106 So. 3d 746
La. Ct. App.2012Background
- Miccol Enterprises, Inc. challenged an administrative blight/nuisance judgment against its property in New Orleans.
- City of New Orleans issued a Notice of Violation and Hearing Notice for a 2010 hearing on property code violations.
- Final administrative judgment (November 5, 2010) imposed fines and potential lien; Miccol paid $605.00.
- City filed post-judgment fieri facias for $9,575.00, but court awarded only $575.00; Miccol sought injunctive relief and validly challenged the judgment.
- District court granted Miccol’s summary judgment declaring the judgment null for defective notice; City appealed.
- Court affirms: the notice violated Sec. 28-39(d) requiring an extension-right notice, rendering the judgment absolutely null.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the notice complied with Sec. 28-39(d) requirements. | Miccol argues notice lacked extension-right language. | City contends substantial compliance via prior discussions granting extension. | Yes, defective notice renders nullity. |
| Whether Miccol waived nullity by general appearances. | Miccol did not waive nullity, seeking relief. | Strickland/Bradley show waiver by appearance. | Waiver did not apply; nullity preserved. |
| Whether the administrative judgment should be nullified for facial defects. | Judgment patently defective due to improper notice. | Argues technicalities should not defeat statutory aims. | Judgment null for patent defects in notice. |
| Whether the district court erred in adopting Miccol’s memorandum in support entirely. | Adoption of brief was appropriate for grant of summary judgment. | Judgment and reasons are separate; not bound by misgivings in memorandum. | Not reversible error; separate judgment affirmed. |
Key Cases Cited
- Hebert v. Hebert, 700 So.2d 958 (La.App. 1 Cir. 1997) (absolute nullity exists for facial defects; governed by Art. 2002)
- Garnett v. Ancar, 208 So.2d 812 (La.App. 4th Cir. 1967) (direct action of nullity available for judgments)
- Succession of Moore, 737 So.2d 749 (La.App. 4th Cir. 1998) (acknowledges collateral/ direct nullity avenues)
- Strickland v. Board of Sup’rs of LSU, 432 So.2d 964 (La.App. 4th Cir. 1983) (waiver of timing requirement when no prejudice)
- Bradley v. Theus, 668 So.2d 1304 (La.App. 2 Cir. 1996) (implied waiver by general appearance)
- Hawk Field Services, L.L.C. v. Mid America Underground, L.L.C., 94 So.3d 136 (La.App. 2 Cir. 2012) (strict construction on statutory language; not to defeat overall intent)