Smith v. City of New Orleans ex rel. Shires

71 So. 3d 525, 2010 La.App. 4 Cir. 1464, 2011 La. App. LEXIS 863, 2011 WL 2673147
CourtLouisiana Court of Appeal
DecidedJuly 6, 2011
DocketNo. 2010-CA-1464
StatusPublished
Cited by2 cases

This text of 71 So. 3d 525 (Smith v. City of New Orleans ex rel. Shires) 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
Smith v. City of New Orleans ex rel. Shires, 71 So. 3d 525, 2010 La.App. 4 Cir. 1464, 2011 La. App. LEXIS 863, 2011 WL 2673147 (La. Ct. App. 2011).

Opinions

MAX N. TOBIAS, JR., Judge.

hln this case, we address two separate partial summary judgments granted by the trial court. After examining the law and the appellate record, we affirm the judgments and remand to the trial court for further proceedings.

On 1 October 2003, the City of New Orleans (the “City”), through the Department of Public Works, issued a request for proposals for the installation, operation, and maintenance of metered parking spaces. Following a pilot program to evaluate various parking management equipment, Standard Parking Corporation and Parking Solutions, L.L.C. (hereinafter collectively referred to as “Standard”) and the City entered into a contract dated 11 October 2004, for the installation, operation, and maintenance of Parkeon Stelio Pay-and-Display stations (“Parkeon stations”). Pursuant to this contract, Standard installed Parkeon stations at the locations designated by the City. Standard is also required by the contract to maintain the Parkeon stations and collect the parking fees from them.

Un early 2005, the City of New Orleans (“City”) began replacing traditional coin operated parking meters with the Parkeon stations. During this time, the named plaintiffs received citations before August 2005 as follows:

1. Stuart H. Smith (“Smith”) received citation numbers 140244775, 140855035, and 140505190 for no parking receipt and expired time, while parking in front of his property located at 516 Saint Philip Street, New Orleans, Louisiana 70116, for reasons that of no ticket in the windshield of the vehicle and expired time;
2. Rodney Stephens received citation number 140282925 for a violation similar to Smith’s while parked in front of the driveway of Smith’s property;
3. David Veazey received citation number 139972814 for a similar violation because he placed coins in the old mechanical meter instead of the new receipt-issuing system; and he also received citation numbers 139970121, 139970121, 13933073, 139319622, 140836555, and 140864150 for no parking receipt while parked in front of the driveway of Smith’s property; and,
4. Guadalupe Gomez received citation number 139972825 for no parking receipt and expired time while parked in front of the driveway of Smith’s property-

On 8 August 2005, the City passed M.C.S., Ord. No. 22035, which updated the previous parking ordinances to accommodate the changes in technology in the method of payment from the traditional coin-operated meters to the Parkeon stations.1 The ordinance provides for retroactive application to 1 January 2005.

[528]*528The plaintiffs claim to have been harmed by the “illegal and unconstitutional installation and implementation of the Parkeon System.” On 22 April 2005, the plaintiffs filed a petition for injunctive relief, declaratory judgment, and writ of mandamus, alternatively, damages for actions pursuant to the Takings Clause of the Louisiana Constitution, LSA-Const. Art. I, § 4(B), seeking various forms of 13relief including, but not limited to, the following: (1) a declaratory judgment that the Parkeon stations were installed without the mandated public hearings and the review of the proper permitting and zoning departments; (2) a writ of mandamus to be issued to the New Orleans City Planning Commission along with the Vieux Carré Commission to undertake their duty to determine whether or not the Parkeon stations conform with the French Quarter and its environment; (3) a preliminary injunction enjoining any further enforcement activities arising from the Parkeon stations; and (4) invalidation and dismissal of the parking citations listed above.

On 2 May 2005, the plaintiffs filed a first supplemental and amending petition, which further detailed the claims of the plaintiffs. It is in this pleading that the plaintiffs first prayed for class certification pursuant to La. C.C.P. art. 591, et. seq., seeking to establish a class of persons residing or located in Orleans Parish who have incurred fines improperly issued by the City for improperly issued parking citations resulting from the Parkeon stations. Certification of a class had not been addressed in the court below at the time of this appeal. See La. C.C.P. art. 592.

On 26 July 2005, after seeking leave of court, the plaintiffs filed a second supplemental and amending petition. In response to exceptions filed by Standard, the plaintiffs filed an amended, restated petition for damages on 31 March 2008.

At some time after suit was filed, all of the tickets were dismissed with no fines paid by the plaintiffs.

Almost two years later, the plaintiffs filed a motion for partial summary judgment, addressing whether Ordinance 22035 could be applied retroactively. Oral argument was held on 17 June 2010; the court granted the motion.

|4The judgment and reasons for judgment were issued on 23 July 2010. The Court stated:

It is undisputed that the installation and implementation of the Parkeon Pay Stations parking system (“Parkeon System”) changed the parking meter system throughout the City of New Orleans by going from a traditional single or double metered space system to meters which were capable of controlling multiple parking spaces.
Ordinance 22035 passed in August 2005 not only ratified the use of the Parkeon System, it provided for the enforcement of citations issued pursuant to their operation as of July 14, 2005. As such, the Ordinance retroactively changed the legal consequences for metered parking as it existed before its enactment. Although legal prior to August 2005, parking at a non metered parking space became illegal if it occurred between July 14 and August 8, 2005.
The City argues Ordinance 22035 clarified existing law, and therefore, is not technically ex post facto. The Court disagrees. When legislation applies to a circumstance that arose before the law is changed, it has ex post facto effect.
This timely appeal by the City ensued.

Standard filed a motion for summary judgment on 26 October 2009, asserting that the plaintiffs could not assert a cause of action against it stemming from their [529]*529grievances against the City and the Par-keon stations. After allowing more time for the plaintiffs to conduct discovery, oral argument was held on 17 June 2010; the judgment granting the motion was issued on 13 July 2010. On 20 August 2010, plaintiffs filed a motion to designate the judgment as final and a petition for appeal. Both were granted.

In its reasons for judgment the court found that,

Plaintiffs have produced no evidence that Standard Parking had a duty to advise the City on drafting and/or adopting the proper ordinances. Parkeon did not train or instruct the parking enforcement officers, issue citations or determine what constitutes a violation. There is no | factual support that Standard implemented the Parkeon System which forms the basis of plaintiffs’ claims.

Both the plaintiffs and the City have appealed the respective judgments. The plaintiffs allege that the trial court erred by granting the motion for summary judgment in favor of Standard because they did not have sufficient time to conduct discovery and that genuine issues of material fact exist. We will address these assignments of error first.

I.

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Related

Smith v. City of New Orleans
131 So. 3d 511 (Louisiana Court of Appeal, 2013)

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Bluebook (online)
71 So. 3d 525, 2010 La.App. 4 Cir. 1464, 2011 La. App. LEXIS 863, 2011 WL 2673147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-city-of-new-orleans-ex-rel-shires-lactapp-2011.