Constance v. Sudwischer

502 So. 2d 609
CourtLouisiana Court of Appeal
DecidedFebruary 13, 1987
Docket85-1105
StatusPublished
Cited by9 cases

This text of 502 So. 2d 609 (Constance v. Sudwischer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Constance v. Sudwischer, 502 So. 2d 609 (La. Ct. App. 1987).

Opinion

502 So.2d 609 (1987)

Joseph P. CONSTANCE, Plaintiff-Appellee,
v.
Herbert Thomas SUDWISCHER, Defendant-Appellant.

No. 85-1105.

Court of Appeal of Louisiana, Third Circuit.

February 13, 1987.
Writ Denied April 3, 1987.

*610 Cecil R. Sanner, Lake Charles, for defendant-appellant.

Jones, Jones and Alexander, Glenn Alexander, Cameron, for plaintiff-appellee.

Before FORET, STOKER, DOUCET, LABORDE, and KING, JJ.

KING, Judge.

The sole issue presented by this appeal is whether the trial court was correct in finding that the Sheriff and Ex Officio Tax Collector of Cameron Parish, Louisiana made a reasonable effort to notify a tax debtor of his tax delinquency prior to the sale of the tax debtor's property for unpaid taxes.

Joseph P. Constance (hereinafter sometimes referred to as Constance) filed suit against Herbert Thomas Sudwischer (hereinafter sometimes referred to as Sudwischer) to quiet title to property formerly owned by Sudwischer and conveyed to Constance by tax sale. After a trial on the merits, the trial court rendered judgment in favor of Constance, quieting and confirming the title to the property in favor of Constance and assessing all costs of the *611 proceedings against Sudwischer. From this judgment, Sudwischer devolutively appealed. We reverse.

FACTS

Herbert Thomas Sudwischer acquired full ownership of a certain parcel of beach front property located in Cameron Parish, Louisiana (hereinafter sometimes referred to as Lot 4) by an Act of Partition dated January 18, 1979 between Sudwischer and Clarco Leisure, Inc. (hereinafter sometimes referred to as Clarco). Sudwischer and Clarco previously had acquired a 1/16ths and a 15/16ths interest, respectively, in ownership in indivision of a larger tract of land which included Lot 4.[1] Sudwischer acquired his interest in the original tract of land by inheritance, as evidenced by a Supplemental and Amended Judgment of Possession filed in the records of Cameron Parish, Louisiana on February 13, 1978. Clarco acquired the other heirs' interests in the larger tract of land. Sudwischer and Clarco then subdivided the tract and entered into an Act of Partition.

The effect of the Act of Partition was to convey full ownership of Lot 4 to Sudwischer while conveying full ownership of the remainder of the subdivision to Clarco. The Act of Partition was filed in the conveyance records of Cameron Parish, Louisiana on February 6, 1979.

The Office of the Tax Assessor for Cameron Parish, Louisiana (hereinafter sometimes referred to as the Tax Assessor) examined the conveyance records and discovered the Act of Partition conveying full ownership of Lot 4 to Sudwischer. For the tax year 1980 the ad valorem tax rolls were changed to reflect Sudwischer's ownership, showing his acquisition as resulting from the Act of Partition. The Tax Assessor, in changing the tax roll to reflect the change in ownership, failed to show an address for Sudwischer, although the Act of Partition showed on its face that Sudwischer was a resident of Jefferson Parish, Louisiana. As a result the 1980 tax roll was turned over to the Sheriff and Ex Officio Tax Collector for Cameron Parish, Louisiana (hereinafter sometimes referred to as the Sheriff) for tax collection with Sudwischer listed as the owner of Lot 4, but without an address for mailing to him a notice of taxes due.

In an attempt to notify Sudwischer of his 1980 taxes due, the Sheriff mailed a tax notice to Sudwischer, c/o Clarco, at Clarco's Lake Charles, Louisiana address. At the time the tax notice was sent to Clarco, Clarco no longer owned any interest in Lot 4 as a result of the Act of Partition. The notice was not accepted and returned marked "Return to Writer." On February 8, 1981, a 1980 tax delinquency notice, or "Last Notice," was attempted to be sent by the Sheriff to Sudwischer via certified mail, again c/o Clarco at Clarco's Lake Charles address which was also not accepted and returned marked "Unclaimed." The Sheriff recorded in the mortgage records of Cameron Parish, Louisiana a proces verbal showing Sudwischer as a delinquent tax debtor for 1980 taxes and then twice published a general notice to tax debtors in the Cameron Parish Pilot, the official Cameron Parish newspaper. The proces verbal did not describe how service of notice on Sudwischer was made by the Sheriff, since notice to Sudwischer had been attempted but was unsuccessful.

Subsequently, on April 22, 1981, Constance purchased Lot 4 at a tax sale held *612 by the Cameron Parish Sheriff for 1980 taxes and Constance was issued a tax deed by the Sheriff which was recorded in the Conveyance Records of Cameron Parish, Louisiana on April 23, 1981.

In May, 1984, more than three but less than five years after recordation of the tax deed, Constance filed this suit to quiet title to the property purchased at tax sale.[2] On or about October 23, 1984, Sudwischer filed a separate suit to annul the tax sale of the same property in the suit entitled Herbert Thomas Sudwischer v. Joseph P. Constance, bearing Number 100-9812 on the Docket of the Thirty-eighth Judicial District Court. This suit to quiet title was consolidated for trial with the suit to annul the tax sale. A judgment was rendered in the consolidated cases in favor of Constance, quieting and confirming his title to the property and dismissing the demands of Sudwischer to annul the tax sale. These suits remain consolidated on appeal and, since the law and relevant facts are common to both, our opinion here is equally applicable. However, we render a separate judgment in the consolidated case of Sudwischer v. Constance, 502 So.2d 616 (La. App. 3rd Cir.1987).

During the trial, testimony was introduced to establish the usual practice employed by the Sheriff in attempting to give notice to delinquent tax debtors whose addresses are unknown. Testimony indicated that the Sheriff generally took steps to locate addresses for delinquent taxpayers, including checking the Cameron Parish conveyance records, looking in the Cameron and Lake Charles telephone directories and the Lake Charles City Directory, calling directory assistance and, on occasion, checking the obituary column in the local newspaper. The trial judge concluded that several of these steps were taken by the Sheriff to locate Sudwischer, but to no avail. The trial court therefore concluded that the Sheriff made a reasonable effort to notify Sudwischer of his 1980 delinquent taxes; that the Sheriff's proces verbal, as filed, was sufficient; and that "The publication in the parish newspaper was the proper notification to Mr. Sudwischer since he was a nonresident whose address was unknown." For these reasons the trial court rendered judgment in this suit, which was signed on August 5, 1985, in favor of Constance, quieting his tax title and taxing all costs of this suit against Sudwischer.

Sudwischer devolutively appealed the trial court judgment and contends:

(1) The trial court was in error in finding that Sudwischer was properly notified by the Cameron Parish Sheriff and Tax Collector of his tax 1980 delinquency;
(2) The trial court was in error in finding that the Cameron Parish Sheriff and Tax Collector took additional reasonable steps to notify Sudwischer of his 1980 tax delinquency.

Constance answers this appeal, contending that Sudwischer was properly notified of his 1980 tax delinquency and that the Cameron Parish Sheriff and Tax Collector took additional reasonable steps to notify Sudwischer of his 1980 tax delinquency.

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Bluebook (online)
502 So. 2d 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constance-v-sudwischer-lactapp-1987.