Posted by: Patricia Salkin | February 27, 2020

LA Appeals Court Finds Plaintiff Failed to State a Cause of Action By Failing to Identify the Specific Grounds of Illegality of Board’s Decision

This post was authored by Matthew Loescher, Esq.

In this case, the City of New Orleans appealed from the February 28, 2019 judgment of the district court, which denied several exceptions filed by the City and granted a preliminary injunction in favor of plaintiff Suzanne Wimsatt. The preliminary injunction prohibited the City from enforcing a May 9, 2018 administrative judgment from the Department of Safety and Permits, which imposed fines on Wimsatt for violating a city zoning ordinance relative to excessive paving in her front yard and ordered her to remove the excessive paving.

On appeal, the City contended that Wimsatt was not entitled to collaterally attack the administrative judgment via injunction after she failed to appeal the administrative judgment. Pursuant to the City Code, “Any person determined by the hearing officer to be liable for a code violation may appeal the determination to the civil district court for the parish. Such appeal shall be instituted by filing, within 30 calendar days of the mailing of the hearing officer’s order, a petition with the clerk of the civil district court along with payment of such costs as may be required by the clerk of court.”

In the second petition, Wimsatt merely claimed that her appeal was “unsuccessful” and that enforcement of the underlying administrative judgment would cause her irreparable harm. However, Wimsatt failed to allege that the BZA’s decision was illegal and did not identify any specific grounds of the “illegality.” Accordingly, the court held that Wimsatt’s second petition failed to state a cause of action, and reversed the district court’s ruling denying the City’s exception of no cause of action. The court then remanded the matter to the trial court to permit Wimsatt to amend her petition.

Wimsat v City of New Orleans, 2019 WL 6999143 (LA App. 12/20/2019)

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