author: HUGHES, J. GUIDRY, J.,

text:
    Rose Manale McCANN v. Walter Lester McCANN.
    No. 2010 CW 1896 R.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 5, 2011.

      Amy E. Counce, Baton Rouge, LA, for Plaintiff/Respondent Rose Manale McCann.
    Charles A. Schutte, Jr., Baton Rouge, LA, for Defendant/Relator Peggy Blackwell, Testamentary Executrix of the Succession of Walter Lester McCann.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

12This is an application for supervisory review of a judgment of The Family Court for East Baton Rouge Parish (“Family Court”), in an action for partition of community property, denying an exception pleading the objection of lack of subject matter jurisdiction and requesting a transfer of the matter to the Nineteenth Judicial District Court (“19th JDC”), urged by the succession representative of the deceased former spouse/defendant. For the reasons that follow, we deny the writ.

FACTS AND PROCEDURAL HISTORY

After fifty-two years of marriage, on May 29, 2009, Rose Manale McCann filed a petition for divorce from her husband, Walter Lester McCann, in the Family Court. Thereafter, on August 17, 2009, Ms. McCann filed a petition for partition of community property in the same suit. On August 31, 2009 a judgment was signed in the suit decreeing a separation of property, pursuant to LSA-C.C. art. 2874(C), and terminating the community of acquets and gains as of May 29, 2009. A judgment of divorce was later signed on January 13, 2010, leaving the identification, valuation, management, and partition of the community property as the only issues in the case.

Over the course of the partition litigation, numerous preliminary matters were raised. In her August 17, 2009 petition for partition, Ms. McCann requested the court appoint experts (“a Special Master, CPA, or Real Estate Professional”) to assist in the partition litigation. Over Mr. IsMcCann’s opposition, and after a November 17, 2009 hearing, the Family Court appointed a real estate expert to inventory and value the real estate held by the community and ordered the parties to submit names from which the court would choose a financial expert “to value the remainder of the property, trace the income stream, oversee [the real estate expert] and the valuation of the real estate, identify any assets, and evaluate and assess the pending [m]otions of the parties.” The expert was appointed on February 3, 2010. Both parties filed motions seeking the exclusive use of the former matrimonial domicile. On April 20, 2010 Ms. McCann sought injunctive relief concerning the contents of one or more safety deposit boxes held by Mr. McCann, asked the court to order Mr. McCann to restore her Internet access to a community business checking account, and alleged that Mr. McCann was engaging in a course of conduct designed to control all of the community assets and to prevent her from monitoring, acquiring information concerning, and inhibiting her ability to inventory community assets. A consent judgment was signed on May 18, 2010, authorizing the court-appointed financial expert to inventory safety deposit boxes held by Mr. McCann and thereafter to furnish copies to the court and the parties. Over the course of the proceeding, Ms. McCann filed several motions for contempt against Mr. McCann, alleging he had violated the court’s initial order prohibiting the parties from alienating, disposing of, or encumbering community property pending partition. On June 16, 2010 Ms. McCann filed a “Motion to Appoint Independent Third Party Professional to Manage the Community Owned Business and Investment Assets, for Injunctive Relief, and for Division of Monies in Community Account,” alleging that Mr. McCann had been hospitalized and was no longer capable of managing the | community businesses and assets and that over $2,000,000 was on deposit at one bank, exceeding the FDIC insured level of $250,000.

On June 30, 2010 a “Notice of Filing of Succession” was filed in the Family Court suit, stating that Mr. McCann had died on June 27, 2010, and that his succession had been opened in the 19th JDC, under Probate Number 91,681. On July 8, 2010 Ms. McCann filed a motion to substitute the succession executrix, Peggy Blackwell (the “decedent’s daughter”), as the party defendant in the partition proceeding and asking the court to establish a case management schedule, to include the fixing of deadlines for the filing of detailed descriptive lists and other matters. On July 16, 2010 a consent judgment was signed by counsel for the parties agreeing: that Ms. Blackwell would write two checks on the “Fidelity” community account, one in the amount of $850,000 to Ms. McCann and one in the amount of $850,000 to Walter Lester McCann; that the remainder of the funds would be administered by the financial expert previously appointed by the court; that the real estate expert previously appointed by the court would “run the real estate business” of the parties, with the assistance of “Karen Harvey,” meet with and regularly report to Peggy Blackwell and Rocky McCann; and that the financial expert would recommend a “financial advisor expert ... to advise the parties regarding community investment decisions, if necessary.”

On July 23, 2010 Peggy Blackwell filed a “Declinatory Exception of Lack of Subject Matter Jurisdiction and Motion to Transfer,” seeking to have the partition action transferred to the 19th JDC. The Family Court overruled the exception, denied the motion to transfer, and signed a judgment on September 14, 2010 substituting Ms. Blackwell, in her capacity as executrix for the succession, into the partition action as the defendant, in place of the deceased Mr. McCann. Ms. Blackwell then filed a writ _[¿application with this court, contesting the Family Court’s ruling. Her application was denied. See McCann v. Blackwell, 2010-1896 (La.App. 1 Cir. 1/7/11) (unpublished). However, the Louisiana Supreme Court granted Ms. Blackwell’s writ application and remanded the matter to this court for “briefing, argument and full opinion.” See McCann v. Blackwell, 2011-0244 (La.4/1/11), 60 So.3d 1240. On remand, Ms. Blackwell asserts that the Family Court erred in denying her exception of lack of subject matter jurisdiction and motion to transfer the case to the 19th JDC, in substituting her as the defendant in the partition proceeding, and in determining that LSA-R.S. 9:2801 is applicable in the partition action.

LAW AND ANALYSIS

Jurisdiction of the Family Court

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. LSA-C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. LSA-C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. LSA-C.C.P. art. 3.

The district courts have general original jurisdiction over all civil matters, except the following:

1. Actions arising under federal law in which Congress has granted exclusive original jurisdiction to the federal courts or agencies;
|fi2. Disciplinary proceedings against attorneys, since the exclusive original jurisdiction is vested in the Supreme Court of Louisiana;
3. Matters in which original jurisdiction is validly vested in an administrative agency;
4. Those family and juvenile matters in which exclusive jurisdiction has been vested in family or juvenile courts.

Frank L. Maraist, 1 La. Civil Law Treatise, “Civil Procedure,” § 2:2 (emphasis added). See also LSA-Const. Art. V, § 16(A). Except in the enumerated cases in which the district courts have exclusive jurisdiction, the Legislature may vest limited jurisdiction, concurrent with that of the district courts, in trial courts of limited jurisdiction. The principal trial courts of limited jurisdiction are city, parish, juvenile, family, and justice of the peace courts. Maraist, at § 2:2. See also LSA-Const. Art. V, § 15(A).

17Juvenile and family courts shall have jurisdiction as provided by law, notwithstanding any contrary provision of LSA-Const. Art. V, § 16. See LSA-Const. Art. V, § 18. In Welborn v. 19th Judicial District Court, the supreme court noted that the Louisiana Constitution allows the legislature to divest the district court of jurisdiction in certain types of matters. By giving effect to the “notwithstanding” clause of Section 18 and its specific reference to Section 16, the legislature is empowered to divest district court of certain jurisdiction and vest that jurisdiction exclusively in a specialized family or juvenile court. See Welborn v. 19th Judicial District Court, 2007-1087, pp. 12-13 (La.1/16/08), 974 So.2d 1, 9.

Louisiana Revised Statute 13:1401 is the enabling statute for Article V, Section 18. Welborn v. 19th Judicial District Court, 2007-1087 at p. 6, 974 So.2d at 5. Louisiana Revised Statute 13:1401, at all times pertinent to the instant suit, provided:

A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
(1) All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support, and custody and visitation of children, as well as of all matters incidental to any of the foreyoing proceedings, including •but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees in judgments of divorce, the cumulation of and rendering execu-tory of spousal and child support, the issuance of writs of fieri facias and garnishment under judgments of the court for spousal and child support and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge.
|s(2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
(b) All actions for the termination or modification of a matrimonial regime.
(c) All actions for the settlement and enforcement of claims arising fi'om matrimonial regimes or the establishment thereof.
(d) All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection.
(3) All proceedings for writs of habeas corpus for the determination and enforcement of rights to the custody of minors or for the release of any person in actual custody in any case of which the family court has original jurisdiction.
B. The family court for the parish of East Baton Rouge has all such additional jurisdiction, power, and authority now or hereafter provided by law.

(Emphasis added.) Also applicable in this case is LSA-R.S. 9:2801(A), the basis for the instant suit filed by Ms. McCann, which states in pertinent part:

When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding ... [to] partition the community. ...

(Emphasis added.)

l9Clearly, at the time that Ms. McCann filed her petition for partition of community property, naming Mr. McCann as the defendant, the Family Court had subject matter jurisdiction in accordance with LSA-R.S. 9:2801(A) and LSA-R.S. 13:1401, as the matter was between spouses who failed to agree regarding the partition of community property. The question then became whether the Family Court lost its subject matter jurisdiction by virtue of the subsequent death of one party in the case before the court.

Louisiana Code of Civil Procedure Article 428 speaks to this issue, providing: “An action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal.” While an action for divorce may be strictly personal, the resolution of property interests is not strictly personal. See Larocca v. Larocca, 597 So.2d 1000 (La.1992) (holding that the death of a party/spouse did not result in the abatement of a divorce action in which an ancillary claim involving a property interest had been appended). See also LSA-C.C. arts. 1765 and 1766.

|inAn action must be instituted by a proper party. Thereafter, the substitution rules (LSA-C.C.P. art. 801 et seq.) apply when there is a change in a proper party during the course of a proceeding. The most frequent changes in proper party result from the death of a litigant or the election or appointment of a new public officeholder. See Maraist, at § 4:13.

Louisiana Code of Civil Procedure Article 801 provides:

When a party dies during the pen-dency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.
As used in Articles 801 through 804, “legal successor” means:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased’s succession is not under administration therein.

Further, on the ex parte written motion of any other party, supported by an affidavit of the truth of the facts alleged, the court may order the issuance of a summons to the legal successor to appear and substitute himself for the deceased party. LSA-C.C.P. art. 802. Additionally, LSA-C.C.P. art. 734 provides:

Except as otherwise provided by law, including but not limited to Articles 2641 and 2674, the succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration. The heirs or legatees of the deceased, whether present or represented in the state or not, need not be joined as parties, whether the action is personal, real, or mixed.

In the instant case, the McCanns’ divorce had been rendered on January 13, 2010, and the community of acquets and gains had been In terminated by the August 31, 2009 judgment of the court, retroactively effective back to the May 29, 2009 filing of Ms. McCann’s petition for divorce. Thereafter, the only issues remaining for trial in the suit were those related to the August 17, 2009 petition for partition of community property. While the action for divorce, alone, would have been a personal action, the action to divide the former community property and allocate debts was heritable, and thus not a personal action. See LSA-C.C. arts. 1765 and 1766. Accordingly, we conclude that issues related to the McCanns’ community property partition, brought in the Family Court, were within the exclusive subject matter jurisdiction of that court, and the executrix of Mr. McCann’s succession, Ms. Blackwell, was the proper person to be substituted into the suit after Mr. McCann’s demise. See LSA-C.C.P. arts. 428, 734, and 801-02.

We find the cases of Succession of Brown, 468 So.2d 794 (La.App. 1 Cir.1985), and In re Succession of Sessions, 2008-1683 (La.App. 1 Cir. 9/10/09), 23 So.3d 954, relied on by Ms. Blackwell on appeal, to be distinguishable and, therefore, not authoritative in this appeal. In both the Succession of Brown case and the In re Succession of Sessions case, the partition suit at issue was not filed by one spouse against the other, but rather each suit was originally filed against the succession representative after one spouse had died. Because each of the partition suits in those two cases was filed by a former spouse against a succession representative, LSA-R.S. 9:2801 was found to have been inapplicable, as not having been between two spouses. In contrast, the instant suit was filed by one spouse against another spouse, at a time when both were living, and, therefore, LSA-R.S. 9:2801 was applicable when the suit was filed and continues to be applicable ]12when a proper party defendant is substituted pursuant to LSA-C.C.P. art. 801 et seq.

We also reject Ms. Blackwell’s suggestion that the Family Court has jurisdiction only over spouses, as the Louisiana Supreme Court has rejected that proposition. See Spinosa v. Spinosa, 2005-1935 (La.7/6/06), 934 So.2d 35, wherein the supreme court held that, under the authority of LSA-R.S. 13:1401(A)(2), the Family Court had jurisdiction over a trust, into which it was asserted that the former husband had fraudulently diverted community funds without his former wife’s permission, in order to resolve conflicts over the classification of assets held by the trust. Further, we note that, in domestic proceedings, the supreme court has long established the doctrine of continuing jurisdiction, i.e., once a trial court obtains jurisdiction in a divorce or separation proceeding, it retains jurisdiction over any incidental matters connected with the original proceedings. See Golden v. Waterhouse, 41,889, p. 2 (La.App. 2 Cir. 2/28/07), 953 So.2d 927, 928 (citing Gowins v. Gowins, 466 So.2d 32, 35 (La.1985)).

Under the foregoing precepts, we conclude the Family Court continued to have jurisdiction over the 2009 partition proceeding, after the 2010 death of one of the party spouses, and had the authority to order the succession representative to be substituted in the place of the deceased spouse in the suit.

CONCLUSION

For the reasons stated, the writ is denied. All costs of this matter are to borne by Peggy Blackwell, as Executrix for the Succession of Walter Lester McCann.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

lU respectfully disagree with the majority’s finding that the Family Court for East Baton Rouge has jurisdiction over the partition proceeding filed in 2009, after the 2010 death of one of the party spouses. The present matter is an action for partition of community property. Accordingly, La. R.S. 13:1401(A)(2)(a) is applicable to the action, not La. R.S. 13:1401(A)(2)(c). The Family Court for East Baton Rouge Parish is a court of limited jurisdiction, with jurisdiction over partition actions between “spouses and former spouses” only. Because the partition of property in the present matter is no longer between a spouse and former spouse, the Family court for East Baton Rouge Parish lacks subject matter jurisdiction over the property partition between Rose McCann and the succession representative of the deceased former spouse/defendant.

      . Allegedly, some $25,000,000 in community property was at issue in the partition, though detailed descriptive lists do not appear in the record on appeal.

      . Prior to its amendment by 2010 La. Acts, No. 603, § 1, effective June 25, 2010, LSA-C.C. art. 2374(C) stated: “When a petition for divorce has been filed, either spouse may obtain a judgment decreeing separation of property by a rule to show cause and upon proof that the spouses have lived separate and apart without reconciliation for at least thirty days from the date of, or prior to, the filing of the petition for divorce and have not reconciled."

      .Louisiana Constitution Article V, § 16(A) provides:
      Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.

      (Emphasis added.)

      . Louisiana Constitution Article V, § 15(A) provides:
      Court Retention; Trial Courts of Limited Jurisdiction. The district, family, juvenile, parish, city, and magistrate courts existing on the effective date of this constitution are retained. Subject to the limitations in Sections 16 and 21 of this Article, the legislature by law may abolish or merge trial courts of limited or specialized jurisdiction. The legislature by law may establish trial courts of limited jurisdiction with parish-wide territorial jurisdiction and subject matter jurisdiction which shall be uniform throughout the state. Effective January 1, 2007, the legislature by law may establish new judgeships for district courts and establish the new divisions with limited or specialized jurisdiction within the territorial jurisdiction of the district court and subject matter jurisdiction over family or juvenile matters as provided by law. The office of city marshal is continued until the city court he serves is abolished.

      . All references herein to LSA-R.S. 13:1401 are to the statute as it was prior to its amendment by 2010 La. Acts, No. 754, § 2, which added "and nonsupport,” following "spousal and child support,” in Section (A)(1). Pursuant to Section 5 of Act 754, the provisions of the Act became effective January 1, 2011.

      . We note that LSA-R.S. 13:1401 is applicable only to the Family Court, while LSA-R.S. 9:2801 is applicable to the Family Court as well as any district court other than the 19th JDC. We further note that whereas, in the Family Court, the subject matter jurisdiction granted is "exclusive,” as provided in LSA-R.S. 13:1401, when a district court assigns a particular section or division to be allotted all family cases, the entire district court nevertheless retains jurisdiction over family matters as well. See Carter v. Jones, 2007-297, pp. 5-6 (La.App. 3 Cir. 10/17/07), 967 So.2d 615, 620, writ denied, 2007-2234 (La.1/25/08), 973 So.2d 756, holding that a district court’s allotment of family and juvenile cases to a specified division did not unconstitutionally create a court of specific jurisdiction, did not violate LSA-Const. Art. V, § 16(A)'s grant of original jurisdiction to district courts over all civil matters, did not conflict with LSA-C.C.P art. 253.l’s provision that all pleadings shall be randomly assigned to a particular division of a court, and did not violate LSA-Const. Art. Ill, § 12(A)'s ban on special laws; rather, concluding that each judicial district constitutes a single court. See also Piper v. Olinde Hardware & Supply Company, Inc., 288 So.2d 626, 629 (La.1974); State ex rel. Guste v. Green, 94-1138 (La.App. 1 Cir. 6/23/95), 657 So.2d 610, 622.

      . The Comments to Article 428 discuss this principle from a historical perspective and recognize that under prior law (Article 21 of the 1870 Code of Practice) actions did not abate after answer had been filed, but that the rule was changed; currently, "the line of demarcation is the institution of suit.” (Emphasis added.) It is now recognized that a party’s heirs are substituted into an existing action after his death, except when the action was "strictly personal” to the deceased party. See LSA-C.C.P. art. 428, 1960 Revision Comments (b) and (c).

      . These articles provide:
      Art. 1765. Heritable obligation
      An obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor.
      Every obligation is deemed heritable as to all parties, except when the contrary results from the terms or from the nature of the contract.
      A heritable obligation is also transferable between living persons.
      Art. 1766. Strictly personal obligation
      An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor.
      When the performance requires the special skill or qualification of the obligor, the obligation is presumed to be strictly personal on the part of the obligor. All obligations to perform personal services are presumed to be strictly personal on the part of the obligor.
      We note that in her exception as to subject matter jurisdiction, filed in the Family Court, Ms. Blackwell acknowledges that she is "authorized to represent the Succession in pending litigation.”


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    Robert J. JEMISON, II v. Wanda G. TIMPTON.
    No. 2011-CA-0644.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 19, 2011.

      Nancy K. Durant, Metairie, LA, for Plaintiff/Appellee.
    Carol L. Haynes, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| (Wanda G. Timpton appeals a judgment whereby the trial court granted her ex-husband and father of their children, sole custody of the two girls. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Wanda G. Timpton and Robert J. Jemi-son are the parents of two minor daughters, Robrielle, approximately 15, and Rhaina, approximately 12, at the time of the subject hearing. Since the parties filed for divorce in 1999, the record reveals that they have been combative on every front from property issues to the welfare of the children. To fully understand the degree of contentiousness, it is necessary to detail the litigation history.

The first judgment on the issue of custody and child support was rendered in November 1999. The parties were awarded the joint custody of the children, with Dr. Timpton being named the primary domiciliary parent. Mr. Jemison was awarded visitation; however, no specific schedule was set out in the judgment.

li>In November 2004, Mr. Jemison moved to modify custody and child support. The parties were ordered to submit to mental health evaluations prior to judgment. There is nothing in the record to indicate that the evaluations ever took place. However, the record does indicate that in January 2005, Dr. Timpton was held in contempt for violating a temporary restraining order, refusing to sign a consent judgment , and failing to abide by an interim visitation order. Also, the judgment ordered Dr. Timpton to immediately return the children to Louisiana, suspended Dr. Timpton’s visitation, gave Mr. Jemison interim sole custody, and ordered that Dr. Timpton be arrested for issues related to community property. A mental health evaluation was ordered again.

In November 2006, Mr. Jemison filed numerous rules related to both community property and the children. The custody and support issues were continued until a mental health evaluation was completed.

The parties entered into a consent judgment in July 2007, whereby Dr. Timpton would have supervised weekend visitation at her mother’s when she was in town. It is apparent from a February 2009 ruling of the court that there were issues with Mr. Jemison complying with the visitation order because he was ordered to deliver the children to their maternal grandmother’s home for visitation with their mother, Dr. Timpton.

|3The record contains a judgment signed by Judge Cates on March 23, 2009, relative to a hearing held on October 29, 2008. The judgment orders interim child support to be paid by Dr. Timpton, grants Mr. Jemison’s rule for final child support, and sets Dr. Timpton’s percentage of the child support obligation. On March 30, 2009, Judge Bruno signed an interim consent judgment relative to a hearing on March 5, 2009. The judgment ordered the parties to share custody of the children, ordered Dr. Timpton to pay all school expenses for Robrielle, and one half of the fees for Dr. Brockman, a child psychologist who was treating both children. Mr. Jemison was ordered to pay all school expenses for Rhaina, to pay half of Dr. Brockman’s fees, and to maintain health insurance for the children. A permanent injunction was granted prohibiting Dr. Timpton or any of her agents from harassing Mr. Jemison at home or work.

On April 9, 2009, Mr. Jemison filed a rule for contempt alleging that Dr. Timp-ton had failed to pay the tuition for Robr-ielle or half of the psychologist’s bill. This rule and others filed since the last hearing were heard on May 18, 2009. Relative to the children, the trial court ordered Dr. Timpton to pay Mr. Jemison monies owed for Robrielle’s tuition and Rhaina’s psychologist. The court held Dr. Timpton in contempt, but suspended the sentence. In an apparent attempt to protect Mr. Jemi-son’s credit (he had signed the loan documents for Robrielle’s tuition), the trial court ordered Dr. Timpton to have the tuition loan documents transferred into her name. Lastly, because the situation between the parties had ^deteriorated to such a degree, the trial court ordered that the transfer of custody take place by taxi cab.

In July of 2009, the trial court again entertained numerous rules filed by both sides. The trial court held Mr. Jemison in contempt for failure to pay past due child support and spousal support, and applied a credit to the amount owed. His sentence was suspended. The court again held Dr. Timpton in contempt for failure to pay child support and other expenses previously ordered to be paid by her. The court suspended her sentence also.

After another hearing on rules held on December 9-10, 2009, the trial court again ordered shared custody, with Mr. Jemison designated as the domiciliary parent. A parenting coordinator was appointed, whose costs were to be split by the parties. Dr. Timpton was again held in contempt for failure to comply with a previous order of the court relative to the community property, and was ordered to perform community service. The court ordered the parties to submit proposed child support judgments. Once submitted, the court issued its ruling and found that Dr. Timpton was voluntarily underemployed. It ordered her to pay Mr. Jemison support, ordered Mr. Jemison to maintain health insurance, and ruled that any extraordinary or uncovered medical expenses shall be paid on a pro rata basis, Dr. Timpton’s share set at 56% and Mr. Jemison’s at 44%. Dr. Timpton was to pay Robrielle’s tuition and all related school expenses, and Mr. Jemison would be responsible for Rhaina. The parties would split 50/50 any costs for tutoring or mutually agreed upon extracurricular activities.

|fiOn October 18, 2010, another hearing was had on the parties’ competing rules. The trial court rendered judgment on October 22, 2010, denying Dr. Timpton’s rule to reduce child support, granting Mr. Je-mison $9,112.35, and denying Mr. Jemi-son’s rule to modify visitation. Mr. Jemi-son filed a rule to amend the judgment alleging that the trial court failed to include in its judgment of October 22 all of the items ruled on at the hearing. The trial court granted relief, amending the judgment to include holding Dr. Timpton in contempt for failure to pay child support, ordering her to serve community service, and to pay attorney’s fees and court costs. Dr. Timpton additionally was found in contempt for failure to pay her portion of bills incurred on behalf of the children and was sentenced to additional community service. Lastly, there was an error in calculation of the amount awarded Mr. Je-mison. The trial court amended the judgment to reflect the correct amount ($10,-619.45), and made the award executory. In connection with the judgment, the trial court also signed an income assignment order directed to Dr. Timpton’s employer with Mr. Jemison as payee.

On February 8, 2011, the trial court rendered judgment on Mr. Jemison’s rule to modify custody and Dr. Timpton’s rule requesting a conference between Robrielle and the court. The trial court denied the request for a conference, and granted Mr. Jemison sole custody of the two girls, with Dr. Timpton having 1 ¿visitation every other weekend. The court relieved the formerly appointed parenting coordinator of her duties.

This appeal followed.

DISCUSSION:

Dr. Timpton raises numerous assignments of error; the first three being related to proper notice and service of Mr. Jemison’s rules for change of custody and mental health evaluations. Dr. Timpton argues that the rules were served upon her counsel by Federal Express and not by the Orleans Parish Civil Sheriff as required by jurisprudence. Further, she argues that the rules were not filed fifteen days before the hearing as required by the Civil District Court’s local rules.

Mr. Jemison counters that the proper vehicle to challenge service of the pleadings was by filing an exception of insufficiency of service, which according to La. Code Civ. Proc. art. 925, is waived unless pleaded therein.

Our review of the record indicates that counsel for Dr. Timpton did not properly challenge the service of the rules in question, nor did she request a stay of the trial court proceedings to seek supervisory review by this Court. Rather, counsel participated fully in the hearing on the motions, both those filed on Dr. Timpton’s behalf and those filed on behalf of Mr. Jemison.

Accordingly, the first three assignments of error have no merit.

The remaining assignments of error are relative to the custody of the children. The Supreme Court has affirmed numerous times the principle that the best interest of the child is paramount in making a decision concerning custody. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), and its progeny. The burden of proof for a change of custody previously established by a considered decree is a heavy burden. The party seeking the change must prove that a change of circumstances has occurred materially affecting the welfare of the child and that the continued custody is so deleterious to the child as to justify modification of the current custody decree. Bergeron, 492 So.2d at 1194.

In her fourth assignment of error, Dr. Timpton argues that the trial court erred in not specifically stating in its reasons for judgment whether it determined if she had met the burden of proving a change of circumstances as required by Bergeron, supra.

She alleges that the change of circumstances which would warrant the trial court awarding Dr. Timpton sole custody of Robrielle was an alleged act of violence committed by Mr. Jemison against Robr-ielle. This Court has carefully and thoroughly read the transcript of the hearing on this rule and finds no error in the ruling of the trial court.

The trial court heard the testimony of Dr. Timpton, Dr. Timpton’s older daughter from a previous relationship, Mr. Jemison, and the investigator from the Office of Child Services relative to the alleged incident. It is clear that the trial court found no such incident occurred. Rather, the trial court found and stated in its reasons that Dr. Timpton was undermining Mr. Jemison’s attempts to discipline Robrielle at every turn. For example, Mr. Jemison had taken away from Robrielle a cell phone her mother had given her because she was using it to send Iewd[smessages to school mates. Robrielle rebelled by calling the police and alleging that her father had beaten her. The police investigated the incident and referred it to Child Services, which found no basis for the complaint. Based on the court’s detailed reasons for judgment, it is evident that the trial court did not find Dr. Timpton had sufficiently proven any change in circumstances sufficient to grant her sole custody of Robrielle.

The fifth assignment of error is that the trial court erred in finding that Mr. Jemison proved a change of circumstances sufficient to modify custody. Again, this Court’s reading of the record convinces it that the trial court took the time to familiarize itself with the history of this case, carefully listened to and asked questions of the witnesses, and on numerous occasions commented on the need to hear from every witness involved because of the seriousness of the decision to be made.

In its reasons for judgment, the trial court stated:

This court notes that Dr. Timpton has a long history of challenging the decisions of educators and mental health professionals in their care and treatment of her daughters. In addition to this pattern of resistance being noted by two mental health professionals, Judge Cates and this court noted the same.... Her reaction to any conflict her daughters are experiencing has been to either change schools or change mental health providers. Dr. Timpton has also attempted to create conflict between her daughters and their father.
This court finds that the Bergeron, supra, burden has been met by Mr. Jemi-son. This court believes that there needs to be one person predominately deciding what is in the best interest of these two at risk children. Although Mr. Jemison was designated primary domiciliary parent, this scheme has been a failure. Dr. Timpton has [ ^undermined his authority. There needs to be a level of autonomy vested in one parent for these girls to thrive.

We find the trial court carefully weighed the record evidence and made a ruling based on the best interest of the children. See La. Civ.Code arts. 131, 134. This assignment of error has no merit.

In her sixth and seventh assignments of error, Dr. Timpton argues that the trial court erred in attributing record testimony to her, when in fact the testimony was given by the children’s psychologist in response to questions by both counsel and the court. Counsel for Dr. Timpton goes so far as to suggest that the trial judge was leading the psychologist by asking suggestive questions.

Our reading of the record reveals no such pattern of leading questions. What is clear is that the trial court made a concerted effort to hear both sides of the issue. For example, the court refused to rely upon a report from the children’s psychologist, but, rather, continued the hearing to accommodate the psychologist’s schedule and allow her to give live testimony. The judge repeatedly stated on the record that these issues were too important to make a ruling without considering all relevant evidence. We find the trial court weighed the evidence fairly, always with the children’s best interest in mind.

The eighth assignment of error is that the trial court negatively imputed to the mother a pleading caption to infer that Dr. Timpton only wanted sole custody of Robrielle, and not Rhaina. Counsel for Dr. Timpton apologizes in her brief for causing this inference, explaining that she has not practiced domestic law in twenty years. The reason for entitling the pleading was to call attention to the one child who had suffered violence at the hands of her father. The title should not have |10been construed to mean that Dr. Timp-ton would not want sole custody of both children.

As stated previously, the evidence presented to the trial court and reviewed by this Court indicates that there was no substance to Robrielle’s complaints of abuse. Mr. Jemison admitted to “spanking” Robrielle by striking her with his belt below her knees. There was no evidence of bruises or other marks on Robr-ielle introduced into the record. We note that there is a picture of an arm with what looks like scratches on it in the record; however, there is no way to identify whose arm it is or even when the picture was taken. Robrielle’s face cannot be seen in the picture. On the other hand, the investigator from Child Services personally visited with and examined Robr-ielle and concluded there was no basis for her complaint. Thus, we cannot say that the trial court made faulty assumptions concerning Dr. Timpton’s intentions based on the title of a pleading. To the contrary, the record is replete with evidence to support the trial court’s ruling.

In her last assignment of error, Dr. Timpton argues that the trial court erred in refusing to allow her counsel to question witnesses about events occurring prior to the rendering of a previous judgment. She contends that she was attempting to establish Mr. Jemison’s propensity for violence.

The admission of evidence is within the discretion of the trial court. Munch v. Backer, 10-1544, p. 3 (La.App. 4 Cir. 3/23/11), 63 So.3d 181, 185. The record indicates that Judge Bruno, the third judge to hear this case since the petition for divorce was filed in 1999, reviewed the entire record from its inception. Indeed, as part of a prior ruling, he chronicled the history of the case indicating to this Court that he was aware of every step taken by each side over the years. His reasons for judgment given in conjunction with the judgment on appeal indicate that he [ nstruggled with the decision to restrict Dr. Timpton’s custody and visitation, but felt compelled to do so in the best interest of Robrielle and Rhaina. We find no error in the trial court’s decision to disallow a rehashing of prior events.

CONCLUSION:

We find the trial court carefully weighed the evidence before it and was well within its discretion to award sole custody of the two children to Mr. Jemison. We affirm the judgment of the trial court in its entirety.

AFFIRMED

      . It is not clear from the record what judgment Dr. Timpton refused to sign.

      . Again, this Court is unable to determine the background for these rulings from the record on appeal.

      . The judgment does not detail the reason for the award; however, Mr. Jemison filed a rule for contempt for Dr. Timpton’s failure to pay child support and her portion of expenses incurred for the children.


author: KUHN, J. McCLENDON, J., WELCH, J., HIGGINBOTHAM, J.,

text:
    Jerri G. SMITKO v. GULF SOUTH SHRIMP, INC.
    No. 2010 CA 0531.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 19, 2011.

      Kevin R. Tully, W. Nicholas Dietzen, IV, New Orleans, LA, for Plaintiff-Appellee, Dulac Dat, L.L.C., Successor-in-interest to Jerri G. Smitko.
    Robert V. McAnelly, Edna Ayliffe Lat-chem, Baton Rouge, LA, for Defendants-Appellants, Gulf South Shrimp, Inc. and Source Business and Industrial Development Company, L.L.C.
    Before KUHN, GUIDRY, McClendon, welch, and HIGGINBOTHAM, JJ.
   KUHN, J.

| pThis appeal considers whether a trial court erred in granting a summary judgment that confirmed and quieted the title of a tax purchaser where a former property owner was served with a petition to quiet tax title and citation but failed to either timely file a petition to annul the tax sale or file a reconventional demand that prayed to annul the tax sale. We affirm because the former property owner did not institute a timely “proceeding to annul” as required by former La. R.S. 47:2228, and because appellants have not established that the manner in which the sale of the property was conducted deprived them of due process of law.

I. PROCEDURAL AND FACTUAL BACKGROUND

On June 25, 2003, Jerri G. Smitko acquired full ownership on three tracts of land by purchasing the subject properties at a sheriffs tax sale in Terrebonne IsParish. The tax deeds at issue were recorded in the mortgage and conveyance records of Terrebonne Parish on July 7, 2003. The tax sale listed the previous recorded owner of the land as Gulf South Shrimp, Inc. (“GSS”). During the three-year redemption period following recordation of the tax sale, GSS did not redeem the subject properties.

More than three years after the tax deed was recorded, Smitko filed a petition to quiet tax title on November 16, 2006, pursuant to former La. R.S. 47:2228. Smitko’s petition named GSS as defendant and requested that a curator ad hoc be appointed to represent GSS or its assigns because the last known registered agent of GSS, Vincenzo Marsala, could not be located. Smitko prayed that if no proceeding to annul the tax sale was instituted within six months from 14the date of service of the petition that judgment be rendered in favor of Smitko, quieting and confirming her title in the property.

On December 11, 2006, the attorney ad hoc appointed to represent GSS’s interests accepted service of Smitko’s petition. On December 18, 2006, GSS, through its own retained counsel, filed an answer to the petition that generally denied the allegations of Smitko’s petition. GSS further alleged that no notice “was ever sent nor received of tax delinquency.” GSS’s answer prayed for the dismissal of Smitko’s petition.

On July 10, 2007, Source Business and Industrial Development Company, L.L.C. (“Source Bidco”), who claimed to be the holder of a recorded mortgage and security interest in the subject properties, filed a petition of intervention. Therein, Source Bidco united with GSS to resist Smitko’s demand to quiet title to the subject properties, claiming that the “sheriff failed to properly notify [GSS] ” of the tax sale. Source Bidco also identified other lienhold-ers and alleged that these lienholders also had not been notified of the tax sale. Other than admitting that the described tax sale had occurred, Source Bidco generally denied the allegations of the petition. Source Bidco claimed, however, that due to the lack of the proper notice having been sent to “all parties with an interest in the property,” the sale violated federal due process and is null and void. Source Bidco prayed for a judgment annulling the sale upon “the payment of the price and all taxes and costs ... and ten percent per annum interest ... to the ... tax sale purchaser.”

On August 10, 2007, Smitko sold, conveyed, and transferred all of her rights, title, and interest in the subject properties to Dulac Dat, L.L.C. (“Dulac Dat”). Soon after on August 15, 2007, Dulac Dat was formally substituted as the |r,proper party plaintiff. By order dated August 17, 2007, Dulac Dat was awarded possession of the subject properties. Thereafter, Dulac Dat filed an opposition to Source Bidco’s intervention in the form of a pleading captioned “Exceptions,” wherein it asserted that Source Bidco lacked procedural capacity, had no cause or right of action, and had no interest to institute the suit.

On April 24, 2008, almost a year-and-a half after GSS’s attorney ad hoc accepted service of Smitko’s petition, GSS filed a supplemental and amending answer, a re-conventional demand against Dulac Dat, and a third party demand against Jerry J. Larpenter, in his capacity as sheriff/e* of-ficio tax collector for Terrebonne Parish (“the Sheriff’ or “Sheriff Larpenter”). In a supplemental and amending answer and reconventional demand, GSS alleged for the first time that the tax sale was an “absolute nullity” on the alleged basis that it neither received any notices of the tax delinquencies from the sheriff nor did it receive any notices of the tax sales of its property. GSS further alleged that the tax sales were conducted by Sheriff Lar-penter on June 25, 2003, for the non-payment of the 2002 ad valorem property taxes, and the only notices sent by the Sheriffs office regarding non-payment of the 2002 taxes were notices purportedly sent to “[GSS], care of Source Bidco, 456 East Airport Avenue, Baton Rouge, Louisiana, which address was never the mailing address of [GSS].”

|fiGSS also asserted that on April 15, 2003, a monetary judgment was rendered in favor of Coastal Commerce Bank and recorded in the mortgage records of Ter-rebonne Parish and that the Internal Revenue Service filed a notice of federal tax lien in the mortgage records of Terre-bonne Parish. GSS claimed that the June 25, 2003 tax sales are null and void due to the Sheriffs failure to send notices to GSS as the record owner of the property, Coastal Commerce Bank as a known judicial mortgage holder, and the IRS as a lien holder. GSS asserted such lack of notice violates procedural due process rights. GSS further claimed that its action to nullify the tax sales was timely filed “on or about December 18, 2005 when the original answer was filed.” GSS prayed for a judgment annulling the tax sale as to each tract of the subject property and the return of GSS’s ownership with recognition of the judicial mortgage and federal tax lien.

Sheriff Larpenter answered GSS’s third-party demand, generally denying GSS’s claims. Dulac Dat responded to GSS’s reconventional demand by filing another pleading captioned, “Exceptions,” wherein it argued that GSS’s “citation was insufficient!;,] the action [was] barred by prescription and p[er]emption[,] ... [GSS had] no cause or right of action to proceed^ and] ... [GSS had used] improper cumulation of actions.”

On July 25, 2008, GSS filed a motion for summary judgment, maintaining there were no genuine issues of material fact that the tax sales of GSS’s property were “nullities” based on “various due process violations.” In support of the motion, GSS filed Sheriff Larpenter’s responses to its request for admission of |7facts, wherein Sheriff Larpenter admitted that the only notices relating to the subject properties that he sent regarding either tax delinquencies or scheduled tax sales were sent to the East Airport Avenue address in Baton Rouge, Louisiana. Further, Sheriff Larpenter admitted that he did not send any notice regarding property taxes owed, the delinquency, or scheduled tax sales to any mortgage or judicial lien holder, including First Louisiana Business & Industrial Development Corporation (“First Louisiana Bidco”) and Coastal Commerce Bank.

Additionally, GSS submitted an affidavit of one of its stockholders, J. Peyton Parker, Jr., who asserted he was familiar with GSS’s business affairs. Parker declared that GSS never maintained an office at the East Airport address nor did GSS ever list the East Airport address as its mailing or business address. Parker further stated that GSS was initially incorporated in Baton Rouge, but it had changed its address to Dulac, Louisiana in April 2000. Although GSS had obtained a loan from First Louisiana Bidco, Parker attested GSS had never done business at the office or address of Source Bidco nor had it ever appointed Source Bidco or its agent as an agent for service of process. Parker attested that GSS’s agent for service of process at the time of the tax sales affecting the subject properties was Vincenzo L. Marsala, with 7332 Grand Caillou Road, Dulac, Louisiana, 70353, as the address registered with the Louisiana Secretary of State. Parker’s affidavit further stated that GSS neither received any notices from the Sheriff of its 2002 property tax delinquencies nor did it ever receive notices of the scheduled sheriffs tax sales in June 2003.

|8On November 24, 2008, the trial court signed a judgment that denied as moot the peremptory exception raising the objections of no right of action and lack of procedural capacity to institute the suit filed by Dulac Dat. The trial court also denied GSS’s motion for summary judgment on the grounds that GSS did not timely institute a proceeding to annul the tax sales within six months from the date it was served with the petition as required by former La. R.S. 47:2228 and La. Const, art. 7, § 25(C).

In March 2009, Dulac Dat filed a motion for summary judgment, seeking an order quieting the titles to the property, urging primarily that GSS had failed to timely institute the appropriate proceeding to annul the tax sales. Dulac Dat maintained that GSS’s original answer did not constitute a reconventional demand that attacked the validity of the tax sale and that GSS’s amended answer with its reconven-tional demand was filed well after the statutory six-month limitation for attacking the sale due to nullity. Both GSS and Source Bidco opposed Dulac Dat’s motion on the basis that the Sheriff had not provided proper notice of the tax sales to either GSS or its creditors. By judgment dated May 13, 2009, the trial court granted Dulac Dat’s motion for summary judgment and granted judgment in its favor and against GSS and Source Bidco, thereby quieting the tax titles and declaring Dulac Dat as the sole and only owner of the subject properties, free from any encumbrances.

laGSS and Source Bidco have appealed this judgment, arguing that the trial court erred in granting Dulac Dat’s motion for summary judgment and in ordering the quieting of the tax titles in favor of Dulac Dat because the subject properties were sold at the tax sale without written notice to the recorded property owner and lien-holders. GSS and Source Bidco urged that: 1) the tax sale was an absolute nullity because no notice was mailed to “all parties with an interest of public record” although the names and addresses were reasonably ascertainable; 2) an absolute nullity can be attacked at anytime; 3) GSS’s answer that was filed within six months of the filing of the petition to quiet tax title was sufficient to inform the tax purchaser of the constitutional defect of lack of notice; and 4) the allegations of the supplemental and amending answer, re-conventional demand and third party demand related back to the filing of the original answer.

II. ANALYSIS

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the movant, but once the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. See La. C.C.P. art. 966(C)(2). The nonmoving party may not rest on mere allegations or denials but must set forth specific facts that |inshow that a genuine issue of material fact remains. If the nonmoving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Davis v. People’s Benefit Life Ins. Co., 10-0194, p. 5 (La.App. 1st Cir.9/10/10), 47 So.3d 1033, 1035, writ denied, 10-2440 (La.12/17/10), 51 So.3d 11; see La. C.C.P. art. 966(C)(2).

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Davis, 10-0194 at p. 6, 47 So.3d at 1036. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Anderson v. State Farm Fire & Cas. Ins. Co., 10-0036, p. 4 (La.App. 1st Cir.7/16/10), 42 So.3d 1140, 1143.

Louisiana Constitution article 7, Section 25 provides, as follows, in pertinent part:

(A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs’ sales, in the manner provided for judicial sales.... A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.
| n(B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption.
(C) Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended.... (Emphasis added).

Consistent with La. Const, art. 7, § 25, former La. R.S. 47:2228 also prescribed that GSS had six months from the date it was served with Smitko’s petition to quiet title within which to file its proceeding to annul. Alternatively, the jurisprudence has recognized that GSS could have filed and served a reconventional demand within the six-month period to attack the validity of the tax sale. See Regina Lumber Co. v. Perkins, 175 La. 15, 17, 142 So. 785, 786 (1932); Fellman v. Kay, 147 La. 953, 963, 86 So. 406, 409-10 (1920). A separate proceeding is similarly required when attacking the nullity of a judgment. See La. C.C.P. art. 2004, Official Revision Comments-®.

The Fellman court addressed the second clause of article 233 of the Constitution of 1898 (a predecessor provision of La. Const, art. 7, § 25(C)), wherein the framers of that Constitution set out to create “public confidence in the validity of [tax titles].” Fellman, 147 La. at 965, 86 So. at 410. The framers adopted article 233 to put an end to the doubt and uncertainty surrounding and attaching to tax titles. Id. In Fellman, 147 La. at 963, 86 So. at 409-10, the court recognized:

It is plain that, when the tax purchaser avails himself of this proceeding [to quiet a tax title], he does not place at issue the validity vel non of his tax title; he simply invites assault thereon; and it is equally clear that if no action to annul be brought within six 11gmonths, the only judgment that the court is authorized to render is one quieting and confirming the title by rendering a judgment against the former owner, forever barring and prohibiting him from assailing the tax deed, for the sole reason that he has not brought his action to annul within the six months allowed therefor. (Emphasis added).

And quoting Ashley Co. v. Bradford, 109 La. 641, 653, 33 So. 634, 639 (1902), the Fellman court further explained:

The [six month] constitutional provision takes nothing away — neither the right nor the remedy. It merely limits the time within which the original owner must present his claim. It really affirms the existence of a remedy, but limits its operation. The negligent owner is cut off by limitation because he failed to prosecute the remedy limited.

Appellants argue that the six-month limitation should not be given effect here and that the sale is an absolute nullity. To declare a tax sale void without giving effect to the constitutional requirement that a proceeding be instituted within six months of service of the suit to quiet title would create a precarious title, effectively taking the property out of commerce. Without strict application of the constitutional time limits, no tax sale would ever be certain, and would create a chaotic result. Former La. R.S. 47:2228 is not ambiguous and must be enforced as written. The six-month constitutional limitation is a reasonable limitation imposed by this state under its sovereign powers. A state, within reasonable bounds, may limit the time for which its courts shall remain open for the adjustment of controversies. Fellman, 147 La. at 964, 86 So. at 410 (quoting Ashley Co., 109 La. at 653, 33 So. at 639.) Because GSS did not timely file a suit to annul or a reconventional demand placing the validity of the tax sale at issue, GSS’s claim of nullity was not properly preserved for consideration by the trial court or this court.

11sRaising a claim of nullity in an answer as a defense is not sufficient to comply with the constitutional and statutory requirement that “a proceeding to annul” the sale must be “instituted” within six months from the date of service of petition and citation of the petition to quiet and confirm the title. Under La. Const, art. 7, § 25(C), both an original petition and a reconventional demand require an answer and must be served on the adverse party. La. C.C.P. arts. 891, 1031, 1032, 1201 and 1312. If a pleading requires an appearance or answer, service by mail is not authorized, and sheriffs service is required. La. C.C.P. arts. 1312-14; see Avants v. Kennedy, 02-0830, p. 10 (La. App. 1st Cir.12/12/02), 837 So.2d 647, 654, writ denied, 03-0203 (La.4/4/03), 840 So.2d 1215. The constitutional and statutory use of the word “proceeding” is logically interpreted as requiring that GSS timely institute either a separate suit or assert its claim by reconventional demand, whereby Smitko, Dulac Dat’s predecessor in interest, would have received proper and timely service of the proceeding.

114GSS argues that the filing of its supplemental and amending answer and reconventional demand after the six-month period relates back to the date that it initially answered Smitko’s petition. The constitutional requirement that such a claim must be asserted, timely cannot be circumvented in this matter. See Naghi v. Brener, 08-2527, pp. 10-11 (La.6/26/09), 17 So.3d 919, 925-26. The “relation back” of a pleading cannot interfere with the running of a peremptive period, such as the six-month peremptive period set forth for the annulment of tax sales in La. Const. art. 7, § 25(C). The cause of action can not be resurrected by filing a late supplemental and amending answer. Louisiana has a long-standing policy to make certain and protect the title to immovable property. Harris v. Estate of Fuller, 532 So.2d 1367 (La.1988). This purpose is served by the strict application of the provisions of La. Const, art. 7, § 25 and former La. R.S. 47:2228.

Moreover, for the following reasons, even if a proceeding to annul had been timely instituted, appellants have not established the invalidity of the tax sale. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made. La. Const, art. 7, § 25(A); Lewis v. Succession of Johnson, 05-1192, p. 9 (La.4/4/06), 925 So.2d 1172, 1177. A party challenging the tax sale must offer evidence sufficient to rebut the presumption of regularity. Only if the presumption is sufficiently rebutted does it become the burden of the tax purchaser to go forward and prove that all requisites for a valid tax sale were complied with. Cressionnie v. Intrepid, Inc., 03-1714, p. 4 (La.App. 1st Cir.5/14/04), 879 So.2d 736, 739. Although Dulac Dat bore the initial burden, upon supporting its motion for summary judgment with the tax deed, the burden shifted to the appellants to produce factual support sufficient to establish that they would be able to satisfy |1fitheir evidentiary burden at trial, i.e., defendants were required to offer evidence sufficient to rebut the presumption of regularity. See La. C.C.P. art. 966(C)(2).

To meet this burden, appellants assert the tax sales violated due process. The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the states, from depriving any person of property without “due process of law.” In Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983), the United States Supreme Court held that the sale of property for nonpayment of taxes is an action that affects a property right protected by the Due Process Clause of the Fourteenth Amendment. Therefore, notice of the delinquency and pending tax sale must be sent by mail or other means certain to ensure actual notice if the party’s name and address are readily ascertainable. Id. Due process requires the government to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Dusenbery v. U.S., 534 U.S. 161, 168, 122 S.Ct. 694, 700, 151 L.Ed.2d 597 (2002); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The notice and opportunity that is required is that which is “appropriate to the nature of the case.” Jones v. Flowers, 547 U.S. 220, 223, 126 S.Ct. 1708, 1712, 164 L.Ed.2d 415 (2006).

However, due process does not require actual notice before the government may take property; the state must attempt to provide actual notice. Dusenbery, 534 U.S. at 170, 122 S.Ct. at 701. “As Mullane made clear, the Due Process Clause does not demand actual, successful notice, but it does require a reasonable | ifieffort to give notice.” Small v. U.S., 136 F.3d 1334, 1336 (D.C.Cir.1998). Procedural requirements must not “place impossible or impractical obstacles” on the government. Failure of notice in a specific case does not establish the inadequacy of the attempted notice. Jones, 547 U.S. at 231, 126 S.Ct. at 1717. The constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc. Id.

In Jones, the Supreme Court held that the notice of an impending tax sale, which was sent to the taxpayer by certified mail but was returned unclaimed, was insufficient to satisfy due process. The Court took into consideration that based on the “practicalities and peculiarities of the case,” the government knew that notice had been ineffective and required additional reasonable steps to effect notice, such as resending the notice by regular mail or by posting a notice on the front door of the residential property. However, the Court rebutted the taxpayers’ argument that the government should have searched for his new address in the phonebook when the notice was returned unclaimed, stating, “We do not believe the government was required to go this far.” Jones, 547 U.S. at 236, 126 S.Ct. at 1719.

At all times relevant to these proceedings, La. R.S. 47:2180 addressed the initial notice of delinquency that the tax collector was to provide to the taxpayer, as follows, in relevant part:

A(l)(a) On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have been assessed to him on immovable property, or to the record owner of the property for which |17the taxes are delinquent ..., written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein....
C. The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all unknown owners of assessed immovable property situated in his parish, and to nonresident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish ..., then such notice shall be given in the manner provided by law for judicial sales.... The collector shall certify on his tax rolls that he has published the notices, and the certificate on either roll shall make full proof thereof until disproved in a judicial proceeding.

In the matter before us, the Sheriff mailed notice to GSS c/o Source Bidco, at the East Airport Avenue, Baton Rouge, Louisiana address, and the Sheriff published the subsequent general notices in the newspaper as required by statute. GSS and Source Bidco failed to rebut the presumption of regularity that applies to tax adjudications. They did not establish that the tax rolls reflected an address for GSS other than the East Airport address. While the affidavits submitted by GSS’s shareholders established that GSS had received no actual notice, the affidavits failed to establish GSS’s whereabouts or that it had another viable address reasonably ascertainable by the Sheriff. GSS presented no evidence establishing that the Sheriff should have known that GSS’s mailing address was not the one to which the notice was sent or that the Sheriff had any reason to believe that GSS could not be reached at the address to which the notice was mailed. The Sheriff made a reasonable calculation to provide notice by sending the tax sale notice to |18the available address. No mail was returned to the Sheriff, so there was no new information or notice to the Sheriff that any additional steps needed to be taken to satisfy due process requirements. The Sheriff cannot be faulted for not taking additional steps to notify GSS based on the facts known to him. Jones, 547 U.S. at 234, 126 S.Ct. at 1718.

While the Sheriff arguably violated the notification requirements outlined in our own state statutes, by not sending the mailed notice by “certified mail,” that fact alone, however, does not itself mean that the Sheriff deprived GSS of procedural due process under the Fifth Amendment. See Tate v. Dist. of Columbia, 627 F.3d 904, 908 (D.C.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2886, 179 L.Ed.2d 1198 (2011). A statutory requirement that requires the use of certified mail arguably exceeds constitutional requirements. See Jones, 547 U.S. at 226, 126 S.Ct. at 1714. The Supreme Court recognized that “the use of certified mail might make actual notice less likely in some cases — the letter cannot be left like regalar mail to be examined at the end of the day, and it can only be retrieved from the post office for a specified period of time. Following up with regular mail might also increase the chances of actual notice.... ” Jones, 547 U.S. at 235, 126 S.Ct. at 1719. Further, the Supreme Court held that the tax collector is not obligated to perform “an open-ended search for a new address.” Jones, 547 U.S. at 236, 126 S.Ct. at 1719. Accordingly, the Sheriff was not required to make an open-ended inquiry to locate GSS. To require such an investigation by the tax collector would impose an unreasonable imposition. See Jones, 547 U.S. at 236, 126 S.Ct. at 1719.

|19Lastly, appellants assert the tax sale is invalid due to lack of notice to other lienholders. However, appellants have failed to establish that the lienholders complied with the provisions of former La. R.S. 47:2180.1 by providing notice of their legal interests to the Sheriff tax collector. Further, appellants are without standing to attack the tax sale on the basis that notice was not provided to other persons or entities. “[T]he standing inquiry requires careful judicial examination of ... whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). When the facts alleged in the petition provide a remedy to someone, but the plaintiff who seeks the relief for himself is not the person in whose favor the law extends the remedy, the petitioner lacks standing. In re Melancon, 05-1702, p. 10 (La.7/10/06), 935 So.2d 661, 668. Standing may exist for a portion of a party’s claim, but be lacking for a different portion of the same 120claim. Id. Here, appellants have standing to challenge the notice that they each received respectively, but they have no standing to challenge the lack of notice to other mortgagors or lienholders.

As addressed above, appellants did not timely attack the manner in which the sale of the property was conducted. The former property owner did not institute a timely “proceeding to annul.” La. Const, art. 7, § 25; former La. R.S. 47:2228. Unless the proceeding to annul is instituted within six months after service of notice of sale, the constitutional provision clearly mandates that no sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale. Appellants failed to establish proof of payment of the taxes. La. Const, art. 7, § 25.

Accordingly, we find that appellants failed to offer evidence sufficient to rebut the presumption of regularity afforded to the sheriffs tax deed. Thus, the burden of proof never shifted to Dulac Dat to prove that all requisites for a valid tax sale were complied with. Having reviewed the applicable law, we find no legal error in the trial court’s decision. Since we conclude that there is no genuine issue as to material fact and no error of law, Dulac Dat was entitled to summary judgment in its favor. See La. C.C.P. art. 966(B) and 967(B).

III. CONCLUSION

For these reasons, we affirm the May 13, 2009 judgment of the trial court that granted summary judgment in Dulac Dat’s favor against GSS and Source Bidco. One-half of the costs of this appeal are assessed to GSS, and the other one-half are assessed to Source Bidco.

AFFIRMED.

GUIDRY, J., concurs in the result.

McCLENDON, J., concurs and assigns reasons.

WELCH, J., dissents and assigns reasons.

HIGGINBOTHAM, J., dissents and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

hi agree with the majority’s analysis regarding the failure of the property owner to timely institute a proceeding to annul. Therefore, I respectfully concur with the result reached.

WELCH, J.,

dissenting.

hi respectfully dissent. I find that GSS’s claim of nullity based on lack of notice was properly preserved for consideration by the trial court because GSS affirmatively raised the issue of lack of proper notice in its answer. Furthermore, upon reviewing all of the evidence in the record on the issue of notice, I find that genuine issues of material fact exist as to whether the notices of the tax deficiencies and tax sales sent by the Sheriff in this case are constitutionally sufficient, making summary judgment inappropriate to resolve the notice issues. Therefore, I would remand the matter to the trial court to determine the validity of the tax sales.

HIGGINBOTHAM, J.,

dissenting.

hi respectfully disagree with the majority opinion, because the uncontradicted evidence submitted in opposition to Dulac Dat’s motion for summary judgment reveals that GSS and Source Bidco never received notice of the tax delinquency and tax sale. GSS and Source Bidco bore the burden of proving a defense to the tax sale, ie., the lack of notice, thereby establishing the absolute nullity of the tax sale. The majority’s distinction of Jamie Land Co., Inc. v. Touchstone, 2006-2057 (La. App. 1st Cir.6/8/07), 965 So.2d 873, is not persuasive. As we clearly held in Jamie Land, 965 So.2d at 875, a claim of absolute nullity of a tax sale can be raised as an affirmative defense. See also Cressionnie v. Intrepid, Inc., 2003-1714 (La.App. 1st Cir.5/14/04), 879 So.2d 736, 739. Additionally, in the absence of a majority vote by this court en banc to overrule existing First Circuit caselaw directly on point in Jamie Land and Cressionnie, this court remains bound by those opinions.

Furthermore, GSS timely preserved its claim that the tax sale was absolutely null by filing an answer specifically pleading that “no notice was ever sent [or] received” shortly after service of Dulac Dat’s petition. The | jurisprudence holds that courts may overlook miscaptioning of a pleading where the other party is not prejudiced. Evans v. Ivy, 428 So.2d 886, 889 (La.App. 1st Cir.1983); Higdon v. Higdon, 385 So.2d 396, 398 (La.App. 1st Cir.1980). It is clear in this case that Dulac Dat was not prejudiced or surprised by GSS and Source Bidco’s lack of notice claim, since the original pleadings filed by both GSS and Source Bidco fairly alerted Dulac Dat of their claims of inadequate and unconstitutional notice, essentially setting forth a timely reconventional demand. See Greene v. Greene, 398 So.2d 59, 63 (La.App. 3rd Cir.), writ denied, 405 So.2d 529 (La.1981).

When a tax purchaser sues to quiet a tax title, that title is put at issue and the former owner may avail itself of any defense sufficient to defeat the tax title. Jamie Land, 965 So.2d at 875; Cressionnie, 879 So.2d at 739. Lack of notice is a defense sufficient to defeat the tax title. The statutory time limitations for attacking the validity of a tax sale do not affect a tax sale that was already an absolute nullity. Jamie Land, 965 So.2d at 877.

It is uncontradicted that GSS and Source Bidco did not receive written notice of the tax deficiency or tax sale as outlined by former La. R.S. 47:2180, which required the tax collector to provide the delinquent taxpayer with specific notice by certified mail, with return receipt requested. GSS submitted evidence that the Sheriff sent GSS’s notice to an incorrect address and the notice was not sent by certified mail. GSS’s evidence revealed that no notice was sent to Source Bidco or any other recorded lienholder. Furthermore, the correct addresses for both GSS and Source Bidco were readily ascertainable. Due process requires that the property owners be properly notified before property can be sold for a tax deficiency. If notice requirements are not followed, the sale is null and void, or an absolute |3nullity. See Lewis v. Succession of Johnson, 2005-1192 (La.4/4/06), 925 So.2d 1172, 1183-1184; Jamie Land, 965 So.2d at 875.

It is well settled that the giving of notice of a tax delinquency is mandatory and that failure to give this notice is constitutional grounds for the annulment of a tax sale. Hamilton v. Royal Intern. Petroleum Corp., 2005-846 (La.2/22/06), 934 So.2d 25, 30, cert. denied, 549 U.S. 1112, 127 S.Ct. 937, 166 L.Ed.2d 704 (2007). Due process requires that such notice must be sent by mail or other means certain to ensure actual notice if the party’s name and address are reasonably ascertainable. Vincson, Inc. v. Ingram, 2001-2655 (La.App. 1st Cir.11/8/02), 835 So.2d 813, 815. In Vincson, 835 So.2d at 816, this court observed that as the delinquent taxpayer was a corporation, a simple call by the sheriff to the secretary of state would have provided the correct address for notice, and this was an additional reasonable step that could have been taken.

Moreover, the United States Supreme Court has declared in Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983), that “[w]hen the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service.” In this case, Source Bidco was a reasonably ascertainable mortgagee with a significant interest in the property sold at the tax sale, and whose identity and address could easily be extracted from a review of the mortgage records of Terrebonne Parish. Despite the presence of the mortgage in the public records, the Sheriff made no attempt to notify Source Bidco of the tax delinquency or impending tax sale. The failure of the Sheriff to give Source Bidco due notice of the impending tax |4sale of GSS’s property was in violation of Source Bidco’s constitutional right to due process. For that additional reason, the tax sale is rendered an absolute nullity. See Weatherly v. Optimum Asset Management, Inc., 2004-2734 (La.App. 1st Cir.12/22/05), 928 So.2d 118, 128; In re Raz, 2003-0893 (La.App. 1st Cir.2/23/04), 871 So.2d 363, 370; and Bank of West Baton Rouge v. Stewart, 2000-0114 (La.App. 1st Cir.2/16/01), 808 So.2d 464, 466.

Thus, the trial court erred in granting summary judgment in favor of Dulac Dat, thereby confirming and quieting title to GSS’s property. After GSS and Source Bidco offered evidence of the lack of notice, they had established the absolute nullity of the tax sale. It then became Dulac Dat’s burden to go forward and prove that all requisites for adequate notice of a valid tax sale were complied with. See Cressionnie, 879 So.2d at 740. Dulac Dat did not offer any evidence to meet its burden; consequently, the summary judgment in favor of Dulac Dat was improper. The tax sale is an absolute nullity because it was in violation of the property owner’s and mortgagee’s constitutional right to due process. Therefore, the trial court’s judgment should be reversed.

For these reasons, I respectfully dissent.

      . When the notices of the tax sales at issue were mailed, and when the petition to quiet tax title was served, former La. R.S. 47:2228 provided as follows, in pertinent part:

        After the lapse of three years from the date of recording the tax deed ..., the purchaser, his heirs or assigns, may institute suit by petition and citation as in ordinary actions against the former proprietor ... of the property, in which petition must appear a description of the property, mention of the time and place of the sale reference to page of record book and date of recording tax deed, notice that petitioner is owner of the said property by virtue of said tax sale, and notice that the title will be confirmed unless a proceeding to annul is instituted within six months from date of service of the petition and citation. The petition and citation shall be served as in ordinary suits; provided that if the former proprietor be ... unknown ... the court shall appoint a curator ad hoc to represent him and receive service.... After the lapse of six months from the date of service of petition and citation, if no proceeding to annul the sale has been instituted, judgment shall be rendered quieting and confirming the title. (Emphasis added).
      2008 La. Acts, No. 819, § 2, effective January 1, 2009, repealed La. R.S. 47:2221 to 2230. Section 1 of the same act enacted La. R.S. 47:2266, effective January 1, 2009, which reproduces the substance of and combines former La. R.S. 47:2228 and 47:2228.1. See La. R.S. 47:2266, Comment-2008. The parties do not dispute that the earlier statutory provisions apply to this case.

      . The respective tax sale deeds described the three tracts at issue as follows:
      ON THE LEFT DESCENDING BANK OF BAYOU GRAND CAILLOU. BOUNDED ABOVE BY EVEST VOISIN, SR., ETALS. BOUNDED BELOW BY EVEST VOISIN. TRACT P-Q-R-S-P. AS SHOWN ON "MAP SHOWING SURVEY OF PROPERTY BELONGING TO & CLAIMED BY STANLEY DAVID LUKE, LOCATED IN SECTION 86 T19S R17E.” CB 1782/229
      1 COMMLOT(S) 1100
      INDUSTRIAL 21275
      TRACT A-B-C-D-A. AS SHOWN ON "MAP SHOWING SURVEY OF PROPERTY BELONGING TO AND CLAIMED BY STANLEY DAVID LUKE, LOCATED IN SECTION 86 T19S R17E.” CB 1782/227
      1 COMMLOT(S) 1100
      WAREHSE BLDG 9240
      TRACT J-K-L-M-N-O-J. AS SHOWN ON "MAP SHOWING SURVEY OF PROPERTY BELONGING TO AND CLAIMED BY STANELY DAVID LUKE. LOCATED IN SECTION 86 T19S R17E.” (FORMERLY KNOWN AS LOTS 4 & 5 BLOCK 1 EVEST VOISIN SUBD.) CB 1782/225
      1 LOTS(S) 755
      MISC. 1000
      (Emphasis added.)

      . See La. Const, art. 7, § 25(B) and former La. R.S. 47:2221.

      . The June 25, 2003 tax deeds relating to the subject property were attached as exhibits to this judgment.

      . The Sheriff's tax sale notice for Tract J-KL-M-N-O-J was mailed to 455 E. Airport Avenue. The tax sale notices for the other two tracts of land were mailed to 456 E. Airport Avenue. The record establishes that the East Airport Avenue addresses were the addresses for First Louisiana Business & Industrial Development Corporation (“First Louisiana Bidco”) and Source Bidco. It is undisputed that the names of First Louisiana Bidco and Source Bidco represented the same business interests. Counsel for Source Bidco represented in open court, "Source BIDCO is First Louisiana [Bidco]—it’s a name change.”

      . The record establishes that Coastal Commerce Bank filed a petition to annul the subject tax sales in January 2008, but on its own motion, the petition was dismissed with prejudice by judgment dated February 21, 2008.

      . The Sheriff answered that on June 17, 2003, his office had notified Coastal Commerce Bank of the upcoming tax sale via a telephone call.

      . GSS submitted an April 8, 2009 affidavit of Parker, wherein he attested that he first learned of the tax sales when Smitko contacted him after filing her November 2006 lawsuit. GSS also submitted the affidavit of Louis Lindsey, another shareholder and director of GSS, who also attested that GSS did not receive any notices from the Sheriff of its 2002 property tax delinquencies, any notices of the scheduled tax sales of its properties in June 2003, or any notices of its right to redeem the property.

      . GSS asserts that a claim of an absolute nullity can be raised as an affirmative defense, citing Jamie Land Co., Inc. v. Touchstone, 06-2057, p. 4 (La.App. 1st Cir.6/8/07), 965 So.2d 873, 875. In Jamie Land, the property in question was assessed with taxes, and the assessment was sent to an obsolete rural route address. The following year, the property was sold at a tax sale, and then sold to another corporation. When the former owners of the residential property discovered the sale, they notified the tax assessor, who arranged for the error to be cured. The Louisiana Tax Commission ("LTC”) cancelled the tax sale and directed that the mortgage records be corrected. The plaintiff corporation, which claimed the land subject to the tax sale, later filed an action to quiet title to the property, naming the tax debtors and the “LTC” as defendants. The plaintiff corporation filed a motion for summary judgment, asserting that the tax debtors’ right to redeem the property had been lost once the three-year redemption period had lapsed and claimed that the tax debtors’ only recourse was to file suit and attempt to annul the sale. The LTC also filed a motion for summary judgment urging that the tax sale was null and void. The trial court granted LTC’s motion, declaring the tax sale null and void.
      In upholding the trial court's finding of nullity, this court stated in dictum that “a claim of absolute nullity can be raised as an affirmative defense.” However, in Jamie Land, this court also recognized the existence of an alternative procedure for annulling a tax sale based on an erroneous assessment as set forth in La. R.S. 39:351. Thus, the six-month time limitation of La. Const. art. 7, § 25 was not implicated because the LTC had cancelled the tax sale prior to the time that the plaintiff corporation filed its suit to quiet tax title. As such, we find Jamie Land to be distinguishable from the facts of the present case.

      . Louisiana Revised Statutes 47:2180 was repealed by 2008 La. Acts, No. 819, § 2, effective January 1, 2009. Section 1 of the same act enacted current La. R.S. 47:2153(A) and (B), which generally reproduces the substance of the former statute with certain modifications. See La. R.S. 47:2153, Comments— 2008(a).

      . Source Bidco has not established, or even specifically alleged, that it did not receive actual notice of the tax sale.

      . Former La. R.S. 47:2180.1 was repealed by 2008 La. Acts, No. 819, § 2, effective January 1, 2009. Prior to its repeal, it provided as follows, in pertinent part:
      A. On the second day of January each year or as soon thereafter as possible, the tax collector shall address to each person holding a properly recorded mortgage on immovable property for which taxes are delinquent, if such mortgage holder has notified the tax collector of such recorded mortgage, a written notice as provided in R.S. 47:2180 that the taxes on the immovable must be paid within twenty days after the service or mailing of the notice or the property will be sold according to law. The notice shall be sent to each person holding a properly recorded mortgage on immovable property for which taxes are delinquent by certified mail return receipt requested or by personal or domiciliary service on the mortgagee.... The notification by the mortgagee to the tax collector shall be renewed annually.
      (B)(2) Notwithstanding any other law to the contrary, a tax sale shall not be annulled or set aside due to lack of notice to the mortgagee as provided herein. (Emphasis added.)
      Currently, Louisiana Revised Statutes 47:2159 reproduces the substance of former La. R.S. 47:2180.1.

      . See also Tietjen v. City of Shreveport, 2009-2116 (La.5/11/10), 36 So.3d 192, 196 n. 6, where the Louisiana Supreme Court acknowledged a split in the courts of appeal on the issue of whether a mortgagee is due notice of delinquent taxes and pendency of a tax sale if the mortgagee is readily discernible on the public records, but has not notified the tax collector of the existence of its mortgage and paid the required tee of former LSA-R.S. 47:2180.1. (Former La. R.S. 47:2180.1 was repealed by 2008 La. Acts, No. 819, § 2, effective January 1, 2009. The newly enacted La. R.S. 47:2153 and 47:2159, effective January 1, 2009, consolidates and generally reproduces the substance of former La. R.S. 47:2180, 2180.1, and 2181 with certain modifications. See La. R.S. 47:2153 and 47:2159, comments-2008.) Without further discussion specifically resolving the appellate courts’ split on the issue, the Supreme Court reversed the second circuit, finding that the trial court judgment holding the tax sale null and of no effect was not manifestly erroneous and was supported by the evidence of inadequate pre-sale notice to the property owner and mortgagee bank in that case. Tietjen, 36 So.3d at 197-198.