Lzm Properties, LLC v. Private Connection Property, Inc. and John Doe

LZM PROPERTIES, LLC * NO. 2020-CA-0455

VERSUS *
COURT OF APPEAL
PRIVATE CONNECTION *
PROPERTY, INC. AND JOHN FOURTH CIRCUIT
DOE *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-06415, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-
Woods, Judge Paula A. Brown)

Kyle Salvador Sclafani
THE LAW OFFICE OF KYLE S. SCLAFANI
4130 Canal Street, Suite A
New Orleans, LA 70119

LaKeisha Bruner Thomas
4130 Canal Street, Suite A
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Patrick B. Sanders
RISE AGAIN LAW FIRM, LLC
620 Derbigny Street
Gretna, LA 70053

COUNSEL FOR DEFENDANT/APPELLEE

APPEAL DISMISSED
APRIL 22, 2021

RBW

RLB

PB

This civil appeal arises from Appellant’s purchase of a tax sale certificate of

an immovable property, which contained an incorrect municipal address of the

property at issue. The trial court granted a peremptory exception of no right of

action in favor of Appellee and dismissed Appellant’s claims. Rather than file a

motion for new trial or appeal, Appellant filed an amended petition. In response to

Appellant’s amended petition, Appellee filed peremptory exceptions of no right of

action and res judicata, as well as, a dilatory exception of improper cumulation,

which the trial court granted and dismissed, with prejudice, Appellant’s claims.

Appellant appealed. For the reasons that follow, we dismiss the appeal.

PROCEDURAL HISTORY

On June 23, 2006, Defendant-Appellee, Private Connection Property, Inc.

(“PCP”), a Louisiana non-profit corporation, acquired an immovable property

1

located at 4307-09 Calliope Street in New Orleans, Louisiana 701251 from the

Schorling family through an act of cash sale.2

1
The immovable property located at 4307-09 Calliope Street is a warehouse used as commercial
property to store pet food and supplies for local animal rescue organizations.
2
The June 23, 2006 act of cash sale was recorded in the Orleans Parish Notarial Archives at NA
#2006-22316 and CIN 325240, and contained the legal description as follows:

A CERTAIN PORTION OF GROUND, together with all the buildings and
improvements thereon, and all rights, ways, privileges, servitudes, appurtenances
and advantages thereunto belonging or in anywise appertaining, situated in
SQUARE NO. 646, in the FIRST DISTRICT of this City, bounded by Calliope,
South Lopez, Euphrosine[,] and South Salcedo Streets, which said portion of
ground measures as follows:

Beginning at the comer of South Lopez and Calliope Streets and measuring 100
feet 8 inches 3 lines front on Calliope Street, thence on a line SO feet from and
parallel with the center of the track of the main line of the Yazoo and Mississippi
Valley Railroad Company, 125 feet 9 inches to a stake, thence on a line 197 feet I
inch to the intersection of said line with South Lopez Street, thence 150 feet, 3
inches, 4 lines front on South Lopez Street to the point of beginning at the corner
of South Lopez and Calliope Streets, all as shown on a blue print by Gilbert &
Kelly, Surveyors, dated December 28, 1923.

A TRACT OR PARCEL OF LAND, being part of SQUARE 646, FIRST
DISTRICT in the CITY OF NEW ORLEANS, Louisiana, said Square being
bounded by Calliope, S. Lopez, Euphrosine[,] and S. Salcedo Streets, more
particularly described as follows:

Beginning at a point in the southerly line of said Square 646 said point being 100
feet 8 inches 3 lines southeasterly from the southwest corner of said square, as
measured along said southerly line, said southerly line also being the northerly
line of Calliope Street; thence northeasterly on a straight line in the direction of S.
Salcedo Street, a distance of 125 feet 9 inches to a point in the Faubourg Lafayette
line, said point being 23 feet, 10 inches, 6 lines northwesterly from the easterly
line of said Square 646, as measured along said line; thence southeasterly along
said Faubourg Lafayette line, a distance of 17 feel; thence southwesterly on a
straight line in the direction of Calliope Street to the point of beginning,
containing an area of 1996 square feet, more or less.

TOGETHER WITH ALL PAST RENTS, FURNISHINGS AND EQUIPMENT.

Being the same portion acquired by act before Alfred J, Bonomo, Jr., dated
December 27, 1967, recorded in COB 679, folio 280. And further acquired by
Judgment of Possession rendered in the Civil District Court for the Parish of
Orleans, State of Louisiana, Docket No. 81-10078 registered as NA# 99-56412.
All in accordance with a plan of survey by Gilbert, Kelly & Couturie, Inc., dated
May 23, 2006, attached hereto.

THIS SALE IS MADE AND ACCEPTED SUIUECT TO THE FOLLOWING:

Right of way in favor of the Illinois Central Railroad Company recorded as MOB
1973, folio 639 in the Recorder of Mortgages for Orleans Parish, Louisiana.

2

PCP explained that as a Louisiana non-profit corporation, PCP has filed tax

exemptions since 2007. On or about December 2, 2015, the City of New Orleans

mailed a Notice of Tax Sale for a property located at 4438 Calliope Street to PCP,

For the same consideration herein, Vendors do hereby sell, transfer, assign,
remise, release and relinquish unto Purchaser, without any warranty whatsoever,
all of the right, title and interest which said Seller has or may have in and to the
following described property situated in the Parish of Orleans, State of Louisiana,
to wit:

A TRACT OR PARCEL OF LAND, being part of SQUARE 646, FIRST
DISTRICT in the CITY OF NEW ORLEANS, Louisiana, said Square being
bounded by Calliope, S, Lopez, Euphrosine[,] and S. Salcedo Streets, more
particularly described as follows:

Said tract of land forms the comer of Calliope Street and S, Salcedo Street and
thence in a northeasterly direction measures a distance of 83 feet 4 inches 7 lines
on S. Salcedo Street to a point; thence In a northwesterly line measure a distance
of 6 feet 10 inches 6 lines to a point; thence in a westerly line in the direction of
Calliope Street measure a distance of 134 feet 1 inch 5 lines to a point; thence in a
southeasterly direction in the direction of S. Salcedo Street measure a distance of
109 feet 11 inches 0 lines to the point of beginning, containing an area of 4,974,23
square feet, more or less.

An irregular portion of ground being part of SQUARE 512, FIRST DISTRICT in
the CITY OF NEW ORLEANS, Louisiana, said bounded by Calliope, S. Lopez,
and Earhart Boulevard which measures approximately 180 feet on Earhart
Boulevard by 120 feet on S Lopez Street by 180 feet on Calliope Street.

FOR THE SAME CONSIDERATION AS RECITED HEREIN, VENDORS
HEREBYFOR THE SAME CONSIDERATION AS RECITED HEREIN,
VENDORS HEREBY THE FOLLOWING PROPERTY, TO-WIT:

A CERTAIN PORTION OF GROUND, together with all the buildings, and
improvements thereon, and all the rights, ways, privileges, servitudes, and
advantages thereunto belonging or In anywise appertaining, situated in the FIRST
MUNICIPAL DISTRICT of the CITY OF NEW ORLEANS, in SQUARE
NO. 513, bounded by South Rendon, South Lopez, Calliope, and Clio Streets, and
by the right of way of the Yazoo and Mississippi Valley Railroad; said right of
way line being 25 feet front from the center of the Main line track and is parallel
to said track; said portion of ground is described as follows:

Said portion of ground fronting and measuring 269 feet 1 inch 6 lines on South
Rendon Street, 312 feet 9 inches 4 lines on Calliope Street, 43 feet. 2 inches, 6
lines on South Lopez Street, 313 feet 6 inches 1 line on the right of way line of
the Yazoo and Mississippi Valley Railroad, and 96 feet 0 inches 6 lines on Clio
Street, all as per plan and sketch of survey made by Gilbert & Kelly, Surveyors,
dated October 15, 1928, a copy annexed to act before Herve Racivitch, Notary
Public. May 25, 1945.

3

in care of its director and primary shareholder William W. Alden, at 7018

Meadowbrook Drive, Mandeville, Louisiana 70471-7403.3

Plaintiff-Appellant LZM Properties, LLC (“LZM”) asserts, at a public

auction on April 12, 2016, in an attempt to acquire a one-hundred percent (100%)

interest in property located at 4438 Calliope Street in New Orleans, Louisiana

70125, it paid the unpaid ad valorem taxes, penalties, and costs for the years 2013,

2014, and 2015 totaling $18,505.28.4 LZM provided the tax sale certificate as

evidence of its payment. LZM provides it also paid ad valorem taxes for the years

2016 and 2017 for the same property.

PCP avers on or about August 8, 2016, three (3) months after the tax sale,

PCP discovered the City of New Orleans had erroneously changed the municipal

address on the tax bill for its property located at 4307-09 Calliope Street to reflect

4438 Calliope Street; however, in August, 2016, PCP remained unaware the tax

sale had taken place.5 In a communication signed by William W. Alden to Erroll

G. Williams, Assessor for the City of New Orleans dated August 8, 2016,

regarding the property tax assessment for the same year, PCP, in a hand written

note, requested a correction of the property address from 4438 Calliope to 4307-09

Calliope.

On June 19, 2019, LZM filed a “Petition to Confirm and Quiet Title to Real

Estate”6 against PCP and attached a certified copy of the tax sale certificate,7 which

3
PCP never owned the immovable property identified as 4438 Calliope Street. It is worth noting
that PCP owns numerous properties in New Orleans, Louisiana.
4
On May 16, 2016, the original tax certificate was recorded in the Orleans Parish conveyance
record at Instrument Number 2016-19306, CIN 598421.
5
According to PCP, the municipal address was correct as in 2012.
6
The second paragraph of the original petition set out the legal description of the immovable
property as follows:

4

identified the immovable property at issue as 4438 Calliope Street, New Orleans,

Louisiana 70125. LZM sought to have the tax sale confirmed at the expiration of

A CERTAIN PORTION OF GROUND, together with all the buildings and
improvements thereon, and all rights, ways, privileges, servitudes, appurtenances
and advantages thereunto belonging or in anywise appertaining, situated in
SQUARE NO. 646, in the FIRST DISTRICT of this City, bounded by Calliope,
South Lopez, Euphrosine[,] and South Salcedo Streets, which said portion of
ground measures as follows:

Beginning at the comer of South Lopez and Calliope Streets and measuring 100
feet 8 inches 3 lines front on Calliope Street, thence on a line 50 feet from and
parallel with the center of the track of the main line of the Yazoo and Mississippi
Valley Railroad Company, 125 feet 9 inches to a stake, thence on a line 197 feet 1
inch to the intersection of said line with South Lopez Street, thence 150 feet, 3
inches, 4 lines front on South Lopez Street to the point of beginning at the corner of
South Lopez and Calliope Streets, all as shown on a blue print by Gilbert & Kelly,
Surveyors, dated December 28, 1923.

A TRACT OR PARCEL OF LAND, being part of SQUARE 646, FIRST
DISTRICT in the CITY OF NEW ORLEANS, Louisiana, said Square being
bounded by Calliope, S. Lopez, Euphrosine[,] and S. Salcedo Streets, more
particularly described as follows:

Beginning at a point in the southerly line of said Square 646 said point being 100
feet 8 inches 3 lines southeasterly from the southwest corner of said square, as
measured along said southerly line, said southerly line also being the northerly
line of Calliope Street; thence northeasterly on a straight line in the direction of S.
Salcedo Street, a distance of 125 feet 9 inches to a point in the Faubourg Lafayette
line, said point being 23 feet, 10 inches, 6 lines northwesterly from the easterly
line of said Square 646, as measured along said line; thence southeasterly along
said Faubourg Lafayette line, a distance of 17 feet; thence southwesterly on a
straight line in the direction of Calliope Street to the point of beginning,
containing an area of 1996 square feet, more or less.

TOGETHER WITH ALL PAST RENTS, FURNISHINGS[,] AND
EQUIPMENT.

Being the same portion acquired by act before Alfred J. Bonomo, Jr., dated
December 27, 1967, recorded in COB 679, folio 280. And further acquired by
Judgment of Possession rendered in the Civil District Court for the Parish of
Orleans, State of Louisiana, Docket No. 81-10078 registered as NA# 99-56412.
All in accordance with a plan of survey by Gilbert, Kelly & Couturie, Inc., dated
May 23, 2006, attached hereto.

THIS SALE IS MADE AND ACCEPTED SUBJECT TO THE
FOLLOWING:

Right of way in favor of the Illinois Central Railroad Company recorded as MOB
1973, folio 639 in the Recorder of Mortgages for Orleans Parish, Louisiana.
7
The thumbnail legal description in the tax deed read: SQ 646 CALLIOPE SO LOPEZ 100 X
150 3 LAFAYETTE LINE R 197 1X125 9 SO LOPEZ AND CALLIOPE IMPS M/A
CHANGED 1-16-04. The municipal address of the immovable property identified in the tax
certificate was 4438 Calliope Street.

5

the three (3) year redemptive period pursuant to La. R.S. 47:2228.8 On July 23,

2019, PCP filed a peremptory exception of no right of action in response to LZM’s

original petition and alleged the tax sale was an absolute nullity. On July 25, 2019,

LZM filed a notice of lis pendens.9

On September 5, 2019, the trial court conducted a hearing on PCP’s

peremptory exception of no right of action. At the hearing, PCP argued it owned

an immovable property located at 4307 Calliope Street, not 4438 Calliope Street 10,

as described in the tax sale certificate; the thumbnail description in the tax sale

certificate did not relate to the property it owned; it did not receive notice of the tax

sale; and, the tax sale certificate conveyed an interest in property it did not own.

LZM argued the nullity was premature and improper notice was not raised in the

exception of no right of action. LZM also argued the thumbnail legal description

in the tax sale certificate reflected the same legal description in the act of cash sale.

At the conclusion of the hearing, the trial court granted the peremptory exception

8
Effective January 1, 2009, La. R.S. 47:2228 was repealed by Acts 2008, No. 819, § 2 and
reproduced in substance by La. R.S. 47:2266. Former La. R.S. 47:2228 stated, in pertinent part:

After the lapse of three years from the date of recording the tax deed in the
conveyance records of the parish where such property is situated, the purchaser,
his heirs or assigns, may institute suit by petition and citation as in ordinary
actions against the former proprietor or proprietors of the property, in which
petition must appear a description of the property, mention of the time and place
of the sale and name of officer who made same, reference to page of record book
and date of recording tax deed, notice that petitioner is owner of the said property
by virtue of said tax sale, and notice that the title will be confirmed unless a
proceeding to annul is instituted within six months from date of service of the
petition and citation.... After the lapse of six months from the date of service of
petition and citation, if no proceeding to annul the sale has been instituted,
judgment shall be rendered quieting and confirming the title.
9
La. C.C.P. Art. 3751 provides:
The pendency of an action or proceeding in any court, state or federal, in this state affecting the
title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to
a third person not a party thereto unless a notice of the pendency of the action or proceeding is
made and filed or recorded.
10
According to PCP, it owned the immovable property located at 4307 Calliope Street, which is
across the street and down a block from 4438 Calliope Street.

6

of no right of action in favor of PCP and dismissed LZM’s original petition. On

September 25, 2019, the trial court issued a written judgment.11

On September 20, 2019, after the court’s oral ruling on the exceptions, but

prior to the issuance of a written judgment, PCP filed an ex parte motion to cancel

lis pendens, which was granted by the trial court on September 23, 2019. On

September 24, 2019, prior to the trial court’s September 25, 2019 written

judgment, LZM filed a first amended and supplemental petition to confirm and

quiet title to real estate and for nullity. LZM stated that prior to filing its amended

petition, it submitted a public records request to the Louisiana Tax Commission

and learned the Louisiana Tax Commission associated the immovable property

located at 4438 Calliope Street with the thumbnail description contained in the tax

sale certificate. Also on September 24, 2019, LZM filed a second notice of lis

pendens.

On November 7, 2019, in response to LZM’s amended petition, PCP filed a

peremptory exception of no right of action, dilatory exception of improper

cumulation, and peremptory exception of res judicata. On December 12, 2019,

after a hearing, the trial court orally granted the exceptions of no right of action,

improper cumulation and, res judicata, in favor of PCP, and LZM’s amended

petition to quiet title and for nullity was dismissed with prejudice. The trial court

issued its written judgment on February 20, 2020. On December 12, 2019, PCP

also filed an ex parte motion to cancel the second lis pendens. By order dated

December 18, 2019, the trial court denied PCP’s motion to cancel second lis

pendens requiring the matter to be set for contradictory hearing.

11
The trial court’s September 25, 2019 judgment was silent as to whether LZM’s claims were
dismissed “with prejudice.”

7

On December 26, 2019, before a written judgment was issued from the

December 12, 2019 hearing, LZM filed a “Petition to Annul Judgment” in a

different division of the Orleans Parish Civil District Court.12 On December 30,

2019, LZM filed a third notice of lis pendens in the aforesaid division. On

February 19, 2020, PCP filed a motion to transfer and consolidate and to cancel lis

pendens. The trial court set PCP’s motion for hearing on March 19, 2020. On

March 12, 2020, the trial court signed a consent judgment granting the motion to

consolidate and transfer LZM’s petition to annul filed in Division J with the matter

already pending in Division M.13 On that same date, by order, the trial court

granted an unopposed motion to reset filed by LZM to continue the hearing on

PCP’s motion to cancel lis pendens to April 23, 2020. On March 25, 2020, in

response to the petition to annul judgment filed by LZM, PCP filed peremptory

exceptions of no right of action and no cause of action. On May 27, 2020, LZM

filed a motion to substitute party alternatively for leave to amend pleading and

request for expedited hearing.

On June 4, 2020, after a hearing, the trial court denied PCP’s exception of no

cause of action; granted PCP’s exception of no right of action; denied PCP’s

motion to cancel lis pendens; and granted LZM thirty (30) days, from the date of

signing the judgment, to amend the plaintiff’s name in its petition to annul

judgment or have it dismissed with prejudice. The trial court found LZM’s motion

12
This filing was allotted to Division J and assigned Civil District Court No. 2019-13274.

13
Pursuant to the consent judgment, the matter captioned “ZM [sic] Properties, LLC v. Private
Connection Properties, Inc.” case no. 2019-13274, Division J, Civil District Court for the Parish
of Orleans, State of Louisiana be transferred and consolidated into the matter captioned “LZM
Properties, LLC v. Private Connection Properties, Inc.,” case no. 2019-6415, Division M, Civil
District Court for the Parish of Orleans, State of Louisiana.

8

for leave to amend was moot based on the granting of the thirty (30) days to

amend. The written judgment was issued by the trial court on July 6, 2020.

On June 15, 2020, LZM filed its first amended petition to annul judgment.

On June 30, 2020, LZM filed a motion for devolutive appeal from the trial court’s

February 20, 2020 judgment granting peremptory exceptions of no right of action

dismissing LZM’s claims with prejudice. On September 11, 2020, the appeal was

lodged with this Court.

DISCUSSION

In the June 30, 2020 motion for appeal, LZM seeks review of the trial

court’s February 20, 2020 judgment sustaining the peremptory exception of no

right of action in favor of PCP dismissing LZM’s first amended petition to confirm

and quiet title and for nullity with prejudice. Although not raised in the June 30,

2020 motion for appeal, in its appellate brief, LZM also seeks review of the trial

court’s September 25, 2019 judgment sustaining the exceptions of no right of

action; dismissal of its petition to confirm and quiet tax title; as well as, improper

cumulation, and res judicata.14

Assignments of Error

On appeal, LZM, raised the following assignments of error:

1. Whether the trial court erred in considering its September 25, 2019

judgment to be “final” and, therefore sufficient grounds to support

a plea of res judicata;

14
This Court, in Lavigne v. Allied Shipyard, Inc., explained that “on appeal, ‘[a]n
appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to them,
in addition to the review of the final judgment when an unrestricted appeal is taken.’” 2018-
0066, p. 8 (La. App. 4 Cir. 1/15/20), 289 So.3d 1088, 1097; (Maqubool v. Sewerage and Water
Board of New Orleans, 2018-0572, p. 3 (La. App. 4 Cir. 11/14/18), 259 So.3d 630, 632
(quoting Orleans Parish School Board v. Lexington Insurance Company, 2011-1720, p. 10 (La.
App. 4 Cir. 8/22/12), 99 So.3d 723, 729).

9

2. Whether the trial court erred in considering its order of dismissal in

its September 25, 2019 judgment to be “with prejudice” when

those words were absent from the judgment;

3. Whether the trial court erred in granting the peremptory exception

of res judicata in favor of PCP; and,

4. Whether the trial court erred in granting the peremptory exception

of no right of action in favor of PCP.

Procedural Issue

While LZM raises four (4) assignments of error on appeal, prior to delving

into the analysis of each assignment of error, we must first address a procedural

issue in this matter.

In response to LZM’s original “Petition to Confirm and Quiet Title to Real

Estate,” PCP filed a peremptory exception of no right of action, which the trial

court granted at the conclusion of the September 5, 2019 hearing; the trial court

dismissed LZM’s petition without indicating whether the petition had been

dismissed “with prejudice”. Subsequently, On September 24, 2019, instead of

taking a writ; filing a motion for new trial; or filing an appeal for the judgment

rendered on September 5, 2019, LZM filed a first amended and supplemental

petition to confirm and quiet title to real estate and for nullity. It is from that

judgment that LZM has appealed.

Louisiana Code of Civil Procedure article 1841 provides, in pertinent part,

“[a] judgment that determines the merits in whole or in part is a final judgment.”

“A judgment that sustains an exception of no right of action and does not allow

time for amending the petition is a final judgment.” River City Fed. Sav. Bank v.

Johnston, 2007-0449 (La. App. 1 Cir. 11/2/07), 2007 WL 3229143, (unpub.).

10

Further, “[t]he Louisiana Code of Civil Procedure provides the only rights

available to a party whose suit has been dismissed is to request a new trial or to

appeal.” Templet v. Johns, 417 So.2d 433, 436 (La. App. 2nd Cir. 1982). “No

where in the Louisiana Code of Civil Procedure is the amendment of a dismissed

petition after final judgment allowed.” Loupe v. Circle, Inc., 545 So.2d 694, 695

(La. App. 5th Cir. 1989) (internal quotations and citations omitted).

In the present case, LZM should have filed a motion for new trial or an

appeal of the trial court’s September 25, 2019 final judgment. Instead, LZM

allowed the time to lapse for filing an appeal from the September 25, 2019

judgment. Notwithstanding that fact, LZM filed a first amended and supplemental

petition in a lawsuit that had already been dismissed by the trial court.

Furthermore, the instant appeal was not lodged with this Court until September 11,

2020, almost a year after the September 25, 2019 judgment—well beyond any

allowable time delay for us to even consider the instant appeal as an unrestricted

appeal from the September 25, 2019 judgment in accordance with the

jurisprudential holding of Lavigne, 2018-066, 289 So.3d 1088.

Accordingly, we find that the instant appeal is both untimely and

procedurally defective. La. C.C.P. Art. 2087 (A) (1) provides in part; “[a]n appeal

which does not suspend the effect or the execution of an appealable order or

judgment may be taken within sixty days of any of the following: (1) the expiration

of the delay for applying for a new trial or judgment notwithstanding the verdict as

provided by Article 1974 and Article 1811, if no application has been filed timely.”

LZM did not file a motion for new trial within seven days after the September 25,

2019 judgment. Therefore, based on La. C.C.P. Art. 2087, LZM had only sixty

days from the running of the request for new trial delays to file an appeal. As

11

previously noted, LZM filed this appeal eleven (11) months after the September

25, 2019 judgment. For that reason, we pretermit discussion of all of the

assignments of error that LZM has raised and dismiss the instant appeal.

DECREE

For the aforementioned reasons, we dismiss the appeal.

APPEAL DISMISSED

12