1

CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 2007-136 c/w SECTION : (15) DIV. “B”

2007-2497

THE UPTOWNER, INC.

VERSUS

CITY OF NEW ORLEANS and

BOARD OF ZONING ADJUSTMENTS FOR THE CITY OF NEW ORLEANS

FILED: _____________________ _______________________________

DEPUTY CLERK

MEMORANDUM IN OPPOSITION TO INTERVENOR, DAVID SHERMAN,

MOTIN FOR SUMMARY JUDGMENT AND INCORPORATED MOTION TO

STRIKE AFFIDAVITS AND EXHIBITS FOR FAILURE TO CONFORM TO THE

REQUIREMENTS OF LA. CCP arts. 966(B) AND 967 AND STATEMENT CO

CONTESTED ISSUES OF MATERIAL FACT.

MAY IT PLEASE THE COURT:

Intervenor, Michael Sherman (“Mr. Sherman”) is not entitled to any of the relief

requested in his Motion for Summary Judgment (“the Motion”) in this zoning dispute

litigation.

Mr. Sherman has failed to provide competent summary judgment evidence to

support the first of his four (4) requests and provides no codal, statutory or jurisprudential

support for the remaining three (3). The four requests are:

(1) That this Court declare that 438 Henry Clay Avenue (“the Premises”) has

lost its non-conforming use designation as a reception hall.1

(2) That this Court strip any permits received by The Uptowner from the City of

New Orleans (“The City”) allowing it to operate as a reception hall.2

(3) That this Court bar any new permits from being issued to any owner,

occupant, or lessee of the premises allowing it to function as anything other than residence.3

(4) That this Court require the City Planning Commission Staff to reconsider The

Uptowner’s application for a zoning change for the premises from RD-4 to B-1A and

requiring its staff to rewrite its report to reflect that the premises does not enjoy a legal non-

1 This request is not supported by any competent summary judgment evidence as discussed infra in The

Uptowner, Inc. (“The Uptowner”)’s incorporated Motion to Strike (“The Strike Request”).

2 In the absence of any competent summary judgment evidence supporting the assertion that the premises has

lost its non-conforming use status as a reception hall there is no basis for stripping The Uptowner’s permits.

3 Not surprisingly, Mr. Sherman offers no codal, statutory or jurisprudential support for this request which

would improperly invade the legislative function by irrevocably preventing the City of New Orleans from

exercising its legislative prerogatives irrespective of the circumstances.

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conforming use as a reception hall.4

In order to fully understand the basis of The Uptowner’s opposition some background

is in order.5

BACKGROUND

On or about March 15, 2006, Lucy, purchased the premises from Ms. Johnson. Lucy

also purchased all Ten Thousand (10,000) shares of The Uptowner Inc.’s stock.6

On May 3, 2006, The City issued a temporary occupational license to The Uptowner,

Inc., as a full service restaurant (table service).7 On July 6, September 5 and September 29,

2006, The City issued temporary occupational licenses to The Uptowner indicating that the

business was not operating “pending approval by safety and permits”.8 On December 20,

2006, The City issued The Uptowner an Occupational License as “reception hall rental or

leasing.”9 This was in addition to a temporary occupational license running from November

20, 2006 to January 19, 2007, allowing business as a full service restaurant restaurant.10

On March 15, 2007, The City issued an occupational license to The Uptowner as a

reception hall and reissued the aforementioned license on February 14, 2008.11

The Uptowner has regularly and continuously done business since its acquisition by

Lucy. This regularity and continuity of business is reflected by the Entergy and telephone

bills and business hour photographs attached to Mr. Sonnier’s Affidavit.12

This is also

reflected by the determination of

Conversely, the “Affidavits” submitted by Mr. Sherman are contradictory to each

4 The absence of competent summary judgment evidence to support Mr. Sherman’s first request precludes his

fourth.

5 The background information is extracted from the Affidavit of Greg Sonnier (“Mr. Sonnier”), a principal in

Lucy, LLC (“Lucy”) which purchased the premises and 100% of the stock in the Uptowner, Inc. from Kathy

Tisdale Johnson.

6 In order to avoid business interruption engendered by the cancellation of non-transferable licenses (e.g., liquor

licenses) Lucy acquired one hundred percent (100%) of The Uptowner, Inc.’s stock avoiding any transfer issues

and insuring continuous operation. Affidavit of Greg Sonnier (“AS”) para. VI

7 Id. para. VIII.

8 Id.

9 Id.

10

Id. 11

Id.

12

Id. paras. X - XII

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other and Mr. Sherman’s assertion in his Motion that “for many years, the first floor of the

building at 438 Henry Clay Avenue, known as The Uptowner, operated as a reception hall

with a non-conforming use designation.”13

Conversely, the “Affidavits” submitted in support

of the Motion state, inter alia:14

(1) Mark Gauchet’s Affidavit – He states throughout his fourteen (14) years

living in the neighborhood, The Uptowner operated infrequently and intermittently as a

reception hall. This would be from 1994 forward based upon the August 11, 2008 execution

date of his Affidavit;15

(2) Claire Morrison’s Affidavit – She states she has lived in the neighborhood

for thirty-eight (38) years. She further states that for the last ten (10) years The Uptowner

has not “operated regularly and continuously;”16

(3) Peggy Sapir’s Affidavit – Ms. Schaeffer states that prior to 1995, The

Uptowner was an active reception hall.17

(4) Leslie A. Davis’ Affidavit – Ms. Davis’ Affidavit suggests the same timeline

for regularly infrequent operations of The Uptowner as Ms. Sapir’s. However, she defines

an active reception hall as one which “primarily hosted wedding receptions on weekends;”18

(5) Cecilia Sogin’s Affidavit – Ms. Sogin states that in the past fourteen (14)

years, The Uptowner has never operated with regular hours;19

(6) Kent Blackell’s Affidavit - Mr. Blackell states that in the fifteen (15) years,

he has lived in The Uptowner’s neighborhood: “The facility was only opened for business

when a reception was held which varied from no receptions in some months to

approximately one (1) or two (2) in busier months.”20

In considering The Uptowner’s operation(s), it is also important to note the following

from Edward J. Horan (“Mr. Horan”), the Zoning Administrator for the City’s Department

of Safety and Permits. He has stated:

Based on review of the documentation submitted by the owner, there

is sufficient evidence to indicate that 438 Henry Clay Avenue has maintained

13

Mr. Sherman’s Motion p. 1.

14

The Uptowner is contemporaneously moving to strike Mr. Sherman’s “Affidavits” for failure to comply with

LA. CCP arts. 966 (B) & 967. The discussion which appears immediately infra is provided solely in the event

that the Motion to Strike should be denied.

15

Motion Exhibit D – Affidavit of Mark Gauchet.

16

Motion Exhibit D – Affidavit of Claire Morrison, para. 6. Ms. Morrison’s Affidavit has The Uptowner

regularly and continuously for three (3) years longer than Mr. Gauchet’s.

17

Motion Exhibit D – Affidavit of Peggy Sapir, para. 4. Ms. Sapir’s Affidavit contradicts both Mr. Gauchet’s

and Ms. Morrison’s. Mr. Gauchet stating that for the entire fourteen (14) years he has lived at his present

address, The Uptowner operated infrequently and intermittently and Ms. Morrison stating that The Uptowner

operated regularly and continuously up to 1998.

18

Motion Exhibit D – Affidavit of Leslie A. Davis, para. 5.

19

Motion Exhibit D – Affidavit of Cecilia Sogin, para. 3.

20

Motion Exhibit D – Affidavit of Kent Blackell, para. 3. This directly contradicts Peggy Sapir’s Affidavit at

paragraph 3 where she states: “Prior to 1995, the facility was an active reception hall.

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its non-conforming status as a reception hall/catering facility.”21

Additionally, in responding to Mr. Sonnier’s question, “What is the written difference

between a Full SVC Restaurant Table Service and reception hall according to the Zoning

Administration of the Department of Safety and Permits?” Mr. Horan responded: “8. The

nature of the use is the difference. A reception hall has events either everyday or

intermittently booked in advance and not open for walk-in dining. A restaurant is open to

the public during certain hours a day.”22

It is against this background that Mr. Sherman’s Motion must be considered.

PROCEDURAL CONSIDERATIONS

Summary Judgment shall only 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 as to material facts and that the mover is entitled to judgment as a matter of

law. The burden of proof remains with the mover.23

A fact is deemed to be material if it is essential to the plaintiff’s cause of action under

the applicable theory of recovery and without which he/it could not succeed. Typically,

material facts are those that potentially insure a preclude recovery, affect the litigant’s

ultimate success or determine the outcome of a legal dispute.24

In determining whether an

issue of material fact is “genuine” this Court may not consider the merits, make credibility

determinations or evaluate testimony or weigh evidence.25

Unsworn and unverified documents not attached to an affidavit are inadmissible as

evidence in a motion for summary judgment. Documents which are not certified or attached

to an affidavit are also of insufficient evidentiary quality to be given weight in determining

whether they are remaining genuine issues of material fact.26

Not only are unsworn and unverified documents, not attached to affidavits

21

Mr. Horan’s e-mail of August 16, 2007. Mr. Sonnier’s Affidavit, para. XV. Statements demonstrating that

they result from an investigation are sufficient to form competent summary judgment evidence. Longo v.

BellSouth Telecomms., Inc., 885 So. 2d 1270 (La. App 4th

Cir, 2004)

22

Id. para XIV (emphasis added).

23

Collins vs. State Farm Ins., Co., et al, 2008 La. App. LEXIS 1402(2008).

24

Prado vs. Sloman Neptune Schiffahrts, A.G., 611 So. 2d 691 (La. App. 4th

Cr. 1992).

25

Anya vs. Legg Mason Wood Walker, Inc., 985 So. 2d 281 (La. App. 4th

Cr. 2008).

26

Lilly vs. Allied Health Care, 2008 La. App. LEXIS 880 (1st Cr. 2008); Sanders vs. J. Ray McDermott, Inc.,

867 So. 2d 771 (La. 1st Cr. 2003).

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inadmissible on summary judgment, affidavits which are not made on personal knowledge

are likewise inadmissible.27

The purpose of the personal knowledge requirement is to limit an

affidavit to facts which the affiant saw, heard or received with his own senses.28

Portions of

affidavits not based on the personal knowledge of the affiant should not be considered in

deciding a motion for summary judgment.29

None of the Affidavits contained in Exhibit D to Mr. Sherman’s Motion state they are

based on personal knowledge.

It is also clear that affidavits containing conclusory facts which are devoid of specific

facts will not be sufficient for summary judgment purposes. Colwart vs. Encompass Indem.

Co., 961 So. 2d 527 (La. App. 5th

Cr. 2007).

A fair reading of the five (5) Affidavits submitted in support of Mr. Sherman’s

Motion demonstrates that they should not be considered as competent summary judgment

evidence. To the extent that it may be gleaned that portions or based on “personal

knowledge” because of alleged “observations” the statements contained in the Affidavits are

insufficient to address the question at issue, and to the extent not inconsistent almost wholly

conclusory.30

The Affidavits fail to:

(1) Provide any meaningful basis for determining the extent to which each affiant

observed The Uptowner;

(2) Failed to provide any meaningful basis for the Court to determine what years

each Affidavit refers to with respect to a given level of business activity;

(3) Failed to provide any meaningful definition, from the affiants’ perspective, of

the phrase open for business;

(4) Contain conclusory statements like “has not operated regularly or

continuously.”31

“Has operated infrequently and intermittently as a reception hall”32

Each of the Affidavits submitted in support of Mr. Sherman’s Motion should be

27

La. CCP art. 967; Hibernia Nat’l vs. Rivera, 2008 La. App. LEXIS 1274 (5th

Cr. 2008).

28

Id.

29

Adalgo vs. General Fire & Casualty Co., 254 So. 2d 493 (La. App. 3rd

Cr. 1971) cited with approval in

Hibernia Nat’l Bank, supra.

30

They are also irrelevant in light of §13.6.2 of the New Orleans Comprehensive Zoning Ordinance which, as

interpretive legislation is applied retroactively.

31

Claire Morrison’s Affidavit.

32

Mark Gauchet’s Affidavit.

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stricken as, to the extent they purport to be based on personal knowledge, they are

almost wholly conclusory and fail to provide the Court with any meaningful basis for

evaluating the time periods in which claimed observations were made and the extent to

which The Uptowner was observed on a regular basis. Additionally, Exhibits A & B,

unsworn, uncertified copies of newspaper articles not attached to any Affidavit are

incompetent evidence for summary judgment purposes and must be disregarded.

These objections should be taken as The Uptowner’s Incorporated Motion to Strike

Mr. Sherman’s Exhibits.

SUBSTANTIVE CONSIDERATIONS

As noted by Judge Byrnes in Weisler v. Board of Zoning Adjustments, 745 So. 2d

1259 (La. App. 4th

Cr. 1999):

“What constitutes sufficient uses to establish non-conforming status may vary with

the facts of each case. We can see an argument that where a particular property is

dedicated to a non-conforming use it may require a lower level of daily activity to

establish usage. For example, had the Weisler’s abandoned their home in whole and

in part as a residence and dedicated in whole and in part to commercial receptions

with appropriate permanent and commercial signage designating as such with a

stronger argument that the commercial “use” of the property continued in between

receptions just as we continue to think of the property operators as a bank as still

being used as a bank even when it closes at night or on weekends and holidays.”33

Further:

“In other words, had the Wieslers shown that their residence was a dedicated,

designated commercial reception hall, a better argument could made regarding the

consistency of use.”34

Although Mr. Sherman cites Wiesler, he fails to cite to the statements above and also

ignores the holding that decisions of the Board of Zoning Adjustments enjoy a presumption

of validity and a reviewing court should not merely substitute its own judgment for that of

the Board, unless there is a clear showing that the Board was arbitrary and capricious or

abused its discretion when a decision is not manifestly erroneous in view of substantial

evidence in the record.35

33

Wiesler p. 1263.

34

Id. pp. 1263-1264.

35

Wiesler p. 1264. Nonetheless, the Motion provides the Court with no information concerning the BZA

action or the standard to be applied by the Court in reaching a determination. The documents appended

to Mr. Sonnier’s Affidavit clearly demonstrate that the Zoning Administrator for the Department of

Safety and Permits found “…there is sufficient evidence to indicate that 438 Henry Clay Ave. has

maintained its non-conforming status as a reception hall/catering facility.”

7

§13.6.2 of the New Orleans Comprehensive Zoning Ordinance presently provides:

“Any business establishment operating as a designated reception facility

shall not be considered casual, temporary, or illegal due to the nature of

the business operating intermittently for scheduled events with food and

beverage service at the request of clients. These private events with food

and beverage service, scheduled by non-owners and/or operators, must be

held a minimum of fifteen (15) occasions a year to uphold a legal

operating status as a reception facility. Exceptions to this operational

standard are appealable to the Board of Zoning Adjustments.36

Although Mr. Sherman baldly asserts that §13.6.2 “…is not applicable to the present

appeal…,” he ignores the provision of La. CC art. 6 which provides in pertinent part:

“Procedural and interpretative laws apply both prospectively and

retroactively, unless there is a legislative expression to the contrary.”37

§13.6.2 clearly interprets the meaning of casual, temporary or illegal in the

context of reception facilities. It is interpretive and nothing but interpretive and

should and must be given retroactive effect.

Similarly, La. R.S. 33:4882 renders the bulk of the Affidavits contained in

Exhibit D to the Motion irrelevant. It provides in pertinent part:

“ A. Notwithstanding any provision of law or municipal or parish

ordinance or resolution to the contrary, the governing authority of any

municipality or parish and any agency of any such municipality or parish

shall not allow and shall not cause any building or land to lose its

nonconforming use status because, during all or part of the period of

August 29, 2005, through August 28, 2007, as a result of damage caused

by Hurricane Katrina or Hurricane Rita, it is temporarily vacant or

operations normally carried on in such building or on such land have been

temporarily discontinued.”

ARGUMENT

Notwithstanding the 1997 Amendment to La. CCP art. 966 by enactment of Article

966 (C) (2), the initial burden of proof remains with the mover (Mr. Sherman) to demonstrate

that there is no genuine issue of material of fact.38

This he has plainly failed to do. He has

provided the Court with no competent summary judgment evidence from a factual standpoint

nor supported his legal position:

(1) None of the Affidavits “supporting” the Motion state they are made on

personal knowledge;

36

Ordinance 22,789 § 1 (part), Adopted 9/6/07. Compliance is therefore based on a little over three recsptions

per month.

37

Emphasis added. M.J. Farms Ltd. vs. Exxon Mobile Corp., 2008 La. LEXIS 1527 (La. 2008).

38

Jones vs. Estate of Santiago, 877 So. 2d 1002 (La. 2004).

8

(2) To the extent that any personal may be gleaned from the Affidavit that

“knowledge” exists primarily in the form of conclusory statements;

(3) To the extent the statements contained in the Affidavits are not otherwise

incompetent, they provide the Court with no meaningful way to gage their

utility, especially in light of the addition of §13.6.2 to the New Orleans

Comprehensive Zoning Ordinance;

(4) The Affidavits are irrelevant with respect to the period from August 29, 2005

to August 28, 2007 as a result of the passage of La. R.S. 33:3882;

(5) The Affidavits of Ms. Johnson and Mr. Sonnier are more than sufficient to

demonstrate the existence of a non-conforming use especially in light of their

attachments.

However, even assuming, arguendo that the affidavits submitted in support of the

motion were competent summary judgment evidence (and they are not), Mr. Sonnier’s

affidavit and attachments, when considered in pari material with it’s attachments, including

the conclusion of Edward Horan of the City that the Uptowner maintained it’s non

conforming use, is more than sufficient to demonstrate the existence of genuine issues of

material fact, as defined by Prado vs. Sloman Neptune Schiffahrts, A.G., 611 So. 2d 691 (La.

App. 4th

Cr. 1992). And Anya vs. Legg Mason Wood Walker, Inc., 985 So. 2d 281 (La. App.

4th

Cr. 2008) to be tried.39

Quite simply, The Uptowner’s opposition (supported by Mr.

Sonnier’s affidavit demonstrates that:

(1) The City determined that the Uptowner has maintained it’s non-conforming use;40

(2) The Uptowner has operated in conformity with §13.6.2 of the New Orleans

Comprehensive Zoning Ordinance since it’s acquisition by Lucy and subsequent

to August 28, 200741

(3) That the City has continuously licensed The Uptowner as a reception hallsince

it’s acquisition by Lucy.42

Equally importantly, Mr. Sherman fails to inform the Court of the BZA’s decision, if

any, in this matter in order to demonstrate that: (1) He has exhausted his administrative

remedies and (2) The BZA’s determination and therefore the applicable standard of review

and, why the BZA determination was manifestly erroneous. In that regard, Mr. Sherman has

not provided the record of any BZA determination to this Court for it’s review.

39

This is especially true in light of: (1) The retroactive effect of §13.6.2 of the New Orleans Comprehensive

Zoning Ordinance and (2) The passage of La. R.S. 33:4882. The affidavits in their entirety clearly fail to

negate the minimum requirement that a reception hall hold receptions 0.0410 of a year to keep a non-

conforming use (15 receptions per each 365 days). However, even without consideration of §13.6.2, the motion

fails to negate the absence of genuine issues of material fact.

40

Mr. Sonnier’s affidavit para. XV

41

Id. para XVI

42

Id.

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INCORPORATED MOTION TO STRIKE

To the extent not made clear by the discussion of the newspaper articles and

Affidavits submitted in support of Mr. Sherman’s Motion for Summary Judgment, The

Uptowner specifically request that Court strike the same from consideration in conjunction

with the Motion for Summary Judgment as they are incompetent as summary judgment

evidence for the reasons expressed above.

INCORPORATED STATEMENT OF CONTESTED ISSUES AND MATERIAL

FACT

PURSUANT TO Uniform District Court Rule 9.103, The Uptowner, Inc., submits

the following list of contested issues of material fact in conjunction with its opposition to

Michael Sherman’s Motion for Summary Judgment:

(1) Kathy Johnson purchased the property bearing municipal address 438 Henry

Clay Avenue in New Orleans, Louisiana (“the premises”) on September 25,

1996:

(2) In furtherance of her intent to operate the premises as a reception hall, through

The Uptowner, Inc., she acquired all 10,000 shares of the common non-capital

stock of The Uptowner, Inc., a corporation formed for the purpose of

operating The Uptowner as a reception hall;

(3) Kathy Johnson obtained all necessary occupational and other licenses required

by The City of New Orleans (“The City”) as a reception/banquet hall and

said licenses were continuously renewed during the period of August, 1997 to

March 2006 without challenge or opposition;

(4) The Uptowner, Inc., regularly and continuously generated substantial

revenues as a reception/banquet hall and during 2005, the year of Hurricane

Katrina, The Uptowner, Inc., had gross receipts/sales of One Hundred

Twenty-Two Thousand Seven Hundred Eighty-One Dollars ($122,781.00);

(5) The Uptowner maintained regular business hours from August, 1997 through

March, 2006;

(6) The Uptowner’s business was not intermittent during the period August, 1997

through March, 2006;

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(7) Greg and Mary Sonnier acquired The Uptowner by acquiring the premises

and all of the stock of The Uptowner, Inc., from Kathy Tisdale Johnson in

March 2006;

(8) The Uptowner has operated as a reception/banquet hall subsequent to the

acquisition by Lucy, LLC;

(9) The Uptowner has maintained occupational licenses with The City of New

Orleans since its acquisition by Lucy, LLC;

(10) The Uptowner has maintained alcoholic beverage permits through the City of

New Orleans subsequent to its acquisition by Lucy, LLC;

(11) The Uptowner was exempt from potential loss of its non-conforming use

status from August 29, 2005 through August 28, 2007 pursuant to La. R.S.

33:4882;

(12) The Uptowner has operated in conformity with §13.6.2 of the New Orleans

Comprehensive Zoning Ordinance subsequent to its August 28, 2007;

(13) Even without reference to §13.6.2 of the New Orleans Comprehensive Zoning

Ordinance, The Uptowner has operated in such a fashion as to maintain its

non-conforming use pursuant to New Orleans Comprehensive Zoning

Ordinance.

CONCLUSION

Based on all of the above, it is clear that Mr. Sherman’s Motion for Summary

Judgment is without factual or legal basis and accordingly, should and must be denied.

Respectfully submitted,

KILLEEN & STERN, P.C.

____ ________________

Robert C. Stern (#12454)

400 Poydras Street, Suite 1710

New Orleans, Louisiana 70130

Telephone: 504/525-8111

Facsimile: 504/680-6080

Attorneys for The Uptowner, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing Motion has been served on all

counsel for all parties to this proceeding, by via facsimile, e-mail and depositing same in the

United States mail, postage pre-paid, properly addressed on this 14th

day of November,

2008.

_______________________________

ROBERT C. STERN