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

LZM PROPERTIES, LLC * NO. 2023-CA-0707

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

CONSOLIDATED WITH: CONSOLIDATED WITH:

LZM PROPERTIES, LLC NO. 2023-CA-0708

VERSUS

PRIVATE CONNECTION PROPERTY, INC.
AND JOHN DOE

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-06415 C/W 2019-13274, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge
Dale N. Atkins)

Kyle Salvador Sclafani
4130 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE, LZM Properties, LLC

Carolyn W. Gill-Jefferson
1100 Poydras Street, Suite 2900
New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLANT, Private Connection
Property, Inc.

REVERSED AND REMANDED
APRIL 25, 2024

DNA

TFL

RLB

This is a nullity action. Appellant, Private Connection Property, Inc.

(“PCP”), seeks review of the trial court’s May 1, 2023 judgment, which granted

the Motion for Summary Judgment filed by LZM Properties, LLC (“LZM”), and

annulled the trial court’s prior, September 25, 2019 judgment rendered in favor of

PCP. For the following reasons, we reverse the trial court’s May 1, 2023 judgment,

and we remand this matter for further proceedings consistent with this Opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The underlying dispute in this matter concerns a petition to quiet tax title

filed by LZM against PCP. A previous suit between LZM and PCP came before

this Court on appeal, and the Court provided the following summary of the

relevant factual and procedural history. In June 2006, PCP, a non-profit

corporation, acquired a piece of immovable property allegedly located at 4307-09

Calliope Street, New Orleans, Louisiana 70125 via cash sale from the Schorling

family. LZM Props., LLC v. Priv. Connection Prop., Inc., 2020-0455, pp. 1-2 (La.

App. 4 Cir. 4/22/21), 318 So.3d 976, 977. Thereafter, beginning in 2007, PCP

sought tax exemptions on the property. Id. at p. 3, 318 So.3d at 978.

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On April 12, 2016, at a public auction, in an attempt to acquire a one-

hundred percent interest in the property located at 4438 Calliope Street in New

Orleans, Louisiana 70125, LZM paid the unpaid ad valorem taxes, penalties, and

costs for the years 2013, 2014, and 2015 totaling $18,505.28 (as well as the ad

valorem taxes for 2016 and 2017). Id. at p. 4, 318 So.3d at 978. According to PCP,

on approximately August 8, 2016, PCP learned that the City of New Orleans

erroneously changed the address on its tax bill for its property located at 4307-09

Calliope Street to 4438 Calliope Street. Id. at p. 4, 318 So.3d at 979. William W.

Alden (“Dr. Alden”), the director and primary shareholder of PCP, wrote a letter

dated August 8, 2016, to Erroll G. Williams, Assessor for the Parish of Orleans

(“Assessor Williams”), seeking to correct the property address (i.e., change it from

4438 Calliope Street to 4307-09 Calliope Street). Id. PCP alleged that, at this time,

it was unaware that LZM had purchased 4438 Calliope Street via tax sale. Id.

Then, on June 19, 2019, LZM filed a “Petition to Confirm and Quiet Title to

Real Estate” (“Petition to Confirm Title”) against PCP and sought to have the tax

sale of 4438 Calliope Street confirmed at the expiration of the three-year

redemptive period provided by La. R.S. 47:2228. Id. at pp. 4-6, 318 So.3d at 979-

80. LZM attached its tax sale certificate to the Petition to Confirm Title, and the

tax sale certificate identified the property at issue as 4438 Calliope Street. Id. at pp.

4-5, 318 So.3d at 979-80. In response, PCP filed a peremptory Exception of No

Right of Action and alleged that the tax sale was an absolute nullity. Id. at p. 6, 318

So.3d at 980. On September 5, 2019, the trial court conducted a hearing on PCP’s

Exception of No Right of Action, at which PCP argued, in pertinent part, that it

owned immovable property at 4307-09 Calliope Street, not 4438 Calliope Street.

Id. at p. 6, 318 So.3d at 980. Countering, LZM argued the thumbnail legal

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description in its tax sale certificate reflected the same legal description in PCP’s

act of cash sale with the Schorling family. Id. At the conclusion of the hearing, the

trial court granted PCP’s Exception of No Right of Action and dismissed LZM’s

Petition to Confirm Title. Id. at pp. 6-7, 318 So.3d at 980. On September 25, 2019,

the trial court issued its written judgment. Id.

LZM’s Petition to Annul Judgment

LZM’s present appeal is based on its December 26, 2019 Petition to Annul

Judgment (“Petition to Annul”) and its subsequent November 2, 2022 Motion for

Summary Judgment. In its Petition to Annul, LZM again listed PCP as the

defendant and contended that “[a]t the time of the hearing on its [E]xception [of

No Right of Action], [PCP] had actual knowledge the Property identified as 4438

Calliope St[reet] was the same immovable property identified as 4307 Calliope

St[reet].” Further, LZM argued that, in response to a public records request, it had

received documents that demonstrated PCP’s “repeated written representations of

its’ [sic] ownership of [4438 Calliope Street] to the Assessor, the Board of Review,

and the Louisiana Tax Commission,” which “all include the same thumbnail

description included on [LZM’s] tax sale deed.” Accordingly, LZM asserted that

these written representations directly contradicted PCP’s representations to the trial

court that it did not own the property described in LZM’s tax sale deed. That is,

LZM argued that PCP knew that the property identified as 4438 Calliope Street

was the same property as 4307-09 Calliope Street. LZM contended that PCP’s

contentions to the trial court were “untrue and an ‘ill practice,’” such that the trial

court should annul its September 25, 2019 judgment, which sustained PCP’s

Exception of No Right of Action.

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LZM’s Motion for Summary Judgment

Thereafter, on November 2, 2022, LZM filed its Motion for Summary

Judgment. In its Motion, LZM moved the trial court to annul its September 25,

2019 judgment. In its Memorandum in Support, LZM contended that “[a] litany of

fraud and ill practices have been committed by the Defendant, [PCP,] in this

litigation with the intent to mislead [the trial court] and deprive [LZM] of its

property rights.” In particular, LZM contended that PCP misrepresented three

things to the trial court: 1) that it did not own the property bearing the municipal

address 4438 Calliope Street, which was the subject of LZM’s tax sale certificate;

2) that the City of New Orleans made an error and inadvertently changed the

municipal address of the property without its knowledge; and 3) that the property

purchased by LZM at the tax sale was “across the street and around the corner”

from the property owned by PCP, i.e., not the same property. Further, LZM alleged

that PCP “also withheld information from [the trial court] that the reason LZM’s

Tax Sale Certificate showed ‘4438’ instead of ‘4307’ Calliope St[reet] was

because [PCP] requested the City change the address after the Property had

been conveyed to LZM in the subject tax sale.” LZM asserted that it was because

of PCP’s “fraudulent misrepresentations and ill practices” that the trial court

sustained PCP’s exception of no right of action and dismissed LZM’s Petition to

Quiet Title in the September 25, 2019 judgment. In this regard, LZM pointed to the

statements by PCP’s former counsel at the trial court hearing that PCP did not own

and had never owned the property listed in LZM’s tax sale, 4438 Calliope Street.

LZM also noted that after such a statement by PCP’s former counsel, the trial court

stated, “I can see the tax number; I can see the description; but the address is

not present. And, therefore, . . . [I am] going to grant the [Exception of] No

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Right of Action.” Additionally, as LZM noted, the trial court stated, “If [I am]

going by the address then I have to grant” the exception.

In support of its Motion for Summary Judgment, LZM attached an October

2022 affidavit from Assessor Williams. Assessor Williams attested that PCP’s

property was identified and always known by the municipal address of 4438

Calliope Street until June 8, 2017, because PCP had requested to change the

municipal address from 4438 Calliope Street to 4307 Calliope Street. He stated that

no other property has ever been identified or known as 4438 Calliope Street.

Assessor Williams also attested that in 2013, 2014, and 2015 (the years pertinent to

LZM’s Petition to Quiet Title), the property was known by the municipal address

of 4438 Calliope Street. With Assessor Williams’ affidavit were the 2013, 2014,

2015, and 2016 City of New Orleans tax bills that were addressed to PCP at 4438

Calliope Street. Additionally, in his affidavit, Assessor Williams stated that the

property now known as 4307 Calliope Street describes and is the same parcel of

immovable property formerly known as 4438 Calliope Street. Finally, Assessor

Williams stated that PCP had never received tax exempt status relative to the ad

valorem taxes assessed to the property.

LZM also attached a “Municipal Address Change Application”

(“Application”) dated November 4, 2015, in support of its Motion for Summary

Judgment. The Application listed the owner of the property as PCP. On the

Application, “Change Municipal Address” was listed as the “Type of Request.”

The “Reason for Request” was “erroneous address.” The Application provided the

current municipal address of the property as 4438 Calliope Street. Additionally,

LZM attached a “Change of Address Permit” (“Permit”) dated March 3, 2016. The

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Permit listed the change of address to 4307 Calliope Street and provided the former

address as 4438 Calliope Street. The Permit also listed the applicant as PCP.

Further, in support of its contention that PCP knew that 4438 Calliope Street

and 4307 Calliope Street were the same when the trial court conducted the hearing

on its Exception of No Right of Action, LZM attached an “Appeal to Louisiana

Tax Commission” (“Appeal Form”) dated November 4, 2015, regarding the

assessment on PCP’s property. The handwritten Appeal Form listed the taxpayer as

PCP and the address as 4438 Calliope Street.

PCP’s Opposition to LZM’s Motion for Summary Judgment

On November 30, 2022, PCP filed an Opposition to LZM’s Motion for

Summary Judgment. Therein, PCP contended that “the fact that a pleading based

upon ‘fraud and ill practices’ is inherently fact based” demonstrates “questions of

material fact and law that should defeat LZM’s Motion for Summary Judgment.”

Further, PCP sought to counter LZM’s arguments that the documents attached to

its Motion for Summary Judgment proved that PCP knew that 4438 Calliope Street

and 4307-09 Calliope Street were the same property. PCP argued that it used the

address “4438 Calliope Street” in its Appeal Form because that was the address on

documents it had received from the Board of Review, such that PCP believed it

needed to use that address in its appeal. Regarding its efforts to change the address

of its property from 4438 Calliope Street to 4307 Calliope Street, PCP contended

that “[t]here was no claim that PCP owned 4438 Calliope [Street] - just a mistaken

address used by the City (unbeknownst to PCP) from 2008 into [sic] 2016.” To this

end, PCP explained that “from the time of PCP’s acquisition of the property until

2016, the City sent EVERY tax bill and notification to 4438 Calliope [Street],” yet

“[t]he vast majority of this correspondence was returned to the City by the [United

6

States Postal Service] as undeliverable or no such address.” Discussing the

knowledge of PCP’s former counsel about the address discrepancy and attempts to

rectify it, PCP argued that “LZM’s documents prove that [PCP’s former counsel]

had no knowledge of [PCP]’s 2015 application to correct the address, or at the very

least there is a genuine issue of material fact . . . as to whether actions of [PCP]

years prior to [the] representation were known by [PCP’s former counsel]” at the

time of the hearing on PCP’s Exception of No Right of Action. PCP contended that

its own actions demonstrated that it did not believe it owned 4438 Calliope Street

because “[i]n every action taken by PCP relative to the property, it used 4307-09

Calliope [Street], which was the municipal address and the address in its deed.” As

PCP further noted, in its acquisition of the property from the Schorling family,

none of the documents used the address 4438 Calliope Street. Rather, the only

address therein was 4309 Calliope Street as listed in a survey of the purchased

property.

PCP further argued in its Opposition that the definition of fraud or ill

practices that warrants nullification of a judgment is “any improper practice or

procedure which operates, even innocently, to deprive a litigant of some legal

right.” PCP contended that LZM’s argument in support of nullity “ignore[d] that

all of the ‘facts’ on which LZM relies are public record and could have been

obtained by” LZM before the trial court rendered judgment against LZM. Listing

the Appeal Form as an example, PCP argued, “[h]ad LZM obtained the public

records before the hearing (that it only sought to obtain after the hearing), then it

would have been able to assert whatever defense those documents allegedly

provide. Its failure to assert this new defense is attributable solely to the fact that

LZM chose not to gather the evidence on which it now relies.” PCP argued,

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moreover, that the documents which LZM relied on in its Motion for Summary

judgment “fail[ed] to establish any fraud or ill practice on the part of PCP that

deprived LZM of a legal right, even if somehow concealed by PCP.” PCP “alleged

it does not own 4438 Calliope [Street] - it does not, as evidenced by its deed;” and

PCP “alleged the 4438 [Calliope Street] address is a mistake by the City - it is, as

evidenced by the multitude of returned mail, the corrected address, and PCP’s

consistent use of the 4307 [Calliope Street] address.”

PCP contended that “[n]othing establishes any knowledge of the disparity

[between the addresses] by PCP except the unilateral actions taken by PCP to

correct the mistake when discovered in 2015.” Similarly, PCP argued that

“[n]othing in the actions of PCP to correct the municipal address [years prior]

give[s] rise to any claim that PCP misled the Court or concealed information.”

Finally, PCP asserted that “even if LZM’s defamatory accusations are true, there is

no information in any of the documents that was not available to LZM at any time,

as it is all public record. LZM just [did not] do its work in preparing the case.”

In support of its Opposition, PCP attached the November 30, 2022 affidavit

of Dr. Alden who identified himself as the director of PCP. Dr. Alden stated that

PCP purchased a piece of immovable property located at 4307-09 Calliope Street

from the Schorling family on July 23, 2006. Dr. Alden also referred to previous

litigation between PCP and the Schorling family that followed the 2006 sale and

explained that it was “replete with references to PCP’s acquisition of 4307-09

Calliope, which is what PCP purchased from the Schorlings.” After the purchase,

according to Dr. Alden, he never received any tax notices, delinquent tax notices,

notices of tax sale, or any other tax documents or correspondence from the

Assessor and/or the City of New Orleans. However, Dr. Alden explained that he

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did not find it abnormal because he had applied for tax exempt status for the

property in 2007. According to Dr. Alden, although he never received a response

to the application for tax exempt status, that “was the standard practice of approved

applications” at the time.

Dr. Alden attested that after PCP’s purchase of the property from the

Schorlings, the only address of which he was aware and used was 4307-09

Calliope Street. For example, Dr. Alden provided that when he filed an application

for tax exempt status with the Orleans Parish Assessor’s Office he listed the

address as 4307 Calliope Street. As argued by PCP in the Opposition, Dr. Alden

explained that it was not until 2015 that he learned of the City’s use of 4438

Calliope Street as the address for PCP’s property when he began to prepare PCP’s

Appeal Form and saw 4438 Calliope Street as the address on the Board of

Review’s documents. Dr. Alden stated that was the first time he learned of the

address discrepancy and that he “took immediate steps to cure the error.” Dr.

Alden attested that when he ultimately received “formal approval of the address

correction,” he “assumed the correction had been” resolved. Dr. Alden explained

that he eventually learned that all tax notices from 2008 to 2016 had been

erroneously sent to PCP at 4438 Calliope Street: Dr. Alden stated that PCP never

received these documents and that seventeen of the documents were returned to the

Orleans Parish Assessor “as unable to deliver or no such address” according to the

City’s own documents.

In a supplemental opposition to LZM’s Motion for Summary Judgment filed

on March 31, 2023, PCP attached the March 28, 2023 affidavit of David Edward

Cook (“Mr. Cook”), who stated that he attended Dr. Alden’s September 26, 2022

deposition. At the deposition, according to Mr. Cook, he witnessed counsel for

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LZM show to Dr. Alden a Notice of Judgment issued by the Administrative

Bureau for Public Health, Housing, and Environmental Violations, which

erroneously identified PCP as the owner of 4438 Calliope Street. Mr. Cook

explained that subsequently, on November 18, 2022, he submitted a City of New

Orleans Public Records Request and received responsive documents. PCP

contended that these documents Mr. Cook received pertain to an administrative

hearing involving the property described therein by the City as 4309 Calliope

Street and 4438 Calliope Street. According to PCP, the photographs received as

part of the public records request demonstrate that those are two separate and

distinct properties. LZM objected to these documents, and the trial court sustained

the objection.

Hearing and Judgment on LZM’s Motion for Summary Judgment

The trial court held a hearing on LZM’s Motion for Summary Judgment on

April 20, 2023. In orally granting LZM’s Motion for Summary Judgment, the trial

court stated:

[THE COURT]: What is before me is that I was never told, never told
that your client or his person went to the city and asked for the
municipal address to be changed. I was never told that. I based my
decision on what was presented to me, and what was presented to me I
think was something that had 4307 [Calliope Street] on it but the
description from . . . what I understand is the same description as 4438
[Calliope Street]. So I based my decision . . . because the evidence
that was brought to me said he owned 4307 [Calliope Street] and 4438
[Calliope Street] was no where [sic].

I have a problem that they knew that. They came into court.
They told me that; misrepresented -- that is a nice word. But it was a
lie. They knew it. And, therefore, I am going to grant [LZM’s] . . .
motion for summary judgment. . . .

....

I do not think that what I did was proper because of the information
that I was given. I do not have anything else to say on that.

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....

I really do not want to say somebody is fraud.

[COUNSEL FOR PCP]:
It cannot be fraud - -

THE COURT:
I do not want to talk about [sic]. It is annulled.

On May 1, 2023, the trial court signed a judgment in accordance with its oral

ruling. The judgment stated, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED, that
LZM’s Motion for Summary Judgment to annul the Final Judgment of
September 25, 2019 (the “Judgment”) rendered by this Court
sustaining the Exception of No Right of Action filed by [PCP] which
dismissed LZM’s Petition to Confirm and Quiet Title, be and is
hereby GRANTED and that Judgment is annulled and set aside.

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED, that with regard to the granting of LZM’s motion, LZM
be and is hereby awarded its reasonable attorney[] fees incurred in this
nullity action. The amount of reasonable attorney[] fees and costs
shall be determined by a contradictory hearing on a later date upon the
motion of LZM.

On May 10, 2023, PCP filed a Motion for New Trial regarding the May 1, 2023

judgment. In support of its Motion for New Trial, PCP attached Mr. Cook’s

affidavit and sought a new trial on the basis of the administrative hearing evidence

Mr. Cook received in response to his public records request. The trial court denied

PCP’s Motion for New Trial, and PCP timely filed its appeal with this Court.

ASSIGNMENTS OF ERROR

In its brief to this Court, PCP asserts three assignments of error. Specifically,

it contends:

1. The [trial] [c]ourt erred by granting the Motion for Summary
Judgment as there are genuine issues of material fact regarding the
allegations of fraud and ill practice.

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2. An allegation of fraud is not susceptible to a determination
by a Motion for Summary Judgment, as credibility of witnesses is a
crucial element.

3. The [t]rial [c]ourt erred in not granting a New Trial based on
the evidence of the prior Administrative Hearing.

Before addressing the merits of PCP’s assignments of error, we address a

preliminary matter.

DISCUSSION

Preliminary Matter/Jurisdiction

Attorney Fees Awarded but Not Set in Judgment

Before addressing the merits of an appeal, appellate courts have a duty to

determine sua sponte whether a valid, final judgment has properly invoked their

appellate jurisdiction. Safford v. New Orleans Fire Dep’t, 2023-0495, p. 18 (La.

App. 4 Cir. 2/1/24), ___ So.3d ___, ___, 2024 WL 377791, at *9 (citing Bayer v.

Starr Int’l Corp., 2017-0257, p. 3 (La. App. 4 Cir. 8/15/17), 226 So.3d 514, 517-

18). The May 1, 2023 judgment awarded attorney fees to LZM in conjunction with

the grant of LZM’s Motion for Summary Judgment, but the judgment did not

specify the amount and, instead, stated that it would be determined at a later date.

Louisiana Code of Civil Procedure Article 2088 is titled “Divesting of jurisdiction

of trial court.” It states, in relevant part:

A. The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate court
attaches, on the granting of the order of appeal and the timely filing of
the appeal bond, in the case of a suspensive appeal or on the granting
of the order of appeal, in the case of a devolutive appeal. Thereafter,
the trial court has jurisdiction in the case only over those matters not
reviewable under the appeal, including the right to do any of the
following:

....

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(10) Set and tax costs, expert witness fees, and attorney fees.

La. C.C.P. art. 2088(A)(10).

In 2021, the Louisiana Legislature amended La. C.C.P. art. 2088(A)(10) to

“clarif[y] that the trial court retains jurisdiction for purposes of setting attorney

fees after an appeal has been taken from the initial judgment.” La. C.C.P. art. 2088,

Comments 2021, comment (a). This is because “[t]rial courts award reasonable

attorney fees in many judgments, but often these judgments are appealed before the

attorney fees are set.” Id. Accordingly, “[w]ith this amendment, it is no longer

necessary for an appellate court to dismiss an appeal in order to allow the trial

court to set the amount of the attorney fees, because the trial court has jurisdiction

to set attorney fees while the appeal is pending.” Id. See also Raymond v. Lasserre,

2022-0793, pp. 13-14 (La. App. 1 Cir. 3/6/23), 368 So.3d 82, 93 (holding that the

court did not have jurisdiction to grant plaintiff’s request to set attorney fees

incurred at the trial court and that “this request is more properly directed to the trial

court”); Benoist v. Jackson Nat’l Life Ins. Co., 2022-0879, p. 4 (La. App. 1 Cir.

3/1/23), 362 So.3d 957, 961 (holding that “the judgment awarding attorney fees

and costs in an indefinite amount did not divest the trial court of jurisdiction to

determine, after a hearing and consideration of evidence, the actual amount to be

awarded as attorney fees and costs” per La. C.C.P. art. 2088(A)(10)); Locke v.

MADCON Corp., 2022-0630, pp. 5-6 (La. App. 1 Cir. 12/22/22), 360 So.3d 519,

523 (finding the subject “judgment to be precise, definite, and certain for purposes

of constituting a valid, final judgment on appeal” even though the trial court left to

be determined the costs of the proceeding because the trial court retained

jurisdiction pursuant to La. C.C.P. art. 2088(A)(10) (citing Advanced Leveling &

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Concrete Solutions v. Lathan Co., 2017-3250, p. 4 (La. App. 1 Cir. 12/20/18), 268

So. 3d 1044, 1046)).

In Raymond, the Louisiana First Circuit Court of Appeal specifically noted

that “the present version of [La.] C.C.P. art. 2088(A)(10) . . . requires the appellate

court to treat a judgment as final even though it awards attorney fees but fails to set

the amount of attorney fees.” 2022-0793, p. 14, 368 So.3d at 93 n.6. Accordingly,

the fact that the trial court’s May 1, 2023 judgment did not set the amount of

attorney fees to be awarded to LZM does not affect this Court’s jurisdiction. As

amended, La. C.C.P. art. 2088(A)(10) requires us to treat this as a final judgment

even though it awards attorney fees but fails to set the amount of those fees.

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. A trial court

grants a motion for summary judgment if “[a]fter an opportunity for adequate

discovery,” the mover’s “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).

On a motion for summary judgment, “[t]he burden of proof rests with the

mover.” 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.” Lepree v. Dorsey,

2022-0853, p. 11 (La. App. 4 Cir. 8/11/23), 370 So.3d 1191, 1199 (quoting Lirette

v. Adams, 2022-0552, 0553, p. 19 (La. App. 4 Cir. 1/31/23), ___ So.3d ___, ___,

2023 WL 1252737, at *10). “A genuine issue is” defined as “a triable issue.” Id.

(quoting Lirette, 2022-0552, 0553, p. 21, ___ So.3d at ___, 2023 WL 1252737, at

14

*11). More particularly, “an issue is genuine if reasonable persons could disagree”

about it. Id. “[I]f on the state of the evidence,” however, “reasonable persons could

reach only one conclusion, there is no need for a trial on that issue.” Id. A material

fact is defined as one whose “existence or non-existence may be essential to the

plaintiff’s cause of action under the applicable theory of recovery.” Id. If a fact

“potentially insure[s] or preclude[s] recovery, affect[s] a litigant’s ultimate success,

or determine[s] the outcome of the legal dispute,” then it is a material one. Id. at

pp. 12-13, 370 So.3d at 1199. A determination of “[w]hether 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. at p. 13,

370 So.3d at 1199-1200. “[I]f the movant satisfies the initial burden,” of proving

that there is no genuine issue of material fact, then “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. (alteration in

original) (quoting Lirette, 2022-0552, 0553, p. 19, ___ So.3d at ___, 2023 WL

1252737, at *10). If, however, “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.” La. C.C.P. art. 966(D)(1). Once “the motion has

been made and properly supported,” then “the burden shift[s] from the mover to

the adverse party.” Lepree, 2022-0853, p. 12, 370 So.3d at 1199 (quoting Lirette,

2022-0552, 0553, p. 20, ___ So.3d at ___, 2023 WL 1252737, at *10).

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After the burden shifts, “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). In

so doing, “[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 .

. . , must set forth specific facts showing that there is a genuine issue for trial.” La.

C.C.P. art. 967(B). When “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.” Lepree, 2022-0853, p. 13, 370 So.3d at 1200 (quoting Lirette, 2022-

0552, 0553, p. 21, ___ So.3d at ___, 2023 WL 1252737, at *11). If the party

opposing the motion fails to establish the existence of a genuine issue for trial

though, “summary judgment, if appropriate, shall be rendered against him [or

her].” La. C.C.P. art. 967(B). When the party opposing the motion for summary

judgment “‘fails to provide factual evidence sufficient to establish that he [or she]

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.” Lepree,

2022-0853, p. 12, 370 So.3d at 1199 (second alteration in original) (quoting

Lirette, 2022-0552, 0553, p. 20, ___ So.3d at ___, 2023 WL 1252737, at *10).

If a party appeals the trial court’s ruling on a motion for summary judgment,

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

court’s ruling” while utilizing “the same criteria that govern the trial court’s

determination of whether summary judgment is appropriate.” Id. at p. 11, 370

So.3d at 1198-99 (quoting Lirette, 2022-0552, 0553, p. 19, ___ So.3d at ___, 2023

WL 1252737, at *10). That is, “appellate courts ask the same questions the trial

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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. at p. 11, 370 So.3d at 1199.

LZM’s Motion for Summary Judgment sought to nullify the trial court’s

previous judgment on the basis of fraud or ill practices. As stated above, the

applicable substantive law determines materiality on a motion for summary

judgment. Accordingly, we next discuss nullity principles, particularly in relation

to fraud or ill practices.

Nullity Principles

Louisiana Code of Civil Procedure Article 2001 provides that “[t]he nullity

of a final judgment may be demanded for vices of either form or substance, as

provided in [La. C.C.P. arts.] 2002 through 2006.” Regarding nullity actions for

vices of substance, La. C.C.P. art. 2004(A) states that “[a] final judgment obtained

by fraud or ill practices may be annulled.” Typically, the discovery of evidence

which could have been presented at the original trial will not serve as a reason to

nullify a judgment; and, even if new evidence is not discovered until after a final

judgment, despite due diligence, this is not a basis to nullify the judgment unless

fraud was involved. Schiff v. Pollard, 2015-0340, p. 4 (La. App. 4 Cir. 10/7/15),

177 So.3d 719, 722 (first citing Gladstone v. Am. Auto. Ass’n, 419 So.2d 1219,

1223 (La. 1982); and then citing Wright v. La. Power & Light, 2006-1181, p. 13

(La. 3/9/07), 951 So.2d 1058, 1068); Midland Funding, LLC v. Cady, 47,854, p. 5

(La. App. 2 Cir. 2/27/13), 110 So.3d 656, 659.

As this Court has previously explained, the party seeking to annul a

judgment based on fraud or ill practices bears the burden of proving “how [he or]

she was excused or prevented from asserting [his or] her claims or defenses.”

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Libertas Tax Fund I, LLC v. Taylor, 2021-0550, p. 7 (La. App. 4 Cir. 6/16/22), 342

So.3d 1083, 1089 (citing CA One/Pampy’s v. Brown, 2007-1377, p. 6 (La. App. 4

Cir. 4/2/08), 982 So.2d 909, 913). In particular, “[t]o prevail in an action to nullify

a judgment obtained by fraud or ill practices, a plaintiff must prove four material

facts.” Montana v. Jordan, 2013-1410, p. 12 (La. App. 4 Cir. 2/26/14), 135 So.3d

1212, 1219. First, the plaintiff must demonstrate that he or she seeks to nullify a

previously rendered final judgment. Id. The second fact a plaintiff must prove is

that he or she raised the nullity in a direct action, not collaterally. Id. (quoting

Mooring Fin. Corp. 401(K) Profit Sharing Plan v. Mitchell, 2008-1250, p. 9 (La.

App. 4 Cir. 6/10/09), 15 So.3d 311, 318). Third, the plaintiff must show that he or

she brought the cause of action within one year of discovering the fraud or ill

practices. Id. at pp. 12-13, 135 So.3d at 1219 (citing La. C.C.P. art. 2004(B)). The

fourth and final fact “requires a showing that the challenged judgment was

obtained by fraud or ill practices.” Id. at p. 13, 135 So.3d at 1219.

The first three of these facts are not in dispute in these proceedings. First,

LZM sought nullification of a previously rendered final judgment, the trial court’s

September 25, 2019 judgment. Per La. C.C.P. art. 1841, “[a] judgment that

determines the merits in whole or in part is a final judgment.” LZM attached a

copy of the trial court’s September 25, 2019 judgment to its Motion for Summary

Judgment. That judgment determined the merits of LZM’s Petition to Quiet Title

against PCP, so it was a final judgment according to La. C.C.P. art. 1841. See also

La. C.C.P. arts. 1911-1915. Second, LZM asserted this nullity cause of action in a

direct action, not collaterally. LZM filed its December 26, 2019 Petition to Annul

as a direct action in Orleans Parish Civil District Court, and this was distinct from

the prior suit between LZM and PCP. In fact, when LZM filed the Petition to

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Annul, the matter was originally assigned to a different division of the trial court

from the division handling LZM’s Petition to Quiet Title. Third, LZM filed its

December 26, 2019 Petition to Annul just over three months after the trial court

rendered the September 25, 2019 judgment in PCP’s favor. In its Petition to Annul,

PCP contended that it did not learn about the facts forming the grounds for the

allegations of fraud or ill practices until after the trial court ruled in PCP’s favor.

These material elements of a nullity action are undisputed in this matter, and, thus,

no genuine issue arose as to their proof during the summary procedure.

The fourth and final material element of a nullity action under La. C.C.P. art.

2004, however, is disputed in this matter. As stated previously, the plaintiff in a

nullity action must demonstrate that the challenged final judgment was obtained by

fraud or ill practices. Montana, 2013-1410, p. 13, 135 So.3d at 1219. In Belle Pass

Terminal, Inc. v. Jolin, Inc., the Louisiana Supreme Court explained that the phrase

“fraud or ill practices” as found in La. C.C.P. art. 2004 “is not limited to cases of

actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all

situations wherein a judgment is rendered through some improper practice or

procedure.” 2001-0149, p. 5 (La. 10/16/01), 800 So.2d 762, 766 (citing Kem

Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983)). The phrase “is a term

of art,” and “no actual fraud or intentional wrongdoing need be involved.”

Montana, 2013-1410, p. 13, 135 So.3d at 1219 (quoting Guise Sheet Metal Co.,

Inc. v. La Quinta Dev. Partner, L.P., 2002-2515, p. 2 (La. App. 4 Cir. 5/21/03),

848 So.2d 666, 667). That is, “[e]ven an innocent mistake that leads to an improper

judgment may be grounds for nullity.” Id. This is because the concept “is

sufficiently broad to encompass all situations wherein a judgment is rendered

through some improper practice or procedure.” Id. (quoting Kem Search, Inc., 434

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So.2d at 1070). Louisiana jurisprudence provides a two-pronged analysis for

determining whether a trial court rendered its judgment as a result of fraud or ill

practices: “1) whether the circumstances under which the judgment was rendered

showed the deprivation of legal rights of the litigant seeking relief; and 2) whether

enforcement of the judgment would be unconscionable or inequitable.” Id. at p.

14, 135 So.3d at 1220 (first citing Power Mktg. Direct, Inc. v. Foster, 2005-2023,

p. 12 (La. 9/6/06), 938 So.2d 662, 670; and then citing LCR-M Ltd. P’ship v. Jim

Hotard Props., L.L.C., 2013-0483, p. 10 (La. App. 4 Cir. 10/9/13), 126 So.3d 668,

675). With these principles in mind, we consider whether the trial court’s grant of

LZM’s Motion for Summary Judgment was proper under the facts and

circumstances of this case.

Assignments of Error Numbers One and Two

In its first assignment of error, PCP contends that the trial court “erred by

granting the Motion for Summary Judgment as there are genuine issues of material

fact regarding the allegations of fraud and ill practice.” Then, in its second

assignment of error, PCP asserts that “[a]n allegation of fraud is not susceptible to

a determination by a Motion for Summary Judgment, as credibility of witnesses is

a crucial element.” Because these assignments of error both relate to LZM’s

allegation of fraud or ill practices serving as the basis for its Motion for Summary

Judgment and the trial court’s grant of same, we will address these two

assignments of error together.

Whether Summary Judgment Was Appropriate on the Basis of Fraud or Ill
Practices under these Facts and Circumstances

In its brief, LZM contends that PCP’s actions sufficiently fall under the

definition of fraud or ill practices as outlined by the Louisiana Supreme Court in

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Bell Pass that La. C.C.P. art. 2004 “is sufficiently broad to encompass all

situations wherein a judgment is rendered through some improper practice or

procedure.” 2001-0149, p. 5, 800 So.2d at 766 (citing Kem Search, Inc., 434 So.2d

at 1070). However, LZM argued to the trial court that PCP’s actions were

intentional, misleading, fraudulent, and wrongdoing, not just an improper practice

or procedure or an innocent mistake. Moreover, the trial court also indicated at the

hearing on LZM’s Motion for Summary Judgment that it believed it had been

intentionally misled by PCP, stating that PCP “misrepresented” the situation and

that this was “a lie.” As this Court explained in Jones v. Government Employees

Insurance Co., “summary judgment ‘is inappropriate for judicial determination of

subjective facts, such as motive, intent, good faith, knowledge and malice; that

calls for credibility determinations and the weighing of testimony.’” 2016-1168, p.

13 (La. App. 4 Cir. 6/14/17), 220 So.3d 915, 925 (quoting Prime Ins. Co. v.

Imperial Fire & Cas. Ins. Co., 2014-0323, p. 10 (La. App. 4 Cir. 10/1/14), 151

So.3d 670, 677). Similarly, “summary judgment is rarely appropriate for the

disposition of issues requiring a determination of the reasonableness of acts and

conduct of parties under all the facts and circumstances of a case.” Id. at pp. 13-14,

220 So.3d at 925. See also Petkovich v. Franklin Homes, Inc., 2021-0448, p. 2 (La.

App. 4 Cir. 9/22/22), 349 So.3d 1042, 1046 (holding “[q]uestions surrounding

credibility, . . . intent, and motive are not suitable for summary judgment”).

Thus, if in ruling on a motion for summary judgment relative to a claim of

fraud or ill practices, the trial court weighed evidence and made credibility

determinations, the appellate court should reverse because such actions are not

allowed when considering a motion for summary judgment. Ames v. Ohle, 2017-

892, p. 1 (La. 9/29/17), 227 So.3d 260, 261 (Genovese, J., dissenting). Rather,

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“[w]eighing evidence and making credibility determinations are to be addressed at

a trial on the merits, not at the summary judgment stage of the proceedings.” Id.

This is because, as explained previously, 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. Lepree, 2022-0853, p. 13, 370 So.3d at 1200

(quoting Lirette, 2022-0552, 0553, p. 21, ___ So.3d at ___, 2023 WL 1252737, at

*11). This is not to say that summary judgment is always precluded on a fraud or

ill practices claim because “summary judgment may be granted on subjective

intent issues when no issue of material fact exists concerning the pertinent intent.”

Bourgeois v. Allstate Ins. Co., 2015-451, p. 6 (La. App. 5 Cir. 12/23/15), 182 So.3d

1177, 1180 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93–2512

(La.7/5/94), 639 So.2d 730, 751).

Considering the foregoing law and jurisprudence, there is a genuine issue of

material fact regarding PCP’s intent that precluded summary judgment. LZM

based its Motion for Summary Judgment on PCP allegedly committing fraud or ill

practices by intentionally deceiving the trial court. Specifically, LZM argued that

because PCP clandestinely changed the address of its property from 4438 Calliope

Street to 4307-09 Calliope Street after LZM’s tax sale purchase and failed to

inform the trial court of same, this constituted fraud or ill practices. PCP countered

that it truthfully answered that it owns and has always believed that it owns 4307-

09 Calliope Street, not 4438 Calliope Street, and that its actions demonstrated this,

i.e., PCP used that address in all actions relative to the property and sought to

change what it ascertained to be a clerical error by the City immediately upon

learning of the discrepancy. Additionally, PCP contended that it did not know

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about the tax sale at the time it sought to change the address. In ruling for LZM,

the trial court weighed evidence and made a credibility determination about PCP’s

belief in whether it owned 4438 Calliope Street and about whether PCP

intentionally deceived the court by stating that it did not own 4438 Calliope Street.

This was made clear when the trial court described PCP’s actions as a

misrepresentation and a lie. Such determinations are to be addressed at a trial on

the merits, not at the summary judgment stage of proceedings. A determination of

the intent behind PCP’s failure to inform the trial court that it changed its property

address hinges on questions of credibility and the weighing of evidence. Thus, in

this case, the allegation of misrepresentation by omission is a question of fact

which is inappropriate for summary judgment.

We hold that PCP’s first and second assignments of error have merit. The

trial court erred in granting LZM’s Motion for Summary Judgment because there is

a genuine issue of material fact regarding the allegation of fraud or ill practices.

Accordingly, we reverse the trial court’s May 1, 2023 judgment and remand this

matter for further proceedings consistent with this Opinion.

Assignment of Error Number Three

In its third and final assignment of error, PCP contends that the trial court

“erred in not granting a New Trial based on the evidence of the prior

administrative hearing” obtained by Mr. Cook. Having already concluded that the

trial court erred in the May 1, 2023 judgment by granting LZM’s Motion for

Summary Judgment, we need not consider whether the trial court erred in denying

PCP’s Motion for New Trial regarding that same judgment. Therefore, we

pretermit discussion of PCP’s third assignment of error.

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CONCLUSION

For the foregoing reasons, we reverse the trial court’s May 1, 2023

judgment, which granted LZM’s Motion for Summary Judgment and annulled the

trial court’s prior, September 25, 2019 judgment in favor of PCP. We remand this

matter for further proceedings consistent with this Opinion.

REVERSED AND REMANDED

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