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Smith v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

July 12, 2017

STUART H. SMITH, RODNEY STEPHENS, DAVID A. VEAZEY, GUADALUPE GAMEZ, AND NEAL LANEY
v.
CITY OF NEW ORLEANS, THROUGH ITS DIRECTOR OF DEPARTMENT OF PUBLIC WORKS, JOHN H. SHIRES, PARKING ENFORCEMENT OFFICERS FOR UNIT 10, BEAT 100 (P. HARRIS, BADGE 139) (THOMAS, BADGES 103) AND (C.WILIAM, BADGE 78), DIRECTOR OF DEPARTMENT OF SAFETY AND PERMITS, MICHAEL CENTINEO, NEW ORLEANS CITY PLANNING COMMISSION, VIEUX CARRE COMMISSION, THROUGH ITS DIRECTOR, LARRY P. HESDORFER, PARKING SOLUTIONS, LLC., AND STANDARD PARKING CORPORATION

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-05453, DIVISION "A" Honorable Tiffany G. Chase, Judge.

          Stephen B. Murray, Sr. Art M. Murray Jessica Wittmer Hayes MURRAY LAW FIRM AND Salvador I. Bivalacqua Scott M. Galante GALANTE & BIVALACQUA, LLC AND Barry J. Cooper, Jr. COOPER LAW FIRM, L.L.C. COUNSEL FOR PLAINTIFFS/APPELLANTS

          Wayne J. Lee Michael Q. Walshe, Jr. Heather S. Lonian STONE PIGMAN WALTHER WITTMANN, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins.

          SANDRA CABRINA JENKINS JUDGE.

         In this certified class action, Stuart H. Smith, Rodney Stephens, David A. Veazy, Guadalupe Gamez, and Neal Laney (collectively, "Plaintiffs") appeal the trial court's June 13, 2016 judgment granting in part the motion for summary judgment filed by defendant ACS State & Local Solutions, Inc. ("ACS"), and dismissing Plaintiffs' conversion claims against ACS, with prejudice.

         For the reasons that follow, we conclude that this partial summary judgment should not be certified as a final, appealable judgment, and we dismiss Plaintiffs' appeal. We also decline to exercise our supervisory jurisdiction in this matter. La. Const. art. V, § 10(A); La. Code Civ. P. art. 2201.

         FACTUAL AND PROCEDURAL BACKGROUND

         This matter has a prolonged and complex procedural history. In January 2005, the City of New Orleans (the "City") privatized its parking meter system and began replacing coin-operated parking meters with parking control pay stations ("Pay Stations") in certain areas of the City. The Pay Stations accepted credit and/or debit cards in addition to coins, and serviced multiple parking spaces, unlike the mechanical coin-operated meters.

         The City entered into a contract with ACS to collect fines associated with parking citations from the Pay Stations. ACS employees processed citation fine payments through an online payment system and by mail, and operated payment centers where fines could be paid in person. The City also entered into a contract with defendants Standard Parking Corporation, Parking Solutions, L.L.C., and Standard Municipal Parking Joint Venture II (collectively, "Standard") to install, maintain, and collect parking fees from the Pay Stations.

         In April 2005, Plaintiffs filed a Petition for Injunctive Relief, Declaratory Judgment, Writ of Mandamus and Damages against the City and numerous other defendants.[1] Each of the named plaintiffs had received parking citations for not having a Pay Station parking receipt and for expired time. The lawsuit alleged that because the City's Municipal Code had not been revised to cover the new Pay Stations, there was confusion and uncertainty as to enforcement issues. The lawsuit also alleged that the Pay Stations were installed without the requisite public hearings and review by the City's permitting and zoning departments. In July 2005, Plaintiffs filed a Motion for Class Certification.

         On August 8, 2005, the City passed M.C.S., Ord. 22035, which updated the previous parking ordinances to cover the changes in technology in the method of payment from the traditional coin-operated meters to the Pay Stations. The ordinance expressly provided for retroactive application to January 1, 2005.

         In March 2008, Plaintiffs filed an Amended Restated Petition for Damages. Plaintiffs asserted claims against the City, ACS, and Standard for conversion arising from the allegedly unauthorized collection of parking fees and fines. Plaintiffs also asserted negligence claims against these defendants for, inter alia, failing to obtain legal authority to issue citations at the Pay Stations. The City filed a Third Party Demand and Cross-Claim against ACS and other defendants seeking indemnification.

         In October 2009, Standard filed a Motion for Summary Judgment, seeking dismissal of the Plaintiffs' conversion and negligence claims. The trial court granted the motion, and this court affirmed. Smith v. City of New Orleans, 10-1464 (La.App. 4 Cir. 7/6/11), 71 So.3d 525; Smith v. City of New Orleans ex rel. Shires, 11-0974 (La.App. 4 Cir. 1/4/12), 81 So.3d 1018.

         In January 2010, Plaintiffs filed a Motion for Partial Summary Judgment, arguing that the August 2008 parking ordinance could not be applied retroactively to January 1, 2005. On July 22, 2010, the trial court granted the Plaintiffs' motion. This court affirmed the trial court's judgment, finding that M.C.S., Ord. 22035 was to be applied prospectively only. Smith v. City of New Orleans ex rel. Shires, 10-1464 (La.App. 4 Cir. 7/6/11), 71 So.3d 525.

         On February 20, 2013, the trial court granted Plaintiffs' Motion for Class Certification. This court affirmed. Smith v. City of New Orleans, 13-0802 (La.App. 4 Cir. 12/23/13), 131 So.3d 511.

         In November 2015, Plaintiffs filed a Motion for Partial Summary Judgment seeking a finding of liability by the City and ACS, but reserving the issue of damages for trial. In December 2015, ACS filed a Motion for Summary Judgment seeking dismissal of Plaintiffs' claims for conversion and negligence. In March 2016, the City filed a Motion for Partial Summary Judgment seeking a dismissal of ...


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