Phillip Terrell, in His Capacity as District Attorney of Rapides Parish v. Town of Lecompte

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-1004

PHILLIP TERRELL, IN HIS CAPACITY AS
DISTRICT ATTORNEY OF RAPIDES PARISH, ET AL.

VERSUS

TOWN OF LECOMPTE, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 257,839
HONORABLE MONIQUE RAULS, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

REVERSED; RENDERED; REMANDED.

Tiffany N. Sanders
929 Johnston Street
Alexandria, LA 71301
(318) 443-9080
Attorney for Appellant, Town of Lecompte

Thomas O. Wells
P.O. Box 13438
Alexandria, LA 71315
(318) 445-4500
Attorney for Appellees, Otis Payne and Edward Christie

James C. Downs
1254 Dorchester Drive
Alexandria, LA 71303
(318) 448-3439
Attorney for Appellees, Otis Payne and Edward Christie

COOKS, Judge.

PROCEDURAL HISTORY

Phillip Terrell (Terrell), in his official capacity as District Attorney for

Rapides Parish, and Otis Payne and Edward Christie (Plaintiffs) as taxpayers

domiciled in Lecompte, Louisiana filed a declaratory action against the Town of

Lecompte, naming its mayor, all members of its Board of Aldermen, and the town

clerk as defendants (Defendants). Terrell was dismissed from the suit and is no

longer a party to this litigation. Plaintiffs and Defendants filed cross motions for

summary judgment. The trial court denied Defendants’ motion and granted a motion

for summary judgment in favor of Plaintiffs. Defendants filed an application for

supervisory writs with this court which was denied with one judge dissenting. The

writ was denied because the majority held the judgment was not an appealable final

judgment. The Louisiana Supreme Court granted Defendants’ writ application and

remanded the matter to the trial court for a “determination of whether or not this

partial summary judgment is a final judgment.” Terrell v. Town of Lecompte, 18-

1087, p. 1 (La. 09/28/18), 253 So.3d 134, 135. On remand the trial court rendered

judgment designating its ruling as a final judgment for purposes of an appeal.

Defendants appeal the granting of summary judgment in favor of Plaintiffs and the

denial of their motion for summary judgment.

FACTUAL BACKGROUND

In 1989 the citizens of Lecompte approved a tax provision authorizing a one

cent sales tax “to be used for the purpose of constructing, acquiring, improving,

operating and maintaining garbage collection and disposal facilities, fire protection

facilities, and civil defense facilities, including all necessary sites, furnishings,

equipment and vehicles in connection therewith. . . .” In 2017, Plaintiffs filed a

“Petition for Declaratory Judgment, Permanent Injunctive Relief and Other Relief.”

Plaintiffs asserted in their petition that the state law authorizing a State Civil Defense

Agency was repealed in 1993, thus any monies expended after that date by Lecompte

for civil defense were “unauthorized” because “civil defense” no longer exists.

Defendants, however, assert that the Civil Defense Agency Act, found in Louisiana

Revised Statutes Title 29, was replaced by a new act in Title 29 entitled “The

Louisiana Homeland Security and Emergency Assistance and Disaster Act.”

La.R.S. 29:722-23.1

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A. Because of the existing possibility of the occurrence of emergencies and
disasters of unprecedented size and destructiveness resulting from terrorist events,
enemy attack, sabotage, or other hostile action, or from fire, flood, earthquake, or
other natural or manmade causes, and in order to ensure that preparations of this
state will be adequate to deal with such emergencies or disasters, and in order to
detect, prevent, prepare for, investigate, respond to, or recover from these events,
and generally to preserve the lives and property of the people of the state of
Louisiana, it is hereby found and declared to be necessary:

(1) To create and provide for designation of the Governor’s Office of
Homeland Security and Emergency Preparedness as the state
homeland security and emergency preparedness agency and to
authorize the creation of local organizations for emergency
preparedness in the political subdivisions of the state.

(2) To confer upon the governor and upon the parish presidents the
emergency powers provided in this Chapter.

(3) That statewide and local plans for homeland security and emergency
preparedness be prepared and approved without further delay and be
maintained current to the maximum extent possible.

(4) To reduce vulnerability of people and communities of this state to
damage, injury, and loss of life and property resulting from natural
or man-made catastrophes, riots, acts of terrorism, or hostile military
or paramilitary action.

(5) To prepare for prompt and efficient evacuation, rescue, care, and
treatment of persons victimized or threatened by disasters or
emergency.

(6) To provide a setting conducive to the rapid and orderly start of
restoration and rehabilitation of persons and property affected by
emergencies or disasters.

(7) To authorize and provide for cooperation in emergency or disaster
prevention, mitigation, preparedness, response, and recovery.

(8) To authorize and provide for management systems embodied by
coordination of activities relating to emergency or disaster
prevention, mitigation, preparedness, response, and recovery by
agencies and officers of this state, and similar state-local, interstate,
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and foreign activities in which the state and its political subdivisions
may participate.

B. It is further declared to be the purpose of this Chapter and the policy of
the state of Louisiana that all homeland security and emergency preparedness
functions of the state be coordinated to the maximum extent possible with the
comparable functions of the federal government, other states and localities, and
private agencies of every type, to the end that the most effective preparation and
use may be made of the resources and facilities available for dealing with any
emergency or disaster that may occur. . . .

La.R.S. 29:722.

(2) “Disaster” means the result of a natural or man-made event which causes loss
of life, injury, and property damage, including but not limited to natural disasters
such as hurricane, tornado, storm, flood, high winds, and other weather related
events, forest and marsh fires, and man-made disasters, including but not limited to
nuclear power plant incidents, hazardous materials incidents, oil spills, explosion,
civil disturbances, public calamity, acts of terrorism, hostile military action, and
other events related thereto.

(3) “Emergency” means:

(a) The actual or threatened condition which has been or may be
created by a disaster; or

(b)(i) Any natural or man-made event which results in an
interruption in the delivery of utility services to any consumer of
such services and which affects the safety, health, or welfare of a
Louisiana resident; or

(ii) Any instance in which a utility’s property is damaged and such
damage creates a dangerous condition to the public.

(iii) Any national or state emergency, including acts of terrorism or
a congressional authorization or presidential declaration pursuant to
the War Powers Resolution (50 U.S.C. 1541 et seq.).

(4) “Emergency preparedness” means the mitigation of, preparation for,
response to, and the recovery from emergencies or disasters. The term
“emergency preparedness” shall be synonymous with “civil defense”,
“emergency management”, and other related programs of similar name.

(5) “Essential workforce” or “critical workforce” means public safety officials,
disaster response personnel, and other such employees of federal, state, and local
governmental agencies, or contractors of such agencies and specific private sector
employees, possessing important skills and training in emergency mitigation,
preparedness, response, and recovery as designated by the parish homeland security
and emergency preparedness agency or in the absence of such designation by the
parish homeland security and emergency preparedness agency, such designation by
the Governor's Office of Homeland Security and Emergency Preparedness.
Businesses who deem private sector employees essential or critical for mitigation,
preparedness, response, and recovery of private business assets and resources shall
identify such employees and obtain the necessary designation and credentials for
such employees to be classified essential or critical. In addition to identifying
personnel to the parish homeland security and emergency preparedness agency, or
in the absence thereof, to the Governor’s Office of Homeland Security and
Emergency Preparedness, a licensed private security company shall submit a list of
their employees and their assignment to the Louisiana State Board of Private
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ANALYSIS

Appellate courts review summary judgments de novo, using the
same analysis as the trial court in deciding whether summary judgment
is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93–2512
(La.7/5/94), 639 So.2d 730. A motion for summary judgment must be
granted if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue of material fact and that the mover is entitled to
judgment as a matter of law. La.Code Civ.P. art. 966(B). As for the
burden of proof, Article 966(C)(2) provides:

The burden of proof remains with the movant.
However, if the movant will not bear the burden of proof
at trial on the matter that is before the court on the motion
for summary judgment, the movant’s burden on the
motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense,
but rather to point out to the court that there is an absence
of factual support for one or more elements essential to the
adverse party’s claim, action, or defense. Thereafter, if the
adverse party fails to produce factual support sufficient to
establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of
material fact.

DeLaFosse v. Village of Pine Prairie, 08-0693, p. 2 (La.App. 3 Cir. 12/10/08), 998

So.2d 1248, 1250, writ denied, 09-0074 (La. 2/4/09), 999 So.2d 766.

Defendants maintain that the new Louisiana Homeland Security and

Emergency Assistance and Disaster Act, La.R.S. 29:721 et. seq., replaces the former

Civil Defense Act and “envisions municipalities, such as the Town of Lecompte,

exercising ‘civil defense’ or ‘emergency preparedness.’” The trial court held that

Lecompte could not use the tax revenue at issue for payment of “day to day

activities,” of the Lecompte Police Department. Included in this prohibition is fuel

for the police cars.

Defendants appeal asserting four assignments of error:

Security Examiners for any employee that the private security company wants to
be designated and classified as essential or critical workforce.

La.R.S. 29:723 (emphasis added).
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(1) The Trial Court erred when the court read the words “civil
defense” in isolation rather than reading the sales tax
proposition as a whole.

(2) The Trial Court Erred in Holding the Sales Tax
Proposition Did Not Contemplate Funding Expenses for
Day-to-Day Operations.

(3) The Trial Court Erred When It Failed to Exclude
Plaintiffs’ Exhibits C and Exhibits E-K which were not
attached to Plaintiffs’ Motion for Summary Judgment
when it was filed, and these exhibits were incompetent
summary judgment evidence.

(4) The Trial Court Erred When It Failed to Exclude
Incompetent Summary Judgment Evidence attached to the
Plaintiffs’ Opposition.

Appellate courts review judgments de novo and are not obliged to accord any

deference to the trial court’s findings. Plaintiffs’ action seeking a declaratory

judgment presents a single issue of law for determination. The single issue we must

decide is whether Lecompte may continue to spend the tax revenue at issue in any

manner to benefit the Lecompte Police Department.

Louisiana Homeland Security and Emergency Assistance and Disaster Act

expressly states: “The term ‘emergency preparedness’ shall be synonymous with

‘civil defense’, ‘emergency management’, and other related programs of

similar name.” La.R.S. 29:723(4) (emphasis added). Thus, it is a matter of simply

applying the express terms of the statute to conclude that the new concept of

“emergency preparedness” replaces the former concept of “civil defense.” The

newer legislation also expressly includes under its ambit local police departments

such as the Town of Lecompte’s Police Department. See La.R.S. 29:723(5). It also

expressly provides:

Because of the existing possibility of the occurrence of
emergencies and disasters of unprecedented size and destructiveness
resulting from terrorist events, enemy attack, sabotage, or other hostile
action, or from fire, flood, earthquake, or other natural or manmade
causes, and in order to ensure that preparations of this state will be

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adequate to deal with such emergencies or disasters, and in order to
detect, prevent, prepare for, investigate, respond to, or recover from
these events, and generally to preserve the lives and property of the
people of the state of Louisiana, it is hereby found and declared to be
necessary:

To create and provide for designation of the Governor’s Office
of Homeland Security and Emergency Preparedness as the state
homeland security and emergency preparedness agency and to
authorize the creation of local organizations for emergency
preparedness in the political subdivisions of the state.

La.R.S. 29:722(A)(1) (emphasis added).

This legislation authorizes local political subdivisions, such as Lecompte, to

provide for emergency preparedness just as they provided for civil defense prior to

the change in legislation and terminology. Important to the determination here, the

statute also sets forth the idea of preparedness as the lynchpin of the State and local

government’s emergency preparedness and disaster response responsibilities. It

speaks in terms of “preparation,” detection, and prevention as well as response and

recovery. The trial court here considered only the goals of response and recovery,

i.e., the after-the-fact treatment of disasters and emergencies and the attendant costs.

This notion is wholly unsupportable under a clear reading of the governing

legislation and defies common sense. For emergency responders, such as local

police and fire departments, to be ready and able (prepared and equipped) to address

emergent situations or disasters unexpectedly impacting the general public they must

make sufficient preparation beforehand. They cannot wait until disaster strikes to

decide what they needed to do beforehand to address such disasters or emergent

events. When disaster strikes it is far too late to prepare. The legislation

contemplates immediate response and our citizens rightfully expect no less. It is

nonsensical to suggest that the prior legislation or the current legislation allow only

for revenue to be provided emergency responders after disaster strikes.

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We find the trial court erred as a matter of law incorrectly interpreting and

applying La.R.S. 29:722-23, and we reverse the trial court’s granting summary

judgment in favor of Plaintiffs. We further find Defendants are entitled to summary

judgment as a matter of law.

We additionally find the trial court erred in denying Defendants’ motion to

exclude Plaintiffs’ Exhibits C and Exhibits E-K. Defendants timely objected to these

exhibits and we find the trial court, and this court on de novo review, cannot consider

these exhibits. We note, however, that even if these exhibits were admissible, they

would not change the result we reach as a matter of law. The current version of

La.Code Civ.P. art. 966(A)(4), effective January 1, 2016, provides in pertinent part:

The only documents that may be filed in support of or in
opposition to the motion are pleadings, memoranda, affidavits,
depositions, answers to interrogatories, certified medical records,
written stipulations, and admissions. The court may permit documents
to be filed in any electronically stored format authorized by court rules
or approved by the clerk of the court.

Official Comment (c) of 2015 to La.Code Civ.P. art 966 states:

Subparagraph (A)(4), which is new, contains the exclusive list of
documents that may be filed in support of or in opposition to a motion
for summary judgment. This Subparagraph intentionally does not allow
the filing of documents that are not included in the exclusive list, such
as photographs, pictures, video images, or contracts, unless they are
properly authenticated by an affidavit or deposition to which they are
attached. Although a memorandum is not a pleading or evidence, it is a
proper document that can be used by a party to advance his arguments
in support of or in opposition to the motion. See, e.g., Meaux v. Galtier,
972 So.2d 1137 (La. 2008). An opinion of the medical review panel
cannot be filed in support of or in opposition to the motion unless it is
properly authenticated and attached to the affidavit or deposition.
Article 1458 requires that interrogatories be answered under oath, and
only answers that are made under oath may be filed in support of or in
opposition to a motion for summary judgment. This Subparagraph
continues the rule that no oral testimony shall be allowed at a hearing
on a motion for summary judgment, even if all parties agree. See Mapp
Construction, LLC v. Amerisure Mutual Insurance Co., 143 So.3d 520
(La. App. 1st Cir. 2014). All supporting documents may be filed
electronically if provided for by local rules or the clerk of court.

Further, La.Code Civ.P. art 967(A) and (B) provides:

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(A)Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. The
supporting and opposing affidavits of experts may set forth
such experts’ opinions on the facts as would be admissible in
evidence under Louisiana Code of Evidence Article 702, and
shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn or certified copies
of all papers or parts thereof referred to in an affidavit shall
be attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or by further affidavits.

(B) When a motion for summary judgment is made and supported
as provided above, an adverse party may not rest on the mere
allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided above, must set forth
specific facts showing that there is a genuine issue for trial. If
he does not so respond, summary judgment, if appropriate,
shall be rendered against him.

The trial court, and this court on de novo review, may only consider evidence

that is admissible under the express provisions of La.Code Civ.P. arts. 966-67. The

exhibits were not attached to the motion for summary judgment. They are not

certified or authenticated in any manner and are not attached to any sworn deposition

or affidavit. Therefore, they may not be considered. Further, Louisiana Code of

Civil Procedure Article 1458(A) (emphasis added) requires that:

Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the reasons
for objection shall be stated in lieu of an answer. The written answer or
reasons for objection to each interrogatory shall immediately follow a
restatement of the interrogatory to which the answer or objection is
responding. The answers are to be signed by the person making them.
When interrogatories are served on a specific party, that party shall
verify he has read and confirmed the answers and objections. The party
upon whom the interrogatories have been served shall serve a copy of
the answers, and objections if any, within thirty days after the service
of the interrogatories, except as set forth in Paragraph B of this Article.
The court may allow a shorter or longer time. The party submitting the
interrogatories may move for an order under Article 1469 with respect
to any objection to or other failure to answer an interrogatory.

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Both sets of interrogatories are signed by the attorneys representing their

respective parties. In neither instance has either the attorney or the party answering

signed the document under oath. Louisiana Code of Civil Procedure Article

966(A)(4) authorizes “answers to interrogatories” as one of the documents that “may

be filed in support of or in opposition to the motion[.]” Id. As noted above,

Comment (c) to Article 966(A)(4) (emphasis added) states: “Article 1458 requires

that interrogatories be answered under oath, and only answers that are made

under oath may be filed in support of or in opposition to a motion for summary

judgment.” This indicates that only when interrogatories are answered under oath

as required may they be used in support of or in opposition to a motion for summary

judgment.

Louisiana Code of Civil Procedure articles 966 and 967 do not
permit a party to utilize unsworn and unverified documents
as summary judgment evidence. Thus, a document that is not an
affidavit or sworn to in any way, or is not certified or attached to an
affidavit, has no evidentiary value on a motion
for summary judgment. See Boland v. West Feliciana Parish Police
Jury, 2003-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 813 writ
denied, 2004-2286 (La. 11/24/04), 888 So.2d 231. Therefore, in
meeting the burden of proof, unsworn or unverified documents, such as
letters or reports, annexed to motions for summary judgment are not
self-proving and will not be considered; attaching such documents to a
motion for summary judgment does not transform such documents into
competent summary judgment evidence. Williams v. Memorial
Medical Center, 2003–1806 (La. App. 4th Cir. 3/17/04), 870 So.2d
1044, 1053, writ denied, 2004-0963 (La. 6/4/04), 876 So.2d 93.

Nettle v. Nettle, 15-1875, 15-1876, pp. 4-5, (La.App. 1 Cir. 9/16/16), 212 So.3d

1180, 1183, writ denied, 16-1846 (La. 12/16/16), 212 So.3d 1170. See also, King v.

Pontchartrain Mortg. Co., 13-633 (La.App. 5 Cir. 1/31/14), 134 So.3d 19, writ

denied, 14-430 (La. 4/11/14), 138 So.3d 610, and cases cited therein. See also,

Board of Ethics Matter of Monsour, 16-1159 (La. App. 1 Cir. 6/21/17), 233 So.3d

625, writ granted, 17-1274 (La. 12/5/17), 231 So.3d 623, affirmed, 17-1274 (La.

5/1/18), 249 So.3d 808.

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Because both parties’ Answers to Interrogatories were not made under oath,

and there is no attestation made before a notary public that these documents were

answered under oath, they are not competent summary judgment evidence.

Louisiana Code of Civil Procedure Article 967(A) and (B) require affidavits in

support of or in opposition to a motion for summary judgment be made under oath

and all documents be verified or certified by oath or attached to an affidavit. That

article further allows an affidavit to be “supplemented or opposed by depositions,

answers to interrogatories, or by further affidavits.” The Code requires that all three

of these means by which an affidavit may be supplemented must be made under

oath. It therefore stands to reason that only answers to interrogatories made under

oath may be used in support of or in opposition to a motion for summary judgment.

Thus, these unsworn documents are not competent evidence.

For the reasons stated we hereby grant Defendants’ cross motion for summary

judgment and herewith render judgment in favor of Defendants declaring that the

tax revenue generated through Town of Lecompte Local Ordinance No. 1137 may

properly be used for expenses in the Lecompte Police Department that directly relate

to preparation and response to the natural disasters and other emergencies set forth

in La.R.S. 29:722-23. We hasten to add that not all costs or expenses of the

Lecompte Police Department fall within the statutory authorization. For example,

hiring bonuses, pay raises, employee benefits and the like would not be directly

related to expenditures for emergency preparedness. We remand the matter to the

trial court for further proceedings consistent with this ruling.

REVERSED; RENDERED; REMANDED.

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