Town of Sorrento v. East Ascension Consolidated Gravity Drainage District No. 1

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 1220

TOWN OF SORRENTO, ET AL

VERSUS

EAST ASCENSION CONSOLIDATED GRAVITY
DRAINAGE DISTRICT NO. 1

Judgment Rendered: APR 12 2022

On Appeal from the
Twenty -Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
GAl No. 129, 239

The Honorable Jason Verdigets, Judge Presiding

Jean- Paul Robert Attorney for Defendant/Appellant,
Gonzales, Louisiana East Ascension Consolidated Gravity
Drainage District No. 1

Robert R. Faucheux, Jr. Attorneys for Plaintiff/Appellee,
LaPlace, Louisiana Town of Sorrento

Matthew I. Percy Attorneys for Plaintiff/Appellee,
Anna Q. Skias Michael Lambert
Jamie S. Thistlethwaite
Gonzales, Louisiana

BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ.
PENZATO, J.

The defendant appeals the trial court' s judgment denying its peremptory

exceptions of no cause of action and failure to join an indispensable party and the

judgment granting the plaintiffs' motion for summary judgment. For the following

reasons, we recall our rule to show cause order and maintain the appeal. We affirm

the judgment denying the defendant' s exceptions and reverse the judgment granting

the plaintiffs' motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

The Town of Sorrento and Michael Lambert, appearing as Mayor of the Town

of Sorrento and as a citizen and landowner residing in the Town of Sorrento

collectively, " the Town"), filed a petition for declaratory judgment in July 2020

against the East Ascension Consolidated Gravity Drainage District No. 1.

According to the petition, the Town lies within the geographical territory of the

District and its citizens pay taxes specifically collected to fund drainage works

within the District. The Town contended that the District has arbitrarily and

unreasonably refused to clean and maintain roadside ditches and culverts located

within the Town' s municipal boundaries.' The Town prayed for judgment declaring

that the District: ( 1) owes a continuing duty and obligation to clean and maintain

roadside ditches and culverts located with its statutory boundaries, including those

within the Town' s municipal boundaries and ( 2) owes a continuing duty and

obligation to treat all property and citizens/ electors located within its statutory

boundaries equally, including all property and citizens/ electors within the Town.

The Town' s petition was amended in August 2020 to include an allegation that the District' s
conduct was arbitrary and unreasonable.

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 The District filed an answer in October 2020, admitting the Town is within its

territory.' The District denied having a duty to clean and maintain the Town' s

roadside ditches and culverts or a duty to treat all property and citizens within its

territory equally. The District also denied that it has refused to clean and maintain

the Town' s roadside ditches and culverts and, instead, asserted that the Town

declined to accept the terms of its " offer" to perform work in the Town. The District

further asserted that it has discretionary authority to perform the work it deems

necessary to accomplish its duties.

The Town filed the instant motion for summary judgment in March 2021,

seeking judgment in its favor regarding the relief sought in the petition for

declaratory judgment. To support the motion, the Town relied on evidence to

establish that, since 1984, the District has exercised its statutory authority to levy

and collect taxes within its territory, which have been paid by the Town' s citizens

and property owners. All voter -approved tax propositions from 1984 to 2018

provide for the collection of revenue for the purpose of maintaining and operating

drainage works within the District. As the Town correctly points out, the tax

propositions do not exempt and/or bar a municipality within the District, such as the

Town, from receiving services funded by tax proceeds. Consequently, the Town

argued, incorporated municipalities should not have limited access to funds collected

through these taxes and consideration of municipal boundaries should not be a factor

in any District decision or expenditure of funds.

To further highlight the District' s allegedly disparate treatment, the Town

produced evidence that the District offered to clear the Town' s roadside ditches in

June 2019 in exchange for, among other things, the Town' s acknowledgment that

the District has no duty to perform the work and its agreement to indemnify the

Prior to filing an answer, the District filed a peremptory exception of no cause of action, asserting
that the Town' s petition impermissibly sought to mandate decisions within the District' s
discretion. The exception was denied on October 6, 2020.

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District and to limit the contract' s term to one year. Conversely, the District clears

roadside ditches in unincorporated areas within its territory and does not require

those citizens to agree to similar terms. The Town argued that its evidence

established that the District' s refusal to perform work within the " invisible

boundaries" of the municipality was arbitrary and unreasonable, thereby justifying

the court' s interference with the District' s discretion. The Town cites Chiro v.

Fourth Jefferson Drainage District, 159 La. 471, 477- 78, 105 So. 556, 559 ( 1925),

which provides, " It is well settled that, unless a public board' s discretion is

unreasonably or arbitrarily or fraudulently exercised, the courts will not undertake

to control it, or to substitute their discretion" for that of the public body charged by

law with the doing of the work. See also Lake Terrace Property Owners Association

v. City ofNew Orleans, 567 So. 2d 69, 74 ( La. 1990) ( In reviewing the decisions of

public bodies, the courts will not interfere with the functions of these bodies in the

exercise of the discretion vested in them unless such bodies abuse this power by

acting capriciously or arbitrarily.)

Finally, the Town requested expedited consideration of its motion pursuant to

La. C. C. P. art. 1878, " as this matter concerns the constitutionality of the expenditure

of State funds." Pursuant to Article 1878( B), in a proceeding seeking a declaratory

judgment as to the constitutionality of the expenditure of state funds, the court shall

set the matter with preference and proceed to hear and determine the matter as

expeditiously as the ends of justice may require.

The District opposed the motion for summary judgment, asserting that the trial

court may not " override" its discretion concerning the drainage work it chooses to

perform. It also produced evidence to demonstrate that it has appropriated money

to upgrade pumping stations in the Town, for a total expenditure that " far exceeds

the tax revenue collected" in the Town.
 The District also filed exceptions raising the objections of no cause of action,

failure to plead supplemental relief," and failure to join an indispensable party (i.e.,

the Louisiana Attorney General). The District interpreted the Town' s reliance on

Article 1878 as a " constitutional claim" under La. C. C. P. art. 1880 and maintained

that a claim challenging the constitutionality of a statute must be set forth in the

petition and served on the Attorney General. Thus, the District argued that the

Town' s constitutional challenge was improperly asserted for the first time in a

motion for summary judgment in a proceeding wherein the Attorney General was

not a party. In response to the exceptions, the Town expressly denied asserting a

constitutional challenge to any statute or ordinance and explained that it relied on

Article 1878 as a procedural device to obtain a hearing on the motion for summary

judgment as quickly as possible.

The trial court heard argument on the District' s exceptions and the Town' s

motion on May 4, 2021. The exceptions were denied in open court, and a judgment

confirming the ruling was signed on May 13, 2021. After taking the motion under

advisement, the trial court rendered judgment in favor of the Town, finding the Town

satisfied its summary judgment burden of proving no genuine issue of material fact

remains as to the duty owed by the District to the Town to clean and maintain

roadside ditches and culverts within the municipality. The court concluded that the

District acted arbitrarily and unreasonably in failing to perform this duty and by

requiring the Town to sign an agreement before the work is performed, a requirement

not based in law or jurisprudence and which sets a different standard for the Town.

A written judgment granting the motion was signed on June 4, 2021.

The District filed the instant appeal, seeking reversal of the judgment denying

its exceptions of no cause of action and failure to join an indispensable party, as well

as the judgment granting the Town' s motion for summary judgment.

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 RULE TO SHOW CAUSE ORDER

This court, sua sponte, issued a rule to show cause order on November 19,

2021, noting defects in the June 4, 2021 judgment. After receiving briefs on the

show cause order from both parties, this court issued an interim order on January 18,

2022, remanding the matter for the limited purpose of instructing the trial court to

sign an amended judgment correcting the cited deficiencies, particularly, the absence

of specific declarations and/ or the denial of relief sought and the lack of certainty on

the face of the judgment indicating whether all claims between the parties were

resolved, citing La. C. C. P. art. 2088( A)( 12) and La. C. C. P. art. 1951, as amended

by 2021 La. Acts, No. 259, § 2.

Pursuant to the interim order, the appeal record was supplemented with an

amended judgment signed on February 2, 2022. The amended judgment expressly

states that the motion for summary judgment is granted in favor of the Town and

against the District and specifically provides:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that

the relief awarded to the [ Town] is a continuing duty and obligation is
owed by [ the District] to clean and maintain the roadside ditches and
culverts that are located within the statutory boundaries, which includes
the municipal boundaries of the Town of Sorrento. This continuing
duty and obligation includes treating all property and citizens/ electors
located within the statutory boundaries equally.

The February 2, 2022 amended judgment also states that it is a final judgment that

adjudicates all outstanding issues. Considering this, we find the amended February

2, 2022 judgment cured the identified deficiencies in the original June 4, 2021

judgment. The rule to show cause order is recalled and the appeal is maintained.

EXCEPTIONS

We find no merit in the District' s assertion that the Town is challenging the

constitutionality of a statute or ordinance. The purpose of the peremptory exception

of no cause of action is to test the legal sufficiency of a pleading by determining

whether the law affords a remedy on the facts alleged in the pleading. Palowsky v.

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Cork, 2019- 0148 ( La. App. 1st Cir. 5/ 20/ 20), 304 So. 3d 867, 872. The District

acknowledges the Town has not asserted a constitutional challenge in its original or

amended petition. Additionally, the Town refutes the District' s contention that it

has raised or attempted to raise a constitutional challenge at any time in this

proceeding. This express denial is supported by the allegations in the Town' s

pleadings and its motion for summary judgment, as well as those made within the

context of the request for expedited consideration. It is evident the Town relied on

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Article 1878 solely to obtain an expedited hearing date on its motion. For these

reasons, we also find the Louisiana Attorney General is not an indispensable party

and there is no requirement that his office be served with a copy of the proceeding

and provided an opportunity to be heard. See La. C. C. P. arts. 641 and 1880. See

also Goodwin v. Louisiana Department of Health, 2018- 1405 ( La. App. 1 st Cir.

5/ 31/ 19), 277 So. 3d 816, 821 ( A party is indispensable only when the facts clearly

establish that no complete and equitable adjudication ofthe controversy can be made

in his absence.) Thus, the May 13, 2021 judgment denying the District' s exceptions

of no cause of action and failure to join an indispensable party is affirmed.4

MOTION FOR SUMMARY JUDGMENT

After an opportunity for adequate discovery, a motion for summary judgment

shall be granted if the motion, memorandum, and supporting documents show that

there is no genuine issue as to material fact and that the mover is entitled to judgment

as a matter of law.' La. C. C. P. art. 966( A)(3). If the party moving for summary

judgment will bear the burden of persuasion on the subject issue at trial, as here, that

3 The trial court denied the Town' s request for expedited consideration and set the motion as a
regular fixing.
4 This court denied the District' s writ application taken from the May 13, 2021 judgment and
request for a stay of the proceedings. Town of Sorrento v. East Ascension Consolidated Gravity
Drainage District No. 1, 2021- 0610 ( La. App. I st Cir. 7/ 30/ 21) ( unpublished).
In its opposition filed with the trial court, the District asserted the Town' s motion was premature
because the District " had no opportunity for discovery." The trial court rejected this argument,
which the District does not raise on appeal. Therefore, it is not addressed by this court.

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party must support its motion with credible evidence that would entitle it to a

directed verdict if not controverted at trial. Hines v. Garrett, 2004- 0806 ( La.

6/ 25/ 04), 876 So. 2d 764, 766 ( per curiam); Aucoin v. Larpenter, 2020- 0792 ( La.

App. 1 st Cir. 4/ 16/ 21), 324 So. 3d 626, 632, writ denied, 2021- 00688 ( La. 9/ 27/ 21),

324 So. 3d 87. A motion for directed verdict is appropriately granted when, after

considering all evidentiary inferences in the light most favorable to the party

opposing the motion, it is clear the facts and inferences are so overwhelmingly in

favor of the moving party that reasonable men could not arrive at a contrary verdict.

LAD Services ofLouisiana, L.L. C. v. Superior Derrick Services, L.L. C., 2013- 0163

La. App. 1st Cir. 11/ 7/ 14), 167 So. 3d 746, 751, writ not considered, 2015- 0086 (La.

4/ 2/ 15), 162 So. 3d 392. Such an affirmative showing shifts the burden of production

to the party opposing the motion for summary judgment and requires that party to

produce evidentiary materials that demonstrate the existence of a " genuine issue"

for trial. Aucoin, 324 So. 3d at 632. However, if there is any evidence in the record

from any source from which a reasonable inference in the nonmoving party' s favor

may be drawn, the moving party simply cannot obtain a summary judgment. Hines,

876 So. 2d at 766.

Appellate courts review evidence de novo using the same criteria that govern

the trial court' s determination of whether summary judgment is appropriate. Thus,

appellate courts ask the same questions: whether there is any genuine issue of

material fact and whether the mover is entitled to judgment as a matter of law. La.

C. C. P. art. 966( A)(3); Georgia-Pacific Consumer Operations, LLC v. City ofBaton

Rouge, 2017- 1553, 2017- 1554 ( La. App. 1st Cir. 7/ 18/ 18), 255 So. 3d 16, 22, writ

denied, 2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d 194.

The District is a political subdivision of the State of Louisiana. Ascension

Parish Ordinance Sec. 18- 30, Section 2. It may incur debts and contract obligations,

sue and be sued, and do and perform all acts in its corporate capacity and in its
corporate name necessary and proper for the carrying out of the purpose and objects

for which the drainage district was created. La. R. S. 38: 1764( A); Ordinance Sec.

18- 30, Section 2. The District is governed by a board of commissioners, which

shall have the power to open all natural drains in the district, to cut and open new

drains, and such other work of drainage as they may deem necessary." Ordinance

Sec. 18- 30, Section 5. Similarly, La. R.S. 38: 1767 pertinently states, " The board of

drainage commissioners may open all natural drains which they deem necessary in

their respective districts and perform all work connected therewith, which they may

deem necessary to make the opening of the natural drains effective. They may cut

and open new drains, ditches, and canals wherever deemed necessary...." The board

is further empowered to " perform all other acts necessary" to fully drain all the land

in its district and maintain the drainage when established.6 La. R.S. 38: 1767.

When used in a statute, the word " may" is permissive. La. R. S. 1: 3; Pierce

Foundations, Inc. v. daroy Construction, Inc., 2015- 0785 ( La. 5/ 3/ 16), 190 So. 3d

298, 304 ( recognizing that a " cardinal rule" of statutory interpretation is that the

word " may" is permissive). It is evident from the provisions cited above that the

District has the authority to perform the drainage works, which it deems necessary,

but it has no duty to carry out specific drainage projects. The District has the

discretion to determine how, when, and where to exercise its authority to properly

carry out the function for which it was created, subject only to judicial intervention

if this discretion is unreasonably, arbitrarily, or fraudulently exercised. Lake Terrace

Property Owners Association, 567 So.2d at 74.

6 We find the District' s reliance on La. R.S. 33: 1236( 2)( c) is misplaced, because this statute
pertinently states that police juries may, upon request of the governing authority of any
incorporated municipality, perform all or any part of the repair, maintenance and care of culverts
and other drainage facilities, situated within and under the jurisdiction of such incorporated
municipality, and may expend for such purposes any funds made available to them for road
purposes.

G'
 The Town concedes that the District has the discretion to determine which

drainage works to undertake but argues that it exercised this discretion in an arbitrary

or unreasonable manner, particularly considering the Town' s citizens pay taxes

collected for the precise benefit they are not receiving. The trial court agreed and

found that the District acted arbitrarily and unreasonably by treating the Town

differently from others within its territory. However, the February 2, 2022 amended

judgment does not simply order the District to cease exercising its authority in

carrying out the functions for which it was created in an arbitrary and unreasonable

manner. Instead, the judgment declares that the District has an affirmative duty and

obligation to perform certain drainage works, i.e., clear and maintain roadside

ditches and culverts. This finding is contrary to the legal authorities cited above,

which clearly provide the District with discretion to determine which drainage

projects to undertake.

The same is true regarding the portion of the February 2, 2022 amended

judgment, which declares that the District must treat all property, citizens, and

electors located within its territory equally. The trial court' s ruling does more than

ensure that the District gives the same consideration to drainage projects within the

Town' s municipal boundaries as it does to those beyond the Town' s borders.

Instead, this broad declaration creates an obligation on the District to allocate funds

equally and to give equal priority to all drainage projects. Neither Ascension Parish

Ordinance Sec. 18- 30 nor the applicable statutes, which set forth the powers of the

District and board of commissioners, impose this requirement.

Additionally, we disagree with the Town that the collection of taxes alone

creates an obligation for the District to clean and maintain the Town' s roadside

ditches and culverts or otherwise dictates that all property, citizens, and electors must

be treated equally. The proceeds of any special tax shall constitute a trust fund to be

used exclusively for the objects and purposes for which the tax was levied. La. R.S.

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39: 704. Tax revenues obtained from a special tax must be used for no other purpose

than that stated in the proposition submitted to and approved by the electorate.

Central Community School Board v. East Baton Rouge Parish School Board, 2008-

0036 ( La. App. 1st Cir. 6/ 6/ 08), 991 So. 2d 1102, 1109- 10, writs denied, 2008- 1480,

2008- 1538 ( La. 12/ 12/ 08), 997 So. 2d 561. Louisiana Revised Statutes 47: 338. 168

authorizes the District to levy and collect taxes; subpart ( D) states, " The proceeds of

the tax shall be used and expended solely for the purpose or purposes set out in the

proposition approved by the electors at the election authorizing said tax."

The first tax proposition at issue, approved by voters in 1984, provides for the

collection of a sales tax in the District for ten years " dedicated for the purpose of

constructing, acquiring, maintaining and operating gravity and/ or forced drainage

facilities to drain lands" in the District. In 1998, voters approved a tax proposition

for the collection of an ad valorem tax on all property subject to taxation in the

District for ten years " to be dedicated and used for the same purposes of maintaining

and operating said District' s drainage works." Finally, in 2008 and 2018, voters

approved similar ten-year tax propositions, which stated that the property taxes

collected are " to be used entirely and exclusively to provide funds to pay the

operation and maintenance costs and expenses of the drainage works of the District."

None of these tax propositions expressly require the District to maintain roadside

ditches and culverts, either broadly within the District or specifically within the

Town, nor do these propositions mandate " equal" treatment for all property, citizens,

or electors. Instead, these propositions dictate the purpose for which the funds must

be used, leaving the District with the discretion to determine how to fulfill this

purpose.

Similarly, the tax propositions at issue in La. Atty. Gen. Op. No. 15- 0100

2015) asked voters, in part, whether an Allen Parish Road District shall continue to

levy a tax on all property subject to taxation within the Road District "for the purpose

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of constructing, improving and maintaining Parish roads and bridges within the

Road] District...."' The Attorney General concluded that this language did not

direct the Parish to maintain municipal roads within the Parish; thus, the Parish was

not obligated to perform this task. Specifically, the Attorney General stated,

A]bsent explicit language mandating or directing the Parish to maintain municipal

roads, the determination as to which roads will be maintained with ad valorem tax

funds rests with the governing authority of the Parish."

In La. Atty. Gen. Op. No. 20- 0056 ( 2021), the Attorney General examined the

language of three tax propositions to determine what, if any, obligation the Parish

Police Jury had regarding streets and drainage within a municipality. The first tax

proposition asked voters whether West Carroll Parish shall continue to levy a tax on

all property subject to taxation within the Parish " for the purpose of acquiring,

constructing, improving, maintaining and/ or operating drainage works,

improvements and facilities within and for the Parish...." Another proposition asked

whether West Carroll Parish shall continue to levy a tax on all property subject to

taxation within the Parish " for the purpose of improving and maintaining roads and

bridges in the Parish...." Finally, the third proposition asked whether West Carroll

Parish shall continue to levy and collect a sales tax within the Parish, with one- half

of the proceeds of the tax to be dedicated and used for general operating expenses of

the Parish and one- half for constructing and maintaining drains and drainage

facilities and for constructing and maintaining roads and bridges in the Parish. The

Attorney General concluded that, pursuant to the language of each, the taxes shall

be utilized for the enumerated purposes, but the Parish is not obligated to fully fund

repair, maintenance, and materials for roads, culverts, and other drainage facilities

7 While an Attorney General opinion is merely advisory and not binding authority, we recognize
its persuasive authority, particularly where there is no jurisprudence on point. Dipaola v.
Municipal Police Employee' Retirement System, 2014- 0037 ( La. App. 1st Cir. 9/ 25/ 14), 155 So. 3d
49, 53, writ denied, 2014- 2575 ( La. 2/ 27/ 15), 159 So. 3d 1071.

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within the corporate limits of a municipality, which itself lies within the Parish

boundaries. 8

Considering the language of the tax propositions at issue here and,

specifically, the stated purpose of the tax revenue, we find the Town failed to satisfy

its burden of showing it was entitled to the relief sought in its motion, particularly,

the declarations prayed for and granted by the trial court. Therefore, the February

2, 2022 amended judgment granting the Town' s motion for summary judgment is

reversed.

CONCLUSION

For the above and foregoing reasons, the November 19, 2021 rule to show

cause order is recalled and the appeal is maintained. The May 13, 2021 judgment

denying the peremptory exceptions of no cause of action and failure to join an

indispensable party filed by the East Ascension Consolidated Gravity Drainage

District No. 1 is affirmed. The February 2, 2022 amended judgment granting the

motion for summary judgment in favor of the Town of Sorrento and Michael

Lambert, in his capacity as Mayor of the Town of Sorrento and as a citizen and

landowner residing in the Town of Sorrento, and against the East Ascension

Consolidated Gravity Drainage District No. 1 is reversed. The costs of these

proceedings in the amount of $2, 440. 50 are assessed against the Town of Sorrento

and Michael Lambert, in his capacity as Mayor of the Town of Sorrento and as a

citizen and landowner residing in the Town of Sorrento.

RULE TO SHOW CAUSE ORDER RECALLED; JUDGMENT DENYING
EXCEPTIONS AFFIRMED; JUDGMENT GRANTING MOTION FOR
SUMMARY JUDGMENT REVERSED.

8 We have already noted that La. R.S. 33: 1236( 2)( c), the pertinent statute at issue in La. Atty. Gen.
Op. 15- 0100 and Op. 20- 0056, does not apply here. Nevertheless, we find the Attorney General' s
consideration of the language of the tax propositions to determine whether a duty exists is
instructive.

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