Wilkins v. City of Shreveport

124 So. 3d 20, 2013 WL 4552267, 2013 La. App. LEXIS 1735
CourtLouisiana Court of Appeal
DecidedAugust 28, 2013
DocketNo. 48,116-CA
StatusPublished

This text of 124 So. 3d 20 (Wilkins v. City of Shreveport) 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
Wilkins v. City of Shreveport, 124 So. 3d 20, 2013 WL 4552267, 2013 La. App. LEXIS 1735 (La. Ct. App. 2013).

Opinion

STEWART, J.

|,The City of Shreveport (“the city”) is appealing the trial court’s judgment ordering that, if deemed necessary, it is to remove the sidewalk, at its expense, in order to make accommodations for Corrie Johnson Wilkins to be buried next to her husband. For the reasons that follow, we affirm.

FACTS

Mrs. Wilkins is the owner of the Leonard Johnson Wilkins burial plot (“family plot”) located in Greenwood Cemetery, Shreveport, Louisiana. The family plot contains six gravesites, which are occupied by Mrs. Wilkins’ parents, grandparents, aunt, and her late husband, Robert L. Wilkins. A public sidewalk runs adjacent to the family plot, specifically Mr. Wilkins’ grave,1 and ends abruptly at the foot of his grave. After her death, Mrs. Wilkins wants to be buried next to her husband. In order to accomplish this, she wants the sidewalk removed to create her burial site.

Mrs. Wilkins contacted Keith Gallagher, the regional vice-president of Suhor Industries (“Suhor”), to discuss the removal of the sidewalk so that another grave can be put in its place. Suhor manufactures burial vaults and maintains cemeteries. It recently purchased Boxeo, Inc. (“Boxeo”), a company that assumed the duties of sexton 2 for Greenwood Cemetery on behalf of the city in the 1970s. At the time Suhor acquired Boxeo, it was owned and operated by Barry Box. When Suhor purchased Boxeo, it assumed some of the sexton duties at Greenwood Cemetery.

I ?Mr. Gallagher testified that Mrs. Wilkins contacted his office regarding the removal of the sidewalk adjacent to the family plot. After inspecting the area, he determined that because the sidewalk was in poor condition, it could be removed to accommodate her request.

On March 20, 2007, Mr. Gallagher met with Shreveport’s city attorney, Terri Scott, and the director of Shreveport Parks and Recreation (“SPAR”), Shelly Ragle.3 During this meeting, Mr. Gallagher proposed the idea of moving the sidewalk. He testified that everyone at the meeting agreed that the sidewalk did not serve a purpose and that another grave could be put in that spot. Mr. Gallagher sent a letter discussing his recollection of the meeting to Mrs. Wilkins.

Mrs. Wilkins contends that the letter creates an agreement between her and the city. More specifically, she alleges that on or about March 26, 2007, she entered into an agreement with the city, namely, Attorney Scott, and Shelly Ragle, to have the sidewalk removed so that another grave could be put in its place. The city denies entering into any agreement with Mrs. Wilkins.

By May 9, 2009, the city had taken over the management of the cemetery. On May 13, 2009, when Mrs. Wilkins contacted the cemetery again regarding graves-ites, a SPAR representative informed her that the alleged agreement would not be honored and that she had the option of either being buried on top, or on the bottom, of Mr. Wilkins.

|sOn June 12, 2009, plaintiffs counsel informed Ms. Ragle that she intended to [22]*22sue the city if the sidewalk was not removed. Ms. Ragle informed him that the request to remove the sidewalk requires the city to follow state law and local ordinances to revise the cemetery plot. More specifically, it must seek authorization from the Shreveport City Council to sell the new plot, and it must competitively bid the sale of the new plot.

On May 20, 2010, Mrs. Wilkins filed a petition to enforce the alleged agreement and to prevent the stacking of bodies at the Greenwood Cemetery. In response to the petition, the city filed a dilatory exception of prematurity, alleging that her suit is premature because she did not present her request to the Shreveport City Council.

The city’s exception of prematurity was referred to the merits, and the matter proceeded to trial on December 6, 2011.

At trial, Mr. Gallagher testified that he told Mrs. Wilkins that the sidewalk could be removed, and that she would have a place to be buried right next to her husband. However, he also admitted that no contract existed between Suhor and the city, and that he did not have the authority to have the sidewalk removed.

Mr. Box testified that it was not uncommon to put more than six graves in a six-grave space. He stated that he inspected the public sidewalk at issue, as well as the family plot, and noted that it “appeared” that there was room to put another space. If necessary, Mrs. Wilkins’ husband could be moved slightly over without disturbing the sidewalk.

|4Ms. Ragle testified that the city, yia SPAR, is responsible for Greenwood Cemetery. She further testified that in her capacity as director of SPAR, she did not have the authority to create a plot for Mrs. Wilkins. The city does not have the au-thoi’ity to “sell, donate, or give away public property.” She further stated that even if she did state that she could remove the public sidewalk to create a plot for Mrs. Wilkins during the March 20, 2007, meeting, she would be exceeding her authority as the director of SPAR.

Ms. Ragle also noted that Mrs. Wilkins could move her family members to make room for an additional gravesite, but it must occur within the area that “they have already bought, paid for, and have a deed to.” She opined that the city council does not have to be involved if Mrs. Wilkins stays within the family plot.

At the close of evidence, the trial court instructed counsel for each party to draft a judgment that would permit the plaintiff to be buried next to Mr. Wilkins within the boundaries of the family plot. Counsel for the parties were unable to agree on the language of the judgment. Consequently, the trial court issued a judgment on August 31, 2012, ordering that the city, if deemed necessary, is to remove the sidewalk at its expense in order to make accommodations for the plaintiff to be buried next to husband. The city’s exception was deemed moot.

The city has filed the instant appeal, asserting one assignment of error.

CLAW AND DISCUSSION

The city maintains that it has no objection to Mrs. Wilkins creating more than the six burial sites in the Leonard Johnson Wilkins plot, so long as she follows state law. In fact, it is willing to assist her in creating another burial space within her family plot. However, the city assigns as error the trial court’s decision not to order the plaintiff to pay additional expenses involved, in the event that it determines that the sidewalk needs to be removed and replaced in order for Mrs. Wilkins to be buried, at the time of her death, next to Mr. Wilkins.

[23]*23Louisiana courts of appeal apply the manifest error standard of review in civil cases. Detraz v. Lee, 2005-1263 (La.1/17/07), 950 So.2d 557; Hall v. Folger Coffee Co., 2003-1734 (La.4/14/04), 874 So.2d 90; Smith v. City of Shreveport, 46,596 (La.App. 2d Cir. 9/21/11), 73 So.3d 496. The trial court’s findings of facts may not be set aside on appeal unless clearly wrong or manifestly erroneous. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its factual conclusions were reasonable. Where there are two permissible views of the evidence, the fact finder’s choice cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993).

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Hall v. Folger Coffee Co.
874 So. 2d 90 (Supreme Court of Louisiana, 2004)
Detraz v. Lee
950 So. 2d 557 (Supreme Court of Louisiana, 2007)
LeBlanc v. Stevenson
770 So. 2d 766 (Supreme Court of Louisiana, 2000)
Smith v. City of Shreveport
73 So. 3d 496 (Louisiana Court of Appeal, 2011)
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77 So. 3d 1036 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
124 So. 3d 20, 2013 WL 4552267, 2013 La. App. LEXIS 1735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkins-v-city-of-shreveport-lactapp-2013.