Rapides Parish Police Jury v. Catahoula Duck Club & Lodge

• Court: Louisiana Court of Appeal
• Decided: November 18, 2009
• Docket: CA-0009-0064
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-64

RAPIDES PARISH POLICE JURY

VERSUS

CATAHOULA DUCK CLUB & LODGE L.L.C., ET AL.

************ APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 231,119 HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

************

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Jimmie C. Peters, Michael G. Sullivan, and Billy H. Ezell, Judges.

PETERS, J., dissents and assigns written reasons.

SAUNDERS, J., dissenting for reasons assigned by Judge Peters.

AFFIRMED.

Ricky L. Sooter George I. Fine Provosty, Sadler, deLaunay, Fiorenza & Sobel 3600 Jackson Street, Suite 106 A Alexandria, LA 71303 Telephone: (318) 767-0366 COUNSEL FOR: PLAINTIFF/APPELLANT - Rapides Parish Police Jury

Richard E. Lee 810 Main Street Pineville, LA 71360 Telephone: (318) 448-1391 COUNSEL FOR: DEFENDANT/APPELLEE - Catahoula Duck Club & Lodge L.L.C., et al. THIBODEAUX, Chief Judge.

The Rapides Parish Police Jury appeals the trial court’s grant of an

exception of prescription dismissing the Catahoula Duck Club & Lodge L.L.C. from

the Police Jury’s attempt to obtain a declaratory judgment seeking to annul a sheriff’s

sale and recognizing that it has a right of way servitude across rural property located

in that parish. The trial court recognized that the Police Jury was entitled to notice

of the sheriff’s sale. Relying on La.R.S. 13:3886.1(A), however, it determined that

the one year prescriptive period provided for in the statute applied to the nullity

request. We affirm, but for reasons different from those relied upon by the trial court.

I.

ISSUE

We shall determine whether the Police Jury’s request to nullify a public

sale on the basis of a federal due process violation was proper and whether La.R.S.

13:3886.1(A) applies under the circumstances of this case.

II.

FACTS

The immovable property at issue is located in the Northeast Quarter of

the Northwest Quarter of fractional Section 4, Township 5 North, Range 3 East of

Rapides Parish and was acquired by Richard Daigre in two separate transactions.1

Richard Daigre died on April 10, 2001, and on July 8, 2003, the administrator of his

succession, James L. Broadwell, III, and the then President of the Rapides Parish

Police Jury, Richard W. Billings, executed a document entitled “SERVITUDE OF

1 Mr. Daigre obtained the property in two separate transactions, one being the acquisition of a 1.37 acre tract, and the other being the acquisition of a 22.320 acre tract. The larger tract surrounds the smaller on three sides, and they share a common northern boundary with an adjacent tract. WAY FOR PUBLIC ROAD” (Servitude Agreement) which purports to grant the

Police Jury “a servitude and right of way over and across [the Daigre property].”

Attached to the Servitude Agreement are two plats. The first was

prepared by Frank L. Willis, a land surveyor, and dated September 26, 1984. The plat

depicts the property at issue and shows a dirt or gravel road traversing part of the

property, running from the northeast to the southwest across the property, and

connecting with a public road on the west side of the property. The northeast end of

the road does not completely traverse the property. The second plat, which is dated

August 14, 1998, was also prepared by Mr. Willis and shows a twelve-foot wide

gravel road in the same location as the road shown on the 1984 plat. The primary

difference between the two plats is that in the second, the road completely traverses

the property on the northeast side. It is this twelve-foot strip that constitutes the right

of way granted to the Police Jury.

This litigation arises because on February 20, 2004, while the property

was still under administration, the Southern Heritage Bank instituted foreclosure

proceedings on the property. This action resulted in a public sale of the property at

a Rapides Parish Sheriff’s sale on September 27, 2006. The Police Jury received no

notice of any step in these proceedings.

After it purchased the property at the public sale, the Southern Heritage

Bank conveyed the property to Thomas Reich, who subsequently entered into

agreements transferring an interest in the property to the defendants in this litigation:

the Catahoula Boys Hunting and Social Club, Inc.; the Catahoula Duck Club; Richard

E. Lee; and, Betty Lee Kirst Dent. On April 4, 2008, the Police Jury brought suit

against these defendants, seeking to nullify the public sale and to have its servitude

recognized. Thereafter, the Catahoula Duck Club filed exceptions of prescription and

2 no cause of action.2 After a hearing, the trial court granted the exception of

prescription, and the Police Jury perfected this appeal.

III.

LAW AND DISCUSSION

The Police Jury sought relief from the trial court based on the United

States Supreme Court holding in Mennonite Bd. of Missions v. Adams, 462 U.S. 791,

103 S.Ct. 2706 (1983). There, the Supreme Court held that before a state may

deprive a person of a legally protected right to life, liberty, or property, it must first

provide notice which is reasonably calculated, under all circumstances, to apprise the

interested party of the pending action and afford them an opportunity to object. In

Mennonite, a mortgagee learned two years after the fact that property on which it held

a mortgage was sold pursuant to a tax sale. In that instance, an Indiana statute

provided for notice by three consecutive weeks of publication and by notice posted

at the courthouse. Under the facts of Mennonite, the Supreme Court held that

constructive notice via publication alone was unreasonable, especially as the

mortgagee’s address was easily ascertainable. Because the mortgagee’s address was

discoverable, the Supreme Court held that, in that instance, notice reasonably

calculated to inform the mortgagee of the pending suit would have been through

personal service or by mail.

The Police Jury argued that the July 2003 Servitude Agreement

conveyed to it a property interest entitling it to notice of the foreclosure proceedings,

and that the failure to provide it with notice violated its due process rights as provided

for in U.S. Const. amend. XIV, as recognized by the Mennonite decision. In its

2 None of the other defendants filed exceptions, and we find nothing in the record to suggest that the other defendants at any later time joined with the Catahoula Duck Club filings or acquiesced therein. Therefore, the only issue before us relates to this single defendant’s filings.

3 reasons for judgment, the trial court agreed with the Police Jury’s argument that it

was entitled to notice pursuant to Mennonite, but concluded that the prescriptive

period set forth in La.R.S. 13:3886.1(A) applied and that the Police Jury’s claim had

prescribed. Louisiana Revised Statutes 13:3886.1(A) provides in pertinent part:

The failure to notify any lienholder or other interested person having an interest in the property shall not affect the rights of the seizing creditor nor invalidate the sheriff’s sale; nor shall any lien, privilege, or other encumbrance that is inferior to the rank of the lien of the seizing creditor affect the property after the sheriff’s adjudication. The exclusive remedy for any person affected by the provisions of this Subsection shall be to institute a claim by summary pleadings, within one year from the date of the sheriff’s adjudication, proving that he has been damaged by the failure to notify him.

(Emphasis added).

We decline to address the Police Jury’s argument that the trial court’s

holding violated its Fourteenth Amendment due process rights by refusing to find that

the sale of the subject property via sheriff’s sale was null and void for failing to

provide it with prior notice as required by Mennonite, 462 U.S. 791, 103 S.Ct. 2706.

This argument, as expressed on appeal, is an indirect constitutional attack on La.R.S.

13:3886.1, and the Police Jury did not challenge the constitutionality of La.R.S.

13:3886.1. The Police Jury itself framed the issue as, “[c]an Louisiana Revised

Statute 13:3886.1, which attempts to provide a one year prescriptive period to remedy

the failure of notice, limit the Federal Constitutional notice requirement?” Thus, the

Police Jury is asserting that La.R.S. 13:3886.1 provides an unconstitutional limitation

on the federal constitution’s Fourteenth Amendment due process provisions.

As stated by the Louisiana Supreme Court in State v. Hatton, 07-2377,

p. 13 (La. 7/1/08), 985 So.2d 709, 718, we are “not required to decide a constitutional

issue unless the procedural posture demands that [we] do so.” The party raising the

4 issue bears the burden of proving a statute unconstitutional. Id. To do so, the

complaining party must first raise the statute’s unconstitutionality in the trial court,

through specific pleadings which particularize the grounds for the claim. Vallo v.

Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859. Furthermore, the

pleading attacking the statute’s constitutionality must be served on the attorney

general, affording him the opportunity to be heard on the issue. La.R.S. 49:257(C)

and La.Code Civ.P. art. 1880. Here, none of the aforementioned requirements have

been met, and we will not address the constitutionality of La.R.S. 13:3886.1. Thus,

the only issue we have before us is whether the prescriptive period set forth in La.R.S.

13:3886.1 applies in this case.

Considering only that issue, we find that La.R.S. 13:3886.1 does apply,

and the Police Jury’s request for relief has prescribed. The sheriff’s sale occurred on

September 27, 2006, and the Police Jury did not file this suit until April 4, 2008.

Pursuant to La.R.S. 13:3886.1(A), the Police Jury had one year from September 27,

2006, to institute its action for damages. As its April 4, 2008 petition was beyond the

one-year-time limit, the trial court’s grant of judgment in favor of the Catahoula Duck

Club was correct.

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the

exception of prescription in favor of the Catahoula Duck Club & Lodge L.L.C. is

affirmed. We assess all costs of this appeal to the Rapides Parish Police Jury and set

the amount of those costs at $570.50, as required by La.R.S. 13:5112.

5 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-0064

PETERS, J., dissenting.

I agree with the factual background set forth in the majority opinion as well as

its conclusion that the constitutionality of La.R.S. 13:3886.1 is not before us.

However, I do not agree with the majority that the Rapides Parish Police Jury’s

(Police Jury) claim had prescribed pursuant to that statute.

In its reasons for judgment, the trial court concluded that the failure to provide

notice to the Police Jury of the foreclosure proceedings violated the Police Jury’s due

process rights as provided for in U.S. Const. amend. XIV and as recognized by

Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706 (1983).

Because the Catahoula Duck Club did not appeal or answer the Police Jury’s appeal,

the trial court’s judgment on this issue is a final judgment and we cannot address the

merits of that judgment. Thus, the only issue before this court is the trial court’s

ruling that the Police Jury’s action is governed by La.R.S. 13:3886.1, and therefore

had prescribed. However, unlike the majority, I do not find that this issue is before

us in the context of a constitutional attack on the statute itself.

In its prayer for relief, the Police Jury did not seek damages as allowed by

La.R.S. 13:3886.1. Instead, it requested that the sheriff’s sale be declared null and

void to the extent that the sale purported to extinguish the right of way created by the

1 July 8, 2003 Servitude Agreement. Nor did the Police Jury raise the constitutional

issue in its pleadings. Instead, it suggested that La.R.S. 13:3886.1 was not applicable

to the matter at hand. I agree that the statute is not applicable, as the sale is an

absolute nullity as it applies to the Police Jury, and “no peremptive or prescriptive

period can breathe life into something that never existed.” Pardon v. Moore, 39,949,

pp. 10-11 (La.App. 2 Cir. 8/17/05), 908 So.2d 1253, 1259 (citing Gram Realty Co.

v. Northern Homes, Inc., 308 So.2d 502 (La.App. 1 Cir. 1975)).

Although in the context of a tax sale and not a foreclosure, this court, in Smith

v. Brooks, 97-1338, p. 7 (La.App. 3 Cir. 4/15/98), 714 So.2d 735, 739, held that “the

failure to give notice of the tax delinquency and sale to the record owner rendered the

tax sale an absolute nullity.” That being the case, this court held, “the passage of the

peremptive period [provided by La.Const. art. 7, § 25(C)] had no effect on the record

owner’s right to seek nullification of the tax sale, deferring to the supremacy of the

Fourteenth Amendment to the United States Constitution as interpreted in

Mennonite.” See also, Parkview Oak Subdivision Corp. v. Tridico, 95-604 (La.App.

1 Cir. 11/9/95), 667 So.2d 1101, writ denied, 96-622 (La. 5/10/96), 672 So.2d 921,

(wherein the first circuit specifically excluded coverage of La.R.S. 13:3886.1 in a

similar tax sale situation).

The first circuit addressed the issue before us in the context of a third possessor

not receiving notice of a foreclosure proceeding by a mortgage holder in Henderson

v. Kingpin Development Co., 01-2115 (La.App. 1 Cir. 8/6/03), 859 So.2d 122. In that

matter, the plaintiff purchased a tract of immovable property that had been mortgaged

by his ancestor in title, with a balance due and owing on the mortgage at the time he

acquired title. Thereafter, the mortgagee instituted foreclosure proceedings on the

property, using the statutory scheme for foreclosure as set out in La.Code Civ.P. arts. 2635-2638. The original mortgagor received notice, but the only other notice was the

advertisement of the sheriff’s sale, which appeared in the newspaper.

The court in Henderson recognized that “there is no statutory requirement that

the present owner receive notice of the seizure” in the case of a foreclosure

proceeding and that a third possessor can protect himself by complying with the

request notice of La.R.S. 13:3886. Id. at 127. Notwithstanding that recognition, the

court went on to say that a third possessor’s request for notice pursuant to La.R.S.

13:3886 “does not relieve the responsible state actor in a particular case from

exercising the reasonable diligence appropriate in the circumstances to ascertain,

reasonably, the identity of an individual or entity subject to the deprivation of his or

its property.” Id. Furthermore, the court concluded:

[A] seizing creditor who avails itself of Louisiana’s foreclosure procedures is constitutionally obligated to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action. Davis Oil Company [v. Mills], 873 F.2d [774,] 778 [(5th Cir.), cert. denied, 493 U.S. 937, 110 S.Ct. 331 (1989)], citing Mullane [v. Central Hanover Bank & Trust Co., 339 U.S. 306] , 70 S.Ct. [652,] 657; see Bonner v. B-W Utilities, 452 F.Supp. 1295, 1300 (W.D.La.1978). The decision in Mennonite sets forth a federal constitutional requirement; thus, its holding regarding standards for notice cannot be altered by a state statute such as LSA-R.S. 13:3886.1, and federal law is controlling in this circumstance. See Parkview Oak Subdivision Corporation v. Tridico, 95-0604 (La.App. 1st Cir.11/9/95), 667 So.2d 1101, 1104, writ denied, 96-0622 (La.5/19/96), 672 So.2d 921.

Id. at 129.

In the matter before us, the correctness of the trial court’s determination that

the Police Jury’s Fourteenth Amendment due process rights were violated is not

before us. The effect of this determination leaves us with a null and void foreclosure

sale as it applies to the Police Jury. That being the case, the prescriptive provisions

3 of La.R.S. 13:3886.1 do not apply. Thus, the rights granted to the Police Jury by the

Servitude Agreement remain in full force and effect.

I would reverse the judgment of the trial court dismissing the Police Jury

action, and would remand for further proceedings.