LeBlanc v. City of Lafayette

543 So. 2d 1040, 1989 La. App. LEXIS 723, 1989 WL 37032
CourtLouisiana Court of Appeal
DecidedApril 19, 1989
Docket88-591
StatusPublished
Cited by6 cases

This text of 543 So. 2d 1040 (LeBlanc v. City of Lafayette) 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
LeBlanc v. City of Lafayette, 543 So. 2d 1040, 1989 La. App. LEXIS 723, 1989 WL 37032 (La. Ct. App. 1989).

Opinion

543 So.2d 1040 (1989)

E.M. LeBLANC, Jr., et al, Plaintiffs-Appellants,
v.
CITY OF LAFAYETTE, Defendant-Appellee.

No. 88-591.

Court of Appeal of Louisiana, Third Circuit.

April 19, 1989.
Rehearing Denied May 15, 1989.

*1041 Logan & Sallinger, Barry J. Sallinger, Wm. E. Logan, Lafayette, for plaintiffs-appellants.

Voorhis & Labbe, Michael D. Heber, H.D. Melton, III, Lafayette, for defendant-appellee.

Before GUIDRY, LABORDE and KING, JJ.

KING, Judge.

The issue presented by this appeal is whether or not the trial court erred in granting a Motion For Summary Judgment in favor of the defendant and in denying a Motion For Summary Judgment in favor of plaintiffs.

E.M. LeBlanc, Jr., Gertrude LeBlanc, Alton G. Beadle, and Neddie Beadle (hereinafter plaintiffs), all of whom are domiciled in Lafayette Parish, Louisiana, filed suit against the City of Lafayette (hereinafter the City), a political subdivision located in the Parish of Lafayette, Louisiana, seeking to have two annexation ordinances of the City declared invalid. The ordinances sought to annex two areas of land adjacent to the City, known as Rivers Bend and Lower Rivers Bend, into the City. Plaintiffs and the City both filed motions for summary judgment. The trial court granted the City's motion and denied plaintiffs' motion. Plaintiffs then timely filed a suspensive appeal from the judgment of the trial court. We affirm.

FACTS

This suit comes before the court challenging the annexation of two adjacent land areas into the City of Lafayette, Louisiana. On January 2, 1985, the Lafayette City Council adopted Ordinance 0-2837 to annex an adjacent land area known as Lower Rivers Bend into the City. This law suit entitled E.M. LeBlanc, Jr., et al v. City of Lafayette (hereinafter the LeBlanc suit) was filed on January 29, 1985 to contest the Lower Rivers Bend annexation.

On July 22, 1986, the City Council adopted Ordinance 0-3129 to annex a different adjacent land area known as Rivers Bend into the City. On August 22, 1986 the law suit entitled Glenn T. Logan v. City of Lafayette (hereinafter the Logan suit) was filed to contest the Rivers Bend annexation. The plaintiffs in this suit then filed a supplemental and amended petition which also sought to contest the Rivers Bend annexation.

The City of Lafayette filed a motion to consolidate these two cases, which was granted on October 22, 1987. These suits were consolidated for trial in Judge Durwood Conque's Division of the Fifteenth Judicial District Court pursuant to Rule 15 of the Rules of the Fifteenth Judicial District Court and remain consolidated on appeal. Since the law and relevant facts are common to both suits, our opinion here is equally applicable to both suits. However, we render a separate judgment in the consolidated *1042 appeal of Glenn T. Logan v. City of Lafayette, 543 So.2d 1045 (La.App. 3 Cir.1989).

In response to the LeBlanc suit the City filed a declinatory exception of insufficiency of service and a peremptory exception to the supplemental and amending petition contesting the Rivers Bend annexation. In response to the Logan suit the City filed a declinatory exception of insufficiency of service and a peremptory exception of no right or cause of action. Additionally, the City filed a motion for summary judgment in each suit on the grounds that the pleadings, admissions, and the affidavits and exhibits on file, show that there was no genuine issue of material fact and that the City was entitled to judgment in its favor as a matter of law.

On November 16, 1987 the various exceptions and motions for summary judgment filed by the City were submitted on briefs to Judge David S. Foster, who was sitting as a Judge Ad Hoc for the Fifteenth Judicial District Court for the Parish of Lafayette, Louisiana, and were taken under advisement. Judge Foster rendered judgment on December 11, 1987 in favor of the City on the exception of insufficiency of service of process in the LeBlanc and Logan suits and in favor of the City on the exception of prescription to the supplemental and amended petition filed in the LeBlanc suit contesting the Rivers Bend annexation. Judge Foster did not rule on the City's peremptory exception of no right or cause of action filed in the Logan suit or the City's motions for summary judgment filed in both the LeBlanc and Logan suits.

On January 12, 1988 the plaintiffs in the consolidated suits filed a motion for summary judgment on the grounds that the City ordinances annexing the Rivers Bend and Lower Rivers Bend areas were invalid since they were not filed with the Clerk of Court of the Fifteenth Judicial District Court for the Parish of Lafayette, Louisiana within ten days after the date each of the ordinances were adopted. Plaintiffs also opposed the City's motions for summary judgment in the consolidated suits, which were then under advisement and had not been ruled on by Judge Foster, for the reasons that the City had failed to comply with the requirements of law for annexation of the areas into the City.

We note that the hearing held by Judge Foster on November 16, 1987 and his ruling issued on December 11, 1987 on the exceptions and motions in the consolidated suits were rendered at a time when he had no authority to act in the consolidated suits. Rule 12, Rules of the Fifteenth Judicial District Court; Prestridge v. Town of Carencro, 534 So.2d 133 (La.App. 3 Cir. 1988). However, neither plaintiffs nor defendant have complained of this irregularity or contested it by appeal. For this reason it was proper for Judge Conque to rehear and rule on the City's motion for summary judgment in the two consolidated suits which Judge Foster had previously heard and had under advisement. Rule 12, supra; Prestridge v. Town of Carencro, supra.

On January 15, 1988, with the express pre-trial agreement of the parties, the cross motions for summary judgment in the consolidated suits were argued before and taken under advisement by Judge Durwood Conque. On January 28, 1988 Judge Conque issued written reasons for judgment denying plaintiffs' motions for summary judgment and granting the City's motions for summary judgment, and dismissing both of the consolidated suits. A written judgment was signed on February 1, 1988. Plaintiffs in each consolidated suit subsequently filed a motion for a new trial which was denied. Plaintiffs timely suspensively appeal the dismissal of their suits.

MOTIONS FOR SUMMARY JUDGMENT

LSA-C.C.P. Art. 966 provides that a motion for summary judgment shall be granted if the pleadings, depositions, affidavits, interrogatories, and admissions on file demonstrate that there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law.

On appeal, plaintiffs contend that the trial court erred in not granting their motion for summary judgment as a matter of law. Plaintiffs' motion for summary *1043 judgment is based upon the failure of the City to file a description of the entire boundary of the municipality, as changed by the annexation ordinances at issue, with the Clerk of the District Court for Lafayette Parish, Louisiana within ten days of the date of adoption of the ordinance at issue. Plaintiffs contend that for this reason the annexation ordinances are invalid. Plaintiffs base their argument upon the provisions of LSA-R.S. 33:178(A) which provides that:

"A.

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Bluebook (online)
543 So. 2d 1040, 1989 La. App. LEXIS 723, 1989 WL 37032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leblanc-v-city-of-lafayette-lactapp-1989.