Laverne Deal, Darrell Irvin, Lloyd Irvin, Roosevelt Mackyeon, Tyrone Smith and Frank Smith, Jr. VS City of Gonzales Mayor Barney Arceneaux, The City Counsel for the City of Gonzales and the Zoning Commission for the City of Gonzales
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL G' ' FIRST CIRCUIT Y G NUMBER 2013 CA 1386 LAVERNE DEAL, DARRELL IRVIN9 LLOYD IRVIN, ROOSEVELT MACKYEON, TYRONE SMITH AND FRA. TK SMITH, JR. r VERSUS CITY OF GONZALES, MAYOR BARNEY ARCENEAUX, THE CITY COUNSEL FOR THE CTTY OF GONZALES, AND THE ZONING COMMISSION FOR THE CITY OF GONZALES Judgment Rendered: AR 2 6 Q Appealed from the Twenty-Third Judicial District Court In and for the Parish of Ascension, Louisiana Docket Number 104, 557 Honorable Jessie LeBlanc, Judge Presiding x** x** x;* x;* x Paul Aucoin Counsel for Plaintiffs/Appellants Vacherie, LA Laverne Deal, Darrell Irvin, Lloyd Irvin, Roosevelt Mackyeon, Tyrone Smith, and Frank Smith, Jr. Miranda M. R. Ryland Mumphrey Percy Gonzales, LA Counsel for Defendants/ Appellees City of Gonzales, Mayor Barney Arceneaux, The City Counsel for the City of Gonzales, The Zoning Commission for the City of Gonzales x**:*:: BEFORE: WffiPPLE, C.J., WELCH, AND CRAIN, JJ. WHIPPLE, C.J. Plaintiffs appeal a judgment granting, in part, the defendants' motion for suininary judgment. certified as Because we conclude that the judgment was improperly fmal, we dismiss the appeal and remand the case for further proceedings in the trial court. FACTS AND PROCEDURAL HISTORY This litigation arises out of a zoning dispute in Gonzales, Louisiana. In January 2012, the city annexed 39. 060 acres into the city limits. That same month, L & L Investment Corporation, through Nolan A. " the Gonzales Planning and Zoning Comnnission (" Sonny" Lamendola, petitioned the Commission") to change 38. 89 of those acres from the existing " residential" zoning to I- 1 ( light industrial). Following various hearings and procedural events, in June of 2012, the Commission approved a change for 18. 62 acres of the tract to a G2 zone classification and approved a special use permit to allow for the operation of a minor fabrication facility of greater than 10, 400 square feeY' thereon. In August 2012, plaintiffs, Laverne Deal, Darrell Irvin, Lloyd Irvin, Rossevelt Mackyeon, Tyrone Smith and Frank Smith, Jr., filed a petition for judicial review and declaratory judgment alleging that the property had been rezoned by the ciry without following the applicable rules, procedures, city ordinances and codes. Plaintiffs named as defendants the City of Gonzales, the Mayor, the City Council and the Zoning Commission. Plaintiffs alleged that the zoning change should be set aside and the property should revert back to its original residential zoning classification. Specifically, plaintiffs alleged that the procedures were deficient and the zoning change was interdicted by the city and/ or the Commission' s actions in their: According to the defendants, the rezoning request was made for the purpose of attracting a light industrial usex, Emerson, Inc. . . . to locate on the site." 2 1) Failure to collect a rzquired fee; 2) Failure to obtain a detailed submittal package of the zoning request as required by the City Code; 3) Failure to wait six months to accept the subsequent rezoning request; 4) Acceptance of a verbal request for a zone change; 5) Voting for a zoning change not requested by applicant; 6) Failure to follow ihe city' s Cornprehensive Master Growth Plan; 7) Failure to require widening of the street as a condition of the rezoning request, 8) Engagement in spot zoning; and 9) Reduction of the area of the requested rezoning change without following proper procedures. In December 2012, the defendants filed a motion for summary judgment urging the trial court to uphold the zoning change, contending that all " substantive requirements for the rezoning of property were met." Following a hearing, the trial court granted the defendants' motion for summary judgment as to all issues, except plaintiffs' allegations of improper " spot The May 6, 2013 judgment of zoning." the trial court provided, in pertinent part, as follows: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment is GRANTED on all issues except the issue of " spot zoning," for which the court found a genuine issue of material fact on the issue of spot zoning. Plaintiffs then filed the instant appeal seeking review of the judgment. Upon the lodging of the appeal, this court issued a " show cause" order, noting that the judgment appears to be a partial judgment lacking the designation of finality required by LSA- C. C.P. art. 1915( B). In response, the record was supplemented with an amended judgment by the trial court, designating the judgment as final, and a peN curtarrz opinion by the trial couzt giving its analysis as to why there was no just reason for delaying review of the judgment. The reasons given by the trial immediate court appeal were for its designation that: ( of the judgment as final and subject to 1) the claims resolved on summary judgment are not related to the factors to be considered in determining whether spot zoning has occurred, and ( 2) rendering judgment on the issue of spot zoning will not require 3 this court to consider the sarrie issues resoi- ed on sum, nary judgment, as the matters involve separate issues of law, DISCUSSII N Appellate coarts hav the duty o exaanine sub; ect znatter jurisdiction sua sponte, even when the partie c nat raise the issue. Barnett v. Watkins 2006 2442 ( La. App. lst Cir. 9/ 19107), 97Q So. 2ti 7 Q28. 1032, writ denied 2007- 2066 La. 12/ 14/ 07), 970 So. 2d 537. Accordingly, vys must d termine if this partial summary judgment is properly before us on immediate appeal. Louisiana Code of Civil Procedure article 1915( B) authorizes the appeal of a partial summary judgment as to " one or mor demands, issues, or theories" presenr,e bat less th, m all of the claims, a where the judgment is c esi nated as a final judgment by the trial court a ter a determinaticm that there is no just reason for delay. However, a trial cou t' s certzfcation of a partial judgment as fi; al does not make the judgment immediaiely appealab% e. arquez v. Jack [ Jssery Const., 2006- 1852 ( La. App. 1st Cir. 6/, i0'7), 964 So. 2d 1045; 1048, wriY denied 2007 1404 ( La. 10/ 12/ 07); 965 So. 2d 400. V rhen reviewing an order designating a judgment as final for appeal purposes, when ac omparzied by Explicit reasons, the reviewing court must detertriin certifying the judgment. whether the triai court abused its discretion in R.J. l dessin e Ia c. ve_ R senblum, 200- 1664 ( La. 3/ 2/ OS), 894 So.2d 1113, 112. Parsuant io Messin er, the following list of non-exclusive factors are to be considered in determining whether a partial judgment should be certified as final: 1} The relationship between t?e ad,udicated and unadjudicated j claims; 2) The possibility that the need for review might or cnight not be mooted by future developments in the trial court; 3) The possibility tkat the reviewing court might be obliged to consider the same issue a second time; and 4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. 4 Messin er, 894 Sa2d at 1122. Iic w yer, in determining whether a partial judgment is a final one for the purpose of an immediate appeal, a court must always keep in mind the historic pqlicies against piecemeal appeals. Van ex rel. White v. Davis, 200- 0206 ( La. ir. 2i 16i01), $ 08 So. 2d 478, 483. pp. lst In the instant matter, despitte the trial ou rt' s conclusia n in the per curiam that the remaining, unresolved claims relafed to spot zoning involve "separate issues of law," we find that the need for review may be mooted by future developments in the trial court. The *-elief that plaintiffs seek in the adjudicated and unadjudicated claims is identical,. i.e., that ihe allegecl improper zoning change be set aside and that the classificati n of the property revert back to its original residential zoning classification: Thus, f plaintiffs prevail on the merits of their claim that the Commission improperly engaged in " spot zoning," then the zoning change presumably would be set aside and our zevlew of the instant dismissal of some of plaintiffs' claims on summary judgment would be unnecessary, as plaintiffs would obtain the relief sou claims, namely, the reversion whether based on the alleged t in both their remaining and dismissed f the property to its prior zoning classification, roced. ral : egularities at issue in this appeal or on the unadjudicated claim of i.mproper spot z ning. Th.ezefore, tPie need for review of the judgment dismissing the clairns a± issue in fhis appeal wo ald be mooted. Applying the factors set forth in Messin er, considering the relationship between the adjudicated and unadjudicateci claims, the probability that the need far review could be mooted by fuiure action by the trial court, and the policies against piecemeal appeals, we conclude that there are just reasons to delay review of this partial summary judgment at this tinne. The judgment is not determinative of the entirety of the claims between the parties and an effective remedy is available to the parties once the trial court renders a final judgment. 5 To hold otherwise and permit an appeal of the judgment at this time would encourage multiple appeals and piecemeal 6/ 10/ 11), litigation. See Duvic v. McCuen, 2011- 0010 ( La. App. lst Cir. 2011 WL 3423796 ( unpublished opinion) ( In a property dispute where summary judgment was partially granted declaring that the defendants owned the disputed property and denying the plaintiffs' request for a declaration they were entitled to traverse the property, ihe trial court improperly certified the judgment as final, as: ( 1) the judgment was not determinariye of the enrirety of the claims between the parties; ( 2) an effective remedy was available to the parties once the trial court rendered final judgment. and ( 3) to permit an appeal of such a judgment would encourage multiple appeals and piecemeal litigation.) CONCLUSION For the above and foregoing reasons, we dismiss the instant appeal of the May 6, 2013 judgment and remand the case to the trial court for further proceedings. Because this partial summary judgment does not constitute a final judgment for purposes of appeal, it may be revised by the traal court at any time prior to the rendition of a judgment adjudicaiing all of the clairns and the rights and liabilities of the parties. LSA- C. C. P. art. 1915( B)( 2). await fmal disposition. APPEAL DISMISSED; REM 1VDED, 6 Assessment of costs shall
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