95-1238 La.App. 3 Cir. 5/8/96, City of Opelousas v. Waterbury

• Decision Date: 08 May 1996
• Parties: 95-1238 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1128

674 So.2d 1128

95-1238 La.App. 3 Cir. 5/8/96

CITY OF OPELOUSAS, et al., Plaintiff-Appellant, v. Robert L. WATERBURY, Defendant-Appellee.

No. 95-1238.

Court of Appeal of Louisiana Third Circuit.

May 8, 1996.

Rehearing Denied July 3, 1996.

Minos H. Armentor, New Iberia, for City of Opelousas.

Scott Gerard Vincent, New Orleans, for Robert L. Waterbury.

Before THIBODEAUX, SAUNDERS and AMY, JJ.

[95-1238 La.App. 3 Cir. 1] AMY, Judge.

This appeal arises from two cases which were consolidated for trial. ¹ The trial court declared that the assessment of Mr. Waterbury's property pursuant to a 1985 special assessment ordinance had prescribed, and that all liens and privileges on such property allegedly arising from the recordation of a 1992 supplemental assessment ordinance were null and void. For the following reasons, we affirm in part, reverse in part and render.

DISCUSSION OF THE RECORD

The following are the pertinent facts which were stipulated to by both parties:

By resolution, the City of Opelousas ("City") gave notice of its intention to construct paving improvements along portions of certain streets within the City of Opelousas.

[95-1238 La.App. 3 Cir. 2] On April 23, 1985, the City provided written notice to each property owner proposed to be assessed stating that after thirty days from the date of notice, their property would be assessed for the amount shown in the notice.

Certain property owned by Robert L. Waterbury, described as that one lot bounded on the north by Waterbury, on the South by South Street, on the east by Waterbury and on the west by Opelousas Housing Authority, with a frontage of 905 feet along the north side of South Street, was included in the property proposed to be assessed for street improvement. Thus, Mr. Waterbury was provided with written notice of the proposed assessment on April 23, 1985. The notice stated that his property would be assessed in the amount of $51,132.50 after 30 days from the date of the notice.

On June 11, 1985, the Mayor and the Board of Aldermen adopted the 1985 special assessment. The assessment adopted included Mr. Waterbury's property.

Section 3 of the special assessment stated as follows:

That the amounts herein assessed shall be due and collectable immediately upon the passage of this ordinance and if not paid at the City Hall, City of Opelousas, Louisiana, on or before July 16, 1985, it will be conclusively presumed that any property owner whose property is affected hereby exercises the right and option which is hereby authorized to pay the respective amounts due and herein assessed by this ordinance in ten (10) equal installments extending over a period of ten (10) years bearing interest at a rate not exceeding twelve per centum (12%) per annum from date hereof until paid, such interest rate to be subsequently established by resolution of this Mayor and Board of Aldermen, after taking into consideration the average interest cost the City will have to pay on any Paving Certificates sold by the City to finance the cost of the proposed improvements. The first annual installment shall become due and payable on June 11, 1986, and the subsequent annual installments shall become due and payable on June 11th of each year thereafter. The failure to pay any installment and the interest thereon when due shall ipso facto cause all other installments and the interest thereon to become due and payable, and the City shall, through its proper authority and within thirty (30) days from the date of such default proceed against the property or properties on which such defaults may exist by filing suit in a court of competent jurisdiction to have such property or properties immediately seized and sold for the [95-1238 La.App. 3 Cir. 3] collection of the total amount due thereon, including interest plus ten per cent (10%) additional on principal and interest unpaid as attorney's fees, all as provided for by Sub-Part A, Part I, Chapter 7C, Title 33 of the Louisiana Revised Statutes of 1950.

On June 13, 1985, the special assessment was filed in the mortgage records for the Parish of St. Landry. However, due to the exclusive fault of the City, page 35 of the assessment, which included the assessed Waterbury property, was omitted from the copy of the ordinance which was filed.

Mr. Waterbury never paid any amount of the assessment. On June 25, 1991, the City sent a letter to Mr. Waterbury notifying him of its intentions to institute legal proceedings if the assessment was not paid. On June 27, 1991, Mr. Waterbury's attorney sent a letter to the City stating that the City no longer had a valid claim against the Waterbury property.

On April 14, 1992, the Mayor and Board of Aldermen adopted the 1992 supplemental assessment ordinance. The 1992 ordinance assessed only the Waterbury property and the assessment was based solely upon the same pavement improvements constructed pursuant to the 1985 special assessment.

On May 15, 1992, Robert L. Waterbury filed a petition for a declaratory judgment and for injunctive relief against the City. In the petition, Mr. Waterbury sought a decree declaring the 1992 supplemental assessment ordinance passed by the City, null and void, and also an order for the City to rescind the assessment since it was an attempt to reassess the same property based upon the paving improvements made pursuant to the 1985 assessment ordinance. The petition also sought a decree declaring that the 1985 special assessment had prescribed or been perempted.

On May 18, 1993, the City filed an in rem proceeding against the Waterbury property to recover $51,132.50, the amount assessed for the paving improvements, plus interest as provided for in the assessment and in La.R.S. 33:3306, and also for [95-1238 La.App. 3 Cir. 4] attorney's fees as provided for in La.R.S. 33:3306. In its petition, the City alleged that it "is entitled to proceed in rem against said property and to have its lien and privilege recognized and enforced." On November 23, 1993, a motion to consolidate was granted consolidating the two aforementioned suits for trial.

The two consolidated cases were submitted for a trial on the merits by briefs and stipulations. The trial court found that Mr. Waterbury's property was assessed by the 1985 special assessment, but that the assessment of this property was omitted from the copy filed in the mortgage records. The trial court found that since the Waterbury property was not included in the recordation of the 1985 special assessment, and because under La.R.S. 33:3306, the City only has thirty days from the date of default to proceed against property assessed, any rights which the City had against the Waterbury property had prescribed. The trial court also found that the 1992 supplemental assessment ordinance was without effect. The trial court found that the 1992 supplemental assessment was passed for the sole purpose of assessing Waterbury's property for the same paving improvements which had already assessed in 1985. The trial court therefore held that the City could not be allowed, six years later, to correct an administrative error, rather than an error in description. Thus, the trial court ruled that the 1992 supplemental assessment ordinance was void and without effect.

The City appeals asserting multiple assignments of error, which we categorize as falling into the following three issues: (1) whether the 1985 special assessment ordinance was valid, and if so, whether the City had a lien and privilege against the Waterbury property based upon this assessment, (2) whether the 1992 supplemental assessment ordinance was valid, and (3) whether the 1985 assessment had prescribed or been perempted.

[95-1238 La.App. 3 Cir. 5] For the reasons which follow, we affirm the trial court's decision finding the 1992 supplemental ordinance void and without effect. However, we reverse with respect to the trial court's decision finding that the City's claim based upon the 1985 special assessment had prescribed and enter judgment accordingly.

ANALYSIS

The City argues that the Waterbury property was not validly assessed by the 1985 special assessment because it was not included in the copy of the ordinance filed in the mortgage records. Consequently, the City contends that the failure to include the Waterbury property constituted an error which was corrected by the 1992 supplemental assessment ordinance pursuant to the authority of La.R.S. 33:3306.

Validity of the 1985 Assessment Ordinance:

First, we consider the validity of the 1985 assessment against the Waterbury property. La.R.S. 33:3301, et seq. governs special assessments adopted by a governing authority for paving improvements. According to La.R.S. 33:3306, after complying with the notice requirements of Title 33, the municipality shall adopt an ordinance levying a special assessment on each lot or parcel of real estate abutting the street to be improved. La.R.S. 33:3306(C) further provides, in part, as follows:

"The amount assessed in the ordinance shall be due and collectible immediately on its passage, and if not paid within thirty days from the date of the adoption of the ordinance, it will be conclusively presumed that any property owner whose property is affected thereby, exercises the right and option, which is hereby authorized, to pay the amount due in equal annual installments bearing interest ... and extending over a period not exceeding twenty years ... The first installment shall become due on December 31st of the then current year, or one year after the date of the assessment ordinance herein provided for ... and annually thereafter ... The failure to pay any installments or the interest thereon when due, shall ipso facto cause all other installments and the interest thereon to become due and payable and the municipality shall within thirty days from date of such default, proceed against the property for [95-1238 La.App. 3 Cir. 6] the collection of the total amount due...