Waiters v. Deville

365 So.3d 544

Brittany and Jamar WAITERS v. Renee E. DEVILLE

Brittany and Jamar Waiters v. Renee E. deVille

NO. 2020-C-0556

NO. 2020-CA-0324

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 30, 2020

Christopher J. Davidson, DAVIDSON & DAVIDSON, APLC, 2901 Independence Street, Suite 201, Metairie, LA 70006, John A. E. Davidson, DAVIDSON & DAVIDSON, APLC, 2901 Independence Street, Suite 201, Metairie, LA 70006 COUNSEL FOR PLAINTIFF/APPELLEE

Kyle Salvador Sclafani THE LAW OFFICE OF KYLE S. SCLAFANI 4130 Canal Street, Suite A New Orleans, LA 70119, Jack Edward Morris, JACK E. MORRIS, ATTORNEY AT LAW, LLC, 4051 Veterans Memorial Boulevard, Suite 208, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Regina Bartholomew-Woods, Judge Paula A. Brown )

Judge Regina Bartholomew-Woods

This consolidated matter stems from a tax sale of property located at 4609-11 Freret Street in New Orleans, LA ("the Property"). Defendant-Plaintiff-in-Reconvention-Appellant, Renee deVille ("Ms. deVille") sought an appeal from a judgment granting a preliminary injunction in favor of Plaintiffs-Defendants-in-Reconvention-Appellees, Brittany and Jamar Waiters ( "the Waiters). While the appeal was pending, Ms. deVille sought a supervisory writ regarding a motion for partial summary judgment granted in favor of the Waiters.

For the reasons that follow, the appeal of the Injunction is converted to an application for supervisory writs and consolidated with the writ regarding the motion for partial summary judgment. We grant the writ application, deny relief in part, stay the judgment of the trial court in part, vacate the judgment of the trial court in part, and remand this matter for further proceedings consistent with this opinion.

JURISDICTION

Prior to considering an appeal, "appellate courts have a duty to determine whether subject matter jurisdiction exists to entertain an appeal, even if the parties fail to raise the issue." Waiters v. deVille, 2019-1048, p. 1 (La. App. 4 Cir. 4/22/20), 299 So. 3d 728, 731 [hereinafter " Waiters I" ], (citing Moon v. City of New Orleans , 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 03/16/16), 190 So. 3d 422, 425) ). In addition to the writ application filed by Ms. deVille, which challenges the trial court's granting of a motion for partial summary judgment in favor of the Plaintiffs-Appellees, Brittany and Jamar Waiters ("the Waiters"), she also appeals the trial court's granting of a preliminary injunction ("the Injunction"). "A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief." Farmer's Seafood Co. v. State ex rel. Dep't of Pub. Safety , 2010-1746, p. 4 (La. App. 1 Cir. 2/14/11), 56 So. 3d 1263, 1266. "The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ." Delahoussaye v. Tulane Univ. Hosp. & Clinic , 2012-0906, p. 4 (La. App. 4 Cir. 2/20/13), 155 So. 3d 560, 562 (citations omitted).

Notwithstanding, this Court has converted a non-appealable judgment to an application for supervisory writs when the following two conditions have been met: "(1) [t]he motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under La. Unif. R. Ct. App. 4-3 ; and (2) [w]hen the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation." Mandina, Inc. v. O'Brien , 13-0085, p. 8 (La. App. 4 Cir. 7/31/13), 156 So. 3d 99, 104 ; see also Stelluto v. Stelluto , 05-0074, p. 7 (La. 6/29/05), 914 So. 2d 34, 39 (observing that "the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts").

In the case sub judice , the Injunction—one of the matters under consideration by this Court—is a preliminary issue which did not terminate the litigation between the parties because Ms. deVille filed a reconventional demand for reimbursement claims owed to her by the Waiters, which has yet to be decided by the trial court. Additionally, the motion for appeal on the Injunction was filed within thirty (30) days from the date of the notice of judgment, ¹ and the Injunction is of such a nature (impacting real property and commerce) that an immediate decision is necessary to ensure fundamental fairness and judicial efficiency, which warrant our exercising the discretion to do so.

Based on the foregoing, we find that the conditions to convert the appeal to a writ application have been met in this matter. Accordingly, we convert the appeal to an application for supervisory writs.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to the instant consolidated action, the parties were before a different panel of this Court for consideration of an appeal that was converted to a writ application pertaining to the trial court's granting of a peremptory exception of no cause of action. ² In Waiters, 299 So. 3d 728 (hereinafter referred to as " Waiters I ") , this Court reversed the trial court's sustaining of the exception and set forth the pertinent factual and procedural history:

December 3, 2009--Ms. deVille successfully purchased a 1% ownership interest in the Property ³ at a tax sale for unpaid ad valorem taxes; at the time of the tax sale, the titled owners of the Property were Ruth Thompson and her daughter, Beulah Mae Jefferson;

February 12, 2010--Ms. deVille's Tax Sale Deed was recorded;

September 28, 2011--As a tax sale purchaser of blighted property, Ms. deVille filed a verified petition for a writ of possession pursuant to La. R.S. 47:2158 to obtain lawful possession of the Property and to begin repairs; on the same date, the Orleans Parish Civil District Court ("CDC") issued a writ of possession (the "Writ of Possession"), commanding the Orleans Parish Sheriff (the "Sheriff") to deliver possession of the Property to Ms. deVille;

October 19, 2011--The Sheriff delivered possession of the Property to Ms. deVille;

December 29, 2011--Ms. deVille recorded the first of four Statements of Lien or Privilege against the Property in the sum of $10,200.00; this first lien was for the expenses incurred in securing the Property, removing exterior debris, and addressing code violations;

February 3, 2012--Seeking to obtain ownership of the Property pursuant to La. R.S. 9:5633 (the blight acquisitive prescription statute), Ms. deVille recorded an Affidavit of Intent to Possess ("Affidavit of Intent"); Ms. deVille avers that she thereafter followed all but one of the twelve steps of the process for perfecting ownership set forth in La. R.S. 9:5633 ;

November 5, 2012--Ms. deVille applied for and obtained permits to renovate the Property from the City of New Orleans (the "City").

August 5, 2013--The City issued a certificate of occupancy;

October 18, 2018--Roosevelt Thompson--purporting to be Ruth Thompson's grandson and Beulah Mae Jefferson's son--filed a Petition to Administer the

Successions of Ruth Thompson and Beulah Mae Jefferson (the "Successions"); Mr. Thompson also executed and filed, pursuant to La. R.S. 9:5633(J), an affidavit of nullification (the "Affidavit of Nullification"); and

November 13, 2018—the Successions sold the Property, with court approval, to the Waiters in a cash sale, which was recorded and which Ms. deVille avers "caused a disturbance-in-law."

In December 2018, the Waiters commenced this suit, captioned as a "Petition to Annul Tax Title, Declaratory Judgment, and Petitory Action." In their petition, the Waiters averred that they were the "sole owners" of the Property, acquiring title by a cash sale from the Successions. The Waiters further averred that the defendant, Ms. deVille, was the holder of a Tax Sale Deed purportedly conveying a 1% ownership interest in the Property for unpaid ad valorem taxes. According to the Waiters, the tax sale was an absolute nullity given the notice and advertisement were constitutionally infirm.

In their petition, the Waiters additionally averred that Ms. deVille had made the following other filings into the record regarding the Property: (i) the Affidavit of Intent, pursuant to La. R.S. 9:5633 ; (ii) the Writ of Possession, pursuant to La. R.S. 47:9158; and (iii) a statement of lien and privilege. ¹⁴ The Waiters sought to annul those other filings. Lastly, the Waiters sought recognition of the effect of the Affidavit of Nullification.

Ms. deVille answered the petition and filed a reconventional demand. The thrust of her reconventional demand was that she complied with the spirit as well as the requirements of La. R.S. 9:5633 and, thus, acquired ownership of the Property under that acquisitive prescription statutory scheme. Alternatively, she sought reimbursement for the amounts that she paid in association with the Property. The relief she requested in her reconventional demand consisted of the following: (i) confirmation of her compliance with La. R.S. 9:5633 ; (ii) nullification of the Affidavit of Nullification; (iii) reimbursement of all amounts she paid in association with the Property pursuant to La. R.S. 9:5633(E) ; and (iv) damages (unjust enrichment).

The Waiters, as defendants-in-reconvention, answered and filed a peremptory exception of no cause of action. The Waiters emphasized that Ms. deVille, in her answer

and reconventional demand, acknowledged that—due to her failure to comply with at least one of the twelve statutory steps—she has no claim of ownership to the Property under La. R.S. 9:5633. The Waiters contented [sic] that Ms. deVille could not prevail on any claim for ownership of the Property. They emphasized that Ms. deVille purported to assert a variety of claims sounding in equity, which are specifically

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