Christopher Lehman v. Henry Guinn, Kevin D. Millican, Stephen Vanhook,bobby Vasseur, and City of Jennings

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-248

CHRISTOPHER LEHMAN

VERSUS

HENRY GUINN, KEVIN D. MILLICAN,
STEPHEN VANHOOK, BOBBY VASSEUR, AND
CITY OF JENNINGS

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-290-20
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

AFFIRMED.

B. Lance Person
NeunerPate
P. O. Box 52828
Lafayette, LA 70505-2828
(337) 237-7000
COUNSEL FOR DEFENDANTS/APPELLEES:
City of Jennings
Henry Guinn
Kevin D. Millican
Stephen Vanhook
Bobby Vasseur

Pierce A. Rapin
Sudduth & Associates, LLC
1109 Pithon St.
Lake Charles, LA 70601
(337) 480-0101
COUNSEL FOR PLAINTIFF/APPELLANT:
Christopher Lehman

James Edward Sudduth, III
Sudduth & Associates, LLC
1109 Pithon Street
Lake Charles, La 70601
(337) 480-0101
COUNSEL FOR PLAINTIFF/APPELLANT:
Christopher Lehman

WILSON, Judge.

Plaintiff, Christopher Lehman, appeals the judgment of the district

court granting the exceptions of unauthorized use of summary proceedings and no

cause of action filed by the defendants, and dismissing his petition for a writ of

mandamus compelling the city of Jennings and its officials to take zoning and

building enforcement actions against neighboring property owners. For the

following reasons, we affirm the district court’s judgment.

I.

ISSUES

We must decide:

(1) whether the district court failed to apply the correct
standard for determining the ministerial nature of
the ordinances of which Mr. Lehman seeks
mandamus enforcement;

(2) whether the district court erred in its interpretation
of certain code ordinances, as well as La.R.S.
33:4728, insofar as its finding that the statute is not
ministerial and affords municipalities discretion to
enforce any and all zoning laws;

(3) whether the district court erred in granting the
defendants’ exception of unauthorized use of
summary proceeding; and

(4) whether the district court erred in granting the
defendants’ exception of no cause of action.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Lehman is a long-term resident of the City of Jennings. He owns

several properties, including his home at 1010 Isabelle Street, near the intersection

of Isabelle Street and Tizeno Alley (the “Neighborhood”), which he asserts has a

predominantly black demographic. In 2016, Mr. Lehman filed an employment

lawsuit against the City of Jennings and a city employee primarily asserting an

employment discrimination claim against the City.1 The case was settled and

dismissed in January 2019.

On June 11, 2020, Mr. Lehman filed the instant petition for writ of

mandamus and named as defendants the City of Jennings, City Fire Chief Bobby

Vasseur, Mayor Henry Guinn, City Council President Steven Vanhook, and City

Attorney Kevin D. Millican (collectively, the “City”). Mr. Lehman asserted that

several properties in the Neighborhood, including the Miller property located at

1915 Isabelle Street, were out of compliance with zoning and building ordinances

which were adversely affecting his property values. Mr. Lehman contended that

despite his numerous complaints about the properties, the City had refused to

enforce ordinance compliance and remedy the violations due to personal animus

resulting from his employment suit against the City, as well as his status as a black

man.

Mr. Lehman alleged that the subject ordinances and related

provisions, as found in the City Charter and City of Jennings Code of Ordinances

(“City Code”), are ministerial in nature, and their enforcement is compulsory by

the mandate of the Charter and Code. The petition requested a writ of mandamus

directing the City to demolish the structure at 1915 Isabelle Street and rectify the

blighted conditions and additional violations of the City Code.

In response, on August 10, 2020, the City filed exceptions of

unauthorized use of summary proceedings and no cause of action. The City argued

that under Louisiana law, the enforcement of zoning and building ordinances is

discretionary and mandamus cannot be used to compel discretionary acts; because

1
Case number 2:16-00783, USDC W.D. La.

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zoning and building enforcement decisions are discretionary, the City is entitled to

discretionary immunity; and mandamus should not be issued because Mr. Lehman

has other relief available.

The exceptions were heard on December 8, 2020. The district court

found that the statute Mr. Lehman sought to command the city to enforce, La.R.S.

33:4728, is discretionary, and because writs of mandamus are for ministerial

purposes, Mr. Lehman’s petition was an unauthorized use of summary

proceedings.

On December 16, 2020, the district court issued a judgment granting

the exceptions of unauthorized use of summary proceedings and no cause of action

and dismissed Mr. Lehman’s petition for writ of mandamus with prejudice. Mr.

Lehman appeals the judgment.

III.

STANDARD OF REVIEW

Mr. Lehman seeks review of the district court’s grant of the City’s

exceptions dismissing his petition for mandamus relief. “The exception of

unauthorized use of summary proceeding is only designed to test whether an action

should proceed in a summary manner rather than by ordinary proceeding.” Atocha

St. Charles, LLC v. Terpsichore Properties, LLC, 19-776, p. 4 (La.App. 4 Cir.

4/8/20), 294 So.3d 1082, 1085. Thus, whether the trial court erred in granting the

exception raises a question of law, which is subject to a de novo standard of

review. Goulas v. B & B Oilfield Servs., Inc., 10-934 (La.App. 3 Cir. 8/10/11), 69

So.3d 750, writ denied, 11-1951 (La. 11/14/11), 75 So.3d 945. Similarly, a district

court’s grant of the peremptory exception of no cause of action is reviewed de

novo. Davidson v. Sanders, 18-308 (La.App. 3 Cir. 12/6/18), 261 So.3d 889.

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Moreover, the district court’s grant of these exceptions rested on its interpretation

of the relevant statutes and ordinances which are questions of law and subject to de

novo review. Hartman v. St. Bernard Par. Fire Dep’t & Fara, 20-693 (La.

3/24/21), 315 So.3d 823.

IV.

LAW AND DISCUSSION

STATUTORY INTERPRETATION

In his first two assignments of error, Mr. Lehman contends that the

district court erred in determining that La.R.S. 33:4728 and the cited City Code

provisions were discretionary in nature and not ministerial. Louisiana Code of

Civil Procedure Article 3863 provides “[a] writ of mandamus may be directed to a

public officer to compel the performance of a ministerial duty required by law, or

to a former officer or his heirs to compel the delivery of the papers and effects of

the office to his successor.” “A ministerial duty is a simple, definite duty, arising

under conditions admitted or proved to exist, and imposed by law.” Hoag v. State,

04-857, p. 7 (La. 12/1/04), 889 So.2d 1019, 1024. Moreover, the duty “is one in

which nothing is left to discretion.” Id. at 1023. In statutory interpretation, the

word “shall” is mandatory, while “may” is permissive.” La.R.S. 1:3.

Louisiana Revised Statutes 33:4728, entitled “Enforcement of

building and zoning regulations; penalty for violations,” provides:

In case any building or structure is erected,
structurally altered, or maintained, or any building,
structure or land is used in violation of R.S. 33:4721
through R.S. 33:4729 or of any ordinance or other
regulation made under authority conferred thereby, the
proper local authorities of the municipality, in addition to
other remedies, may institute any appropriate action or
proceedings to prevent such unlawful erection, structural
alteration, maintenance, or use, to restrain, correct, or

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abate such violation, to prevent the occupancy of the
building, structure, or land, or to prevent any illegal act,
conduct, business, or use in or about such premises. The
regulations shall be enforced by the city architect or other
officer authorized to issue building permits, who is
empowered to cause any building, structure, place or
premises to be inspected and examined, to order in
writing the remedying of any condition found to exist
therein in violation of any provision of the regulations
made under authority of R.S. 33:4721 through R.S.
33:4729. The owner or general agent of a building or
premises where a violation of any regulation has been
committed or exists, or the lessee or tenant of an entire
building or entire premises where the violation has been
committed or exists, or the owner, general agent, lessee
or tenant of any part of the building or premises in which
the violation has been committed or exists, or the general
agent, architect, builder, contractor, or any other person
who commits, takes part in, or who assists in any
violation or who maintains any building or premises in
which any violation exists shall be fined not less than ten
dollars and not more than twenty-five dollars or be
imprisoned for not more than thirty days for each day
that the violation continues.
The statute states that authorities “may” institute any appropriate

action or proceeding to enforce its building code. Mr. Lehman suggests that this

permissive “may” only grants the City discretion to initiate a legal action or

proceeding, and not enforcement in general. We disagree. The statute notes that

“in addition to other remedies,” authorities “may institute any appropriate action or

proceeding.” Id. It is clear from the text of the statute, that it fails to include any

mandatory duty in terms of enforcement. The fact that authorities are authorized to

use “any appropriate action or proceeding,” or any other unnamed remedy

illustrates that authorities are granted discretion in deciding how best to enforce

their building provisions.

Mr. Lehman points out that the statute states “[t]he regulations shall

be enforced by the city architect or other officer authorized to issue building

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permits [,]” and this makes the statute mandatory. Again, we disagree. After

reading the entirety of the provision, this portion of the text refers to who must

enforce the regulations, but as previously stated it does not make mandatory any

particular method of enforcement, thereby making the enforcement discretionary.

The end of the statute goes on to detail penalties to be imposed on

building owners found to be in violation. While this section uses mandatory

language, this penalty provision does not mandate enforcement by proper

authorities, but details penalties to be imposed on property owners after the

authorities have decided a particular course of enforcement.

The only case Mr. Lehman cites concerning the discretionary nature

of La.R.S. 33:4728 is Busalacchi v. Bd. of Zoning Adjustments, 535 So.2d 481

(La.App. 4 Cir. 1988). In that case, the court held that the “relator’s right to seek a

writ of mandamus against the proper authorities of St. Bernard Parish to enforce

the regulations by correcting the violation in question is reserved to him.” Id. at

482. This case does not include any analysis on the discretionary or mandatory

nature of La.R.S. 33:4728, has not been cited by any other appellate courts, and

conflicts with later rulings in the same circuit. The court has since stated, “we may

not compel the enforcement of the City’s zoning laws because enforcement is not a

ministerial duty but a discretionary practice.” Clothesline Laundromat, Inc. v. City

of New Orleans ex rel. May, 11-1578, p. 2 (La.App. 4 Cir. 8/1/12), 98 So.3d 901,

902 (citing Wilkinson v. LaFranz, 574 So.2d 403, 405 (La.App. 4 Cir.1991).

After reviewing the statute, we cannot say that the district court erred

in finding La.R.S. 33:4728 is discretionary and therefore not ministerial.

Mr. Lehman is correct that although La.R.S. 33:4728 is discretionary,

it does not overrule the mandatory nature of City Code ordinances pertaining to

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zoning and building enforcement. However, Mr. Lehman fails to reference any

City Code ordinances that place a mandatory duty to act on any of the parties

named as defendants. Mr. Lehman cites Jennings Code Appendix A, Section

3.101 which provides, “[t]his ordinance shall be enforced by an inspector

appointed by the mayor and city council[.]” The ordinance then details

requirements for building permits and occupancy certificates. Similar to La.R.S.

33:4728, “shall be enforced by” determines who is allowed to enforce the

ordinance, but does not make any act of enforcement mandatory.

Likewise, Mr. Lehman cites to Appendix A, Section 2.303 and

Section 6.204 which use mandatory language to spell out building requirements

but does not address enforcement. He also cites to Article III, Section 3 of the

Jennings Charter which provides that the mayor “shall” serve as the executive

officer of the city and is invested with full executive and administrative authority.

This however, is not a mandate for the mayor to enforce zoning and building

ordinances, but rather provides the mayor’s authority to act on behalf of the City.

Mr. Lehman further cites City Code Article IV, Section 4-14 and

asserts that “the City Inspector is mandated to investigate and enforce the City’s

zoning and building safety ordinances, other ordinances, and other property

maintenance ordinances, including those which are in the City’s purview.” The

actual text reads, “[t]he fire chief shall also function as city inspector and shall

carry out such duties as are directed by the mayor[,]” thus the only mandatory

portion of the provision refers to actions directed by the mayor, none of which are

discussed by Mr. Lehman.

Mr. Lehman also points to the nuisance abatement procedures of

Chapter 20, Section 20-197 of the City Code, and asserts the City has taken no

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meaningful action to initiate any such abatement procedures. The section provides

that when a nuisance, specifically junked vehicles, exists “the chief of police,

building inspector, or director of public works, or their duly authorized agents,

shall order the owner of the premises. . . to abate or remove same.” If the owner

“fails or refuses to remove the junked motor vehicle after the ten-day period. . . the

chief of police or his duly authorized agents shall issue a misdemeanor

summons. . . remove and dispose of the junked motor vehicle[.]”

The language in this provision does include a series of mandates,

however, those mandates are directed to the chief of police who is not a party to

this action. Louisiana Code of Civil Procedure Article 3863 provides “[a] writ of

mandamus may be directed to a public officer” thus, only the specific officers

charged with the duty may be compelled by mandamus. State ex rel. Fatter v. City

of New Orleans, 209 So.2d 141 (La.App. 4 Cir. 1968). Since these mandates are

specifically to the chief of police, a nonparty, it does not constitute a mandate on

the City in this case.

After considering the City Code ordinances included by Mr. Lehman,

we find that he failed to include any ordinances that were ministerial and not

discretionary. As such, we find no error in the district court’s interpretation of the

referenced statute and ordinances. Mr. Lehman’s first two assignments of error

lack merit.

UNAUTHORIZED SUMMARY PROCEEDING

In his next assignment of error, Mr. Lehman asserts that the district

court erred in granting the City’s exception of unauthorized use of summary

proceeding. Louisiana Code of Civil Procedure Article 2592(6) provides that

mandamus is among the list of exclusive matters which may make use of summary

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proceedings. “Mandamus is a writ directing a public officer, a corporation or an

officer thereof, or a limited liability company or a member or manager thereof, to

perform any of the duties set forth in Articles 3863 and 3864.” La.Code Civ.P. art

3861. “A writ of mandamus may be directed to a public officer to compel the

performance of a ministerial duty required by law, or to a former officer or his

heirs to compel the delivery of the papers and effects of the office to his

successor.” La.Code Civ.P. art 3863.

We have previously noted that a ministerial duty is a simple, definite

duty imposed by law. As discussed above, Mr. Lehman fails to cite to any statute

or ordinance that compels the performance of a ministerial duty by the City. “If a

public officer is vested with any element of discretion, mandamus will not lie.”

Hoag, 889 So.2d at 1024. Despite a lack of a ministerial duty, mandamus may still

be proper under certain circumstances.

In Torrance v. City of Shreveport, 231 La. 840, 93
So.2d 187 (1957), the supreme court addressed this
court’s ability to correct an arbitrary and capricious act
through mandamus. The supreme court stated:

While it is the general rule that mandamus
may be invoked only to coerce performance
of duties that are purely ministerial in
nature, it is well settled in this state as well
as in other jurisdictions that the writ may
also be employed to reach and correct an
arbitrary or capricious abuse of discretion by
public boards or officials.

Torrance, 93 So.2d at 189.

Hewitt v. Lafayette Mun. Fire & Police Civil Serv. Bd., 13-1429, p. 15 (La.App. 3

Cir. 6/4/14), 139 So.3d 1213, 1223-24. “‘Arbitrary or capricious’ means the lack

of a rational basis for the action taken.” Shields v. City of Shreveport, 579 So.2d

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961, 964 (La.1991) (quoting Bicknell v. United States, 422 F.2d 1055 (5th

Cir.1970)).

Mr. Lehman contends that the arbitrary and capricious exception applies to

the instant case. He avers that the City’s failure to address his enforcement

complaints is a denial of equal protection of the laws and constitutes a form of

illegal exercise of authority falling within the definition of “arbitrary and

capricious.”

Mr. Lehman points to several cases that grant writs of mandamus under this

exception. However, in each of those cases, mandamus was granted after a

showing of arbitrary and capricious action against the plaintiff. Mr. Lehman is not

complaining of any action taken against him or his property, but instead complains

of inaction against third parties. During the hearing on the exceptions, the district

court noted that “ you’re asking for arbitrary and capricious actions against a third

party. . . they’re not arbitrary and capricious to you[.]” As such, the district court

determined that Mr. Lehman could not sue the City and force them to act against

others. We agree with the district court’s reasoning. Mr. Lehman has not pointed

to any action or inaction that was arbitrarily and capriciously done against him.

Therefore, we hold that Mr. Lehman was not entitled to a writ of mandamus under

the exception.

Moreover, “[m]andamus, codified in La.Code Civ. [P]. art. 3862, et

seq., is an extraordinary remedy, to be applied where ordinary means fail to afford

adequate relief.” Hoag, 889 So.2d at 1023. Specifically, La.Code Civ.P. art 3862

provides mandamus may be issued where the law provides no relief by ordinary

means or the delay involved in such ordinary means may cause injustice. Mr.

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Lehman asserts that he does not have adequate relief by ordinary means. We

disagree.

Mr. Lehman currently has a federal suit against the City which makes

almost identical factual allegations and seeks damages for alleged civil rights

violations and diminution of property values along with injunctive relief

remedying or rectifying the blighted conditions and ordinance violations.2

Additionally, the courts have recognized the right of a neighboring landowner to

sue for enforcement of zoning ordinances. Wright v. DeFatta, 244 La. 251, 152

So.2d 10 (1963). Thus, Mr. Lehman could additionally bring ordinary injunctive

actions against the owners of the complained of properties.

Mr. Lehman asserts that because there are questions surrounding the

proper ownership of the Miller property, and the parish or city has acquired

ownership of several of the other properties, that somehow prevents him from

obtaining ordinary relief. As to the Miller property, Mr. Lehman can simply join

both possible owners to the action, and the city or parish can be sued in their

capacity as property owners.

Mandamus “is not an appropriate remedy where the party seeking it

has an adequate remedy by ordinary means. State v. Police Jury of Rapides

Parish, 131 So.2d 623 (La.App. 3 Cir. 1961). Ordinarily, one must first exhaust

other available remedies before seeking mandamus.” Barney’s Family Mkt., Inc. v.

Avoyelles Par. Police Jury, 452 So.2d 822, 826 (La.App. 3 Cir. 1984). For the

reasons presented above, we find that the district court did not err in granting the

exception of unauthorized use of summary proceeding.

2
Lehman v. Guinn, et al, 20-cv-00736, USDC W.D. La.

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NO CAUSE OF ACTION

In his last assignment of error, Mr. Lehman asserts that the district

court erred in granting the exception of no cause of action. The supreme court

addressed this issue in Hoag, 899 So.2d at 1025, explaining that:

The function of the peremptory exception of no cause of
action is to question whether the law extends a remedy
against the defendant under the factual allegations of the
petition. Cleco Corp. v. Johnson, 2001-0175, p. 3
(La.9/18/01), 795 So.2d 302, 304. The peremptory
exception of no cause of action is designed to test the
legal sufficiency of the petition by determining whether
the plaintiff is afforded a remedy in law based on the
facts alleged in the pleading. Fink v. Bryant, 2001-0987,
p. 3 (La.11/28/01), 801 So.2d 346, 348.

The court found that the relief requested by the plaintiffs in their petition for

mandamus was within the discretion of the legislature, and since the mandamus

they sought was inappropriate, the district court held “plaintiffs have failed to state

a cause of action for which relief may be granted against the defendants in this

matter and their petition for mandamus is hereby dismissed.” Id. Similarly, Mr.

Lehman’s petition for mandamus seeks destruction of a structure and enforcement

of zoning ordinances, yet he failed to prove that such enforcement constituted a

ministerial duty or was otherwise entitled to mandamus. Consequently, we find

that Mr. Lehman failed to state a cause of action for which relief could be granted

against the City. The district court did not err in granting the exception of no cause

of action.

V.

CONCLUSION

For the foregoing reasons, we find that the district court did not err in

its interpretation of the relevant statute and ordinances and was correct in granting

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the exceptions of unauthorized use of summary proceeding and no cause of action

filed by the City. Mr. Lehman’s petition for mandamus was properly dismissed.

Accordingly, we affirm the ruling of the district court granting the exceptions and

dismissing the action. Costs of this appeal are assessed to the appellant,

Christopher Lehman.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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