Smith v. Brumfield

133 So. 3d 70, 2013 La.App. 4 Cir. 1171, 2014 WL 535720, 2014 La. App. LEXIS 96
CourtLouisiana Court of Appeal
DecidedJanuary 15, 2014
DocketNo. 2013-CA-1171
StatusPublished
Cited by28 cases

This text of 133 So. 3d 70 (Smith v. Brumfield) 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
Smith v. Brumfield, 133 So. 3d 70, 2013 La.App. 4 Cir. 1171, 2014 WL 535720, 2014 La. App. LEXIS 96 (La. Ct. App. 2014).

Opinion

PAUL A. BONIN, Judge.

I,Tanya Smith purchased immovable property in New Orleans at a tax sale after Nolan Brumfield, the owner of the property, failed to pay the ad valorem taxes for the 2008 tax year. During the redemptive period, Ms. Smith received two notices from the City of New Orleans threatening her with fines and other enforcement action if she did not remediate the unoccupied and apparently blighted property. In response, Ms. Smith obtained an ex parte writ of possession from the district court and made repairs to the property. The City nonetheless took enforcement action, imposed a fine, and declared the property blighted.

Prior to the expiration of the redemptive period, however, Mr. Brumfield tendered the past due taxes with interest and costs, and obtained a certificate of redemption. Notwithstanding Ms. Smith’s writ of possession, Mr. Brumfield then took actual possession of the property. Mr. Brumfield did not reimburse Ms. Smith for any of the funds that she expended to repair the property.

Ms. Smith instituted suit against Mr. Brumfield and others in which she sought inter alia injunctive relief by which she would possess the property and |2prohibit Mr. Brumfield’s occupancy and possession until Ms. Smith was fully reimbursed or otherwise able to acquire title to the property. Mr. Brumfield answered the suit and sought injunctive relief against Ms. Smith to prohibit her possession and occupancy of the property. On May 30, 2013, the trial judge denied Ms. Smith’s request for a preliminary injunction, and, on July 8, 2013, the trial judge granted a preliminary injunction in favor of Mr. Brumfield. Ms. Smith timely appealed both judgments.1 See La. C.C.P. art. 3612 C. See [73]*73also Smith v. Brumfield, unpub., 13-0928 (La.App. 4 Cir. 7/2/13).

Because Ms. Smith has not shown irreparable harm in the absence of injunctive relief or a likelihood of success at the trial on the merits, we conclude that the trial judge did not abuse her discretion in denying injunctive relief to Ms. Smith. We therefore affirm the trial court’s rulings and explain our decision in greater detail below.2

I

We turn in this Part to describe the facts underlying this controversy.

Is ^

Mr. Brumfield acquired the residential property located at 12941 Parlange Court in New Orleans in 2004. Mr. Brumfield, however, did not pay his ad valorem taxes for 2008, and the property was sold at tax sale to Ms. Smith. On December 3, 2009, the City’s Finance Director executed a Tax Sale Deed to Ms. Smith upon her payment of the full amount of the delinquent taxes, interest, penalties, and costs due for that property. Notably, the Tax Sale Deed in bold print and capital letters set forth: “This sale shall be redeemable for a period of three (3) years, or for eighteen months (18) months if blighted or abandoned, from the filing and recordation date of this deed in the parish conveyance office.” (emphasis added). The recordation date shown on the instrument is February 9, 2010.

On February 8, 2013, the Finance Director issued a Certificate of Redemption to Mr. Brumfield which stated that Mr. Brumfield had deposited the full amount of taxes, interest, penalties and costs due for the years of 2008 through 2013 with the City of New Orleans’ Tax Collector. Mr. Brumfield re-took actual possession of the property the next day.

During the period between the date of the tax sale and the issuance of the redemption certificate, the property became the subject of code enforcement for public health, housing, and environmental violations. On July 22, 2011, the City issued two notices at the property’s address to Mr. Brumfield commanding him to appear at a hearing on August 31, 2011. The record neither indicates whether Mr. Brumfield received notice of the hearing, nor what action, if any, occurred on that | ¿date. On August 31, 2011, however, Ms. Smith did accept service for the same two notices regarding a hearing date scheduled for November 11, 2011. Again, the record neither indicates whether Mr. Brumfield received notice of the November hearing, nor what action, if any, occurred on that date.

Reacting to these threats of enforcement action against the property, Ms. Smith applied to the district court on October 13, 2011 for an ex parte writ of possession [74]*74under the authority of La. R.S. 47:2158 A. Initially, the district judge denied that application as premature. An attorney was then appointed to represent Mr. Brum-field, who was identified in the application as an “absentee.” Subsequently, on February 13, 2012, the district judge ordered that a writ of possession issue to Ms. Smith.

Ms. Smith, by affidavit, states that she incurred about $20,000 in expenses in remediation of the property stemming from the installation of a new roof and removal of pervasive mold infestation, weeds, overgrown grass, and dead trees. Despite these efforts, the City’s code enforcement bureau still rendered an administrative judgment on May 15, 2012 declaring the property both blighted and a public nuisance and assessing fines and costs against Mr. Brumfield.

B

On March 26, 2013, Ms. Smith filed a supplemental and amended petition praying for injunctive relief, but did not specify the relief to which she claimed to be entitled. Her affidavit in support of her application for a preliminary injunction asserted that Mr. Brumfield intentionally disregarded the writ of possession issued 15by the trial judge when he took actual possession of the property. Additionally, Ms. Smith’s reply to Mr. Brumfield’s memorandum in opposition to her motion for preliminary injunction contends that La. C.C.P. art. 3663 allows for the trial judge to grant her injunctive relief to maintain possession of the property without a showing of irreparable harm.

The trial judge denied Ms. Smith’s motion for preliminary injunction on May 30, 2013 and granted Mr. Brumfield’s motion for preliminary injunction on July 8, 2013. The trial judge enjoined, restrained, and prohibited Ms. Smith from entering the property or interfering with Mr. Brum-field’s ownership and/or possessory rights in the property. Ms. Smith timely filed a motion for devolutive appeal to this Court on July 10, 2013.

II

In this Part, we address the requirements for the issuance of a preliminary injunction and the standard by which we review a trial judge’s decision to grant or deny preliminary injunctive relief.

“A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits.” Elysian Fields Church of Christ v. Dillon, 08-0989, p. 6 (La.App. 4 Cir. 3/18/09), 7 So.3d 1227, 1231. A “court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases.” La. C.C.P. art. 3609. “A preliminary injunction shall not issue | ¿unless notice is given to the adverse party and an opportunity had for a hearing.” La. C.C.P. art. 3602.

“The prima facie standard of proof to obtain a preliminary injunction is ‘less than that required for a permanent injunction.’ ” Dillon, 08-0989 at p. 6, 7 So.3d at 1231 (quoting Historic Restoration, Inc. v. RSUI Indem. Co., 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208).

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Bluebook (online)
133 So. 3d 70, 2013 La.App. 4 Cir. 1171, 2014 WL 535720, 2014 La. App. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-brumfield-lactapp-2014.