Candace Johnson v. Angelica Solorazano Sotomayor, Alberto Jose Sotomayor, Jr., the Alberto Jose Sotomayor, III Trust, State of Louisiana and State of Louisiana, Division of Administration, Office of Community Development

• Court: Louisiana Court of Appeal
• Decided: February 2, 2022
• Docket: 2021-CA-0460
• Status: Published

Opinion

CANDACE JOHNSON * NO. 2021-CA-0460

VERSUS * COURT OF APPEAL ANGELICA SOLORAZANO * SOTOMAYOR, ALBERTO FOURTH CIRCUIT JOSE SOTOMAYOR, JR., THE * ALBERTO JOSE STATE OF LOUISIANA SOTOMAYOR, III TRUST, ******* STATE OF LOUISIANA AND STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF COMMUNITY DEVELOPMENT

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-06330, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Regina Bartholomew-Woods)

Wesley M. Plaisance BREAZEALE, SACHSE & WILSON, L.L.P. 909 Poydras Street, Suite 1500 New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLEE

Jonah A. Freedman JONAH FREEDMAN LAW, LLC 700 Camp Street, Suite 316 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED FEBRUARY 2, 2022 RBW

TFL

RLB

This civil appeal arises from Appellee’s purchase of a tax sale certificate of

an immovable property. The trial court granted a default judgment naming

Appellee as the sole owner of the immovable property and later denied Appellant’s

motion for a new trial. Appellant asserts the property had been redeemed prior to

the granting of the default judgment and requests that this Court either overturn the

default judgment or alternatively, grant a new trial.

For the reasons that follow, we affirm the judgments of the trial court.

PROCEDURAL HISTORY

On April 11, 2017, Plaintiff-Appellee, Candace Johnson (“Appellee”)

attended a tax sale conducted by the Director of Finance and Ex-Officio Tax

Collector for the City of New Orleans and purchased a tax sale title to an

immovable property located at 2009-11 6th Street in New Orleans, Louisiana for

the unpaid ad valorem taxes for the year 2016. Prior to the tax sale, title to the

property was in the names of: Angelica Solorazano Sotomayor (“Appellant”),

1 Alberto Jose Sotomayor, Jr. a/k/a Alberto Jose Sotomayor and/or The Alberto Jose

Sotomayor, III Trust.

On June 13, 2017, the tax sale certificate, dated May 18, 2017, was recorded

in the conveyance records of Orleans Parish as Instrument Number 619910.

On February 24, 2020, Appellant requested a redemption calculation payout

from the City of New Orleans’ Bureau of the Treasury and received a tax sale

redemption calculation in the amount of $13,003.03. Appellant was informed that

the calculation was good through March 31, 2020. The redemption calculation

stated that the payments could be mailed to the treasury.

On March 16, 2020, Governor John Bel Edwards issued a stay-at-home

order in response to the COVID-19 pandemic. For the duration of the stay-at-home

order, Appellant chose not to mail in her redemption payment by the March 31st

deadline, which was an option as the United States mail system had not been

halted.

On July 29, 2020, Appellee filed a petition to quiet title and sought a

judgment confirming her tax sale title and sole ownership of the Property.

Appellant was served, via domiciliary service, on August 11, 2020, by the

Jefferson Parish Sheriff’s Department. On August 11, 2020, Defendant Alberto

Jose Sotomayor, Jr., was served with a certified copy of the citation and petition.

Neither Appellant nor the other defendants filed an answer, exception, or any other

pleadings.

On July 30, 2020, Appellee filed a notice of lis pendens in the Mortgage

Records for the Parish of Orleans.

On August 17, 2020, Appellant received a new redemption calculation of

$13,511.62 due by August 25, 2020. Appellant paid off the total, in person, on

2 August 25, 2020, via cashier’s check. The Bureau of the Treasury allegedly mailed

a notice of tax sale redemption to Appellee on August 26, 2020.

On February 19, 2021, Appellee filed a Motion for Entry of Preliminary

Default.

On February 22, 2021, the trial court rendered a preliminary default

judgment against all defendants.

On April 6, 2021, Appellee filed a motion to confirm default judgment

against all defendants.

On April 7, 2021, following a hearing, the trial court rendered a final default

judgment granting Appellee sole ownership of the property, enjoining all

defendants from setting up rights to the property, and cancelling the multiple

indebtedness mortgage.

On April 16, 2021, Appellant filed a motion for new trial on the grounds that

the tax sale certificate had been timely redeemed and that the default judgment was

rendered based on ill-practice or fraud.

On April 22, 2021, Appellee opposed the motion for new trial. Appellant

filed a reply memorandum clarifying that she sought the new trial only under the

discretionary grounds set forth in La. C.C.P. art. 1973, further arguing ill practice,

and claimed that she was entitled to a new trial because she could not redeem the

property by July 5, 2020, due to the COVID-19 pandemic.

On April 27, 2021, following a hearing, the trial court denied Appellant’s

motion for new trial reasoning: Appellant could have mailed in her payment by the

March 31, 2021 deadline; and Appellant failed to allege and prove good reason for

failing to file responsive pleadings.

The instant appeal timely followed.

3 DISCUSSION

Assignments of Error

Appellant asserts the following assignments of error:

(1) The trial court erred in granting the default judgment in favor of Appellee; (2) The trial court erred in denying the motion for new trial.

Analysis

Standard of Review

This Court shall first review the trial court’s granting of the default

judgment. “‘In reviewing default judgments, the appellate court is restricted to

determining the sufficiency of the evidence offered in support of the judgment.’”

Precept Credit Opportunities Fund, L.P. v. Brown, 2020-0114, p. 3, (La. App. 4

Cir. 7/22/20) –So. 3d—2020 WL 4199728 (hereinafter Precept) (quoting Arias v.

Stolthaven New Orleans, LLC, 08-1111, p. 5 (La. 5/5/09), 9 So. 3d 815, 818). Final

default judgments are reviewed under the manifest error standard. Id.

Conversely, the denial of a motion for new trial is reviewed under the abuse

of discretion standard. Robertson v. Lafayette Ins. Co., 11-0975, p. 8 (La. App. 4

Cir. 2/8/12), 85 So. 3d 186, 191 (citation omitted). The trial court is granted wide

discretion when deciding whether to grant a new trial. Id., La. C.C.P. Art. 1973.

“‘The abuse of discretion standard is highly deferential, but a court necessarily

abuses its discretion if its ruling is based on an erroneous view of the law.’” Autin

v. Voronkova, 2015-0407, p. 4 (La. App. 4 Cir. 10/21/15), 177 So. 3d 1067, 1070

(quoting LCR–M Limited Partnership v. Jim Hotard Properties, L.L.C., 13–0483,

p. 9 (La. App. 4 Cir. 10/9/13), 126 So.3d 668, 675).

4 I. Default Judgment

In her first assignment of error, Appellant asserts the trial court erred in

granting the default judgment because the petition to quiet title was not supported

by a prima facie showing. Specifically, Appellant argues that Appellee falsely

claimed ownership of the property in the petition and failed to file credible

evidence sufficient to determine the tax sale parties and their respective interests.

Claim of Ownership

Appellant argues that in the petition for default judgment, Appellee falsely

claimed the tax title converted to ownership. Per Appellant, ownership conversion

before the filing of the petition can only occur according to certain notice practices

outlined in La. R. S. Ann. §47:2121(C)(1) and La. R. S. Ann. §47:2122(4);

therefore, Appellant’s claim of ownership was false.

According to Appellant, Appellee was claiming “simultaneous conversion”

of the tax title to ownership in her petition by using ownership language, and this

was fraudulent because due notification had not occurred. The relevant portion of

La. R. S. Ann. §47:2121C(1) states, “If the tax sale property is not redeemed

within the redemptive period, then at the termination of the redemptive period, tax

sale title transfers to its holder ownership of the tax sale property, free of the

ownership and other interests, claims, or encumbrances held by all duly notified

persons” (emphasis added). Louisiana Revised Statute 47:2122(4) defines “duly

notified” as, “an effort meeting the requirements of due process of law [ ] made to

identify and to provide that person with a notice that meets the requirements of

R.S. 47:2156, 2157, 2206, 2236, or 2275, or with service of a petition and citation

in accordance with R. S. 47:2266….”

5 Appellant argues simultaneous conversion only occurs when notice is

carried out via La. R. S. Ann. §47:2156 which requires:

A. Within the applicable redemptive period, the tax sale purchaser may send a written notice to any or all tax sale parties notifying the parties of the sale. *** B. (1)(b) For each property for which tax sale title was sold at tax sale to a tax sale purchaser, the tax collector shall within ninety days of the expiration of the redemptive period provide written notice to each tax notice party that tax sale title to the property has been sold at tax sale. Appellant’s argument that, as defendants, they were entitled to written notice

ninety (90) days prior to the expiration of the redemptive period per §

47:2156(B)(1)(b) is without merit. The ninety-day notice requirement was an

amendment added on June 19, 2019. The amendment became effective on August

15, 2019. Because the sale at issue in this case took place in 2017, this amendment

is not applicable to this case. The law in effect on the date of the sale is controlling.

Cent. Properties v. Fairway Gardenhomes, LLC, 2016-1855, p. 10 (La. 6/27/17),

225 So. 3d 441, 448.1

The claim of ownership in Appellee’s petition for default judgment is a term

of art used in these petitions.2 The claim of ownership is a conclusion based upon

certain milestones being met. Appellee’s petition clearly states she is seeking full

ownership and lays out the actions taken to acquire ownership. Her petition is in

line with similarly filed petitions.

1 Wherein the Louisiana Supreme Court explained that, “it is the language in effect at the time of the tax sale … that applies to this sale,” and subsequently reversed the appellate court’s ruling that insufficient notice occurred. 2 This Court reviewed prior petitions of the same nature to confirm the use of the ownership language.

6 Admissible Evidence

Appellant next argues that the trial court violated La. C. E. art. 1101 by

relying upon inadmissible evidence and unsupported claims because it relied on

unauthenticated evidence to establish prior ownership and their interests in the

property.

Article 1101 outlines the applicability of the code of evidence to different

branches of law. This has no bearing on the case because the applicability of the

code of evidence is not in question.

The more applicable law is La. C. C. P. art. 1702A(1) which provides that a

default judgment may be granted if: 1) “a defendant in the principal or incidental

demand fails to answer or file other pleadings within the time prescribed by law or

by the court,” and 2) “the plaintiff establishes a prima facie case by competent and

admissible evidence that is admitted on the record”, as long as “notice that the

plaintiff intends to obtain a default judgment is sent….”

Regarding the sufficiency of the evidence, the petition to quiet title must

contain:

[A] description of the property, the time and place of the sale, and the name of the officer who made the sale, the page and record book and date of filing of the tax sale certificate, and for adjudicated properties sold or donated by a political subdivision, reference to the page of record book and date of filing of the sale or donation, notice that the petitioner is the holder of tax sale title to the property by virtue of tax sale or is the owner of the property by virtue of a sale or donation of adjudicated property, and notice that the title and full ownership in the property will be confirmed unless a proceeding to annul is instituted within six months after the date of service of the petition and citation.

La. Stat. Ann. § 47:2266A. “A certified copy of the tax sale certificate is prima

facie evidence of the regularity of all matters regarding the tax sale and the validity

7 of the tax sale.” La. R.S. Ann. § 47:2155B. A live hearing and submission of the

evidence on the record is also necessary to establish a prima facie case. Precept,

WL 4199728 at p. 7.

Appellee submitted a certified copy of the tax sale as evidence. Additionally,

Appellee provided live testimony at the hearing on the petition. All defendants

were duly served with the petition and thus notified in accordance with La. R.S.

43:2122(4). The certified tax sale certificate was prima facie evidence, the

defendants were timely and duly notified and failed to answer or make an

appearance. A live hearing was conducted and competent evidence was entered

into the record. Thus, we find that the trial court did not err in granting the default

judgment in favor of Appellee.

II. Motion for New Trial

In the second assignment of error, Appellant asserts the trial court erred in

denying the request for a new trial. Specifically, Appellant argues: 1) the trial court

abused its discretion by denying Appellant’s constitutional right to a full three-year

tax sale redemption period; 2) Appellant provided an absolute defense, thus

negating the need for “good” reasons for a new trial; 3) Appellant provided a

contention of “ill-practice;” 4) the trial court improperly took judicial notice of

City Hall’s reopening for redemption requests; and 5) a notice of lis pendens has

no effect on a timely redeemed tax sale.

Full Three-Year Redemption Period

Because the tax sale was registered on June 13, 2017, the three-year

redemptive period originally expired on June 13, 2020. This was later extended to

July 5, 2020, in response to the Covid-19 pandemic. La. R. S. Ann. §9:5828, et

seq. Thus, Appellant had until July 5, 2020, to affect a redemption. However,

8 Appellant did not pay off the redemption total until more than a month later on

August 26, 2020. Appellant claimed she tried to get a complete payoff calculation

but was stymied in her redemption attempts through no fault of her own, due to the

pandemic-related closures until August 17, 2020. She further stated that the trial

court abused its discretion by insisting the redemption payment could have been

mailed and redeemed by March 31, 2020 – four months before the three-year

redemption period tolled.

Appellant misunderstood the trial court’s reasoning. The trial court was not

insisting the payment had to be made by March 31, 2020; but rather, questioned

why Appellant did not mail in the payment she claimed to have by the March

deadline. The trial court further highlighted Appellant’s emails were sent to an

invalid email address and could have been corrected by Appellant.3 After

reviewing and considering Appellant’s reasons for paying after July 5, 2020, the

trial court found there was no error on the part of the City that hindered

Appellant’s ability to pay, but rather, Appellant’s own acts led to the failure to

redeem in a timely manner. The court further reasoned there were no equitable

reasons to allow for redemption beyond the three-year period.

The trial court did not unconstitutionally limit the redemption period, but

rather took into consideration all factors Appellant provided for not paying on

time—including her failure to mail in her payment based on the initial redemption

calculation—and made a reasoned determination that a new trial was not

warranted.

3 Appellant typed the email domain as “@nola.nola.com” rather than “@nola.com.”

9 Good Reasons for a New Trial

Generally, a new trial may be granted if a party provides good grounds for

the new trial. La. C. C. P. art. 1973. If the party seeking a new trial provides an

absolute defense or a contention of ill-practice, then good grounds for a new trial

exist. Hardy v. Kidder, 292 So. 2d 575, 579 (La. 1973). Appellant asserts the

redemption paid on August 26, 2020 serves as an absolute defense, and further

argues, Appellee was aware the tax sale had been redeemed and failed to disclose

this fact to the trial court, thus engaging in an ill-practice.

The Louisiana Supreme Court, in Hardy, did not state that an absolute

defense was always a good ground for a new trial. The Court specifically stated

that the absolute defense which was not timely pled, “solely because of the neglect

of counsel,” created a good ground. Hardy, 292 So. 2d at 579. In Hardy, the Court

reasoned that the attorney’s failure to present the defense was not the client’s fault.

Id. In the current case, Appellant did not allege there was neglect by her attorney.

In the instant case, this Court finds the case of DeFrances v. Gauthier, 220

La. 145, 55 So.2d 896 (1951) more on point. In DeFrances, the defendant failed to

appear timely and urge his defense. 55 So. 2d at 897. The defendant offered no

explanation for failing to timely appear. Id. The Court reasoned that the cause of

the defendant’s non-appearance was due to his own neglect in appearing or in

retaining an attorney, rather than any reasonable reliance upon a neglectful

attorney timely retained and therefore a good ground for a new trial was not

established. Hardy, 292 So. 2d at 579 (contextualizing DeFrances).

In the current case, Appellant did not answer the petition in any way, not

even after making the redemption payment. Instead, Appellant waited until after

the default judgment to act and assert an absolute defense. Appellant’s failure to

10 act was not due to inability or poor legal advice, but rather the result of a personal

choice not to act. The absolute defense does not exist to create good cause.

Appellant’s contention that Appellee committed ill-practice by not

disclosing the redemption is not supported by the record. There is no evidence in

the record that the City mailed, or that Appellee received, any notice of the

redemption payment.

Judicial Notice

Appellant next asserts the trial court erred in taking judicial notice that city

hall was open to the public on July 5, 2020, because it is a disputed fact that city

hall was indeed open to the public on that date. Appellant asserts the Bureau of

Treasury, specifically, was not open to provide a new redemption calculation until

mid-August and outlined attempts she made to try and get a new calculation. The

trial court, despite Appellant’s, claim noted that city hall was open to the public on

July 5, 2020, and Appellant could have made a payment.

In this case, the trial court did not specifically state it was taking judicial

notice of the date city hall was open to the public, but did dismiss Appellant’s

assertion that city hall was closed to the public on a particular date. “A judicially

noticed fact must be one not subject to reasonable dispute in that it is either: (1)

Generally known within the territorial jurisdiction of the trial court; or (2) Capable

of accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned.” La. C. Evid. Ann. art. 201. Furthermore, the court may

take judicial notice of governmental websites. Daurbigney v. Liberty Pers. Ins.

Co., 2018-929, p. 2 (La. App. 3 Cir. 5/9/19), 272 So. 3d 69, 71 n. 1.

Appellant’s claim that city hall was closed to the public is not a disputable

fact because knowledge of city hall’s operations was capable of ready

11 determination by reviewing the City of New Orleans official website. A review of

mandates issued by the Mayor’s Office for the City of New Orleans does not

indicate any closing of city hall to the public; but rather, limited public access and

it, in turn, had set up online resources per a press release dated March 15, 2020.4

No proclamations or mandates closed city hall or any offices. Additionally, there

were no press releases announcing the closing (or reopening) of the bureau of

treasury. It is also notable, that Appellant specifically referred to appearing at city

hall in person. The trial court referenced the fact that Appellant had options beyond

personally appearing at city hall and failed to make use of those options.

Appellant’s assertion that the trial court erred by improperly taking judicial

notice of the opening of city hall is without merit.

Lis Pendens

Lastly, Appellant asserts the trial court erred in determining that Appellee’s

notice of lis pendens filed on July 30, 2020, precluded any effect of Appellant’s

later-occurring redemption. Appellant first claims a redemption of a tax sale is not

a transfer5 as contemplated by La. R.S. 47:2266, but rather a dissolution of rights

and cannot be prevented by a notice of lis pendens.

Appellant’s argument fails because a legally valid tax sale, “is beyond attack

and becomes indefensible after the period of redemption … has expired.” Meshell

v. Bauer, 215 La. 619, 624, 41 So. 2d 237, 239 (1949). Appellant’s redemption

was ultimately extended to July 20, 2020. She failed to redeem within that time

4 Mayor’s Office, https://nola.gov/mayor/news/march-2020/mayor-cantrell-updates-residents-on- response-to-covid-19-outbreak-en/ (last visited Jan. 21, 2022). 5 Appellant used the term “new transfer;” however, there is no mention in statute or in the brief of why the transfer must be “new.”

12 despite having alternative methods for redemption. The redemption was untimely

and therefore the notice of lis pendens was effective.

The trial court did not err in denying Appellant’s motion for new trial.

CONCLUSION

Based on the aforementioned, we find that the trial court did not err in

granting the default judgment to quiet title because Appellee made a prima facie

showing sufficient to justify the granting of a default judgment. There were no

false claims of ownership, notice was proper and duly served.

Furthermore, the trial court did not err in denying the motion for new trial

because good grounds did not exist to grant the new trial.

Thus, for the foregoing reasons, we affirm the judgments of the trial court.

AFFIRMED