Gadrel, L.L.C. Versus Silvio Gurdian ( 2023 )

GADREL, L.L.C. NO. 22-CA-572
VERSUS FIFTH CIRCUIT
SILVIO GURDIAN COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 789-058, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
October 18, 2023
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED
RAC
JGG
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
GADREL, LLC
James E. Uschold
Mark J. Boudreau
Paul W. Pritchett
COUNSEL FOR DEFENDANT/APPELLANT,
SILVIO GURDIAN
Scott J. Sonnier
CHAISSON, J.
In this case arising from tax sales of immovable properties, Silvio Gurdian
appeals a September 8, 2022 judgment of the trial court denying his motion for
summary judgment, dismissing his reconventional demand, granting a partial
motion for summary judgment filed by Gadrel, L.L.C., and declaring Gadrel the
full owner of the immovable properties. For the following reasons, the judgment
of the trial court is affirmed.
BACKGROUND
This case concerns two parcels of immovable property located in the City of
Kenner, Parish of Jefferson, bearing the municipal addresses of 4104 and 4116
Delaware Avenue.1 These properties were acquired by Gurdian pursuant to a cash
sale on December 12, 1997. In 2012, the City of Kenner assessed taxes on the
properties that Gurdian failed to pay.2
On July 6, 2015, the City of Kenner sent Gurdian a Tax Sale Mennonite
Notice, via certified mail, for each of the subject properties informing him of the
unpaid delinquent taxes and requesting payment. The Notices stated that if the
taxes were not paid, the City of Kenner would proceed to sell tax sale title to the
properties at the Kenner City Council Chambers beginning on September 17, 2015.
The Notices further advised him that if tax sale titles to the properties were sold, he
would have three years from the date of the filing of the tax sale certificates within
which to redeem the properties, provided that the past due amounts and other
penalties and costs were paid. These Notices were delivered to 4700 Rebecca
Boulevard, Metairie, LA, 70003, where they were received and signed for on
July 10, 2015.3
1
The improvements on each parcel consist of four-plexes which are rented and not occupied by the
owner.
2
The unpaid principal owed amounted to $352.82 for each property. Gurdian claims this amount is
incorrect, but has provided no evidence of an alternative assessment valuation.
3
The record evidence indicates that these certified mailings were signed for as received by M. Farrow,
Gurdian’s then girlfriend. In his deposition, Gurdian stated that his live-in girlfriend signed for some
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The City of Kenner’s advertisements for the September 17, 2015 tax sales
were published on August 19 and September 9, 2015. At the September 17, 2015
sale, Gadrel acquired tax sale title certificates to both of the Delaware Avenue
properties. Following the sale, on October 6, 2015, Gurdian was sent a Post Sale
Notice informing him that tax sale titles to the properties were sold to Gadrel for
delinquent 2012 taxes and that he had three years from September 17, 2015, to
redeem the properties by paying the City of Kenner the amount owed.4
On January 11, 2017, Gadrel mailed Gurdian a letter informing him of the
tax sales and the three-year redemptive period for the payment of the delinquent
taxes. This letter included a copy of the September 17, 2015 tax sale certificate
purchased by Gadrel. More notices informing Gurdian of the tax sales, the
redemptive period, and the taxes owed on the Delaware properties were sent by
Gadrel on January 23, 2018, via certified mail, which was delivered and signed for
on February 6, 2018.
Gurdian did not pay the taxes owed on the properties within the three-year
redemptive period. No proceeding to annul the tax sales was filed during the three-
year redemptive period.
On October 30, 2018, Gadrel filed a petition to confirm and quite title and
for declaratory judgment seeking to transfer ownership of the Delaware Avenue
properties to himself and terminate Gurdian’s interest in them pursuant to the
procedures for tax sales and redemptions set forth in Title 47 of the Louisiana
Revised Statutes. In the petition, Gadrel states that reasonable attempts were made
to duly notify Gurdian of the tax sales and his right to redeem the properties more
than six months prior to the end of the redemptive period, as required under La.
letters, but that he sometimes did not get the letters she signed for because she misplaced them. He also
stated that he did receive the other three notices the City of Kenner sent him around July and October of
2015, about the delinquent taxes and property tax sales.
4
The tax sale certificates conveyed to Gadrel were filed and recorded on September 21, 2015.
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R.S. 47:2122. Gadrel attached to his petition copies of the notices and certified
mailing certificates that he sent to Gurdian.
On May 2, 2019, Gurdian filed an answer and reconventional demand
against Gadrel in which he alleged that the Tax Collector failed to properly notify
all interested parties of the delinquency and the tax sale in accordance with the
Louisiana Constitution, Louisiana Revised Statutes, and the due process clause of
the United States Constitution. He further alleged that due to the failure to
properly notify him, and the failure to conduct the tax sale properly, the subject tax
sale is an absolute nullity. Gurdian expressly argues that a post-tax sale notice
under the 2008 revisions to the laws regarding tax sales cannot cure
constitutionally defective pre-tax sale notice.5 Both Gadrel and Gurdian filed
motions for summary judgment. On September 8, 2022, the trial court rendered a
judgment denying with prejudice Gurdian’s motion for summary judgment,
granting Gadrel’s motion for partial summary judgment, and dismissing with
prejudice Gurdian’s reconventional demand to annul the tax sale. The judgment
also declared Gadrel the full owner of both of the Delaware Avenue properties by
virtue of the tax sale certificates and confirmed and quieted the titles in favor of
Gadrel.
On appeal, Gurdian argues that the trial court erred in failing to find that the
inadequate advertisements rendered the tax sale a nullity and that the district court
erred in granting the motion for summary judgment because the statutory scheme
for tax sales provided in the La. R.S. 47:2121, et seq., is unconstitutional. We
consider these arguments in our discussion below.
5
The City of Kenner was also added as a third-party defendant. Gurdian’s claims against the City of
Kenner were dismissed with prejudice pursuant to an April 22, 2022 judgment of the trial court sustaining
peremptory exceptions of no cause of action and peremption. That judgment is not the subject of this
appeal and is therefore not considered in this appeal.
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DISCUSSION
Appellate courts review summary judgments de novo using the same criteria
that govern the trial court’s determination of whether summary judgment is
appropriate. Cantrelle v. Brady, 22-272 (La. App. 5 Cir. 2/27/23), 359 So.3d 85(citing In re Succession of O’Krepki, 16-50 (La. App. 5 Cir. 5/26/16), 193 So.3d
574, 577). A motion for summary judgment should be granted if, after an adequate
opportunity for discovery, the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law. La. C.C.P. art. 966(A)(4). In this matter, the
parties agree that there are no genuine issues of material fact and that the dispute
before them is a matter of law.
Advertisements under La. R.S. 43:203
The first legal question at the heart of the parties’ dispute is how many
advertisements are required to be published in the newspaper prior to the tax sale
under Louisiana law.
The relevant provision of the Louisiana Constitution provides:
There shall be no forfeiture of property for nonpayment of taxes.
However, at the expiration of the year in which the taxes are due, the
collector, without suit, and after giving notice to the delinquent in the
manner provided by law, shall advertise for sale the property on which
the taxes are due. The advertisement shall be published in the official
journal of the parish or municipality, or, if there is no official journal,
as provided by law for sheriffs’ sales, in the manner provided for
judicial sales.
La. Const., Art. VII, Sec. 25(A).
The “manner provided by law” in the above section is stated in the Louisiana
Revised Statutes section on Judicial advertisements, which states in pertinent part:
When publication is required by law of any notice of a judicial
sale, … or of any other notice in a judicial proceeding:
(1) When only one publication is required by the applicable
code or statutory provision, the newspaper advertisement of such
notice shall be published at least ten days before the date of the
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judicial sale, or the expiration of the delay allowed in the notice for
the filing of an opposition or answer, or for any other appearance or
act;
(2) When two publications are required of notice of a judicial
sale by public auction, the first newspaper advertisement of such
notice shall be published at least thirty days before the date of the
judicial sale, and the second advertisement shall be published not
earlier than seven days before, and not later than the day before, the
judicial sale;
…
La. R.S. 43:203
The parties dispute whether subsection (1) or (2) of this statute applies.
Gadrel argues that subsection (1) is applicable and that only one advertisement is
necessary because the Constitution uses the word “advertisement” in the singular,
not the plural, and therefore the Constitution cannot reasonably be constructed to
require more than one advertisement. Under this interpretation, there would be no
defects in the publication of the advertisements of the September 2015 tax sales.
In opposition to this, Gurdian argues that subsection (2) of the statute has
long been held to require two advertisements for the judicial sale of immovable
property. We agree.
This Court has previously held that subsection (2) of La. R.S. 43:203 is
applicable to tax sales of immovable property and that two advertisements are
required. San Roman Enterprises, Inc. v. Plaisance, 01-1082 (La. App. 5 Cir.
12/26/01), 806 So.2d 788, 790, writ denied, 02-0260 (La. 3/28/02), 812 So.2d
633. Gadrel correctly points out that this case was decided prior to the 2008
revisions to the laws concerning tax sales; nevertheless, the language of La.
Const., Art. VII, Sec. 25(A) and La. R.S. 43:203(2) was not amended as part of
the 2008 revisions and remains unchanged.
We conclude that the requirement of two advertisements for judicial sales is
consistent with the Louisiana Supreme Court’s recent decision in Crescent City
Prop. Redevelopment Ass’n, LLC v. Muniz. In that case, the Supreme Court
22-CA-572 5
granted writs in a case from the Fourth Circuit in which the panel determined that a
tax sale of immovable property was an absolute nullity because the first
advertisement for the sale was published on the thirtieth day prior to the tax sale,
one day short of the thirty days required by the statute. Crescent City Prop.
Redevelopment Ass’n, LLC v. Muniz, 20-0421 (La. App. 4 Cir. 2/10/21), 313 So.3d
406, 411, writ granted, judgment rev’d, 21-0371 (La. 6/1/21), 347 So.3d 682, reh’g
denied, 21-0371 (La. 10/1/21), 324 So.3d 1057. In granting writs and reversing the
judgment, the Supreme Court determined that the Fourth Circuit had incorrectly
calculated the delay and that the advertisement in question had been in compliance
with the statute. Though the Supreme Court did not directly consider the question
of whether one or two advertisements were required for the judicial sale, the
decision is predicated upon the application of subsection (2) to tax sales of
immovable properties.
We find that subsection (2) of La. R.S. 43:203 applies to tax sales of
immovable properties. Applying that provision in this case, the tax sale
certificates for both Delaware Avenue properties are defective on their faces
because they each state that the first advertisements for the September 17, 2015 tax
sales were placed in newspapers published on August 19, 2015, less than the thirty
days required by law.
Action for Nullity
Having established defects in the required pre-sale advertisements, we turn
next to whether these defects are grounds for declaring the September 17, 2015 tax
sales nullities.
La. R.S. 47:2286 states:
No tax sale shall be set aside except for a payment nullity, redemption
nullity, or a nullity under R.S. 47:2162, all of which are relative
nullities. The action shall be brought in the district court of the parish
in which the property is located. In addition, the action may be
brought as a reconventional demand or an intervention in an action to
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quiet title under R.S. 47:2266 or as an intervention in a monition
proceeding under R.S. 47:2271 through 2280.
(Emphasis supplied.)
Neither the payment nullity nor the La. R.S. 47:2162 prohibited buyer
nullity are implicated in this case, which leaves only the redemption nullity. A
redemption nullity is the right of a person to annul a tax sale in accordance with
La. R.S. 47:2286 because he was not duly notified at least six months before the
termination of the redemptive period. La. R.S. 47:2122(10); Adair Asset Mgmt.,
LLC v. Turney, 50,574 (La. App. 2 Cir. 5/4/16), 195 So.3d 501, 513, writ denied,
16-1347 (La. 11/7/16), 209 So.3d 97. A person is “duly notified” when effort is
made to identify and provide that person with notice in accordance with the law.
The record is clear that both the City of Kenner and Gadrel mailed notices to
Gurdian in accordance with the law and those notices were received by Gurdian.
Under the undisputed facts, Gurdian cannot prove a redemption nullity, and
therefore as a matter of law, Gadrel is entitled to summary judgment dismissing
Gurdian’s action for nullity.
Constitutionality of Post-2008 Tax Sale Statutes
Gurdian next argues that the district court erred in granting the motion for
summary judgment because the statutory scheme for tax sales provided in the La.
R.S. 47:2121, et seq. is unconstitutional. Having found that Gurdian received
actual notice of the sales, including notice mailed by the City of Kenner of the tax
sales received by Gurdian on July 10, 2015, we find that Gurdian lacks standing to
challenge the constitutionality of the post-2008 revisions to the law on tax sales.
As the Louisiana Supreme Court has stated:
[A] party has standing to argue that a statute violates the constitution
only where the statute seriously affects the party’s own rights. To
have standing, a party must complain of a constitutional defect in the
application of the statute to him or herself, not of a defect in its
application to third parties in hypothetical situations.
In re Melancon, 05-1702 (La. 7/10/06), 935 So.2d 661, 667.
22-CA-572 7
Gurdian’s arguments concerning the purported violation of his rights of due
process under the Louisiana and United States Constitutions rest entirely upon the
premise that, because the first of two required newspaper advertisements was
published twenty nine days in advance of the tax sale rather than the required thirty
days, he did not receive notice of the tax sale. This is hypothetical conjecture. The
record includes copies of the letters for each Delaware property mailed to Gurdian
in July of 2015, mailing receipts showing that a resident signed for and received
those letters, and excerpts from Gurdian’s deposition testimony wherein he stated
that he received these letters. In reality, he is not in the position of a party who
received no advance notice of the tax sale, and this Court declines to consider the
merits of the hypothetical he presents.
CONCLUSION
We find that the Louisiana Constitution and La. R.S. 43:203(2) require two
advertisements for the judicial sale of immovable property. We also find that La.
R.S. 47:2286 allows tax sales to be set aside only for payment nullities, redemption
nullities, or prohibited buyer nullities. The undisputed record indicates that
Gurdian received mailed notice of the tax sales as required by law, and therefore he
is unable to prove a redemptive nullity. Upon de novo review, we find no error in
the trial court’s judgment. Gadrel is entitled to summary judgment dismissing
Gurdian’s claims and Gurdian’s cross motion for summary judgment was properly
denied. Having found that Gurdian received actual notice of the tax sale in July of
2015, we find that he lacks standing to challenge the constitutionality of the post-
2008 revisions to the laws on tax sales, and we decline to address the merits of his
constitutional arguments. The judgment of the trial court is affirmed.
AFFIRMED
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
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FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
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OCTOBER 18, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-572
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
JAMES E. USCHOLD (APPELLEE) MARK J. BOUDREAU (APPELLEE) SCOTT J. SONNIER (APPELLANT)
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MAILED
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