The opinion
NEIGHBORS OF 200 HENRY * NO. 2021-CA-0387
CLAY AVENUE AND
AUDUBON RIVERSIDE *
NEIGHBORHOOD COURT OF APPEAL
ASSOCIATION *
FOURTH CIRCUIT
VERSUS *
STATE OF LOUISIANA
THE BOARD OF ZONING *******
ADJUSTMENT OF THE CITY
OF NEW ORLEANS
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-10464, DIVISION “D”
Honorable Nakisha Ervin-Knott, Judge
******
Judge Terri F. Love
******
(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Regina
Bartholomew-Woods)
Henry W. Kinney, III
Jordan S. Varnado
KINNEY, ELLINGHAUSEN & DESHAZO
1250 Poydras Street, Suite 2450
New Orleans, LA 70113-1806
COUNSEL FOR PLAINTIFFS/APPELLANTS, NEIGHBORS OF 200
HENRY CLAY AVENUE & AUDUBON RIVERSIDE NEIGHBORHOOD
ASSOCIATION
Shawn Lindsay
DEPUTY CITY ATTORNEY
Daniel T. Smith
ASSISTANT CITY ATTORNEY
Churita H. Hansell
CHIEF DEPUTY CITY ATTORNEY
Donesia D. Turner
CITY ATTORNEY
1300 Perdido Street, Suite 5E03
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE, CITY OF NEW ORLEANS
AFFIRMED IN PART; VACATED IN PART; REMANDED
JANUARY 26, 2022
TFL
RLB
The Board of Zoning Adjustments of the City of New Orleans made a
RBW
zoning verification regarding the placement of a new helistop being constructed for
use by Children’s Hospital. Plaintiffs sought review of the determination. The
City filed exceptions of lack of procedural capacity and insufficiency of service of
process because plaintiffs neither named the City as a party, nor served the City.
The trial court granted the exceptions and dismissed plaintiffs’ claims without
prejudice.
We find that the Board of Zoning Adjustments of the City of New Orleans is
an administrative board that is not a distinct juridical entity from the City of New
Orleans. As such, plaintiffs were required to name the City as the proper party and
serve same. However, the Board of Zoning Adjustments should have been
permitted the opportunity to amend and attempt to cure the defects, as required by
law. Accordingly, we affirm the trial court’s granting of the City’s two exceptions,
but vacate the reversal without prejudice, and remand for proceedings consistent
with this opinion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The owner of 200 Henry Clay Avenue, near Children’s Hospital, began
1
construction on a new building that included new helicopter landing facilities. 1 A
zoning verification request was submitted in 2020 to the Office of Safety and
Permits. The zoning verification was issued by the chief zoning official and
classified the new landing as a helistop.
Audubon Riverside Neighborhood Association and Neighbors of 200 Henry
Clay Avenue (collectively “Plaintiffs”) sought an appeal of the chief zoning
official’s zoning verification decision. However, the Board of Zoning Adjustment
(“BZA”) of the City of New Orleans upheld the zoning verification. Plaintiffs then
filed a Verified Petition for Appeal from Proceedings Before the City of New
Orleans Board of Zoning Adjustment against the BZA to appeal the BZA’s
November 9, 2020 opinion upholding the zoning verification. Plaintiffs contended
that the BZA’s actions violated the City’s Comprehensive Zoning Ordinance.
Plaintiffs also maintained that the new facility is a heliport, not a helistop.2
Plaintiffs named the BZA as the only party and requested service upon the
BZA Chairperson. The City of New Orleans filed a dilatory exception of lack of
procedural capacity and a declinatory exception of insufficiency of service of
process asserting that the BZA possessed no power to sue or be sued and that
Plaintiffs failed to serve the City. The trial court granted both of the City’s
exceptions and dismissed Plaintiffs’ petition without prejudice.
Plaintiffs filed a Notice of Intent for Supervisory Review and Request for
Stay. The trial court denied the stay. This Court denied the writ.3 Plaintiffs’
Motion for Devolutive Appeal followed.
1
The detailed specifications are not at issue in this appeal.
2
The substance regarding the propriety of the classification of the helicopter facilities is not
before this Court on appeal.
3
Neighbors of 200 Henry Clay Avenue and Audubon Riverside Neighborhood Ass’n v. Bd. of
Zoning Adjustment, 21-0176 (La. App. 4 Cir. 4/21/21).
2
On appeal, Plaintiffs maintain the trial court erred by 1) granting the
exception of lack of procedural capacity, 2) granting the exception of insufficiency
of service of process, and 3) dismissing the petition without prejudice.
MOTION TO DISMISS
The City filed a Motion to Dismiss Plaintiffs’ devolutive appeal with this
Court averring that the appeal was governed by the law of the case doctrine.
This Court explained the law of the case doctrine as follows:
The law of the case doctrine refers to “(a) the
binding force of trial court rulings during later stages of
the trial, (b) the conclusive effects of appellate court
rulings at the trial on remand, and (c) the rule that an
appellate court will ordinarily not reconsider its own
rulings of law on a subsequent appeal in the same case.”
Petition of Sewerage and Water Bd. of New Orleans, 278
So.2d 81, 83 (La.1973); Louisiana Land and Exploration
Co. v. Verdin, 95–2579, pp. 3–4 (La.App. 1 Cir. 9/27/96),
681 So.2d 63, 65. This doctrine “may bar redetermination
of a question of law or a mixed question of law and fact
during the course of a judicial proceeding.” 1 Frank L.
Maraist and Harry T. Lemmon, Louisiana Civil Law
Treatise: Civil Procedure, § 6.7 (1999). Thus, the law of
the case doctrine is the proper procedural principle, as
opposed to res judicata, for describing the relationship
between prior judgments by trial and appellate courts
rendered within the same case. Posey v. Smith, 453 So.2d
1016 (La.App. 3 Cir.1984). The policy reasons behind
this doctrine include: (i) avoiding relitigation of the same
issue, (ii) promoting consistency of result in the same
litigation, and (iii) promoting efficiency and fairness to
both parties by affording a single opportunity for the
argument and decision of the matter at issue. Day v.
Campbell–Grosjean Roofing & Sheet Metal Corp., 260
La. 325, 330, 256 So.2d 105, 107 (1971).
Unlike the statutory doctrine of res judicata, the
jurisprudential doctrine of law of the case is a
discretionary guide that will not be applied inflexibly.
“Argument is barred where there is merely doubt as to
the correctness of the former holding, but not in cases of
palpable former error or so mechanically as to
accomplish manifest injustice.” Petition of Sewerage and
Water Bd., 278 So.2d at 83. In addition to the latter
3
exception for palpable error, the jurisprudence has
recognized two other contexts in which this discretionary
doctrine will not be applied. First, it will not be applied to
“supplant the Code of Civil Procedure provision which
clearly permits a reconsideration of the overruling of
peremptory exceptions.” Babineaux v. Pernie–Bailey
Drilling Co., 261 La. 1080, 1094, 262 So.2d 328, 332–
33; Landry v. Blaise, Inc., 2002–0822 (La.App. 4 Cir.
10/23/02), 829 So.2d 661, 666. Second, it will not be
applied when the underlying, operative facts upon which
the court’s prior decision was based have changed.
Morrison v. C.A. Guidry Produce, 2003–0307 (La.App. 3
Cir. 10/01/02), 856 So.2d 1222, 1226–27. Under the “law
of the case” doctrine, an appellate court ordinarily will
not reconsider its own rulings of the law in the same
case. See Liberty Bank and Trust Company v.
Dapremont, 2002–1504 (La.App. 4 Cir. 2/11/ 03), 844
So.2d 877, (see p. 892); Evans v. Nogues, 99–2761, p. 4
(La.App. 4 Cir. 9/13/00), 775 So.2d 471, 474; Sharkey v.
Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1 Cir.).
Clearly, there was no permanent injunction in this matter,
nor was there a “final decree” as to the merits of any
particular assertion made by the appellant. Moreover, a
preliminary injunction is a summary proceeding and
merely requires a prima facie showing of a good chance
to prevail on the merits. Mary Moe, L.L.C., v. Louisiana
Bd. Of Ethics, 03–2220, (La.4/14/04), 875 So.2d 22.
Bank One, Nat. Ass’n v. Velten, 04-2001, pp. 5-7 (La. App. 4 Cir. 8/17/05), 917 So.
2d 454, 458-59.
“[T]he denial of a writ has no precedential value.” Lake Air Capital II, LLC
v. Perera, 15-0037, p. 7 (La. App. 4 Cir. 5/13/15), 172 So. 3d 84, 88. Moreover,
if we merely deny a writ application, without considering
the substance of the issue raised, simply because we do
not believe that the situation is appropriate for our
exercise of our supervisory jurisdiction, then there is no
‘decision’ as to that issue to be given effect as the law of
the case.
Tsatsoulis v. City of New Orleans, 99-2544, p. 2 (La. App. 4 Cir. 8/30/00), 769 So.
2d 137, 138.
The writ decision issued in this matter was a writ denied with no comment
4
on the substance or appellate review of same. As such, we do not find that the law
of the case doctrine applies in this case, and the Motion to Dismiss is denied.
LACK OF PROCEDURAL CAPACITY
Plaintiffs contend that the trial court erred by granting the City’s exception
of lack of procedural capacity because the BZA is a quasi-judicial entity distinct
from the City of New Orleans.
The exception of lack of procedural capacity is a dilatory exception. La.
C.C.P. art. 926. A dilatory exception “merely retards the progress of the action.”
La. C.C.P. art. 923.
“Whether a party has the power to sue or be sued is an issue typically raised
in the dilatory exception of lack of procedural capacity.” Downtown Dev. Dist. of
City of New Orleans v. City of New Orleans, 18-0726, p. 7 (La. App. 4 Cir.
5/8/19), 272 So. 3d 917, 925. “The dilatory exception of lack of procedural
capacity raises the issue of want of capacity of the plaintiff to institute and
prosecute the action and stand in judgment, and/or challenges the authority of a
plaintiff who appears in a purely representative capacity.” Rain CII Carbon,
L.L.C. v. Recon Eng’g, Inc., 18-0916, p. 4 (La. App. 4 Cir. 5/1/19), 270 So. 3d 785,
788 (quoting English Turn Prop. Owners Ass’n v. Taranto, 16-0319, p. 6 (La. App.
4 Cir. 4/19/17), 219 So. 3d 381, 387). “The exception ‘tests a party’s legal
capacity to bring suit.’” Rain, 18-0916, p. 4, 270 So. 3d at 788 (quoting Mt. Zion
Baptist Ass’n v. Mt. Zion Baptist Church # 1 of Revilletown Park, 16-0151, p. 5
(La. App. 1 Cir. 10/31/16), 207 So. 3d 414, 417).
“ʽThe determination of whether a party has the procedural capacity to sue or
be sued involves a question of law.’” Downtown, 18-0726, p. 7, 272 So. 3d at 925
(quoting Woodard v. Upp, 13-0999, p. 5 (La. App. 1 Cir. 2/18/14), 142 So. 3d 14,
5
18). As such, “[t]he de novo standard of review . . . applies to our review of the
trial court’s ruling on a dilatory exception of lack of procedural capacity.” English
Turn, 16-0319, pp. 5-6, 219 So. 3d at 387.
Accordingly, we must determine whether the BZA is an entity such that it
may be sued.4 An entity must be characterized as a juridical person in order to be
sued. Dejoie v. Medley, 41,333, p. 4 (La. App. 2 Cir. 12/20/06), 945 So. 2d 968,
972; Dugas v. City of Breaux Bridge Police Dep’t, 99-1320, p. 3 (La. App. 3 Cir.
2/2/00), 757 So. 2d 741, 743. “A juridical person is an entity to which the law
attributes personality, such as a corporation or a partnership.” La. C.C. art. 24.
On this juridical determination, the Louisiana Supreme Court espoused:
The important determination with respect to the juridical
status or legal capacity of an entity is not its creator, nor
its size, shape, or label. Rather the determination that
must be made in each particular case is whether the entity
can appropriately be regarded as an additional and
separate government unit for the particular purpose at
issue. In the absence of positive law to the contrary, a
local government unit may be deemed to be a juridical
person separate and distinct from other government
entities, when the organic law grants it the legal capacity
to function independently and not just as the agency or
division of another governmental entity. 1 Sands &
Libonati, § 2.18 and authorities cited therein, §§ 2.19,
2.20.
Such a determination will depend on an analysis of
specifically what the entity is legally empowered to do. 1
Sands & Libonati § 2.02. Using such a functional
approach, courts have found cities and various other
kinds of local government entities to be independent and
autonomous, having juridical personality. For example
see Creighton v. City of Santa Monica, 160 Cal.App.3d
4
Plaintiffs contend that this matter does not equate with a “lawsuit.” However, this Court
previously characterized a matter seeking a writ of certiorari pursuant to La. R.S. 33:4727 as a
“suit.” State ex rel. Phillips v. Bd. of Zoning Adjustments of City of New Orleans, 197 So. 2d
916, 917 (La. App. 4th Cir. 1967). Further, Plaintiffs’ petition, besides requesting a writ of
certiorari to the BZA, also requests that the trial court: 1) take new evidence in the matter; 2)
reverse the judgment of the BZA; and 3) find that the BZA acted with gross negligence, bad
faith, or malice.
6
1011, 207 Cal.Rptr. 78 (2d Dist.1984) (elected rent
control board was separate and autonomous from the
city); Kargman v. Boston Water and Sewer Com’n, 18
Mass.App.Ct. 51, 463 N.E.2d 350 (1984) (commission’s
corporate attributes or powers establish it as an
“independent body politic and corporate” as it has the
power to sue and be sued in its own name; acquire, hold,
and dispose of real and personal property; make
contracts; engage employees and agents and fix their
compensation; exercise the power of eminent domain;
and exercise such other powers as are necessary to carry
out its purposes); Allis–Chalmers Corp. v. Emmet County
Council of Gov’ts, 355 N.W.2d 586 (Iowa 1984)
(constituent local governmental units not responsible for
contract of inter-local governmental entity which had its
own corporate existence since it has the power to sue and
be sued, acquire and dispose of property, enter contracts,
fix and charge fees for its services, establish a budgeting
system, borrow money and issue bonds, etc ...); East
Montgomery Water, Sewer & Fire Protection Auth. v.
Waterworks of Montgomery, 474 So.2d 1088 (Ala.1985)
(city board is separate and independent from the city
which it serves (quoting from Water Works Board of
Leeds v. Huffstutler, 299 So.2d 268 (Ala.1974))).
Roberts v. Sewerage & Water Bd. of New Orleans, 634 So. 2d 341, 346-47 (La.
1994). “Decision-making bodies within a branch of government are not
necessarily independent juridical persons.” Dejoie, 41,333, p. 5, 945 So. 2d at 972.
The BZA was created pursuant to the enabling statute, La. R.S. 33:4727,
within which the BZA’s characteristics and abilities were specifically enumerated
as follows, in pertinent part:
A. (1) The local legislative body may provide for the
appointment of a board of adjustment, and in the
regulations and restriction adopted pursuant to the
authority of R.S. 33:4721 through R.S. 33:4729 may
provide that the board may determine and vary their
application in harmony with their general purpose and
intent and in accordance with general or specific rules
contained therein.
(2) The board of adjustment shall consist of five
members, and may include two alternate members, all of
whom shall be landowners and qualified voters. The
7
membership of the first board shall serve respectively,
one for one year, one for two years, one for three years,
one for four years and one for five years. Thereafter
members shall be appointed for terms of five years each.
(3) Of the two alternate members first appointed,
one alternate member shall be appointed for a term of
three years and the other for a term of two years.
Thereafter each alternate member shall be appointed for a
term of three years. Alternate members shall serve only
when called upon to comprise a full five-member board
when a quorum is present. When so serving, alternate
members shall have all the powers and duties of regular
members.
(4) All members shall be removable for cause by
the appointing authority upon written charges and after
public hearings. Vacancies shall be filled for the
unexpired term of any member whose term becomes
vacant. The board shall elect its own chairman, who shall
serve for one year.
(5) The board shall adopt rules in accordance with
the provisions of any ordinance adopted pursuant to R.S.
33:4721 through 33:4729; however, any rules adopted by
a board of adjustment, zoning administrator, or other
official or official body appointed by the governing
authority shall not be effective until approved in writing
by the governing authority.
* * *
C. (1) Meetings of the board shall be held at the
call of the chairman and at such other times as the board
may determine. The chairman, or, in his absence, the
acting chairman, may administer oaths and compel the
attendance of witnesses. All meetings of the board shall
be open to the public. The board shall keep minutes of its
meetings, showing the vote of each member upon each
question, or if absent or failing to vote, indicating that
fact and shall keep records of its examination and other
official actions, all of which shall be filed immediately in
the office of the board and shall be public records. All
testimony, objections thereto, and rulings thereon, shall
be taken down by an auditory recording or by a reporter
employed by the board for the purpose.
(2)(a) Appeals to the board of adjustment may be
taken by any person aggrieved or by any officer,
department, board, or bureau of the municipality affected
by any decision of the administrative officer. Appeals
8
shall be taken within a reasonable time, as provided by
the rules of the board, by filing with the officer from
whom the appeal is taken, and with the board of
adjustment a notice of appeal specifying the grounds
thereof. The officer from whom the appeal is taken shall
forthwith transmit to the board all the papers constituting
the record upon which the action appealed from was
taken, after all transcript costs and all other costs of
appeal are paid by the person or entity taking the appeal,
the appellant.
(b) An appeal stays all proceedings in furtherance
of the action appealed from, unless the officer from
whom the appeal is taken certifies to the board of
adjustment after the notice of appeal shall have been filed
with him, that, by reason of facts stated in the certificate,
a stay would, in his opinion, cause imminent peril of life
or property. In such case proceedings shall not be stayed
otherwise than by a restraining order that may be granted
by the board of adjustment or by a court of record on
application or notice to the officer from whom the appeal
is taken and on due cause shown.
(c) The board of adjustment shall fix a reasonable
time for the hearing of the appeal, give public notice
thereof, as well as due notice to the interested parties, and
decide the appeal within a reasonable time. Upon the
hearing any party may appear in person or by agent or by
attorney.
(3) The board of adjustment shall have the
following powers:
(a) To hear and decide appeals where it is alleged
there is error in any order, requirement, decision, or
determination made by an administrative official in the
enforcement of R.S. 33:4721 through R.S. 33:4729 or of
any ordinance adopted thereto.
(b) To hear and decide all matters referred to it or
upon which it is required to pass under the ordinance.
(c) In passing upon appeals, where there are
practical difficulties or unnecessary hardships in the way
of carrying out the strict letter of the ordinance, to vary or
modify the application of any of the regulations or
provisions of the ordinance relating to the use,
construction, or alteration of buildings or structures or the
use of land so that the spirit of the ordinance shall be
9
observed, public safety and welfare secured, and
substantial justice done.
D. (1) In exercising the above mentioned powers
the board may, in conformity with R.S. 33:4721 through
R.S. 33:4729, reverse or affirm, wholly or partly, or may
modify the order, requirement, decision, or determination
appealed from and may make such order, requirement,
decision, or determination as ought to be made, and to
that end shall have all the powers of the officer from
whom the appeal is taken.
(2) The concurring vote of a majority of the
members of the board present and voting shall be
necessary to reverse any order, requirement, decision, or
determination of any administrative official, or to decide
in favor of the applicant on any matter upon which it is
required to pass under any ordinance, or to effect any
variation in the ordinance.
E. (1) Any person or persons jointly or severally
aggrieved by any decision by the board of adjustment of
any officer, department, board, or bureau of the
municipality, may present to the district court of the
parish or city in which the property affected is located a
petition, duly verified, setting forth that the decision is
illegal, in whole or in part, specifying the grounds of the
illegality. The petition shall be presented to the court
within thirty days after the filing of the decision in the
office of the board.
(2) Upon the presentation of such petition the court
may allow a writ of certiorari directed to the board of
adjustment to review the decision of the board of
adjustment and shall be prescribed therein the time
within which a return may be made and served upon the
relator's attorney, that shall be not less than ten days but
which may be extended by the court. The party
requesting the appeal or writ shall bear the costs of
transcribing the auditory recording of the meeting in
which the adverse board of adjustment decision was
rendered.
(3) The board of adjustment shall not be required
to return the original papers acted upon by it, but may
return certified or sworn copies thereof or such portions
thereof as may be called for by the writ. The return shall
concisely set forth such other facts as may be pertinent
and material to show the grounds of the decision
10
appealed from and shall be verified.
(4) If, upon the hearing, it shall appear to the court
that testimony is necessary for the proper disposition of
the matter, it may take additional evidence or appoint a
referee to take such evidence as it may direct, the cost of
which shall be borne by the party who initiated the
appeal, and report the same to the court with his findings
of fact and conclusions of law, which shall constitute a
part of the proceedings upon which the determination of
the court shall be made.
(5) The court may reverse or confirm, wholly or in
part, or may modify the decision brought up for review.
Costs shall not be allowed against the board unless it
appears to the court that it acted with gross negligence, in
bad faith, or with malice in making the decision appealed
from. All issues in any proceedings under this Section
shall have preference over all other civil actions and
proceedings.
The BZA is also attached to the City Planning Commission in accordance with
Article V, §5-408 of the Home Rule Charter of the City of New Orleans, which
provides:
Section 5-408. - Board of Zoning Adjustments.
(1)Composition. There shall be attached to the
Commission a Board of Zoning Adjustments to consist of
seven members who shall be domiciled in and electors of
the City, appointed by the Mayor with the approval of the
Council for a term of five years, staggered so that the term
of one or two members shall expire each year. Neither the
Director nor any member of the Commission shall be a
member of the Board. The Mayor may, by Executive
Order approved by the Council in accordance with the
procedures established in Section 9-201(2) of this Charter,
reassign or attach the functions of the Board to another
department or board within the Executive Branch.
(2) Functions. The Board shall:
(a) Hear and determine appeals from applicants who
have been refused building permits because of a
violation or conflict with the zoning ordinance
or the official map of the City.
11
(b) Hear and decide appeals where error is alleged
in any order, requirement, decision, or
determination made by an administrative official
in the enforcement of the zoning ordinance of
the City.
(c) Have the power to permit variations from the
zoning regulations in classes of cases or
situations and in accordance with the principles,
conditions, and procedures specified in and
subject to the limitations imposed by the zoning
ordinances of the City.
Furthermore, the Louisiana Supreme Court stated:
[t]he Zoning Board of Appeal and Adjustment of the City
of New Orleans is solely a creature of statute, its creation
being authorized by section 7 of Act 240 of 1926 and
being actually created by Ordinance No. 13,649 of the
Commission Council Series for the City of New Orleans.
The Board has no powers save those conferred upon it by
law and such as are implied in the powers so conferred.
State ex rel. Bringhurst v. Zoning Bd. of Appeal & Adjustment, 198 La. 758, 761-
62; 4 So. 2d 820, 821 (La. 1941).
As detailed above, the BZA is an administrative board with limited powers
conferred upon it by statute and the Home Rule Charter. The BZA is not
autonomous or self-governing. See Roberts, 634 So. 2d at 347. Accordingly, the
trial court did not err by granting the City’s exception of lack of procedural
capacity, as the BZA is not a separate juridical entity distinct from the City.
INSUFFICIENCY OF SERVICE OF PROCESS
Plaintiffs next contend that the trial court erred by granting the City’s
declinatory exception of insufficiency of service of process because service was
effectuated upon the proper party, the BZA.
Having found that the City was the proper party to be named in a suit against
the BZA, the Home Rule Charter denotes that either the Mayor or the City
12
Attorney shall be served when seeking legal process against the City. See Article
IV, §4-405, City of New Orleans, Home Rule Charter. It is undisputed that
Plaintiffs did not serve the Mayor or the City Attorney. Accordingly, the trial
court did not err by granting the City’s exception of insufficiency of service of
process.
DISMISSAL WITHOUT PREJUDICE
Plaintiffs assert that the trial court “erred in dismissing Appellants’ Verified
Petition for Appeal without prejudice pursuant to” La. C.C.P. art. 1672(C).
La. C.C.P. art. 933(B) provides:
[w]hen the grounds of the other objections pleaded in the
dilatory exception may be removed by amendment of the
petition or other action by plaintiff, the judgment
sustaining the exception shall order plaintiff to remove
them within the delay allowed by the court; and the
action, claim, demand, issue or theory subject to the
exception shall be dismissed only for a noncompliance
with this order.
Likewise, La. C.C.P. art. 932(A) states:
[w]hen the grounds of the objections pleaded in the
declinatory exception may be removed by amendment of
the petition or other action of plaintiff, the judgment
sustaining the exception shall order the plaintiff to
remove them within the delay allowed by the court; if the
court finds, on sustaining the objection that service of
citation on the defendant was not requested timely, it
may either dismiss the action as to that defendant without
prejudice or, on the additional finding that service could
not have been timely requested, order that service be
effected within a specified time.
Since the lack of procedural capacity and insufficient service of process may
possibly be cured by amending the petition and requesting proper service, the trial
court erred by failing to allow plaintiffs time to amend pursuant to La. C.C.P. art.
932(A) and 933(B). Accordingly, we vacate the portion of the trial court judgment
13
dismissing Plaintiffs’ claims without prejudice and remand the matter to allow
Plaintiffs an opportunity to attempt to cure the defects. See Interdiction of Hunter,
18-0685, p. 5 (La. App. 4 Cir. 12/19/18), 318 So. 3d 784, 788; Scott v. Jack’s
Cookie Co., 413 So. 2d 1334, 1336 (La. App. 1st Cir. 1982).
DECREE
For the above-mentioned reasons, we find that the trial court did not err by
granting the City’s exception of lack of procedural capacity, as the BZA is not a
separate and distinct juridical entity apart from the City. Likewise, the trial court
did not err by granting the City’s exception of insufficiency of service of process
because service was not confected upon the City. However, the statutory
provisions require that Plaintiffs be given an opportunity to attempt to cure the said
defects and we remand the matter to the trial court for same. The judgment of the
trial court is affirmed in part, vacated in part, and remanded for proceedings
consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; REMANDED
14