Judgment rendered April 13, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,230-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
J. SCHUYLER MARVIN, 26TH Plaintiff-Appellee JUDICIAL DISTRICT ATTORNEY
versus
ROBERT BERRY, and CYPRESS Defendants-Appellees BLACK BAYOU RECREATION And WATER CONSERVATION DISTRICT *****
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. C-162,928
Honorable E. Charles Jacobs, Judge
LOUISIANA DEPT. OF JUSTICE, Counsel for Appellants- CIVIL DIVISION Plaintiffs in Intervention, By: Assistant Attorneys General: the State of Louisiana Madeline Carbonette and Attorney General Emily G. Andrews Jeffrey M. Landry, in Angelique Duhon Freel His Official Capacity
J. SCHUYLER MARVIN Counsel for Plaintiff- 26th Judicial District Attorney Appellee, J. Schuyler Marvin LAW OFFICE OF RONALD J. Counsel for Defendant- MICIOTTO, LLC Appellee-Robert Berry By: Ronald J. Miciotto Justin P. Smith
AYRES, SHELTON, WILLIAMS, Counsel for Defendant- BENSON & PAINE, LLC Appellee, Cypress Black By: Lee H. Ayres Bayou Recreation & Alexandra E. Vozzella Water Conservation District
Before PITMAN, STEPHENS, and THOMPSON, JJ. PITMAN, J.
Intervenor-Appellant the State of Louisiana, through the Attorney
General’s Office (the “AG”), appeals the district court’s granting of
summary judgment in favor of Defendants-Appellees Robert Berry and
Cypress Black Bayou Recreational and Water Conservation District (the
“District”); declaration that Berry is not in violation of the Dual
Officeholding and Dual Employment Law, La. R.S. 42:61, et seq.; and
dismissal of the claims of Plaintiff-Appellee J. Schuyler Marvin, the District
Attorney of the 26th Judicial District (the “DA”). For the following reasons,
we affirm the trial court’s denial of the AG’s petition to intervene.
FACTS
On July 10, 2020, the AG notified Berry of a complaint that he was
violating the Dual Officeholding and Dual Employment Law through his
employment as the District’s Executive Director and service as a member of
the District’s Board of Commissioners (the “Board”).
On August 19, 2020, the DA filed a petition for declaratory judgment
(the “DA’s suit”). He stated that the Bossier Parish Police Jury appointed
Berry to the District’s Board, and the Board then hired him as the District’s
Executive Director. The DA requested that the district court declare whether
Berry held incompatible offices in his appointed and employed positions
and, if so, declare one office or employment vacant and enjoin Berry and/or
the District from further carrying out the duties of that office or employment.
On October 23, 2020, Defendants filed a motion for summary
judgment. They requested that the district court determine that there are no
genuine issues as to material fact, render a declaratory judgment that Berry is not in violation of La. R.S. 42:64 and dismiss the DA’s claims with
prejudice.
On November 6, 2020, the DA filed an opposition to the motion for
summary judgment. On November 12, 2020, the parties filed a joint motion
to submit the motion for summary judgment and opposition on briefs and
waive oral argument.
On November 18, 2020, the AG filed a petition to intervene. It stated
that, as necessary for the assertion or protection of any right or interest of the
State, it has the authority to institute, prosecute or intervene in any civil
action or proceeding. It contended that the DA’s petition implicates its
powers and duties to petition for a declaratory judgment against a person
alleged to be holding incompatible offices or employments. It noted that it
filed its own suit (the “AG’s suit”) arising from Berry’s violations and that
the AG’s suit may be affected by the proceedings in the DA’s suit.
Also, on November 18, 2020, the AG filed a motion to continue the
hearing on the motion for summary judgment. It argued that as it had just
intervened in the proceedings, the timetable clearly prejudiced its ability to
adequately represent the State’s interests. The district court denied this
motion.
On November 20, 2020, the AG filed an opposition to Defendants’
motion for summary judgment. It argued that summary judgment was
inappropriate because it had not had the opportunity to conduct discovery
and because genuine issues of material fact existed.
On November 23, 2020, Defendants filed an opposition to the petition
to intervene. They noted that the AG was aware of the DA’s suit in August
2020 when the DA informed the AG of its petition; that in September 2020, 2 the AG filed a separate but identical petition for declaratory judgment; and
that Berry filed an exception of lis pendens in the AG’s suit. They
contended that the AG’s petition to intervene was not timely as it was filed
five days before a hearing on the motion for summary judgment and alleged
that intervention was sought for the sole purpose of delaying the hearing.
On November 23, 2020, Defendants replied to the AG’s opposition to
their motion for summary judgment. They argued that the AG’s motion was
not timely and that it failed to present evidence of a material factual dispute.
On November 23, 2020, the AG filed a response to Defendants’
opposition to its petition to intervene. It argued that its intervention already
occurred without necessity for leave of court; and, therefore, there was
nothing for them to oppose.
A hearing was held on November 24, 2020. The district court denied
the AG’s petition to intervene and motion to continue. It questioned why the
AG waited to intervene in this case and noted that the AG’s suit had the
same facts as the DA’s suit. The district court granted Defendants’ motion
for summary judgment and rendered declaratory judgment that Berry’s
positions as a Board member and Executive Director do not constitute
incompatible offices pursuant to La. R.S. 42:64. On December 2, 2020, the
district court filed a judgment granting Defendants’ motion for summary
judgment.
On December 22, 2020, the AG filed a petition for a suspensive
appeal from the November 24 and December 2, 2020 rulings.1 On
1 The AG also filed a notice of intent to apply for supervisory writs. This court took judicial notice of its receipt of the appeal in this matter and referred the issues raised in the application for supervisory review to the merits of the appeal. 3 December 30, 2020, Defendants filed an opposition to the AG’s petition for
suspensive appeal and argued that the AG is not a party to the instant suit
and does not have the right to appeal.
On September 2, 2021, Berry and the District filed with this court an
exception of no right of action and argued that the AG does not have a right
to appeal. On September 22, 2021, this court signed an order referring the
issues raised in the exception to the merits of the appeal.
DISCUSSION2
The AG argues that the district court improperly denied its petition to
intervene. It states that pursuant to the Louisiana Constitution and La.
C.C.P. art. 1033, it has the right to intervene in this case which it refers to as
an ordinary proceeding. It contends that the dismissal of its intervention
should be reversed and the case remanded to permit it to properly litigate the
claims against Berry.
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Judgment rendered April 13, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,230-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
J. SCHUYLER MARVIN, 26TH Plaintiff-Appellee JUDICIAL DISTRICT ATTORNEY
versus
ROBERT BERRY, and CYPRESS Defendants-Appellees BLACK BAYOU RECREATION And WATER CONSERVATION DISTRICT *****
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. C-162,928
Honorable E. Charles Jacobs, Judge
LOUISIANA DEPT. OF JUSTICE, Counsel for Appellants- CIVIL DIVISION Plaintiffs in Intervention, By: Assistant Attorneys General: the State of Louisiana Madeline Carbonette and Attorney General Emily G. Andrews Jeffrey M. Landry, in Angelique Duhon Freel His Official Capacity
J. SCHUYLER MARVIN Counsel for Plaintiff- 26th Judicial District Attorney Appellee, J. Schuyler Marvin LAW OFFICE OF RONALD J. Counsel for Defendant- MICIOTTO, LLC Appellee-Robert Berry By: Ronald J. Miciotto Justin P. Smith
AYRES, SHELTON, WILLIAMS, Counsel for Defendant- BENSON & PAINE, LLC Appellee, Cypress Black By: Lee H. Ayres Bayou Recreation & Alexandra E. Vozzella Water Conservation District
Before PITMAN, STEPHENS, and THOMPSON, JJ. PITMAN, J.
Intervenor-Appellant the State of Louisiana, through the Attorney
General’s Office (the “AG”), appeals the district court’s granting of
summary judgment in favor of Defendants-Appellees Robert Berry and
Cypress Black Bayou Recreational and Water Conservation District (the
“District”); declaration that Berry is not in violation of the Dual
Officeholding and Dual Employment Law, La. R.S. 42:61, et seq.; and
dismissal of the claims of Plaintiff-Appellee J. Schuyler Marvin, the District
Attorney of the 26th Judicial District (the “DA”). For the following reasons,
we affirm the trial court’s denial of the AG’s petition to intervene.
FACTS
On July 10, 2020, the AG notified Berry of a complaint that he was
violating the Dual Officeholding and Dual Employment Law through his
employment as the District’s Executive Director and service as a member of
the District’s Board of Commissioners (the “Board”).
On August 19, 2020, the DA filed a petition for declaratory judgment
(the “DA’s suit”). He stated that the Bossier Parish Police Jury appointed
Berry to the District’s Board, and the Board then hired him as the District’s
Executive Director. The DA requested that the district court declare whether
Berry held incompatible offices in his appointed and employed positions
and, if so, declare one office or employment vacant and enjoin Berry and/or
the District from further carrying out the duties of that office or employment.
On October 23, 2020, Defendants filed a motion for summary
judgment. They requested that the district court determine that there are no
genuine issues as to material fact, render a declaratory judgment that Berry is not in violation of La. R.S. 42:64 and dismiss the DA’s claims with
prejudice.
On November 6, 2020, the DA filed an opposition to the motion for
summary judgment. On November 12, 2020, the parties filed a joint motion
to submit the motion for summary judgment and opposition on briefs and
waive oral argument.
On November 18, 2020, the AG filed a petition to intervene. It stated
that, as necessary for the assertion or protection of any right or interest of the
State, it has the authority to institute, prosecute or intervene in any civil
action or proceeding. It contended that the DA’s petition implicates its
powers and duties to petition for a declaratory judgment against a person
alleged to be holding incompatible offices or employments. It noted that it
filed its own suit (the “AG’s suit”) arising from Berry’s violations and that
the AG’s suit may be affected by the proceedings in the DA’s suit.
Also, on November 18, 2020, the AG filed a motion to continue the
hearing on the motion for summary judgment. It argued that as it had just
intervened in the proceedings, the timetable clearly prejudiced its ability to
adequately represent the State’s interests. The district court denied this
motion.
On November 20, 2020, the AG filed an opposition to Defendants’
motion for summary judgment. It argued that summary judgment was
inappropriate because it had not had the opportunity to conduct discovery
and because genuine issues of material fact existed.
On November 23, 2020, Defendants filed an opposition to the petition
to intervene. They noted that the AG was aware of the DA’s suit in August
2020 when the DA informed the AG of its petition; that in September 2020, 2 the AG filed a separate but identical petition for declaratory judgment; and
that Berry filed an exception of lis pendens in the AG’s suit. They
contended that the AG’s petition to intervene was not timely as it was filed
five days before a hearing on the motion for summary judgment and alleged
that intervention was sought for the sole purpose of delaying the hearing.
On November 23, 2020, Defendants replied to the AG’s opposition to
their motion for summary judgment. They argued that the AG’s motion was
not timely and that it failed to present evidence of a material factual dispute.
On November 23, 2020, the AG filed a response to Defendants’
opposition to its petition to intervene. It argued that its intervention already
occurred without necessity for leave of court; and, therefore, there was
nothing for them to oppose.
A hearing was held on November 24, 2020. The district court denied
the AG’s petition to intervene and motion to continue. It questioned why the
AG waited to intervene in this case and noted that the AG’s suit had the
same facts as the DA’s suit. The district court granted Defendants’ motion
for summary judgment and rendered declaratory judgment that Berry’s
positions as a Board member and Executive Director do not constitute
incompatible offices pursuant to La. R.S. 42:64. On December 2, 2020, the
district court filed a judgment granting Defendants’ motion for summary
judgment.
On December 22, 2020, the AG filed a petition for a suspensive
appeal from the November 24 and December 2, 2020 rulings.1 On
1 The AG also filed a notice of intent to apply for supervisory writs. This court took judicial notice of its receipt of the appeal in this matter and referred the issues raised in the application for supervisory review to the merits of the appeal. 3 December 30, 2020, Defendants filed an opposition to the AG’s petition for
suspensive appeal and argued that the AG is not a party to the instant suit
and does not have the right to appeal.
On September 2, 2021, Berry and the District filed with this court an
exception of no right of action and argued that the AG does not have a right
to appeal. On September 22, 2021, this court signed an order referring the
issues raised in the exception to the merits of the appeal.
DISCUSSION2
The AG argues that the district court improperly denied its petition to
intervene. It states that pursuant to the Louisiana Constitution and La.
C.C.P. art. 1033, it has the right to intervene in this case which it refers to as
an ordinary proceeding. It contends that the dismissal of its intervention
should be reversed and the case remanded to permit it to properly litigate the
claims against Berry.
Defendants argue that the district court properly denied the AG’s
petition to intervene. They contend that the AG was not entitled to intervene
without leave of court in this summary proceeding. They state that the
district court properly exercised its discretion in denying the petition when
considering the timeliness of the intervention, the resulting delays and the
burdens placed on the existing parties if the intervention was permitted.
La. Const. art. IV, § 8, sets forth the powers and duties of the attorney
general and states, in pertinent part, “[a]s necessary for the assertion or
protection of any right or interest of the state, the attorney general shall have
2 The DA filed an appellate brief and stated that it is an uninterested party in this appeal. 4 authority (1) to institute, prosecute, or intervene in any civil action or
proceeding.”
La. Const. art. V, § 26, sets forth the powers of district attorneys and
states, in pertinent part, that the district attorney:
shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. He shall perform other duties provided by law.
La. R.S. 16:1(B) adds that district attorneys “shall represent the state in all
civil actions.” The district attorneys may bring an action within their
jurisdiction for the state or any of its agencies. Franks v. Mercer, 401 So. 2d
470 (La. App. 2 Cir. 1981).
In La. R.S. 42:65(A)(1)(a), the Dual Officeholding and Dual
Employment Law states that:
The attorney general, a district attorney, or any citizen of the state of Louisiana may by summary process petition for a declaratory judgment against a person alleged to be holding or to have held incompatible offices or employments or holding or have held a combination of offices or employments prohibited in this Part.
In the case sub judice, it was not “necessary” for the AG to intervene
in this case; and, therefore, the district court did not err in denying the AG’s
petition to intervene. The DA filed the petition for declaratory judgment in
this matter, through which he represented the interests of the state in his
district. This action by the DA eliminated the necessity of the AG to
intervene in this suit or to file a separate suit.
Although the AG argues that it had the right to intervene without
leave of court pursuant to the first paragraph of La. C.C.P. art. 1033, this
argument is incorrect. La. C.C.P. art. 1031 classifies intervention as an
incidental demand; and pursuant to La. C.C.P. art. 1036, the mode of 5 procedure employed in the incidental action shall be the same as that used in
the principal action, except as otherwise provided by law. As the DA’s suit
is a summary proceeding, Defendants were not required to file an answer.
La. C.C.P. art. 2593. Therefore, La. C.C.P. art. 1033 is inapplicable to this
case.
Accordingly, this assignment of error lacks merit. This finding
pretermits discussion of the AG’s remaining assignments of error regarding
the motion for summary judgment and of Defendants’ exception of no right
of action.
CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of the
State of Louisiana’s, through the Attorney General’s Office, petition to
intervene. Costs in the amount of $3,638 are assessed to the State of
Louisiana, through the Attorney General’s Office.
AFFIRMED.