The opinion
BILLY SPAIN * NO. 2023-C-0491
VERSUS *
COURT OF APPEAL
H&H INVESTORS, L.L.C., ET *
AL. FOURTH CIRCUIT
*
STATE OF LOUISIANA
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ON SUPERVISORY WRIT FROM THE
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-10771, DIVISION “E”
Honorable Omar Mason, Judge
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Judge Paula A. Brown
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ON APPLICATION FOR REHEARING
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Paula A. Brown, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)
LOBRANO, J., DISSENTS
James M. Garner
Joshua S. Force
Grant G. Butler
Sher Garner Cahill Richter Klein & Hilbert, L.L.C.
909 Poydras Street, 28th Floor
New Orleans, Louisiana 70112
COUNSEL FOR DEFENDANT/RELATOR, ARCHON INFORMATION
SYSTEMS, L.L.C.
Hannah D. Adams
David H. Williams
India Broussard
Julia K. Jack
Southeast Louisiana Legal Services
1340 Poydras Street, Suite 600
New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/RESPONDENT, BILLY SPAIN
Yasha Clark
The Clark Firm
1 Canal Place
365 Canal Street, Suite 415
New Orleans, LA 70130
COUNSEL FOR DEFENDANT, H&H INVESTORS, L.L.C.
Josie N. Wicks
Tanya L. Irvin
City of New Orleans, Law Department
1300 Perdido Street, Room 5E03
New Orleans, LA 70112
COUNSEL FOR DEFENDANT, CITY OF NEW ORLEANS
REHEARING GRANTED; REMANDED
NOVEMBER 7, 2023
PAB
RLB
TCG
NEK
Respondent, Billy Spain (“Respondent”), seeks rehearing of this Court’s
September 26, 2023 writ disposition, which reversed the district court’s June 29,
2023 judgment that overruled Relator’s, Archon Information Systems, L.L.C.’s
(“Relator”), exception of no cause of action. In our September 26, 2023 writ
disposition, this Court found: (1) the district court erred in overruling the Relator’s
exception of no cause of action on the basis that the alleged defects in the pre-tax
sale notices to Respondent were sufficient to support a cause of action for the
absolute nullity of the tax sale; (2) an amendment to the petition would not cure the
grounds for the exception of no cause of action; and (3) dismissal of Respondent’s
claim of absolute nullity was the appropriate remedy. Spain v. H&H Inv’rs, L.L.C.,
23-0491 (La. App. 4 Cir. 9/26/23), ___ So.3d ___, 2023 WL 6224966. The narrow
issue presented on rehearing is whether Respondent is entitled to amend his
petition and raise a facial constitutionality challenge, pursuant to La. C.C.P. art.
934.1
1 La. C.C.P. art. 934 provides:
When the grounds of an objection pleaded by the peremptory exception [of no
cause of action] may be removed by amendment of the petition, the judgment
1
Respondent contends that the issue of whether he is entitled to relief through
a facial due process challenge of the 2008 amendment of La R.S. 47:2121, et seq.
(“the 2008 amended tax sale regime”) was neither presented to the district court
nor this Court. As such, an amendment of his petition would allow him to present
this facial constitutionality challenge and potentially cure the grounds for the
exception of no cause of action. In support, Respondent cites Adair Asset
Management, LLC v. Turney, 50,574, p. 22 (La. App. 2 Cir. 5/4/16), 195 So.3d
501, 513, wherein the appellate court held that the 2008 amended tax sale regime is
presumed constitutional until its constitutionality is specifically challenged.
Relator argues that because Respondent failed to seek leave in the district
court to amend his petition to assert a new constitutionality claim, his request
before this Court is untimely. Relator cites Bergeron v. Blake Drilling & Workover
Co., Inc., 599 So.2d 827 (La App. 1 Cir. 1992), wherein the appellate court held
that when a constitutionality challenge is raised for the first time after an adverse
judgment, it is not timely and will not be considered by the appellate court.
However, we find that Bergeron is distinguishable from the facts of this case. In
Bergeron, the case had been tried before a jury, and the constitutionality challenge
was raised for the first time in a motion for new trial. In the case sub judice,
Respondent’s case is in the infancy stage, where amendments to pleadings are
permissible.2
sustaining the exception shall order such amendment within the delay allowed by
the court. If the grounds raised through the exception cannot be so removed, the
action, claim, demand, issue, or theory shall be dismissed.
2 See supra note 1.
2
In further support of his argument, Respondent cites to Rismiller Tutrix for
Goins v. Gemini Ins. Co., 18-2089 (La. 2/18/19), 263 So.3d 1145, wherein the
Louisiana Supreme Court remanded the matter to allow the plaintiffs an
opportunity to amend their petition in an attempt to plead a facial constitutionality
challenge. In its writ application to the appellate court, defendants sought review of
the district court’s judgment, which overruled their exceptions of no right of
action, and found that the biological children of decedent who were given up for
adoption had a right to assert survival and wrongful death claims against the
defendants. Rismiller v. Gemini Ins. Co., 17-809, p. 3 (La. App. 3 Cir. 10/3/18),
316 So.3d 1178, 1180. The appellate court reversed and sustained defendants’
exceptions of no right of action. Id. Thereafter, the plaintiffs sought review with
the Louisiana Supreme Court challenging the constitutionality of La. C.C. arts.
2315.13 and 2315.24 on the basis that the codal articles provided no right of action
for adopted children to assert survival action or wrongful death claims following
the death of a biological parent. Rismiller, 18-2089, p. 1, 263 So.3d at 1145. The
Louisiana Supreme Court, observing that the plaintiffs had not raised the
constitutionality challenge in the district court, did not rule on the constitutionality
arguments. Rather, it found it appropriate to remand the case to the district court to
give the plaintiffs an opportunity to amend their petition to raise a facial
constitutionality challenge. Id.
3 La. C.C. art. 2315.1 provides a right of action for injuries suffered by a person who eventually
dies from said injuries in favor of designated beneficiaries.
4 La. C.C. art. 2315.2 creates a cause of action that allows designated beneficiaries to recover
damages for the wrongful death of another.
3
Considering that Respondent is seeking to present a facial constitutionality
challenge to the 2008 amended tax sale regime, and our research has yielded no
cases, to-date, that have presented a constitutionality challenge to the statute, we
find that the Respondent should be given an opportunity to amend his petition to
plead said challenge, pursuant to La. C.C.P. art. 934.
Based on the foregoing, we grant Respondent’s application for rehearing for
the sole purpose to allow Respondent an opportunity to amend his petition in an
attempt to remove the objection to the exception of no cause of action.
REHEARING GRANTED; REMANDED
4