Hollingsworth v. City of Minden

828 So. 2d 514, 2002 WL 1354225
Supreme Court of Louisiana·Decided June 21, 2002·No. 2001-C-2658·Published·Cited by 19 cases

Opinion

828 So.2d 514 (2002)

Ingus M. HOLLINGSWORTH and Dorothy Roberson Hollingsworth
v.
CITY OF MINDEN.

No. 2001-C-2658.

Supreme Court of Louisiana.

June 21, 2002.

*515 Louis C. Minifield, Counsel for Applicant.

Charles A. Marvin, John W. Montgomery, Campbell, Campbell & Marvin, Minden; Counsel for Respondent.

VICTORY, J.

We granted a writ in this case to consider whether the plaintiffs have a right to take a devolutive appeal under La. R.S. 33:174 and 175 to a judgment of the trial court declaring an annexation by the City of Minden (the "City") to be reasonable. After reviewing the facts and the applicable law, we find that the plaintiffs do have a right to take a devolutive appeal and, because we did not grant this writ to review the merits of the court of appeal's judgment denying the City's motion for summary judgment, we deny the City relief and remand the case to the trial court for further proceedings in accordance with the ruling of the Second Circuit Court of Appeal.

FACTS AND PROCEDURAL HISTORY

On June 15, 1999, the governing body of the City adopted Ordinance No. 851, annexing a large tract of property located east of the city's municipal limits. Plaintiffs, Ingus and Dorothy Hollingsworth, own property included in the annexation. On July 13, 1999, plaintiffs timely sued to invalidate the ordinance, on the ground that the annexation was not reasonable under La. R.S. 33:174B(1).[1] In response, *516 the City filed a motion for summary judgment in which it argued that the annexation was reasonable. Following a hearing, the trial court granted the City's motion for summary judgment and sustained the ordinance. The trial court's written judgment dismissing plaintiffs' suit was filed into the record on July 5, 2000. After plaintiffs' motion for new trial was denied on October 13, 2000, plaintiffs filed on November 30, 2000 a motion seeking a devolutive appeal, which the trial court granted. The court of appeal subsequently reversed the trial court's judgment, on the ground that issues of fact as to the reasonableness of the annexation precluded summary judgment for the City. Hollingsworth v. City of Minden, 34,943 (La. App. 2 Cir. 8/22/01), 793 So.2d 1265. We granted the City's writ application to consider whether the plaintiffs timely filed their appeal under La. R.S. 33:174 and 33:175. Hollingsworth v. City of Minden, 01-2658 (La.1/4/02), 805 So.2d 1198.

DISCUSSION

The City argues that plaintiffs no longer have the right to appeal because the only appeal allowed is a suspensive appeal and the plaintiffs did not take a suspensive appeal. The City's argument is based on La. R.S. 33:174C, which provides in part that: "If the extension of boundaries is adjudged reasonable, the ordinance shall go into effect ten days after the judgment is rendered and signed unless a suspensive appeal therefrom has been taken within the time and manner provided by law." Under La. C.C.P. art. 2123, the time for filing a suspensive appeal, "except as otherwise provided by law," is thirty days from "the date of the mailing of notice of the court's refusal to grant a timely application for a new trial ...." Instead of filing a suspensive appeal, plaintiffs filed a motion for devolutive appeal on November 30, 2000, some forty-four days later. La. R.S. 33:175 provides in part that "if no appeal is taken within the legal delays from a judgment of the district court sustaining the ordinance, same shall then become operative and cannot be contested or attacked for any reason or cause whatsoever. (Emphasis added)." The City argues that under La. R.S. 33:175, the ordinance has already become "operative and cannot be contested or attacked for any reason or cause whatsoever" because plaintiffs did not timely file a suspensive appeal under La. R.S. 33:174. Accordingly, the City urges the court to reinstate the trial court's judgment declaring the ordinance reasonable.[2]

Plaintiffs contend there is nothing in La. R.S. 33:174 or any other law which precludes them pursuing a devolutive appeal, and, if the City's argument is adopted, devolutive appeals will not be available in annexation cases. They argue that if it were intended that only one type of appeal were available, the statute would have clearly stated so, and that La. R.S. 33:174 simply provides that the ordinance goes into effect unless a suspensive appeal is filed within ten days of the judgment. Plaintiffs explain that after the motion for *517 new trial was denied in the trial court, they had to decide whether to seek a suspensive or devolutive appeal. They acknowledge that if they chose the suspensive appeal, the ordinance would not have gone into effect, but they would have had to post a bond; on the other hand, if they chose a devolutive appeal, the ordinance would have gone into effect, but they would still have been able to pursue their timely-filed devolutive appeal. Under La. C.C.P. art.2087, the delay for filing a devolutive appeal in this case is sixty days from "[t]he date of the mailing of notice of the court's refusal to grant a timely application for a new trial ...." Thus, if a devolutive appeal is allowed in annexation cases, plaintiffs' appeal was timely.

Thus, the narrow issue presented in this case is whether a person who fails to take a suspensive appeal of a judgment declaring an annexation reasonable loses any right to seek appellate review of that judgment under La. R.S. 33:174C and La. R.S. 33:175. Under our long-standing rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. ABL Management, Inc. v. Board of Supervisors, 00-0798 (La.11/28/00), 773 So.2d 131; Killeen v. Jenkins, 98-2675 (La.11/05/99), 752 So.2d 146; La. C.C. art. 13 ("Laws on the same subject matter must be interpreted in reference to each other"). Further, courts are bound to give effect to all parts of a statute and cannot give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Langlois v. East Baton Rouge Parish Sch. Bd., 99-2007 (La.5/16/00), 761 So.2d 504.

La. R.S. 33:174, entitled "Suit to contest reasonableness of proposed extension of corporate limits," provides the procedure for contesting proposed annexations. Under the statute, any interested citizen of the municipality or territory proposed to be annexed may file suit to contest the proposed annexation within the 30 day period before the ordinance becomes effective. If the trial court determines that the extension of boundaries is reasonable, subsection C provides that "the ordinance shall go into effect ten days after the judgment is rendered and signed unless a suspensive appeal therefrom has been taken within the time and manner provided by law." [emphasis added].

La. R.S. 33:175, entitled "Prescription of right to attack ordinance," provides that "if no appeal is taken within the legal delays from a judgment of the district court sustaining the ordinance, same shall become operative and cannot be contested or attacked for any reason." [emphasis added]. Nothing in La. R.S. 33:175 refers to a suspensive appeal.

La. R.S. 33:174C and La. R.S. 33:175 can be harmonized, as they are not in conflict. La. R.S. 33:174C refers to when the ordinance becomes effective. If the party wishes to prevent the ordinance from becoming effective, the party must post a bond and take a suspens

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Hollingsworth v. City of Minden, 828 So. 2d 514, 2002 WL 1354225 (La. 2002).

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