Eclectic Investment Partners, Lp v. City of New Orleans and Norman White, Director of Finance and Ex Officio Tax Collector

CourtLouisiana Court of Appeal
DecidedApril 8, 2020
Docket2019-CA-0895
StatusPublished

This text of Eclectic Investment Partners, Lp v. City of New Orleans and Norman White, Director of Finance and Ex Officio Tax Collector (Eclectic Investment Partners, Lp v. City of New Orleans and Norman White, Director of Finance and Ex Officio Tax Collector) 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
Eclectic Investment Partners, Lp v. City of New Orleans and Norman White, Director of Finance and Ex Officio Tax Collector, (La. Ct. App. 2020).

Opinion

ECLECTIC INVESTMENT * NO. 2019-CA-0895 PARTNERS, LP * COURT OF APPEAL VERSUS * FOURTH CIRCUIT CITY OF NEW ORLEANS AND NORMAN WHITE, DIRECTOR * STATE OF LOUISIANA OF FINANCE AND EX OFFICIO TAX COLLECTOR *

* *******

DYSART, J., DISSENTS.

I recognize that this Court’s recent decision of Harrier Enterprises, LLC v.

Imbornone, 19-0613 (La. App. 4 Cir. 1/29/20), 2020 WL 486804, --- So3d ----,

addressed the very issues raised in this appeal and, in fact, is the first reported

decision to address those issues. In my view, however, the Harrier decision, and

the majority in the instant matter, have applied the tax sale statutes in a manner

inconsistent with the underlying intent of these laws. While ordinarily the law of a

circuit is binding on that circuit, this Court has authority to refer this case to an en

banc panel to review the propriety of the Harrier decision, and determine whether

it should be overruled. Uniform Rules for the Courts of Appeal, Rule 1-5, provides

that, “[w]hen authorized by law, or when the court deems it necessary to promote

justice. . . , the court may sit in panels of more than 3 judges or en banc.” See also,

State v. Wright, 483 So.2d 1104, 1105 (La. App. 4 Cir. 1986)(“this court's internal

rule . . . prohibits handing down a decision that would be inconsistent with a prior

decision, and requires that it first be referred to the court en banc to decide whether

the panel may overrule or must follow the earlier decision); Bridgett v. Odeco, Inc.,

93-1536, p.8 (La. App. 4 Cir. 12/15/94), 646 So. 2d 1249, 1254 (“[i]n accordance

with the internal rules of this court, this proposal to overrule a prior decision of this

court was submitted to each member of the court); State v. Dean, 588 So. 2d 708, 709, n.1 (La. Ct. App. 1991)(rehearing granted “in accordance with the internal

rules of the court this opinion which overrules a previous opinion of this court was

considered by the court en banc); Fleckinger v. Smith, 319 So.2d 881, 889, n.4 (La.

App. 4 Cir. 1975)(rehearing granted so that the matter could be “submitted it to the

Court en banc pursuant to [the] internal rules because of an apparent conflict

between [the] original opinion and the previous decision of this Court”).

The issue in this matter is whether a tax sale purchaser, who purchases

property at a tax sale for the delinquent taxes for which the sale was invoked, can

be required to pay other delinquent taxes which were not included in the tax sale

(and could not have been included in that sale). In my opinion, under the tax sale

laws, the tax sale purchaser owes only those taxes which were included in the tax

sale; the tax selling authority cannot require it to pay those taxes for which it could

no longer invoke a tax sale. Accordingly, I would find that the City of New

Orleans improperly included taxes delinquent for more than three years on

Eclectic’s tax bill. As such, the trial court erred in failing to grant Eclectic’s

petition for a writ of mandamus.

“A writ of mandamus may be issued in all cases where the law provides no

relief by ordinary means or where the delay involved in obtaining ordinary relief

may cause injustice. . . .” La. C.C.P. art. 3862(A). La. C.C.P. art. 3863 then

provides that “[a] writ of mandamus may be directed to a public officer to compel

the performance of a ministerial duty required by law.” A “‘ministerial duty’ is

one in which no element of discretion is left to the public officer, in other words, a

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

imposed by law.’” Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566, pp.

12-13 (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037, writ denied, 17-0083 (La.

2/24/17), 216 So.3d 59, quoting Landis Const. Co., LLC v. Reg’l Transit Auth., 15-

0854, p. 10 (La. App. 4 Cir. 5/25/16), 195 So.3d 598, 605. La. C.C.P. art. 3865 indicates that, when a petition for a writ of mandamus is filed, “the court shall

order the issuance of an alternative writ directing the defendant to perform the act

demanded or to show cause to the contrary.”

A taxing authority may only issue a bill for taxes actually owed and may not

seek the payment of taxes to which a taxpayer is not liable, as is the case here.

Thus, I would find the removal of improper taxes on an ad valorem tax bill to be

ministerial in nature. See, e.g., Goux v. St. Tammany Par. Gov’t, 13-1387 (La.

App. 1 Cir. 10/24/14), 156 So.3d 714, 724 (the Parish’s failure to correct an error

in a zoning map “‘is a simple, definite fix of an undisputed ministerial error in

mapping [for which a] writ of mandamus was appropriate . . . as the requested

action . . . was simply a ministerial duty. . . .”); Gootee Const., Inc. v. Atkins, 15-

0376, p. 4 (La. App. 4 Cir. 11/4/15), 178 So.3d 629, 632 (“[m]andamus has been

held to be the proper remedy for compelling a recorder of mortgages to cancel or

erase an illegal or unauthorized inscription”)(internal citations omitted); State ex

rel. Coltraro v. City of New Orleans, 1 Pelt. 155 (La. Ct. App. 1918)(mandamus

was appropriate to compel the City to accept payment of taxes on real estate).

Tax sales are authorized by Louisiana Constitution Article VII, § 25(A)(1)

which provides, in pertinent part, that “[t]here shall be no forfeiture of property for

nonpayment of taxes. However, at the expiration of the year in which the taxes are

due, the collector, without suit, and after giving notice to the delinquent in the

manner provided by law, shall advertise the sale of the property on which the taxes

are due.” (Emphasis added). The use of the word “shall” indicates the mandatory

nature of this article. See La. R.S. 1:3 (“[t]he word “shall” is mandatory and the

word “may” is permissive.”); Oubre v. Louisiana Citizens Fair Plan, 11-0097, p.

12 (La. 12/16/11), 79 So.3d 987, 997. The Louisiana Supreme Court has made

clear that the only method by which delinquent ad valorem taxes may be collected

is through a tax sale. See Jackson v. City of New Orleans, 12-2742, p. 12 (La. 1/28/14), 144 So.3d 876, 887 (quoting Fransen v. City of New Orleans, 08-0076

(La. 7/1/08), 988 So.2d 225, 241 (“the constitution prohibits any method other than

a tax sale to collect delinquent ad valorem taxes . . .”)). See also, Mooring Tax

Asset Grp., L.L.C. v. James, 14-0109, p. 12 (La. 12/9/14), 156 So.3d 1143, 1151.

(“collection of delinquent real estate taxes can only be collected by tax sale of the

property, not a personal suit against the property owner.”).

Thus, La. Const. art. 7 § 25 imposes a mandatory duty upon a tax collector

(here, the City) to seek redress for recalcitrant taxpayers by seizing and selling

their property, the sole method by which it may do so.

This obligation is not without limitations. A taxing authority may only

proceed to a tax sale for ad valorem taxes which have been delinquent for no more

than three years. La. R.S. 47:2126 requires each assessor to “deliver to the

appropriate tax collector the tax roll for the year in which the taxes are collectible

by November fifteenth of each calendar year.” Under La. R.S. 47:1993 G, “[f]rom

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Related

Fleckinger v. Smith
319 So. 2d 881 (Louisiana Court of Appeal, 1975)
State v. Dean
588 So. 2d 708 (Louisiana Court of Appeal, 1991)
Bridgett v. Odeco, Inc.
646 So. 2d 1249 (Louisiana Court of Appeal, 1994)
Oubre v. Louisiana Citizens Fair Plan
79 So. 3d 987 (Supreme Court of Louisiana, 2011)
Jackson v. City of New Orleans
144 So. 3d 876 (Supreme Court of Louisiana, 2014)
Goux v. St. Tammany Parish Government
156 So. 3d 714 (Louisiana Court of Appeal, 2014)
Gootee Construction, Inc. v. Atkins
178 So. 3d 629 (Louisiana Court of Appeal, 2015)
Landis Construction Co. v. Regional Transit Authority
195 So. 3d 598 (Louisiana Court of Appeal, 2016)
Construction Diva, L.L.C. v. New Orleans Aviation Board
206 So. 3d 1029 (Louisiana Court of Appeal, 2016)
State ex rel. Coltraro v. City of New Orleans
1 Pelt. 155 (Louisiana Court of Appeal, 1918)
State v. Wright
483 So. 2d 1104 (Louisiana Court of Appeal, 1986)
Fransen v. City of New Orleans
988 So. 2d 225 (Supreme Court of Louisiana, 2008)

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Eclectic Investment Partners, Lp v. City of New Orleans and Norman White, Director of Finance and Ex Officio Tax Collector, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eclectic-investment-partners-lp-v-city-of-new-orleans-and-norman-white-lactapp-2020.