The Council of the City of New Orleans v. Edward Wisner Donation, the Honorable Mayor Latoya Cantrell, in Her Official Capacity and as Trustee, Michael Peneguy, Senator Edwin Murray, Major Chris Thornhill and Patrick Norton

THE COUNCIL OF THE CITY * NO. 2022-CA-0790 OF NEW ORLEANS * COURT OF APPEAL VERSUS * FOURTH CIRCUIT EDWARD WISNER DONATION, THE * STATE OF LOUISIANA HONORABLE MAYOR LATOYA CANTRELL, IN HER * * * * * * * OFFICIAL CAPACITY AND AS TRUSTEE, MICHAEL PENEGUY, SENATOR EDWIN MURRAY, MAJOR CHRIS THORNHILL AND PATRICK NORTON

CONSOLIDATED WITH: CONSOLIDATED WITH:

THE COUNCIL OF THE CITY OF NEW NO. 2022-CA-0791 ORLEANS

VERSUS

EDWARD WISNER DONATION, THE HONORABLE MAYOR LATOYA CANTRELL, IN HER OFFICIAL CAPACITY AND AS TRUSTEE, MICHAEL PENEGUY, SENATOR EDWIN MURRAY, MAJOR CHRIS THORNHILL AND PATRICK NORTON APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-06765, DIVISION “L” Honorable Kern A. Reese, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** ON APPLICATION FOR REHEARING

(Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)

LOBRANO, J., CONCURS IN THE DENIAL OF RELIEF ON REHEARING

Judy Y. Barrasso Shaun P. McFall Robert A. Waldrup BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC 909 Poydras Street, Suite 2350 New Orleans, LA 70112 Justin B. Schmidt

LAW OFFICE OF JUSTIN B. SCHMIDT, LLC 1506 7th Street New Orleans, LA 70115

COUNSEL FOR PLAINTIFF/APPELLEE

Robert L. Redfearn, Jr. M. Claire Durio SIMON, PERAGINE, SMITH & REDFEARN, L.L.P. 1100 Poydras Street 3000 Energy Centre New Orleans, LA 70163-3000

COUNSEL FOR DEFENDANTS/APPELLANTS

Terrence Kent Knister Daniel Lund John Y. Pearce R. Ethan Zubic Katherine E. Clark GORDON, ARATA, MONTGOMERY, BARNETT, MCCOLLAM, DUPLANTIS, & EAGAN, LLC 201 St. Charles Avenue 40th Floor New Orleans, LA 70170-4000

COUNSEL FOR DEFENDANTS/APPELLANTS – PLAINTIFF/APPELLEE

LIMITED REHEARING GRANTED; RELIEF DENIED; ORIGINAL OPINION AFFIRMED JULY 13, 2023

SCJ RML

We grant appellee, the City Council of New Orleans’ (“City Council”)

application for rehearing for the limited purpose of addressing its argument that

this Court committed several procedural errors and erred by failing to allow the

City Council the opportunity to cure the objections identified in the dilatory

exception before dismissal.

Following this Court’s June 9, 2023 decision, the City Council filed an

application for rehearing, seeking reconsideration of our decision. The City

Council argues that its claims against the Mayor should not have been dismissed,

the Court’s decision is inconsistent with custom and the Home Rule Charter, and

the Court erred by dismissing the Council’s petition with prejudice.

First, we note that “[c]ustom may not abrogate legislation.” La. C.C. art. 3.

As provided in our original opinion, the Home Rule Charter reveals that the City

Council is not a separate and independent agency from the City of New Orleans,

and it does not grant the City Council the authority to institute a suit on its own

behalf.

The City Council fails to consider that it is not a juridical person and an amendment to its petition will not cure the defect of lack of procedural capacity. La. C.C.P. art 933(B) provides when the grounds (other than prematurity) “pleaded in the dilatory exception may be removed by amendment of the petition . . . the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order.” RJANO Holdings, Inc. v. Phelps Dunbar, LLP, 2022-0058, p. 22 (La. App. 4 Cir. 9/21/22), 2022 WL 4363945, *12, writ denied, 2022-01730 (La. 2/14/23), 355 So.3d 616. However, the right to amend is not absolute. Smith v. Barial, 2018-0573, p. 8 (La. App. 4 Cir. 12/19/18), 318 So.3d 801, 808, (citing Roy Anderson Corporation v. 225 Baronne Complex, L.L.C., 2017-1005, p. 14 (La. App. 4 Cir. 7/11/18), 251 So.3d 493, 503. “When the grounds for sustaining the exception cannot be removed, amendment is not permitted when it would constitute a vain and useless act.” Id.

Next, the City Council argues that it can “cure the supposed lack of procedural capacity here by adding individual council members.” The City Council further provides that it has taken steps to cure the deficiency by passing a resolution authorizing Council President JP Morrell and Council Vice President Helena Moreno, in their official and individual capacities, to intervene and pursue the Council’s claims in the instant and any other related litigation. Amending a petition to individualize Council members in their representative capacities will not *3 cure the defect, as the City Council is not a separate and independent agency from the City of New Orleans. See City Council of City of Lafayette v. Bowen, 94-584 (La. App. 3 Cir. 11/2/94), 649 So.2d 611. Further, a newly added plaintiff cannot appear in a case in which the original plaintiff had no right to assert a claim. Taylor v. Babin, 2008-2063, p. 16 (La. App. 1 Cir. 5/8/09), 13 So.3d 633, 643-44. “A pleading which abandons the original plaintiff and class and asserts new claims upon which the original plaintiff and class could not recover, has the characteristics of a new lawsuit rather than an amended complaint.” Id., 2008-2063, p. 16, 13 So.3d at 644 (quoting Summit Office Park, Inc. v. United States Steel Corporation, 639 F.2d 1278, 1284 (5th Cir.1981)). Thus, the manner in which members of the City Council can assert claims against the defendants is by filing a separate and independent claim in their individual capacities as citizens.

For these reasons, we grant a limited rehearing, deny relief, and affirm our original opinion.

LIMITED REHEARING GRANTED; RELIEF DENIED; ORIGINAL OPINION AFFIRMED