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Franklin v. City of Alexandria

Court of Appeals of Louisiana, Third Circuit

May 1, 2019

ARMSTEAD FRANKLIN, ET AL.
v.
CITY OF ALEXANDRIA

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 228, 034 HONORABLE JAMES HUGH BODDIE, JR., DISTRICT JUDGE AD HOC

          Samuel L. Jenkins, Jr. Attorney at Law COUNSEL FOR PLAINTIFFS/APPELLANTS: Armstead Franklin, et al.

          Larry English Attorney at Law COUNSEL FOR PLAINTIFFS/APPELLANTS: Armstead Franklin, et al.

          Howard B. Gist, III The Gist Firm, A P.L.C. COUNSEL FOR DEFENDANT/APPELLEE: City of Alexandria

          Claude F. Reynaud, Jr. Carroll Devillier, Jr. Breazeale, Sachse & Wilson, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE: City of Alexandria

          Charles E. Johnson, Jr. Attorney at Law COUNSEL FOR DEFENDANT/APPELLEE: City of Alexandria

          Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

          JOHN E. CONERY, JUDGE.

         The trial court dismissed the plaintiffs' claim for damages related to alleged overcharges by the municipally-owned utility system of the City of Alexandria (City) upon a determination of lack of subject matter jurisdiction. The plaintiffs appeal, challenging the trial court's determination that the September 27, 2017 petition instituting the matter for review of a May 20, 2017 Alexandria City Council (City Council) administrative ruling was untimely. The City responds to the appeal and additionally files a Motion for Partial Dismissal and/or Motion to Strike. For the following reasons, we affirm the trial court's ruling and deny the City's motion as moot.

         FACTS AND PROCEDURAL HISTORY

         The plaintiffs in this matter are customers of the utility system owned and operated by the City. By their May 2007 petition, as well as by amending petitions, the plaintiffs alleged that the City overcharged its customers "for a period of time dating from 1997 to the present." They asserted, in part, that such overcharges resulted from "the City's incorrect calculations of the fuel adjustment costs for electricity and the incorrect application of the monthly fuel adjustment rates." Holding themselves out as representatives of a potential class, [1] the plaintiffs cited both tort and contract theories of recovery. They sought restitution for overcharges, damages, attorney fees, and costs.

         Following a period of removal to federal court, the City responded to the 2007 petition with an exception of lack of subject matter jurisdiction and alleged that the plaintiffs' claim advanced a "rate claim" over which the City Council had primary jurisdiction. Thus, the City requested that the trial court defer the matter to the City Council and dismiss the suit pending resolution of the claim. By September 13, 2016 judgment, the trial court sustained the City's exception. It did so "based on the doctrine of primary jurisdiction" and upon finding that the City Council, "as the statutory governing body of the City Utility of Alexandria, Louisiana, should be the legislative body that initially considers the allegations made by Plaintiffs' herein, with the exception of Plaintiffs' claims for damages and attorneys' fees[.]" The judgment "specifically reserved and retained" the latter claims for the trial court's resolution but dismissed the plaintiffs' foundational suit without prejudice. The judgment declared that the plaintiffs' suit "may be brought for judicial review once the Alexandria City Council fully adjudicates Plaintiffs' allegations as a matter of first instance." The record contains no indication that the plaintiffs sought review of that judgment by either application for supervisory writs or by appeal.

         Following the September 2016 judgment, the City Council passed Ordinance No. 178-2016, which provided, in part, the procedure for the adjudication of the plaintiffs' claims, authorization for the City Attorney to select an administrative law judge (ALJ), and applicable deadlines for the administrative process. Ordinance No. 178-2016 further provided that "the ALJ shall enter the appeals order detailing his or her procedure for conducting the appeal, in compliance with this Ordinance, to be completed in the form of his or her issuance of written reasons, certified as appealable, on or before July 28, 2017." After the appointment of the ALJ, the matter proceeded through the procedure designated by the City Council Ordinance.

         Before the completion of that proceeding, however, the plaintiffs returned to the Ninth Judicial District Court in March 2017 by filing a "Petition for Judicial Review and a Stay Order of City Council Action and to Re-Urge Petition for Damages and Class Certification." The plaintiffs questioned the proceedings in the City Council and asserted that those proceedings operated in derogation of certain constitutional protections. Thus, the plaintiffs sought an order staying further actions of the City Council. In turn, the plaintiffs re-urged their claims before the trial court. The trial court denied the plaintiffs' request for a stay.

         Following that denial, the City responded to the remainder of the March 2017 petition with the filing of a Dilatory Exception of Prematurity and Request for Sanctions. The City explained to the trial court that the City Council continued in the process of adjudicating the previously dismissed claims. Before the exception was heard, however, the ALJ completed the administrative proceedings and issued his final determination. On July 20, 2017, the ALJ signed an Order of Appeal in Connection with the Review Hearing Contemplated and Required by Ordinance No. 178-2016 of the City Council of the City of Alexandria, Louisiana (Order of Appeal).

         By the Order of Appeal, the ALJ issued numerous findings of facts reflecting that, in contrast to documentary evidence submitted by the City, the plaintiffs offered no evidence in support of their claims. The plaintiffs instead entered only written objection. The ALJ ultimately found, in sum, that the City acted reasonably and within its discretion as a rate-making authority or body politic.

         Turning to pertinent conclusions of law, the ALJ reviewed portions of the Alexandria Home Rule Charter and statutory authority relevant to the City's operation of a public utility, as well as sources of law addressing the procedures set forth by Ordinance No. 178-2016. Finally, and relevant here, the ALJ concluded his Order of Appeal by providing the process for review as follows:

This Order is intended to constitute the "appeal order," that creates an appealable judgment, and written reasons by findings of fact and conclusions of law, as required by Section IV(6)(F) of Ordinance No. 178-2016, and, to that end (and in conformity therewith), the undersigned ALJ hereby certifies this Order as appealable. A copy of this Order shall be provided to the presiding judge in the Franklin Litigation (as defined in Ordinance No. 178-2016), and to the Clerk of Court of the Ninth Judicial District Court, to serve as occasion may require.

         With the Order of Appeal issued only days before, the trial court heard the exception of prematurity on July 26, 2017. The trial court sustained that exception by August 24, 2017 judgment. It again dismissed the plaintiffs' claims without prejudice. The judgment further reflects that the trial court also dismissed the City's request for sanctions at that time. As with the initial dismissal, the record does not reflect that the plaintiffs sought review of the August 24, 2017 judgment by either application for supervisory writs or by appeal.

         The matter instead returned to the trial court on September 27, 2017, when the plaintiffs filed a Petition for Judicial Review of City Council Action and to Re-Urge Petition for Damages and Class Certification. By the petition, the plaintiffs summarized the City Council's administrative procedure, noted that they filed objections thereto, and again asserted that the procedure employed affected certain constitutional rights. In doing so, the plaintiffs referenced La.Const. art. 1, § 2 (Due Process of Law), La.Const. art. 1, § 3 (Right to Individual Dignity), La.Const. art. 1, § 22 (Access to Courts), La.Const. art. 1, § 23 (Prohibited Laws). Notwithstanding their challenge to the ordinances underlying the administrative procedure, the plaintiffs asserted by this petition that they had "exhausted administrative review by the City Council" and were, thus, entitled to re-urge their previously dismissed claims. In addition to doing so, the plaintiffs re-urged their 2007 motion for class certification.

         In response to the 2017 petition, the City filed an exception of lack of subject matter jurisdiction. The City chiefly asserted that the trial court lacked jurisdiction due to the length of time between the ALJ's July 20, 2017 Order of Appeal and the September 27, 2017 filing of the petition. The City attached its memorandum in support and detailed the subject administrative procedure. It specifically noted that Ordinance No. 178-2016 required the ALJ to "enter the appeals order detailing his or her procedure for conducting the appeal, in compliance with this Ordinance," and to do so "on or before July 28, 2017." The ALJ did so on July 20, 2017. Yet, the City pointed out, the plaintiffs did not seek review until September 27, 2017. Focusing on the sixty-nine day delay from the ALJ's Order of Appeal, the City asserted that the order constituted a final judgment.

         In advancing the appropriate delay for review to be used for calculation purposes, the City primarily urged the forty-five day period provided by La.R.S. 45:1192. The City alternatively argued that the petition for review was untimely even if otherwise considered in light of the thirty-day period applicable to matters under La.R.S. 49:964 of the Administrative Procedure Act (APA) or the sixty-day judicial appellate deadline provided by La.Code Civ.P. art. 2087.

         Opposing the exception of lack of subject matter jurisdiction, the plaintiffs argued that none of the timelines cited by the City were applicable. The plaintiffs instead noted that the July 20, 2017 Order of Appeal contained no time limitation for appeal and that the trial court's earlier dismissal of the suit was without prejudice so as to permit reinstitution of that claim.

         At the hearing on the exception, the trial court rejected the plaintiffs' claim in opposition. It instead noted the thirty-day period of the APA had well expired by the time of the plaintiffs' September 27, 2017 petition. And, alternatively, the trial court noted the expiration of the appellate delay of La.Code Civ.P. art. 2087 as well. By February 9, 2018 judgment, the trial court granted ...


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