Exactly how final is a final judgment????

[AmosMoses]

What is the name of your state? Louisiana

This is a long post, I know, but I am trying to “pre-answer” any questions that I think I can foresee. The actual question is short and simple, though, and I would REALLY appreciate some input.

A friend of mine bought a piece of property at the 2001 [delinquent] tax sale. The three year peremptive redemption period passed, as did the 5 year prescriptive period to contest the tax sale, so at that five year point she moved to quiet the tax title, having ad hoc counsel appointed to accept service for the absent tax debtor, along with the other provisions as required by law. By some bizarre coincidence, the absent tax debtor goes to borrow money on the land and finds out it's no longer his....about a week after the ad hoc counsel accepted service for him...and he hired counsel to oppose the tax sale. All requirements for the sale were met, to the letter, which shouldn't have mattered anyway, post five years from the sale, but this fellow gets affidavits stating that he lived on and possessed the property. My friend's counsel does nothing to oppose this, despite a considerable amount of evidence to the contrary... when I say he did nothing, I mean NOTHING. He didn't file a single thing opposing the possession claim. I know, it sounds bizarre, but that's what happened, so with the possession claim now in effect interrupting the 5 year prescriptive period to oppose the tax sale, the guy does just that - continues to oppose the quieting of the tax sale deed.
Now, this guy was dodging the IRS, other creditors, etc., and his land had sold at tax sale in 1999, also, but he redeemed it in 2000, so who knows where he was at all this time.

Anyway, his counsel files a Motion for Summary Judgment on the grounds that he was not served with the tax sale notice, specifically because "FOE" was crudely scrawled on the envelope (Forwarding Order Expired). Because of this, it's held that the sheriff/tax collector should know that the tax notice was not properly served, and if that's the case, the requirements for sale set out in statute are not enough to satisfy the constitutional due process requirements. Basically, the statutory requirements for notice are fine, assuming that the tax sale notice was sent to the proper address. Since this was returned under "Forwarding Order Expired", the sheriff should have known that due process was not satisfied, and he needed to "reasonably attempt to find the absent tax debtor".

Well, my friend happened to find out about the filing of the Motion for Summary Judgment from a friend of hers at the courthouse, and she called her counsel, who told her that it was "...nothing. A formality..", and that she didn't even need to go to the hearing. He surely had no intent to let her know about the filing for summary judgment or the hearing for it. Of course, she showed up anyway, to find out that her counsel did not come, instead sending his "assistant", who only very recently became a lawyer (not that that, in and of itself, mattered). The assistant was extremely flustered, stating to my friend that she "had no idea why [she was] here", and that she "had absolutely no idea what the case was about", and surely nothing about the hearing that she had only been told about that very morning.

Opposing counsel submits an affidavit into evidence from a current employee of the courthouse, which basically stated that "normal practice" was to meet the statutory requirements of notice, and nothing more. When the judge asked if the assistant counsel had anything to say, luckily my friend actually elbowed her and told her to tell the judge that the affidavit came from an employee who did not work at the courthouse in 2001, and that she couldn't possibly know what was or wasn't normally done. The culmination of the whole fiasco was that the judge gave my friend 30 more days to rebut the affidavit with an affidavit from someone who worked at the tax collector’s office in 2001.

My friend found an employee who was employed at the time of the tax sale, and this employee states, in affidavit, that all statutory requirements were met, and then she went on to tell what else would have been done, and it was actually pretty impressive, from checking phone books, mortgage records, passing out lists of the delinquent tax debtors to everyone from the sheriff on down to every road deputy, etc., etc., surely enough to meet the due process requirements, as this was all in addition to meeting the requirements set out in statute (certified letters, newspaper notices, etc., etc., etc.)

My friend then took this affidavit to her counsel, and kinda got on his a$$ about not being at the hearing, and his irresponsible statements to her earlier that this hearing was "nothing", and "a formality". She knew that she almost lost that day, and had it not been for her bringing up the fact that the affiant used by the defendants was NOT an employee years ago when this land was sold at tax sale.

Thirty days pass, and she goes to the next hearing, to find out that her counsel did not even file the affidavit, merely instead telling the judge what was done in 2001...relaying what the affidavit said, but he didn’t file it! I can only assume that he was lazy and forgot to file the thing, I have no idea. It was bizarre. The judge rules and dismisses her suit to quiet title, saying that the judgment would be signed "at a later date", and she commenced to raking her attorney's a$$ again, this time in open court. It was, well, a scene, I guess you could say, and the next day he files a motion to be removed as her counsel of record. It was a done deal by then. All I can figure is that maybe, since he agreed on a "per case" fee, he wanted to keep the money and not do the work. That COULD explain why he was not going to inform my friend about the Motion for Summary Judgment filed by the defendants or the hearing therefore, and why when she found out on her own he tried to keep her from attending, and stated that it was "nothing...a formality". I guess that when sent his VERY green assistant out, wholly unprepared and literally at the last minute, he wanted to wrap the case up yet not be blamed for losing the motion for summary judgment decision...this way, he could "sympathize" with my friend, telling her something like "Oh NO! I can't believe this! I had her prepared perfectly, and there was nothing to this, and she botched it up and lost!! I will at least reprimand her, maybe fire her"...or something to that effect. He could keep the money, and shuck all the blame for the summary decision which killed my friend's case. I simply can't think of anything else, and that was re-affirmed when he DID go to the next hearing 30 days later, but he did NOT file the affidavit that my friend got that both would have refuted the affidavit prepared by the defense, despite the fact that my friend got the affidavit and delivered it to him more than a week prior to the hearing.

So, she's talking to me about this, over thirty days later, when the judgment was final, asking about getting the thing annulled, or anything...some kind of recourse. I don't know jack about all of this, about the law in general, about any of this at all being the dumb redneck that I am...but, I can read and write (and even cipher a tad, too!), and I have internet access, so I proceeded to read. And read, and read some more. An annulment, at this stage, was a possibility for "fraud or ill practice", even when the ill practice was "not limited to actual fraud or wrongdoing, 'but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right...' ", but the fraud or ill practice must have been within a year of the initiation of the annulment proceedings. She was hoping to tryu to being up some direct contradictions in the tax debtors affidavits (he filed 3, and yes, I have to admit, he blatantly and specifically contradicted himself on several very substantive parts...but, I didn't see that flying).

CONTINUED on following post -What is the name of your state?

 

[AmosMoses]

Exactly how final is a final judgment??? (CONTINUED FROM ABOVE POST)

CONTINUED from last post-

I know this is long, but please bear with me here....

So, at her request, I tried to help her file something pro se. We filed a Petition to Annul, which was re-alloted. But, a couple days later, she tells me that she got a letter from opposing counsel, asking her to sign the property back over to his client, being that she didn't prevail in the summary judgment. Somewhat confused, I asked her if she was still the deeded owner, and she was. I thought about that, and even though I still don't know for sure, I did not (and still do not) think that's how this is normally done! I mean, if the tax sale was annulled, and the tax deed voided, then why would she have to sign it back over to them?! The judgment should serve ample purpose for that. So, I asked her to show me a copy of the Motion for Summary Judgment and the actual Judgment. It turns out that in the motion for summary judgment, opposing counsel prayed that my friend's Petition to Quiet Title be dismissed...and that was it. The order, as signed by the judge, granted that relief - he ruled that the Petition to Quiet Title was dismissed, and that was it. Nothing about nullifying the tax sale, nothing about voiding the deed, nothing about reverting ownership back to the tax debtor. The actual text is, in pertinent part:

"...defendant's motion for summary judgment is granted, and plaintiff;s petition to quiet tax title is dismissed". That's it...period.

On that, I advised her to simply ignore the letters from him. She was deeded owner, and if he screwed up in his prayer and the judgment he gave the judge to sign, then we'd see pretty soon. We did. A few weeks later opposing counsel filed a Motion to Enforce Judgment, asking to compel her to deed the land back to his clients for the sum of $10.00. I still say something ain't kosher here with that, just as I did then, and so I did some more reading, and I drafted an opposition for her to file, and I gave her a little cheat sheet to read in court whenever the hearing transpired.

The gist of the opposition was that the tax debtor neither prayed for, nor should he now receive, the tax sale annulment, the voiding of the tax deed, nor the reversion of the land back to his name. I figured that this would at least get her back in the game, because the summary judgment, as it was, would be useless, prompting the debtor to again sue her to overturn the tax title...which may be too late now anyway, I just don't know. Regardless, she would be back in the game, ball in their court.

So, I looked at the structure of these pleadings and how to present them, and I basically cooked her up this opposition. One angle was that her tax deed, though not quieted and confirmed, was nonetheless still a valid tax deed. Here's a bit from the memorandum:

Louisiana law provides tax sale purchasers with two options to obtain additional protection against attacks on their titles, namely actions to quiet and confirm title, and monition proceedings. The former is pursued through ordinary process, through a petition to quiet the tax title, with service and citation to the delinquent taxpayer, and if successful, the resultant judgment confirms and quiets the taxpayers title. The latter is a procedure wherein the purchaser petitions for a grant of monition to obtain judgment, and then confirms and homologates the sale. Both of these systems proceed to the same result, albeit along different paths. That notwithstanding, such judgments through petitions to quiet and confirm title and monition procedure are not required to effect the sale of the property; these proceedings are simply a way for individuals who purchase land at tax sales to protect themselves against eviction or other responsibilities relative to possession of said property, but it does not affect the property’s transfer in any way. Land Co. Inc. v. Rudd, 193 So.230 (La.App. 2 Cir. 1939); Gunter v. Moore, 838 So.2d 120 (La. App. 3 Cir. 2003). In addition to being well settled in case law, this is clearly statutory, per La. R.S. 47:2228.1(F), which in full states as follows:

“The filing of the [quiet title] suit shall not be mandatory; and the failure to bring said suit in no manner shall affect the validity of title to property purchased from the state or any political subdivision thereof, which property had been previously adjudicated to the state or a political subdivision thereof for non-payment of taxes.”

Notwithstanding the fact that the immediate foregoing text does not precisely and exactly state that an unsuccessful attempt to quiet title is no impediment to holding deed after tax sale, the inference is obvious and the intent of the legislature perfectly transparent: the fact that the legislature specifically states that no suit to quiet title, nor any monition proceeding, are mandated for maintaining valid title holds just as well if same is unsuccessfully sought, absent any judgment invalidating the tax sale or nullifying the tax deed held by purchaser (in the instant case, plaintiff Annie Walker). In fact of point, absent a judgment to the contrary, a tax deed by a tax collector is prima facie evidence that a valid sale was made. La. Const. art. 7, § 25; Sunset Realty Inc. v. Antonini, 36,788 (La.App. 2 Cir. 1/29/03), 836 So.2d 1173. A copy of plaintiff’s tax deed is annexed hereto (Exhibit “A”, TAX DEED).

Now, this is only worth something inasmuch as it's a final judgment, and no amendment thereto is allowed per La. C.C.P. Art. 1951 Corrections for errors in calculations and simple phraseology changes are OK, bit substantive amendments are not legit. Here's the pertinent part of the memo related to that:

The judgment in this matter dismisses plaintiff’s suit to quiet tax title, nothing more, nothing less. Plaintiff remains deeded owner of the real property at issue herein.

As a general rule, a final judgment is not subject to substantive amendment by the trial judge on his own motion or motion of any party. In such an event, the proper recourse is a timely application for new trial or a timely appeal. Baptiste v. Southall, 157 La. 333, 102 So. (1924); and Villaume v. Villaume, 363 So.2d 448 (La.1978); Hebert v. Hebert, 351 So.2d 1199 (La.1977). The district judge may grant a limited or unlimited new trial but, until it does, it cannot modify its previous judgment as to substance. Weber v. Bon Marche Pharmacy, Inc., 378 So.2d 520 (La.App. 4 Cir.1979). At this point, no party has moved for a new trial, nor has the court granted a new trial on its own motion, so the judgment must stand as issued, absent a successful action to nullify same. Loomis v. Connecticut General Life Insurance Co., 160 So.2d 270 (La.App. 4 Cir.1964); Pickering v. Hibernia National Bank, 306 So.2d 469 (La.App. 4 Cir.1975); Mitchell v. Windham, 426 So.2d 759 (La.App. 3 Cir.1983).



The judgment of May 21, 2007, by its own terms, grants no relief to defendant other than the dismissal of plaintiff’s suit to quiet tax title, and it cannot be amended or enforced otherwise now simply to suit defendant’s convenience, under C.C.P. art. 1951. Villaume, supra; Schexnayder v. Schexnayder, 503 So.2d 104 (La.App. 5 Cir.1987).

To understand this, you need to know here that this judge is not actually a duly elected judge (which does not matter simply because of that, but it matters because this judge did NOT hear the original case/Motion for Summary Judgment). This judge is an ad hoc judge assigned to a certain lawyer’s cases, because that lawyer sued all the judges of this district (the suits against the judges are not related to this matter, though, and this judge also catches up some of the slack on other dockets. At any rate, as I said he was NOT the judge who heard the original case and it’s motion for summary judgment, nor did he rule on that summary judgment. He did, however, hear the Motion to Enforce.

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[AmosMoses]

Exactly how final is a final judgment??? (CONTINUED FROM ABOVE POST)

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Oddly enough, in that hearing, opposing counsel waded in with a ton of material, exhibits A through W, all geared toward one of two things….well, one request with an alternate, and that was:

1) To have the judge force my friend to sign the land back over to the tax debtor

2) To have the judge sign a whole new judgment, one that was very substantively changed because now it added the provisions conmcerning annulling the tax sale, voiding the tax deed, etc. I can’t stress enough that that was never prayed for, nor was it even remotely referred to in the judgment – nothing except that my friend’s suit to quiet tax title was dismissed.

Something very noteworthy here is that after opposing counsel got through, and the judge asked for my friend to speak, he let her get only about ¾ of the way through her prepared statement when he stopped her and said, “Let me interrupt you a minute. I’m going to say something, and when I get through you can finish if you want to, but I am going top say this now”. She thought she was about to get ripped, but the judhge turned to opposing counsel and actually began ripping into him a bit, asking him how he could come into his court and ask for a judgment that did not exist. When opposing counsel stated what “the [original hearing] judge meant”, this ad hoc judge said, “Do you have anything in writing, anywhere in that or any other judgment, that says that the tax sale was nullified, that the tax deed was voided, or anything like that?” The answer was, of course, “No, Your Honor”. The judge then said “You’ll have my ruling within 30 days”, and got up, and zipped out w/o giving her a chance to finish. I wasn’t there, but I got a phone call from her and a call from an attorney friend of mine who actually went to that hearing out of curiosity after I had asked him a few questions about “my pleadings” the evening before. Of course, she was bubbling over post hearing, and very positive, but it was the call from my attorney friend that got me optimistic. He said simply, “Well, your friend did real good. She was a little nervous, and she had a tiny bit of trouble with a few words, but I can’t see any way that the judge won’t rule for her. She should be looking toward a new trial, this time with them suing her for an annulment of the tax deed.”

Now, here’s where I kinda get to my question:

All right…obviously, the judge who heard the Motion for Summary Judgment “meant” for the tax sale to be a nullity, to void the tax deed, and to revert ownership back to the defendants. Of that I have absolutely no doubt. That notwithstanding, in my extremely limited knowledge of the law, this judgment is still fatally deficient as regards the relief now requested by the delinquent tax debtor. I just cannot see them getting that relief with anything less than a new trial. Statute and firm case law holds that a final judgment cannot in any way at all be substantively amended…cannot be amended beyond correcting errors in calculation or changing non-substantive phraseology. End of story. Also, statute and case law uphold that quieting and confirming a tax title is absolutely not necessary to maintain a valid deed to the property.

So, even though I am sure that the original judge’s intent really was to end this matter against my friend, when you consider that the defendants did not in any way, shape nor form pray for anything but a dismissal of the quiet title suit, and that is precisely what they got….and when you consider that they actually typed the judgment to submit for the judge to sign, and that they only got signed what they submitted in the ready-to-sign judgment… and even thought it seems that is, and that it actually really is, a “technicality”, I still felt extremely optimistic that the enforcement that they sought would never materialize, because I couldn’t see the judge signing a wholly new and very substantively different judgment with this being a final judgment at issue, and because I surely couldn’t see him “curing” the fatally deficient judgment for these defendants by forcing my friend to sign over the deed in consideration for ten bucks “and other valuable considerations” (or some terms very similar to “and other valuable considerations”).

So, we have sat around counting all the little chickens that would hatch with our opposition to their Motion to Enforce Judgment for 30 days, but heard nothing…for two more weeks…and then on yesterday, the 13th, the decision came down – the judge has ordered her to meet with opposing counsel, and to complete the paperwork that he had prepared for her to sign months ago, wherein she would sign the land back over to him and the defendants would pay her back the taxes she has paid thus far on the property.

I was stunned, and I am wondering if I am that dumb, that mistaken and misguided, that uncomprehending of the case law and statute that I read concerning all this. I mean, in “normal” cases like this, where a tax deed is voided, I HAVE TO believe that the judgment takes care of reverting the ownership back to the tax debtor! In fact, we learned that opposing counsel had, early on after the Motion for Summary Judgment was finalized, gone to the courthouse with judgment in hand, and he tried to get this done. That didn’t fly, and that started his offers to “save [my friend] some money by transferring the land back to the defendants this way”, and when my friend refused, that eventually led to this Motion to Enforce. This “payback” of the taxes is merely is NOT a redemption. The 3 year redemption is preemptive, and by definition, irrefutably absolute. I have to believe and know that it can be nothing other that what I called it, and that is a situation wherein the judge is forcing my friend to deed this land back over to the tax debtor for a sawbuck (except now it’s in consideration for the back taxes, and not ten bucks as to cure for fatally deficient judgment for the defendant.

Please, someone, explain to me what I am not seeing here! It’s driving me crazy, because as much of devil’s advocate as I play with myself in attempting to figure this out, I cannot for the life of me do so!!

And, finally, IF I am correct in my estimation of all this, and since this ruling was on a motion to enforce an already finalized (and surely un-appealable) judgment, what would be my friend’s options if she so chose to oppose this ruling? My guess would be that she could maybe narrowly appeal the motion to enforce, as it seems that someone told me that the Appeals Court can not only be used to appeal judgments, they can also actually be asked to certify something like this in a “supervisory manner”….I believe that he called such “supervisory writs” but I could be TOTALLY wrong there. It just seems like he told me something to that effect. Of course, is this even applicable in the matter at issue, because the thing to appeal is a motion to enforce and NOT the final judgment, but, of course, the judgment is already finalized, so is this narrow “supervisory request” legitimate?

To anyone still reading this, I thank you….VERY much! And, any answers would be appreciated more than you can imagine, that I can assure you!!!!What is the name of your state?