Martha Lepree v. Christopher Dorsey and Cheryl Fields

MARTHA LEPREE * NO. 2022-CA-0853

VERSUS *
COURT OF APPEAL
CHRISTOPHER DORSEY AND *
CHERYL FIELDS FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-05052, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Dale N.
Atkins)

Wesley M. Plaisance
BREAZEALE, SACHSE & WILSON, LLP
909 Poydras Street, Suite 1500
New Orleans, LA 70112

Laura S. Achord
BREAZEALE, SACHSE & WILSON, LLP
300 Washington Street, Suite 307
Monroe, LA 71201

COUNSEL FOR PLAINTIFF/APPELLEE, Martha Lepree

Rudy W. Gorrell
1215 Prytania Street, Suite 223
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT, Cheryl Fields

AFFIRMED
AUGUST 11, 2023

DNA

RML

PAB

This is a real estate tax sale matter. Appellant, Cheryl Fields (“Ms. Fields”),

seeks review of the trial court’s August 11, 2022 judgment, which granted the

Motion for Summary Judgment filed by Appellee, Martha Lepree (“Ms. Lepree”).

Ms. Fields also seeks review of the trial court’s October 3, 2022 judgment, which

denied her Motion for New Trial. Upon review, we find that the trial court did not

err in granting Ms. Lepree’s Motion for Summary Judgment and in denying Ms.

Fields’ Motion for New Trial. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Ms. Lepree’s Petition

This action concerns the confirmation of a tax sale title for the immovable

property located at 8455 Beechwood Court, New Orleans, Louisiana (the

“Property”). On June 14, 2021, Ms. Lepree filed a Petition wherein she named

Christopher Dorsey (“Mr. Dorsey”) and Ms. Fields as defendants and sought a

judgment confirming her tax sale title and sole ownership of the Property “free of

all right, title, and interest of” Mr. Dorsey and Ms. Fields. In the Petition, Ms.

Lepree explained that she “acquired 100% tax sale title to the Property” on April

10, 2018, at a tax sale for unpaid 2016 and 2017 ad valorem taxes. She contended

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that her tax sale certificate dated May 9, 2018 was recorded in the conveyance

records of Orleans Parish on June 4, 2018.

According to Ms. Lepree’s Petition, prior to the 2018 tax sale of the Property

to Ms. Lepree, Mr. Dorsey acquired the Property through a cash sale on July 28,

1999; and Ms. Fields “had an interest in the Property pursuant to those certain acts

recorded in the Conveyance Records for the Parish of Orleans as Instrument

Number 558390 on July 17, 2014[,] and [Instrument Number] 466552 [recorded]

on October 28, 2010.” In the Petition, Ms. Lepree asserts that she notified Mr.

Dorsey and Ms. Lepree that they had six months from the date of service of the

Petition to institute a proceeding to annul the tax sale.

Ms. Lepree’s Motion to Appoint Attorney at Law to Represent and Receive
Service

Subsequently, on July 10, 2021, Ms. Lepree filed a “Motion to Appoint

Attorney at Law to Represent and Receive Service” (“Motion to Appoint”).

Therein, Ms. Lepree explained that “[t]he residence(s) of . . . [Mr.] Dorsey and

[Ms.] Fields are unknown and they may be deceased and/or are absentees” and that

“no succession representative has been appointed.” Accordingly, in her Motion to

Appoint, Ms. Lepree requested that the trial court appoint an attorney to represent

and receive service for Mr. Dorsey and Ms. Fields. On July 13, 2021, the trial court

granted Ms. Lepree’s Motion to Appoint and appointed Gary Carter (the “Curator

Ad Hoc”) to represent and receive service for Mr. Dorsey and Ms. Fields.

Thereafter, on August 3, 2021, the Orleans Parish Sheriff’s Office (“Sheriff’s

Office”) personally served the Curator Ad Hoc with his Notice of Appointment

and with Ms. Lepree’s Petition.

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Curator Ad Hoc’s Answer to Petition

After receiving his Notice of Appointment and Ms. Lepree’s Petition, the

Curator Ad Hoc filed an “Answer to Petition” (“Answer”) on October 7, 2021.

Therein, on behalf of Mr. Dorsey and Ms. Fields, the Curator Ad Hoc denied the

allegations in Ms. Lepree’s Petition and asserted “each and every affirmative

defense available to [Mr. Dorsey and Ms. Fields] pursuant to La. Code Civ. Proc.

art. 1005,[1] including but not limited to, duress, error or mistake, estoppel,

extinguishment of the obligation in any manner, failure of consideration, fraud,

illegality, fault of others, and lack of proper notice in violation of due process.”

Ms. Lepree’s Motion for Summary Judgment

Thereafter, on May 13, 2022, Ms. Lepree filed a Motion for Summary

Judgment, in which she sought a judgment against Mr. Dorsey and Ms. Fields

confirming her sole ownership of the Property and enjoining and prohibiting them

from claiming any right, title or interest in or to all or any portion of the Property.

The Sheriff’s Office served the Curator Ad Hoc with Ms. Lepree’s Motion for

Summary Judgment on May 18, 2022. In her “Memorandum in Support of Motion

for Summary Judgment” (“Memorandum in Support”), Ms. Lepree cited La.

Const. art. VII, § 25 (1974), as well as La. R.S. 47:2121(C) and 47:2266, in

support of her contention that the trial court should confirm her tax sale title and

sole ownership of the Property.2 Specifically, Ms. Lepree argued that her title and

1 Louisiana Code of Civil Procedure Article 1005 states that “[t]he answer shall set forth

affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel,
extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury
by fellow servant, and any other matter constituting an affirmative defense.”
2 At the outset, we note that the Louisiana Legislature has amended some of the laws

regarding tax sales since the events of this case. The Louisiana Supreme Court has explained that
the language of the statute in effect at the time of the tax sale applies to the sale, so our review is
confined to the version of these statutes in effect at the time of this tax sale, April 10, 2018. See

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ownership should be confirmed because the three-year peremptive period to

redeem the Property had expired and the six-month prescriptive period to file an

action to annul the tax sale after service of the citation and Petition had lapsed.

Further, Ms. Lepree asserted that her tax sale certificate constituted prima facie

evidence of the validity of the April 10, 2018 tax sale and that “Mr. Dorsey and

Ms. Fields had the burden of proof in establishing any nullities to defeat the title

but failed to do so.” Additionally, Ms. Lepree contended that Mr. Dorsey and Ms.

Fields had been “duly notified” of the tax sale and the time period within which to

bring an action to annul the sale but had not done so.

In support of her Motion for Summary Judgment, Ms. Lepree attached an

affidavit dated May 11, 2022, and her May 9, 2018 Tax Sale Certificate. In her

affidavit, Ms. Lepree repeated the timeline of the transfers of the Property as

previously outlined in her Petition. She also attested that “[t]he tax sale title . . .

was not redeemed by [Mr. Dorsey or Ms. Fields] or any other person or entity nor

ha[d] any suit been filed to annul [her] tax sale title.” The May 9, 2018 Tax Sale

Certificate listed the address and description of the Property; the date of the tax

Cent. Props. v. Fairway Gardenhomes, LLC, 2016-1855, 1946, p. 10 (La. 6/27/17), 225 So.3d
441, 448.

Louisiana Constitution Article VII, Section 25(B)(1) (1974) provides that after a sale of a
property for nonpayment of taxes, “[t]he 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.” Regarding
this three-year time period, La. R.S. 47:2121(C)(1) states that “[i]f the tax sale property is not
redeemed within the redemptive period, then at the termination of the redemptive period, tax sale
title transfers to its holder ownership of the tax sale property, free of the ownership and other
interests, claims, or encumbrances held by all duly notified persons.”

Additionally, La. R.S. 47:2266 is titled “[p]rocedure to quiet tax titles.” Louisiana
Revised Statutes 47:2266(A)(1) states, in pertinent part, that “[a]fter expiration of the redemptive
period, an acquiring person may institute an ordinary proceeding against the tax sale parties
whose interests the petitioner seeks to be terminated. The petition shall contain . . . notice that the
title and full ownership in the property will be confirmed unless a proceeding to annul is
instituted within six months after the date of service of the petition and citation.”

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sale as April 10, 2018; and Ms. Lepree as “the purchaser of tax sale title to 100%

of the whole of the [P]roperty or the undivided interest of the tax debtor therein.”

Ms. Lepree also attached as exhibits the July 26, 1999 Cash Sale by which Mr.

Dorsey acquired the Property and the July 15, 2018 Quit Claim Deed by which Ms.

Fields acquired the Property.3

Curator Ad Hoc’s Note of Evidence

On June 16, 2022, the Curator Ad Hoc filed a “Note of Evidence,” wherein

he detailed his efforts to search for Mr. Dorsey and Ms. Fields and attached

supporting exhibits. The Curator Ad Hoc explained that he looked for Mr. Dorsey

via internet search engines and directories but found only one person with his name

associated with the address of the Property. Thereafter, according to the Note of

Evidence, the Curator Ad Hoc prepared letters and sent them via certified mail to

the addresses he had discovered for Mr. Dorsey. Additionally, the Curator Ad Hoc

explained that he called all of the telephone numbers that he located in the online

listing but was unable to reach anyone because those telephone numbers had been

disconnected. Similarly, the Curator Ad Hoc explained that he looked for Ms.

Fields via internet search engines and directories but found only one person with

her name associated with the address of the Property. Again, the Curator Ad Hoc

prepared letters and sent them via certified mail to the addresses he had discovered

3 Ms. Lepree also attached an October 26, 2010 Tax Sale Certificate by which “Mike &

Mike Properties” acquired the Property. As explained more fully throughout this Opinion, the
Curator Ad Hoc eventually spoke with Ms. Fields, who explained that she obtained ownership of
the Property via a quitclaim deed from her brother, who had acquired ownership of the Property
from the previous owner, Mr. Dorsey.

We note that the name of Ms. Fields’ brother is inconsistent in the record. The October
26, 2010 Tax Sale Certificate lists his name as “Frank Mike,” but the transcript of the June 16,
2022 hearing, which is discussed more fully throughout the Opinion, lists his name as “Frank
White, Jr.”

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for Ms. Fields. In his Note of Evidence, the Curator Ad Hoc explained that, as he

had done for Mr. Dorsey, he called all of the telephone numbers that he located in

the online listing pertaining to Ms. Fields but was unable to reach anyone because

those telephone numbers had been disconnected.

The Curator Ad Hoc stated in his Note of Evidence that on October 23,

2021, he sent letters to Mr. Dorsey and Ms. Fields at the address of the Property

via certified mail. Additionally, the Curator Ad Hoc explained that on May 24,

2022, he searched various social media platforms, including Facebook, Instagram,

and Twitter, for profiles with Mr. Dorsey’s and Ms. Fields’ names but found no

such profiles. Further, the Curator Ad Hoc published legal notice in the Times

Picayune newspaper for three consecutive days on June 10, 11, and 12, 2022,

listing the address of the Property and asking for anyone with information about

Mr. Dorsey or Ms. Fields to contact him.

Additionally, in his Note of Evidence, the Curator Ad Hoc explained that he

made one final attempt to locate Mr. Dorsey and Ms. Fields on June 15, 2022, and

this time found a Facebook profile for a person named “Duchess Lygon” with the

name “@cheryl.w.fields” in the description section of the Facebook profile.

Through a mutual friend, the Curator Ad Hoc learned that Ms. Fields had changed

her name to Duchess Lygon. The Curator Ad Hoc spoke with Ms. Fields (also

known as Ms. Lygon) on June 15, 2022, and informed her of the proceedings

against her regarding the Property. Ms. Fields told the Curator Ad Hoc that she had

not previously received notice of the instant litigation and that she was not in New

Orleans; but Ms. Fields stated that she would make every effort to attend the

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hearing on Ms. Lepree’s Motion for Summary Judgment and would hire an

attorney.4

Hearing on Ms. Lepree’s Motion for Summary Judgment

On June 16, 2022, the trial court held a hearing on Ms. Lepree’s Motion for

Summary Judgment. At the hearing, Derek Rovaris, Esq., appeared on behalf of

the Curator Ad Hoc and reiterated the efforts undertaken to locate Mr. Dorsey and

Ms. Fields as delineated in the Curator Ad Hoc’s Note of Evidence. Ultimately,

Ms. Fields did not attend the June 16, 2022 hearing; however, her brother appeared

in her stead and requested that the hearing on Ms. Lepree’s Motion for Summary

Judgment be continued so that Ms. Fields could hire an attorney and oppose the

Motion for Summary Judgment. That same day, the trial court signed a judgment,

which continued the hearing until June 30, 2022, for Ms. Fields but granted the

Motion for Summary Judgment against Mr. Dorsey, thereby extinguishing his

interest in the Property.

However, when Ms. Fields’ counsel of record attended the June 30, 2022

hearing on her behalf, he requested another continuance on the basis that Ms.

Fields still had not been served with the Petition. The trial court reset the hearing

on the Motion for Summary Judgment to August 11, 2022.

Ms. Fields’ Opposition to Ms. Lepree’s Motion for Summary Judgment

On August 8, 2022, Ms. Fields filed a “Memorandum in Opposition to

Motion for Summary Judgment” (“Opposition”) wherein she argued that summary

judgment was improper because there remained genuine issues of material facts

regarding: 1) whether she received notice of the Petition; 2) whether she received

4 In light of the Note of Evidence, the trial court subsequently signed an Order on June

27, 2022, decreeing that the Curator Ad Hoc had fulfilled his duties and was relieved of his
appointment.

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notice of her right to redeem the property after the tax sale in accordance with La.

R.S. 47:2156; and 3) whether Ms. Lepree or the City of New Orleans sent Ms.

Fields a post-sale notice to her regarding her right to redeem the property. Ms.

Fields did not attach any affidavits or other evidence to support the assertions in

her Opposition.

On August 11, 2022, the trial court held a hearing on Ms. Lepree’s Motion

for Summary Judgment. After hearing arguments and considering the evidence, the

trial court signed a judgment, which granted Ms. Lepree’s Motion for Summary

Judgment and declared her the sole owner of the Property. It stated in pertinent

part:

IT IS ORDERED that the Motion for Summary Judgment filed
by Plaintiff Martha Lepree against Defendant Cheryl Fields and her
heirs, successors, administrators and assigns as well as her surviving
spouses, if any, and their heirs, successors, administrators and assigns
is [GRANTED].

IT IS FURTHER ORDERED that Plaintiff Martha Lepree is
hereby declared the sole owner of the immovable property in the City
of New Orleans, Parish of Orleans described as:

[8455 Beechwood Court, New Orleans, Louisiana]

(the “Property”) and entitled to possession thereof free from all
interests, claims and encumbrances which may be asserted by
Defendant Cheryl Fields and her heirs, successors, administrators and
assigns as well as her surviving spouses, if any, and their heirs,
successors, administrators and assigns.

IT IS FURTHER ORDERED that Defendant Cheryl Fields
and her heirs, successors, administrators and assigns as well as her
surviving spouses, if any, and their heirs, successors, administrators
and assigns are forever enjoined and prohibited from claiming any
right, title or interest in or to all or any portion of the Property owned
solely and fully by Plaintiff Martha Lepree.

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Ms. Fields’ Motion for New Trial and Judgment

On August 19, 2022, Ms. Fields filed a “Motion for New Trial with

Incorporated Memorandum in Support” (“Motion for New Trial”). Ms. Fields

argued that the trial court erred in granting Ms. Lepree’s Motion for Summary

Judgment because neither Ms. Lepree nor the Curator Ad Hoc provided proof of

service and citation of the Petition on Ms. Fields. Additionally, Ms. Fields argued

that the trial court’s grant of Ms. Lepree’s Motion for Summary Judgment was

improper because there was a genuine issue of material fact as to whether she was

served with the post-sale notice in accordance with La. R.S. 47:2156. Ms. Fields

stated in her Motion for New Trial that she still had not seen Ms. Lepree’s Petition.

After a hearing on September 22, 2022, the trial court signed a judgment denying

Ms. Fields’ Motion for New Trial on October 3, 2022.

Ms. Fields timely filed this devolutive appeal seeking review of the trial

court’s August 11, 2022, and October 3, 2022 judgments.

ASSIGNMENTS OF ERROR

On appeal, Ms. Fields raises five assignments of error:

1. The Trial Court erred in granting the [Motion for Summary
Judgment filed by] plaintiff/appellee, Ms. Lepree, . . . declaring
her to be the sole owner of the Property based on a tax sale title
to the Property acquired by virtue of a tax sale for unpaid 2016-
2017 ad valorem taxes.

2. The Trial Court erred in denying the [Motion for New Trial]
filed by the defendant/appellant, Ms. Fields, because the
granting of the M[otion for Summary Judgment] was contrary
to the law and evidence.

3. The Trial Court erred in determining that the plaintiff/appellee
met her burden and established that there were no genuine
issues of material fact that existed when the record was devoid
of any factual support to evidence that either the
plaintiff/appellee, Ms. Lepree, or the City of New Orleans, as
tax collector, complied with the mandatory requirements of

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post-tax sale notice to redeem the property as required by [La.
R.S.47:2156].

4. The Trial Court erred in determining that service upon the
[Curator Ad Hoc] constituted sufficient service to the
defendant, Ms. Fields, when there is nothing in the record to
evidence that the [Curator Ad Hoc] sent notice of the Petition to
the defendant notifying her that she had six [] months after
service of the Petition to file an action to annul the tax sale
certificate.

5. The Trial Court erred in determining that the plaintiff, Ms.
Lepree, or the City of New Orleans complied with all
requirements of post-sale tax notifications, specifically, that the
plaintiff or the City of New Orleans was not required to send
notice to the defendant, Ms. Fields, prior to the filing of the
[Petition] and the expiration of the redemption period that she
had six [] months to redeem the property.

For purposes of our discussion, we will combine Ms. Fields’ first, third, and fifth

assignments of error before discussing her fourth and second assignments of error,

respectively. Before we turn to the merits, however, we begin our discussion with

the principles and standards of review applicable to the summary judgment

procedure and to motions for new trial.

DISCUSSION

Summary Judgment Principles and Standard of Review

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action . . . .” La. C.C.P. art. 966(A)(2). It

“is favored and shall be construed to accomplish these ends.” Id. “After an

opportunity for adequate discovery, a motion for summary judgment shall be

granted if 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)(3).

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“An appellate court applies the de novo standard of review in examining the

trial court’s ruling on a motion for summary judgment and utilizes ‘the same

criteria that govern the trial court’s determination of whether summary judgment is

appropriate.’” Lirette v. Adams, 2022-0552, 0553, p. 19 (La. App. 4 Cir. 1/31/23),

___ So.3d ___, ___, 2023 WL 1252737, at *10 (quoting Jones v. Boot Bar & Grill,

C. Napco, Inc., 2022-0154, p. 12 (La. App. 4 Cir. 10/5/22), 350 So.3d 968, 978).

“Accordingly, ‘appellate courts ask the same questions the trial court does in

determining whether summary judgment is appropriate: whether there is any

genuine issue of material fact, and whether the mover is entitled to judgment as a

matter of law.’” Id.

“The burden of proof rests with the mover” on a motion for summary

judgment. La. C.C.P. art. 966(D)(1). “The party seeking summary judgment has

the burden of proving there is no genuine issue of material fact.” Lirette, 2022-

0552, 0553, p. 19, ___ So.3d at ___, 2023 WL 1252737, at *10 (quoting Jones,

2022-0154, p. 12, 350 So.3d at 978). “[I]f the movant satisfies the initial burden,

the burden shifts to the party opposing summary judgment to present factual

support sufficient to show he [or she] will be able to satisfy the evidentiary burden

at trial.” Id. (quoting Jones, 2022-0154, pp. 12-13, 350 So.3d at 978-

79). “However, if the mover will not bear the burden of proof at trial on the issue

that is before the court on the motion for summary judgment, the mover’s burden

on the motion does not require him to negate all essential elements of the adverse

party’s claim, action, or defense, but rather to point out to the court the absence of

factual support for one or more elements essential to the adverse party’s claim,

action, or defense.” Id. at p. 20, ___ So.3d at ___, 2023 WL 1252737, at *10

(quoting Jones, 2022-0154, p. 13, 350 So.3d at 979).

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“Only after the motion has been made and properly supported does the

burden shift from the mover to the adverse party.” Id. Thereafter, “the adverse

party [must] produce factual support sufficient to establish the existence of a

genuine issue of material fact or that the mover is not entitled to judgment as a

matter of law.” La. C.C.P. art. 966(D)(1). “[The] adverse party may not rest on the

mere allegations or denials of his [or her] pleading, but his [or her] response, by

affidavits or as otherwise provided above, must set forth specific facts showing that

there is a genuine issue for trial. If he [or she] does not so respond, summary

judgment, if appropriate, shall be rendered against him [or her].” La. C.C.P. art.

967(B). If a party includes supporting or opposing affidavits in connection with a

motion for summary judgment, then these must be based upon the affiant’s

personal knowledge. La. C.P.P. art. 967(A). “‘If the adverse party fails to provide

factual evidence sufficient to establish that he will be able to satisfy his [or her]

evidentiary burden of proof at trial, there is no genuine issue of material fact’ and

summary judgment is appropriate.” Lirette, 2022-0552, 0553, p. 20, ___ So.3d at

___, 2023 WL 1252737, at *10 (quoting Jones, 2022-0154, p. 13, 350 So.3d at

979).

“A genuine issue is a triable issue.” Id. at p. 21, ___ So.3d at ___, 2023 WL

1252737, at *11 (quoting Jones, 2022-0154, p. 14, 350 So.3d at 979). “More

precisely, an issue is genuine if reasonable persons could disagree.” Id. “However,

‘if on the state of the evidence, reasonable persons could reach only one

conclusion, there is no need for a trial on that issue.’” Id. “A fact is material when

its existence or non-existence may be essential to the plaintiff’s cause of action

under the applicable theory of recovery.” Id. “Facts are material if they potentially

insure or preclude recovery, affect a litigant’s ultimate success, or determine the

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outcome of the legal dispute.” Id. Whether a particular fact in dispute is material

can only be seen in light of the substantive law applicable to the case because the

applicable substantive law determines materiality. Id. “In considering a motion for

summary judgment, the trial court cannot make credibility determinations but must

construe reasonable factual inferences in favor of the party opposing the motion,

resolving all doubt in favor of the opponent.” Id.

Assignments of Error Numbers One, Three, and Five: Whether the Trial
Court Erred in Granting Ms. Lepree’s Motion for Summary Judgment and
Whether There Remained a Genuine Issue of Material Fact About Whether
Ms. Fields Received Post-Sale Notice

We have combined Ms. Fields’ first, third, and fifth assignments of error

because they all concern whether the trial court erred in granting Ms. Lepree’s

Motion for Summary Judgment on the basis of post-sale notice. That is, in her first

assignment of error, Ms. Fields contends that the trial court erred in general in

granting Ms. Lepree’s Motion for Summary Judgment. In her third assignment of

error, Ms. Fields asserts more specifically that “[t]he Trial Court erred in

determining that [Ms. Lepree] met her burden and established that there were no

genuine issues of material fact” because “the record was devoid of any factual

support to evidence that either [Ms. Lepree], or the City of New Orleans, as tax

collector, complied with the mandatory requirements of post-tax sale notice to

redeem the [P]roperty as required by La. R.S. 47:2156.” Finally, in her fifth

assignment of error, Ms. Fields argues that “[t]he Trial Court erred in determining

that [Ms. Lepree], or the City of New Orleans complied with all requirements of

post-sale tax notifications, specifically, that [Ms. Lepree] or the City of New

Orleans was not required to send notice to . . . Ms. Fields[] prior to the filing of the

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Petition and the expiration of the redemption period that she had six [] months to

redeem the [P]roperty.”

A “redemptive period” is the time “period in which a person may redeem

property as provided in the Louisiana Constitution.” La. R.S. 47:2122(11). The

redemptive period at issue herein is found in La. Const. art. VII, § 25(B)(1) (1974).

It provides that after a sale of a property for nonpayment of taxes, “[t]he 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.” La. Const. art. VII,

§ 25(B)(1). If a tax sale party is “not duly notified at least six months before the

termination of the redemptive period” of the right to redeem the property, then he

or she can seek a redemption nullity to annul the tax sale. La. R.S. 47:2122(10).5

Regarding the notice requirement, La. R.S. 47:2156, which is titled “[p]ost-sale

notice,” states that this post-sale notice must “inform the tax sale parties that the

failure to redeem the property prior to the expiration of the applicable redemptive

period will terminate the right to redeem the property.” La. R.S. 47:2156(A).

Thereafter, “[i]f the tax sale property is not redeemed within the redemptive

period, then at the termination of the redemptive period, tax sale title transfers to

its holder ownership of the tax sale property, free of the ownership and other

interests, claims, or encumbrances held by all duly notified persons.” La. R.S.

47:2121(C)(1). Additionally, “[a]fter expiration of the redemptive period, an

acquiring person may institute an ordinary proceeding against the tax sale parties

whose interests the petitioner seeks to be terminated.” La. R.S. 47:2266(A)(1).

5 A “redemption nullity” is defined as “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).

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Louisiana Constitution Article VII, Section 25(A)(1) (1974) states that “[a]

tax deed by a tax collector shall be prima facie evidence that a valid sale was

made.” Further, La. R.S. 47:2155(B) provides that “[a] certified copy of the tax

sale certificate is prima facie evidence of the regularity of all matters regarding the

tax sale and the validity of the tax sale.” Therefore, if the tax sale purchaser

presents a certified copy of the tax sale certificate, then the burden shifts to the

former property owner to “prov[e] any defects in the tax adjudication

proceedings.” NAR Sols., Inc. v. Kuhn, 2022-00425, p. 4 (La. 12/9/22), 354 So.3d

1176, 1178 (quoting Smitko v. Gulf S. Shrimp, Inc., 2011-2566, p. 11 (La. 7/2/12),

94 So.3d 750, 757-58). In Pamplemoussier, L.L.C. v. Poche, Pamplemoussier,

L.L.C. (“Pamplemoussier”), purchased an interest in immovable property in 2004

and filed suit to confirm and quiet tax title in 2010. 2012-1829, p. 2 (La. App. 1

Cir. 9/13/13), 187 So.3d 480, 481. The record owners of the property, the Poches,

reconvened and alleged the nullity of the tax sale for failure to send post-sale

notices. Id. Thereafter, Pamplemoussier filed a motion for summary judgment

seeking to confirm and quiet tax title, but the trial court denied the motion for

summary judgment. Id. The Louisiana First Circuit Court of Appeal reversed the

trial court’s judgment and explained:

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,
[20]05-1192[, p. 9] (La. 4/4/06), 925 So.2d 1172, 1177; Cressionnie v.
Intrepid, Inc., [20]03-1714[, p. 4] (La. App. 1 Cir. 5/14/04), 879 So.2d
736, 739. . . .

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

15

prior motion for summary judgment. In the affidavit, Ms. Poche
attested that they received no post-sale notices. . . .

The tax deed was prima facie evidence of the validity of the tax
adjudication proceedings. Cressionnie, [2003-1714, p. 4,] 879 So.2d
at 739; see also La. R.S. 47:2155[(B)] and La. Const. art. VII, §
25[(A)](1). It was then the Poches’ burden to prove an alleged
irregularity in the tax adjudication proceeding. See Cressionnie,
[2003-1714, p. 4,] 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 [i]d.

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, [20]04-0586[,
p. 4] (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 . . .
were not provided, the argument of counsel, no matter how artful, is
not evidence. Rising Resources Control, Inc. v. KIE Commodities [&]
Fin[.], L.L.C., [20]11-1026[, p. 4] (La. App. 1 Cir. 12/21/11), 80
So.3d 1217, 1220, writ denied, [20]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.

Id. at pp. 3-4, 187 So.3d at 482. See also Libertas Tax Fund I, LLC v. Laiche,

2021-0330, pp. 15-16 (La. App. 1 Cir. 12/22/21), 340 So.3d 236, 246 (wherein the

First Circuit granted a motion for summary judgment confirming a property tax

sale when the tax sale purchaser offered the tax sale certificate in support of its

motion for summary judgment, and the property owner only asserted an allegation

of improper pre-tax sale notice in opposition to the motion), writ denied, 2022-

00160 (La. 4/12/22), 336 So.3d 82.6

6 We note that Louisiana law requires pre-sale notice and post-sale notice but include

Laiche in our analysis to demonstrate that no matter the type of notice at issue, the former
property owner must do more than merely assert a lack of notice.

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Likewise, in the matter sub judice, Ms. Lepree attached a certified copy of

the tax deed with her Motion for Summary Judgment. This constituted prima facie

evidence of the validity of the tax sale proceedings; and the burden then shifted to

Ms. Fields to establish a genuine issue of material fact as to the validity of the tax

sale. See La. Const. art. VII, § 25(A)(1); La. R.S. 47:2155(B); NAR Sols., Inc.,

2022-00425, p. 4, 354 So.3d at 1178; Pamplemoussier, 2012-1829, p. 3, 187 So.3d

at 482. We find that Ms. Fields did not carry her burden. Instead, in her Opposition

to Ms. Lepree’s Motion for Summary Judgment, Ms. Fields merely argued that she

did not receive notice of the sale of the Property and that the record was lacking

proof of post-tax sale notice of her right to redeem the Property. This was

insufficient to rebut the presumption of validity. See Pamplemoussier, 2012-1829,

pp. 3-4, 187 So.3d at 482. Ms. Fields did not even attach an affidavit to her

Opposition with an attestation about her alleged lack of post-sale notice; and she

otherwise failed to include any exhibits and evidence to support her arguments.

Rather, Ms. Fields’ reliance on only the arguments of her counsel in her

Opposition to Ms. Lepree’s Motion for Summary Judgment was insufficient to

create a genuine issue of material fact as to the validity of the tax sale deed. See

Pamplemoussier, 2012-1829, p. 4, 187 So.3d at 482. See also Numa C. Hero &

Son, LLP Through Hero v. Brit UW Ltd., 2022-0405, pp. 7-8 (La. App. 4 Cir.

12/21/22), 356 So.3d 480, 484 (explaining that “[a]rgument of counsel and briefs,

no matter how artful, are not sufficient to raise a genuine issue of material fact”)

(quoting Attardo v. Brocato, 1996-1170, p. 2 (La. App. 4 Cir. 2/5/97), 688 So.2d

1296, 1297). Thus, we conclude that the trial court did not err in granting Ms.

Lepree’s Motion for Summary Judgment.

17

Assignment of Error Number Four: Whether Service of the Petition on the
Curator Ad Hoc was Sufficient to Satisfy Due Process Requirements

In her fourth assignment of error, Ms. Fields contends that the trial court

erred when it determined that the service of the petition on the Curator Ad Hoc was

sufficient service on Ms. Fields. Ms. Fields argues that “there is nothing in the

record to evidence that the Curator Ad Hoc sent notice of the Petition to the

defendant notifying her that she had six [] months after service of the Petition to

file an action to annul the tax sale.” Ms. Fields specifically faults the Curator Ad

Hoc for not attaching a return receipt or green card from the certified mail

containing the Petition sent to Ms. Fields.

Louisiana Code of Civil Procedure Article 5098 provides that “[t]he failure

of an attorney appointed by the court to represent an unrepresented party to

perform any duty imposed upon him by . . . shall not affect the validity of any

proceeding, trial, order, judgment, seizure, or judicial sale of any property in the

action or proceeding, or in connection therewith.” As this Court has explained, the

validity of any proceeding, including the seizure and sale of any property by

executory process, is not affected by the failure of a curator ad hoc to perform any

of his duties, unless he takes no actions to notify the absentee defendants of the

pending action. Sunset Harbour, LLC v. Heirs & Unopened Succession of Lassalle,

2022-0298, p. 4 (La. App. 4 Cir. 7/20/22), ___ So.3d ___, ___, 2022 WL 2826835,

at *2.

Additionally, Louisiana jurisprudence establishes that service on a curator ad

hoc, appointed in accordance with a statutory provision to represent the interests of

18

an absentee defendant,7 is sufficient to satisfy due process requirements, despite

any failure of the curator ad hoc to communicate with the absentee defendant.

Carter v. First S. Farm Credit, ACA, 49,531, p. 11 (La. App. 2 Cir. 1/14/15), 161

So. 3d 928, 935. See also Nationstar Mortg. LLC v. Parham, 51,102, p. 7 (La.

App. 2 Cir. 2/15/17), 216 So.3d 231, 235 (citing La. C. C. P. art. 5098; Carter,

49,531, p. 11, 161 So.3d at 935; Gulf Coast Bank & Tr. v. Warren, 2012-1570, pp.

9-10 (La. App. 4 Cir. 9/18/13), 125 So.3d 1211, 1217-18). Rather, when a curator

ad hoc is appointed to represent an absentee defendant, “the attorney shall use

reasonable diligence to communicate with the defendant and inform him of the

pendency and nature of the action or proceeding, and of the time available for the

filing of an answer or the assertion of a defense otherwise.” La. C.C.P. art. 5094.

The First Circuit has found that a curator ad hoc met the standard of reasonable

diligence when she mailed certified letters to the last known address of the

absentee defendants. Wright v. Waguespack, 2002-0603, p. 5 (La. App. 1 Cir.

12/20/02), 836 So.2d 436, 439. Moreover, we note that La. R.S. 47:2122(4) states

that the definition of “duly notified” for tax sale proceedings is met whether or not

the “effort resulted in actual notice to the person.”

In the matter sub judice, the trial court appointed the Curator Ad Hoc to

represent Ms. Fields after Ms. Lepree was unable to locate and serve Mr. Dorsey

and Ms. Fields with the Petition. The Sheriff’s Office served the Petition on the

Curator Ad Hoc on August 11, 2023, and he filed an Answer to the Petition on

behalf of Mr. Dorsey and Ms. Fields on October 7, 2022. The record reflects that

the Curator Ad Hoc made several attempts to contact Ms. Fields, which were

7 In a proceeding to terminate a tax sale property party’s interests, La. R.S. 47:2266(A)(2)

provides that a curator ad hoc can be appointed to represent and receive service for a tax sale
party whose residence is unknown.

19

ultimately successful when the Curator Ad Hoc learned that Ms. Fields had

changed her name.

Based on our review of the record, we find that the Curator Ad Hoc

exercised reasonable diligence in locating and notifying Ms. Fields of the Petition

filed by Ms. Lepree. In his Note of Evidence, the Curator Ad Hoc stated that he

mailed the Petition to Ms. Fields’ last known address via certified mail after

searching for her whereabouts on August 15, 2021. He tried to call Ms. Fields on

the phone numbers listed for her online but found that they were disconnected. The

Curator Ad Hoc sent another letter via certified mail to Ms. Fields on October 23,

2021, and published legal notice in the Times Picayune newspaper about the

pending litigation on June 10, 11, and 12, 2022. The Curator Ad Hoc was finally

able to speak with Ms. Fields on June 15, 2022, after a social media search

revealed that she had changed her name to “Duchess Lygon.” Accordingly, we find

that the Curator Ad Hoc’s actions met the standard of reasonable diligence.

Further, we find that Ms. Fields was duly notified of the tax sale through the

service of the Petition on the Curator Ad Hoc. The Petition contained language

informing Ms. Fields that her “tax sale title and sole ownership of the Property

shall be confirmed in this proceeding unless a proceeding to annul the tax sale is

instituted by the Defendants within six [] months from the date of service of the

Petition and Citation on the Defendants in accordance with [La. R.S.] 47:2266.”

This language was sufficient to provide Ms. Fields with notice that she had six

months to institute a proceeding to annul the tax sale as required in La. R.S.

47:2266.

Finally, as mentioned previously, La. R.S. 47:2122(4)(a) provides that a tax

sale property owner is “duly notified” of the sale whether or not the “effort resulted

20

in actual notice to the person.” The record here demonstrates that Ms. Fields was

duly notified of the tax sale and her ability to nullify the action because the Curator

Ad Hoc sent the Petition to Ms. Fields via certified mail. Whether or not the

Curator Ad Hoc received a return receipt or confirmation that Ms. Fields actually

received the certified mail is of no issue. Thus, we again conclude that the trial

court did not err in granting Ms. Lepree’s Motion for Summary Judgment.

Assignment of Error Number Two: Whether the Trial Court Erred in
Denying Ms. Fields’ Motion for New Trial

In her second assignment of error, Ms. Fields contends that the trial court

erred in denying her Motion for New Trial because the granting of the Motion for

Summary Judgment “was contrary to the law and evidence.” Ms. Fields does not

further expand on this argument in her brief to this Court. However, in her Motion

for New Trial, Ms. Fields argued that the trial court should grant her motion

because Ms. Lepree did not submit evidence that Ms. Fields had been provided

with post-tax sale notice in her Motion for Summary Judgment. Ms. Fields raised

that same argument her Opposition to Ms. Lepree’s Motion for Summary

Judgment.

“A new trial may be granted, upon contradictory motion of any party or by

the court on its own motion, to all or any of the parties and on all or part of the

issues, or for reargument only.” La. C.C.P. art. 1971. Louisiana Code of Civil

Procedure Article 1972 states that a court shall grant a new trial, upon a party filing

a contradictory motion, in certain cases:

(1) When the verdict or judgment appears clearly contrary to the law
and the evidence.

(2) When the party has discovered, since the trial, evidence important
to the cause, which he could not, with due diligence, have obtained
before or during the trial.

21

(3) When the jury was bribed or has behaved improperly so that
impartial justice has not been done.

The cases listed in La. C.C.P. art. 1972 constitute peremptory grounds for the

granting of a new trial. By contrast, La. C.C.P. art. 1973 is titled “[d]iscretionary

grounds,” and it provides that “[a] new trial may be granted in any case if there is

good ground therefor, except as otherwise provided by law.”

The decision to grant or deny a motion for new trial “rests within the wide

discretion of the trial court . . . .” Occidental Props. Ltd. v. Zufle, 2014-0494, p. 11

(La. App. 5 Cir. 11/25/14), 165 So.3d 124, 131 (citing Lambert v. State Through

Dep’t of Transp. & Dev., 1996-160 (La. App. 5 Cir. 10/16/96), 683 So.2d 839,

845). Accordingly, an appellate court “reviews a ruling on a motion for new trial

under an abuse of discretion standard of review.” Sunset Harbour, LLC v. Brown,

2022-0572, p. 9 (La. App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173 (citing Jouve v.

State Farm Fire & Cas. Co., 2010-1522, p. 15 (La. App. 4 Cir. 8/17/11), 74 So.3d

220, 229). As this Court has explained, “the abuse of discretion standard applies

regardless which ground—peremptory or discretionary—the new trial motion is

based upon.” Autin v. Voronkova, 2015-0407, p. 4 (La. App. 4 Cir. 10/21/15), 177

So.3d 1067, 1070 (citing GE Com. Fin. Bus. Prop. Corp. v. La. Hosp. Center.,

L.L.C., 2010-1838, p. 6 (La. App. 1 Cir. 6/10/11), 69 So.3d 649, 654; Jones v.

LSU/EA Conway Med. Ctr., 45,410, p. 6 (La. App. 2 Cir. 8/11/10), 46 So.3d 205,

210). This standard of review is “highly deferential,” but a trial court abuses its

discretion “if its ruling is based on an erroneous view of the law.” Id. (quoting

LCR-M Limited P’ship v. Jim Hotard Props., L.L.C., 2013-0483, p. 9 (La. App. 4

Cir. 10/9/13), 126 So.3d 668, 675).

22

The party that files a motion for a new trial carries the burden to show that

he or she is entitled to a new trial. See Jackson v. Wise, 2017-1062, p. 18 (La. App.

1 Cir. 4/13/18), 249 So.3d 845, 856; see also Porche v. Winn-Dixie La., Inc., 1993-

2075, p. 5 (La. App. 1 Cir. 10/7/94), 644 So.2d 699, 702. Louisiana jurisprudence

establishes a general rule that “the trial court may summarily deny a motion for

new trial if the motion simply reiterates issues thoroughly considered at trial.”

Everett v. Air Prod. & Chemicals, Inc., 2022-0539, 0540, 0541, p. 16 (La. App. 4

Cir. 5/2/23) ___ So.3d ___, ___, 2023 WL 3193154, at *8 (quoting Edgefield v.

Audubon Nature Inst., Inc., 2017-1050, p. 5 (La. App. 4 Cir. 9/12/18), 318 So.3d

65, 69). “[A] motion for new trial based on the contention that a judgment is

contrary to the law and evidence should be denied if the trial court’s ruling is

supportable by any fair interpretation of evidence, and a trial court judgment

denying a motion for new trial should not be reversed unless the appellate court

finds that the trial court abused its great discretion.” 1137 N. Robertson, LLC v.

Jackson, 2019-0553, pp. 7-8 (La. App. 4 Cir. 11/20/19), ___ So.3d ___, ___, 2019

WL 6200294, at *4.

As mentioned previously, Ms. Fields did not advance any new arguments in

her Motion for New Trial and simply reiterated the same issues that the trial court

had already considered in conjunction with Ms. Lepree’s Motion for Summary

Judgment. Thus, the trial court was within its discretion to summarily deny Ms.

Fields’ Motion for New Trial. See Everett, 2022-0539, p. 16, ___ So.3d at ___

2023 WL 3193154, at *8. Moreover, because Ms. Fields’ Motion for New Trial

was based on the contention that the trial court erred in granting Ms. Lepree’s

Motion for Summary Judgment and we have already determined that the trial court

did not err in granting the Motion for Summary Judgment, we conclude that the

23

trial court did not abuse its wide discretion in denying Ms. Fields’ Motion for New

Trial. Accordingly, we affirm the trial court’s October 3, 2022 judgment, which

denied Ms. Fields’ Motion for New Trial.

DECREE

For the foregoing reasons, we affirm the trial court’s August 11, 2022

judgment, which granted Ms. Lepree’s Motion for Summary Judgment, as well as

the trial court’s October 3, 2022 judgment, which denied Ms. Fields’ Motion for

New Trial.

AFFIRMED

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