Haley v. City of Opelousas

• Decision Date: 30 June 1977
• Docket Number: No. 6037,6037
• Citation: 347 So.2d 903
• Parties: Bertha HALEY, Plaintiff-Appellant, v. CITY OF OPELOUSAS et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 903

347 So.2d 903

Bertha HALEY, Plaintiff-Appellant, v. CITY OF OPELOUSAS et al., Defendants-Appellees.

No. 6037.

Court of Appeal of Louisiana, Third Circuit.

June 30, 1977.

Dwight D. Reed, Opelousas, for plaintiff-appellant.

Devillier, Ardoin & Watson by J. Winston Ardoin, Eunice, Lewis & Lewis by Seth Lewis, Jr., Opelousas, for defendants-appellees.

Before HOOD, FORET and HEARD, JJ.

HOOD, Judge.

This is a damage suit instituted by Mrs. Bertha Haley against the City of Opelousas, the Louisiana Department of Highways and Planter's Trust and Savings Bank of Opelousas, Inc. The trial court rendered a summary judgment dismissing the suit as to the Department of Highways. Plaintiff later amended her original petition praying that the summary judgment rendered in this suit be annulled on the ground that it was obtained by fraud and ill practices. The Highway Department filed exceptions of improper procedure, no right of action and no cause of action. Judgment was rendered by the trial court sustaining those exceptions and again dismissing the suit as to the Highway Department. Plaintiff appealed.

The determining issue presented is whether plaintiff has alleged a cause of action for annulling the summary judgment which dismissed the Department of Highways as a defendant in this suit.

Plaintiff alleges that she was injured when she stumbled and fell as she attempted to walk across Coleman Street, in the City of Opelousas, near the point where that street intersects U.S. Highway 167. She asserts that the City of Opelousas and the Department of Highways were negligent in allowing some pieces of concrete to become dislodged on a curb at that location, and that the accident resulted from that negligence.

The Department of Highways filed a motion for summary judgment praying that it be dismissed as a defendant on the ground that Coleman Street was not a part of the State Highway System. Attached to that motion was an affidavit executed by the Senior Statistician for the Department of Highways, the pertinent portion of which states:

"Coleman Street in Opelousas, Louisiana, was not included among the routes enumerated in Act 40 of 1955, nor has it since been added to the State Route System through action of the Louisiana Department of Highways."

A hearing was held on that motion, and at that hearing the above affidavit was filed in evidence. Plaintiff filed no counter affidavits and no other documents or evidence of any kind in opposition to the motion of the Department of Highways. The trial court thereupon rendered a summary judgment on January 23, 1975, dismissing the suit as to the Department of Highways. No appeal was taken from that judgment.

More than a year later, on July 2, 1976, plaintiff filed an amended petition in this proceeding, alleging that the above summary judgment was obtained by fraud or ill practices, praying that that summary judgment be annulled, and demanding judgment on her principal demand for damages against the City of Opelousas and the Department of Highways. As grounds for annulling the summary judgment, plaintiff alleges that she learned on July 31, 1975, or about six months after the summary judgment was rendered, that portions of Coleman Street are "under the control and right-of-way of the Louisiana Department of Highways," that the affidavit of the Statistician of that Department thus was incorrect, and that for that reason she is entitled to have the summary judgment annulled under LSA-C.C.P. art. 2004.

Plaintiff later amended her petition again to incorporate into her pleadings a plat of survey, prepared by a Registered Land Surveyor on June 6, 1975, which shows a "break" in the concrete curb at a point near the junction of Coleman Street and Highway 167. That plat also shows that the highway right-of-way is wider at the place where it intersects Coleman Street than it is on either side of that point, and that the break in the curb was on the highway right-of-way, rather than on the city-owned servitude for Coleman Street.

In response to the above amended pleadings filed by plaintiff, the Department of Highways filed an exception of improper procedure and exceptions of no right and no cause of action. After a hearing, the trial court rendered judgment sustaining those exceptions and again dismissing the suit as to the Department of Highways. Plaintiff appealed, and that appeal is before us now.

We have decided that plaintiff has failed to allege facts which, assuming those facts to be true, would be sufficient to support a judgment annulling the...