STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2021 CA 0123
MARCO OUTDOOR ADVERTISING, INC.
VERSUS CH STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, BY AND THROUGH SHAWN WILSON IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, PELICAN OUTDOOR ADVERTISING, INC.,
Atr- AND KFK GROUP, INC.
Judgment Rendered: JUL 1 3 2021
CONSOLIDATED WITH
2021 CA 0353
VERSUS
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, BY AND THROUGH SHAWN WILSON IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, PELICAN OUTDOOR ADVERTISING, INC., AND KFK GROUP, INC.
2021 CA 0354
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, BY AND THROUGH SHAWN WILSON IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, PELICAN OUTDOOR ADVERTISING, INC., AND KFK GROUP, INC. On Appeal from the 19th Judicial District Court Parish of East Baton Rouge, State of Louisiana Trial Court No. 670, 057
The Honorable Donald R. Johnson, Judge Presiding
Mary Ellen Roy Attorneys for 1 st Appellants -Defendants, Dan B. Zimmerman Pelican Outdoor Advertising, Inc., and New Orleans, Louisiana KFK Group, Inc.
Michael E. Botnick Attorneys for 2nd Appellant -Plaintiff, J. Douglas Rhorer Marco Outdoor Advertising, Inc. R. Ethan Zubic New Orleans, Louisiana
Lesia B. Warren Attorneys for 3rd Appellants -Defendants, Gregory P. Hardy State of Louisiana and Department of Baton Rouge, Louisiana Transportation and Development
BEFORE: THERIOT, WOLFE, AND HESTER, JJ.
2 WOLFE, J.
The primary issue raised in these consolidated appeals concerns the
construction and interpretation of Louisiana law regarding two competing billboard
permit applications. For the following reasons, we dismiss the appeals of two
interlocutory judgments for lack of appellate jurisdiction, we reverse the trial court' s
grant of a declaratory judgment, and we remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
This case involves an ongoing dispute between two rival outdoor advertising
companies, Marco Outdoor Advertising, Inc. (" Marco") and Pelican Outdoor
Advertising, Inc./KFK Group Inc. (" Pelican/KFK"). On May 26, 2015, the State of
Louisiana, through the Department of Transportation and Development (" DOTD"),
issued a state billboard permit to Pelican/ KFK for a proposed billboard location
alongside U.S. Highway 90 -Business in Jefferson Parish. At that time, Pelican/KFK
was not able to obtain a local permit to supplement the state permit because the
proposed location was zoned by Jefferson Parish as an area that did not allow for the
erection of billboards. Consequently, Pelican/ KFK could not build the proposed
billboard without the local permit, but DOTD annually renewed the state permit
issued to Pelican/ KFK during the years of 2015- 2019.
On January 4, 2018, Marco applied for a state billboard permit to erect a
billboard immediately adjacent to the location previously permitted to Pelican/ KFK.
DOTD denied Marco' s permit application because the proposed location did " not
meet the requirement of [500 -foot] spacing" between billboards. Marco requested a
permit review by DOTD, alleging that its proposed billboard location satisfied the
500 -foot spacing requirement since it was over 500 feet away from the nearest
existing billboard. Marco further argued that DOTD had erred in issuing the
Pelican/KFK permit because that proposed billboard could not be built pursuant to
applicable local zoning laws and, thus, the Pelican/KFK permit should be revoked.
3 A permit review panel for DOTD met with Marco, after which DOTD again
denied Marco' s state permit request on May 14, 2018. DOTD informed Marco that
the documentation submitted by Marco did not necessitate the cancellation of the
permit issued to Pelican/ KFK and that Marco' s proposed billboard location still ran
afoul of the 500 -foot spacing requirement between the proposed billboard previously
authorized by the Pelican/ KFK permit. On June 7, 2018, Marco filed a petition for
writ of mandamus, or in the alternative, petition for judicial review and declaratory
judgment in the 19th Judicial District Court, naming DOTD and Pelican/KFK as
defendants. In its petition, Marco requested the following relief from the trial court:
1) a writ of mandamus directing DOTD to void the permit it had illegally issued to
Pelican/KFK and issue Marco' s requested permit; and alternatively, ( 2) judicially
review DOTD' s decision to deny Marco' s permit application; and in the further
alternative, ( 3) enter a declaratory judgment that declared DOTD had unlawfully
issued the permit to Pelican/ KFK, so that permit should be voided, and a permit be
issued to Marco whose application was improperly denied by DOTD.
DOTD filed exceptions and Pelican/ KFK opposed all of Marco' s claims.
After a hearing, the trial court issued an interlocutory judgment dated September 19,
2018, dismissing Marco' s mandamus claim. No party filed an application for
supervisory writs or an appeal at that time. After another hearing, the trial court
issued a second interlocutory judgment dated February 22, 2019, wherein the trial
court dismissed Marco' s request for judicial review for lack of subject matter
jurisdiction. Again, no application for supervisory writs or appeals were filed at that
time. Next, Marco filed a motion for summary judgment regarding its remaining
claim for declaratory relief. After a hearing on Marco' s motion, the trial court signed
a declaratory judgment on August 20, 2019, declaring that DOTD' s issuance of the
state billboard permit to Pelican/ KFK was improper; however, the trial court
declined to revoke the Pelican/ KFK permit or to order DOTD to issue a permit to
M Marco. After this judgment, all of the parties appealed. Pelican/ KFK and DOTD
suspensively appealed the declaratory judgment. Marco filed a devolutive appeal
regarding the trial court' s prior interlocutory judgments denying Marco' s mandamus
claim and its alternative request for judicial review. However, this court dismissed
the appeals for lack of appellate jurisdiction based on the absence of decretal
language and a final judgment designation. See Marco Outdoor Advertising, Inc.
v. State, Dept. of Transportation and Development, et al, 2019- 1701 ( La. App.
1 st Cir. 8/ 5/ 20) ( unpublished). Then, without a new hearing, the trial court issued
an amended judgment that had a final judgment designation on September 23, 2020.
All of the parties renewed their appeals.
DOTD and Pelican/ KFK appealed the amended judgment, each asserting that
the trial court erred in granting Marco' s motion for summary judgment seeking a
declaration that DOTD' s issuance of the state billboard permit to Pelican/ KFK was
improper. DOTD and Pelican/ KFK both argue that the trial court misinterpreted the
statute regulating spacing of billboard signs, La. R.S. 48: 461. 4( A)(3)( a), l to include
zoning ordinances. Additionally, Pelican/KFK maintain that the trial court erred in
holding that DOTD could not lawfully issue a state billboard permit unless all local
zoning ordinances were met. Marco did not appeal the amended judgment nor did
it file an answer to Pelican/ KFK and DOTD' s appeals; rather, Marco' s two appeals
focus on the two prior interlocutory rulings wherein the trial court dismissed Marco' s
first two claims for mandamus and judicial review of DOTD' s denial of Marco' s
permit application. All of the appeals were consolidated on May 6, 2021, after the
parties filed a joint motion to consolidate in this court.
Louisiana Revised Statutes 48: 461. 4( A)(3)( a) provides that signs shall conform with " all applicable building codes and ordinances." The trial court interpreted this language, along with applicable administrative rules and regulations established by DOTD, to require the applicant to establish that the proposed permit complied with all local zoning ordinances in order for DOTD to issue a permit to erect a billboard.
5 MOOTNESS
As a threshold jurisdictional matter, we must first determine whether the
questions before us in these consolidated appeals present a justiciable controversy
or whether the matter has been rendered moot. See Cat' s Meow, Inc. v. City of
New Orleans Through Dept. of Finance, 98- 0601 ( La. 10/ 20/ 98), 720 So. 2d 1186,
1193. According to Pelican/KFK' s brief, in between the filing of the first set of
appeals and the second set of appeals, on September 18, 2019, the Jefferson Parish
Council enacted a zoning classification change for the proposed location of
Pelican/KFK' s billboard, which then allowed the erection of billboards. Jefferson
Parish purportedly issued a local billboard permit to Pelican/ KFK on November 15,
2019, and Pelican/ KFK asserts that the billboard has now been erected pursuant to
the state and local dual permit process at issue. Additionally, in oral argument before
this court, counsel for Pelican/ KFK acknowledged that the billboard was built.
Our review of the appellate record reveals a lack of documentation regarding
Jefferson Parish' s purported zoning change and the actual erection of the
Pelican/KFK billboard. An appellate court must render its judgment upon the record
on appeal. La. Code Civ. P. art. 2164. Appellate courts may not review evidence
that is not in the appellate record or receive new evidence. Further, appellate courts
do not rely on a party' s statements or arguments in briefs to determine facts of the
matter before it. Save Our Hills v. Louisiana Department of Environmental
Quality, 2018- 0100 ( La. App. 1st Cir. 11/ 5/ 18), 266 So. 3d 916, 926, writ denied,
2019- 0057 ( La. 3/ 18/ 19), 267 So. 3d 87.
The doctrine of mootness, however, is a recognition that judicial rulings
seeking to prohibit certain activities should be susceptible of implementation. When
the occurrence has happened, the ruling cannot " reach back in time" and right the
wrong done. Id. at 924, quoting, In re Nat. Res. Recovery, Inc., 98- 2917 ( La. App.
1st Cir 2/ 18/ 00), 752 So. 2d 369, 373, writs denied, 2000- 0806, 2000- 0836 ( La.
G 5/ 26/ 00), 762 So. 2d 1104, 1105. If the case is moot, then there is no subject matter
upon which the judgment of the court can operate. Save Our Hills, 266 So. 3d at
924.
In this case, the original hearing on Marco' s motion for summary judgment
was held on August 5, 2019, a little over one month before Jefferson Parish
purportedly enacted the local zoning classification change that allowed the erection
of billboards at Pelican/ KFK' s proposed location. The trial court granted summary
judgment in Marco' s favor on August 20, 2019, before the zoning classification was
allegedly changed on September 18, 2019, and the billboard was actually erected by
Pelican/ KFK after Jefferson Parish issued Pelican/ KFK a local billboard permit on
November 15, 2019. The appellate record does not reflect that a separate hearing
took place before the amended judgment was signed by the trial court on September
231 2020. Additionally, the record does not reflect whether any of the parties
informed the trial court of the local zoning change and erection of the Pelican/ KFK
billboard at issue. Thus, it is apparent that the trial court did not consider whether
the case was moot at the time that it made its amended ruling on Marco' s motion for
summary judgment. Accordingly, we cannot say that the trial court did not have
subject matter jurisdiction to rule on Marco' s motion for summary judgment; and
clearly, the matter before the trial court was not moot at that time. See Save Our
Hills, 266 So. 3d at 924- 925.
We must consider, however, whether these consolidated appeals are now
moot. If this court cannot grant Pelican/ KFK or Marco any effective relief, then the
appeals currently before us can have no practical effect. In determining whether this
case constitutes an actual substantial dispute, this court may take judicial notice of
the supposed change in the zoning classification in Jefferson Parish that would allow
a billboard to be built in the proposed location. We can only do so, however, if a
certified copy of the ordinance is filed with the court or one of the parties requests
7 that we take judicial notice of the ordinance.' Neither of those criteria are present.
Further, the requirements ofjusticiability must not only be satisfied when the suit is
initially filed, but must also remain throughout the course of the litigation up to the
moment of final disposition. Cat' s Meow, Inc., 720 So.2d at 1193. When a
challenged statute or ordinance is subsequently amended, mootness may result ifthe
change corrects or cures the condition complained of or fully satisfies the claim. Id.
at 1194.
In Ulrich v. Robinson, 2018- 0534 ( La. 3/ 26/ 19), 282 So. 3d 180, 186, the
supreme court stated, " courts will not decide abstract, hypothetical, or moot
controversies, or render advisory opinions with respect to such controversies." A
justiciable controversy is a real and substantial controversy admitting of specific
relief through a decree of conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical set of facts. American Waste
Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158, 161
La. 1993). Nonetheless, there is a well- established exception to the general rule of
mootness. See State v. Rochon, 2011- 0009 ( La. 10/ 25/ 11), 75 So. 3d 876, 884.
Under the exception, a court may consider the merits of a case that would otherwise
be deemed moot when the challenged action was in its duration too short to be fully
appealed prior to its cessation or expiration and a reasonable expectation existed that
the same complaining party would be subjected to a similar action. Id. Thus, if the
underlying dispute is capable of repetition yet evading review, then it may be
considered by the appellate court though technically moot. See Kirk v. State, 526
Although this court is generally precluded from admitting new evidence, we are mandated by La. C.E. art. 202( A) to take judicial notice of the ordinances enacted by any political subdivision within the court' s territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of this court. City of Hammond v. Parish of Tangipahoa, 2007- 0574 ( La. App. 1 st Cir. 3/ 26/ 08), 985 So. 2d 171, 177. See also La. R.S. 13: 3712( B). In addition, a court must take judicial notice of ordinances enacted by any political subdivision of the state if a party requests it and provides the court with the information needed by it to comply with the request. La. C. E. art. 202( B)( 1)( c); State v. Davis, 93- 0599 ( La. 4/ 11/ 94), 634 So. 2d 1168, 1171. Judicial notice of
such legal matters may be taken at any stage of the proceeding. La. C. E. art. 202(D).
E So. 2d 223, 226 n. 2 ( La. 1988). Additionally, a case may become moot for several
reasons, including: ( 1) a voluntary cessation of the challenged behavior; ( 2) because
the law has changed; ( 3) because the allegedly wrong behavior has passed or could
not reasonably be expected to recur; or ( 4) because a party could no longer be
affected by a challenged statute. See Comeaux v. Louisiana Tax Commission,
2020- 01037 ( La. 5/ 20/ 21), So. 3d 9, 2021 WL 2023073, * 6.
In Comeaux, So. 3d at , 2021 WL 2023073 at * 6, the Louisiana
Supreme Court discussed the holding of a United States Supreme Court case, City
of Mesquite v. Aladdin' s Castle, Inc., 455 U.S. 283, 283, 102 S. Ct. 1070, 1072, 71
L.Ed.2d 152 ( 1982), concerning a city' s voluntary cessation of a challenged practice
that included an amendment to a relied -upon ordinance. The Court found no
deprivation of jurisdiction because the amended ordinance did not preclude the city
from reenacting the same provision if the lower court' s judgment was vacated. We
find that a similar scenario could develop here. Jefferson Parish' s local zoning
ordinances could be changed again at the behest of any billboard company seeking
a local billboard permit after receiving a state billboard permit from DOTD. Thus,
the underlying fact that the billboard at issue in this case has actually been built does
not present a hypothetical or abstract question of law. See Comeaux, So. 3d at
2021 WL 2023073 at * 6.
Finding that a justiciable controversy remains, we will review the trial court' s
declaratory judgment rulings on Marco' s motion for summary judgment. Initially,
though, we will discuss the propriety of reviewing the trial court' s two prior
interlocutory judgments.
INTERLOCUTORY RULINGS
Notwithstanding that the parties have not raised the issue of subject matter
jurisdiction, appellate courts have the duty to examine the basis of its jurisdiction
sua sponte. Advanced Leveling & Concrete Solutions v. Lathan Company, Inc.,
9 2017- 1250 ( La. App. 1st Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en Banc). This
court' s appellate jurisdiction extends only to final judgments and judgments made
expressly appealable by law. See La. Code Civ. P. art. 2083; Herrara v. First Nat.
Ins. Co. of Am., 2015- 1097 ( La. App. 1st Cir. 6/ 3/ 16), 194 So. 3d 807, 810, writ
denied, 2016- 1278 ( La. 10/ 28/ 16), 208 So. 3d 885. A final judgment is one that
determines the merits in whole or in part. La. Code Civ. P. art. 1841. A final
judgment that partially determines the merits may be immediately appealed, as set
forth in La. Code Civ. P. art. 1915( A).3 However, La. Code Civ. P. art. 1915( B)
provides that when a court renders a partial judgment or partial summary judgment
as to one or more but less than all of the claims, demands, issues, or theories against
a party, whether in an original demand or intervention, the judgment shall not
constitute a final judgment unless it is designated as such by the court after an
express determination that there is no just reason for delay.
In these consolidated matters, the trial court granted Marco' s motion for
summary judgment, which only partially determined the merits of a portion of
Marco' s request for declaratory judgment, finding that DOTD improperly issued a
state billboard permit to Pelican/KFK in a location where the local zoning ordinances
did not allow for billboards. However, because none of the parties were dismissed
and some of Marco' s claims for declaratory relief remained, the judgment did not
meet any of the criteria set forth in La. Code Civ. P. art. 1915( A) for an immediate
appeal. But in an amended judgment signed on September 23, 2020, the trial court
designated the judgment as final and found there was no just reason for delay, in
3 Partial judgments immediately appealable under Article 1915( A) include: ( 1) a judgment dismissing the suit as to less than all of the parties; ( 2) a judgment granting a motion for judgment on the pleadings; ( 3) a judgment granting a motion for summary judgment, except a summary
judgment granted pursuant to La. Code Civ. P. art. 966( E); ( 4) a judgment on either the principal or incidental demand, when the two have been tried separately; ( 5) a judgment on the issue of liability when that issue has been tried separately; and ( 6) a judgment imposing sanctions or disciplinary action pursuant to La. Code Civ. P. arts. 191, 863, or 864, or La. C. E. Art. 510( G).
10 accordance with La. Code Civ. P. art. 1915( B). We find that the amended judgment
is properly before this court on appeal.' Only DOTD and Pelican/KFK have
appealed the amended judgment.
Marco' s appeals involve two admittedly interlocutory judgments that
dismissed Marco' s claims for mandamus relief on September 19, 2018, and judicial
review of DOTD' s state permit decision on February 22, 2019. Neither of those
judgments were designated as final and neither were the subject of applications for
supervisory writs. Because Marco has not answered the appeals of DOTD or
Pelican/ KFK, this court issued a show cause order on May 6, 2021, ordering the
parties to show cause by briefs why the two interlocutory judgments are proper for
this court' s review. Only Marco responded with a brief, arguing that this court had
jurisdiction to consider the two interlocutory rulings along with the appeal of the
amended judgment that was final.
Marco relies upon jurisprudence of this court holding that when an
unrestricted appeal is taken from a final judgment, the appellant is entitled to a
review of all adverse interlocutory rulings prejudicial to it, in addition to the review
of the correctness of the final judgment from which the party has taken an appeal.
See Hayward v. Hayward, 2012- 0720 ( La. App. 1st Cir. 3/ 18/ 13), 182 So. 3d 966,
970. However, the cases that Marco relies upon do not suggest that an interlocutory
judgment may be appealed after a final judgment is rendered without seeking review
of the final judgment as well. See Palmisano v. Nauman -Anderson, 2017- 511 ( La.
App. 5th Cir. 12/ 27/ 17), 236 So. 3d 1275, 1277. Each of Marco' s appeals seek
review of only the interlocutory judgments, not the final amended judgment.
After reviewing the record in light of the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 ( La. 3/ 2/ 05), 894 So. 2d 1113, 1122, we conclude that the trial court did not err in designating the amended judgment as final. Declaratory judgments have the force and effect of final judgments or decrees. Pelican Educ. Found., Inc. v. Louisiana State Bd. of Elementary Secondary Educ., 2011- 2067 ( La. App. 1st Cir. 6/ 22/ 12), 97 So. 3d 440, 445.
11 Additionally, Marco did not file answers to the appeals of the final amended
judgment. Appellees may seek review of interlocutory judgments involving the
same or related issues by filing an answer to the appeal. See La. Code Civ. P. art.
2133; Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017-
1088 ( La. App. 1st Cir. 3/ 15/ 18), 244 So. 3d 441, 447, n. 2, writ denied, 2018- 0583
La. 6/ 1/ 18), 243 So.3d 1062; Wilson v. Two SD, LLC, 2015- 0959 ( La. App. 1st
Cir. 12/ 23/ 15), 186 So. 3d 103, 113. Since Marco has not answered the appeals of
the final amended judgment, Marco' s appeals of each ofthe interlocutory judgments
are not properly before us.
In the alternative, Marco requests that its appeals of the interlocutory
judgments be converted to applications for supervisory writs of review. Although
we have the discretionary authority to convert an appeal to a writ application, we
decline to do so in this case where the interlocutory rulings are arguably corrects and
a reversal of the rulings would not terminate the litigation. The appellate record
reflects that Marco has a pending motion for supplemental relief filed in and stayed
by the trial court until a final resolution of DOTD and Pelican/KFK' s appeals. See
Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396
So. 2d 878 ( La. 198 1) ( per curiam). Additionally, we note that Marco did not file its
appeals of the interlocutory judgments within the delays allowed for filing
supervisory writ applications. See Uniform Rules —Courts of Appeal, Rule 4- 3; see
also La. Code Civ. P. art. 1914.
For the stated reasons, we dismiss Marco' s appeals of the September 19, 2018,
and February 22, 2019, interlocutory judgments for lack of appellate jurisdiction.
5 DOTD is afforded discretion in granting and revoking state billboard permits. See LAC 70: III: 143( L). Moreover, DOTD' s decisions in the billboard permit process are not adjudications" within the meaning of Louisiana' s Administrative Procedure Act, La. R.S. 49: 950, et seq.,since there is no notice or record of an agency hearing provided for in the application process. See Metro Riverboat Assoc., Inc. v. Louisiana Gaming Control Board, 99- 0863 ( La. App. 1st Cir. 12/ 20/ 00), 774 So. 2d 1193, 1197, writrg anted, 2001- 0185 ( La. 6/ 1/ 01), 793 So. 2d 188, affd in part, vacated in part, 2001- 0185 ( La. 10/ 16/ 01), 797 So. 2d 656.
12 We now consider DOTD and Pelican/ KFK' s appeals of the final amended judgment
rendered on September 23, 2020, declaring that the state billboard permit issued to
Pelican/ KFK was improperly issued by DOTD.
DECLARATORY RELIEF
On appeal of a declaratory judgment, the scope of appellate review is confined
to a determination of whether the trial court abused its discretion by granting or
refusing to render declaratory relief. See Goodwin v. City of Mandeville, 2018-
1118 ( La. App. 1st Cir. 5/ 31/ 19), 277 So. 3d 822, 828, writ denied, 2019- 01083 ( La.
10/ 8/ 19), So. 3d , 2019 WL 5390746. However, the amended judgment
before this court on appeal was rendered pursuant to a motion for summary
judgment. Thus, our review is de novo, according to the summary judgment
standard. Louisiana Hosp. Assn. v. State, 2013- 0579 ( La. App. 1st Cir. 12/ 30/ 14),
168 So. 3d 676, 684- 685, writ denied, 2015- 0215 ( La. 5/ 1/ 15), 169 So. 3d 372. The
function of a declaratory judgment is simply to establish the rights of the parties or
express the opinion of the court on a question of law without ordering anything to
be done. MAPP Const., LLC v. Amerisure Mut. Ins. Co., 2013- 1074 ( La. App.
1st Cir. 3/ 24/ 14), 143 So. 3d 520, 528. The declaratory judgment' s distinctive
characteristic is that the declaration stands by itself with no executory process
following as a matter of course. Louisiana Hosp. Assn., 168 So. 3d at 684. The
declaration shall have the force and effect of a final judgment or decree. Pelican
Educ., Found. Inc. v. Louisiana State Bd. of Elementary & Secondary Educ.,
2011- 2067 ( La. App. 1st Cir. 6/ 22/ 12), 97 So. 3d 440, 445.
The material facts of this case are not in dispute. The real issue is whether the
trial court correctly interpreted and applied the law. Appellate review of questions
of law is simply a review of whether the trial court was legally correct or legally
incorrect. Louisiana Hosp. Assn., 168 So. 3d at 685. When summary judgment is
granted in the context of statutory interpretation, as was done by the trial court in
13 this case, there are no material issues of fact in dispute and the sole issue before us
is a question of law as to the correct interpretation of the statute at issue. State v.
Louisiana Land and Exploration Company, 2012- 0884 ( La. 1/ 30/ 13), 110 So. 3d
1038, 1044. Further, no prohibition exists against the granting of a summary
judgment in an action for declaratory judgment. Pride Network, Inc. v. Town of
Amite City, 2015- 1849 ( La. App. 1st Cir. 11/ 4/ 16), 2016 WL 6583737, * 2
unpublished), writ denied, 2016- 2147 ( La. 1/ 13/ 17), 215 So. 3d 250. On legal
issues, the appellate court gives no weight to the findings of the trial court, but
exercises its constitutional duty to review questions of law de novo, after which it
renders judgment on the record. Boyd Louisiana Racing, Inc. v. Bridges, 2018-
1309 ( La. App. 1st Cir. 1/ 8/ 20), 294 So. 3d 503, 510.
On appeal, DOTD and Pelican/ KFK both argue that the trial court
misinterpreted La. R.S. 48: 461. 4( A)(3)( a), the law regarding spacing between
billboards, to include zoning ordinances. Our interpretation of the relevant statutory
language is guided by well- established rules of statutory construction. Turner v.
East Baton Rouge Parish School Board, 2017- 1769 ( La. App. 1st Cir. 6/ 4/ 18), 252
So. 3d 990, 992, writ denied, 2018- 1127 ( La. 10/ 15/ 18), 253 So. 3d 1299. Legislation
is the solemn expression of the legislative will; thus, the interpretation of legislation
is primarily the search for legislative intent. Id. The starting point for interpretation
of any statute must be the language of the statute itself. Vine v. Teachers
Retirement System of Louisiana, 2019- 0106 ( La. App. 1st Cir. 12/ 19/ 19), 292
So. 3d 116, 122.
Laws on the same subject matter must be interpreted in reference to each
other. La. Civ. Code art. 13. When a law is clear and unambiguous and its
application does not lead to absurd consequences, the law shall be applied as written
and its letter shall not be disregarded in search of the intent of the legislature. La.
Civ. Code art. 9. Barrilleaux v. NPC, Inc., 98- 0728 ( La. App. 1st Cir. 4/ 1/ 99), 730
14 So. 2d 1062, 1064, writ denied, 99- 1002 ( La. 5/ 28/ 99), 743 So.2d 672. It is presumed
that every word, sentence, or provision in the law was intended to serve some useful
purpose, and that no unnecessary words or provisions were used. Id. at 1064- 1065.
The meaning of a statute is to be interpreted by looking to all the sections taken
together so that no section, clause, sentence or word becomes superfluous or
meaningless. Id. at 1065. Further, the legislature is presumed to have enacted each
statute with deliberation and with full knowledge of all existing laws on the same
subject. Id. Where possible, courts have a duty to adopt a construction of a statute
that harmonizes and reconciles it with other provisions dealing with the same subject
matter. Turner, 252 So. 3d at 993. Lastly, when the legislature specifically
enumerates a series of things, the legislature' s omission of other items, which could
have been easily included in the statute, is deemed intentional. Louisiana Hosp.
Assn., 168 So. 3d at 687.
Applying these rules of statutory construction and interpretation to the statute
at issue, we first note the legislature' s declaration of policy in La. R.S. 48: 461 as
follows:
The Legislature finds and declares that outdoor advertising ... [ is a] legitimate commercial [ use] of private property and, for the purpose of promoting the public safety, health, welfare, convenience and
enjoyment of public travel ... it is hereby declared to be in the public interest to regulate and restrict the erection and maintenance of outdoor advertising ... in areas adjacent to the Interstate and Primary Highway Systems within this State.
To control outdoor advertising, the legislature further enacted La. R.S. 48: 461. 3,
which authorizes DOTD to promulgate regulations governing the issuance of
permits, and mandates compliance with federal and state law. The legislature also
enacted La. R. S. 48: 461. 4, which provides in pertinent part:
A. Notwithstanding any other provisions of this Part, outdoor
advertising shall be permitted in areas zoned industrial or
commercial and in unzoned commercial and industrial areas as hereafter defined ... provided they are located in zoned or unzoned commercial or industrial areas and meet the size, lighting, and
15 spacing requirements ..., subject to the following regulations which are declared to be consistent with customary use in this state:
3) Spacing of signs
a) Signs shall conform to all applicable building codes and ordinances.
DOTD' s administrative rules and regulations concerning the procedures and
policies for issuing state permits for controlled outdoor advertising are in the
Louisiana Administrative Code (" LAC"). See LAC 70: I11: 134, 143, and 144.
Section 143( C) provides that " All permits for the erection of outdoor advertising
shall be conditioned upon compliance with state law[.]" Further, in Section 143( G),
DOTD' s regulations provide that " Every applicant who seeks to situate a controlled
advertising structure in a commercial or an industrial zone shall furnish evidence of
the restrictive zoning of the subject land on [ DOTD' s] zoning supplement form
which shall be completed by the appropriate state or local authority." ( Emphasis
added.) The 500 -foot spacing requirement between outdoor advertising signs is
outlined in Section 134( C)( 1), providing that " no two structures shall be spaced less
than 500 feet apart." In summary, the required process for lawfully erecting a
billboard in Louisiana requires an application to DOTD for a state billboard permit
and then the applicant must demonstrate compliance with local zoning regulations
by filing with DOTD a zoning supplement form completed by the appropriate local
authority.
The trial court' s interpretation of La. R.S. 48: 461. 4( A)(3)( a) inserted an extra
word into the phrase " all applicable building codes and ordinances," changing the
phrase to " all applicable building codes and zoning ordinances." We find this was
legal error on the part of the trial court. The legislature carefully and with
deliberation enacted the subject phrase without the word " zoning" inserted. It was
the legislature' s prerogative to omit zoning from that particular clause of the statute,
which it could have easily included as it had in other sections. The well- settled
16 doctrine of statutory construction, expression unius et exclusion alterius, teaches us
that the legislature' s omission in this instance must be deemed intentional. See
Louisiana Hosp. Assn., 168 So. 3d at 687. Additionally, when the context of a
statutory provision does not clearly indicate otherwise, we are required to ascribe a
conjunctive meaning to the word "and. ,6 Smith v. Our Lady of the Lake Hospital,
Inc., 624 So.2d 1239, 1249 ( La. App. 1st Cir. 1993). See also, La. Code Civ. P. art.
5056. Therefore, it follows that from the plain wording of the statute at issue, in an
effort to control outdoor advertising, the legislature requires that all billboards must
conform to all applicable building codes and building ordinances. See La. R.S.
48: 461. 4( A)(3)( a). Thereafter, the applicant must show compliance with local
zoning regulations by filing with DOTD a zoning supplement form completed by
the appropriate local authority. See LAC 70: III: 143( G). Meeting the local zoning
regulations is a separate step in the legislature' s dual billboard permitting process.
Accordingly, we find it inappropriate for the trial court to have rendered a
summary judgment declaring that DOTD improperly issued a state billboard permit
to Pelican/ KFK for a location where the local zoning law did not allow erection of a
billboard. The proper procedure for supplementing the state billboard permit with
the appropriate local zoning ordinance is provided for in LAC 70: III: 143( G).
Therefore, we reverse that portion of the trial court' s judgment granting summary
judgment in favor of Marco, declaring that the state billboard permit issued to
Pelican/ KFK by DOTD was improper.
6 Rules of grammar govern statutory interpretation unless they contradict legislative intent or purpose. Federal Deposit Ins. Corp. v. Belcher, 978 F. 3d 959, 962 ( 5th Cir. 2020). Conventional rules of grammar demonstrate that the word " and" is a coordinating conjunction that adds or links one word to another and shows how the words are related, specifically connecting words, phrases, and clauses that are of equal importance in the sentence. See J. Hodges, et al., Harbrace College Handbook, 12th Ed. at page 16, Rule 1 c( 7) ( 1994). Thus, the phrase " all applicable building" modifies both " codes" and " ordinances," joining those words equally.
17 CONCLUSION
For the outlined reasons, we reverse the trial court' s September 23, 2020
amended judgment (Appeal 2021 CA 0123) that granted summary judgment in favor
of Marco Outdoor Advertising, Inc., and declared that the Department of
Transportation and Development had improperly issued a state billboard permit to
Pelican Outdoor Advertising, Inc./KFK Group Inc. Further, we dismiss Marco
Outdoor Advertising, Inc.' s appeals of the two interlocutory judgments ( Appeals
2021 CA 0353 and 2021 CA 0354) dated September 19, 2018, and February 22,
2019. This matter is remanded for further proceedings consistent with this opinion.
Appeal costs are assessed against Marco Outdoor Advertising, Inc.
INTERLOCUTORY JUDGMENTS DATED SEPTEMBER 19, 20189 AND FEBRUARY 22, 2019, DISMISSED FOR LACK OF APPELLATE JURISDICTION; AMENDED JUDGMENT DATED SEPTEMBER 23, 2020, REVERSED; AND MATTER REMANDED.