Giles v. New Orleans City Park Improvement Ass'nGiles v. New Orleans City Park Improvement Ass'n
Duke & Porterie, Louis B. Porterie, W. Eric Lundin, III, New Orleans, for defendant-appellee.
Philip C. Ciacciо, Joseph M. Perry, Jr., New Orleans, for intervenor-appellee.
Before SAMUEL and LEMMON, JJ., and MARCEL, J. Pro Tem.
MARCEL, Judge Pro Tem.
Plaintiffs instituted this suit to be afforded the opportunity to bid at public auction for the tennis concession locatеd in the City Park Wisner Tennis Building in the City of New Orleans. Plaintiffs originally named as defendant the New Orleans City Park Improvement Association. The operator of the tennis concession, Alvis F. Pendergrаss, filed an intervention in the suit and was properly included as a party defendant. After a trial on the merits, the trial judge rendered judgment in favor of the defendants, denying plaintiffs the relief they sought. Plaintiffs appeal that decision to this court.
On a finding that the judgment below is incorrect, we reverse.
The facts of this case are undisputed and amply stated in the trial court‘s written reasons for judgment.
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“The matter being contested is a lease to Pendergrass of an area consisting of two portions of floor space, both located in the Wisner Tennis Building. The entire building, however, is not, and never was, under lease to Pendergrass, only certain areas therein. The first portion was the area leased to Pendergrass following рroper advertisement and public bid, and is as described in plaintiffs’ Exhibit A, which is a copy of Pendergrass‘s original lease. This area we will hereafter refer to as `Portion A‘.
“Plaintiffs have no quarrel with this lease. At the time of execution, it complied with all legal requirements, and was preceded by proper advertisement and public bidding. “The second portiоn is an area which was created by permanent additions made to the Wisner Tennis Building some time after the lease referred to as Exhibit A was in effect. Actually, there were two identical extensions or wings added to the Wisner Tennis Building, one on each side, and at the same time. Only one of these wings, the one adjoining Portion A previously referred to, was thereafter leased to Pendergrass in an extended and amended lease (a copy of which is presented in plaintiffs’ Exhibit B), which included not only an extension of the original lease оn the portion we have been referring to as Portion A, but in addition, a lease on this new wing, which we will refer to as `Portion B‘. It is this extended and amended lease about which plaintiffs arе complaining. Plaintiffs’ complaints are twofold: First, that it extends the period of the original lease, which lease resulted from proper advertisement and public bidding, even bеyond the renewal option in said lease, which normally would have expired under its terms on December 31st, 1973; Secondly, that it adds an additional area, Portion B (which is an entirely new area, even though adjacent to Portion A, and which was not even in existence when the lease for Portion A was originally granted).
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The statute reads as follows:
“If the lessor determines that lands in question may be leased, the lessor shall publish an advertisement in the official journal of the parish where the land is located setting forth a description of the land to be leased, the time when bids therefor will be received, and a short summary of the terms and conditions and purposes of the lease to be executed; provided that if the lands are situated in two or more parishes the advertisement shall appear in the official journals of all pаrishes in which the lands are located. The advertisement shall be published for a period of not less than fifteen days and at least once a week during three consecutive weeks. The lessor may also send notices to those whom it may think would be interested in submitting bids for the leases.
“The lessor may on its own initiative advertise for bids for any lease as providеd herein, but without application therefor. The applications and bids provided for in this part shall be secret, sealed applications and bids and shall be forwarded through the United States mail to the lessor at its domiciled address.
“The advertisements in accordance with this section shall constitute judicial advertisements and legal notices within the contemplation of Chapter 5 of Title 43 of the Louisiana Revised Statutes of 1950.”
All parties agree that these requirements were satisfied for the original lease but the defendаnts admit that there was no advertisement and public bidding in connection with the extended and amended lease. They contend, however, that there was no necessity for such cоmpliance by virtue of the exception provided by
“A. All leases executed under the provisions of this part shall be for period not exceeding ten years and shall provided for an annual rental of not less than one dollar per acre, which shall be payable in cash annually and in advance; provided, however, that any person who leases such land and who, within the ten year term of the lease, or any person who holds a ten year
lease in full force as of the date of passage of this Act, adds оr contracts for permanent improvements to be constructed or placed on or made to the land in the amount of not less than two thousand dollars may, upon written nоtification to the lessor and upon a proper showing that such improvements have in fact been made or contracted for, lease such lands for an additional рeriod of not more than ten years, the payment of rentals therefor to be made as hereinabove stated. However, if the lease provides for the addition or construction of improvements on or to the land to a value in excess of one hundred thousand dollars and that such improvements, at the termination of the lease, will become the property of the lessor, without any cost to the lessor, then the lessor may grant an option to the lessee to extend the primary term of the lease for an аdditional ten-year period, or part thereof, for each one hundred thousand dollars worth of improvements or additions made on or to the land, for not to exceеd a maximum term of sixty years.”
The defendants contend that the amended and extended lease was in fact a contract for the addition of improvements to the leased premises within the meaning of
Plaintiffs argue that the defendants have not met the requirements of
We find that the plaintiffs’ interpretation of the law is the correct one. The language of
While the record in the present case indicates defendants acted in utmost good faith and exercised sоund business judgment, a public agency must nevertheless comply with the public bidding law. We therefore hold that the failure to comply with the public advertising and bidding requirements of
Reversed.