Petivan v. City of New Orleans

154 So. 3d 631, 2014 La.App. 4 Cir. 0504, 2014 La. App. LEXIS 2732, 2014 WL 5861166
CourtLouisiana Court of Appeal
DecidedNovember 12, 2014
DocketNo. 2014-CA-0504
StatusPublished

This text of 154 So. 3d 631 (Petivan v. City of New Orleans) 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
Petivan v. City of New Orleans, 154 So. 3d 631, 2014 La.App. 4 Cir. 0504, 2014 La. App. LEXIS 2732, 2014 WL 5861166 (La. Ct. App. 2014).

Opinion

DANIEL L. DYSART, Judge.

11Arthur Petivan appeals a judgment rendered on a motion for new trial, in which the trial court reversed its previous ruling denying exceptions filed by the City of New Orleans, and maintaining the City’s Exception of Prescription. For the reasons that follow, we affirm.

BACKGROUND:

Arthur Petivan owns property at 4131-33 N. Rampart in New Orleans. The property was severely damaged by Hurricane Katrina in 2005. Petivan claims to have made substantial repairs to the property, but despite his best efforts, the City of New Orleans (“City”) levied fines and penalties against him, preventing him from paying his ad valorem taxes because the alleged exorbitant fines and penalties must be paid before he can pay his tax bill.

On June 10, 2009, the City sent Petivan a “notification of violation and hearing notice.” The notice informed Petivan of the ' hearing date, and listed the violations relative to the blighted condition of the property.

12The record indicates that Petivan appeared at the initial hearing on June 10, 2009, and asked for more time to complete repairs. The hearing was continued five more times at Petivan’s request. When Petivan did not appear at the last setting on May 5, 2010, the hearing officer received evidence that the property had not been brought in compliance, and adjudicated Petivan guilty. As a result, a Notice of Judgment was sent to Petivan indicating that he was found in violation of ordinance 28-37 allowing a public nuisance, and was assessed $575 in fines and costs. Additionally, he was notified that a fine of $100 per day could be assessed after thirty days if the property was not repaired. The notice further informed him that failure to pay the fines within 30 days could result in a lien being placed on the property, and if he failed to pay the lien with his next tax bill, the property could be sold. It also informed him that the property could be eligible for demolition as it was declared a public nuisance. Lastly, the notice informed Petivan that he had thirty days from the date of the judgment to appeal to the Civil District Court for the Parish of Orleans.

Petivan did not appeal and on July 7, 2010, another Notice of Judgment was rendered declaring the property blighted and a public nuisance. Fines were assessed and Petivan was informed that a daily fine of $300 could be assessed if the property was not brought into compliance. Again, Petivan was informed that he had thirty days to appeal.

On July 15, 2010, a third Notice of Judgment was issued, finding Petivan guilty of “demolition by neglect.” The notice informed him that the City could 1,shire a contractor to repair the property at Peti-van’s expense, and that failure to pay the fines and costs within thirty days would result in the Notice of Judgment being filed as a lien. The notice again stated that Petivan had thirty days to appeal.

Petivan did not appeal any of the three judgments rendered against him. Rather, on September 13, 2011, Petivan filed a Petition for Injunction and Declaratory Judgment against the City seeking to enjoin the City from collecting the fines and costs assessed to him, the non-payment of [633]*633which resulted in liens on the property. He also sought damages for harassment, to have the ordinances he was charged with violating declared unconstitutional, and attorney fees.

The City filed exceptions of prescription, no cause of action, and non joinder of a party, and an answer. The exception of prescription alleged that the petition should be dismissed as the administrative judgment that formed the basis of the suit was rendered on July 7, 2010, and the petition was not filed until September 13, 2011, well in excess of the thirty day period for appeal. The exception of no cause of action alleged that Petivan failed to assert irreparable harm under the law. Last, the exception of non joinder of a party alleged that Petivan sought a judgment against the mayor and the City council, but those entities were not named as defendants in the petition.1

Petivan opposed the exception of prescription arguing that because he was challenging the constitutionality of the ordinances, the City could not avail itself of the claim of prescription. In response to the exception of no cause of action, |4Petivan argued that he did not need to prove irreparable harm when the defendant is acting in violation of the law and the plaintiff is protecting his property rights.

Petivan filed a Motion for Summary Judgment and Setting of Exceptions and for Writ of Mandamus. Petivan argued that there was no genuine issue of material fact that the City had failed to follow mandatory notice provisions for the administrative hearings. He moved to annul the liens against his property for failure of the City to comply with due process mandates. The writ of mandamus was directed to the clerk of court ordering her to cancel the liens against his property which were recorded in the mortgage records.

In its opposition to the summary judgment, the City again argued that Petivan’s claims were prescribed. It argued that Petivan had been properly notified of the hearings, and had been afforded the opportunity to be heard.2 Petivan was not fined until he did not appear at the May 5, 2010, hearing and was found guilty of the violations. The final notice of judgment, signed July 15, 2010, was mailed to Petivan and recorded in the Orleans Parish mortgage records as a lien.

After a hearing on the exceptions and motion for summary judgment, the trial court denied Petivan’s motion and overruled the City’s exceptions. Petivan sought a writ to this Court on the denial of his summary judgment, which was denied.

The City filed a Motion for New Trial asking the trial court to set aside its previous judgment overruling its exception of prescription. The grounds for the | ^motion were that the judgment was clearly contrary to the law and evidence as Petivan’s petition was prescribed on its face.

On February 7, 2014, the trial court considered the City’s motion for new trial and granted it, maintaining the City’s exception of prescription. It is from that judgment that Petivan appeals.

DISCUSSION:

Petivan raises two assignments of error: 1) the trial court erred in failing to void the judgment assessing daily fines [634]*634against him3, because. the City failed to comply with the procedures as required by its own ordinances; and 2) the trial court erred in failing to find that the administrative proceedings and resulting fines for the ordinances in question are unconstitutional, as they are not narrowly tailored to achieve a compelling government interest in the least restrictive means possible, and they are arbitrary and capricious.

The only issue before this Court is whether the trial court erred in maintaining the City’s Exception of Prescription. After a thorough review of the record, we find Petivan’s claims are prescribed.

Prescription is a peremptory exception. La.Code Civ. Proc. art. 927. When the exception of prescription is raised in the trial court prior to trial of the case, evidence may be introduced to support or controvert it. La.Code Civ. Proc. art. 931. If evidence is introduced, the trial court’s findings of fact are reviewed [ (¡according to the manifest error/clearly wrong standard. London Towne Condo, Homeowner’s Ass’n v. London Towne Co., 06-0401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231;

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154 So. 3d 631, 2014 La.App. 4 Cir. 0504, 2014 La. App. LEXIS 2732, 2014 WL 5861166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petivan-v-city-of-new-orleans-lactapp-2014.