Plaquemines Parish Government v. W. Keith Hinkley

PLAQUEMINES PARISH * NO. 2019-CA-0929

GOVERNMENT

*

VERSUS COURT OF APPEAL

*

W. KEITH HINKLEY, ET AL. FOURTH CIRCUIT

*

STATE OF LOUISIANA

*******

APPEAL FROM

25TH JDC, PARISH OF PLAQUEMINES

NO. 63-277, DIVISION “A”

Honorable Kevin D. Conner, Judge

******

Judge Regina Bartholomew-Woods

******

(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins,

Judge Regina Bartholomew-Woods)

Rennie S. Buras, II

Jacque Rene Touzet

333 F. Edward Hebert Blvd., Bldg. 100

Belle Chasse, LA 70037

COUNSEL FOR PLAINTIFF/APPELLANT

Francis Joseph Lobrano

David F. Waguespack

Peter J. Segrist

CARVER DARDEN KORETZKY TESSIER FINN BLOSSMAN & AREAUX,

LLC

147 Keating Drive

Belle Chasse, LA 70037

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED

APRIL 22 2020

RBW

EAL

SCJ

This appeal involves a contempt proceeding arising in a civil action when

the district court imposed a daily contempt fine on a political subdivision for not

paying a monetary judgment by a certain date. It is from this judgment of

contempt that Appellant has filed the instant appeal. For the foregoing reasons, we

find that such punishment/coercion by the judicial branch forcing a political

subdivision (legislative branch) to pay a monetary judgment offends the notion of

the separation of powers between the branches of government and impermissibly

infringes upon the legislative branch’s power to legislate. Therefore, we reverse

the district court.

FACTS AND PROCEDURAL HISTORY

The undisputed facts of the instant case can be found in this Court’s

unpublished opinion of Plaquemines Parish Government v. W. Keith Hinkley, et

al., 2018-CA-0535, 2018 WL 6378559 (La. App. 4 Cir. 12/05/2018). To briefly

1

summarize, this litigation arose when, on October 25, 2016, the Plaquemines

Parish Government (“Appellant”) sued Mr. W. Keith Hinkley1, Louisiana Roofing

& Sheet Metal, Inc.,2 Westbank Roofing Co., Inc.,3 and Cuzan Services, LLC,4

(collectively “Appellees”).

In the petition for damages, it was alleged that Mr. Hinkley acted in concert

with the other Appellees to perform roofing services for Appellant, in violation of

the Home Rule Charter of Appellant. Shortly after filing an Answer that denied

the allegations, Mr. Hinkley, Louisiana Roofing and Westbank Roofing

propounded discovery to Appellants, seeking documentation to support the

allegations contained in the petition. In April, 2017, after not receiving

documentation supporting the allegations contained in the petition from Appellant,

Appellees filed a motion for summary judgment. Appellant filed an opposition to

the motion for summary judgment, but also sought a continuance to conduct

further discovery. During this same time period, Appellant served Cuzan Services

with the petition. After Appellant issued subpoenas to obtain certain financial

records of Cuzan Services, Cuzan Services filed an objection to the subpoenas and

a motion for summary judgment, along with a motion for sanctions pursuant to La.

C.C.P. art. 863.

On April 16, 2018, the trial court, inter alia, granted Appellees’ Motions for

Summary Judgment, which this Court affirmed. Plaquemines Parish Government,

2018 WL 6378559. On April 24, 2018, the district court granted Appellees’

motion for sanctions against Appellant, and imposed reasonable attorneys’ fees and

1

Mr. W. Keith Hinkley served on the Plaquemines Parish Council from January 1, 2007 until

December 31, 2014.

2

Louisiana Roofing & Sheet Metal, Inc., is wholly owned by W. Keith Hinkley.

3

Westbank Roofing Co., Inc., is owned by family members of W. Keith Hinkley.

4

Cuzan Services, LLC, is owned by John Hymes.

2

court costs incurred by Appellees in defending the motion for summary judgment.

On June 5, 2018, the district court ordered Appellant to pay said sanctions within

sixty (60) days. After Appellant failed to pay said sanctions within the requisite

time period, Appellees filed a motion for contempt. On May 17, 2019, the district

court, dismissed, without prejudice, Appellees’ contempt rule, because the district

court reasoned that in accordance with La. C.C.P. arts. 224 and 226, it could not

impose a contempt of court against Appellant. In its reasons for judgment, the

district court stated the following, in pertinent part: 5

The Court [sic] declines to rule on the merits of

defendants’ [sic] motions for procedural reasons. La.

C.C.P. art. 224 lists conduct that may constitute

constructive contempt of court, including “(2) Willfull

[sic] disobedience of any lawful judgment, order,

mandate, writ or process of the court.” One penalty

available to a Court [sic] holding a party in contempt is

provided in La. C.C.P. art. 226: “When the contempt of

court consists of the omission to perform an act which is

yet in the power of the person charged with contempt to

perform, he may be imprisoned until he performs it, and

in such a case this shall be specified in the court’s order.”

(Emphasis added).

Defendants seek contempt rulings against

“Plaquemines Parish Government.” Article I of the

Plaquemines Parish Charter provides that the

Plaquemines Parish Government consists of the parish

council and the parish president. The Court [sic] cannot

order the Plaquemines Parish Government or the

Plaquemines Parish Council imprisoned under La. C.C.P.

art. 226, as they are not persons. It may only order

elected officials acting in their official capacities as

elected officials imprisoned for failing to appropriate the

funds to pay the sanctions ordered; but only after those

persons are given notice of the rule to show cause. See

Spallone v. U.S., 493 U.S. 265, 276-77, 110 S.Ct. 625,

5

It is a “ ‘well-settled rule that the district court's oral or written reasons for judgment form no

part of the judgment, and that appellate courts review judgments, not reasons for judgment.’”

Wooley v. Lucksinger, 2009-0571, p. 77 (La. 4/1/11), 61 So.3d 507, 572 (quoting Bellard v.

American Cent. Ins. Co., 2007-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671). However, a court

of appeal may review the trial court's reasons for judgment to “gain insight” into the trial court's

judgment. Id., 2009-0571, p. 78, 61 So.3d at 572; See also Double NRJ Trucking, Inc. v.

Johnson, 2017-667, p. 7 (La. App. 5 Cir. 5/16/18), 247 So.3d 1125, 1131.

3

632-633, 107 L.Ed.2d 644 (1990). [Emphasis as in

original].

After the district court issued its denial of the contempt, on May 28, 2019,

Appellees filed a motion for new trial. Appellees asserted that while the district

court declined to issue a contempt based on “imprisonment,” Appellees never

requested or sought such remedy and that under La. C.C.P. art. 226 other remedies

were available, which the district court should consider. Appellant opposed the

motion for new trial and stated that the motion did not meet any of the grounds

outlined in La. C.C.P. arts. 1971, 1972 or 1973, respectively.6 Notwithstanding

Appellant’s argument, the district court granted a new trial and found Appellant in

contempt of its June 5, 2018 judgment. As a result, on August 13, 2019, the

district court ordered Appellant to pay a contempt fine of $250.00 per day until the

underlying judgment that ordered sanctions has been paid to Appellees.

It is from this judgment that Appellant now appeals.7

DISCUSSION

6

La. C.C.P. art. 1971 “Granting of a New Trial” provides:

A new trial may be granted, upon contradictory motion of any party or by the

court on its own motion, to all or any of the parties and on all or part of the issues,

or for reargument only. If a new trial is granted as to less than all parties or issues,

the judgment may be held in abeyance as to all parties and issues.

La. C.C.P. art. 1972 “Peremptory grounds” provides:

A new trial shall be granted, upon contradictory motion of any party, in the

following cases:

(1) When the verdict or judgment appears clearly contrary to the law and the

evidence.

(2) When the party has discovered, since the trial, evidence important to the

cause, which he could not, with due diligence, have obtained before or during the

trial.

(3) When the jury was bribed or has behaved improperly so that impartial justice

has not been done.

La. C.C.P. art. 1973 “Discretionary grounds” provides:

A new trial may be granted in any case if there is good ground therefor, except as

otherwise provided by law.

7

Appellant never appealed the judgment that awarded sanctions; it only appealed the judgment

that granted the contempt.

4

Standard of Review

This case requires us to interpret Louisiana constitutional articles and

statutes relative to the enforcement of a money judgment against a political

subdivision of the state, i.e., Appellant. Thus, because this is purely a question of

law, we apply a de novo standard of review. See Newman Marchive Partnership,

Inc. v. City of Shreveport, 2007-1890 (La. 4/8/08) 979 So.2d 1262, 1265-66 and

Holly Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p.

9 (La. 11/29/06), 943 So.2d 1037, 1045.

Analysis

A contempt of court is “any act or omission tending to obstruct or interfere

with the orderly administration of justice, or to impair the dignity of the court or

respect for its authority.” La. C.C.P. art. 221. “The authority to punish for

contempt of court falls within the inherent power of the court to aid in the exercise

of its jurisdiction and to enforce its lawful orders.” In re Succession of Horrell,

2007-1533, p.12 (La. App. 4 Cir. 10/01/08), 993 So.2d 354, 365 (quoting de Nunez

v. Bartels, 1997-1384, p. 13 (La. App. 1 Cir. 09/09/98), 727 So.2d 463, 470, in turn

citing In re Merritt, 391 So.2d 440, 442 (La. 1980) (internal quotation marks

omitted). Notwithstanding the aforementioned, a court’s power to hold a political

subdivision in contempt in order to punish it or coerce it to pay a money judgment

is prohibited by certain Louisiana provisions of the constitution, statutory laws and

jurisprudential authorities.

Article II, section 1 of the Louisiana Constitution establishes three (3)

distinct branches of government: legislative, executive, and judicial. Section 2 of

that article provides: “Except as otherwise provided by this constitution, no one of

these branches, nor any person holding office in one of them, shall exercise power

5

belonging to either of the others.” La. Const. art. II, §2. Thus, “[t]his

trichotomous branching of authority furnishes the basis for the existence of an

inherent judicial power which the legislative and executive branches cannot

abridge.” Hoag v. State, 2004-0857, p. 4 (La. 12/01/04), 889 So.2d 1019, 1022.

“Similarly the judicial branch may not usurp those powers which are vested in the

other two branches.” Id.

The constitution allocates the judiciary some power over the other branches

through article XII, section 10(A), where it waives the State’s immunity in suits in

contract and tort. See Jones v. City of Baton Rouge, 388 So.2d 737, 740 (La.

1980). “Thus, the judicial branch is empowered to render judgments against the

state.” Hoag, 2004-0857, pp. 4-5, 889 So.2d at 1022. However, the constitution

does not provide the judiciary with the ability to force when and how the

legislative branch of government should pay those monetary judgments. That

power of choice is specifically and exclusively reserved to the legislative branch of

government as mandated by article XII, § 10(C) of the Louisiana Constitution,

which states as follows, in pertinent part:

[The legislative branch] shall provide a procedure for

suits against the state, a state agency, or a political

subdivision and provide for the effect of a judgment, but

no public property or public funds shall be subject to

seizure. The legislature may provide that such

limitations, procedures and effects of judgments shall be

applicable to existing as well as future claims. No

judgment against the state, a state agency, or a political

subdivision shall be exigible, payable or paid except

from funds appropriated therefor by the legislature or by

the political subdivision against

which the judgment is rendered. [emphasis supplied].

The legislature, in enacting Louisiana Revised Statute 13:5109(B)(2),

reiterated the mandates of the aforementioned constitutional provision:

6

Any judgment rendered in any suit filed against the state,

a state agency or a political subdivision, or any

compromise reached in favor of the plaintiff or plaintiffs

in any such suit shall be exigible, payable, and paid only

out of funds appropriated for that purpose by the

legislature, if the suit was filed against the state or a state

agency or out of funds appropriated for that purpose by

the named political subdivision, if the suit was filed

against a political subdivision.

With regard to the aforementioned, Appellees argue that the contempt fine

falls outside of the scope of the applicable provisions of the constitution, as well as

the state statute and does not offend the notion of separation of powers between the

branches of government. In support of their argument, Appellees assert that

because Appellant, a political subdivision of the State of Louisiana8, instituted the

instant lawsuit, and not Appellees, neither the constitution, nor the statute is

applicable. Likewise, the district court in its judgment of August 13, 2019, stated

essentially the same thing when it ruled as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND

DECREED that the provisions of Art. XII, Sec. 10 of the

Louisiana Constitution and La. R.S. 13:5109 and La. R.S.

13:5112 pertaining to the payment of judgments taken

against a government entity do not apply to this contempt

matter, since the payments ordered herein are sanctions

under La. C.C.P. art. 863 arising from a frivolous lawsuit

by Plaquemines Parish Government against private

citizens and businesses; and not from a lawsuit by a

private citizen or business against the parish. (emphasis

as found in original).

Contrarily, Appellant asserts that it is irrelevant who sued whom. The

relevant inquiry is whether the judicial branch can compel, via a contempt, a

legislative branch how and when to pay a money judgment irrespective of what

8

See Ocean Energy, Inc. v. Plaquemines Parish Government, 2004-0066 (La. 07/06/04),

880 So.2d 1, 2 (acknowledging that Plaquemines Parish Government is a political

subdivision of the State of Louisiana and the governing authority of the Parish of

Plaquemines).

7

gave rise to the judgment. We agree with Appellant’s assertion regarding the

relevant inquiry and do not bind ourselves to either Appellees’, or the district

court’s narrow interpretation of the specific constitutional or statutory provision.

In City of New Orleans v. Municipal Administrative Services, Inc., (E.D. La.

2004), unpub., 2004 WL 2496202, the federal district court was asked to find the

City of New Orleans in contempt for its failure to pay a monetary judgment arising

from a breach of contract. The federal district court recognized that Rule 69(a) of

the Federal Rules of Civil Procedure “permits a judgment creditor to use any

method of execution consistent with the practice and procedure of the state in

which the district court sits.” Id. citing Leroy v. City of Houston, 906 F.2d 1068,

1085-86 (5th Cir. 1990)(holding that the plaintiffs could not enforce a judgment by

executing on city property when such execution was impermissible pursuant to

state law, but permitting enforcement of a judgment by writ of mandamus when

such procedure is provided for pursuant to state law). Notwithstanding Rule 69(a),

the federal district court found that its applicability was limited by Article 12,

section 10 of the Louisiana Constitution, which disallows public property or public

funds from being subject to seizure. Ultimately, the federal district court held that

“issuing an order of contempt and imposing sanctions on the City [of New

Orleans] in order to coerce payment of this Court’s judgment is inappropriate

because such an order would conflict with Louisiana practice and procedure.”

In support of its position, the federal district court relied, in part, on this

Court’s holding in Vogt v. Bd. of Commissioners of Orleans Levee Dist., 2001-

0089 (La. App. 4 Cir. 3/27/02), 814 So.2d 648, as well as LSA-R.S. 13:5109. In

Vogt, this Court analyzed, in great length, those portions of the Louisiana

Constitution that define the powers of the differing branches of government, and

8

concluded that it was without constitutional or statutory authority to compel the

Levee Board (a legislative branch of government) to pay a judgment that was

rendered against it. Id., 2001-0089, pp. 6-11, 814 So.2d at 653-55. This Court

emphasized that “[a] judgment creditor of a political subdivision of the State has

no way to collect his judgment except by appropriation.” Id. 2001-0089, p. 8, 814

So.2d at 654, citing Baudoin v. Acadiana Parish Police Jury, 1996-1288 (La. App.

3 Cir. 09/17/1997), 702 So.2d 715).

In Baudoin, the Third Circuit Court of Appeal, explained the applicability of

Article XII, Sec. 10(C) of the Louisiana Constitution as follows:

Section 10(C) unambiguously authorizes only the

legislature to provide a procedure or provide for the

effect of judgments. We do not interpret the

constitutional provisions that the legislature “shall

provide a procedure” and “shall provide for the effect” to

mean that it is mandated to do so, but rather we conclude

the language means that as between the three branches of

government, these powers belong exclusively to the

legislature.

Section 10(C) declares that “[t]he legislature [meaning

not any other branch of government] shall provide a

procedure for suits against the state, a state agency, or a

political subdivision.” And, “[i]t [meaning the legislature

and not another branch of government] shall provide for

the effect of a judgment....” Two prohibitions then

follow, each of which is a limitation on legislative

authority to provide for the effect of a judgment. The first

prohibition is that no public property or public funds

shall be subject to seizure. The second prohibition is that

no judgment against the State, a state agency, or a

political subdivision shall be exigible, payable, or paid

except from funds appropriated therefor by the legislature

or by the political subdivision against which judgment is

rendered.

***

For a judgment to be exigible, payable, or paid, there

must first be an appropriation, and the appropriation has

to come from the governing body against which the

judgment was rendered.

9

1996-1288, 702 So.2d 715, 717-18.

In light of the aforementioned, it is clear that only the legislative branch can

determine when and how to pay a monetary judgment, irrespective of the

underlying suit that gave rise to said judgment. Our review of jurisprudential

authorities, statutory law and constitutional provisions, reveals no exception for a

judgment rendered against a political subdivision when the political subdivision is

the entity that initiated the lawsuit. Rather, the jurisprudence is replete with cases

that speak only to the fact that when a “judgment” is rendered against a legislative

body, only the legislative body has the authority to determine when and how that

judgment should be paid. See e.g., Newman, 2007-1890, 979 So.2d 1262; Hoag,

2004-0857, 889 So.2d 1019; Vogt, 2001-0089, 814 So.2d 648.

In the present case, we find that the district court offended the separation of

powers between the branches of government when it held Appellant in contempt

for its failure to pay the underlying sanctions judgment by a particular date.

Moreover, during the hearing on the contempt, in an effort to purge the contempt,

Appellant explained that it had limited funds and a limited ability to raise new or

additional public funds; it had dueling public needs for limited funds and finally, it

had judgments that pre-dated the current sanctions judgment and feared an equal

protection lawsuit if it paid the current judgment before all of the pre-existing

judgments. It further stated that notwithstanding the aforesaid, it would figure out

a way to appropriate monies for all outstanding judgments in order to place them in

alignment for eventual payment.

In holding Appellant in contempt, the district court exercised powers that

unquestionably belonged to the legislative body vis-à-vis Appellant. A contempt

10

issued by the judicial branch and used to coerce payment from a political

subdivision of the State of Louisiana (the legislative branch) is a clear violation of

the separation of powers between the branches of government. Thus, the district

court abused its discretion when it issued the contempt against Appellant.

CONCLUSION

Based on the aforementioned, we find that the district court’s imposition of

the contempt against Appellant offended the separation of powers. As such the

judgment of the district court is hereby REVERSED.

REVERSED

11