State ex rel. Guste v. City of New Orleans

• Decision Date: 09 October 1978
• Docket Number: 62247,Nos. 62246,s. 62246
• Citation: 363 So.2d 678
• Parties: STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General and Representative R. Harmon Drew and B. F. O'Neal v. The CITY OF NEW ORLEANS, Moon Landrieu, Terrence Dubernay and Henry Simmons. STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The Honorable Judges George C. CONNOLLY, Jr., Adrian G. Duplantier, Thomas A. Early, Jr., Richard J. Garvey and Henry J. Roberts, Jr., in their official capacity as Judges for the Civil District Court for the Parish of Orleans, and the Honorable Judges Israel M. Augustine, Jr., Alvin V. Oser, Frank J. Shea, Charles R. Ward and Jerome M. Winsberg, in their official capacity as Judges for the Criminal District Court for the Parish of Orleans, and the Honorable Judges Joan B. Armstrong, Edward G. Gillin and Salvadore T. Mule, in their official capacity as Judges for the Juvenile Court for the Parish of Orleans.
• Court: Louisiana Supreme Court

Page 678

363 So.2d 678

STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General and Representative R. Harmon Drew and B. F. O'Neal v. The CITY OF NEW ORLEANS, Moon Landrieu, Terrence Dubernay and Henry Simmons.

STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The Honorable Judges George C. CONNOLLY, Jr., Adrian G.

Duplantier, Thomas A. Early, Jr., Richard J. Garvey and

Henry J. Roberts, Jr., in their official capacity as Judges

for the Civil District Court for the Parish of Orleans, and

the Honorable Judges Israel M. Augustine, Jr., Alvin V.

Oser, Frank J. Shea, Charles R. Ward and Jerome M. Winsberg,

in their official capacity as Judges for the Criminal

District Court for the Parish of Orleans, and the Honorable

Judges Joan B. Armstrong, Edward G. Gillin and Salvadore T.

Mule, in their official capacity as Judges for the Juvenile

Court for the Parish of Orleans.

Nos. 62246, 62247.

Supreme Court of Louisiana.

Oct. 9, 1978.

Rehearings Denied Nov. 9, 1978.

William J. Guste, Jr., Atty. Gen., Donald Ensenat, Asst. Atty. Gen., La. Dept. of Justice, for plaintiffs-applicants in Nos. 62246 and 62247.

George C. Connolly, Jr., et al. in pro. per. for defendant-respondent in No. 62246.

Salvador Anzelmo, Acting City Atty., Thomas P. Anzelmo, Sr., Asst. City Atty., for defendants-respondents in No. 62246 and 62247.

Frank J. Shea, in pro. per., defendant-respondent in No. 62246 and 62247.

DIXON, Justice.

This litigation was engendered when the New Orleans City Council adopted Ordinance No. 6265 M.C.S. on February 17, 1977. On May 6, 1977 the plaintiffs sought declaratory and permanent injunctive relief (our No. 62246), alleging that the ordinance was unconstitutional because it conflicted with R.S. 13:691(C). The City of New Orleans, its mayor, administrative and finance officers were named defendants. After the State requested a preliminary injunction, the trial court set a hearing to determine whether a preliminary injunction should issue. All defendants filed exceptions of improper cumulation of actions, unauthorized use of summary proceedings, and no cause of action, as well as exceptions of no right of action as to Harmon Drew and B. F. O'Neal. On June 30, 1977 the district court maintained the exception of no right of action as to the two State Representatives, Drew and O'Neal, and held:

"(2) Ordinance No. 6265 of the City of New Orleans is hereby declared to be constitutional, not in conflict with, but rather in furtherance of the State Statute R.S. 13:691(c).

(3) The injunctive relief sought by the plaintiff, State of Louisiana, seeking to prohibit the City of New Orleans and its designated officials from further implementing or enforcing said Ordinance No. 6265 or making payment thereunder to judges is hereby denied."

The State sought supervisory writs from this court but was denied on the ground that its "remedy (was) by an expedited hearing in the Court of Appeal." Guste v. City of New Orleans, 349 So.2d 330 (La.1977). Thereafter the parties stipulated the issues for appeal and submitted the case to the Fourth Circuit. On December 3, 1977 the Court of Appeal affirmed the decision, Guste v. City of New Orleans, 353 So.2d 1117 (4th Cir. 1977), and the State applied for a writ of certiorari, or, alternatively, for supervisory writs, from this court on January 9, 1978. On January 27, 1978 this court declined to consider the application because it was deemed untimely. Guste v. City of New Orleans, 354 So.2d 1374 (La.1978). On February 28, 1978 plaintiffs-relators filed a motion in the district court for a permanent injunction, and a rule to show cause was set for March 17, 1978. The City of New Orleans and individual defendants filed exceptions of res judicata, no cause of action and unauthorized use of summary proceedings. By judgment dated March 20, 1978 the district court maintained the exception of res judicata, denied the injunction and dismissed the case. On May 12, 1978 plaintiffs sought supervisory writs to stay the trial court judgment and to grant an injunction, and a writ was granted on June 2, 1978. Guste v. City of New Orleans, 359 So.2d 199 (La.1978).

On March 23, 1978 the plaintiff filed a second suit in district court alleging that the ordinance was unconstitutional, since it conflicted with R.S. 13:691(C), and seeking a permanent injunction. Named as defendants were all the judges of Orleans Parish who were receiving reimbursements under the ordinance. The City of New Orleans intervened in the litigation as a party defendant and filed exceptions of collateral estoppel and res judicata. Three judges thereafter filed similar exceptions and Judge Shea, who had intervened in the previous suit, excepted on grounds of lis pendens and res judicata. On April 28, 1978 the civil district court maintained the exception of no cause of action as to all parties and maintained Judge Shea's exception of res judicata. Supervisory writs were granted upon plaintiff's application.

The initial issue confronting us is to determine whether the decision of the appeal court in Guste v. City of New Orleans, 353 So.2d 1117 (4th Cir. 1977), is a final judgment such that an exception of res judicata was properly maintained when the State filed once again in the district court. C.C. 3556(31) provides:

"Thing Adjudged--Thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal."

C.C.P. 2083 provides:

"An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury."

This determination in turn depends upon the effect ascribed to the first decision of the district court in that case.

A party aggrieved by a judgment granting or denying a preliminary injunction is entitled to an appeal under Louisiana law and jurisprudence. C.C.P. 3612; Morris v. Transtates Petroleum, Inc., 258 La. 311, 246 So.2d 183 (1971). At the time that this litigation was on appeal, a judgment of a court of appeal became final and executory if an application for rehearing was not timely filed. ¹ C.C.P. 1841, 1842, 2167. Therefore, the pertinent inquiry becomes to determine what issues were encompassed in the district court's decision which the Fourth Circuit subsequently affirmed.

Although the issues presented at the hearing on the rule nisi usually involve only the mover's right to cause the preliminary injunction to issue, decisions rendered by Louisiana courts have recognized the parties' right to agree that the matter be taken on the merits at the hearing on the application for a preliminary injunction. American Bakeries Co. v. Louisiana State Board of Health, 185 La. 959, 171 So. 90 (1936); Southwest Sales and Manufacturing Co. v. Delta Express, Inc. and D. E. Lester, 342 So.2d 281 (La.App.3d Cir. 1977), writ den. 345 So.2d 48 (La.1977); Springlake Homeowners Assn. v. Pecot, 321 So.2d 789 (La.App.4th Cir. 1975). In Southwest Sales, supra, the court noted the effect of a judgment rendered in this context ". . . we think it to be equally well settled that where a judgment denying a preliminary injunction after a hearing on the rule also passes on the merits of the case and effectively disposes of all issues presented by the pleadings such judgment is a final judgment. . . ."

". . . The said judgment being final and no appeal having been taken therefrom same is now res judicata . . ." 342 So.2d at 284, 285.

The record in the case before us shows that the entire case was submitted to the district judge, despite the designation of the hearing as a hearing on the application for a preliminary injunction. For example, on June 23, 1977, an Assistant Attorney General, in correspondence to the district judge, referred to the June hearing as a "hearing on the merits." Both parties extensively briefed and argued all the issues at the hearing on the rule to show cause. Judge Duran's reasons for judgment dealt extensively with the merits of the case and touched only tangentially on the propriety of issuing a preliminary injunction. After judgment the State sought appellate review of the decision on the merits and not on the propriety of the court's passing on any issue other than whether a preliminary injunction should issue. Finally, when the case was on appeal to the Fourth Circuit Court of Appeal, the parties entered into a stipulation "that the issue herein is the interpretation of R.S. 13:691(C) vis-a-vis Ordinance 6265 M.C.S." These factors demonstrate that the parties understood that all issues would be decided on the merits at the hearing, that the judgment of the district court was a judgment on the merits, and that its affirmance by the appeal court was, after the delays for appeal had lapsed, a final judgment which would have the force of res judicata. We therefore affirm the ruling of the district court in Guste v. City of New Orleans insofar as it maintained the exception of res judicata.

In Guste v. Judges (our No. 62247), the district court sustained exceptions of no cause of action as to all parties and an exception of res judicata as to Judge Shea, who had intervened in the previous litigation (our No. 62246). Judge Shea's intervention had placed him on the side of the defendants; he prayed simply that plaintiffs' demands be rejected.

Article 2286 of the Louisiana Civil Code of 1870 provides:

"The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality."

The requirement of identity of parties requires little...