McMahon v. City of New Orleans, 090419 LACA4, 2018-CA-0842
| Opinion Judge | JAMES F. MCKAY III CHIEF JUDGE. |
| Party Name | JOSEPH R. MCMAHON, ET AL v. CITY OF NEW ORLEANS DARLENE WASHINGTON-WAPEGAN, CAROLYN BLACKMAN, JOSEPH E. ALVEREZ, AND CORINNE DUCRE v. CITY OF NEW ORLEANS DAVID C. JARRELL v. CITY OF NEW ORLEANS DAVID C. JARRELL v. CITY OF NEW ORLEANS DOUGLAS M. KLEEMAN AND GREGORY J. MCDONALD v. CITY OF NEW ORLEANS |
| Attorney | ANTHONY S. MASKA ATTORNEY AT LAW and-JOSEPH R. MCMAHON III COUNSEL FOR PLAINTIFFS/APPELLEES. MICHEAL L. FANTACI DEBORAH A. VILLIO JAMES C. RAFF LEBLANC FANTACI VILLIO, LLC and SUNNI LEBEOUF NEW ORLEANS CITY ATTORNEY SHAWN LINDSAY DEPUTY CITY ATTORNEY, COUNSEL FOR DEFENDANT/PLAINTIFF. |
| Judge Panel | Court composed of Chief Judge James F. McKay III, Judge Paula A. Brown, Judge Dale N. Atkins BROWN, J., CONCURS WITH REASONS. ATKINS, J., CONCURS FOR THE REASONS ASSIGNED BY J. BROWN. |
| Case Date | September 04, 2019 |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-02196, DIVISION "E" Honorable Melvin C. Zeno, Judge.
ANTHONY S. MASKA ATTORNEY AT LAW and-JOSEPH R. MCMAHON III COUNSEL FOR PLAINTIFFS/APPELLEES.
MICHEAL L. FANTACI DEBORAH A. VILLIO JAMES C. RAFF LEBLANC FANTACI VILLIO, LLC and SUNNI LEBEOUF NEW ORLEANS CITY ATTORNEY SHAWN LINDSAY DEPUTY CITY ATTORNEY, COUNSEL FOR DEFENDANT/PLAINTIFF.
Court composed of Chief Judge James F. McKay III, Judge Paula A. Brown, Judge Dale N. Atkins
JAMES F. MCKAY III CHIEF JUDGE.
In this class action litigation, the defendant, City of New Orleans, appeals the trial court's granting of a partial summary judgment in favor of Class Plaintiffs Subclass 1. The trial court ordered that that the City "shall immediately refund to the Class Plaintiffs Subclass 1 all ATES1 ]fines and fees paid by the Class Plaintiffs Subclass 1 for ATES tickets issued for the period January 1, 2008, through November 3, 2010, in the amount of $25, 612, 690.32, together with judicial interest[.]"2 We affirm.
FACTS AND PROCEDURAL HISTORY
In January of 2008, the City contracted with American Traffic Solutions, Inc., for the installation of traffic cameras at various locations throughout the City to capture images of vehicles that were speeding or violating intersectional red lights, or both. In connection with this contract, the City enacted and began enforcing Code of Ordinances of the City of New Orleans Chapter 154, Article XVII, Sections 154-1704, known as the Automated Traffic Enforcement System (ATES) ordinance.
On March 3, 2010, lead plaintiff, Joseph R. McMahon, III, filed the first class action lawsuit in Civil District Court challenging the ATES ordinances under local, state, and federal law. Several subsequent class action challenges were also filed. On October 8, 2010, Mr. McMahon filed his first amended class action petition against the City, which included a challenge to the Department of Public Works' (DPW) illegal enforcement, administration and fine collection of the ATES as ruled by Judge Paulette Irons in
Washington-Wagepan, et al v. City of New Orleans, CDC No. 2010-9732.3
The City Council passed an amendment to ATES on November 4, 2010, placing enforcement and administration of ATES sections 174-1701 through 154-1704 under the New Orleans Police Department (NOPD). The trial court, plaintiffs, and the City jointly agreed to consolidate several class action lawsuits under the caption of the instant case, and on March 23, 2012, the plaintiffs filed a "Master Petition" in the ad hoc division of Civil District Court.
The City filed a motion for summary judgment on all claims on July 31, 2012. The trial court heard oral arguments on the City's motion for summary judgment on August 15, 2012, but requested supplemental briefing on several issues. On October 10, 2012, the trial court issued a judgment in favor of the City and dismissed all of the plaintiffs' claims. The plaintiffs timely appealed this judgment.
On December 18, 2013, this Court reversed that judgment in part and remanded the matter to the trial court. McMahon v. City of New Orleans, unpublished 2013-0771 (La.App. 4 Cir. 12/18/13). This Court found that the plaintiffs had a vested right to seek relief from the DPW's unlawful enforcement of ATES. Id. On July 9, 2015, following several amendments to the Master Petition, the trial court granted class certification to the plaintiffs. On February 8, 2017, the trial court signed an order accepting the definition of two subclasses in the case.
On September 11, 2017, the plaintiffs filed a motion for partial summary judgment on behalf of Subclass 1, which the trial court granted from the bench on November 15, 2017. After discussions with opposing counsel, on December 4, 2017, the plaintiffs moved to amend the language of the judgment to bring conformity under Louisiana law with a money judgment. On February 21, 2018, the trial court amended the language of the partial summary judgment to include an actual dollar amount ($25, 612, 690.32), and ordered that the City return this amount to those who had paid ATES fines between January 1, 2008 and November 3, 2010. It is from this judgment that the City has taken the instant suspensive appeal.
DISCUSSION
On appeal, the City raises the following assignment of error: the district court erred in granting plaintiffs' motion for partial summary judgment, finding the entire ATES Ordinance to have been null ab initio, and ordering the return of all fines collected under the City's ATES Ordinance from January 1, 2008 until November 3, 2010.
Appellate courts review the grant or denial of summary judgments de novo. Smitko v. Gulf South Shrimp, Inc., 2011-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755. Summary judgment shall be rendered forthwith if the pleadings,...
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