286 So.3d 1217
La. Ct. App.2019Background
- Wimsatt bought a New Orleans property (tax sale), converted it to a duplex, and obtained certificates of occupancy in 2016–2017; the front yard is fully paved and parties dispute how much paving preexisted her purchase.
- A neighbor complaint caused the City to “flag” the property for exceeding the CZO front-yard impervious-surface limit (40%); Wimsatt’s manager paid fees to avoid delay and a short-term-rental permit was issued in May 2017.
- On May 9, 2018 an administrative hearing found a CZO violation, ordered removal of excess paving within 30 days, assessed fines and daily penalties thereafter; Wimsatt appealed to the Board of Zoning Adjustments (BZA), which denied relief.
- Wimsatt sought injunctive relief in district court to enjoin enforcement of the administrative judgment and removal of the City’s “flag,” but did not file a petition for district-court review of the BZA decision under La. R.S. 33:4727.
- The district court dissolved a TRO but then granted a preliminary injunction (limited to 180 days) enjoining enforcement of the administrative judgment; the City appealed.
- The appellate court reversed the denial of the City’s exception of no cause of action, vacated the remainder of the judgment, and remanded for the plaintiff to be allowed to amend her petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May plaintiff enjoin enforcement of an administrative zoning judgment in district court without seeking statutory district-court review of the BZA decision? | Wimsatt sought equitable injunctive relief alleging irreparable economic harm from enforcement of the administrative judgment. | City argued plaintiff must pursue the available statutory route (appeal/ district-court review under La. R.S. 33:4727 or the direct code-violation appeal) and cannot collateralize the administrative judgment by injunction without alleging illegality. | Held: Wimsatt failed to state a cause of action—she did not seek district-court review of the BZA decision nor allege the BZA acted illegally or identify grounds of illegality; exception of no cause of action should have been sustained. |
| Was it permissible for the district court to grant a preliminary injunction that expired before trial on the merits? | Sought an injunction to preserve status quo pending merits. | City argued the injunction’s limitation undercut its purpose and raised mootness concerns. | Held: It is error to grant a preliminary injunction set to expire before trial (court cited Equitable Petroleum), but because Wimsatt failed to state a cause of action the appellate court vacated the injunction on other grounds. |
| Should plaintiff be given leave to amend after exception of no cause of action? | Implicitly argued she could correct pleading defects. | City pressed procedural/timeliness defenses but court lacked full administrative record to resolve them finally. | Held: Remanded with instructions to allow amendment because there is a conceivable possibility plaintiff can plead a proper cause of action. |
Key Cases Cited
- Equitable Petroleum Corp. v. Cent. Transmission, Inc., 431 So.2d 1084 (La. App. 2 Cir. 1983) (preliminary injunction should maintain status quo until merits; error to grant one that expires before trial).
- Maw Enterprises, L.L.C. v. City of Marksville, 149 So.3d 210 (La. 2014) (rule that exception of no cause of action is triable on face of petition and evidence admitted without objection may be considered).
- Cupit v. City of New Orleans ex rel. Bd. of Zoning Adjustments, 120 So.3d 862 (La. App. 4 Cir. 2013) (statutory district-court petition under La. R.S. 33:4727(E) must allege the BZA acted illegally and specify grounds).
- O’Brien v. Bd. of Zoning Adjustments for City of New Orleans, 177 So.3d 738 (La. App. 4 Cir. 2015) (describing variance/hardship standard under the CZO).
- Cat’s Meow, Inc. v. City of New Orleans Through Dep’t of Fin., 720 So.2d 1186 (La. 1998) (definition and requirements of a justiciable controversy).