Edmonds v. City of Shreveport

855 So. 2d 954, 2003 La. App. LEXIS 2548, 2003 WL 22215877
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2003
DocketNo. 37,645-CA
StatusPublished
Cited by1 cases

This text of 855 So. 2d 954 (Edmonds v. City of Shreveport) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edmonds v. City of Shreveport, 855 So. 2d 954, 2003 La. App. LEXIS 2548, 2003 WL 22215877 (La. Ct. App. 2003).

Opinion

I t STEWART, J.

The defendant, D.V. II — Shreveport, L.L.C., (“D.V.”), appeals a judgment of the trial court declaring that “Section 106-47 [955]*955of the Shreveport Code of Ordinances and La. R.S. 38:4727(C)(2)(b) stay the operation of a business upon the filing of an appeal to the Shreveport Metropolitan Zoning Board of Appeals from the granting of a certificate of occupancy by the Zoning Administrator.” Because we find that the trial court rendered an advisory opinion on a matter that had become moot, we reverse the trial court’s judgment and dismiss the claims of the plaintiff, Muy Alto Corporation.

FACTS

This litigation began as a zoning challenge by Pastor Rick Edmonds, Pastor Chuck Porciau, Mike Welch, and Brenda O’Brock, a group of citizens of Shreveport who objected to the proposed location of a sexually oriented business to be opened and operated by D.V. in the downtown area of Shreveport near the river front. Muy Alto Corporation (“Muy Alto”), which owns land adjacent to the site of D.V.’s business, joined as a plaintiff in the “Second Amended, Supplemental, and Restated Petition.” In addition to D.V., the defendants included the City of Shreveport, the Shreveport Metropolitan Zoning Board of Appeals (“ZBA”), and the Shreveport Metropolitan Planning Commission of Caddo Parish (“planning commission”).

In their first three petitions, which include the original petition as well as first and' second supplemental petitions, the plaintiffs were seeking judicial review of an informal or preliminary authorization by the planning | ^commission approving D.V.’s proposed site. Plaintiffs contended that D.V. was improperly authorized to locate a sexually oriented business within one thousand feet of protected sites in violation of a city ordinance. This preliminary authorization had been upheld by the ZBA and the Shreveport City Council. However, as addressed at a hearing on October 17, 2002 before the trial court, D.V. had not yet made a formal application for a certificate of occupancy and no such certificate had yet been granted. Moreover, it appeared that the informal authorization was without legal effect for purposes of judicial review.

On November 18, 2002, Muy Alto filed a third supplemental petition in anticipation of D.V.’s application for a certificate of occupancy to operate a sexually oriented business at the disputed site and the likely granting of the certificate of occupancy by the zoning administrator. In light of this eventuality and the appeal that would likely follow the issuance of the certificate of occupancy, Muy Alto sought a declaratory judgment interpreting Section 106-47 of Shreveport’s Code of Ordinances and La. R.S. 33:4727(C)(2)(a) as precluding the holder of a certificate of occupancy from opening or operating a business during the pendency of the appeal process. Muy Alto then filed a motion for partial summary judgment on December 2, 2002, asserting that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law interpreting La. R.S. 33:4727(C)(2)(a) and Section 106-47 as precluding D.V. from operating its business during the appeal process. In response to Muy Alto’s third | .¡supplemental petition, D.V. filed an exception of no cause of action. D.V. also filed an opposition to the motion for partial summary judgment.

On December 19, 2002, the trial court rendered an opinion granting Muy Alto the relief it sought. This ruling was vacated by a writ order of December 27, 2002, on the grounds that a certificate of occupancy had not yet been issued, no appeal had been taken from such issuance, and peremptory exceptions remained pending in the trial court.

On January 3, 2003, Muy Alto again filed a motion for partial summary judg[956]*956ment alleging that D.V. had obtained a certificate of occupancy and that Muy Alto had filed a notice of appeal with the ZBA. Therefore, Muy Alto again sought a declaration that Section 106-47 and La. R.S. 33:4727(C)(2)(b) would preclude D.V. from operating its business during the pendency of the appeal process. D.V. opposed the motion and filed exceptions of no cause of action and non-joinder of an indispensable party. Of most significance was D.V.’s contention that the stay matter was moot since the zoning administrator had, in accordance with Section 106-47(c), issued a certificate lifting the stay during the appeal process.

After a hearing on January 15, 2003, the trial court rendered judgments resolving all outstanding issues and Muy Alto’s motion for partial summary judgment. The trial court dismissed the claims asserted by the plaintiffs in the original petition and the first and second supplemental petitions upon granting exceptions filed by D.V. in response to those three petitions. The trial court denied D.V.’s exception of no cause of action as to the third supplemental petition, and granted Muy Alto’s motion for partial Lsummary judgment declaring that Section 106-47 and La. R.S. 33:4727(C)(2)(b) stay the operation of a business upon the filing of an appeal to the ZBA from the granting of a certificate of occupancy by the zoning administrator. D.V. now appeals the declaratory judgment granted on Muy Alto’s motion for partial summary judgment.1

DISCUSSION

D.V. asserted four assignments of error on appeal. These included challenges to the trial court’s denial of exceptions of prematurity and non-joinder of an indispensable party; to the trial court’s issuance of an advisory opinion in the form of a declaratory judgment on an issue that had become moot; and to the trial court’s interpretation of Section 106-47 of the Shreveport Code of Ordinances. Because we find merit in D.V.’s argument that the declaratory judgment was merely an advisory opinion on an issue that had become moot, we have no need to address the other assignments raised by D.V. in its appeal.2

In the judgment at issue, the trial court declared that

“Section 106-47 of the Shreveport Code of Ordinances and La. R.S. 33:4727(C)(2)(b) stay the operation of a business upon the filing of an appeal to the Shreveport Metropolitan Zoning Board of Appeals | Kfrom the granting of a Certificate of Occupancy by the Zoning Administrator.”

In granting Muy Alto’s motion for partial summary judgment, the trial court rendered a declaratory judgment as prayed for by Muy Alto in its third supplemental [957]*957petition. Actions for a declaratory judgment require the existence of a justiciable controversy. Jordan v. Louisiana Gaming Control Bd., 98-1122, 98-1133 (La.5/15/98), 712 So.2d 74; American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158 (La.1993). It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render opinions with respect to such controversies. Louisiana Associated General Contractors, Inc. v. State, Through Div. Of Admin., Office of State Purchasing, 95-2105 (La.3/8/96), 669 So.2d 1185.

In Jordan, supra, the supreme court addressed the issue of “justiciable controversy” by quoting the following passage from Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971):

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Related

Edmonds v. City of Shreveport
910 So. 2d 1005 (Louisiana Court of Appeal, 2005)

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Bluebook (online)
855 So. 2d 954, 2003 La. App. LEXIS 2548, 2003 WL 22215877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmonds-v-city-of-shreveport-lactapp-2003.