
    PAMPLEMOUSSIER, L.L.C. v. Sheldon L. POCHE, Jr., Jana Mauroner Poche, Robert B. McNabb, CPA, APAC, Regions Bank, City of Baton Rouge/Parish of East Baton Rouge, Louisiana Department of Labor, Louisiana Department of Revenue, and the United States Department of Treasury-Internal Revenue Service.
    No. 2012 CA 1829.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 13, 2013.
    
      Scott J. Sonnier, New Orleans, LA, for Plaintiff/Appellant, Pamplemoussier, L.L.C.
    John E. Seago, Baton Rouge, LA, for Defendants/Appellees, Sheldon L. Poche, Jr. and Jana Mauroner Poche.
    Florence Bonaccorso-Saenz, Baton Rouge, LA, for Defendant/Appellee, Cynthia Bridges, Secretary of the Louisiana Department of Revenue.
    Before PARRO, KUHN, GUIDRY, CRAIN, and THERIOT, JJ.
   CRAIN, J.

12This is an appeal of a judgment declaring the nullity of a tax sale. We reverse and render judgment confirming the tax sale.

FACTS AND PROCEDURAL HISTORY

At a tax sale for unpaid 2004 taxes, Pamplemoussier, L.L.C., purchased an eighty percent undivided interest in immovable property located in East Baton Rouge Parish. The record owners of the property were Sheldon L. Poche, Jr., and Jana Mauroner Poche. The tax deed was recorded in the mortgage and conveyance records and the - property was not redeemed.

In 2010, Pamplemoussier instituted this suit to confirm and quiet tax title. The Poches reconvened, alleging the nullity of the tax sale for failure to send statutorily required post-sale notices. No deficiencies in pre-sale procedures or notices were raised. The trial court denied Pamplem-oussier’s subsequent motion for summary judgment, which sought to confirm and quiet title. After trial on the merits, the trial court rendered judgment declaring the tax sale to be null. Pamplemoussier appeals.

DISCUSSION

The Poches argued, both in opposition to the motion for summary judgment and at trial, that the requisites for a valid tax sale were not complied with because Pamplemoussier did not provide them with the post-sale notice required by former Louisiana Revised Statute 47:2183C. Pamplemoussier countered by arguing that |sthe post-sale notices were sént, but assuming arguendo that if they were not, that noncompliance with Section 2183C would not invalidate the sale.

A tax purchaser’s suit to quiet tax title puts that title at issue and the former owners may avail themselves of any defense sufficient to defeat the tax title. Smitko v. Gulf South Shrimp, Inc., 11-2566 (La.7/2/12), 94 So.3d 750, 757. A tax sale is. presumed to be valid and the tax deed is prima facie evidence of the regularity of the tax adjudication proceedings. See La. Const. art. VII, § 25 A(1); Lewis v. Succession of Johnson, 05-1192 (La.4/4/06), 925 So.2d 1172, 1177; Cressionnie v. Intrepid, Inc., 03-1714 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 739. The former owner bears the burden of proving any alleged defects based on allegations of irregularities in the tax adjudication proceedings. Cressionnie, 879 So.2d at 739. If the former owner sufficiently rebuts the presumption of regularity, the tax purchaser must then prove that all requisites for a valid sale were complied with. Id.

At trial,, after Pamplemoussier offered the certified copy of the tax deed and prayed for judgment confirming the tax sale and tax title, the Poches offered no testimony or other competent evidence. Their attorney argued that the entire record was before the court, including the affidavit of Ms. Poche that was submitted in opposition to the prior motion for summary judgment. In the affidavit, Ms. Poche attested that they received no post-sale notices. Pamplemoussier objected to the affidavit.

The tax deed was prima facie evidence of the validity of the tax adjudication proceedings. Cressionnie, 879 So.2d at 739; see also La. R.S. 47:2155 B and La. jyConst. art. VII, § 25A(1), It was then the Poches’ burden to prove an alleged irregularity in the tax adjudication proceeding. See Cressionnie, 879 So.2d at 739, In the absence of evidence to rebut the validity of the tax sale, Pamplemoussier was not required to prove that all requisites for a valid sale were complied with. See Id.

The presumptive validity of a tax sale can. be rebutted only' by direct and positive evidence to the contrary. Pfefferle v. State of Louisiana, 14 Orleans App. 211, 212 (1916). A sworn affidavit is hearsay and is not competent evidence unless its use is specifically authorized by statute. Michael F. Smith, CPA v. Alford, 04-0586 (La.App. 1 Cir. 3/24/05), 906 So.2d 674, 676. Accordingly, the affidavit was not admissible evidence and cannot be considered.

While the Poches’ attorney argued that the post-sale notices required by Section 2183C were not provided, the argument of counsel, no matter how artful, is not evidence. Rising Resources Control, Inc. v. KIE Commodities and Finance, L.L.C., 11-1026 (La.App, 1 Cir. 12/21/11), 80 So.3d 1217, 1220, writ denied, 12-0658 (La.4/27/12), 86 So.3d 632.

The Poches failed to introduce competent evidence to rebut the validity of the tax sale. Consequently, Pamplemoussier was entitled to have the tax sale and tax title confirmed.

CONCLUSION

Considering the foregoing, we reverse the judgment of the trial court, which annulled the tax sale. Judgment is rendered in favor of Pamplemoussier, L.L.C., recognizing and confirming the validity of the June 6, 2005 tax sale of an undivided eighty percent interest in Lot 4, Square 1, located in Monte Vista ^Subdivision, -City of Baton Rouge, Parish of East Baton Rouge, as set forth in the tax deed recorded at Original 986, Bundle 11738. Costs of this appeal are assessed to Sheldon L. Poche, Jr., and Jana Mauroner Poche.

REVERSED AM) RENDERED.

KUHN, J., concurs & assigns reasons.

KUHN, J.,

concurring.

. | iBecause the Poches did not meet their, burden of proof, I agree with the result. Accordingly, I concur.,

THERIOT, J., dissents & assigns, reason.

THERIOT, J.,

dissents with reasons.

hThe majority relies on the tax deed being prima facie evidence of the validity of the tax adjudication proceedings. The burden is placed upon the Poches’ to prove the irregularity of the tax adjudication proceedings. The Poches’ do not challenge any action prior to the tax sale nor do they challenge the tax sale itself. The Poches’ argue Pamplemoussier violated R.S. 47:2183(C) and therefore the tax sale should be nullified. The alleged irregularity is the failure of the purchaser to comply with R.S.'47:2183(0). The Poches’ successfully plead in their amended answer that the tax sale should be nullified due to failure of Pamplemoussier to send post sale notice pursuant to R.S. 47:2183(C)i The Poches’ further allege intentional bad faith on the part of the plaintiff, Pamplemoussier. Once the |aPoches’ successfully argued R.S. 47:2183(C) was not satisfied, the .burden shifts to the obligor, Pamplemoussier, to prove it satisfied the duty imposed upon it by R.S. 47:2183(0). The record is void of any such evidence, outside of counsel’s statements, that a, post sale notice was provided pursuant to R.S. 47:2183(0).

In her Reasons for Judgment, the trial judge correctly reasoned that because post tax sale notice was required under former La. R.S. 47:2183(0), the initial tax sale must be nullified.- La. R.S. 47:2183(0) states, in part:

Within thirty days of the day when the deed is filed for record in the conveyance office in the parish in which the property is situated, the purchaser shall provide notice of the sale of that property to the prior owner of the property who failed to pay the taxes on the property by mailing to the prior owner, the mortgagee, and any other person who may have a vested or contingent interest in the property ... (Emphasis added).

The burden is on the purchaser to prove the duty imposed by R.S. 47:2183(0) has been satisfied. The trial judge reasoned that the legislature intended the statute protect the due process right of property-owners attached to the post-tax sale right of redemption, a right which is constitutionally ordained in the Louisiana Constitution. Louisiana Constitution, Art. VII, § 25(B)(1) states:

The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.

It is well-settled that a citizen’s vested property interests are protected by procedural due process, and that parties must be notified of their rights in actions affecting their vested property interests. See, Mennonite Bd. Of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)). Since Louisiana courts have held tax collectors need not comply with a statutory duty to notify property owners of their right of ^redemption post-tax sale, by reversing the trial court and upholding the tax sale in the instant case, the majority denies the defendant any due process to be informed of their constitutional right of redemption. See Hamilton v. Royal Int’l Petroleum Corp., 2005-846 (La.2/22/06), 934 So.2d 25, 33, cert. denied, 549 U.S. 1112, 127 S.Ct. 937, 166 L.Ed.2d 704 (2007); see also, East-West of Metairie v. Stewart, unpublished opinion (La.App. 1 Cir.2009).

Pamplemoussier argues that Hamilton stands for the proposition that due process “applies to the pre sale notice. Once the property is sold, the property is sold. So therefore, notice is really irrelevant,...” Seemingly in error, the trial judge countered by citing Sutter v. Dane Investments, Inc., 2007-1268 (La.App. 4 Cir. 6/4/08), 985 So,2d 1263, 1267. In Sutter, the court nullified a tax sale for lack of pre-sale notice of tax delinquency, although the Fourth Circuit did state that the “purpose of the notice requirement is to ensure that tax debtors are aware of their right to redeem their property.” Id. The trial judge did correctly note that reliance on Hamilton is nonetheless inap-posite.

In Hamilton, the Louisiana Supreme Court overturned a decision of this court, holding failure of the tax collector to comply with the statutory post-tax sale notice requirement nullified a tax sale. Hamilton 934 So.2d at 33 (La.2006). The court reasoned that because the property owner already had an opportunity to be heard, all due process had been complied with, and alternatively argued that because the statute did not list a penalty, none should be provided. Id. However, Hamilton did not explain how a property owner could be fairly apprised of their constitutional redemption rights by a tax delinquency notice before a tax sale, since the right of redemption does not exist until after the tax sale. As the trial judge correctly stated in the present case, “the due process required prior to deprivation of the Defendants’ right to redeem cannot be satisfied by the pre-sale notice, as the right to redeem does not even exist until after the sale has taken place.”

^Additionally, Hamilton dealt with a different statute directed at a different class of citizens. Hamilton only answered whether public officials (tax collectors) were required to send post-tax sale notices under La. R.S. 47:2180(A)(l)(b). Id. at 31. At issue here is a purchaser’s obligation to give post-tax sale notice under La. R.S. 47:2183(C). Although the substantive obligations defined in each of the respective statutes are similar, the former applies to public actors, while the latter applies to private purchasers of property in a tax sale. Thus, while I may disagree with the holding in Hamilton, .it is nonetheless arguably reasonable and equitable. After all, why ought the failure of a public official to satisfy his/her statutory obligation penalize an otherwise innocent, private purchaser with a potential property interest in an immoveable? The majority opinion, however, is not reasonable ahd equitable. By upholding the tax sale in spite of Pamplemoussier’s total disregard for its statutory obligation, a private purchaser of property via tax sale will be able to benefit by denying tax debtors with a vested property interest their due process right to be informed of their constitutional right of redemption.

Considering this difference between Hamilton and the instant case, we must be mindful that our civilian tradition requires that legislation, the “solemn expression of legislative will,” guide our decisions. La. C.C. art. 2. Where legislation is “clear and unambiguous and its application does not lead to absurd consequences, the „law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. If “no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.” La. C.C. art. 4. Although it is true that no penalty is listed for non-compliance in La. R.S. 47:2183(C), application without penalty does lead to absurd consequences — an innocent party will be. fully denied of any opportunity to be informed of its constitutional right of redemption while a party, even one who Ijjin bad faith willfully disregards the mandate of the legislature, will benefit from non-compliance. Such result is clearly not equitable. Such result will encourage purchasers not to abide by their statutory duty of notification and undoubtedly lead to deceit and trickery on the part of some purchasers.

Finally, application of the penalty of nullification by the court is not unheard of. It is clear that reasonable notice of tax delinquency is required before property may be sold to satisfy due process, and that “want of notice is fatal to a tax sale.” Lewis v. Succession of Johnson, 2005-1192 (La.4/4/06), 925 So.2d 1172, 1177 (citing Adsit v. Park, 81 So. 430, 144 La. 934 (La.1919)); see also Smitko v. Gulf South Shrimp, Inc., 2011-2566 (La.7/2/12), 94 So.3d 750, 758-59; Jamie Land Co. v. Atwood, 2006-2057 (La.App. 1 Cir. 6/8/07), 965 So.2d 873, 875. The statute that requires pre-tax sale notice is La.- R.S. 47:2180, the same statute,as in Hamilton. While the statute does not state a penalty for failure to comply with tax delinquency notice requirements, the penalty of nullification was jurisprudentially established as necessary for the preservation of procedural due process. Similarly, in my view, the only way to remedy Pamplemoussier’s non-compliance with its post-tax sale notice requirement in La. R.S. 47:2183(0), requirements designed to protect the constitutional right to redemption of delinquent taxpayers, is to nullify the tax sale and allow the owner to exercise his right to redeem the property. This penalty is necessary for the preservation of procedural due process.

For the above reasons I respectfully dissent. 
      
      . The tax deed at issue relates to Lot 4, Square No. 1, Monte Vista Subdivision, situated in the City of East Baton Rouge, Parish of East Baton Rouge,
     
      
      . See 2004 La/Acts, No. 819, § 1; see also 2004 La. Acts, No. 430, § 2, and 2003 La. Acts, No. 942, § 1; Cf La. R.S. 47:2156 A.
     
      
      . In written reasons, the trial court framed the issue presented as whether Pamplemous-sier’s failure to provide the post-sale notices required by former Section 2183C is grounds for nullity of the tax sale, and stated that Pamplemoussier conceded that the notices were not sent, and ¿rgued that they were not necessary. The record does not reflect such a concession. Pamplemoussier’s attorney asserted at trial that the post-sale notices were sent and attempted to offer evidence, referred to as "the green card," but the Poches’ attorney objected. While Pamplemoussier’s attorney argued the effect of noncompliance with former Section 2183C in response to the trial court’s questions, he never conceded the fact of noncompliance.
     
      
      . Our decision rests on the lack of evidence to rebut-the presumption of validity of the tax sale. We do not address whether failure to comply with former Section 2183C would render the tax sale a nullity, although we note that failure to comply with a similar requirement contained in former Louisiana Revised Statute 47:2180 A(l)(b) has been determined by the Louisiana Supreme Court to not support nullifying a tax sale. See Hamilton v. Royal International Petroleum Corporation, 05-846 (La.2/22/06), 934 So.2d 25; See also La. R.S. 47:2121 D.
     
      
      . Repealed by Acts 2008, No 819) § 2 effective January 1, 2009 The tax sale predates this Act.
     
      
      . Paragraph 3 of defendants’ amended answer and reconventional demand: "The Tax Sale and Tax Deed are nullities. The failure of the plaintiff to properly notify the defendants under the provisions of La.R.S. 47:2183(C) is a nullity. The failure to send this notice is a fatal defect in the Tax Sale proceeding resulting, in a nullity of,the sale and deed. Defendants specifically plead as - an affirmative defense to petitioner's claim this nullity of the Tax Sale and Deed.”
     
      
      .Paragraph VIII of defendants’ amended answer and reconventional demand: "Reconve-nors allege the intentional acts of [Pamplem-oussier] are indicative of bad faith in refusing to comply with the notice requirements of R.S. 47:2183(C) which actions deprive the Taxpayer of their right to redeem their property because of preemption and the additional delay in not filing their claim permitted the time to expire to nullify the sale and deed.”
     