Ayers v. BrazzellAyers v. Brazzell
Mayer, Smith & Roberts by Steven E. Soileau, Shreveport, for appellee—Bossier Parish Police Jury.
Fred Rogers, III, Shreveport, for appellee—Dennis & Rebecca Brazzell.
Lunn, Irion, Johnson, Salley & Carlisle by Marshall R. Pearce, Shreveport, for appellee—Executive Realty Plus, Inc. and Sharon Nichols.
Blanchard, Walker, O‘Quin & Roberts by Reginald Abrams, Shreveport, for appellee—United Built Homes.
LINDSAY, Judge.
The plaintiffs, Rabon and Carol Ayers and Henry and Susan Page, appeal from a partial summary judgment granted by the trial court in favor of the Bossier Parish Police Jury (BPPJ). For the following reasons, we vacate the partial summary judgment and remand for further proceedings.
FACTS
The plaintiffs filed suit against numerous parties, including the BPPJ, for damages to their homes caused by flooding during the heavy rains of April, 1991.1 The houses are in a subdivision near the Caplis-Sligo Road in Bossier Parish. Within the subdivision, only the homes of the Rabons and the Pages were flooded.
As to their claim against the BPPJ, the plaintiffs allege that Parish regulations and ordinances require that, before a building permit is issued, plans and specifications for the proposed construction must be submitted which include the base flood level and the minimum floor elevation. Further, if the property is in the A or B flood level, after the construction is completed, an architect or certified engineer is to certify that the minimum floor elevation is above the base flood level.
The plaintiffs allege that for each of their houses, the Parish did not require submission of the plans and specifications before issuing the permits. Also, after the completion of the residences, and even though the property is in flood zone A, the parish did not require an architect or engineer to certify that the minimum floor elevation was above the base flood level. The plaintiffs allege that the base flood level for their property was 155 feet and that the minimum floor elevation of the houses was below that level. They argue that if the Parish had acted according to its own ordinances and regulations to assure that the houses were not built below the base flood level, the houses would not have flooded.2 They also allege that such action and/or inaction was willful and/or wanton, with reckless disregard for the safety of the plaintiffs.
The BPPJ filed a motion for partial summary judgment, asserting that, insofar as the petition alleges a failure to enforce ordinances, those are discretionary actions of a political subdivision for which immunity from liability is statutorily provided. This argument
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct. [Emphasis supplied.]
The performance of any enforcement procedure in connection with any building code shall be deemed to be a discretionary act and shall be subject to the provisions of R.S. 9:2798.1. [Emphasis supplied.]
... any act, action, or failure to take action by a public servant or enforcement agency in connection with the implementation of any provision of a building code, including but not limited to the examination or review of any plan, drawing, or specifications, the conducting or completion of any inspection, the issuance, denial, or revocation of any permit, permission, license, or certificate, and the granting of any approval of construction.
The trial court granted the BPPJ‘s motion for partial summary judgment. All claims of the plaintiffs against the Police Jury “as they relate to the issuing of a building permit and/or for failing to enforce ordinances relating to the design and construction of the residences,” were dismissed at the plaintiffs’ cost.
The plaintiffs appealed the trial court judgment, asserting that the trial court erred in granting a partial summary judgment.
The plaintiffs also contend that the trial court erred in failing to consider whether the application of
MOTION FOR SUMMARY JUDGMENT
The plaintiffs contend that the trial court erred in granting the motion for partial summary judgment in favor of BPPJ. They argue that summary judgment should not have been granted in this case because
They also argue that, under the jurisprudence interpreting
Generally, the jurisprudence construing
In the cases cited by plaintiffs, the statutory definition of a discretionary act, contained in
Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. The burden of proving that there is no genuine issue of material fact is on the mover. Chaney v. National Railroad Passenger Corporation, supra.
Applying the statutes discussed above, the actions of the BPPJ in the issuance of building permits was discretionary. Therefore, application of the discretionary function exception makes the BPPJ immune from liability in connection with the issuance of the permits and BPPJ would be entitled to judgment as a matter of law.
While the simple application of the above quoted statutes supports the trial court‘s granting of the partial summary judgment, nevertheless, as will be discussed below, the issue of the constitutionality of
CONSTITUTIONALITY
Even though, under the applicable statutes, if valid, the trial court would have been correct in granting the motion for summary judgment, the plaintiffs also claim that the trial court erred in failing to consider the constitutionality of
The plaintiffs also argue that
The plaintiffs are correct in their contention that the issue of the constitutionality of
It is well settled that the constitutionality of a statute must first be raised in the trial court, not the court of appeal. This issue must be especially pleaded to be considered by the trial court. Allen v. Burrow, 505 So. 2d 880 (La.App. 2d Cir.1987), writ denied 507 So. 2d 229 (La.1987); Thomson v. State, 564 So. 2d 756 (La.App. 2d Cir.1990); Lemire v. New Orleans Public Service, Inc., 458 So. 2d 1308 (La.1984); Injury Hotline v. Houck, 621 So. 2d 127 (La.App. 2d Cir.1993), writ denied 629 So. 2d 396 (La.1993); Hillman v. Akins, 93-0631 (La. 1/14/94); 631 So. 2d 1.
Further, the Attorney General must be served and given an opportunity to be heard and to participate in the case in a representative capacity. Chamberlain v. State Through the Department of Transportation and Development, 624 So. 2d 874 (La. 1993); Taylor v. Giddens, 618 So. 2d 834 (La. 1993).
In the present case, in response to BPPJ‘s motion for summary judgment, the plaintiffs specifically pleaded the unconstitutionality of
We find that, because the plaintiffs specially pleaded the unconstitutionality of the statute, the question was properly raised and preserved for consideration by the trial court. However, the record is clear that the trial court did not consider and rule upon this issue in granting partial summary judgment in favor of BPPJ. Without service on the Attorney General and a hearing and ruling, the issue is not properly before this court for review.
Because the constitutional question was pretermitted, the appropriate procedure is to remand the case to the trial court for consideration of the constitutional validity of
Accordingly, we order the plaintiffs to serve the Attorney General and we order that the trial court schedule a hearing and make a ruling on this issue in due course. After deciding the constitutional issues, the trial court is directed to reconsider the motion for partial summary judgment.
For the reasons stated above, we vacate the partial summary judgment and we remand the case to the trial court for consideration of the constitutional issues raised by plaintiffs and for further proceedings in accordance with the views expressed herein.
JUDGMENT VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
PER CURIAM.
In response to the application for rehearing filed by the Bossier Parish Police Jury, we granted a rehearing for the limited purpose of clarifying our original opinion in this case.
On original hearing, we remanded this case to the trial court for consideration of the constitutionality of the discretionary immunity statute set forth in
We find that the trial court‘s statement in its decision to grant the partial summary judgment, based upon this factual finding, was erroneous. As stated in the original opinion, the entire partial summary judgment is vacated.
In its original ruling, the trial court erred in granting the partial summary judgment on an insufficient factual basis. The factual issue of whether the Bossier Parish Police Jury‘s action was a contributing factor to the plaintiffs’ damage must be addressed after the issue of the constitutionality of the statute is decided. Accordingly, the trial court‘s finding regarding causation, in connection with the Bossier Parish Police Jury, is vacated. The issue is to be reconsidered, if necessary, after a determination regarding the constitutionality of the discretionary immunity statute. With this clarification, our opinion on original hearing remains in effect.