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Terrell v. Town of Lecompte

Court of Appeals of Louisiana, Third Circuit

June 5, 2019

PHILLIP TERRELL, IN HIS CAPACITY AS DISTRICT ATTORNEY OF RAPIDES PARISH, ET AL.
v.
TOWN OF LECOMPTE, ET AL.

          APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 257, 839 HONORABLE MONIQUE RAULS, DISTRICT JUDGE

          Tiffany N. Sanders Attorney for Appellant, Town of Lecompte

          Thomas O. Wells Attorney for Appellees, Otis Payne and Edward Christie

          James C. Downs Attorney for Appellees, Otis Payne and Edward Christie

          Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

          SYLVIA R. COOKS JUDGE

         PROCEDURAL HISTORY

         Phillip Terrell (Terrell), in his official capacity as District Attorney for Rapides Parish, and Otis Payne and Edward Christie (Plaintiffs) as taxpayers domiciled in Lecompte, Louisiana filed a declaratory action against the Town of Lecompte, naming its mayor, all members of its Board of Aldermen, and the town clerk as defendants (Defendants). Terrell was dismissed from the suit and is no longer a party to this litigation. Plaintiffs and Defendants filed cross motions for summary judgment. The trial court denied Defendants' motion and granted a motion for summary judgment in favor of Plaintiffs. Defendants filed an application for supervisory writs with this court which was denied with one judge dissenting. The writ was denied because the majority held the judgment was not an appealable final judgment. The Louisiana Supreme Court granted Defendants' writ application and remanded the matter to the trial court for a "determination of whether or not this partial summary judgment is a final judgment." Terrell v. Town of Lecompte, 18-1087, p. 1 (La. 09/28/18), 253 So.3d 134, 135. On remand the trial court rendered judgment designating its ruling as a final judgment for purposes of an appeal. Defendants appeal the granting of summary judgment in favor of Plaintiffs and the denial of their motion for summary judgment.

         FACTUAL BACKGROUND

         In 1989 the citizens of Lecompte approved a tax provision authorizing a one cent sales tax "to be used for the purpose of constructing, acquiring, improving, operating and maintaining garbage collection and disposal facilities, fire protection facilities, and civil defense facilities, including all necessary sites, furnishings, equipment and vehicles in connection therewith. . . ." In 2017, Plaintiffs filed a "Petition for Declaratory Judgment, Permanent Injunctive Relief and Other Relief." Plaintiffs asserted in their petition that the state law authorizing a State Civil Defense Agency was repealed in 1993, thus any monies expended after that date by Lecompte for civil defense were "unauthorized" because "civil defense" no longer exists. Defendants, however, assert that the Civil Defense Agency Act, found in Louisiana Revised Statutes Title 29, was replaced by a new act in Title 29 entitled "The Louisiana Homeland Security and Emergency Assistance and Disaster Act." La.R.S. 29:722-23.[1]

         ANALYSIS

         Appellate courts review summary judgments de novo, using the same analysis as the trial court in deciding whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). As for the burden of proof, Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

DeLaFosse v. Village of Pine Prairie, 08-0693, p. 2 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, 1250, writ denied, 09-0074 (La. 2/4/09), 999 So.2d 766.

         Defendants maintain that the new Louisiana Homeland Security and Emergency Assistance and Disaster Act, La.R.S. 29:721 et. seq., replaces the former Civil Defense Act and "envisions municipalities, such as the Town of Lecompte, exercising 'civil defense' or 'emergency preparedness.'" The trial court held that Lecompte could not use the tax revenue at issue for payment of "day to day activities," of the Lecompte Police Department. Included in this prohibition is fuel for the police cars.

         Defendants appeal asserting four assignments of error:

(1) The Trial Court erred when the court read the words "civil defense" in isolation rather than reading the sales tax proposition as a whole.
(2) The Trial Court Erred in Holding the Sales Tax Proposition Did Not Contemplate Funding Expenses for Day-to-Day Operations.
(3)The Trial Court Erred When It Failed to Exclude Plaintiffs' Exhibits C and Exhibits E-K which were not attached to Plaintiffs' Motion for Summary Judgment when it was filed, and these ...

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