Heather Roberson v. Town of Pollock

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-332

HEATHER ROBERSON

VERSUS

TOWN OF POLLOCK

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 12950
HONORABLE ALLEN A. KRAKE, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Marc T. Amy, Judges.

Amy, J., dissents and assigns reasons.

AFFIRMED.

Philip G. Hunter
Hunter & Morton
Post Office Box 11710
Alexandria, LA 71315-1710
(318) 487-1997
COUNSEL FOR PLAINTIFF/APPELLEE:
Heather Roberson

Robert L. Kennedy
352 Main Street
Colfax, LA 71417
(318) 627-3255
COUNSEL FOR PLAINTIFF/APPELLEE:
Heather Roberson

Victoria R. Murry
Johnson and Siebeneicher
Post Office Box 648
Alexandria, LA 71309
(318) 484-3911
COUNSEL FOR PLAINTIFF/APPELLEE:
Heather Roberson

Randall B. Keiser
Keiser Law Firm
Post Office Box 12358
Alexandria, LA 71315
(318) 443-6168
COUNSEL FOR DEFENDANT/APPELLANT:
Town of Pollock

COOKS, Judge.

The plaintiff, Heather Roberson, sought certification of a class action for the

purposes of recovering fines paid to the Town of Pollock for traffic violations

occurring on a portion of U.S. Highway 165 subsequently found to not be part of the

Town. The trial court granted the certification and denied several peremptory

exceptions filed by the Town. The Town appeals. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

In December 1995, the Town of Pollock annexed a portion of U.S. Highway

165 into its corporate limits. On November 4, 1998, Heather Roberson received a

traffic citation for failure to stop for a school bus on that portion of Highway 165.

The plaintiff paid the fine of $260.00. Subsequently, the annexation ordinance was

found by this court to have been improperly enacted and was, therefore, null and void

ab initio. See Kennedy v. Town of Georgetown, 99-468 (La.App. 3 Cir. 10/13/99),

746 So.2d 663; Garza v. Town of Pollock, 99-469 (La.App. 3 Cir. 10/13/99), 746

So.2d 665.

On January 13, 1999, the plaintiff filed suit seeking damages for the Town of

Pollock issuing traffic citations to motorists who were traveling on those parts of

Highway 165 that were never properly part of the Town of Pollock. Plaintiff

specifically sought to set aside all convictions issued on the subject highway, and

sought an order requiring that: (1) notice be given to the Louisiana Department of

Public Safety and Corrections that the convictions had been set aside; (2) to refund

the fines paid by all individuals who were improperly issued citations and arrested

under the ordinance from December 4, 1995 until the present; (3) sought legal interest

thereon; and (4) payment of expenses of litigation, including attorney fees and costs

of court. The plaintiff listed the Town of Pollock as the defendant. The plaintiff later

filed a Motion to Certify Case as Class Action.

The Town of Pollock filed exceptions of no cause of action, no right of action,

and improper use of class action proceeding. The Town of Pollock also filed an

alternative exception of non-joinder of a party and an alternative request for

declaratory judgment regarding the “constitutionality of Acts 1997, Number 1304,

Amending LSA-R.S. 33:180.” The plaintiff filed a motion to strike the request for

declaratory judgment, asserting that the issue presented therein was res judicata

pursuant to the Garza ruling.

Following a hearing, the trial court granted the motion to certify as a class

action, and denied the exceptions of no cause of action, no right of action, and non-

joinder of a party. The trial court also granted the plaintiff’s motion to strike the

declaratory judgment as res judicata.

The Town of Pollock appeals, assigning the following as error:

(1) The Trial Court erred in denying the Peremptory Exception of No
Cause of Action, as the relief prayed for in the petition amounts
to an impermissible collateral attack on a criminal proceeding.

(2) The Trial Court erred in holding that the Alternative Request for
Declaratory Judgment of Acts 1997, No. 1304 requested herein is
precluded by res judicata based on Garza v. Pollock.

(3) The Trial Court erred in denying the Peremptory Exception of
Nonjoinder.

(4) The Trial Court erred in certifying this matter as a class action
without a “certification hearing” required by La. C.C.P. art. 592.

(5) The Trial Court erred in denying the Peremptory Exception of
Improper Use of a Class Proceeding, as the elements required for
class certification in La.Code Civ.P. art. 591 were not satisfied.

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ANALYSIS

I. No Cause of Action.

An appellate court considers the trial court’s ruling on an exception of no cause

of action de novo as the question presented is one of law. Ramey v. Decaire, 03-1299

(La. 3/19/04), 869 So.2d 114. In doing so, the court must consider, in the light most

favorable to the plaintiff, whether the petition alleges any valid cause of relief. Id.

All doubts must be resolved in the plaintiff’s favor. Id.

In this assignment of error, the Town of Pollock specifically argues plaintiff’s

petition seeks a reversal of a conviction and is, therefore, an impermissible collateral

attack on a criminal conviction. The trial court found no merit in this assertion, and

stated as follows:

The plaintiff in this case is not attempting to collaterally attack a
criminal conviction, or to set aside a criminal plea to a misdemeanor as
a matter of post-conviction relief. The court believes however, that this
plaintiff is attempting to take the only recourse that is available to her in
such a matter involving an ordinance that has been deemed null and
void. The plaintiff is not attempting to appeal her plea, which was
recognized by the paying of her “fine” of $260.00, which stemmed from
her receiving a “Louisiana Initial Report / Complaint Affidavit” from a
law enforcement officer for the Town of Pollock, but rather is trying to
seek a civil remedy based on the results from the original ruling of the
court. See Garza. The plaintiff alleges that the defendant had no
authority to issue such a writing, and further seeks a reimbursement of
related expenditures and other personal damages.

The court finds that the plaintiff has taken the proper recourse as
to her alleged tort and so be it that defendant’s Peremptory Exception of
No Right of Action is denied.

The Town contends the propriety of the plaintiff’s conviction of the traffic

offense could have been raised at the trial level and on direct review. See La.Code

Crim.P. art. 912.1(C)(1); Uniform Rules - Courts of Appeal, Rule 4-3. Instead, by

paying the fine, The Town argues plaintiff waived the opportunity to raise the type

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of objection to the ordinance that was later considered by the court in the Kennedy

and Garza matters. We disagree.

In Kennedy and Garza this court declared the annexation in question void ab

initio. When an act is declared void ab initio it has no legal effect whatsoever. Smith

v. Lincoln Parish Police Jury, 327 So.2d 641, 644 (La.App. 2 Cir. 1976) (quoting

Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So.2d 244 (La.1941)).

Thus, the Town had no jurisdiction and no authority to issue the citations and collect

any fines. To hold plaintiff has waived her rights by paying a fine to a Town that had

no right to collect it violates the most elementary principle of constitutional law, i.e.,

due process mandates that a person cannot be denied property or life based on acts

in contravention of state or federal law. The Town characterizes plaintiff’s action in

this case as an “impermissible collateral attack on a criminal conviction.” In reality,

the only thing impermissible in this matter was the Town’s action in annexing the

subject portion of the highway into its corporate limits. The trial court correctly

denied the Town’s peremptory exception of No Cause of Action.

II. Res Judicata.

In this assignment of error, the Town contends the trial court erred in its

determination that res judicata prevents the determination of the constitutionality of

Acts 1997, No. 1304. It argues “the parties in Garza and Kennedy are not the same,

and the issue of the Constitutionality of the statute has never been considered.”

In Kennedy, we specifically declined to consider the constitutionality of Acts

1997, No. 1304 because the annexations predated the act. As plaintiff’s cause of

action arises out of the same transaction or occurrence that was at issue in Kennedy

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and Garza, the Town is prohibited from relitigating the issue of the constitutionality

of Acts 1997, No. 1304.

III. Peremptory Exception of Non-Joinder.

The Town argues the plaintiff was required to join the Louisiana Department

of Public Safety as an additional defendant. We find the trial court correctly denied

the defendant’s peremptory exception of non-joinder of a party, stating as follows:

The Town of Pollock is the only body responsible for the issuance
of any “Louisiana Initial Report/Complaint Affidavit” within its alleged
jurisdiction. The adjudication is only done through the Mayor’s Court
for the Town of Pollock.

The defendant claims that Louisiana Department of Public safety
should be compelled to be joined in this action. This court is holding
that such agency for the State of Louisiana is not required to be joined
under the guidelines for compulsory joinder of parties under the
Louisiana Code of Civil Procedure.

The plaintiff has neither sought relief from the State nor has asked
the State to take any action, but rather that the State be duly notified of
any judgment rendered in this case. Accordingly, the State is not a party
to this action.

IV. Certification as Class Action.

The Town argues the trial court erred in certifying the matter as a class action

without a “certification hearing” as required by La.Code Civ.P. art. 592. It also

contends the trial court erred in denying the peremptory exception of Improper Use

of a Class Proceeding because the elements required for class certification in La.Code

Civ.P. art. 591 were not present.

Plaintiff contends a certification hearing is not required on a motion to certify

a class, as long as the opposing party is given the opportunity to attack and argue

against class certification. See Carr v. GAF, Inc., 97-838 (La.App. 1 Cir. 4/8/98), 711

So.2d 802. Further, plaintiff argues the trial court may exercise its discretion and

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proceed without a hearing on the class certification unless it deems that additional

information is necessary. See Cotton v. Gaylord Container, 96-1958, 96-2029, 96-

2049 (La.App. 1 Cir. 3/27/97), 691 So.2d 760.

The Town notes that Carr and Cotton were decided under the pre-amended

version of La.Code Civ.P. art. 592, which at that time read, in its entirety, as follows:

One or more members of a class, who will fairly insure the adequate
representation of all members, may sue or be sued in a class action on
behalf of all members.

However, the Town correctly points out La.Code Civ.P. art. 592 was amended by

Acts, 1997, No. 839, to change the provisions requiring a hearing. Specifically,

subsection (3)(a) provides:

(3)(a) No motion to certify an action as a class action shall be granted
prior to a hearing on the motion. . . .

In further support of its argument the Town cites Vardaman v. Airosol Co., 98-1740

(La. 11/6/98), 722 So.2d 985. In Vardaman, the court stated as follows:

Certain preliminary steps must be taken before a class may be
certified. The party who wishes to have a class certified must make a
motion for class certification. La.Code Civ. Proc. Art. 592. The trial
court must then have a hearing on the issue of whether class certification
is appropriate. Id. In this case, no such hearing was held before the
appellate court ruled on the appropriateness of class certification.
Because the law requires this hearing prior to a decision on the issue of
class certification, the appellate court’s decision to rule on the
appropriateness of class certification was legal error. Thus, the appellate
court’s ruling on the issue of class certification is overruled, and this
case is remanded to the trial court for a hearing on the issue of whether
class certification is appropriate.

Id. at 986-987.

The procedural facts in Vardaman are different from those presented here. In

Vardaman, the court rendered a ruling on certifying a class without the trial court first

having opportunity to conduct a hearing on the appropriateness of the at issue class

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certification. In the present case, there was a hearing on defendant’s Exception of

Improper Use of a Class Proceeding, after which the trial court concluded it was clear

to it that the class of persons who received traffic citations from the Town of Pollock

under the voided act fit the requirements of La.Code Civ.P. art. 591.

The prerequisites for class action lawsuits are found in La.Code Civ.P. art. 591,

which provides:

A. One or more members of a class may sue or be sued as
representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is
impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical
of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect
the interests of the class.

(5) The class is or may be defined objectively in terms of
ascertainable criteria, such that the court may determine the constituency
of the class for purposes of the conclusiveness of any judgment that may
be rendered in the case.

B. An action may be maintained as a class action only if all of the
prerequisites of Paragraph A of this Article are satisfied, and in addition:

(1) The prosecution of separate actions by or against individual
members of the class would create a risk of:

(a) Inconsistent or varying adjudications with respect to
individual members of the class which would establish incompatible
standards of conduct for the party opposing the class, or

(b) Adjudications with respect to individual members of the class
which would as a practical matter be dispositive of the interests of the
other members not parties to the adjudications or substantially impair or
impede their ability to protect their interests; or

(2) The party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate

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final injunctive relief or corresponding declaratory relief with respect to
the class as a whole; or

(3) The court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. The
matters pertinent to these findings include:

(a) The interest of the members of the class in individually
controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the
controversy already commenced by or against members of the class;

(c) The desirability or undesirability of concentrating the litigation
in the particular forum;

(d) The difficulties likely to be encountered in the management of
a class action;

(e) The practical ability of individual class members to pursue
their claims without class certification;

(f) The extent to which the relief plausibly demanded on behalf
of or against the class, including the vindication of such public policies
or legal rights as may be implicated, justifies the costs and burdens of
class litigation; or

(4) The parties to a settlement request certification under
Subparagraph B(3) for purposes of settlement, even though the
requirements of Subparagraph B(3) might not otherwise be met.

C. Certification shall not be for the purpose of adjudicating claims
or defenses dependent for their resolution on proof individual to a
member of the class. However, following certification, the court shall
retain jurisdiction over claims or defenses dependent for their resolution
on proof individual to a member of the class.

Thus, litigants seeking class certification must satisfy the five criteria set forth

in La.Code Civ.P. art. 591(A) and at least one of the three criteria found in La.Code

Civ.P. art. 591(B).

In its written reasons for judgment, the trial court stated:

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After careful analysis, the court finds that this action meets all the
eligibility requirements to be certified as a class action lawsuit as
outlined by Article 591 of the Louisiana Code of Civil Procedure.

This court places emphasis on every plaintiff being allowed to
have his or her day in court. Such a fundamental right is the cornerstone
of our American judicial system, and as such, this court believes that if
each individual was required to bring his own action in this matter, such
individual claim would be too small to support the hiring of counsel,
thus effectively denying individual plaintiffs a remedy. As a matter of
fundamental fairness, this court holds that a class action is superior to
other available methods for a fair and efficient adjudication of this
controversy. Therefore, plaintiff’s Motion to Certify Case as a Class
Action is granted.

Our supreme court recently reaffirmed its holding in McCastle v. Rollins

Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984), and State ex rel.

Guste v. General Motors Corp., 370 So.2d 477 (La.1978), stating, “[A]s we have

made clear before and reiterate today, the mere fact that varying degrees of damages

may result from the same factual transaction and same legal relationship or that class

members must individually prove their right to recover does not preclude class

certification.” Bartlett v. Browning-Ferris Indus. Chem. Servs., Inc., 99-0494

(La.11/12/99), 759 So.2d 755, 756. The present certification suit is premised on the

allegation that fines and/or court costs were collected by a town without jurisdiction

to exercise authority over members of the class. The amounts of the fines for each

member of the class are ascertainable and a class action is the most efficient way to

adjudicate the controversy.

The district court has wide discretion in deciding whether to certify a class and

the decision will not be overturned absent a finding of manifest error or abuse of

discretion. Nab Nat. Resources, L.L.C. v. Caruthers, 30,649 (La.App. 2 Cir. 7/6/98),

714 So.2d 1288; Stoute v. Wagner & Brown, 93-1207 (La.App. 1 Cir. 5/20/94), 637

So.2d 1199. Further, the jurisprudence is settled that courts should err on the side of

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maintaining the class action since the judge may always modify or amend the class

at any time prior to a decision on the merits. La.Code Civ.P. art. 592(3)(c). Clark v.

Trus Joist MacMillian, 02-676 (La.App. 3 Cir. 12/27/02), 836 So.2d 454; Mayho v.

Amoco Pipeline Co., 99-620 (La.App. 5 Cir. 12/15/99), 750 So.2d 278, writ denied,

00-110 (La.3/17/00), 756 So.2d 1143. We find no abuse of discretion on the trial

court’s part in finding the record supports that all of the requirements of La.Code

Civ.P. art. 591 have been met.

DECREE

For the foregoing reasons, the lower court judgment is affirmed. All costs of

this proceeding are assessed to appellant, the Town of Pollock.

AFFIRMED.

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NUMBER 05-332

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

HEATHER ROBERSON

VERSUS

TOWN OF POLLOCK

AMY, J., dissenting.

I respectfully dissent from the majority opinion. In my view, the trial court

erred in failing to sustain the Town of Pollock’s exception of no cause of action as

the plaintiff’s petition constitutes a collateral attack on the underlying criminal

conviction.

Reference to the plaintiff’s petition reveals the following statements:

Plaintiff, along with all other individuals who were improperly
arrested, is therefore entitled to have her conviction set aside,
notification to the Louisiana Department of Public Safety and
Corrections that the conviction has been set aside, and a refund of the
fine paid to the Town of Pollock.

....

WHEREFORE, plaintiff prays:

I. For judgment setting aside all convictions for traffic offenses that
resulted from citations for traffic violations by the law
enforcement personnel of the Town of Pollock along the portion
of Highway 165 improperly annexed into the corporate limits of
the Town of Pollock by Ordinance No. 8-30-95.

II. For judgment ordering that notice be given to the Louisiana
Department of Public Safety and Corrections that the convictions
have been set aside.

III. For judgment against defendant, the Town of Pollock ordering it
to refund the fines paid by all individuals who were improperly
issued citations and arrested under Ordinance 8-30-95 from
December 4, 1995 until the present, together with legal interest
thereon.

IV. For judgment against the defendant, the Town of Pollock for such
damages as are reasonable in the premises, with legal interest
thereon from date of judicial demand until paid.

V. For judgment awarding plaintiff, as representative party,
reasonable expenses of litigation, including attorney’s fees and
costs of court.

Along with her request for general damages and attorney’s fees, the plaintiff

forthrightly asks that her conviction be set aside and that the amount of the fine be

refunded to her. This is a collateral attack on a criminal proceeding in a civil suit.

Such a collateral attack on an underlying criminal proceeding is impermissible. Duke

v. State, Dept. of Public Safety, 424 So.2d 1262 (La.App. 3 Cir. 1982), citing Gardner

v. State, Dept. of Public Safety, 198 So.2d 184 (La.App. 3 Cir. 1967); State v. Free,

321 So.2d 50 (La.App. 3 Cir. 1975), writ denied, 325 So.2d 272 (La.1976). The

United States Supreme Court has noted that, even in 42 U.S.C. § 1983 cases, a

collateral attack on a criminal conviction in a civil proceeding is not permissible. See

Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). Rather, the conviction must

first be invalidated before pursuit of that type of civil remedy is appropriate. Id.

The propriety of the plaintiff’s conviction of the traffic offense could have been

raised at the trial level or on direct review. See La.Code Crim.P. art. 912.1(C)(1);

Uniform Rules - Courts of Appeal, Rule 4-3. Instead, the plaintiff admits that she

paid the fine. Thus, she waived the opportunity to raise the type of objection to the

ordinance that was later considered by the court in the Kennedy and Garza matters.

As I find that this case turns on the cause of action issue and I would reverse

the trial court’s ruling on this point, I do not reach the remaining assignments of error.

For these reasons, I dissent.

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