Tietjen v. City of Shreveport

17 So. 3d 17, 2009 La. App. LEXIS 1549, 2009 WL 1315833
CourtLouisiana Court of Appeal
DecidedAugust 27, 2009
Docket44,190-CA
StatusPublished
Cited by2 cases

This text of 17 So. 3d 17 (Tietjen v. City of Shreveport) 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
Tietjen v. City of Shreveport, 17 So. 3d 17, 2009 La. App. LEXIS 1549, 2009 WL 1315833 (La. Ct. App. 2009).

Opinions

WILLIAMS, J.

11Plaintiffs, Douglas Tietjen, Dwight A. Tietjen and Citizens National Bank, filed a petition for a declaratory judgment against the city of Shreveport and Claude Dance seeking nullification of a tax sale. Following a bench trial, the trial court entered a judgment, declaring the sale null and void. For the reasons set forth herein, we reverse the trial court’s judgment.

FACTS

On June 4, 1985, Douglas and Dwight Tietjen (“the Tietjens”) purchased immovable property “together with all buildings and improvements thereon” located at 1017 Jordan Street, Shreveport, Louisiana.1 The cash sale deed was recorded in the Caddo Parish records on June 5, 1985. On January 7, 1999, the Tietjens mortgaged the property to Citizens National Bank (“Citizens”). The mortgage was recorded in the Caddo Parish mortgage records on January 8,1999.

The Tietjens failed to pay the ad valo-rem taxes on the property for the year of 2001. In April 2002, the city of Shreveport (“the City”) notified the Tietjens of a pending tax sale. The notice was addressed to Douglas and Dwight Tietjen and was sent via certified mail to 1017 Jordan Street, the |2address of the subject property. On April 8, 2002, a return receipt was signed by Ronnie Ellis, an employee of Tietjen Physical Therapy, Inc., which was housed at the subject property. The City also published notices of the pending tax sale in The Times, a Shreveport/Bossier City newspaper, on May 5, 2002 and June 2, 2002.

On June 7, 2002, the property was sold at the tax sale to defendant, Claude Dance, for $1,316.24, subject to the right of redemption.2 According to the Tietjens, they did not learn that the property had been sold until August 2006, when they attempted to sell the property. The rec[20]*20ord reflects that Citizens neither received notice of the delinquent taxes nor notice of the pending tax sale.

On September 29, 2006, plaintiffs filed a petition for declaratory judgment, seeking to have the tax sale annulled. Plaintiffs alleged that the City failed to provide notice of the tax sale to Citizens and did not notify either Citizens or the Tietjens that the property had been sold and of their right of redemption. Subsequently, plaintiffs filed an amended petition, alleging that LSA-R.S. 47:2180.1 was unconstitutional.

After a bench trial, the court declared the tax sale null and void, finding “a due process violation under both federal and state constitutions.” The court made the following factual conclusions:

(1) The City of Shreveport did not properly provide notices regarding ad valo-rem taxes to Douglas Tietjen or Dwight Tietjen;
(2) The City of Shreveport did not properly provide |3notices regarding ad valo-rem taxes to Citizens National Bank;
(3) The City of Shreveport did not properly provide notice to Citizens Bank of the pendency of the June 2002 tax sale;
(4) Following the 2002 tax sale, the City of Shreveport did not properly provide notice to Douglas Tietjen, Dwight Ti-etjen or Citizens National Bank that the property had been sold and of the rights of redemption in accordance with law;
(5)The Tietjens and Citizens National Bank became aware of the 2002 tax sale in August 2006.

The court found that the notice of the pending tax sale provided to the Tietjens’ employee was “inadequate” and further stated, “Had the City consulted the public records and, in particular, the mortgage records, it would have easily ascertained mortgage information regarding Citizens National Bank.” The City appealed.

DISCUSSION

Presale Notice (Tietjens)

The City contends the trial court erred in finding that proper notice was not provided to the Tietjens. The City argues that the record shows that notice of the delinquent taxes and pending tax sale was mailed, via certified mail, to the Tietjens at 1017 Jordan Street, and the return receipt was signed.

It is important to note that plaintiffs have never disputed the fact that the Ti-etjens were provided with notice of the delinquent taxes and the pending tax sale prior to the tax sale. Rather, plaintiffs argued that their due process rights were violated because of the lack of notice to the mortgagee, ^Citizens.3 Douglas Tietjen [21]*21testified at the hearing and did not testify unequivocally that the City did not provide notice. He stated that he did not “recollect” actually seeing the notice, but an employee “might have” signed for it on his behalf. Accordingly, we find that the trial court erred in finding that the City failed to provide the Tietjens with adequate notice of the delinquent taxes and pending tax sale.

Presale Notice (Citizens)

The City also contends it was not required to provide notice to Citizens because the bank failed to request notice under LSA-R.S. |ñ47:2180.1. The City argues that the statute requires the tax collector to send notice of delinquent taxes to a mortgage holder only “if such mortgage holder has notified the tax collector of such recorded mortgage.”

The Due Process Clause of the 14th Amendment to the United States Constitution requires that deprivation of property by adjudication be preceded by notice and opportunity to be heard appropriate to the nature of the case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). An elementary requirement of due process in any proceeding which is to be accorded finality is notice, reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Id.

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the Court recognized that the sale of property for nonpayment of taxes is an action that affects a property right protected by the 14th Amendment. The Court stated:

Since a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale. When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service.

Id., 462 U.S. at 798, 103 S.Ct. at 2711.

After Mennonite was decided, the Louisiana Legislature enacted LSA-R.S. 47:2180.1 by Acts 1984, No. 585 § 1 to “require the tax collector to send notice of taxes due on immovables to each holder of a properly | (¡recorded mortgage on the immovable under certain conditions.” At the time of the tax sale at issue,4 LSA-R.S. 47:2180.1 provided:

A. On the second day after the deadline for payment of taxes each year, or as soon thereafter as possible, the tax collector shall address to each person holding a properly recorded mortgage on immovable property for which taxes are delinquent, if such mortgage holder has notified the tax collector of such recorded mortgage, a written notice as provided in R.S.

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Related

Tietjen v. City of Shreveport
36 So. 3d 192 (Supreme Court of Louisiana, 2010)
Tietjen v. City of Shreveport
17 So. 3d 17 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
17 So. 3d 17, 2009 La. App. LEXIS 1549, 2009 WL 1315833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tietjen-v-city-of-shreveport-lactapp-2009.