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unpublished opinion of Plaquemines Parish Government v. W. Keith Hinkley, et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

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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.

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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,
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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.

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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.

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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

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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:

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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).

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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

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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.

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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

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