Marco Outdoor Adver., Inc. v. State

Decision Date13 July 2021
Docket Number2021 CA 0353, 2021 CA 0354,NO. 2021 CA 0123,2021 CA 0123
Citation329 So.3d 288
Parties MARCO OUTDOOR ADVERTISING, INC. v. State of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, BY AND THROUGH Shawn WILSON In His Official Capacity as Secretary of the Department of Transportation and Development, Pelican Outdoor Advertising, Inc., and KFK Group, Inc. Marco Outdoor Advertising, Inc. v. State of Louisiana, Department of Transportation and Development, By and Through Shawn Wilson In His Official Capacity as Secretary of the Department of Transportation and Development, Pelican Outdoor Advertising, Inc., and KFK Group, Inc. Marco Outdoor Advertising, Inc. v. State of Louisiana, Department of Transportation and Development, By and Through Shawn Wilson In His Official Capacity as Secretary of the Department of Transportation and Development, Pelican Outdoor Advertising, Inc., and KFK Group, Inc.
CourtCourt of Appeal of Louisiana — District of US

329 So.3d 288

MARCO OUTDOOR ADVERTISING, INC.
v.
State of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, BY AND THROUGH Shawn WILSON In His Official Capacity as Secretary of the Department of Transportation and Development, Pelican Outdoor Advertising, Inc., and KFK Group, Inc.

Marco Outdoor Advertising, Inc.
v.
State of Louisiana, Department of Transportation and Development, By and Through Shawn Wilson In His Official Capacity as Secretary of the Department of Transportation and Development, Pelican Outdoor Advertising, Inc., and KFK Group, Inc.

Marco Outdoor Advertising, Inc.
v.
State of Louisiana, Department of Transportation and Development, By and Through Shawn Wilson In His Official Capacity as Secretary of the Department of Transportation and Development, Pelican Outdoor Advertising, Inc., and KFK Group, Inc.

NO. 2021 CA 0123
2021 CA 0353, 2021 CA 0354

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JULY 13, 2021


Mary Ellen Roy, Dan B. Zimmerman, New Orleans, Louisiana, Attorneys for 1st Appellants-Defendants, Pelican Outdoor Advertising, Inc., and KFK Group, Inc.

Michael E. Botnick, J. Douglas Rhorer, R. Ethan Zubic, New Orleans, Louisiana, Attorneys for 2nd Appellant-Plaintiff, Marco Outdoor Advertising, Inc.

Lesia B. Warren, Gregory P. Hardy, Baton Rouge, Louisiana, Attorneys for 3rd Appellants-Defendants, State of Louisiana and Department of Transportation and Development

BEFORE: THERIOT, WOLFE, AND HESTER, JJ.

WOLFE, J.

The primary issue raised in these consolidated appeals concerns the construction and interpretation of Louisiana law regarding two competing billboard permit applications. For the following reasons, we dismiss the appeals of two interlocutory judgments for lack of appellate jurisdiction, we reverse the trial court's grant of a declaratory judgment, and we remand for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

This case involves an ongoing dispute between two rival outdoor advertising companies, Marco Outdoor Advertising, Inc. ("Marco") and Pelican Outdoor Advertising, Inc./KFK Group Inc. ("Pelican/KFK"). On May 26, 2015, the State of Louisiana, through the Department of Transportation and Development ("DOTD"), issued a state billboard permit to Pelican/KFK for a proposed billboard location alongside U.S. Highway 90-Business in Jefferson Parish. At that time, Pelican/KFK was not able to obtain a local permit to supplement the state permit because the proposed location was zoned by Jefferson Parish as an area that did not allow for the erection of billboards. Consequently,

329 So.3d 293

Pelican/KFK could not build the proposed billboard without the local permit, but DOTD annually renewed the state permit issued to Pelican/KFK during the years of 2015-2019.

On January 4, 2018, Marco applied for a state billboard permit to erect a billboard immediately adjacent to the location previously permitted to Pelican/KFK. DOTD denied Marco's permit application because the proposed location did "not meet the requirement of [500-foot] spacing" between billboards. Marco requested a permit review by DOTD, alleging that its proposed billboard location satisfied the 500-foot spacing requirement since it was over 500 feet away from the nearest existing billboard. Marco further argued that DOTD had erred in issuing the Pelican/KFK permit because that proposed billboard could not be built pursuant to applicable local zoning laws and, thus, the Pelican/KFK permit should be revoked.

A permit review panel for DOTD met with Marco, after which DOTD again denied Marco's state permit request on May 14, 2018. DOTD informed Marco that the documentation submitted by Marco did not necessitate the cancellation of the permit issued to Pelican/KFK and that Marco's proposed billboard location still ran afoul of the 500-foot spacing requirement between the proposed billboard previously authorized by the Pelican/KFK permit. On June 7, 2018, Marco filed a petition for writ of mandamus, or in the alternative, petition for judicial review and declaratory judgment in the 19th Judicial District Court, naming DOTD and Pelican/KFK as defendants. In its petition, Marco requested the following relief from the trial court: (1) a writ of mandamus directing DOTD to void the permit it had illegally issued to Pelican/KFK and issue Marco's requested permit; and alternatively, (2) judicially review DOTD's decision to deny Marco's permit application; and in the further alternative, (3) enter a declaratory judgment that declared DOTD had unlawfully issued the permit to Pelican/KFK, so that permit should be voided, and a permit be issued to Marco whose application was improperly denied by DOTD.

DOTD filed exceptions and Pelican/KFK opposed all of Marco's claims. After a hearing, the trial court issued an interlocutory judgment dated September 19, 2018, dismissing Marco's mandamus claim. No party filed an application for supervisory writs or an appeal at that time. After another hearing, the trial court issued a second interlocutory judgment dated February 22, 2019, wherein the trial court dismissed Marco's request for judicial review for lack of subject matter jurisdiction. Again, no application for supervisory writs or appeals were filed at that time. Next, Marco filed a motion for summary judgment regarding its remaining claim for declaratory relief. After a hearing on Marco's motion, the trial court signed a declaratory judgment on August 20, 2019, declaring that DOTD's issuance of the state billboard permit to Pelican/KFK was improper; however, the trial court declined to revoke the Pelican/KFK permit or to order DOTD to issue a permit to Marco. After this judgment, all of the parties appealed. Pelican/KFK and DOTD suspensively appealed the declaratory judgment. Marco filed a devolutive appeal regarding the trial court's prior interlocutory judgments denying Marco's mandamus claim and its alternative request for judicial review. However, this court dismissed the appeals for lack of appellate jurisdiction based on the absence of decretal language and a final judgment designation. See Marco Outdoor Advertising, Inc. v. State, Dept, of Transportation and Development, et al, 2019-1701 (La. App. 1st Cir. 8/5/20) (unpublished). Then, without a new hearing, the trial court issued an

329 So.3d 294

amended judgment that had a final judgment designation on September 23, 2020. All of the parties renewed their appeals.

DOTD and Pelican/KFK appealed the amended judgment, each asserting that the trial court erred in granting Marco's motion for summary judgment seeking a declaration that DOTD's issuance of the state billboard permit to Pelican/KFK was improper. DOTD and Pelican/KFK both argue that the trial court misinterpreted the statute regulating spacing of billboard signs, La. R.S. 481461.4(A)(3)(a),1 to include zoning ordinances. Additionally, Pelican/KFK maintain that the trial court erred in holding that DOTD could not lawfully issue a state billboard permit unless all local zoning ordinances were met. Marco did not appeal the amended judgment nor did it file an answer to Pelican/KFK and DOTD's appeals; rather, Marco's two appeals focus on the two prior interlocutory rulings wherein the trial court dismissed Marco's first two claims for mandamus and judicial review of DOTD's denial of Marco's permit application. All of the appeals were consolidated on May 6, 2021, after the parties filed a joint motion to consolidate in this court.

MOOTNESS

As a threshold jurisdictional matter, we must first determine whether the questions before us in these consolidated appeals present a justiciable controversy or whether the matter has been rendered moot. See Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La. 10/20/98), 720 So.2d 1186, 1193. According to Pelican/KFK's brief, in between the filing of the first set of appeals and the second set of appeals, on September 18, 2019, the Jefferson Parish Council enacted a zoning classification change for the proposed location of Pelican/KFK's billboard, which then allowed the erection of billboards. Jefferson Parish purportedly issued a local billboard permit to Pelican/KFK on November 15, 2019, and Pelican/KFK asserts that the billboard has now been erected pursuant to the state and local dual permit process at issue. Additionally, in oral argument before this court, counsel for Pelican/KFK acknowledged that the billboard was built.

Our review of the appellate record reveals a lack of documentation regarding Jefferson Parish's purported zoning change and the actual erection of the Pelican/KFK billboard. An appellate court must render its judgment upon the record on appeal. La. Code Civ. P. art. 2164. Appellate courts may not review evidence that is not in the appellate record or receive new evidence. Further, appellate courts do not rely on a party's statements or arguments in briefs to determine facts of the matter before it. Save Our Hills v. Louisiana Department of Environmental Quality, 2018-0100 (La. App. 1st Cir. 11/5/18), 266 So.3d 916, 926, writ denied, 2019-0057 (La. 3/18/19), 267 So.3d 87.

The doctrine of mootness, however, is a recognition that judicial rulings seeking to prohibit certain activities should be susceptible of implementation. When the occurrence has happened, the ruling cannot "reach back in...

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