Lzm Properties, LLC v. Private Connection Properties, Inc.

LZM PROPERTIES, LLC * NO. 2025-CA-0060

VERSUS * COURT OF APPEAL

PRIVATE CONNECTION * FOURTH CIRCUIT
PROPERTIES, INC.
* STATE OF LOUISIANA

*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-06415 C\W 2019-13274, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Monique G. Morial)

Kyle Salvador Sclafani
THE LAW OFFICE OF KYLE S. SCLAFANI
4130 Canal Street
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLEE

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

Robert G. Harvey, Sr.
LAW OFFICE OF ROBERT G. HARVEY, SR., APLC
600 North Carrollton Avenue
New Orleans, LA 70119

Reid S. Uzee
UZEE LAW FIRM
6218 Argonne Blvd.
New Orleans, LA 70124
COUNSEL FOR DEFENDANT/APPELLANT

PEREMPTORY EXCEPTION OF RES JUDICATA DENIED;
REVERSED AND REMANDED
OCTOBER 8, 2025

SCJ
JCL
MGM

Appellant, Private Connection Property, Inc. (“PCP”), appeals the trial

court’s October 1, 2024 judgment that granted LZM Properties, LLC’s (“LZM”)

motion for summary judgment that sought to annul and set aside the September 25,

2019 judgment in favor of PCP. For the reasons to follow, we deny PCP’s

exception of res judicata, and we reverse the October 1, 2024 judgment.

FACTUAL AND PROCEDURAL HISTORY

This Court has considered prior appeals involving the parties, the most

recent being LZM Properties, LLC v. Private Connection Prop., Inc., 2023-0707

(La. App. 4 Cir. 4/25/24), 390 So.3d 861 (“LZM II”). Accordingly, we adopt

pertinent facts and procedural history from LZM II in our review of the case sub

judice as follows:

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.

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

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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 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 II, 2023-0707, pp. 1-3, 390 So.3d at 865-65.

Prior to the written judgment, on September 24, 2019, LZM filed a first

amended and supplemental petition to confirm and quiet title to real estate and for

nullity. LZM Props., LLC, 2020-0455, p. 7, 318 So.3d at 980. In response, PCP

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

cumulation, and peremptory exception of res judicata. Id. at p. 7, 318 So.3d at 981.

Subsequent to the December 12, 2019 hearing on the exceptions, “the trial court

orally granted the exceptions of no right of action, improper cumulation and, res

judicata, in favor of PCP, and LZM’s amended petition to quiet title and for nullity

was dismissed with prejudice. The trial court issued its written judgment on

February 20, 2020.” Id. at p. 7, 318 So.3d at 981. Prior to the issuance of the

February 20, 2020 judgment, LZM filed a Petition to Annul Judgment on

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December 26, 2019, which sought to annul the September 25, 2019 judgment

based on ill practices. Thereafter, LZM appealed the February 20, 2020 judgment

and this Court dismissed the appeal as untimely and procedurally defective. See

LZM Props., LLC, 318 So.3d at 976.

In response to LZM’s Petition to Annul, on March 25, 2020, PCP filed

exceptions of no right of action and no cause of action. The trial court subsequently

denied PCP’s exceptions. Thereafter, on November 22, 2022, LZM moved for

summary judgment. The trial court held a hearing on the motion for summary

judgment on April 20, 2023 and orally granted LZM’s motion for summary

judgment. The trial court signed a judgment to that effect on May 1, 2023, to

which PCP appealed.

On April 25, 2024, this Court reversed the May 1, 2023 judgment and

remanded the matter for further proceedings, finding that the trial court erred in

granting LZM’s motion for summary judgment because there was a genuine issue

of material fact regarding the allegation of fraud or ill practices. See LZM II, 390

So.3d at 861.

On July 17, 2024, LZM filed its second motion for summary judgment. On

September 26, 2024, the trial court held a hearing on the second motion for

summary judgment. On October 1, 2024, the trial court signed a judgment granting

LZM’s second motion for summary judgment and annulled and set aside the

September 25, 2019 judgment. This timely appeal followed.

DISCUSSION

PCP assigns four errors; however, we narrow our discussion to three issues:

1) whether the trial court erred in denying PCP’s exception of res judicata; 2)

whether the trial court erred in excluding PCP’s U.S. Department of Housing and

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Urban Development settlement statement (“HUD-1settlement statement”); and 3)

whether the trial court erred in granting LZM’s second motion for summary

judgment.1 We begin by first addressing PCP’s exception of res judicata.

Exception of Res Judicata

PCP asserts that the trial court erred in denying its peremptory exception of

res judicata.2 On appeal, PCP once more filed an exception of res judicata.

“Article 927 B lists res judicata as one of the peremptory exceptions that may be

noticed by either the trial or the appellate court on its own motion.” Sam v. La.

State Racing Comm’n, 2023-0170, p. 4 (La. App. 4 Cir. 10/24/23), 376 So.3d 953,

956 (quoting In re Successions of Gonzales, 2013-0064, pp. 6-7 (La. App. 4 Cir.

8/7/13), 123 So. 3d 246, 250). An exception of res judicata can be filed for the first

time in an appellate court, however, proof of the ground of the exception must

appear in the record on appeal. La. C.C.P. art. 2163.

In reviewing a trial court’s judgment denying an exception of res judicata,

an appellate court must determine whether the trial court’s decision is legally

correct or incorrect. Alexander v. La. State Bd. of Priv. Investigator Examiners,

2023-0159, pp. 26-27 (La. App. 4 Cir. 10/25/24), 409 So.3d 37, writ denied, 2024-

01438 (La. 2/25/25), 401 So.3d 659. “The res judicata effect of a prior judgment is

a question of law, which is reviewed de novo.” Watson Mem’l Spiritual Temple of

1 PCP’s four assignments of error are: 1) the trial court erred in denying PCP’s exception of res

judicata.; 2) the trial court disregarded this Court’s remand instructions in LZM II and erred by
failing to conduct a trial on the merits regarding PCP’s “intent” and by granting LZM’s Second
motion for summary judgment; 3) the trial court erred in finding that PCP’s attempt to change
the municipal address of 4438 Calliope was an “innocent mistake” that deprived LZM of the
rights it acquired in its tax sale certificate and resulted in an alleged “unconscionable or
inequitable” dismissal of LZM’s petition to quiet title; and 4) the trial court erred in excluding
HUD-1 settlement statement.
2 On May 24, 2023, the trial court signed a judgment denying PCP’s exception of res judicata,

noting that “the nullity action filed by [PCP] constitutes a separate lawsuit from the original tax
sale suit.”

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Christ v. Korban, 2023-0293, p. 13 (La. App. 4 Cir. 12/13/23), 382 So.3d 1035,

1044 (citing St. Charles Surgical Hosp., LLC v. La. Health Serv. & Indem. Co.,

2018-0052, p. 3 (La. App. 4 Cir. 3/21/18), 317 So.3d 854, 856).

Generally, “the doctrine of [res judicata] precludes the re-litigation of claims

arising out of the same facts and circumstances between the same parties of a

previous suit in which there is a valid, final judgment. Adams v. Sutton, 2019-1105,

p. 14 (La. App. 4 Cir. 10/12/22), 351 So.3d 391, 401 (citing Schiff v. Pollard,

2016-0801, p. 8 (La. App. 4 Cir. 6/28/17), 222 So.3d 867, 874). The principles of

res judicata are set forth in La. R.S. 13:4231, as follows:

(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the transaction or
occurrence that is the subject matter of the litigation are extinguished
and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action
existing at the time of final judgment arising out of the transaction or
occurrence that is the subject matter of the litigation are extinguished
and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is
conclusive, in any subsequent action between them, with respect to
any issue actually litigated and determined if its determination was
essential to that judgment.

The Supreme Court explained in Burguieres v. Pollingue, 2002-1385, p. 8

(La. 2/25/03), 843 So.2d 1049, 1053 that under La. R.S. 13:4231, a second action

is precluded when the following five elements are satisfied:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are
the same; (4) the cause or causes of action asserted in the second suit
existed at the time of final judgment in the first litigation; and (5) the
cause or causes of action asserted in the second suit arose out of the
transaction or occurrence that was the subject matter of the first
litigation.

Here, PCP argues that LZM’s Petition to Annul should be dismissed as res

judicata based on the September 25, 2019 judgment dismissing LZM’s original

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Petition to Confirm Title because the same parties litigated the same issues and

facts in that case, and LZM failed to move for a new trial, writ or appeal.

It is undisputed that the September 25, 2019 judgment is a valid and final

judgment. A valid judgment is one rendered by a court with jurisdiction over both

the subject matter and the parties after proper notice was given. Burguieres, 2002-

1385, p. 8, 843 So.2d at 1053. A final judgment is one that disposes of the merits

in whole or in part. La. C.C.P. art. 1841. As it relates to the third element, PCP and

LZM were parties to the Petition to Confirm Title and the subsequent Petition to

Annul. Thus, the first three elements of res judicata are satisfied.

Next, the cause of action asserted in LZM’s Petition to Annul did not exist at

the time the September 25, 2019 judgment rendered. In the context of the facts in

this matter, it was necessary that a judgment be rendered before any action for

nullity could be filed. See La. C.C.P. art. 2004.

Lastly, the cause of action asserted in LZM’s Petition to Annul arises from

the same transaction or occurrence that was the subject matter of the first suit. The

record reflects that LZM’s allegations that PCP had actual knowledge of the

identification of the property that was on LZM’s tax deed all arise out of the action

to confirm and quiet title of real estate.

In sum, the crux of LZM’s Petition to Annul is that the September 25, 2019

judgment was obtained by ill practices, which was not a subject matter litigated in

the initial suit. Thus, we find no error in the trial court’s denial of PCP’s exception

of res judicata, and we further deny the exception filed in this appeal.

Evidentiary Ruling

Next, PCP argues that the trial court erred in sustaining LZM’s objection to

the HUD-1 settlement statement attached to its memorandum in opposition to the

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motion for summary judgment. LZM argued that the exhibit was properly excluded

because it was an unauthenticated document.

A trial court’s evidentiary ruling on evidence in a motion for summary

judgment is subject to the abuse of discretion standard of review. Numa C. Hero &

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

12/21/22), 356 So.3d 480, 485.

The Louisiana Code of Civil Procedure article 1636 allows for a proffer of

evidence when the trial court has ruled that evidence inadmissible. This Court in

Perry v. F.H. Myers Constr. Corp., 2023-0064, p. 10 (La. App. 4 Cir. 11/2/23),

377 So.3d 331, 338 (quoting Mazzini v. Strathman, 2013-0555, p. 5 (La. App. 4

Cir. 4/16/14), 140 So.3d 253, 256) emphasized:

evidence not properly and officially offered and introduced cannot be
considered, even if physically placed in the record. Documents
attached to memoranda do not constitute evidence and cannot be
considered as such on appeal.” Denoux v. Vessel Management
Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84.

Moreover, “[i]t is incumbent upon the party who contends his evidence was

improperly excluded to make a proffer, and if he fails to do so, he cannot contend

such exclusion is error.” Id. (internal citation omitted).

The October 1, 2024 judgment provides that the trial court sustained LZM’s

objections to particular exhibits offered by PCP, “subject to [PCP’s] right to

proffer said exhibits on appeal.” An appellate court must render its judgment upon

the record on appeal and may not receive new evidence. Denoux, 983 So.2d at 88;

La. C.C.P. art. 2164.

The transcript of the September 26, 2024 motion for summary judgment

hearing reflects that PCP failed to make a proffer of the HUD-1 settlement

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statement. Accordingly, PCP is precluded from raising the issue of admissibility

on appeal as it is beyond this Court’s review.

Motion for Summary Judgment

Lastly, PCP argues that the trial court erred in granting summary judgment

in favor of LZM. PCP contends that LZM attempts to circumvent this Court’s

ruling on intent in LZM II by arguing that PCP made an innocent mistake in

changing the property address.

“Appellate courts review summary judgments under the de novo standard of

review, using the same standard applied by the trial court in deciding the motion

for summary judgment; as a result, we are not required to analyze the facts and

evidence with deference to the judgment of the trial court or its reasons for

judgment.” Amedee v. Aimbridge Hosp. LLC, 2020-0590, p. 3 (La. App. 4 Cir.

12/16/22), 354 So.3d 250, 252 (quoting Smith v. State, 2018-0197, p. 3 (La. App. 4

Cir. 1/9/19), 262 So.3d 977, 980). Therefore, “[a]fter 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.” Id.

(quoting La. C.C.P. art. 966(A)(3)).

The mover bears the burden to prove that the mover is entitled to judgment

as a matter of law, in accordance with La. C.C.P. art. 966(D)(1), as follows:

[I]f 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.

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Accordingly, “[t]he adverse party to the motion for summary judgment then

bears the burden ‘to 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.’” Boucree v. New Orleans E. Hosp. Found., 2023-0415, p. 5 (La.

App. 4 Cir. 12/18/23), 380 So.3d 653, 658 (quoting La. C.C.P. art. 966 (D)(1)).

In its second motion for summary judgment, LZM argued that the intent of

PCP was irrelevant if it is able to prove that 1) the circumstances under which the

judgment was rendered showed the deprivation of legal rights of the litigant

seeking relief; and 2) the enforcement of the judgment would be unconscionable or

inequitable. LZM further argued that it only has to prove an improper practice or

procedure, or an “innocent mistake” that led to a judgment depriving it of a legal

right in an inequitable or unconscionable manner. In support of its second motion

for summary judgment, LZM attached this Court’s decision in LZM II; the

September 25, 2019 judgment; and the trial court May 1, 2023 judgment granting

its first motion for summary judgment.

In opposition, PCP argued that when the original Petition to Confirm Title

was filed PCP maintained that it did not own 4438 Calliope. PCP further argued

that the public record was available for LZM, which included the cash sale of

property from the Schorlings to PCP on June 23, 2006. In support of its opposition,

PCP attached the cash sale; the affidavit of Dr. Alden; and Dr. Alden’s letter dated

August 8, 2016, to Assessor Williams.

Dr. Alden attested that on July 23, 2006, PCP purchased immovable

property located at 4307-09 Calliope Street from the Schorling family. Dr. Alden

provided that after the purchase he never received any tax notices from the

assessor. Dr. Alden further attested that he learned that 4438 Calliope Street was

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the address being incorrectly used by the Assessor for 4307-09 Calliope Street, and

he sent correspondence to the Assessor to inform that the correct address to the

property was 4307-09 Calliope Street.

This Court in LZM II explained the nullity principles as follows:

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.

LZM II at p. 17, 390 So.3d at 873. This Court further elaborated the

requirements to prevail in an action to nullify a judgment obtained by fraud

or ill practices, a plaintiff must prove the following material facts: 1) that he

or she seeks to nullify a previously rendered final judgment; 2) he or she

raised the nullity in a direct action, not collaterally; 3) the plaintiff must

show that he or she brought the cause of action within one year of

discovering the fraud or ill practices; and 4) there is a showing that the

challenged judgment was obtained by fraud or ill practices. LZM II at p. 18,

390 So.3d at 873 (quoting Montana v. Jordan, 2013-1410, pp. 12-13 (La.

App. 4 Cir. 2/26/14), 135 So.3d 1212, 1219). Notably, this Court provided

that the first three of these facts are undisputed, however, the fourth factor,

that the plaintiff in a nullity action must demonstrate that the challenged

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final judgment was obtained by fraud or ill practices is disputed. Id. at p. 19,

390 So.3d at 874. We find that this fact is still in dispute.

At the September 26, 2024 hearing for the second motion for

summary judgment, the trial court stated:

[THE COURT]: Let’s go to what the 4th Circuit said that the
mistake was I made a credibility determination. It does not matter who
made the made the mistake. If PCP or the city made it. The end result
is that the Court was [misled] to some extent. It also said in its opinion
that an innocent mistake can be [led] to fraud.

So[,] based on the 4th Circuit’s opinion, the only issue was that
we said that the intent, and we granted the motion for summary
judgment. However, that is not necessary as you said earlier, and so I
will grant your motion for summary judgment.

As previously mentioned, in a nullity action, 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. See LZM II, p. 17, 390 So.3d at 873. LZM no longer contends

that PCP’s action of requesting the municipal address change to be fraudulent, but

instead an innocent mistake. Based on the affidavit of Dr. Alden, the change of

address was deliberate. Moreover, the record provides that public records exist as

to the transactions involving the property. This presents genuine issues of material

fact as to whether LZM was aware of the 4307-09 Calliope Street address at the

time of filing its Petition to Confirm Title and whether the information was

ascertainable.

Moreover, whether there were misrepresentations made to the trial court,

intentionally or by ill practice presents a question of credibility, and questions of

credibility are inherently factual. LZM contends that regardless of intent, PCP

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provided evidence to the trial court that it owned a property with an address of

4307 Calliope Street that was different from the property subject of the tax sale

known as 4438 Calliope Street. Whereas, PCP contends there is no Act of Sale or

juridical act transferring the ownership of 4438 Calliope Street to PCP, and that

public records are available to LZM. The parties’ interpretation of events are

questions of fact that are inappropriate for summary judgment. Therefore, the trial

court erred in granting summary judgment in favor of LZM.

CONCLUSION

For the foregoing reasons, we deny PCP’s peremptory exception of res

judicata. We reverse the October 1, 2024 judgment granting LZM’s motion for

summary judgment, and remand this matter for trial on the merits.

PEREMPTORY EXCEPTION OF RES JUDICATA DENIED;
REVERSED AND REMANDED

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