Louis C. Minifield v. Terry L. Gardner, Mayor for the City of Minden and the City of Minden

• Court: Louisiana Court of Appeal
• Decided: August 10, 2022
• Docket: 54,686-CA
• Status: Published

Opinion

Judgment rendered August 10, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,686-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

LOUIS C. MINIFIELD Plaintiff-Appellant

versus

TERRY L. GARDNER, MAYOR Defendant-Appellees FOR THE CITY OF MINDEN AND THE CITY OF MINDEN

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 78,742

Honorable R. Lane Pittard, Judge

MINIFIELD & HARPER Counsel for Appellant By: Pamela Rene Harper

PETTIETTE, ARMAND & DUNKELMAN Counsel for Appellees By: Edwin Henry Byrd, III

Before MOORE, COX, and MARCOTTE, JJ. MOORE, C.J.

Louis C. Minifield, the former city attorney for the City of Minden,

Louisiana, sought a declaratory judgment to annul the mayor’s proclamation

that Minifield had resigned as city attorney and that a new city attorney had

been appointed; he also demanded recognition as city attorney, damages, and

attorney fees. Terry L. Gardner, the mayor of Minden, filed a motion for

summary judgment, which the district court granted, dismissing all claims.

Minifield now appeals; for the reasons expressed, we affirm.

FACTUAL BACKGROUND

In January 2019, the Minden City Council elected Minifield as city

attorney, to serve through the end of 2022. However, on May 6, 2020,

Minifield advised Mayor Gardner by letter that he would retire from the

position effective May 31, 2020. Mayor Gardner accepted the resignation and

congratulated him. Minifield also notified the Municipal Employees

Retirement System (“MERS”) of his imminent resignation.

Mayor Gardner called seven city council meetings between May 4 and

May 20, each with an agenda item of replacing the city attorney, but none of

these meetings had a quorum present; it was the height of the first COVID-19

lockdown. Feeling that the office of city attorney was vital to the operation of

the city, Mayor Gardner met with a candidate, Jimmy Yocom, and decided he

would be a good fit.

On May 21, Mayor Gardner issued a proclamation declaring a state of

public health emergency, invoking the authority of La. R.S. 29:737,

suspending the section of the Minden Code of Ordinances, § 2-116, that

required the city council to elect the city attorney, and announcing that Jimmy Yocom would serve as city attorney. On May 27, he sent Yocom’s

paperwork to the city clerk, and it was approved.

Meanwhile, Minifield apparently had a change of heart. The same day

that Yocom’s hiring was approved, May 27, Minifield wrote MERS to advise

that he did “hereby withdraw [his] application for retirement that was to be

effective June 1, 2020.” Mayor Gardner testified by deposition that he

received a fax copy of this around 8:00 p.m. on May 28; however, he had

already accepted the resignation and hired somebody else, so he advised

MERS that the position was no longer available. MERS refused to reinstate

Minifield’s contributions and accrual of benefits.

PROCEDURAL HISTORY

Minifield filed this petition on July 27, 2020, against Mayor Gardner,

in his capacity as mayor, and against the city. He alleged that the mayor (1)

did not hire Yocom until after he received Minifield’s withdrawal of

resignation; (2) did not follow the procedure of R.S. 29:737, in that he did not

first notify the parish president, the Governor’s Office of Homeland Security,

or the Webster Parish clerk of court of the state of emergency; and (3) caused

the lack of quorum at the city council meetings by also attempting to fill the

vacant District A seat, when other council members did not approve of his

pick, so they stayed away from the meetings. Minifield argued that Mayor

Gardner had manipulated the Emergency Response statute, R.S. 29:737, and

M.C.O. § 2-116 to remove him as city attorney. He demanded a declaration

that the mayor’s proclamation of May 21 was null and void, as was the hiring

of Yocom; that Minifield should be restored to the position of city attorney,

with backpay and all retirement benefits through MERS; and a prayer for

general damages. 2 Mayor Gardner and the city moved for summary judgment, attaching

his own affidavit; copies of the emergency declaration; and copies of

Minifield’s resignation letter and attempted withdrawal thereof. He argued

that once an employee has tendered his resignation, and the employer has

accepted it, he cannot unilaterally rescind it, citing Stern v. New Orleans City

Planning Comm’n, 03-0817 (La. App. 4 Cir. 9/17/03), 859 So. 2d 696, and

Palmisano v. Dept. of Fleet Mgmt., Parish of Jefferson, 97-745 (La. App. 5

Cir. 12/10/97), 704 So. 2d 862, writ denied, 98-0031 (La. 3/20/98), 715 So.

2d 1208. In essence, he urged, no facts that Minifield could offer would alter

the situation.

Minifield opposed the motion, arguing that under § 2-116, the city

council, and not the mayor, is the appointing authority; the council has never

delegated this authority to the mayor; the mayor had no authority to reject his

rescission of resignation; and, the mayor did not comply with R.S. 29:737. In

support, Minifield offered the affidavits of six current or former city council

members, all stating that the council “had never delegated its authority to the

Minden Mayor or any other person in city government.” One affiant, District

C council member Vincen Bradford, also stated that he refused to attend those

city council meetings because the mayor was trying to “stack the deck” by

naming his own pick as District A council member.

Mayor Gardner responded that nobody could contend that the COVID-

19 situation was not an emergency and that the mayor could not exercise

emergency power; the only claim was that he failed to communicate this to

the parish president, and Minifield offered no evidence that the mayor failed

to do so. He also argued that council member Bradford’s reason for

boycotting meetings was irrelevant; there was still no quorum. Finally, 3 Mayor Gardner objected to Minifield’s summary judgment evidence: the

affidavits stated legal conclusions, but no factual bases therefor.

Minifield filed a motion to strike Mayor Gardner’s reply brief, urging

that it asserted, for the first time, the mayor’s emergency powers; he argued

this was an inappropriate expansion of the pleadings, La. C.C.P. art. 966 F.

The court referred Minifield’s motion to the merits of the MSJ.

ACTION OF THE DISTRICT COURT

At the hearing, the district court stated that Minifield’s motion to strike,

alleging expansion of the pleadings, was not “really of any consequence.”

The court further stated that Stern v. New Orleans City Planning Comm’n,

supra, “seems to be on all fours”: “the rule that came out of there is that the

resignation cannot be just simply unilaterally rescinded.” Next, § 2-116 refers

only to electing the city attorney and does not require the city council’s

approval to accept his resignation. Finally, the COVID-19 issues were not

really relevant; Minifield resigned, the city accepted his resignation, and he

now had no claim against the mayor or the city.

The court granted summary judgment, dismissing all claims.

Minifield applied for a writ, which this court granted and remanded for

perfection as an appeal, Minifield v. Gardner, 54,323 (La. App. 2 Cir.

10/21/21). He now raises two assignments of error.

APPLICABLE LAW

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief sought by

a litigant. Murphy v. Savannah, 18-0991 (La. 5/8/19), 282 So. 3d 1034. The

summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of civil actions (except for certain domestic 4 matters) and is favored by our law. La. C.C.P. art. 966 A(2). A court must

grant a motion for summary judgment if, after an opportunity for adequate

discovery, the motion, memorandum, and supporting documents show that

there is no genuine issue as to material fact and that the mover is entitled to

judgment as a matter of law. La. C.C.P. art. 966 A(3); Murphy v. Savannah,

supra.

The court may consider only those documents filed in support of or in

opposition to the motion for summary judgment, and shall consider any

documents to which no objection is made. La. C.C.P. art. 966 D(2); Davis v.

Hixson Autoplex of Monroe LLC, 51,991 (La. App. 2 Cir. 5/23/18), 249 So.

3d 177. Supporting and opposing affidavits shall be made on personal

knowledge and shall set forth facts as would be admissible in evidence. La.

C.C.P. art. 967 A. An affidavit which is devoid of specific facts and based on

conclusory allegations is not sufficient to defeat a summary judgment.

Murphy v. Savannah, supra. Appellate review of a summary judgment is de

novo, with the appellate court using the same criteria that governed the trial

court’s determination, i.e., whether there is any genuine issue of material fact

and whether the mover is entitled to judgment as a matter of law. Murphy v.

Savannah, supra.

A man is at liberty to dismiss a hired servant attached to his person or

family, without assigning any reason for so doing. The servant is also free to

depart without assigning any cause. La. C.C. art. 2747; Hayes v. University

Health Shreveport, 21-01601 (La. 1/7/22), 332 So. 3d 1162. Once a public

employee’s voluntary resignation is accepted by the appointing authority, and

the employee attempts to rescind his resignation, the appointing authority is

under no obligation to accept the rescission. Detillier v. Borne, 15-129 (La. 5 App. 5 Cir. 9/23/15), 176 So. 3d 669; Stern v. New Orleans City Planning

Comm’n, supra; Palmisano v. Dept. of Fleet Mgmt., supra.

The appointment of a city attorney for the City of Minden is regulated

by M.C.O. § 2-116, which provides:

Sec. 2-116. – Appointment, qualifications, general duties.

(a) The city council shall elect a licensed practitioner of law who resides in the city, who shall be the legal advisor of the city authorities in all matters properly pertaining to their municipal duties, who shall bring all suits in which the city is party plaintiff, and who shall defend all suits in which the city has been made party defendant. The city attorney shall generally look after the legal affairs of the city and act in cases where the interest of the city may require it. He shall also attend all regular meetings of the city council and special meetings when notified by the mayor. He shall be the prosecuting officer in city court.

(b) The city attorney shall hold office during the time for which the city council electing him has been elected.

The Emergency Response statute, La. R.S. 29:737 A, provides, in part:

[W]henever a situation develops within or outside of a municipality which the chief executive officer of the municipality determines requires immediate action to preserve the public peace, property, health, or safety within the municipality or to provide for continued operation of municipal government, nothing in this Chapter shall diminish the authority of the chief executive officer of the municipality to undertake immediate emergency response measures within the municipality to preserve the public peace, property, health, or safety within the municipality or to provide for continued operation of the municipal government. Whenever the chief executive officer of the municipality undertakes immediate emergency response measures because of a disaster or emergency, he shall immediately notify the parish president and advise him of the nature of the disaster or emergency and the emergency response measures being undertaken.

DISCUSSION By his first assignment of error, Minifield urges that the district court

committed legal error “when it failed to consider the objection of mayor Terry

Gardner and the city when they objected to paragraph number 6 of the

affidavits of Theron W. Winzer, Magaline Quarles, Vincen Bradford, Wayne 6 Edwards and Terika Williams-Walker, and paragraph number 5 of the

affidavit of Joseph ‘Joe’ Cornelius wherein they testified that the mayor is not

the ‘appointing authority’ with regards to the city attorney’s position.” He

contends that these affiants established that the city council is the appointing

authority, and the council makes all decisions to “hire, fire, accept and/or

reject a city attorney, and/or any recission [sic] of resignation and/or any

recission [sic] of retirement by the city attorney; and that the Mayor is not the

appointing authority.” He contends that these affidavits created a genuine

issue of material fact for trial.1

By its plain meaning, § 2-116 grants the city council the authority to

elect the city attorney. It grants no other authority with respect to the city

attorney, such as dismissing him or accepting his resignation or attempted

rescission thereof. The personal beliefs of certain current and former council

members that they possessed this authority were merely conclusory, as they

did not set forth facts that would be admissible at trial. La. C.C.P. art. 967 A;

Murphy v. Savannah, supra. On de novo review, we find no error in the

district court’s decision to disregard these affidavits. This assignment lacks

merit.

By his second assignment of error, Minifield urges that the district

court committed legal error “when it failed to consider paragraph numbers 4,

5 and 7 of the affidavits of Theron W. Winzer, Magaline Quarles, Vincen

Bradford, Wayne Edwards and Terika Williams-Walker, and paragraph

numbers 2, 3, 4 and 6 of the affidavit of Joseph ‘Joe” Cornelius wherein they

testified that the Minden City Council has never delegated its authority to the

1 As phrased, this assignment seems to contend that the court erred in failing to rule on Mayor Gardner’s objections, but the thrust of the argument is that the court erred in failing to consider Minifield’s affidavits. 7 Minden Mayor, nor any other person in city government, and there was no

objection.” He contends that the court was required to consider these

paragraphs because, under La. C.C.P. art. 966 D(2), they were never objected

to. Pottinger v. Price, 19-0183 (La. App. 1 Cir. 10/23/19), 289 So. 3d 1047.

He submits that once these are considered, they create a genuine issue

whether the mayor could refuse Minifield’s attempt to withdraw his

resignation.

As noted above, the affiants’ personal beliefs that they possessed

authority greater than that conferred by § 2-116 were merely conclusory and

did not set forth admissible facts, as required by La. C.C.P. art. 967 A. Even

though Mayor Gardner did not object to the specific paragraphs of these

affidavits, the court was not required to consider them. This assignment of

error lacks merit.

In connection with both assignments, Minifield asserts that Stern,

Palmisano, and Detillier, supra, are all distinguishable in that they were civil

service cases in which the appointing authority refused to rehire the employee

after a letter of resignation. Here, he contends, the city council was the

appointing authority, and it never accepted his resignation; hence, the

resignation was simply ineffective. However, § 2-116 does not grant the city

council the power to accept or reject a resignation. Under Louisiana’s at-will

employment scheme, the employee is free to depart without assigning any

cause. La. C.C. art. 2747. The running theme in the cited cases is that once

he does so, he may not unilaterally withdraw the resignation. Once the city

accepted the resignation and hired a new city attorney, it could not accept the

attempted rescission. This argument lacks merit.

8 Finally, Minifield correctly shows that the M.C.O. does not explicitly

assign the authority to fire, or accept the resignation of, the city attorney; this

is not among the mayor’s duties, § 2-27. However, the Emergency Response

Statute, La. R.S. 29:737, confers special powers when the chief executive

officer of the municipality determines that a situation has developed requiring

immediate action to, among other things, provide for the continued operation

of the municipal government. Owing to COVID-19, the governor declared a

public health emergency on March 11, 2020, which was expanded to a stay-

at-home order on March 22; this was in force when the events in this case

occurred, until the entry of “Phase One” (very limited) reopening on May 15.

See Governor’s Proclamations 33 JBE 2020, 52 JBE 2020, 58 JBE 2020. In

short, a state of emergency existed, and Minifield has made no showing that

the acceptance of his resignation, and the appointment of a new city attorney,

were not necessary for the continued operation of the city or that Mayor

Gardner failed to notify the parish president of the measures being taken.

On the facts presented, we find no genuine issue of material fact and

find that Mayor Gardner is entitled to judgment as a matter of law.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be

paid by Louis C. Minifield.

AFFIRMED.