City of New Orleans v. Dupart

143 So. 3d 1215, 2014 WL 2808111
Procedural entryThis page is a short order in City of New Orleans v. Dupart. Read the opinion of the Court — 136 So. 3d 233
Louisiana Court of Appeal·Decided June 11, 2014·No. Nos. 2013-CA-1292, 2013-CA-1293, 2013-CA-1294·Published

Opinion

EDWIN A. LOMBARD, Judge.

| ,This matter is before our Court on remand from the Louisiana Supreme Court for consideration of the sole remaining assignment of error of the Appellant,1 Kevin M. Dupart, who seeks review of the August 21, 2013 judgment of the district court denying his Motion for Preliminary Injunction. Finding that the judgment of the district court is not manifestly erroneous, we affirm.

In the prior appeals of this matter, which were consolidated by this Court, Kevin M. Dupart (“Mr. Dupart”), sought review of two (2) judgments of the district court, dated June 20, 2013, and August 21, 2013, denying his respective Motions for Preliminary Injunction. The appeals arose out of a code enforcement proceeding brought by the City of New Orleans (“the City”), against him as the owner of property located at 1416 Mandeville Street (“the Property”) in New Orleans.

In July 2010, the Property was inspected by a New Orleans code enforcement inspector, who noted violations of the unoccupied property standards code then located in Chapter 28 of the New Orleans Code of Ordinances (“the City Code”). As a result of the violations found, the City scheduled an administrative ^hearing for [1217]*1217October 21, 2010, and a Notice of Hearing was sent via certified mail to Mr. Dupart on September 14, 2010, advising him of the October hearing date.

Mr. Dupart attended the October 21, 2010 hearing, where he was found “conditionally guilty” of City Code violations by an Administrative Hearing Officer (“AHO”) at the Recommendation of a City Facilitator. The AHO further informed Mr. Dupart that he was being fined $500 plus $75 in costs and $100 per day, but the fines would be suspended or rescinded if there was substantial work in progress by December 15, 2010, the next hearing date set. A judgment was not rendered against Mr. Dupart as a result of this hearing.

At the December 15, 2010 hearing, which Mr. Dupart attended, the AHO determined that the condition of Mr. Du-part’s property was still in violation of the City Code. He was fined $500 plus $65 in costs plus $300 per day for sixty days; however, the AHO informed him that the judgment could be suspended if he could prove that there was work in progress on the property by the next hearing date. Thus, Mr. Dupart was given a 60-day extension, until the next hearing date of February 16, 2011, to bring his property into compliance.

On February 9, 2011, the Property was again inspected and was deemed to still be in violation. Consequently, at the February 16, 2011 hearing, the AHO determined that the Property was blighted and a public nuisance. Mr. Dupart did not attend this hearing. The AHO rendered a final judgment (“the Administrative Judgment”) on February 16, 2011, but it was not signed until March 9, 2011.

The Notice of Administrative Judgment was filed as a lien in the Office of the Recorder of Mortgages for Orleans Parish in April 2011. Thereafter, the City requested the issuance of a writ of fieri facias, and the Clerk of Civil District Court issued the writ in case no. 2011-4585. A Notice of Seizure was later issued setting |sthe Property for sale by the Sheriff of Orleans Parish (“the Sheriff”) on November 8, 2011. The Property was seized by the Sheriff on August 30, 2011. On or about September 1, 2011, the City effectuated domiciliary service of the Notice of Seizure and the initial sale date on Mr. Dupart. The Property was initially offered at auction on November 8, 2011, but was ultimately sold at an April 18, 2012 Sheriffs sale.

Prior to the auction-purchaser paying for the Property and the issuance of the sheriffs deed, on May 8, 2013, Mr. Dupart filed a “Petition to Annul Sheriffs Sale, To Annul Administrative Judgment, For Temporary Restraining Order, For Preliminary and Permanent Injunction, and for Damages” seeking to enjoin the completion of the sale and delivery of the deed to the auction-purchaser. The district court granted the temporary restraining order, and Mr. Dupart’s lawsuit was transferred to the division of the district court to which the foreclosure suit had been allotted and consolidated with said suit.

A hearing on Mr. Dupart’s Motion for Preliminary Injunction was held on June 13, 2013. At the preliminary injunction hearing, Mr. Dupart argued that the Administrative Judgment was null and void for defects patent on the face of the proceedings, specifically that the Notice of Hearing did not comply with City Code Sec. 28-39(d). The district court, however, held that Mr. Dupart had been granted two (2) extensions of time to bring the Property into compliance and denied the [1218]*1218preliminary injunction motion. Mr. Du-part appealed the denial of his Motion for Preliminary Injunction.

Mr. Dupart later filed a second Motion for Preliminary Injunction arguing that the Administrative Judgment was null and void because: 1) it was not signed within seven (7) days of the administrative hearing as explicitly required by City |4Code Sec. 28^14, and 2) it did not comply with the requirement of City Code Sec. 28-39(c) that “the notification shall expressly state: ‘The purpose of the hearing is to determine whether the unoccupied property is blighted for purposes of expropriation.’ ” The district court denied Mr. Dupart’s second Motion for Preliminary Injunction sua sponte without a hearing.

Subsequently, Mr. Dupart timely appealed the denial of his second Motion for Preliminary Injunction. Mr. Dupart’s appeals were later consolidated by this Court. City of New Orleans v. Dupart, 13-1292, 13-1293, 13-1294 (La.App. 4 Cir. 2/19/14), 136 So.3d 233. On appeal, we held that the district court erred in determining that the City’s substantial compliance with City Code Sec. 28-39(d) was sufficient and pretermitted discussion of Mr. Dupart’s remaining assignment of error. Id. Thereafter, the City filed a supervisory writ application with the Louisiana Supreme Court. The Supreme Court: granted the writ application; reversed the judgment of our Court; reinstated the judgment of the district court; and remanded this matter to our Court to consider Mr. Dupart’s remaining assignment of error. City of New Orleans v. Dupart, 14-617 (La.5/2/14), 137 So.3d 1203.

In Mr. Dupart’s sole remaining assignment of error, he avers that the district court committed a legal and a factual error and abused its discretion in denying his second Motion for Preliminary Injunction on August 21, 2013, because the Administrative Judgment is null and void as it was not signed within seven (7) days of the code enforcement hearing as required by City Code Sec. 28-44.

City Code Sec. 28-44, entitled Issuance of final order, provides:

Within seven days of an administrative enforcement hearing, the administrative hearing officer shall sign and issue a final order stating whether or not the person [5charged is liable for the violation, the amount of any fine, penalty, costs of fee assessed against him and that the abatement of the violation may be enforced by the city, administrative hearing officer or court of competent jurisdiction. Any order may be enforced by the city, administrative hearing officer or court of competent jurisdiction. The final order shall be served in the same fashion as the original notice. The final order shall notify the violator of his right of appeal and shall, so much as possible, conform to the stylistic and typographical requirements established for the notice of violation.

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City of New Orleans v. Dupart, 143 So. 3d 1215, 2014 WL 2808111 (La. Ct. App. 2014).

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