Kristine Russell, in her official capacity as District Attorney for Lafourche Parish v. James B. Cantrelle, in his official capacity as Lafourche Parish President; and Brent Abadie, individually

• Court: Louisiana Court of Appeal
• Decided: February 21, 2020
• Docket: 2019CA0284
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2019 CA 0284

KRISTINE RUSSELL, IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR LAFOURCHE PARISH

VERSUS

JAMES B. CANTRELLE, IN HIS OFFICIAL CAPACITY AS LAFOURCHE PARISH PRESIDENT; AND BRENT ABADIE, INDIVIDUALLY

Judgment rendered FEB 2 12020

On Appeal from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana No. 136896, Div. " E"

The Honorable F. Hugh Larose, Judge Presiding

Kristine Russell Attorney for Plaintiff/Appellee District Attorney Lafourche Parish Thibodaux, Louisiana

James A. Cobb, Jr. Attorneys for Defendants/ Appellants Jennifer C. Deasey James B. Cantrelle, Lafourche New Orleans, Louisiana Parish President, and Brent Abadie, Individually

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ. HOLDRIDGE, J.

This appeal presents the issue of whether the trial court erred in granting the

plaintiff' s request for a preliminary injunction in a suit for a declaratory judgment

and preliminary injunction regarding a home rule charter. For the following

reasons, we dismiss the appeal as moot.

FACTS AND PROCEDURAL HISTORY

The Lafourche Parish Government is a political subdivision in Lafourche

Parish that is governed by a Home Rule Charter (" the Charter"). The Charter

provides for the office of the Administrator, the chief administrative officer of the

parish, who has the powers and performs the functions as prescribed by the Charter

or parish ordinance or as delegated by the parish president. On August 29, 2018,

Lafourche Parish President James B. Cantrelle (" the Parish President") appointed

Brent Abadie to serve as interim Administrator. When the Parish President

submitted Mr. Abadie' s name to the Lafourche Parish Council (" the Council") as

his nomination for Administrator in a permanent capacity, Mr. Abadie did not

receive the required votes at the Council' s meeting on October 1, 2018, and his

nomination failed. Thereafter, Mr. Abadie continued to serve as interim

Administrator.

On October 19, 2018, Kristine Russell, the Lafourche Parish District

Attorney "( the District Attorney"), filed suit in her official capacity against the

Parish President, in his official capacity, and Mr. Abadie, individually, seeking a

declaration that Mr. Abadie was ineligible to hold the position of interim

Administrator after his failed nomination for permanent Administrator pursuant to

Article III, Section 3( D)( 5) of the Charter.' The District Attorney requested a

declaratory judgment stating that Mr. Abadie' s continuation as Administrator after

1 The Charter was attached to the petition along with pertinent emails, District Attorney opinions, and a letter. 2 October 1, 2018, violated the Charter and that any acts undertaken by Mr. Abadie were null. The District Attorney also sought to enjoin Mr. Abadie from continuing

as Administrator and from acting on behalf of the Parish as Administrator on the

basis that his actions following the Council' s vote were without effect.

The defendants, the Parish President and Mr. Abadie, filed exceptions of no

right of action, no cause of action, and prematurity as to the preliminary injunction

portion of the suit. In the exception of no right of action, the Parish President

asserted that the District Attorney was ethically prohibited from suing him,

alleging that he was her client pursuant to La. R.S. 16: 2( E) 2 and 42: 261( A).' In the

exception of no cause of action, Mr. Abadie asserted that the District Attorney had

not stated a cause of action against him individually, alleging that the suit, on its

face, sought a declaration of the meaning of the Charter and the Parish President' s

decision to keep him as the interim Administrator. Lastly, in the exception of

prematurity, both the Parish President and Mr. Abadie alleged that the District

Attorney' s request for a preliminary injunction based on entitlement to further

relief under La. C. C. P. art. 1878 in a declaratory judgment action was premature

2 Louisiana Revised Statutes 16: 2( E) states:

In the parish of Lafourche, the district attorney shall ex officio and without extra compensation, general or special, be the regular attorney and counsel for the parish governing authority, the school board, and every state board or commission domiciled therein, including levee boards, hospital and asylum boards, education boards, and all state boards or commissions the members of which, in whole or in part, are elected by the people or appointed by the governor or other prescribed authority.

3 Louisiana Revised Statutes 42: 261( A) states, in pertinent part:

T] he district attorneys of the several judicial districts other than the parish of Orleans shall, ex officio and without extra compensation, general or special, be the regular attorneys and counsel for the parish governing authorities, parish school boards, and city school boards within their respective districts and of every state board or commission domiciled therein, the members of which, in whole or in part, are elected by the people or appointed by the governor or other prescribed authority, except the state boards and commissions domiciled at the city of Baton Rouge, and all boards in charge or in control of state institutions.

3 because a declaratory judgment had not been rendered! Despite the caption of

their pleading and their initial statement limiting their exceptions to the preliminary

injunction, the issues raised in the exceptions pertained to both the preliminary

injunction and the declaratory judgment. Moreover, the defendants sought

dismissal of the entire suit, or, alternatively, only the injunction portion of the suit.

A hearing on the exceptions and preliminary injunction was held on

November 16, 2018. After hearing the parties' arguments, the trial court denied all

of the defendants' exceptions and granted a preliminary injunction, prohibiting Mr. Abadie from " performing any acts as Administrator." At the hearing the

defendants gave notice of their intent to appeal the rulings and asked the court to

stay its rulings pending the appeal, which the trial court denied. A written

judgment reflecting the trial court' s rulings was signed on December 5, 2018. The

defendants timely filed their notice of intent to seek supervisory review of the

denial of their exceptions. The defendants again requested a stay, which was

denied. The defendants also appealed from that part of the trial court' s judgment

granting the preliminary injunction. The writ application was timely filed in this

court, which then referred it to the panel considering the appeal and denied the

defendants' request for a stay. 5 Russell v. Cantrelle, 2018- 1762 ( La. App. 1 Cir.

1/ 8/ 19) ( unpublished writ action).

4 Louisiana Code of Civil Procedure article 1878( A) states:

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

5 When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to review of the final judgment appealed. Young v. City of Plaquemine, 2004- 2305 ( La. App. 1 Cir. 11/ 4/ 05), 927 So. 2d 408, 411.

0 The matter proceeded in the trial court with the defendants answering the

petition and filing a reconventional demand seeking a declaratory judgment

regarding Mr. Abadie' s ability to serve as interim Administrator after his

nomination for permanent Administrator failed. After a trial on January 15, 2019,

the trial court signed a judgment on February 13, 2019, wherein it found that Mr.

Cantrelle' s actions in maintaining Mr. Abadie as interim Administrator following

the Council' s rejection of his nomination and Mr. Abadie' s continued assumption

of that position violated the Charter. The trial court did not grant declaratory relief

as to whether the Council' s rejection of Mr. Abadie' s nomination constituted a

rejection of his position as interim Administrator because it found the proper party

had not been joined. From this judgment, the defendants appealed. They also filed

a motion to consolidate the appeal of the December 15, 2018 judgment, the writ,

and the appeal of the February 13, 2019 judgment ( 2019 CA 0815). This court

denied the motion on October 1, 2019.

In this appeal of the December 15, 2018 judgment on the preliminary

injunction, the defendants assert six assignments of error.' In the first assignment

of error, the defendants contend that the trial court erred in denying their exception

of no right of action. In the second assignment of error, the defendants contend

that the trial court erred in denying Mr. Abadie' s exception of no cause of action.

In the third assignment of error, the defendants contend that the trial court erred in

denying their exception of prematurity and in issuing a preliminary injunction. In

their fourth assignment of error, the defendants contend that the trial court

erroneously left the executive branch of the Lafourche Parish Government with

no lawyer at all by failing to recognize the nature or consequence of the ` legal

6 We note that the defendants assert the same assignments of error in the later appeal, and the briefs of the defendants and the District Attorney are identical in both appeals.

5 relationship' created by La. R.S. 16: 2( E)." In their fifth assignment of error, the

defendants challenge the trial court' s refusal of declaratory relief to them on their

reconventional demand and its interpretation of the Charter. Lastly, in their sixth

assignment of error, the defendants challenge the trial court' s denial of their

motion in limine that was filed before the hearing on the declaratory judgment

portion of the suit.

LAW AND ANALYSIS

On appeal, the defendants raise several issues for review regarding the

merits of their contentions, some of which do not pertain to this appeal of the

preliminary injunction judgment, but to the declaratory judgment appeal.'

However, we must first address whether this appeal is moot, an issue raised by the

District Attorney in her brief. An issue is moot when a judgment or decree on that

issue has been " deprived of practical significance" or " made abstract or purely

academic." In re E.W., 2009- 1589 ( La. App. 1 Cir. 5/ 7/ 10), 38 So. 3d 1033, 1037.

Thus, a case is moot when a rendered judgment or decree can serve no useful

purpose and give no practical relief or effect. Id., 38 So. 3d at 1036. It is well

settled that courts will not decide abstract, hypothetical, or moot controversies, or

render advisory opinions with respect to such controversies. Tobin v. Jindal,

2011- 0838 ( La. App. 1 Cir. 2/ 10/ 12), 91 So. 3d 317, 321. A " justiciable

controversy" is one presenting an existing actual and substantial dispute involving

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties, pending a trial on the merits. Tobin v. Andal, 2011- 0838 ( La. App. 1 Cir. 2/ 10/ 12), 91 So. 3d 317, 320. Although the judgment on the preliminary injunction is interlocutory, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. La. C. C. P. art. 3612( B); Tobin, 91 So. 3d at 320. A

preliminary injunction judgment is an interlocutory judgment for which an appeal is expressly provided by law. See La. C.C. P. art. 2083( C). Because a preliminary injunction judgment is interlocutory, the decretal language requirements applicable to final judgments do not apply. See La. C. C. P. art. 1918 (" A final judgment shall be identified as such by appropriate language."), La. C. C. P. art. 1841 ("A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. A judgment that determines the merits in whole or in part is a final judgment."). See also La. C. C. P. art. 1914.

31 the legal relations of parties who have real adverse interests and upon whom the

judgment of the court may effectively operate through a decree of conclusive

character. Tobin, 91 So. 3d at 321.

If the case is moot, there is no subject matter on which the judgment of the

court can operate. That is, jurisdiction, once established, may abate if the case

becomes moot. The controversy must normally exist at every stage of the

proceeding, including appellate stages. Stevens v. St. Tammany Parish

Government, 2016- 0197 ( La. App. 1 Cir. 1/ 18/ 17), 212 So. 3d 562, 566- 67.8

In the instant matter, we find the District Attorney' s preliminary injunction

action is moot based on the language of the Charter. The basis of the District

Attorney' s injunction was that Mr. Abadie could not continue to serve as interim

Administrator after the Council rejected his nomination. Article III, Section

3( D)( 5) of the Charter, relative to the appointment of the Administrator,

specifically provides:

A newly elected or re- elected President shall within sixty ( 60) days after assuming office, submit nominations for the Administrator and the heads of all departments, except Civil Service, to the Council for confirmation. Within thirty ( 30) days after the President makes the nomination, the Council shall vote to confirm or reject each nomination by resolution. If a nomination for Administrator or head of a department is confirmed by the Council, the person confirmed shall assume the office and serve thereafter at the pleasure of the President, unless removed by the Council as provided for in this Charter. If a nomination for Administrator or head of a

department is rejected by the Council, the person rejected shall not assume the office to which nominated, and the President shall submit a new nomination within sixty ( 60) days after the date of the rejection. The person rejected shall not be eligible for re- nomination for the position involved for a period of six ( 6) months after the date of the rejection vote. The President may appoint an

8 We note that the issue of subject matter jurisdiction may be raised at any time, even by the court on its own motion, and at any stage of an action. Tobin, 91 So. 3d at 321 n.6. Thus, it is of no consequence that defendants raised the issue of mootness for the first time in their appellate brief without filing an answer to the appeal or a motion to dismiss the appeal. Id. In the interest of judicial economy, an appellate court may consider the possibility of mootness on its own motion and dismiss the appeal if the matter has in fact become moot. Id.

7 interim Administrator or department head who shall serve until a permanent Administrator or department head is confirmed. If a vacancy occurs in the office of Administrator or any department head after a person has been initially confirmed in that position, the President shall submit a nomination to fill the vacancy to the Council within sixty ( 60) days after the date on which the vacancy occurs. The Council shall act on the nomination within thirty ( 30) days thereafter. ( Emphasis added.)

The Charter provides that a person whose nomination is rejected for

Administrator " shall not be eligible for renomination for the position involved for a

period of six ( 6) months after the date of the rejection vote." In this case, the

rejection vote occurred on October 1, 2018; therefore, the six-month period after

which Mr. Abadie' s nomination was rejected expired on April 1, 2019. After April

1, 2019, Mr. Abadie was eligible to be renominated for the position of

Administrator. In her petition, the District Attorney stated that because of this

provision, she did not seek to make the requested preliminary injunction

permanent, and she also asked that the preliminary injunction not exceed the period

of ineligibility set forth in the Charter, that is, the six-month period. The District

Attorney in the petition also referred to an opinion from a prior District Attorney

that concluded that the person named interim Administrator could not be someone

who was rejected by the Council, unless the mandatory six- month time period had

elapsed.9 While the trial court' s judgment on the preliminary injunction prohibited

Mr. Abadie from performing any acts as Administrator, the District Attorney only

sought injunctive relief for the six-month period during which Mr. Abadie was

ineligible to be renominated for permanent Administrator. The trial court in

deciding the preliminary injunction stated that Mr. Abadie could not act as the

interim Administrator " until he is [ renominated] or reapplies in the six month time

9 The District Attorney also issued an opinion in this matter consistent with her allegations in the petition.

n. frame." As this period has expired, any ruling by this court concerning the trial

court' s grant of a preliminary injunction would have no effect because the six-

month time period upon which the request for injunctive relief was based has

passed. A court of appeal will not review a case when only injunctive relief is

sought and the need for that relief has ceased to be a justiciable issue. Tobin, 91

So. 3d at 321.

In brief, the District Attorney pointed out that exceptions to the mootness

doctrine have been recognized. A finding of mootness is precluded when: ( 1) the

challenged action was in its duration too short to be fully litigated prior to its

cessation or expiration, and ( 2) there is a reasonable expectation that the same

complaining party will be subjected to the same action again. Louisiana State Bd.

of Nursing v. Gautreaux, 2009- 1758 ( La. App. 1 Cir. 6/ 11/ 10), 39 So. 3d 806,

812, writ denied, 2010- 1957 ( La. 11/ 5/ 10), 50 So. 3d 806. We do not find these

exceptions applicable in the instant case because the issues raised in this appeal

have been raised in the appeal of the declaratory judgment.

Even though the requirements of justiciability are satisfied when the suit is

initially filed, when the fulfillment of these requirements lapses at some point

during the course of litigation before the moment of final disposition, mootness

occurs. In such a case, there may no longer be an actual controversy for the court

to address, and any judicial pronouncement on the matter would be an

impermissible advisory opinion. See City of Hammond v. Parish of

Tangipahoa, 2007- 0574 ( La. App. 1 Cir. 3/ 26/ 08), 985 So. 2d 171, 178 ( citing

Cat' s Meow, Inc. v. City of New Orleans Through Department of Finance, 98-

0601 ( La. 10/ 20/ 98), 720 So. 2d 1186, 1193- 94). We find that any opinion in the

instant matter would be purely advisory, and rendition of such opinions is

9 reprobated by law. Accordingly, we conclude that the defendants' appeal of the

preliminary injunction is moot. lo

CONCLUSION

For the above reasons, the appeal of the preliminary injunction portion of the

judgment of December 5, 2018, is hereby dismissed as moot. Costs of the appeal

in the amount of $1, 740.75 are assessed against James B. Cantrelle Lafourche, in

his official capacity as Lafourche Parish President, and Brent Abadie, individually.

APPEAL DISMISSED.

10 We note that the petition herein for a preliminary injunction failed to state a cause of action because it was not coupled with a request for a permanent injunction. " The action is for an injunction; the temporary restraining order and preliminary injunction are ancillary; the right to the permanent injunction must be prove[ n] before a preliminary injunction may issue." La. C. C. P. art. 3601, Editor' s notes, citing Equitable Petroleum v. Central Transmission, 431 So. 2d 1084, 1087 ( La. App. 2 Cir. 1983). See also Marchand v. Texas Brine Company, LLC, 2018- 0621 ( La. App. 1 Cir. 1/ 28/ 19), 272 So. 3d 101, 103, writ denied, 2019- 0455 ( La. 9/ 6/ 19), 278 So. 3d 372. However, because we are dismissing this appeal as moot, we do not notice this failure to disclose a cause of action on our own motion. See La. C. C. P. art. 927( B).

flV STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

KRISTINE RUSSELL, IN HER OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR LAFOURCHE PARISH

JAMES B. CANTRELLE, IN HIS OFFICIAL CAPACITY AS LAFOURCHE PARISH PRESIDENT; AND BRENT ABADIE, INDIVIDUALLY

McClendon, ]., dissenting.

I disagree with the majority's finding that the appeal is moot. Although the

language of the Charter provides that the ineligibility period for re -nomination expires

six months after the date of rejection, there is no language in the judgment limiting the

preliminary injunction to a six- month time period. Therefore, I respectfully dissent.