State ex rel. Guste v. Audubon Park Commission

• Decision Date: 09 October 1975
• Docket Number: Nos. 7228,7289,s. 7228
• Citation: State ex rel. Guste v. Audubon Park Commission, 320 So.2d 291 (La. App. 1975)
• Parties: STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The AUDUBON PARK COMMISSION and the City of New Orleans. Walter CHAPPELL, III and Vera Bisso v. The AUDUBON PARK COMMISSION, through its President, Clayton Nairne, and the City of New Orleans, through its Mayor, Moon Landrieu.
• Court: Court of Appeal of Louisiana

Page 291

320 So.2d 291

STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The AUDUBON PARK COMMISSION and the City of New Orleans.

Walter CHAPPELL, III and Vera Bisso v. The AUDUBON PARK COMMISSION, through its President, Clayton

Nairne, and the City of New Orleans, through its

Mayor, Moon Landrieu.

Nos. 7228, 7289.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 9, 1975.

William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, Louis M. Jones, William P. Curry, Jr., Sam L. Levkowicz, Robert E. Redmann, New Orleans, for plaintiff-appellant.

Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittmann and S. Michael Henry, New Orleans, for defendant-appellee.

Blake G. Arata, City Atty., Henry W. Kinney, III, New Orleans, for defendant-appellee.

Vernon V. Palmer, New Orleans, for Upper Audubon Assn. and Walter Chappell, III.

Thomas F. Jordan, New Orleans, for Uptown Civic Assn. and Donald S. Lee.

Before LEMMON, STOULIG and SCHOTT, JJ.

SCHOTT, Judge.

These appeals were taken from three separate judgments by the Attorney General of the State of Louisiana, Uptown Civic Association and Donald S. Lee (Uptown and Lee) and by Walter Chappell, III and Vera Bisso (Chappell and Bisso).

The procedural history of this litigation began on June 26, 1975, with the filing of a petition for a temporary restraining order, a preliminary injunction and a final injunction by the Attorney General to prevent defendants from proceeding with an expansion project on the Merz Memorial Zoo in the Audubon Park in the City of New Orleans. The trial judge declined to issue a temporary restraining order and assigned the preliminary injunction for a hearing on July 2. On June 30 the Audubon Park Commission (APC) and the City filed peremptory exceptions of no right and no cause of action to the Attorney General's petition. On July 1 Uptown and Lee filed a petition of intervention seeking a declaratory judgment declaring illegal defendants' activities in carrying out the zoo project, and a final injunction prohibiting them from proceeding with the project and compelling them to restore Audubon Park to its condition existing before the project began. On July 3 the trial court maintained the exceptions of no right and no cause of action filed by defendants dismissing the Attorney General's suit. The court also dismissed the petition of intervention filed by Uptown and Lee. On applications for writs to this Court, the application of the Attorney General was denied but the application of Uptown and Lee was made peremptory because of a procedural deficiency in the record in that no exceptions had been filed against their petition and the validity of their intervention had not been placed at issue before the court.

On July 22 APC and the City filed peremptory exceptions of no cause and no right of action as well as a dilatory exception of unauthorized use of summary process against the petition of Uptown and Lee. In the meantime, on July 8 Chappell and Bisso filed a separate suit for declaratory and injunctive relief against APC and the City. The rule for the preliminary injunction was originally assigned for hearing on July 15 but was apparently continued by the court until July 29. Defendants filed similar exceptions to those filed in response to the petition of intervention by Uptown and Lee.

On July 31 the trial court overruled the dilatory exception of defendants to the petition of Uptown and Lee and maintained the exception of no right of action filed by defendants to the petition of Uptown and Lee dismissing their suit. In a separate judgment on July 31 the trial court also maintained the exception of no cause of action filed by defendants to the petition of Chappell and Bisso dismissing their suit. From these judgments the Attorney General, Uptown and Lee, and Chappell and Bisso have appealed, and the matters have all been consolidated in this Court.

It can be seen from the foregoing that we must consider exceptions of no right of action maintained against the Attorney General, no right of action maintained against Uptown and Lee, and no cause of action maintained against the Attorney General and Chappell and Bisso. While the trial judge did not specifically pass upon the exception of no cause of action filed against Uptown and Lee it appears from a reading of his reasons for judgment that he intended to maintain the exception of no cause of action against Uptown and Lee, and in any event since the suit by Uptown and Lee contains allegations much the same as those pleaded by the Attorney General and/or Chappell and Bisso we are inclined to consider the exception of no cause of action as we are authorized to do under LSA-C.C.P. Art. 927 even though the judgment appealed from did not specifically maintain that exception as against Uptown and Lee.

THE EXCEPTION OF NO RIGHT OF ACTION AGAINST THE ATTORNEY GENERAL

The trial court gave the following reasons for judgment on this aspect of the case:

'This Court takes the position that the Attorney General of the State of Louisiana does not have the right to challenge the acts and actions of the Audubon Park Commission when that body is discharging, as the Court feels it is doing here, its legislative mandate.

'See Act 191 of 1914 and Louisiana Const. of 1974 arts. 6 sections 4--6. Cf. article XIV, section 22 of the La. Const. of 1921, as amended by act 551 of 1950.

'To permit the plaintiff to obtain the relief it seeks would, to this court's way of thinking, amount to an unconstitutional repeal of the Home Rule Charter of the City of New Orleans.'

Art. 4, § 8, of the Constitution of 1974 contains the following grant of authority to the Attorney General:

'As necessary for the assertion of protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding;'

As will be seen hereafter defendants rely on Act 191 of 1914 and Act 492 of 1958 for their principal authority to proceed with the project and to support their exceptions of no cause of action to the various petitions filed against them. There is no question but that APC is an agency of the City and not of the State, State Civil Service Commission v. Audubon Park Commission, 99 So.2d 920 (La.App.4th Cir. 1958), but Audubon Park is owned by the State and not by the City, City of New Orleans v. Board of Commissioners, 148 So.2d 782 (La.App.4th Cir. 1962), and when the legislature by the passage of the two acts cited above saw fit to place the administration and management of its property, the park, in the City and APC it did so within the limitations and under the conditions specified in those acts. Since the Attorney General's petition contains allegations that defendants have exceeded and are exceeding their own authority it follows that he does have the right under the constitutional provision cited to bring this action to enjoin the defendants from doing so. We have therefore concluded that the trial judge erred in maintaining defendants' exception of no right of action to the petition of the Attorney General.

THE EXCEPTION OF NO RIGHT OF ACTION TO THE PETITION OF UPTOWN AND LEE

In support of their exception of no right of action to the petition to Uptown and Lee defendants argue that Uptown and Lee are estopped from requesting injunctive relief because they have observed the construction under way at Audubon Park for several months and that the zoo expansion project has been public knowledge since the summer of 1973. This argument does not support an exception of no right of action. It might support an affirmative defense based on evidence which would have to be taken at a trial. Whether such evidence would support estoppel or perhaps laches is not before us and we express no opinion on the validity of such a defense. We hold only that the argument does not provide a legal basis for an exception of no right of action.

We do not gather from defendants' brief or argument that they seriously question that Uptown and Lee have an interest in bringing their suit and therefore have a right of action. The allegations are that Uptown Civic Association is made up of property owners, voters and tax payers living in the general vicinity of Audubon Park in the City of New Orleans and that Lee is a resident, voter and tax payer of the City, residing in the general vicinity of Audubon Park. We therefore conclude that the exception of no right of action as to the petition of intervention by Uptown and Lee should have been overruled.

While the trial judge specifically maintained the exception of no right of action it appears that he intended to maintain the exception of no cause of action. His reasons for judgment were in large measure based upon the action which had already been taken in maintaining the exception of no cause of action as against the suit by the Attorney General. Furthermore, in giving reasons for judgment maintaining the exception of no cause of action against Chappell and Bisso on the same day as the judgment against Uptown and Lee, the trial judge stated that the exceptions should be disposed of the same way in both cases, suggesting that there was simply a technical error in mislabeling the exception he was maintaining against Uptown and Lee.

Finally, it follows that if the exceptions of no cause of action filed against the Attorney General and Chappell and Bisso have merit they likewise would apply against the petition of Uptown and Lee. Therefore, in reversing the trial court to the extent that an exception of no right of action was maintained against the petition of Uptown and Lee, we will consider the judgment as one which also maintained the exception of no cause of action.

EXCEPTIONS OF NO CAUSE OF ACTION

At the outset of this discussion we should recall the nature and purpose of the exception of no cause of action so as to dispel any possible misunderstanding about the result we may...