BIENES INMUEBLES v. ANJAD HOBBUB ZUGHAYER WIFE OF AND AMER ZUGHAYER ET AL (2025)

This matter concerns the efforts of plaintiff/appellant, Bienes Inmuebles, L.L.C., to quiet title, partition property by licitation, and enforce its legal mortgage obtained by a tax sale title to certain immovable property located at 828 Garden Road in Marrero, Louisiana, against the owners of the property and multiple judgment creditors of the owners. In the default judgment under review, the trial court granted two of the claims Bienes sought against the owner defendants (quieting title to Bienes’ 1% ownership interest in and to the subject property and ordering a partition by licitation of the subject property), but denied confirmation of default on the remaining claims requested in Bienes’ petition against the owner defendants and the creditor defendants who had not responded to the petition, despite service thereof. For the following reasons, we conclude that the judgment under review is not a final appealable judgment. Accordingly, because of lack of jurisdiction, we dismiss this appeal without prejudice and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the record and briefs, Anjad Hobbub Zughayer, wife of/and Amer Zughayer (“the Zughayers”) acquired the subject property, a single-family home located in Marrero, Louisiana, via a credit sale of property from Darleen Arbo, wife of/and Leslie Peter Gallo, on September 14, 2006, which sale was duly recorded in the conveyance records of Jefferson Parish on October 2, 2006. Over the ensuing years, numerous creditors of the Zughayers recorded judgments against them in the mortgage records of Jefferson Parish. These creditors were also made defendants in Bienes’ petition: Abdel Mousa; Bank of Louisiana; Hossein Aghakasiri; State of Louisiana; Joseph P. Lopinto, III, in his official capacity as Sheriff and Ex-officio Tax Collector for the Parish of Jefferson; and Yolanda Page and John Page.¹

Bienes asserted in its petition that it had acquired tax sale title to 1% of the property from Cass Street Capital (which is not a party herein) via a transfer of Cass Street Capital's tax sale interest, dated March 8, 2022.² Previously, Cass Street Capital had acquired tax sale title to 1% of the property through a tax sale conducted by the then-sheriff of Jefferson Parish, Newell Normand, on August 13, 2014 for unpaid 2013 ad valorem taxes.³

Bienes filed this suit against the owners of the property (the Zughayers) and the aforementioned list of judgment creditors. Therein, Bienes asserted:

1) an action to quiet title;

2) a request for a partition by licitation;

3) a request for recognition that Bienes’ legal mortgage encumbers the remaining 99% of the property held by the Zughayers and that this legal mortgage primed and outranked all other encumbrances;

4) a request for reimbursement for all sums expended for maintenance, management, and preservation of the property (including all ad valorem taxes paid to Jefferson Parish, penalties, interest, code enforcement violations and/or liens paid to Jefferson Parish, attorney's fees and court costs as per La. C.C.P. art. 4613, and all other sums deemed reasonable in the premises); and

5) a request for a judgment for the settlement of accounts between the co-owners of the property.

All defendants were cited and served; however, only defendants Yolanda Page and John Page (jointly) and Sheriff Lopinto filed answers to the petition, generally denying the allegations of the same. The record evidences that the remaining defendants neither answered, nor made any appearance in the proceeding.

After notice was given to the State of Louisiana pursuant to La. C.C.P. art. 1704,⁴ and applicable delays, Bienes moved for confirmation of a default judgment against all of the defendants who had not responded to the petition. The default judgment confirmation hearing was held on May 16, 2024. Bienes provided the testimony of a member of the company, who verified the company's acquisition of its interest in and to the subject property and the validity of the tax sale, and Bienes’ desire to quiet title to its 1% ownership interest in and to the property and to partition the property by licitation. Exhibits C through N were also introduced into evidence. Those exhibits evidence the mortgage inscriptions of the defaulting creditor defendants which Bienes sought to have cancelled insofar as the subject property is concerned, as part of the relief requested at the hearing (Exhibits C-M), and documentation setting forth the amount of taxes, penalties, and interest allegedly paid by Cass Street Capital and/or Bienes pertaining to the subject property from 2013 through May 31, 2024 (Exhibit N).

Following the hearing, the court confirmed the default judgment in the following respects:

1) Bienes’ tax sale title to the property was confirmed against the Zughayers, recognizing Bienes as the owner of an undivided 1% interest in and to the property;

2) Bienes’ request to quiet the title to its 1% ownership interest in and to the property, as to the Zughayers, was granted;

3) Bienes’ request for a partition of the property by licitation was granted; and

4) a notary public was appointed by the court to effect and homologate the partition, and the court set a fee for the notary's services from the mass of the sale proceeds.

However, the court denied the remainder of Bienes’ requested relief, which was considerable:

1) the court denied the motion for default judgment insofar as Bienes had requested the same relief via default judgment, quieting its 1% tax sale title, against defendants Abdel Mousa, Bank of Louisiana, Hossein Aghakasiri, and the State of Louisiana;

2) the court denied Bienes’ requested relief to cancel the mortgage inscriptions on the property in favor of defendants Abdel Mousa, Bank of Louisiana, Hossein Aghakasiri, and the State of Louisiana, insofar as these mortgages encumbered the 1% of the property owned by Bienes;

3) the court denied Bienes’ request to cancel the mortgage inscriptions in favor of defendants Abdel Mousa, Bank of Louisiana, Hossein Aghakasiri, and the State of Louisiana, insofar as they encumbered the 99% of the property owned by the Zughayers;

4) the court denied Bienes’ prayer for declaratory relief recognizing its legal mortgage and declaring that it encumbered the 99% share of the property owned by the Zughayers, and to the proceeds of the partition by licitation sale;

5) the court denied a requested declaration that Bienes’ legal mortgage outranked the mortgage inscriptions in favor of defendants Abdel Mousa, Bank of Louisiana, Hossein Aghakasiri, and the State of Louisiana;

6) the court denied Bienes’ prayer for payment and reimbursement of its legal mortgage from the 99% share of the Zughayers in the proceeds of the licitation sale; and

7) the court denied Bienes’ alternative prayer for payment and reimbursement of the taxes it paid as co-owner and attorney's fees from the 99% share in the licitation proceeds due to the Zughayers.5

Of importance, the court's June 11, 2024 written judgment declared that the judgment constituted a final and appealable judgment pursuant to La. C.C.P. arts. 1841, 1911, 1918, and 1919, “or alternatively,” constituted a final and appealable judgment pursuant to La. C.C.P. art. 1915(B)(1), there being no just reason for delay. This timely appeal followed.

On appeal, Bienes assigns the following errors/issues for review:

1) the court erred by denying Bienes a judgment quieting its title free of the mortgage inscriptions of the creditor defendants;

2) the court erred by denying cancellation of the creditor defendants’ mortgage inscriptions after the partition sale;

3) the court erred by denying Bienes’ reimbursement for its legal mortgage;

4) the court erred by denying Bienes’ request for attorneys’ fees for the uncontested partition; and

5) the court's judgment violates public policy by discouraging competitive bidding at tax sales that would protect debtors’ equity and return delinquent tax properties to commerce.

ANALYSIS

The judgment under review confirmed a default judgment in favor of Bienes only as to two of the claims for relief it sought against one set of defendants, the Zughayers, as the owners of the property. The court denied confirmation of default as to other claims Bienes made against the Zughayers or to the proceeds attributable to their 99% ownership interest in and to the property, as well as Bienes’ various claims against the other defaulting creditor defendants. Further, the court denied Bienes’ request for attorney's fees “at this time.” On appeal, Bienes seeks review only as to the portions of the judgment that the trial court denied at the default judgment confirmation hearing.

Only final judgments and interlocutory judgments expressly provided by law are appealable. La. C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. A judgment that denies confirmation of a default does not determine the merits of the matter, and is therefore, interlocutory. Jackson v. Usey, 20-402 (La. App. 5 Cir. 2/10/21), 315 So.3d 377, 378. “[T]he refusal to confirm a default judgment is not by itself a final judgment because the plaintiff's claims are not rejected. ․ Therefore, it is not appealable.” R & R Steel Erectors v. Watson, 01-1322 (La. App. 3 Cir. 3/6/02), 809 So.2d 1228, 1230, citing Band v. First BankCard Center, 94-3062 (La. 2/9/95), 650 So.2d 738, which held: “The reversal of a default judgment does not result in a dismissal, with prejudice, of plaintiff's claims. When, as here, the plaintiff has failed to establish a prima facie case against the defendant at the confirmation hearing, the plaintiff's claims are not rejected; rather, the case is remanded to the trial court for further proceedings,” citing Ascension Builders v. Jumonville, 262 La. 519, 263 So.2d 875, 879 (1972); Griffin v. Pecanland Mall Association, Ltd., 535 So.2d 770, 772-73 (La. App. 2nd Cir. 1988); and the cases cited therein. See also Deville v. Carmouche, 450 So.2d 24 (La. App. 3rd Cir. 1984).

Concerning confirmation of default judgments, La. C.C.P. art. 1702(A)(1), provides, in pertinent part:

If a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or by the court, and the plaintiff establishes a prima facie case by competent and admissible evidence that is admitted on the record, a default judgment in favor of the plaintiff may be rendered, provided that notice that the plaintiff intends to obtain a default judgment is sent if required by this Paragraph, unless such notice is waived. ․

Thus, in accordance Article 1702(A)(1), absent procedural or due process issues, the denial of a request to confirm a default judgment by a trial court is essentially only a finding by the trial court that the plaintiff failed to establish a prima facie case by competent and admissible evidence that is admitted on the record, to which prejudice does not attach.

As stated above, a judgment that denies confirmation of a default does not determine the merits of the matter, and is therefore, interlocutory. See Jackson v. Usey, supra. The portions of the judgment under review—those claims made by Bienes identified above that were denied in said judgment by the trial court—do not determine the merits of the matter, and thus are interlocutory rulings.

Concerning the appealability of partial judgments, La. C.C.P. art. 1915 provides, in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:

(1)Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.

(2)Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.

(3)Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).

(4)Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.

(5)Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.

(6)Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

(2)In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

* * *

Upon review, we conclude that none of the exceptions contained in La. C.C.P. art. 1915(A) as to the appealability of partial judgments apply herein. Further, the rulings under review do not qualify as partial judgments capable of being “designated as a final judgment by the trial court after an express determination that there is no just reason for delay” under La. C.C.P. art. 1915(B)(1), as the merits of the claims addressed in said rulings have not yet been adjudicated against the parties who answered the petition (the Pages and Sheriff Lopinto), which could result in different rulings by the trial court on said claims once the claims are fully adjudicated with respect to all party defendants. Rather, as per La. C.C.P. art. 1915(B)(2), these interlocutory rulings “may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” (Emphasis added.)

In conclusion, under the particular circumstances presented, as we have not been presented with a final appealable judgment to review in this appeal, we do not have appellate jurisdiction to consider the merits of the assignments of error/issues for review presented in this appeal at this procedural juncture of the case, and therefore dismiss this appeal without prejudice.⁶

DECREE

For the foregoing reasons, this appeal is dismissed without prejudice, and the matter is remanded to the trial court for further proceedings.

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400 (504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY FEBRUARY 26, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

24-CA-450

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE NANCY A. MILLER (DISTRICT JUDGE)

NATHANIEL M. PHILLIPS (APPELLANT)

ADRIAN F. LAPEYRONNIE, III (APPELLEE)

ELIZABETH B. MURRILL (APPELLEE)

DAVID GREENBERG (APPELLEE)

KENNETH C. FONTE (APPELLEE)

MAILED

ANJAD HOBBUB ZUGHAYER & AMER

ZUGHAYER (APPELLEE)

15 AZALEA LANE

MARRERO, LA 70072

HOSSEIN AGHAKASIRI (APPELLEE)

3921 NORTH HULLEN STREET

METAIRIE, LA 70002

ABDEL MOUSA (APPELLEE)

2700 CARLISLE DRIVE SOUTH

GRETNA, LA 70056

BANK OF LOUISIANA THROUGH ITS

REGISTERED AGENT SHANNON SCOTT

(APPELLEE)

300 SAINT CHARLES AVENUE

NEW ORLEANS, LA 70130

FOOTNOTES

1.   The petition identified and attached the various recorded instruments evidencing the various money judgments held by these defendants against the Zughayers.

2.   According to the petition, the transfer of said interest was duly recorded on March 23, 2022 as Instrument no. 12215995, COB 3467, folio 944, of the records of the Clerk of Court for the Parish of Jefferson, State of Louisiana.

3.   This sale was memorialized by “that certain Tax Sale Certificate dated August 19, 2014 and recorded August 21, 2014 as Instrument no. 11434306, COB 3337, folio 295 of the records of the Clerk of Court for the Parish of Jefferson, State of Louisiana,” according to the petition.

4.   La. C.C.P. art. 1704(A) provides:Notwithstanding any other provision of law to the contrary, prior to the rendition of a default judgment against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, the plaintiff or the plaintiff's attorney shall send notice of the plaintiff's intent to obtain a default judgment, together with a certified copy of the petition or other demand, to the attorney general by registered or certified mail, or shall be served by the sheriff personally upon the attorney general or the first assistant attorney general at the office of the attorney general. If the notice and petition are served on the attorney general by mail, the person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the attorney general with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mail. The return receipt shall be attached to the affidavit that is filed in the record.

5.   The trial court provided neither oral nor written reasons for its denial of the remainder of the relief requested by Bienes at the default judgment confirmation hearing.

6.   We point out that nothing prohibits Bienes from again attempting to establish “a prima facie case by competent and admissible evidence that is admitted on the record” concerning the claims denied by the trial court in the subject judgment in another default judgment confirmation hearing against the defendants who had not by that time made an appearance in this proceeding, seemingly preferably at the same time the claims against the remaining defendants who responded to the suit are tried on the merits, which presumably would resolve all remaining claims involved in this matter and could result in one or more final appealable judgments in this matter.

JUDE G. GRAVOIS JUDGE