Natchitoches Parish Police Jury v. Natchitoches Sportsman's Association

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-102

NATCHITOCHES PARISH POLICE JURY

VERSUS

NATCHITOCHES SPORTSMAN'S ASSOCIATION

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 82810- DIV. A
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Van H. Kyzar
District Attorney, Tenth Judicial District Court
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
Counsel for Plaintiff-Appellee:
Natchitoches Parish Police Jury

William Preston Crews, Jr.
Attorney at Law
P. O. Box 226
Natchitoches, LA 71458-0226
(318) 356-8001
Counsel for Defendant-Appellant:
Natchitoches Sportsman’s Association

PICKETT, Judge.

The defendant, the Natchitoches Sportsman’s Association (NSA), appeals the

trial court’s grant of summary judgment in favor of the plaintiff, the Natchitoches

Parish Police Jury (NPPJ), which declared lease agreements between the NSA and the

NPPJ null and void.

STATEMENT OF THE CASE

On June 21, 1989, the NPPJ and the Grits Gresham Shooting Club, Inc.

(GGSC), entered into a ten-year lease agreement whereby the GGSC leased a twenty-

acre tract of land from the NPPJ for the purpose of constructing and running a

shooting range. In June 1992, the NSA, allegedly the successor corporation of the

GGSC, entered into a fifty-year lease with the NPPJ for the same twenty-acre tract.

The term of the lease was extended in order to qualify for certain government grants.

In November 2001, the Natchitoches Shooting Range, the NPPJ, and a “Trailer

Occupant” entered into an agreement concerning utilities for a trailer and the duties

of the occupant of the trailer.

Facing a budget shortfall, the NPPJ filed suit in October 2009 to have these

lease agreements terminated because of violations of the agreement by NSA. After

NSA filed certain exceptions, the NPPJ amended its petition to delete the original

allegations. The amending petition alleged a violation of the statutes governing the

lease of public lands in Chapter 10 of Title 41 of the Revised Statutes, La.R.S.

41:1211, et seq. Specifically, La.R.S. 41:1214 requires that in order for public land

to be leased to a private entity, the lessor must publicly advertise for bids, and La.R.S.

41:1217 limits the lease of public lands to a term of ten years. As a result of these

1

violations, the NPPJ asked for a declaratory judgment that the leases are null and

void.

The NPPJ filed a motion for summary judgment, which was heard on August

10, 2010. The trial court rendered judgment in favor of the NPPJ on August 12,

2010, and declared the lease agreements and utilities agreement null, void, and

without effect. The NSA now appeals that judgment.

ASSIGNMENTS OF ERROR

The NSA asserts five assignments of error:

1. The trial court was manifestly erroneous in punishing the innocent
victim rather than punishing the guilty party who confessed of its crime.

2. The trial court was manifestly erroneous in failing to find that the action
by the plaintiff was untimely.

3. The trial court was manifestly erroneous in failing to apply all law
applicable to the issue.

4. The trial court was manifestly erroneous in failing to apply equitable,
judicial estoppel, or laches.

5. The trial court was manifestly erroneous in failing to interpret the
language, meaning, and intent as expressed in various leases -
agreements so as to minimize the adverse effects to the innocent party
and reward the party who judicially admits wrong doing.

DISCUSSION

An appellate court reviews judgments granting a motion for summary judgment

using a de novo standard of review. Gray v. Am. Nat. Prop. & Cas. Co., 07-1670 (La.

2/26/08), 977 So.2d 839. Where the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to material fact, and that mover is entitled to judgment as

a matter of law,” then summary judgment is appropriate. La.Code Civ.P. art. 966(B).

2

The NSA’s first, fourth, and fifth assignments of error amount to a request for

this court to invoke equitable principles. We are bound to follow the law. Louisiana

Civil Code Article 1 states: “The sources of law are legislation and custom.” In the

rare situation where neither legislation nor custom provides a legal solution,

La.Civ.Code art. 4 requires courts “to proceed according to equity.” In this case,

there is sufficient legislation covering this particular situation, and we cannot ignore

the primary sources of law to invoke equity. These assignments of error lack merit.

Reviewing the case de novo, we find that the trial court did not err in granting

summary judgment. There are no genuine issues of material facts. The leases were

entered into without first being advertised for public bid as required by La.R.S.

41:1214. The NSA has not provided any evidence that the leases are exempt from the

public advertisement and bid requirements.

In its second assignment of error, the NSA claims that the NPPJ’s action to

annul the lease is prescribed. Louisiana Code Civil Procedure Article 2163 allows

a party to raise the peremptory exception of prescription for the first time in the

appellate court. However, the peremptory exception must be raised in a formal

pleading and is not properly raised in oral arguments or by brief. Rapp v. City of New

Orleans, 95-1638 (La.App. 4 Cir. 9/22/96), 681 So.2d 433, writ denied, 96-2925 (La.

1/24/97), 686 So.2d 868; Tucker v. La. Dept. of Rev. and Taxation, 96-2740 (La.App.

1 Cir. 2/20/98), 708 So.2d 782. The NSA has not filed a formal pleading raising the

exception of prescription either in this court or in the trial court. Therefore, we will

not consider this assignment of error.

In its third assignment of error, the NSA argues that the trial court did not

properly consider the provisions of La.R.S. 38:2220.3, which requires a party filing

3

a civil action to annul a contract with a public entity to file notice with the attorney

general. We find that this law is inapplicable in this situation, where the district

attorney for the parish has filed the civil action seeking declaratory relief. Louisiana

Revised Statutes 38:2220 contemplates that the district attorney, as the attorney for

the police jury, has the authority to bring such an action without following the

requirements of La.R.S. 38:2220.1 through 2220.4, which apply only to private

citizens. This assignment of error lacks merit.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to the appellant, the Natchitoches Sportsman’s Association.

AFFIRMED.

4