Miccol Enters., Inc. v. City of New Orleans

• Decision Date: 19 December 2012
• Docket Number: No. 2012–CA–0864.,2012–CA–0864.
• Citation: 106 So.3d 746
• Parties: MICCOL ENTERPRISES, INC. v. The CITY OF NEW ORLEANS.
• Court: Court of Appeal of Louisiana — District of US

106 So.3d 746

MICCOL ENTERPRISES, INC.

v.The CITY OF NEW ORLEANS.

No. 2012–CA–0864.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 19, 2012.

Regel L. Bisso, Bisso & Miller, L.L.C., Metairie, LA, for Plaintiff/Appellee.

Miles L. Granderson, Tammie T. Jackson, Assistant City Attorneys, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET).

ROSEMARY LEDET, Judge.

[4 Cir. 1]In this case, both the defendant, City of New Orleans (“the City”), and the plaintiff, Miccol Enterprises, Inc. (“Miccol”), filed motions for summary judgment seeking to resolve the issue of whether the administrative judgment of blight and public nuisance against Miccol is a valid judgment or a nullity. The district court granted Miccol's motion for summary judgment and denied the City's cross motion for summary judgment, finding that the original “Notice of Violation and Hearing Notice” issued by the City to Miccol and all subsequent proceedings, to be null and void. The City appealed. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 10, 2010, an inspector with the City's Code Enforcement Bureau found alleged unoccupied property code violations at 2200 Ursulines Ave., New Orleans, LA 70119 (“the Property”), owned by Miccol. The City sent Miccol a “Notice of Violation and Hearing Notice”, dated July 30, 2010, apprising Miccol of the administrative hearing scheduled for September 14, 2010 regarding the alleged violations of Chapter 28 of the City Code of Ordinances.

[4 Cir. 2]At the September 14, 2010 hearing Miccol was granted an extension; and the hearing was rescheduled to October 27, 2010. Following the administrative hearing on October 27, 2010, judgment was rendered and Miccol received notice of the administrative judgment, signed November 5, 2010, which stated that Miccol was found “guilty of the violations charged on June 10, 2010 ...” declaring the property blighted and a public nuisance. The judgment assessed a fine of $500.00 as a result of the violation, a $75.00 hearing cost, and a $30.00 recordation fee. The judgment further stated that failure to remit $575.00, plus the recordation costs, a total of $605.00, and correct the violation within thirty days from the date of the administrative judgment, would result in the judgment being recorded against the property, which would constitute a lien.

Miccol paid the City $605.00, which was received by the City on December 17, 2010. The City sent Miccol a “Notice of Fines Received,” dated December 20, 2010, as receipt of the $605.00. The notice stated that in order to receive an affidavit to cancel the lien, Miccol would need to bring the property into compliance with Chapter 28, or to the terms stated in the renovation letter. ¹

On May 12, 2011, the City filed a writ of fieri facias in the amount of $9,575.00. However the court issued a writ in the amount of $575.00, which is the fine for the violation and hearing cost assessed in the November 5, 2010 judgment.

On January 3, 2012, Miccol filed the petition for the instant action. The sale of Miccol's property was scheduled for January 10, 2012. However, Miccol's [4 Cir. 3]petition requested a rule to show cause as to why a preliminary injunction should not be issued restraining the City from interfering with Miccol's possession and enjoyment of its property, and staying the sale of his property. The rule for preliminary injunction was held; and a judgment was issued on January 10, 2012, staying the sale of Miccol's property.

On February 6, 2012, Miccol filed a motion for summary judgment asserting that the administrative judgment signed November 5, 2010 against Miccol is null. Miccol asserts that the original “Notice of Violation and Hearing Notice” issued by the City did not include language specified in Sec. 28–39(d) of the City Code of New Orleans, which the City does not dispute.² Sec. 28–39(d) states:

The notice shall state that the owner or alleged violator shall have seven days from the postmark date to respond in writing to request an extension of time prior to an administrative enforcement hearing to bring the unoccupied property within compliance with the Code. The notice may include any such materials as provided by the director to describe the process and criteria for applying for and being granted said extension of time.

In response, the City filed its own motion for summary judgment, which also served as its opposition to Miccol's summary judgment. On March 30, 2012, a hearing was held on both parties' motions for summary judgment. The matter was taken under advisement and a judgment was rendered on April 17, 2012, granting Miccol's motion for summary judgment and denying the City's cross motion for summary judgment. Subsequently, the City requested written reasons for the [4 Cir. 4]judgment. On April 30, 2012, the district court judge issued its reasons for judgment, which stated that “[t]he Court adopts in toto Plaintiff Miccol Enterprises, Inc.'s Memorandum in Support of their Motion for Summary Judgment.” The instant appeal, filed by the City, followed.

The City's appeal assigns several assignments of error which we have grouped into the following four categories: 1) the district court erred in finding that Miccol did not receive proper notice prior to the October 27, 2012 hearing where a final judgment was rendered based on the City's initial failure to inform Miccol of its right to request an extension when, in fact, Miccol was notified of the City's willingness to allow an extension and was granted a forty-three day extension; 2) the district court erred in allowing Miccol to raise the claim of nullity based on defective notice because Miccol waived the ability to do so by making a general appearance at two hearings; 3) the district court erred by granting Miccol's motion for summary judgment finding that the administrative judgment to be null and void for defect patent on the face of the proceedings and denying the City's motion for summary judgment; 4) the district court erred in adopting Miccol's Memorandum in Support of its Motions for Summary Judgment in toto despite legal and factual errors therein.

STANDARD OF REVIEW

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. Brunet v. Fullmer, 00–0644, p. 3 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241 (citing La. C.C.P. art. 966(A)(2)). The procedure is favored and shall be construed to [4 Cir. 5]accomplish these ends. Id. When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate”, such as, “whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Gray v. American Nat'l Prop. & Cas. Co., 07–1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, Inc., 06–1827, p. 4 (La.5/22/07), 958 So.2d 634, 638).

The moving party has the burden of establishing that there are no genuine issues of material fact. Williams v. Memorial Medical Center, 03–1806, p. 14 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053 (citing La. C.C.P. art. 966(C)(2)). However, if the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, then the moving party is not required to negate every essential element of the nonmoving party's claim. Id. The moving party may satisfy its burden merely by “pointing out” the absence of support for one or more essential elements of the nonmoving party's claim. Id.quoting Lee v. Wall, 31,468, 31,469, p. 3 (La.App. 2 Cir. 1/20/99), 726 So.2d 1044, 1046.

DISCUSSION

We will first address the City's assertion that the district court erred in finding that Miccol did not receive proper notice prior to the October 27, 2012 hearing where a final judgment was rendered based on the City's initial [4 Cir. 6]failure to inform Miccol of its right to request an extension. The City asserts that Miccol was notified of the City's willingness to allow an extension and was granted a forty-three day extension.

Central to the instant appeal, Miccol's motion for summary judgment asserts that the notice sent by the City, apprising Miccol of the alleged violation and of the September 14, 2010 hearing, did not state that Miccol could request an extension prior to an administrative enforcement hearing to bring the unoccupied property into compliance as required by Sec. 28–39(d) of the City Code of New Orleans. As stated, the City does not contest Miccol's assertion. However, the City argues that the September 14, 2010 hearing should not be the central focus of this Court but rather the October 27, 2010 hearing at which judgment was rendered. The City asserts that at the September 14, 2010 hearing, the parties discussed the condition of the property; Miccol was verbally notified of the availability of the extension; and Miccol was granted an extension to October 27, 2010. The City attached an audio file of the September 14, 2010 hearing as an exhibit to its appellate brief. However, Miccol objects to the use of the audio file of the September 14, 2010 hearing because it was never introduced into evidence in the district court, and it is therefore not a part of the record on appeal.

A court of appeal is a court of record, which must limit its review to evidence in the record before it. Miller v. Crescent City Health Care Center, 08–1347, p. 7 (La.App. 4 Cir. 5/28/09), 24 So.3d 891, 898 (Tobias, J., [4 Cir. 7]concurring in part and dissenting in part) (citing La. C.C.P. art. 2164). The record on appeal is that which is sent by the trial court to the appellate court and includes the...