The opinion
ECLECTIC INVESTMENT * NO. 2019-CA-0895
PARTNERS, LP
*
VERSUS COURT OF APPEAL
*
CITY OF NEW ORLEANS AND FOURTH CIRCUIT
NORMAN WHITE, DIRECTOR *
OF FINANCE AND EX STATE OF LOUISIANA
OFFICIO TAX COLLECTOR *******
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-06036, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Terri F. Love
******
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A.
Brown)
DYSART, J., DISSENTS
BROWN, J., CONCURS AND ASSIGNS REASONS
Scott J. Sonnier
ATTORNEY AT LAW
650 Poydras Street, Suite 1400
New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLANT, ECLECTIC INVESTMENT
PARTNERS, LP
Sunni J. LeBeouf
CITY ATTORNEY
Donesia D. Turner
SENIOR CHIEF DEPUTY CITY ATTORNEY
Churita H. Hansell
CHIEF DEPUTY CITY ATTORNEY
Kimberly K. Smith
Assistant City Attorney
Tanya L. Irvin
ASSISTANT CITY ATTORNEY
1300 Perdido Street, Room 503-E
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE, CITY OF NEW ORLEANS
AND NORMAN WHITE, DIRECTOR OF FINANCE AND EX OFFICIO
TAX COLLECTOR
AFFIRMED
APRIL 8, 2020
TFL
This appeal arises from the trial court’s denial of a writ of mandamus
requested by plaintiff. Plaintiff purchased subject property at a tax sale. Once
purchased, plaintiff discovered that additional taxes were owed. Plaintiff sought a
mandamus to clear the tax debts owed on the subject property that were allegedly
prescribed. The trial court found that the taxes remained due and owing and
denied the petition for a writ of mandamus.
We find that the matter is indistinguishable from and controlled by this
Court’s previous jurisprudence. As such, the trial court correctly denied plaintiff’s
request for a writ of mandamus. The judgment of the trial court is affirmed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 12, 2016, Eclectic Investment Partners, LP (“Eclectic”) purchased
property located at 4012-14 General Ogden Street in New Orleans via a tax sale.
The property was previously owned by Altlia Shelton Nora and Anna Mae Gillan
Nora and was subject to the tax sale for non-payment of taxes for the years 2013-
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2015 and for a 2015 code enforcement lien.1
On May 5, 2016, the City, through its ex-officio tax collector, Norman
White, executed a tax sale certificate to Eclectic, which was registered on May 27,
2016, in the Orleans Parish mortgage records. Pursuant to La. R.S. 47:2157(D),
Eclectic filed an affidavit in the mortgage record, indicating that written notice was
sent to the Noras at their last known addresses. The affidavit further indicated that,
pursuant to La. R.S. 47:2157(E), certain interests in the property were canceled.
Following the tax sale, Eclectic filed a Verified Petition for Writ of
Mandamus against the City and Mr. White contending that the City issued Eclectic
a tax bill, which erroneously included taxes assessed to the Noras prior to the filing
of the tax certificate. Eclectic asserted that Mr. White “refused to perform his
ministerial duty to correct the tax bill by removing the taxes for 2008 thru 2012
from the tax bill, despite repeated request[s]” from Eclectic.
The trial court denied Eclectic’s Verified Petition and designated the
judgment as final and appealable. Eclectic’s devolutive appeal followed.
WRIT OF MANDAMUS
On appeal, Eclectic contends that the trial court erred by denying its request
for a writ of mandamus because the 2008-2012 ad valorem taxes as well as 2009
and 2013 code enforcement liens were no longer due.
This Court previously enumerated the law on mandamus as follows:
A writ of mandamus may be issued in all cases
where the law provides no relief by ordinary means or
where the delay involved in obtaining ordinary relief may
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According to Eclectic, the Noras were also delinquent for the taxes on the property from 2008-
2012 and the property was subject to 2009 and 2013 code enforcement liens, which were
recorded in the Orleans Parish mortgage records. However, the tax sale encompassed years
2013-2015 and the 2015 code enforcement lien.
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cause injustice. See La. C.C.P. art. 3862. A writ of
mandamus may be directed to a public officer to compel
the performance of a ministerial duty required by
law. See La. C.C.P. art. 3863. A ‘“ministerial duty ’is one
in which no element of discretion is left to the public
officer, in other words, a simple, definite duty, arising
under conditions admitted or proved to exist, and
imposed by law.” Landis Const. Co., LLC v. Reg'l
Transit Auth., 15–0854, p. 10 (La.App. 4 Cir. 5/25/16),
195 So.3d 598, 605, quoting Newman Marchive P'ship,
Inc. v. City of Shreveport, 07–1890, p. 5 (La. 4/8/08), 979
So.2d 1262, 1266.
Mandamus is an extraordinary remedy that is to be
used sparingly. Id., 00–1146, p. 11, 798 So.2d at 1175. A
writ of mandamus, therefore, may not be issued to
compel a public official to exercise discretionary
authority. Id., p. 11, 798 So.2d at 1175–1176. It never
issues in doubtful cases. City of Hammond v. Parish of
Tangipahoa, 07–0574, p. 11 (La.App. 1 Cir. 3/26/08),
985 So.2d 171, 181. Louisiana’s jurisprudence, however,
has shown that in the realm of public bid law, mandamus
has been an appropriate remedy to award publicly bid
contracts when the law requires. See, e.g., Concrete
Busters of Louisiana, Inc. v. The Board of
Commissioners of the Port of New Orleans, 10–1172, p.
10 (La.App. 4 Cir. 2/2/11), 69 So.3d 484, 489–490.
We review a trial court’s decision to deny a
request for a writ of mandamus under an abuse of
discretion standard. See A.M.E. Disaster Recovery
Services, Inc. v. City of New Orleans, 10–1755, p. 9
(La.App. 4 Cir. 8/24/11), 72 So.3d 454, 460. “An
appellate court will grant a writ of mandamus only when
there is a usurpation of judicial power or clear abuse of
discretion.” Wallace C. Drennan, Inc. v. Sewerage &
Water Board of New Orleans, 00–1146, pp. 3–4 (La.App.
4 Cir. 10/3/01), 798 So.2d 1167, 1171.
Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566, pp. 12-14 (La. App. 4
Cir. 12/14/16), 206 So. 3d 1029, 1037.
La. R.S. 47:2134(A) states:
No court of this state shall issue any process to restrain,
or render any decision that has the effect of impeding, the
collection of an ad valorem tax imposed by any political
subdivision, under authority granted to it by the
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legislature or by the constitution.
Further, La. R.S. 47:2157 provides, in pertinent part:
A. (1) Upon the expiration of the applicable redemptive
period, the tax sale purchaser may send a notice to a tax
sale party whose interest the tax sale purchaser intends to
terminate that the party has until the later of:
* * *
D. After the expiration of the applicable time period set
forth in the notice, the tax sale purchaser may file with the
recorder of mortgages an affidavit indicating how the tax
sale parties whose interest the purchaser intends to be
terminated were identified, how the address of each tax
sale party was obtained, how the notice was sent, the
results of sending the notice, and the dates of publication.
The affidavit may also contain a statement of the interests
to which the purchaser takes subject. The recorder of
mortgages shall index the affidavit only under the names
of the tax sale purchaser and the tax debtor as mortgagors.
The affidavit shall be sufficient if it is in the following
form:
* * *
E. The filing of the affidavit provided in Subsection D of
this Section with the recorder of mortgages of the parish
in which the property is located shall operate as a
cancellation, termination, release, or erasure of record of
all statutory impositions due and owing to the political
subdivision prior to the recordation of the tax sale
certificate, and of all interests, liens, mortgages,
privileges, and other encumbrances recorded against the
property and listed in the affidavit. Governmental liens
and statutory impositions due to other political
subdivisions other than the selling political subdivision
shall not be canceled or terminated. The recorder of
mortgages shall index the affidavit only under the name of
the tax debtor and current owner.
F. Upon filing of the affidavit under Subsection D of this
Section, the recorder of mortgages and recorder of
conveyances shall treat as canceled, terminated, released,
or erased, as applicable, all the liens, privileges,
mortgages, interests, or other encumbrances canceled,
terminated, released, or erased under Subsection E of this
Section, only insofar as they affect the property.
G. The tax sale purchaser shall be liable to and indemnify
the recorder of mortgages, the recorder of conveyances,
and any other person relying on the cancellation,
termination, release, or erasure by affidavit for any
damages that they may suffer as a consequence of such
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reliance if the recorded affidavit contains materially false
or incorrect statements that cause the recorder to
incorrectly cancel, terminate, release, or erase any interest
as provided in the affidavit. The recorder of mortgages
and the recorder of conveyances shall not be liable for any
damages resulting to any person or entity as a
consequence of the cancellation, termination, release, or
erasure of any interest in compliance with this Section.
We find our interpretation of the above statutes and the present matter is
controlled by Harrier Enterprises, LLC v. Imbornone, 19-0613, p. 4 (La.App. 4
Cir. 1/29/20), ___ So. 3d ___, ___, 2020 WL 486804, *2, wherein this Court found
that “the legislature did not intend for Title 47 to authorize the courts to cancel
property taxes.” We further held that “the purpose of the provision allowing for
the cancellation of statutory impositions by affidavit was to eliminate only those
prior encumbrances that were actually satisfied through the proceeds of the tax
sale.” Id., 19-0613, p. 6, ___ So. 3d at ___, 2020 WL 486804, *4. Accordingly, as
in Harrier, the 2008-2012 ad valorem taxes and the 2009 and 2013 code
enforcement liens were neither included in, nor satisfied by the price of the
property at the tax sale. Therefore, we find that the trial court did not abuse its
discretion by denying Eclectic’s Verified Petition for Writ of Mandamus. The
judgment of the trial court is affirmed.
DECREE
For the above-mentioned reasons, we find that the ad valorem taxes on the
property from 2008-2012, as well as the 2009 and 2013 code enforcement liens
remain unsatisfied. As such, the trial court did not err in denying Eclectic’s
Verified Petition for Writ of Mandamus and the trial court’s judgment is affirmed.
AFFIRMED
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