
    MACWCP II LLC v. Charlotte Faye WILLIAMS
    NO. 2017 CA 0004
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 15, 2017
    
      James L. Maughan, Zachary, Louisiana, Attorney for Appellant, Charlotte Faye Williams
    Mary G. Erlingson, Judson G. Banks, Mary E. Colvin, Baton Rouge, Louisiana Attorneys for Appellee, Sid J Gautreaux, III, Sheriff and Ex Officio Tax Collector for the Parish of East Baton Rouge
    Jessica C. Seale, Metairie, Louisiana Attorney for Appellee, CR Properties 2015, LLC
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

11 This is an appeal of a summary judgment dismissing a third-party demand against Sid J. Gautreaux, III, Sheriff and Ex Officio Tax Collector for East Baton Rouge Parish, which was asserted in a suit to quiet tax title to property sold at tax sale. We reverse and remand for further proceedings.

FACTS

In 2008, property owned by Charlotte Williams, where she lived in a trailer with her family, was sold at tax sale for failure to pay 2007 ad valorem taxes in the amount of $82.00. In 2012, the holder of the tax deed filed a suit to quiet tax title. In response, Ms. Williams claimed the tax sale was an absolute nullity and asserted a third-party demand against the Sheriff.

Ms. Williams alleged she purchased the property in 1993 and faithfully paid taxes thereon in the amount of approximately $38.00 per year. She contends she was surprised when she received, notice in 2007 that her 2006 taxes were $315.00, but paid the amount anyway. Ms. Williams claims she contacted the tax collector’s office about the increase and was told .the amount was correct. The 2006 tax was, in fact, incorrect, as she owed only $32.00.

Ms. Williams alleges she received a letter in 2008 notifying her the 2007 taxes on the property had not been paid and, if left unpaid, the property would be sold. She claims she immediately called the tax collector’s office and spoke to an employee who said Ms. Williams “made a big over-paymént” in 2007, which was still being held in the tax collector’s escrow account. Ms. Williams contends the employee told her the balance in the escrow account could be used to pay the 2007 taxes. Ms. Williams claims she instructed the employee to pay the outstanding] ⅞ taxes from the overpayment in the escrow account, and she was not asked to complete any additional paperwork. Ms. Williams contends she relied upon the agreement to satisfy the tax debt from the overpayment. But, the 2007 tax debt was not paid with those funds, resulting in Ms. Williams’ property being sold. In 2012, months before this suit was filed, Ms. Williams received a $283,00 refund from the Sheriff, the amount of the 2006 tax overpayment.

Ms. Williams alleges she had no knowledge her home was sold at tax sale until she was served with the petition to confirm tax title. She claims the salé occurred due to errors and omissions of the Sheriff, which she contends constitute willful, outrageous, reckless, or flagrant misconduct. Accordingly, in the event the tax sale was not 'declared an absolute nullity, Ms. Williams sought to recover from the Sheriff the value of her property, damages suffered during the litigation, and attorney’s fees.'

On June 23, 2014, the trial court signed á judgment confirming and quieting the tax title'. Ms. Williams did not appeal that judgment. The trial court later denied a motion for summary judgment filed by Ms. Williams seeking a declaration that the tax sale was null and void. Ms. Williams appealed; however, that apjpeal was dismissed since it was taken from 'a nonap-pealable interlocutory judgment. MACWCP II, LLC v. Williams, 2015-0876 (La. App. 1 Cir. 10/19/15) (unpublished action).

Ms. Williams and the Sheriff then'filed cross-motions for summary judgment relative to Ms. Williams’ third-party demand. The Sheriffs motion asserted Ms. Williams could not meet her burden of proof at trial because she could not prove she actually spoke with someone in the Sheriffs office about applying the overpayment to her unpaid taxes. The Sheriff further alleged Louisiana Revised Statutes 47:2124 applies and provides him with immunity for the performance or failure to exercise his duties as tax collector except when his |sacts or omissions constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. The Sheriffs motion for summary judgment additionally, asserted . Ms. Williams could not meet the. heightened burden of. proving his or his employees’ acts were criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. Ms. Williams countered that summary judgment should be granted in her favor declaring the tax sale an absolute nullity or, alternatively, ordering the Sheriff to pay her-damages and attorney’s fees because the tax sale resulted from his failure to credit her overpayment held in escrow to her tax debt. The motions were heard on the same day, and the trial court granted the Sheriffs motion for summary judgment, finding Ms. Williams did not show she could prove she spoke with someone in the Sheriffs office, and even if she could, she could not meet the heightened burden of proof required by Section 47:2124 to prove an exception to immunity.

.•Ms. Williams now appeals the November 30, 2016 judgment granting the Sheriffs motion for summary judgment and dismissing .her claims against the Sheriff. She also asks this court to declare the June 23, 2014 judgment confirming and quieting the tax title an absolute nullity. - ,

. DISCUSSION

A motion for summary judgment shall be granted only if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro., art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 14-2371 (La. 6/30/15), 172 So.3d 607, 610.

14A sumniary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F. The burden of proof is on the mover. See La. Code Civ. Pro. art. 966D(1). However, if the mover will not bear the burden of proof at trial on' the matter before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, - or defense. Thereafter, the adverse party must' produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. -Code Civ. Pro. art. 966D(1). Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive láw applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82.

The Sheriff moved for summary judgment, in part, on the basis that he is immune from liability to Ms, Williams pursuant to Section 47:2124, which pertinently provides:

B. Liability shall not be imposed on tax collectors or tax assessors or their employees based upon the exercise or performance or the failure -to exercise or perform their duties under this Chapter.
C. The provisions of Subsection B of this Section are not applicable to acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

On appeal, Ms. Williams contends Section 47:2124 is inapplicable because the conduct at issue occurred prior to the section’s enactment. The Sheriff argues we should not consider this issue since it was not raised at the trial court. We reject the Sheriffs argument because a determination of the applicable substantive law is |fia threshold decision to our de novo review to determine if there are genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. See La. Code Civ. Pro. art. 966A(3); Binkley v. Landry, 00-1710 (La. App. 1 Cir. 9/28/01), 811 So.2d 18, 22-23, writ denied, 01-2934 (La. 3/8/02), 811 So.2d 887 (considering the substantive law applicable to the summary judgments, the appellate court determined the immunity provision of the statute on which the motions for summary judgment were based was not retroactively applicable to the facts of the case).

Louisiana Civil Code article 6 sets forth the general rule against retroactive application of legislative enactments and its exceptions, stating, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the' contrary.” Additionally, Louisiana Revised Statutes 1:2 provides that “[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated.” To determine whether a law should be retroactively applied, courts, must first ascertain whether the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, the inquiry is. at an end. If the-legislature did not, the court must classify the enactment as substantive, procedural, or interpretive. Born v. City of Slidell, 15-0136 (La. 10/14/15), 180 So.3d 1227, 1235. Notwithstanding this analysis, even where the legislature has expressed its intent to give a law retroactive effect, the law may not be applied retroactively if doing so would impair contractual obligations or disturb vested rights. Born, 180 So.3d at 1235.

Section 47:2124 was enacted by Acts 2008,' No. 819, section 1, which became effective January 1, 2009. The legislature expressed no intent regarding | (¡retroactive application. Therefore, we must determine whether Section 47:2124 is substantive, procedural, or interpretive, according to the following guiding principles set forth by the Louisiana Supreme Court:

Substantive laws establish new rules, rights, and duties or change existing ones. Procedural láws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Interpretive laws -merely establish the meaning'the interpreted statute had from the time of its enactment.

Born, 180 So.3d at 1236 (quoting Segura v. Frank, 93-1271, 93-1401 (La. 1/14/94), 630 So.2d 714, 723, cert. denied sub nom. All state Insurance Company v. Louisiana Insurance Guaranty Association, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994)) (internal citations omitted);

The revision comments for Section 47:2124 recognize that the section is new and operates to limit the liability of tax collectors and tax assessors for their actions relating to the collection of taxes, tax sales, and property adjudications, and further operates to shift the burden of notifying interest holders away from tax collectors and tax assessors. Finally, the revision comments recognize that Section 47:2124 is based on .Louisiana Revised Statutes 9:2798.1, but does not limit the immunity provided to policymaking or discretionary acts.

We find Section 47:2124 is a substantive law. It establishes the specific immunity of tax collectors and tax assessors, which is more expansive than the general immunity provided under Section 9:2798.1 to the state and its political subdivisions from liability for policymaking and discretionary acts. Consequently, Section 47:2124 is to be. applied only prospectively from its January 1, 2009 effective date and cannot be applied retroactively to shield the Sheriff from liability for the cause of action asserted by Ms. Williams in her third-party demand.

|7The Sheriff argues that even if the specific immunity provision of Section 47:^124 does not apply, the general immunity provision of Section 9:2798.1 affords him immunity’ for the acts alleged by Ms. Williams. The summary judgment procedure specifies that summary judgment may be' rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F. The Sheriffs motion for summary judgment on the issue of immunity was limited to Section 47:2124. The issue of whether Section 9:2798.1 affords immunity to the Sheriff for the cause of action asserted in Ms. Williams’ third-party demand was not raised in the motion for summary judgment and cannot be considered in this appeal. Compare, 220 So.3d at 83.

As an alternative basis for his motion for summary judgment, the Sheriff contends Ms. Williams will be unable to meet her burden of proof at trial because she cannot prove she spoke with someone in the Sheriffs office about applying her 2006 overpayment to the 2007 tax debt. The Sheriff contends Ms. Williams’ deposition testimony establishes that Ms. Williams does not know whether she called the tax collector, the tax assessor, or the clerk of court, and cannot identify the person to whom she spoke. Specifically, the Sheriff points to the following deposition testimony by Ms. Williams:

Q. All right. Now, when you called [ (after receiving the letter that she had not paid her taxes and that her property was in danger of being sold) ], did you call the tax collector, the assessor, or the clerk?
A. I don’t remember. They switched me over, so I must have called the wrong one.
Q. All right. So whoever told you this information about the overpayment, you don’t know whether you had called the tax collector — ■
A. I’m not sure.
Q. —or the assessor, or the clerk; is that right?
LA. That’s right.
Q. You called, you don’t know if it was the tax collector, or the assessor—
A. I’m not sure.
Q. —or the clerk? Okay. So you made this phone call. Tell me what they said again, please.
A. To pay for ’07?
Q. Yes, ma’am.
A. I called and asked them why was the payment so much and I had only been paying, sometimes it was 36, sometimes 39, one time it was 42, down the line. And so the lady said hold on just a minute, got my lot number, all the information, and she come back on the phone and told me that the payment would be took out of the overpayment that I made in ’06 is when I made the overpayment. Q. Now, this person that you spoke to, I’m assuming you don’t know who it was?
A. No, I don’t.
Q. You didn’t get a name or anything? A. No.
Q. ... You don’t know if it was the sheriffs office you talked to or not, correct?
A. I think it was the tax assessor’s office.

The Sheriff contends the summary judgment should be upheld since Ms. Williams cannot sustain her claim that it was the acts or omissions of the Sheriff that caused her property to be sold. The Sheriff argues the tax assessor is not a party to this suit, and there is no rational basis for holding the Sheriff liable for any representations that may have been made by the tax assessor’s office.

After de novo review of the summary judgment evidence, we find genuine issues of material fact preclude summary judgment. The Sheriffs burden was to point out an absence of factual support for an essential element of Ms. Williams’ 19claim. Ms. Williams admittedly cannot identify the particular person who allegedly told her the 2007 taxes would be paid from the 2006 overpayment funds. However, Ms. Williams testified she called about her delinquent taxes and her call was transferred to someone who accessed her account, told her she made an overpayment, and informed her the overpayment could be credited to her tax debt. The • summary judgment evidence also establishes that overpayment amounts could be applied to satisfy tax debts. Rather than pointing out an absence of factual support, the Sheriff, has shown that the question of whether Ms. Williams spoke with an employee of the Sheriffs office will depend on a credibility determination regarding Ms. William’s description of the phone call and its contents, as well as reasonable inferences that can be made. When considering a motion for summary judgment, courts cannot make credibility determinations, evaluate testimony, or weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubts must be resolved in the opponent’s favor. Willis, 775 So.2d at 1050. Resolution of this issue must be reserved to the trier of fact. The Sheriff has not met his burden of proof on the motion for summary judgment. Therefore, the trial court’s judgment granting summary judgment in favor of the Sheriff and dismissing Ms. Williams’ claims against him is reversed.

The remaining issues- raised by Ms. Williams relate to her claim that the tax sale and judgment confirming the tax title are invalid, including that they are absolute nullities. Ms. Williams raised these issues in her motions for summary judgment, which the record reflects were set for hearing with the Sheriffs motion. The trial court’s judgment does not contain a ruling on Ms. Williams’ motions for summary judgment. However, it is well-settled that silence in a judgment of the trial court as to any issue, claim, or demand placed before'the court is deemed a | ^rejection of-the claim and the relief sought is presumed to be denied. See L.J.D. v. M.V.S., 16-0008 (La. App. 1 Cir. 1/25/17), 212 So.3d 581, 584: When ah unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to her, in addition to the review of the final judgment. City of Baton Rouge v. Douglas, 16-0655 (La. App. 1 Cir. 4/12/17), 218 So.3d 158, 162. Thus, the denial of Ms. Williams’ motions for summary judgment are subject to consideration in this appeal.

Although the denial of the motions for summary judgment are subject to re-, view, the tax deed holder contends the issues regarding the validity of the tax sale and judgment confirming the tax title cannot be considered because Ms. Williams failed to timely appeal the June 23, 2014 judgment that confirmed the tax sale. The tax deed holder argues the June 23, 2014 judgment is final and definitive, barring further litigation regarding the sale’s validity. Ms. Williams does not dispute that she did not appeal the June 23, 2014 judgment. Nonetheless, it is well settled that .an absolute nullity may be attacked m any court at any time. See Miles v. Our Lady of the Lake Regional Medical Center, 01-2272 (La. App. 1 Cir. 10/2/02), 836 So.2d 136, 138. Therefore, Ms. Williams’ failure to appeal the June 23, 2014 judgment does not bar her challenge that it is absolutely nuil.

Ms. Williams attacks the tax sale and judgment confirming the tax title on the following grounds: 1) the 2007 tax obligation was extinguished under the doctrine of compensation; 2) she was not provided with post-sale notice as required by Louisiana Revised Statutes 47:2183; and 3) the trial court lacked subject matter jurisdiction to render the June 23, 2014 judgment because the tax deed holder lacked standing because it acquired no rights in the •property.

A judgment rendered by a court without subject matter jurisdiction is an absolute nullity, which may be recognized at any time. La; Code Civ. Pro. art. |112002A(3). Although Ms. Williams characterizes her argument as a challenge to the trial court’s subject matter jurisdiction to render the June 23, 2014 judgment, she is actually arguing the tax deed holder/plaintiff did not have a real and actual interest in the action. In other words, Ms. Williams argues the tax deed holder/plaintiff did not have a right of action. Compare Miller v. Conagra, Inc., 08-0021 (La. 9/8/08), 991 So.2d 445, 455. An objection of no right of •action is waivable if not properly raised; it does not determine the court’s subject matter jurisdiction. See Miller, 991 So.2d at 455. By failing to appeal the June 23, 2014 judgment, which was rendered over Ms. Williams’ objection as to the tax deed holder/plaintiffs right of action, Ms. Williams effectively waived her objection. See Miller, 991 So.2d at 455. Ms. Williams’ argument that the June 23, 2014 judgment is absolutely null on this basis is without merit.

Ms. Williams’ other arguments relate to the validity of the tax sale itself. Notice is a recognized constitutional requirement; therefore, failure to give the required notice is fatal to a tax sale. See Smitko v. Gulf S. Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So.3d 750, 757. The tax sale occurred in 2008 and is governed by the law in effect at that time. See Central Properties v. Fairway Gardenhomes, LLC, 16-1855 (La. 6/27/17), 225 So.3d 441, 448 (2017 WL 2837152). Under former Louisiana Revised Statutes 47:2180, to give property owners reasonable notice so as not to deprive them of constitutionally-protected property rights, the tax collector was required to provide the taxpayer with written notice, sent by certified mail return receipt requested, alerting each record owner of the immovable property that the owner’s failure to pay the taxes within twenty days would result in the sale of the property. See Smitko, 94 So.3d at 757.

[iaHere, Ms. Williams does not dispute that she received pre-sale notice of the tax sale. Rather, she argues the tax sale is absolutely null because she did not receive appropriate post-sale notice! The Louisiana Supreme Court has recognized that under the applicable statutory law, the failure to give post-sale notice does not nullify a tax sale if the property owner was provided the statutorily-required pre-sale notice of delinquency and tax sale. See Hamilton v. Royal International, 05-0846 (La. 2/22/06), 934 So.2d 25, 30-31, cert. denied, 549 U.S. 1112, 127 S.Ct. 937, 166 L.Ed.2d 704 (2007). Ms. Williams’ argument to the Contrary is without merit.

Finally, we also find Ms. Williams’ argument regarding extinguishment of the 2007 tax obligation is without merit. The argument raises a defense on the merits and is not grounds for holding the tax sale or judgment quieting tax title to be absolute nullities.

CONCLUSION

For the foregoing reasons, the November 30, 2016 summary judgment dismissing Ms, Williams’ third-party .demand against Sid J. Gautreaux, III, in his official capacity as Sheriff and ex officio tax collector for East Baton Rouge Parish is reversed. This matter is remanded for tether proceedings consistent with the views expressed herein. Costs of this appeal in the amount of $3,151.50 are assessed to Sheriff Gautreaux.

NOVEMBER 30, 2016 JUDGMENT REVERSED; REMANDED.

Pettigrew, J. Concurs 
      
      . The original plaintiff in this suit was MACWCP II LLC, who acquired the tax deed after a series of transfers from the original tax sale purchaser. During the course of these proceedings, further transfers occurred, leading to the substitution of parties, with CR Properties 2015, LLC, being the plaintiff in the underlying suit at the time the judgment confirming the tax title was rendered and the appellee to this appeal. •
     
      
      . Moreover, an appellate court may notice ex proprio motu that the law does not, extend a remedy to a particular defendant. Dennis v. Wiley, 09-0236 (La. App. 1 Cir. 9/11/09), 22 So.3d 189, 193, writ denied, 09-222 (La. 12/18/09), 23 So.3d 949.
     
      
      . The Official Revision Comments connected with statutes are not part of the law, but can be useful in determining legislative intent. Central Properties v. Fairway Gardenhomes, LLC, 16-1855 (La. 6/27/17), 225 So.3d 441, 448 (2017 WL 2837152).
     
      
      . The tax deed holder filed a brief responding to Ms. Williams' nullity arguments.
     
      
      . Neither the substantive revisions to the law on tax sales by Acts 2008, No. 819, section 1, effective January 1, 2009, nor the Louisiana Supreme Court's analysis of the revised law in the recent case of Central Properties v. Fairway Gardenhomes, LLC, 16-1855, 16-1946 (La. 6/27/17), 225 So.3d 441, 448 (2017 WL 2837152), are applicable to the facts of this case.
     