The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
09-107
AIR SUPPLY, INC., ET AL.
VERSUS
MICHAEL M. WAHLDER, ET AL.
**********
APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 19,080
HONORABLE W. PEYTON CUNNINGHAM, DISTRICT JUDGE
**********
OSWALD A. DECUIR
JUDGE
**********
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell,
Judges.
Ezell, J., dissents and assigns written reasons.
AFFIRMED.
William M. Ford
Susan Ford Fiser
P. O. Box 12424
Alexandria, LA 71315-2424
(318) 442-8899
Counsel for Defendant/Appellee:
Michael M. Wahlder
Edward E. Rundell
Heather M. Mathews
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
Counsel for Defendants/Appellees:
Nolan Johnson
TRC Engineers, Inc.
Joseph B. Stamey
Erika F. Cedars
Stamey & Miller, LLC
P. O. Drawer 1288
Natchitoches, LA 71458
(318) 352-4559
Counsel for Defendant/Appellee:
Sheila Girlinghouse
Randall B. Keiser
D. Heath Trahan
Keiser Law Firm, P.L.C.
P.O. Box 12358
Alexandria, LA 71315
(318) 443-6168
Counsel for Defendants/Appellees:
Wayne Nugent
Sharon Fisher
Lisa Butchey
Sherry Hardwick
W. Alan Pesnell
The Pesnell Law Firm
(A Professional Law Corporation)
P. O. Box 1794
Shreveport, LA 71166-1794
(318) 226-5577
Counsel for Plaintiffs/Appellants:
Air Supply, Inc.
Raphael Luneau
DECUIR, Judge.
Plaintiffs, Air Supply, Inc. and Raphael Luneau, seek review of the trial court’s
judgment of July 17, 2008, wherein the court granted exceptions of no cause of action
in favor of defendants, Wayne Nugent, Mayor of the Village of Creola (Mayor),
Sharon Fisher, Lisa Butchey, Sherry Hardwick, Aldermen of the Village of Creola
(Aldermen), Sheila Girlinghouse, Clerk for the Village of Creola (Clerk), Michael
Wahlder, TRC Engineers, Inc. (TRC), and Nolan Johnson. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
Michael Wahlder owns a convenience store and restaurant in the Village of
Creola. Air Supply, Inc., owned by Ralph Luneau, operates a mobile home park
adjacent to Wahlder’s property. Some time ago, Wahlder donated land for the
Village’s sewer treatment ponds. Wahlder and Air Supply sought to have additional
acreage annexed by the Village for expansion of their respective operations. After
some research into sewer capacity, conducted in part by TRC and its employee, Nolan
Johnson, the Village annexed the Wahlder property but never took action on Air
Supply’s petition for annexation. Air Supply, Inc. and Luneau filed suit against the
defendants named above.
Through their original and three amending and supplementing petitions,
plaintiffs challenge: the Mayor and Aldermen’s actions in failing to annex the
plaintiffs’ land and in denying access to the Village sewer system. In their pleadings,
plaintiffs assert that defendants’ actions violated plaintiffs’ rights under the Louisiana
Constitution, the United States Constitution, and 42 U.S.C. § 1983. Plaintiffs allege
that Wahlder, TRC, and Johnson conspired with the Mayor, Clerk, and Aldermen to
deny them due process and to interfere with a contract for sale of the plaintiffs’
property and to breach Wahlder’s contract of sale to Air Supply.
In response, the Mayor, Clerk, and Aldermen filed exceptions of no cause of
action. In their exceptions, defendants claim that plaintiffs fail to state a cause of
action under 42 U.S.C. § 1983, as defendants are entitled to absolute and qualified
immunity. As an additional basis for their exceptions, defendants contend they are
protected by the discretionary acts defense set forth in La.R.S. 9:2798.1(B) and that,
accordingly, plaintiffs are unable to state a cause of action in tort. Wahlder, TRC,
and Nolan Johnson also filed exceptions of no cause/no right of action and
vagueness, arguing that the plaintiffs failed to state a cause of action for negligence,
detrimental reliance, due process violations, or civil conspiracy under § 1983. The
district court found that the Mayor, Clerk, and Aldermen enjoyed both absolute and
qualified immunity and granted the exceptions of no cause of action filed on behalf
of those defendants. In addition, the court granted the exceptions of no cause of
action in favor of the remaining defendants noting that no final determination
regarding the annexation has been made and that the plaintiffs failed to establish a
“unity of purpose” among the defendants. Mack v. Newton, 737 F.2d. 1343 (5th Cir.
Tex 1984).
NO CAUSE OF ACTION
In Fink v. Bryant, 01-0987 (La. 11/28/01), 801 So.2d 346, 348-349 (citations
omitted), the court said:
The function of the peremptory exception of no cause of action is
to question whether the law extends a remedy to anyone under the
factual allegations of the petition. The peremptory exception of no cause
of action is designed to test the legal sufficiency of the petition by
determining whether [the] plaintiff is afforded a remedy in law based on
the facts alleged in the pleading. No evidence may be introduced to
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support or controvert the objection that the petition fails to state a cause
of action. The exception is triable on the face of the papers and for the
purposes of determining the issues raised by the exception, the well-
pleaded facts in the petition must be accepted as true. In reviewing a
trial court’s ruling sustaining an exception of no cause of action, the
appellate court and this Court should subject the case to de novo review
because the exception raises a question of law and the trial court’s
decision is based only on the sufficiency of the petition. Simply stated,
a petition should not be dismissed for failure to state a cause of action
unless it appears beyond doubt that the plaintiff can prove no set of facts
in support of any claim which would entitle him to relief.
In this case, the Mayor, Alderman, and Clerk all base their exceptions of no
cause of action on the affirmative defenses of absolute and qualified immunity. Our
brethren on the first circuit discussed these issues in Lambert v. Riverboat Gaming
Enforcement Division, 96-1856, pp. 5-6 (La.App. 1 Cir. 12/29/97), 706 So.2d 172,
175-76, writ denied, 98-297 (La. 3/20/98), 715 So.2d 1221, saying:
Title 42, § 1983 of the United States Code provides, in pertinent
part, as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law....
Recovery under § 1983 requires a plaintiff to allege and prove
two essential elements: (1) that the defendant’s conduct occurred under
color of state law, and (2) that defendant’s conduct deprived plaintiff of
a right, privilege or immunity secured by the Constitution or a law of the
United States. Moresi v. State, Department of Wildlife and Fisheries,
567 So.2d 1081, 1084 (La.1990).
However, when an official performs a function integral to the
judicial process or a traditional legislative function, the official is
absolutely immune from § 1983 liability for acts performed in those
capacities. Moresi, 567 So.2d at 1084.
3
Additionally, a qualified immunity generally applies to most acts
of government officials. Moresi, 567 So.2d at 1084. In Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396
(1982), the United States Supreme Court articulated a new objective
standard with regard to the qualified immunity defense, stating that
government officials performing discretionary functions generally are
shielded from liability for civil damages, unless their conduct violates
clearly established statutory or constitutional rights of which a
reasonable person would have known.
Turning to the pleadings filed herein, we must first determine whether the
plaintiffs have alleged that the defendants were acting under color of state law. The
Mayor, Aldermen, and Clerk are all governmental officials, thus satisfying the first
prong of the test. We next must determine whether the petition alleges that the
defendants denied plaintiffs a right, privilege, or immunity guaranteed by
Constitution or law. Plaintiffs allege that defendants denied Air Supply due process
of law by failing to annex its property and/or failing to authorize connection to the
sewer system. Plaintiffs cite no authority for the proposition that Air Supply is
entitled to annexation of its property or connection to the sewer system.
We conclude that plaintiffs herein have failed to allege sufficient facts to assert
that defendants violated a clearly established right of which a reasonable person
would have known and, therefore, have failed to state a cause of action under Title
42 § 1983.
Moreover, even if we accept plaintiffs’ argument that mere allegation that the
defendants’ actions constitute a denial of due process is sufficient to maintain a cause
of action, we find that the pleadings set forth insufficient facts to survive the
exception of no cause of action founded on the affirmative defenses of absolute
and/or qualified immunity as claimed by the Mayor, Aldermen, and Clerk.
4
Plaintiffs also argue that the trial court erred in finding that the defendants are
also shielded from tort liability by the discretionary acts defense provided by La.R.S.
9:2798.1. Louisiana Revised Statutes 9:2798.1 provides in pertinent part:
B. Liability shall not be imposed on public entities or their officers or
employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when such
acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related
to the legitimate governmental objective for which the
policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal,
fraudulent, malicious, intentional, willful, outrageous,
reckless, or flagrant misconduct.
Plaintiffs allege that the defendants improperly granted Wahlder’s annexation
request due to his influence on them and the community and failed to act on Air
Supply’s request for the same reason. Plaintiffs allege further that in so doing the
defendants intentionally interfered with an alleged contract of sale. However,
plaintiffs only make conclusory allegations of actions constituting a conspiracy to
deny Air Supply due process of law. We find these allegations insufficient to defeat
the discretionary acts defense of the Mayor, Aldermen, and Clerk.
Turning to the remaining defendants, Wahlder, TRC, and Nolan Johnson, we
find that the allegations in the plaintiffs’ petition, while pointing to detrimental
reliance, breach of contract, and interference with contract, and breach of contract
are merely allegations that the defendants worked together to prevent Air Supply from
getting approval for annexation of its land and connection to the sewer system. The
non-governmental defendants responded to these scattershot allegations with
5
exceptions of no cause/no right of action and vagueness. In reviewing the petition,
we conclude that the plaintiffs’ petition alleges various causes of action that are
actually intended to be factual allegations supporting the alleged civil conspiracy by
fraud cause of action. We reach this conclusion because the various allegations lack
requisite supporting claims of privity of contract, duty, contractual relationship, or
tender. With regard to the conspiracy by fraud allegations, like the trial court, we find
the plaintiffs failed to demonstrate the requisite “unity of purpose” among the
governmental and non-governmental defendants required to support a cause of action
for civil conspiracy under § 1983. Accordingly, we find the plaintiffs’ allegations
insufficient to state a cause of action against the defendants.
FAILURE TO ALLOW LEAVE TO AMEND
Plaintiffs contend that the trial court erred in not granting them leave to amend
their petition to state a cause of action. We disagree.
In Eschete v. Hildebrand, 06-18, p. 6 (La.App. 5 Cir. 4/25/06), 930 So.2d 196,
200, writ denied, 06-1291 (La. 9/15/06), 936 So.2d 1269 (footnote omitted), after
finding that the defendants had qualified immunity the court said:
Under La.Code Civ.P. art. 934, when the grounds of the objection
pleaded by the peremptory exception may be removed by amendment of
the petition, the judgment sustaining the exception shall order such
amendment within the delay allowed by the court. If the grounds of the
objection raised through the exception cannot be so removed, the action,
claim, demand, issue, or theory shall be dismissed. The right to amend
a petition is qualified by the restriction that the objection be curable.
Where the amendment would be a vain and useless act, such an
amendment is not required by LSA-C.C.P. art. 934.
Like our brethren in the fifth circuit, we see no need to allow an amendment in this
case where we have found the defendants immune to civil liability.
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With regard to the remaining defendants, we find that the plaintiffs have
already been granted numerous opportunities to amend their petition to state a cause
of action and have failed to do so. Either they are not acting in good faith or they are
incapable of curing the defect. In either case, the trial court did not err in denying
leave to amend plaintiffs’ petitions.
The foregoing being dispositive of plaintiffs’ claims, we pretermit discussion
of the remaining assignments of error.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All costs
of these proceedings are taxed to appellants, Air Supply, Inc. and Raphael Luneau.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.
7
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
09-107
AIR SUPPLY, INC., ET AL.
VERSUS
MICHAEL M. WAHLDER, ET AL.
EZELL, J., dissents.
This case can be distinguished from Craig v. Police Jury Grant Parish, 265
Fed. Appx. 185, 2008 WL 341631 (C.A. 5 (La.)). The members of the governing
body in this case have not taken any action under the color of their position. The fact
that no action in their official capacity gives reason to question the claim of absolute
or qualified immunity.
The other issue raised by the Plaintiff is that all other Defendants in concert
with the mayor and aldermen acted to interfere with the Plaintiffs contract and that
Plaintiff relied on their actions and promises to its detriment. The majority, in finding
that immunity exist, has not looked at the lack of the Plaintiffs ability to discover the
information and actions of the Defendants that would go to the tort action presented
in the petition.
I can find no action taken in this case that is being complained of by the
Plaintiff that warrants any immunity for the alderman and mayor. There certainly is
no immunity granted to those Defendants who are not public officials.
The annexation of the property is of no impact in this matter. The question is,
have the public officials failed to give Plaintiff due process with regard to the
granting of sewer capacity and in violating their already made agreement to provide
sewer capacity.
The exception of no cause of action is triable only on the face of the petition
and well-pleaded facts must be accepted as true. We are a fact pleading state and the
court, if it finds any cause, must allow the matter to go to trial. It is clear from the
petition that to refuse to annex certain property is not the sole cause of action in the
petition.
It is clear that under La.R.S. 2798.1, Plaintiff has setforth a cause in its petition
under this statute. I would remand the matter to the trial court to allow the Plaintiff
to amend and join parties to cure any vagueness issue and would reverse the
exception of no cause of action.
For the above reasons, I must respectfully disagree with the majority.