Town of Homer v. Entergy Louisiana, Inc.

137 So. 3d 811, 2014 WL 1386379, 2014 La. App. LEXIS 989
Louisiana Court of Appeal·Decided April 9, 2014·No. No. 48,924-CA·Published

Opinions

PITMAN, J.

11 Appellant Town of Homer (“Homer”) appeals the trial court’s denial of its motion for summary judgment and granting of appellee Entergy Louisiana, Inc.’s (“En-tergy”) motion for summary judgment. For the following reasons, we affirm the judgment of the trial court.

FACTS

Homer was incorporated by Act No. Ill of 1850. By Ordinance No. 60, approved on September 16, 1901, the Town of Homer Charter (the “Charter”) was amended to add Section 16, Numbers 2-20, which grant powers concerning utilities to the mayor and selectmen of Homer. Number 5 states:

To grant the right for the construction of telegraph, electric light, or telephone poles, posts and wires, along and upon any of the streets, alleys or ways of the municipality, and change, modify and regulate the same. But such privilege shall not be exclusive.

Number 6 states:

To grant to any person or corporation the use of the streets, alleys and public grounds for the purpose of laying gas, water, sewer or stream pipes or conduits for electric lights to be used in furnishing or supplying the municipality and inhabitants or any person or corporation with gas, water, sewerage, steam or hot air for heating purposes or light, but a franchise, right-of-way, or privilege of character whatever shall not be granted for a longer period than twenty-five (25) years, and such privilege shall not be exclusive.

[813] On August 31, 1977, Louisiana Power & Light (the predecessor of Entergy) presented Homer with an offer to operate and potentially gain ownership of its electric plant and system and to enter into a 60-year franchise to operate the plant and system. On December 7,1977, the Homer Board of Selectmen adopted Ordinance No. 658 (the “Ordinance”), which granted Entergy a 60-year franchise to supply electric power and energy to RHomer.1

On March 15, 1978, Homer and Entergy entered into an agreement (the “Operating Agreement”) for “the operation and possible ultimate transfer of ownership of the electric system” of Homer. Section 14 of the Operating Agreement states, in part, that:

Section 14. Throughout the time that this Operating Agreement remains in effect, the Town shall not:
(a) grant or issue to anyone other than the Company ... any franchise or permit for the generation, transmission, distribution and/or sale of electric power or energy within the corporate limits of the Town[-]

On April 4, 2008, Homer filed a petition requesting that the trial court render a judgment declaring that the Operating Agreement is voidable and terminable at the election of Homer as it is a violation of the Charter. Homer alleged that the Charter prohibits it from granting a franchise that exceeds 25 | -¡years and that the agreement with Entergy is for 60 years.

On February 4, 2013, Homer filed a motion for summary judgment, arguing that it is entitled to a judgment declaring the Operating Agreement null, void and without effect. Homer contended that the Ordinance and the Operating Agreement violate the Charter, which limits franchises to 25 years and prohibits exclusive franchises, because the Ordinance grants En-tergy a franchise for the term of 60 years and the Operating Agreement grants En-tergy an exclusive franchise.

On March 12, 2013, Entergy filed a motion for summary judgment and requested that the court dismiss with prejudice any and all claims by Homer. Entergy argued that the Charter was amended by La. R.S. 33:4341, which allows municipalities to sell electric systems and to grant 60-year fran[814] chises; and, therefore, the Operating Agreement is valid, effective and should be enforced.

On May 9, 2018, at the hearing to argue the motions for summary judgment, Homer conceded that the facts are not in dispute, but argued that the parties disagree on whether the Charter was amended by La. R.S. 33:4341 to extend the maximum term for franchises to 60 years. Entergy argued that La. R.S. 33:4341 did amend the Charter because it is a local law, as opposed to a general law. Enter-gy contended that the statute is a local law because it does not apply to the entire State of Louisiana. The trial court stated that there were no material facts in dispute and that the only issue was whether La. R.S. 33:4341 is a local or general law. The trial court found that La. R.S. 33:4341 is a local or special statute and granted judgment in favor of Entergy.

|4On May 30, 2013, the trial court filed a written judgment reflecting its determination that there were no genuine issues of material fact and that Entergy is entitled to judgment as a matter of law. The trial court denied Homer’s motion for summary judgment, granted Entergy’s motion for summary judgment and dismissed Homer’s requests for declaratory relief.

Homer now appeals the judgment of the trial court.

DISCUSSION

An appellate court reviews a trial court’s granting of summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Louisiana High Sell. Athletics Ass’n, Inc. v. State, 12-1471 (La.1/29/13), 107 So.3d 583.

The parties agree that the resolution of this case turns on whether La. R.S. 33:4341 is considered to be a local law or a general law.

Article VI, § 2, of the Louisiana Constitution states, in pertinent. part, that “a special legislative charter existing on the effective date of this constitution may be amended, modified, or repealed by local or special law.” Homer’s Charter is a special legislative charter as contemplated by La. Const. Art. VI, § 2. Therefore, if La. R.S. 33:4341 is a local law, as argued by Enter-gy, the Charter was amended to allow for 60-year franchises. Conversely, if La. R.S. 33:4341 is a general law, as argued by Homer, the Charter was not amended by the statute, and the Operating Agreement and Ordinance violate the Charter.

As noted by the Louisiana Supreme Court in Kimball v. Allstate Ins. |5 Co., 97-2885 (La.4/14/98), 712 So.2d 46, “the constitution does not give us much guidance as to the meaning of the terms ‘local’ and ‘special.’ ” Thus, the courts have looked to jurisprudence and legal commentary to define local, special and general laws.2 Id.; Polk v. Edwards, 626 So.2d 1128 (La.1993).

The ultimate distinction between general laws and local laws is that general laws affect the community as a whole and local laws affect private persons, private property or private or local interests. Deer Enterprises, LLC v. Parish Council of Washington Parish, 10-0671 (La.1/19/11), 56 So.3d 936; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015 (La.11/30/94), 646 So.2d [815]*815885; Polk, supra; State v. Dalon, 35 La.Ann. 1141 (1883).

Free access — add to your briefcase to read the full text and ask questions with AI

Town of Homer v. Entergy Louisiana, Inc., 137 So. 3d 811, 2014 WL 1386379, 2014 La. App. LEXIS 989 (La. Ct. App. 2014).

137 So. 3d 811 (Town of Homer v. Entergy Louisiana, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

City of New Orleans v. Treen
431 So. 2d 390 (Supreme Court of Louisiana, 1983)
Polk v. Edwards
626 So. 2d 1128 (Supreme Court of Louisiana, 1993)
La. Paddlewheels v. La. Riverboat Gaming
646 So. 2d 885 (Supreme Court of Louisiana, 1994)
State v. Slay
370 So. 2d 508 (Supreme Court of Louisiana, 1979)
State v. LaBauve
359 So. 2d 181 (Supreme Court of Louisiana, 1978)
Kimball v. Allstate Ins. Co.
712 So. 2d 46 (Supreme Court of Louisiana, 1998)
Livingston Downs Racing Ass'n v. State
705 So. 2d 149 (Supreme Court of Louisiana, 1998)
Deer Enterprises, LLC v. Parish Council of Washington Parish
56 So. 3d 936 (Supreme Court of Louisiana, 2011)
Louisiana High School Athletics Ass'n v. State
107 So. 3d 583 (Supreme Court of Louisiana, 2013)
State v. Dalon
35 La. Ann. 1141 (Supreme Court of Louisiana, 1883)