CAR PLUG LLC v. CITY OF KENNER (2025)

In this case arising from a zoning dispute, plaintiff Car Plug, LLC appeals a June 20, 2024 order of the trial court dismissing with prejudice its claims against defendant, the City of Kenner, and an August 12, 2024 order denying plaintiff's Motion to Reconsider. For the following reasons, we vacate the June 20, 2024 order of the trial court, and remand the case for proceedings in accordance with our decision herein.

BACKGROUND

On October 24, 2023, Car Plug, LLC (“Car Plug”) filed a petition against the City of Kenner (“Kenner”) seeking a temporary restraining order, preliminary injunction, permanent injunction, mandamus, declaratory judgment, and damages for actions relating to Car Plug's nonconforming use of the property at 1818 Airline Drive as a used automobile sales lot. On December 1, 2023, the City of Kenner filed an answer to Car Plug's petition denying the claims. On February 14, 2024, the City filed a peremptory exception of nonjoinder in which it argued that Sonny & Joyce, L.L.C., the owners of the property at 1818 Airline Drive, had an interest in the proceedings and that complete relief could not be granted in their absence.

A trial on the exception was held on March 25, 2024 after which the trial judge granted the exception. The written judgment signed on April 2, 2024 in which the court granted the exception of non-joinder also ordered Car Plug to “amend its Petition to add Sonny & Joyce, L.L.C., as a party to this proceeding.” No time limit was given, nor was there any provision to the effect that the failure to comply would result in dismissal.

On June 18, 2024, the City of Kenner filed a Motion and Order of Dismissal with Prejudice seeking to obtain an ex parte dismissal of Car Plug's claims for failure to file an amended petition. A few hours later on the same day, Car Plug filed a First Supplemental and Amending Petition wherein it added Sonny & Joyce, L.L.C. as an additional party plaintiff in the case. Two days later, on June 20, 2024, the trial court signed the ex parte Order of Dismissal that dismissed Car Plug's claims against Kenner.

On June 21, 2024, Car Plug filed a Motion to Reconsider in which it argued that the court erred in signing the order of dismissal because said motion was filed ex parte without setting it for contradictory hearing and because Car Plug had complied with the court's April 2, 2024 order by filing the amended petition prior to the trial court signing the order of dismissal.

The Motion to Reconsider was set for contradictory hearing, after which on August 21, 2024, the judge signed a judgment denying the motion. Car Plug has appealed the June 20, 2024 Order of Dismissal as well as the August 21, 2024 denial of the motion for reconsideration.

DISCUSSION

The April 2, 2024 Judgment on the Peremptory Exception

The trial court legally erred when it omitted a delay period or deadline by which petitioner was compelled to add Sonny & Joyce, L.C.C. as a party. La. C.C.P. art. 934 states:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court․” [Emphasis supplied.]

Further, the April 2, 2024 judgment did not provide that the failure to comply would or could result in an ex parte dismissal with prejudice. Nevertheless, because this was an interlocutory and not a final judgment, the trial court could have corrected this error at any time.

The June 20, 2024 Order of Dismissal

It has long been recognized that a court will look to the import of a pleading and not be bound by the title. Every pleading is to be construed so as to do substantial justice. La. C.C.P. at. 865. The caption of the pleading does not control. Rather, courts are obligated to look through the caption of a pleading in order to ascertain its substance. Succession of Burke, 24-141, p. 5 (La. App. 5 Cir. 10/16/24), 398 So.3d 1191, 1195. Despite its caption, the June 20, 2024 “Order of Dismissal with Prejudice” was in effect a judgment on the peremptory exception decreeing that the plaintiff's claims be dismissed with prejudice.

The record shows that Car Plug had complied with the court's April 2, 2024 order by filing its amended petition adding Sonny & Joyce, L.L.C., as a party two days before the trial court granted the order of dismissal. In the absence of a specified delay period in the judgment within which Car Plug had to amend, Car Plug's amendment filed two days, or at any time prior to the judgment was timely. On the merits, Kenner was therefore not entitled to a judgment of dismissal, with or without prejudice.

Under La. C.C.P. art. 963(B), if the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. In this instance, because the trial court failed to specify a time delay for plaintiff to amend the petition in the April 2, 2024 judgment on the exception, and because Car Plug filed its amended petition timely and prior to the June 20, 2024 order, Kenner was not clearly entitled to have the case dismissed, and therefore the order of dismissal should have been served on Car Plug and tried contradictorily. Accordingly, the June 20, 2024 order is a nullity.

For the reasons stated herein, we vacate the June 20, 2024 order of the trial court and remand this case for further proceedings consistent with our opinion herein.

JUNE 20, 2024 ORDER VACATED; REMANDED

MARCEL, J.