 1/22/20), 289 So.3d 1129, 1134 (quoting Commodore

v. City of New Orleans, 19-0127, p. 9 (La. App. 4 Cir. 6/20/19), 275 So.3d 457, 465-

66). However, where statutory interpretation is at issue in mandamus proceedings,

appellate courts apply a de novo standard of review. Town of Sterlington v. Greater

Ouachita Water Co., 52,482, p. 12 (La. App. 2 Cir. 4/10/19), 268 So.3d 1257, 1265,

writ denied, 19-00913 (La. 9/24/19), 279 So.3d 386, and writ denied, 19-00717 (La.

9/24/19), 279 So.3d 931 (citing Newman Marchive P’ship, Inc. v. City of Shreveport,

07-1890, p. 3 (La. 4/8/08), 979 So.2d 1262, 1265). In a mandamus proceeding,

“questions of law, such as the proper interpretation of a statute, are reviewed by

appellate courts under the de novo standard of review, and the appellate court is not

required to give deference to the lower court in interpreting a statute.” Commodore,

19-0127 at p. 9, 275 So.3d at 465-66.

DISCUSSION The issue before this Court is whether the district court properly denied Ms.

Cooley’s petition for writ of mandamus. “A writ of mandamus may be directed to a

public officer to compel the performance of a ministerial duty required by law, or to

a former officer or his heirs to compel the delivery of the papers and effects of the

3 office to his successor.” La. C.C.P. art. 3863. A ministerial duty is defined as a

“simple, definite duty, arising under conditions admitted or proved to exist, and

imposed by law.” Hoag v. State, 04-0857, p. 7 (La. 12/1/04), 889 So.2d 1019, 1024;

see also Alberta, Inc. v. Atkins, 12-0061, pp. 2-3 (La. 5/25/12), 89 So.3d 1161, 1163

(citing La. C.C.P. art. 3861).

The public officer sought to be compelled in this matter is the Assessor. The

Assessor is charged with the statutory duty of assessing the properties in Orleans

Parish and setting an official value for the properties so the same can be applied to

the City’s tax rolls. The Assessor is also responsible for issuing homestead

exemptions to Orleans Parish property owners.

The right to a homestead exemption is created and guaranteed by Louisiana

Constitution Article VII, § 20(A)(1). La. R.S. 47:1703.1 provides in paragraph (A)

that the tax assessor “shall provide a form to property owners within the parish for

permanent registration for the benefits of the homestead exemption. . .” Paragraph

(B) provides that “[a] homestead exemption so claimed shall remain valid without

necessity of renewal of the claim as long as the claimant and property qualify for the

exemption.” Id. A homestead exemption is a constitutionally guaranteed right for

all Louisiana property owners and any local administrative rule or ordinance

restricting the application must be strictly construed so as to prevent the local rule

or ordinance from circumventing what has been constitutionally granted. See

Robertson v. Stonecreek Builders, LLC, 50,798 (La. App. 2 Cir. 8/10/16), 200 So.3d

851.

The issue of whether the trial court should have denied Ms. Cooley’s petition

for writ of mandamus depends upon whether Ms. Cooley truly owned the property

located at 930 Forstall Street. The tax sale procedures were overhauled by the

4 enactment of 2008 Sess. Law Serv. Act 819 (H.B. 337) (“Act 819”), which became

effective January 1, 2009. Central Properties v. Fairway Gardenhomes, LLC, 16-

1855, 16-1946, p. 10 (La. 6/27/17), 225 So.3d 441, 448. Pursuant to these revisions,

“the tax collector no longer auctions the real estate itself; instead, the tax collector

auctions a tax sale title to the property, as evidenced by a tax sale certificate per La.

Rev. Stat. 47:2155, which neither transfers nor terminates the property interest of

any person in the property.” Id., p. 11, 225 So.3d at 449. A “tax sale title” is “the

set of rights acquired by a tax sale purchaser.” La. R.S. 47:2122. According to the

Louisiana Supreme Court, such set of rights acquired by the tax sale purchaser

amounts to a lien on the property. See Central Props., 16-1855, 16-1946, p.12, 225

So.3d at 449.

Prior to the tax sale, the tax collector is required to provide to the property

owner notice of the tax delinquency and of the pending tax sale. La. R.S.

47:2153(A)(1)(a). After the tax sale, the tax collector issues to the tax sale purchaser

a tax sale certificate, which is required to be recorded in the parish conveyance

records. La. R.S. 47:2155(A). Further, after the tax sale and within the three-year

redemptive period, the tax collector is required to notify the property owner that tax

sale title has been sold at tax sale, and that the owner has three years to redeem the

property beginning from the date the tax sale certificate was recorded in the land

records. La. R.S. 47:2156(B) & (C). The property owner has three years to redeem

the property from the tax sale purchaser by making a cash payment to the tax

collector of the tax sale price plus costs incurred, fees and interest associated

therewith. La. R.S. 47:2243; La. R.S. 47:2244; La. Const. art. VII, § 25(B)(1).

After the expiration of the three-year redemptive period, another notice of tax

sale must be provided to the owner. La. Const. art. VII § 25(C); La. R.S. 47:2157(A).

5 For this notice, if five years have elapsed since the tax sale certificate was recorded,

the required notice must provide the owner with 60 days to file suit to challenge the

tax sale. La. R.S. 47:2157(A)(1)(a). In the alternative, if less than five years have

elapsed since the tax sale certificate was recorded, the required notice must provide

that the owner has six months to file suit to challenge the tax sale. La. R.S.

47:2157(A)(1)(b). The tax sale purchaser may also publish notice in the newspaper.

La. R.S. 47:2157(B). After the expiration of the periods set forth in the post-

redemption notices mentioned above, the tax sale purchaser is allowed to record an

affidavit with the recorder of mortgages setting forth how the noticed parties were

identified, to whom and where the post-redemption notices were sent, and the results

of sending the notices. La. R.S. 47:2157(D).

A review of the statutory language of La. R.S. 47:2157 itself shows that the

Subsection D affidavit does not purport to quiet tax title. La. R.S. 47:2157 and the

official revision comments thereto show that the Subsection D affidavit was intended

to provide evidence of notice in a judicial proceeding to quiet title. See Harrier

Enters., LLC v. Imbornone, 19-0613 (La. App. 4 Cir. 1/29/20), ___ So.3d ___, 2020

WL 486804. While not law, the official revision comments can be helpful in

determining legislative intent.

Subsection (E) provides that recording the Subsection D affidavit “shall

operate as a cancellation, termination, release, or erasure of record of all statutory

impositions due and owing to the political subdivision prior to the recordation of the

tax sale certificate, and of all interests, liens mortgages, privileges, and other

encumbrances recorded against the property and listed in the affidavit.” La. R.S.

47:2157(E). The revision comments explain that “Subsection (E) provides that the

filing of the affidavit cancels all statutory impositions due prior to the recordation of

6 the tax sale certificate since the purchase price paid was the amount of those statutory

impositions of the taxing authority conducting tax sales.” La. R.S. 47:2157, Rev.

Cmt. (f).

“[T]he recorder of mortgages and recorder of conveyances shall treat as

canceled, terminated, released, or erased, as applicable, all the liens, privileges,

mortgages, interests, or other encumbrances canceled, terminated, released, or

erased under Subsection E of this Section, only insofar as they affect the property.”

La. R.S. 47:2157(F). The official revision comments explain that “Subsection F

requires the recorders to treat those items listed as terminated in the affidavit as in

fact terminated.” La. R.S. 47:2157, Rev. Cmt. (g). “Therefore, a mortgage

certificate should not reflect those terminated encumbrances.” Id.

For the purposes of Subsections (E) and (F) to La. R.S. 47:2157, the effect of

recording the Subsection D Affidavit is limited to terminating encumbrances on the

property that existed prior to the recordation of the tax sale certificate. Further, this

Court determined “that the purpose of the provision allowing for the cancellation of

statutory impositions by affidavit was to eliminate only those prior encumbrances

that were actually satisfied through the proceeds of the tax sale.” Harrier Enters.,

___ So.3d ___, 2020 WL 486804 at 4. This Court took the same position in another

recent case, Eclectic Inv. Partners, LP v. City of New Orleans, 19-0895, p. 5 (La.

App. 4 Cir. 4/8/20), ___ So.3d ___, ___, 2020 WL 1717477 *3.

Louisiana courts have held that “[t]he tax sale purchaser does not acquire title

and full ownership in a tax sale property until there is a judgment in a suit to quiet

title (LSA-R.S. 47:2266), a monition proceeding (LSA-R.S. 47:2271, et seq.), or a

7 suit to terminate the interests of the property owner (LSA-R.S. 47:2157).”[1]

Libertas Tax Fund I, LLC v. Laiche, 21-0330, p. 11 (La. App. 1 Cir. 12/22/21), 340

So.3d 236, 244, writ denied, 22-00160 (La. 4/12/22), 336 So.3d 82; LPR, L.L.C. v.

Naquin, 20-0847, p. 9 (La. App. 1 Cir. 2/19/21), 319 So.3d 369, 376. “It is not until

there is a judgment in a suit to quiet title (La. R.S. 47:2266), a monition proceeding

(La. R.S. 2271, et seq.), or a suit to terminate the interests of the property owner (La.

R.S. 47:2157) that a tax sale purchaser acquires title and full ownership in a tax sale

property.” Id.

Ms. Cooley takes the position that the recordation of the Subsection D

Affidavit is sufficient to confirm and quiet tax sale title to the property at issue.

However, such interpretation places the deprivation of one person’s rights to their

property solely on the unilateral assertion of the tax sale purchaser, who has a self-

interest to acquire full title to the property. Under Ms. Cooley’s theory, all a tax sale

purchaser needs to do is file an affidavit claiming that the purchaser took all of the

necessary steps to notify the owner as required, and if the purchaser so states in the

affidavit, he or she will then be considered the new property owner, free and clear

of all encumbrances. Such an outcome would create harmful results and also violate

public policy.

Assessors in Louisiana have a duty to provide an application for homeowners

to apply for a homestead exemption. La. R.S. 47:1703; La. R.S. 47:1703.1. As part

1 In Flag Boy Props., LLC v. Dickerson, this Court stated without discussion that “[t]itle to property

may be quieted either by filing a petition to quiet title or by affidavit pursuant to La. R.S. 47:2157(D).” 19-0754, p. 5 (La. App. 4 Cir. 1/29/20), 291 So.3d 241, 244. The question of whether La. R.S. 47:2157 may quiet title to tax sale property was not raised by the parties, but rather was assumed to be true, and was not an issue considered in the Court’s reasoning. Id. “A case does not create precedent for a proposition that was not argued by the parties and did not make part of the court’s ratio decidendi.” Harrah’s Bossier City Inv. Co., LLC v. Bridges, 09- 1916, p. 16 (La. 5/11/10), 41 So.3d 438, 450.

8 of the application process, the homeowner applying for the exemption must show to

the assessor that he or she qualifies for the exemption. As such, the homeowner

must show that they have valid ownership of the property. In the instant case, Ms.

Cooley cannot show that she has valid ownership of the property. From her

predecessors in interest, Ms. Cooley only acquired a tax sale title, which is only the

set of rights acquired by a tax sale purchaser, and not valid ownership of the property.

There has also never been a proper judicial proceeding instituted to quiet title to the

property. The only actions that Ms. Cooley took were to apply to the Assessor for a

homestead exemption, and when that was unsuccessful, to file a petition for a writ

of mandamus to force the Assessor to issue a homestead exemption.

This Court discussed the parameters to issue a writ of mandamus in Humane

Soc’y of New Orleans v. Landrieu, 13-1059, p. 3 (La. App. 4 Cir. 2/26/14), 135 So.3d

1195, 1197, (quoting A.M.E. Disaster Recovery Servs. Inc. v. City of New Orleans,

10-1755, p. 8 (La. App. 4 Cir. 8/24/11), 72 So.3d 454, 459)), as follows:

“‘A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law [ ... ]’ La. C.C.P. art. 3863. A writ of mandamus is an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief.’ Hoag v. State, 040857, p. 6 (La. 12/01/04), 889 So.2d 1019, 1023. The remedy ‘must be used sparingly ... to compel action that is clearly provided by law.’ Hamp’s Const., L.L.C. v. Hous. Auth. of New Orleans, 10–0816, pp. 3–4 (La. App. 4 Cir. 12/01/10), 52 So.3d 970, 973, quoting Allen v. St. Tammany Parish Police Jury, 96–0938, p. 4 (La. App. 1 Cir. 2/14/97), 690 So.2d 150, 153. ‘Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised.’ Hamp’s, 100816, p. 4, 52 So.3d at 973. ‘The remedy is not available to command the performance of an act that contains any element of discretion, however slight.’ Id.”

Here, we find the Assessor acted within his discretion to deny Ms. Cooley’s

application for homestead exemption as the evidence did not show that she was the

9 valid owner of the property located at 930 Forstall Street. Accordingly, the district

court properly denied Ms. Cooley’s petition for writ of mandamus.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the district

court denying Ms. Cooley’s petition for writ of mandamus.

AFFIRMED