STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2021 CA 1228 

### VOLKONA CO/UNION BANK D/B/A US ASSETS, LLC VERSUS 

### DOUG WELBORN, IN HIS CAPACITY AS THE CLERK OF COURT FOR

THE PARISH OF EAST BATON ROUGE; ET AL Judgment Rendered: f

Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge

State of Louisiana Suit Number C690448 

### Honorable Nadine Ramsey, Judge Pro Tempore

Melissa T. Castille Counsel for Plaintiff/ Appellant Rebecca D. Barham Volkona Co/Union Bank d/b/a Baton Rouge, LA US Assets, LLC Robert D. Hoffman, Jr. Madisonville, LA

and Franklin Hoffman Baton Rouge, LA Counsel for Defendant/Appellee Louisiana Tax Commission



### Robert Van McAnelly Counsel for Defendant/Appellee Baton Rouge, LA James C. George



### BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.HOLDRIDGE, J.



### In this mandamus proceeding, plaintiff/ appellant, Volkona Co/Union Bank d/b/a US Assets, LLC ( Volkona) filed suit against defendants/appellees, Doug 

### Welborn, solely in his capacity as the East Baton Rouge Parish Clerk ofCourt (the Clerk of Court); the Louisiana Tax Commission, through the State of Louisiana 

### Attorney General, Jeff Landry (the Tax Commission); James C. George ( George), 

### who purchasedthe lots comprising the propertyat issue inthis litigation during 2003 and 2004; and LPI V, LLC (LPI), a company who sold the subject property via a 

### quitclaim deedto George in 2018.Volkona claims ownership ofthe subjectproperty via a 2012 tax sale and appeals a district courtjudgment that denied its petition for

a writ ofmandamus, seeking the cancellation ofcertain documents filed in the public record pertaining to the subject property. The parties dispute whether a 2008 tax sale 

### is relevant to these proceedings and whether the district court should have applied 

### the law in effect at the time ofthe 2008 or2012 tax sale. Finding the earlier law is applicable, we affirm the denial ofthe mandamus.

FACTUAL AND PROCEDURAL BACKGROUND 

### George acquired the property in question via two independent transactions. 

### He acquired Lot 347, situated in Greendale Subdivision in the Parish ofEast Baton Rouge, pursuant to a sale with mortgage in 2003, and he acquired Lot 348 of 

### Greendale Subdivision pursuant to a cash sale in 2004. It is undisputed that Lots 347 and 348 were later subdivided. Lot 347-A of Greendale Subdivision was created pursuant to that re -

subdivision, and Lot 347-A has a municipal address of "7569 Poinsettia Drive, Baton Rouge, Louisiana 70812." Lot 347-A is the tract of land the property") 

### at issue inthis matter. It is undisputed thatafterpurchasing Lot347, George moved into a house located on the property and was granted a homestead 

### exemption.Apparentlywhile George still occupied the house and allegedly without 

## him receiving notice ofthe sale,the propertywassoldatataxsaleto CititaxGroup,

2LLC ( Cititax), for unpaid taxes in the amount of $ 

### 92.94. Thereafter, the property
was sold many times, through various tax sales and quitclaim deeds. It appears 

### undisputed that in June 2010, anothertax sale occurred, which transferred title ofthe property from Cititaxto Managerial Investments. On June 25, 2010, a quitclaim deed 

### transferred Cititax's interests in the propertyto Investments 2234, LLC (Investments 2234). On June 20, 2011, 

### as a result of delinquent property taxes owed by 

### Managerial Investments forthe year2010,the subjectpropertywas sold at ataxsale to Boaz Tax Sale Properties, LLC (Boaz). On August 17, 2011, another quitclaim 

### deed transferred Investments 2234' s interest in the property to MACWCP II LLC MACWCP). 

### On November3, 2011, aredemption certificate was issued bythe East Baton Rouge Parish sheriff and ex - officio tax collector to Managerial Investments for the property, which stated, " This sale is made to redeem the ... property from a tax sale from Managerial Investments to Boaz], for unpaid taxes for the year 2010 

### On July 23, 2012, a one percent interest in the property was sold to Volkona pursuant to a tax sale for delinquent taxes due by Boaz.' On November 25, 2014, a 

### quitclaim deedtransferred MACWCP' s interest inthe propertyto LPI. In May2016, Volkona filed a " Petition To Quiet Tax Title & Partition By Licitation With Demand 

### For Reimbursement" in Volkona Co/Union Bank d/b/a/ US Assets, LLC v.James 

### C. George, et al, Docket No. 648352, in the Nineteenth Judicial District Court, naming as defendants, George and his wife, Melody B. George, Capital One, 

### National Association, a mortgagee, and LPI.Therein,the petition acknowledgedthat 

### George had been the record owner ofthe subject property pursuant to the 2003 and 2004 sale transactions. The petition urged, however, that Volkona was owner ofa one percent interest in the subject property pursuant tothe 2012 tax sale. The petition alleged that: 1) 

### George was notified ofthe right to redeem the 2012 tax sale by a

It is undisputed that after the July 23, 2012 tax sale, Volkona Co/Union Bank merged with US Assets, LLC.
3letter from the East Baton Rouge Parish sheriff and tax collector, dated August 12,



### 2014; and 2) George, Melody, and Capital One were timely notified ofthe right to redeem the tax sale prior to the expiration ofthe applicable redemptive period, but they failed to timely redeem it. Volkona prayed to be recognized as the owner of a 

### one percent interest in the subject property and to have the property judicially partitioned. In conjunction with that suit, Volkona filed a notice of lis pendens on May 31, 2016, that was recorded in the public records on June 9, 2016. Afterwards, George recorded a quit claim deed in the public records on December 13, 

### 2018, which purported to transfer LPI' s interest in the property to 

### him; LPI executed this deed on November 29, 2018. On February 11, 2019, a Tax 

### Commission cancellation statement was recorded in the public records, stating that the East Baton Rouge Parish assessor had issued a notarized oath, which stated that due to an erroneous assessment for the 2011 tax year, the property was e] rroneously sold" because the " rightful owner did not receive the tax bill," and the `[ 

### r]ightful owner [ofthe property] is [LPI]." The statement further provided that the tax sale in the name ofBoaz to Volkona is " null and void and should be cancelled from the records." The cancellation statement directed as follows, in pertinent part:

A] s Chairman of the ... Tax Commission ... under authority of the provisions of [La. R.S. 39: 351 and La. R.S. 47: 1991], I do [h]ereby authorize and direct the recorder of mortgages of East Baton Rouge Parish to cancel [the] sale and to change the Parish records.2 Footnote added]. Louisiana Revised Statutes 39:351 provides, in pertinent part:

The Tax Commission, upon determination and notification to the parish or district collector oftaxes that an assessment has been corrected, shall authorize and direct the recorder ofmortgages ofthe appropriate parish orparishes to change the inscription ofthe tax mortgage. Ifproperty erroneously assessed has been sold for taxes and adjudicated to a third party, the Tax Commission shall authorize and direct the recorder ofmortgages to cancel the sale. Louisiana Revised Statutes 47: 1991( C) provides, in pertinent part:

In case property erroneously assessed has been sold for taxes and adjudicated to a third party, the Tax Commission auditor shall authorize and direct the recorder of mortgages to cancel the sale.

4

### In November 2019, Volkonafiled the instant petition for a writ ofmandamus.



### The sole relief requested was that the Clerk of Court be ordered to issue a writ of mandamus, cancelling both the quitclaim deed from LPI to George and the Tax Commission' s cancellation statement. 

## George answered the suit,generally denying the allegations and alleging that Volkona acquired no interest in the property when it obtained its tax sale certificate 

## in2012. George asserted thatpursuanttothe2012 taxsale,Volkona boughtonlythe 

## interests that Boaz had in the property and that when Boaz acquired the property, Managerial Investments had already redeemed the 2011 tax sale, and thus, 

## Managerial Investments was record owneratthetimethat Boazattemptedto convey its interest to Volkona. Thus, George asserted that Volkona acquired no interest in the property and was therefore not entitled to any relief' Further, in his opposition memorandum, George argued, in pertinent part:

T]he June 2008 tax sale ... to Cititax Group is an absolute nullity, [ and] anything that happened thereafter is irrelevant. Thus, when the sheriff conducted [the] July 23, 2012 tax sale from Boaz to Volkona ..., the sale was of no effect .... Furthermore, when the sheriff 

### conducted [the] 2012 taxsale,the sheriffsent notice ofthetax sale only to Boaz, with no notice(s) sent to [ George], creating yet another due process violation. 

### The Tax Commission filed a general denial and prayed forjudgment in its 

### favor, but it did not further participate in the proceedings below or in this Court. 

### Additionally,the Clerk ofCourt and LPI did not file any responsive pleadings and have not otherwise participated in this litigation. 

### The district court held a hearing, during which evidence regarding the pertinent sale transactions, quit claim deeds, lis pendens filing, and the cancellation 

### statement was introduced bythe parties. Additionally, an envelope sentvia certified mail was introduced into evidence; it was addressed to " 7569 Poinsettia St., Baton 

## 3 Although George's pleading was styled as an answer, Volkona filed peremptory exceptions raising the objections ofprescription and nonjoinder. Itfurther raised various affirmative defenses. 5Rouge, LA 70812," stamped, " IMPORTANT TAX DOCUMENT ENCLOSED,"

post - marked 4/27/08, which indicated it was " RETURN[ED] TO SENDER" 

### because it was " UNCLAIMED [and] UNABLE TO [BE] FORWARD[ED].114 After 

### taking the matter under advisement, the district court issued its ruling on March 3, 2021. After setting forth the various contentions of the parties, the district court reasoned, in pertinent part:

Petitioner argues and this [ c] ourt agrees, since there was no 

### notice ofatax delinquency or ofan upcoming tax sale given to George 

### in 2008, any and all subsequent sales ofsaid property were an absolute nullity. 

### When [Volkona] acquired the property, the property was not 

### owned by Boazbecause anysubsequenttransferwasan absolute nullity forfailure ofthe tax authority to issue pre - sale notice. IT IS HEREBY ORDERED that the Writ of Mandamus filed by [ Volkona] is hereby DENIED, and all costs to be paid by Volkona]. Volkona has appealed, 

### urging the district court erred by denying the writ of 

### mandamus and declaring Volkona' s tax sale an absolute nullity. ANALYSIS 

### On appeal, Volkona urges the district court erred in considering George' s arguments about the validity ofthe tax sale, because the validity ofVolkona' s tax 

### sale was not at issue in the summary proceeding. It asserts the district court's ruling regardingthe nullity ofthe 2008 taxsale should be vacatedasthat issuewas pending before another court. Volkona further asserts, " 

### The court should have looked solely to the statutory mandate [ pursuant to La. R.S. 47:2266(C)] and ordered the clerk to 

### perform its ministerial dutyto cancel instruments recorded afterVolkona's notice of lis pendens." 

### Volkona requests that this court vacate the district court' s judgment 

### and remand the case with instructions to issue a writ of mandamus canceling and 

### removing from thepublic recordsthe actofcancellation bytheTaxCommission and

4 The contents ofthis envelope were not established. Nthe quitclaim deed from LPI to George. Volkona also urges that its tax sale postdates the 2009 overhaul ofTitle 47 and is subject to the new legal regime. In George' s appellee brief,he again urges that the 2008 tax sale is an absolute 

### nullity and any transaction flowing from that sale is also a nullity, including Volkona's tax title. Ultimately, George asks this court to affirm the district court' s judgment denying Volkona' s mandamus demand.' 

### The law governing the payment and collection of property taxes, tax sales, and adjudicated property,was substantively revised by the legislature in 2008 by La. 

### Acts, No. 819, effective January 1, 2009. Act 819 of2008 re-enacted Chapter 5 of Subtitle III ofTitle 47 ofthe Louisiana Revised Statutes, and that law has since been 

### amended several times. Cent. Properties v. Fairway Gardenhomes, LLC, 2016- 1855, 2016- 1946 ( La. 6/27/ 17), 225 So.3d 441, 448. 2008 La. Acts, No. 819, § 2, effective January 1, 2009, repealed La. R.S. 47:2221 to 2230. According to the Supreme Court' s analysis in Cent. Properties, 225 So.3d at 448, the law applicable atthe time ofthe subject tax sale controls. Thus, before addressing the merits ofthis matter, we must first determine which law is applicable, the law in effect at the time of the 2008 or the 2012 tax sale. 

### We now examine the facts before us to determine which tax sale is actually the subject ofthis dispute. The record establishes George' s ownership interest in the subject property dates back to 2003. After Volkona filed its notice of lis pendens, George also recorded a quit claim deed, wherein LPI transferred its interest in the subject property to George. This document states, in pertinent part, "[ LPI] acquired said ownership interest in [Lot 347-A] through a tax sale conducted in East Baton 

### Rouge Parish on or about June 20, 2008, as the subsequent purchaser via quit claim 

### 5 George also asserted that because he has maintained possession ofhis property since 2003, and in accordance with the law in effectatthetime ofthe 2008 tax sale, he has never lost his abilityto contest that tax sale since prescription does not accrue against a tax - debtor until he has been 

### dispossessed. Further, he asserted thatan "action forannulmentofan absolutely null contractdoes not prescribe," citing La. C. C. art. 2032.
7

### deed from a successor ofthe successful bidderat said tax sale and complied with the

terms and conditions ofsaid tax sale and all applicable laws." Thus, according to the 

### record, LPI' s, and in part, George' s ownership claim derives from the 2008 tax sale. 

## Likewise,the recordappears to establish thatVolkona's interest in the property also derives from the 2008 tax sale. Thus,the June 2008 tax sale is the seminal transaction preceding the competing claims to the subject property; the applicable law at the time ofthe 2008 tax sale controls. 

### At that time, former La. R.S. 47:2228 addressed the procedure to quiet tax 

### titles.b The statute did not address a petitioner's filing ofa notice oflis pendens, so 

## therefore it also did not address the effect that subsequent filings pertaining to the subject property would have. Further, it did not direct the recorder ofmortgages or conveyances to cancel any such filings, as current La. R.S. 47:2266 now does. Thus, 

### former La. R.S. 47:2228 alone does not support Volkona's requested mandamus

relief.

### Otherwise, LouisianaCode ofCivil Procedure article 3862 provided both then

and now, "

### A writ ofmandamus may be issued in all cases where the law provides 

### 6 Former Louisiana Revised Statues 47:2228 provided, in pertinent part,as follows:

Afterthe lapse ofthree years from the date ofrecording the tax deed in the conveyance records ofthe parish where such property is situated, the purchaser, his 

### heirs or assigns, may institute suit by petition and citation as in ordinary actions against the former proprietor or proprietors ofthe property, in which petition must appear a description ofthe property, mention ofthe time and place ofthe sale and name of officer who made same, reference to page of record book and date of 

### recording tax deed, notice that petitioner is owner ofthe said property by virtue of saidtax sale, and notice thatthetitlewill be confirmed unlessaproceeding to annul is instituted within six months from date of service ofthe petition and citation.... Afterthe lapse ofsix months from the date ofservice ofpetition and citation, ifno proceeding to annul the sale has been instituted, judgment shall be rendered quieting and confirming the title. 

### In all cases where tax titles have been quieted by prescription offive years under the provisions of Section 25 of Article VII ofthe Constitution of 1974, the 

### purchaser or his heirs or assigns may, if he or they so desire, either obtain a 

### judgment of the court confirming the title by suit in the manner and form as hereinabove setout,exceptthatthe delayforanswer shall be ten days instead ofsix months, orthe purchaser or his heirs orassigns may, at his ortheir option, quietthe title by monition proceeding, as provided by law relative to sheriffs' sales and tax sales; provided that the failure to bring suit shall in no manner affect such prescriptive titles. 0

### no reliefbyordinary means orwhere the delay involved in obtaining ordinary relief

may cause injustice ...." Louisiana Code of Civil Procedure article 3861 provides, in pertinent part, " 

### Mandamus is a writ directing apublic officer ... to perform ... the duties set forth in [Article 3863]." Louisiana Code of Civil Procedure article 3863
provides, " A writ of mandamus may be directed to a public officer to compel the performance ofa ministerial duty required by law, orto a former officer or his heirs to compel the delivery ofthe papers and effects ofthe office to his successor." Mandamus, codified in La. C. C. P. art. 3862, et seq., 

### is an extraordinary 

## remedy, to be applied where ordinary means fail to afford adequate relief.Hoag v. State, 2004-0857 ( La. 12/ 1/ 04), 889 So.2d 1019, 1023. The supreme court has 

### routinely held that the only circumstances underwhich courts may cause a writ of mandamus to issue is where the actions soughtto be performed bythe public officer are purely ministerial in nature. Id. A ministerial duty, the performance ofwhich 

### may be required ofthe head of a department byjudicial process, is one in which 

## nothing is leftto discretion. Id.A ministerial duty is a simple, definite duty arising under conditions admitted or proved to exist and imposed by law. Id. at 1024; L. Indus., LLC v. Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll.,

### 2018- 1756 (La.App. 1st Cir.3/2/20), 300 So.3d 21, 26-27, writ denied, 2020- 00745 ( La. 10/6/20), 302 So.3d 515. 

### An appellate court reviews atrial court's judgment denying a writ of mandamus under an abuse of discretion standard. Stevens Constr. & Design, 

### L.L.C. v. St. Tammany Fire Prot. Dist. No. 1, 2019-0955 ( La. App. 1st Cir. 7/ 8/20), 

### 308 So.3d 724, 731, writ denied, 2020-00990 (La. 11/ 4/20), 303 So.3d 652. 

### A trial court's findings offact in a mandamus proceeding are subject to a manifest

error standard of review. L. Indus., 

### LLC, 300 So.3d at 27. And where statutory interpretation is at issue, questions of law are reviewed under the de novo standard ofreview. Id.A mandamus never issues in doubtful cases. Wiginton v.Tangipahoa

9Par. Council, 2000- 1319 ( La. App. 1st Cir. 6/29/01), 790 So.2d 160, 163, writ

denied, 2001- 2541 ( La. 12/7/01), 803 So.2d 971. Accordingly, based on the undisputed facts presented, we conclude the district 

### court did not abuse its discretion in denying plaintiff's petition for a writ of mandamus. Based on the applicable law, there is no clear entitlement to mandamus 

### relief.There is no ministerial duty to be performed at this juncture by the recorder ofmortgages or conveyances. Ownership ofthe subject property is in question and 

### is being litigated in another proceeding. Therefore, Volkona has a remedy to have the ownership question decided as well as all other issues in the pending ordinary process proceeding. Moreover, Volkona has not established that the delay 

### occasioned by resolving the title dispute and ancillary ownership rights pursuant to the ordinary proceeding will cause injustice. Based on the pleadings, the issue ofwhether the 2008 tax sale is null was not 

### properly before the district court and the court's reasoning with respectto that issue was dictum; it was not part ofthe district court' s decretal language. Therefore, we decline to address that issue on appeal. CONCLUSION For these reasons, we affirm the district court' s judgment that denied Volkona' s petition for a writ ofmandamus. Appeal costs are assessed to Volkona. AFFIRMED.

10STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2021 CA 1228 VOLKANA CO/UNION BANK D/B/A US ASSETS, LLC VERSUS DOUG WELBORN, IN HIS CAPACITY AS THE CLERK OF COURT FOR THE PARISH OF EAST BATON ROUGE; LOUISIANA TAX COMMISSION; JAMES C. GEORGE AND LPI V, LLC

GUIDRY, J., dissents and assigns reasons. GUIDRY, J., dissenting. I respectfully disagree with the majority' s decision finding, pursuant to the 

### law in effect in 2008, that the district court did not abuse its discretion in denying plaintiff's petition for a writ of mandamus. On November 8, 2019, Volkona filed a 

### Petition for Writ ofMandamus, naming Doug Welborn, in his capacity as the East Baton Rouge Parish Clerk of Court, the Louisiana Tax Commission, James C. George, and LPI V, LLC as defendants. Volkona alleged it acquired the described property at an East Baton Rouge Parish tax sale in 2012 and that the tax sale 

### certificate was filed in the East Baton Rouge Parish records on July 24, 2012. 

### Volkana stated that it thereafter filed a Petition to Quiet Tax Title and Partition by Licitation with Demand for Reimbursement on May 17, 2016, naming all parties with a recorded interest in the property as defendants, including George. Volkona stated it filed a Notice ofLis Pendens in connection with the petition to quiettax title pursuant to La. R.S. 47:2266(C) in the East Baton Rouge Parish records on June 9, 2016. Louisiana Revised Statute 47:2266 provides, in pertinent part:

A. ( 1) 

### After expiration of the redemptive period, an acquiring person may institute an ordinary proceeding against the tax sale parties

1whose interests the petitioner seeks to be terminated. The petition shall



### contain a description ofthe property ... notice that the petitioner is the 

### holder oftax sale title to the property by virtue oftax sale ... and notice 

### thatthe title and full ownership in the property shall be conferred unless a proceeding to annul is instituted within six months after the date of service ofthe petition and citation.... C. The petitioner may file a notice of lis pendens with the recorder ofmortgages ofthe parish in which the property is located. A transfer, mortgage, lien, privilege, or other encumbrance filed after the 

### filing of the notice of lis pendens shall not affect the property. The recorder of mortgages or the recorder of conveyances shall cancel, erase, terminate, or release the acts upon request of the petitioner. Emphasis added.] A writ of mandamus may be directed to a public officer to compel the performance ofa ministerial duty required by law. La. C.C.P. art. 3863. Mandamus 

### lies only when a public official refuses to perform a duty the law clearly states he must perform. Acadian Ambulance Service, Inc. v. Parish ofEast Baton Rouge, 97- 2119, p. 7 ( La. App. 1st Cir. 11/ 6/98), 722 So. 2d 317, 322, writ denied, 98- 2995 La. 12/9/ 98), 729 So. 2d 583. The critical element necessary for the issuance of 

### mandamus is that the public official to whom the writ is directed may exercise no element ofdiscretion when complying. Stevens Construction & Design, LLC v. St. Tammany Fire Protection District No. 1, 19-0955, p. 9 ( La. App. 1st Cir. 7/8/20), 308 So. 3d 724, 731. 

### In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of 

### duty on the face ofthe statute and the ministerial character ofthe duty he is charged

to perform. 

### Bonvillian v. Department ofInsurance, 04-0332, p. 3 ( La.App. 1 st Cir. 2/ 16/05), 906 So. 2d 596, 598. An appellate court reviews a trial court' s judgment denying a writ of mandamus under an abuse of discretion standard. Stevens Construction & Design, LLC, 19- 0955 at p. 9, 308 so. 3d at 731. In the instant case, in support of its request for mandamus, Volkona submitted 

### a copy ofthe tax sale certificate whereby it acquired the subject property along with 

### proof of its filing of a Petition to Quiet Tax Title and Partition by Licitation with

2

## Demand forReimbursement, naming Georgeas oneofthe defendants,and itsfiling

of a notice of lis pendens in the East Baton Rouge Parish records. Additionally, 

### Volkona submitted copies ofthe quit claim deed and cancellation filed in the East Baton Rouge Parish records afterVolkona filed its notice oflis pendens. Louisiana Revised Statute 47:2266(C) unambiguously provides that a 

## petitioner in a quiet title action may file a notice of lis pendens, any transfer or encumbrance filed after the filing ofthe notice of lis pendens shall not affect the property, and the recorder of mortgages or recorder of conveyances shall cancel, 

### erase,terminate, or release such acts filed afterthe filing ofthe notice oflis pendens upon request of the petitioner. According to the plain language ofthe statute, the 

### recorder of mortgages or conveyances has a clear duty to perform the requested action upon request ofthe petitioner in a quiet title action and there is no element of discretion. 

## Therefore, becausethe onlytaxsale allegedto be atissue byVolkona in seeking mandamus isthe 2012 tax sale bywhich it acquired its interest inthe subject property,the trial court abused its discretion in denying Volkona's request for awrit

of mandamus.

3