Smith v. Tsatsoulis

158 So. 3d 887, 2014 La.App. 4 Cir. 0742, 2015 La. App. Unpub. LEXIS 21, 2015 WL 178252
CourtLouisiana Court of Appeal
DecidedJanuary 14, 2015
DocketNo. 2014-CA-0742
StatusPublished
Cited by1 cases

This text of 158 So. 3d 887 (Smith v. Tsatsoulis) 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. Tsatsoulis, 158 So. 3d 887, 2014 La.App. 4 Cir. 0742, 2015 La. App. Unpub. LEXIS 21, 2015 WL 178252 (La. Ct. App. 2015).

Opinion

JOY COSSICH LOBRANO, Judge.

11 Plaintiffs, Stuart H. Smith and Barry J. Cooper, appeal the trial court’s April 22, 2014 judgment denying their motion for partial summary judgment in the form of, an injunction. Defendants, John Tsatsoul-is d/b/a Market Café and Bon Jour Café, Inc., filed an answer to the appeal.

In 2001, plaintiffs, who are French Quarter residents, filed suit against defen[889]*889dants regarding complaints about live music performed at the Market Café, a business located at 1000 Decatur Street in New Orleans. The Market Café is near plaintiffs’ residence. Following several years of providing live musical entertainment, the Market Café obtained a live entertainment license from the City of New Orleans in 1995, and has obtained a new license each year since that time.

For purposes of this appeal, the following procedural history is relevant. On August 3, 2012, plaintiffs filed a motion for partial summary judgment, seeking a declaratory judgment that the live entertainment license issued by the City of New Orleans to defendants is illegal and invalid. On October 30, 2012, the trial court granted plaintiffs’ motion for partial summary judgment. Defendants filed a | «¿notion for new trial from the October 30, 2012 judgment. The motion for new trial was denied on November 20, 2012. On December 3, 2012, defendants filed a notice of intent to seek writs from the trial court’s October 30, 2012 judgment granting plaintiffs’ motion for partial judgment and the November 20, 2012 denial of defendants’ motion for new trial. The trial court set a return date for the filing of supervisory writs for review of those judgments, but no writ application was filed.

On January 15, 2013, defendants filed a motion for devolutive appeal of the October 30, 2012 judgment granting plaintiffs’ motion for partial summary judgment and the November 20, 2012 denial of defendants’ motion for new trial. The trial court granted the motion for devolutive appeal, and the appeal was filed in this Court. Plaintiffs subsequently filed a motion to dismiss defendants’ devolutive appeal. On May 24, 2013, this Court dismissed defendants’ appeal, finding that the judgment granting plaintiffs’ motion for partial summary judgment declaring that the live entertainment license issued to defendants is illegal and invalid was not designated as a final, appealable judgment, and did not satisfy any of the factors enumerated in La. C.C.P. art. 1915(A).1

On February 5, 2014, plaintiffs filed a motion for partial summary judgment, seeking an injunction prohibiting defendants from providing live entertainment at Market Café in accordance with the trial court’s October 30, 2012 judgment finding that the live entertainment license issued to Market Café by the City of |sNew Orleans is invalid and illegal. Plaintiffs alleged that despite the issuance of the October 30, 2012 judgment, defendants have continued to permit amplified live music to be played at the business at 1000 Decatur Street in New Orleans. Defendants opposed plaintiffs’ motion for partial summary judgment for injunctive relief, and also filed a peremptory exception of prescription pursuant to La. R.S. 9:5625 regarding plaintiffs’ claims for declaratory and injunctive relief, and a peremptory exception pursuant to La. C.C.P. art. 1880, arguing that plaintiffs cannot lawfully obtain declaratory relief against the validity of the City’s live entertainment permit without including the City of New Orleans and the French Market Corporation as parties.2 Earlier in this litigation, defen[890]*890dants filed a similar exception regarding non-joinder of the City and the French Market Corporation under La. C.C.P. art. 641. All three exceptions noted above are still pending in the trial court.

On April 22, 2014, the trial court denied plaintiffs’ motion for partial summary judgment in the form of an injunction. The trial court did not issue written reasons for judgment, but stated on the record that genuine issues of material fact remain in this case. Plaintiffs filed a de-volutive appeal from that judgment.

|4Pefendants filed a motion to dismiss plaintiffs’ appeal of the April 22, 2014 judgment, arguing that the judgment appealed from is a non-final, interlocutory judgment. This Court denied the motion to dismiss the appeal, citing La. C.C.P. art. 3612, which states, in pertinent part, that “[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” Because the judgment appealed from relates to an injunction, this Court found that it is ap-pealable according to La. C.C.P. art. 3612. Smith v. Tsatsoulis, 14-742, p. 2 (La.App. 4 Cir. 9/3/14), — So.3d -, 2014 WL 4373524, writ denied, 14-2018 (La.10/9/14), 150 So.3d 889, 2014 WL 5314620.

On appeal, plaintiffs argue that the trial court erred in denying their motion for partial summary judgment, which sought to enjoin defendants from providing live entertainment. Plaintiffs argue that defendants’ actions in continuing to provide live entertainment violate the trial court’s October 30, 2012 judgment, which found that the live entertainment license granted to defendants by the City of New Orleans is illegal and invalid. Plaintiffs further argue that the trial court erred in considering defendants’ exceptions of non-joinder of a party and prescription as evidence and as a defense to the plaintiffs’ motion for partial summary judgment. Plaintiffs also argue that the trial court improperly considered certain evidence that should have been ruled inadmissible in this case. In their answer to plaintiffs’ appeal, defendants ask that, in addition to affirming the trial court’s April 22, 2014 denial of plaintiffs’ motion for partial summary judgment in the form of an injunction, this Court should also vacate the trial court’s October 30, 2012 1 ¡¡interlocutory judgment granting plaintiffs’ motion for partial summary judgment finding that the defendants’ live entertainment license is illegal and invalid.

The judgment appealed from in this case is unusual in that it merges the denial of a motion for partial summary judgment with the denial of a request for injunctive relief. In reviewing summary judgments, an appellate court applies the de novo standard of review, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882 (citations omitted). However, in reviewing the denial of a preliminary or permanent injunction, an appellate court uses the abuse of discretion standard of review. French Market Vendors Association, Inc. v. French Market Corporation, 12-0964, p. 6 (La.App. 4 Cir. 2/13/13), 155 So.3d 514, 2013 WL 543627, citing A.M.E. Disaster Recovery Services, Inc. v. City of New Orleans, 10-1755, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 454, 456.

This case is further complicated by the fact that despite plaintiffs’ statements on appeal that the trial court erred in denying their request for a permanent injunction, both plaintiffs’ motion for partial summary judgment and the trial court’s April 22, 2014 judgment on that motion simply refer to the motion and ruling on that motion as a “motion for partial summary judgment in [891]

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Bluebook (online)
158 So. 3d 887, 2014 La.App. 4 Cir. 0742, 2015 La. App. Unpub. LEXIS 21, 2015 WL 178252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-tsatsoulis-lactapp-2015.