
    The BOARD OF DIRECTORS OF the LOUISIANA RECOVERY DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS OF THE LOUISIANA RECOVERY DISTRICT and Non-Residents owning Property or Subject to Taxation therein, and all other Persons interested in or affected in any way by the Issuance of Sales Tax Bonds of the Louisiana Recovery District.
    No. CA 88 0962.
    Court of Appeal of Louisiana, First Circuit.
    June 15, 1988.
    
      Thomas A. Casey, New Orleans, Charles L. Patin, Jr., Baton Rouge, John N. Kennedy, New Orleans, Martha Hess, Baton Rouge, Harold B. Judell, William H. Beck, Susan Weeks, New Orleans, and David Henderson, Baton Rouge, for plaintiff-ap-pellee Bd. of Directors of the Louisiana Recovery Dist.
    A. Edward Hardin, Baton Rouge, for defendant-appellant All Taxpayers, etc.
    Before LOTTINGER, CARTER, SAVOIE, ALFORD and LeBLANC, JJ.
   PER CURIAM.

This is a bond validation suit brought by the Louisiana Recovery District (hereinafter sometimes referred to as plaintiff) against “all taxpayers, property owners, and citizens of the State of Louisiana and non-residents owning property or subject to taxation therein, and all other persons interested in or affected in any way by the issuance of sales tax bonds of the Louisiana Recovery District,” pursuant to La.R. S. 13:5121-5130. Ms. Roberta Madden (hereinafter sometimes referred to as defendant) answered the petition and alleged that she was a citizen, taxpayer of the full age of majority, and a resident of the Parish of East Baton Rouge, Louisiana. The answer alleged Act 15 of the First Extraordinary Session of 1988, which created the Louisiana Recovery District, was unconstitutional on various grounds. From a judgment upholding the constitutionality of Act 15, defendant appeals.

At the conclusion of the trial on the merits, and after both sides had rested the presentation of their respective cases, plaintiff moved for the dismissal of defendant's claims because of her failure to present any evidence she had standing to take part in these proceedings. In answer the defendant requested the trial court reopen the case for the specific purpose of allowing the introduction of evidence as to defendant’s standing to take part in these proceedings. The trial judge, while questioning his authority to reopen the case, took the motion to dismiss under advisement. Prior to the trial judge rendering a decision, plaintiff withdrew its motion to dismiss. Subsequent thereto, defendant applied to this court for writs seeking the reopening of the case in the trial court. The writs were not considered because of a rule violation (No. CW 88 0861 on the docket of this Court). The trial judge then handed down written reasons for judgment upholding the constitutionality of Act 15. Defendant again applied to this Court for writs; however, this Court denied the application, reasoning that “the ruling complained of appears to be moot ... [and] to the extent that the issue may still be viable, relator has an adequate remedy by appeal.... ” (CW 88 0873 on the docket of this Court). Defendant has now appealed the trial court decision, plaintiff has refiled in this court the peremptory exception raising the objection of no right of action, La.Code Civ.P. art. 2163, and defendant has moved to dismiss the exception.

In moving to dismiss the exception, defendant argues that plaintiff filed the same exception in the supreme court on June 3, 1988, the supreme court denied the exception, and thus res judicata applies.

The peremptory exception filed by plaintiff with the supreme court was filed in conjunction with a writ application wherein plaintiff requested the supreme court to exercise its supervisory jurisdiction and immediately remove this matter to the supreme court for consideration. In the alternative, plaintiff requested the supreme court to order this Court to expedite the appellate process. The supreme court chose the alternative. The supreme court denied the exception and denied the writ. With that frame of reference in mind, we conclude the supreme court never considered the merits of the exception, and merely denied it, when it chose to order this Court to expedite the appellate process. Therefore, the denial of the exception by the supreme court is not res judica-ta.

La.R.S. 13:5121-5130 create a cause of action and establish “a uniform, expeditious and equitable procedure,” for “suits to determine validity of governmental bonds.” If the governmental unit initiates the proceeding, “the taxpayers, property owners and citizens of the issuing governmental units, including nonresidents owning property or subject to taxation therein, and all other persons interested in or affected in any way by the issuance of such bonds shall be made parties defendant.” La.R.S. 13:5123. La.R.S. 13:5126 in part provides that “[a]ny property owner, taxpayer, citizen, or other person in interest may become a party to said proceedings by pleading to the motion_”

It is well settled in this state, so as not to require citation, that the sole purpose of the peremptory exception raising the objection of no right of action is to challenge the party litigant’s interest in the subject matter of the suit. Under the procedure established by the legislature for determining the validity of governmental bonds, the party seeking to contest the validity of the bonds must meet certain interest criteria. It matters not whether the party contesting validity of the bonds appears as a plaintiff or as a defendant; under either situation, the contestant must prove the interest criteria. Here, defendant failed to place one scintilla of evidence before the trial court that she met the interest criteria. Thus, defendant failed to prove she had a right of action or interest in this lawsuit.

In Smith v. Parish of East Baton Rouge, 509 So.2d 24 (La.App. 1st Cir.), writ granted, 510 So.2d 1 (La.1987), this court held that a plaintiff contesting the validity of governmental bonds must prove standing to sue. The supreme court granted writs for the sole purpose of remanding to the trial court “to entertain evidence of plaintiff’s standing to sue.” Thus, the supreme court approved the basic premise that a party contesting the validity of governmental bonds must prove standing to sue. Apparently remand was deemed appropriate in the Smith case.

No request for a remand has been made in this case. However, had the suggestion of a remand been made for the limited purpose of introducing evidence to prove sufficient interest criteria, we would have denied same. We are impressed with the urgency of this proceeding as evidenced by the order of the Louisiana Supreme Court addressed to this court, dated June 3,1988, which provides as follows:

The court of appeal is ordered to expedite the appellate process by conducting oral arguments and rendering an opinion on or before June 15, 1988. No application for rehearing may be filed in the court of appeal. Any application or appeal to this court shall be received in this court on or before June 20, 1988.

Inasmuch as defendant appealed the judgment of the trial court and now has been dismissed from this proceeding, we pretermit any discussion on the merits.

Therefore, for the above and foregoing reasons, the peremptory exception raising the objection of no right of action is sustained, and defendant, Ms. Roberta Madden, is dismissed from this proceeding. Defendant-appellant is to pay all costs of this appeal.

EXCEPTION SUSTAINED.

CARTER, J., concurs in part and dissents in part for written reasons assigned.

CARTER, Judge,

concurring in part and dissenting in part.

I agree that defendant failed to establish by legal evidence that she had a right of action or interest (legal standing) in this law suit. However, I do not agree that Ms. Madden should be dismissed from this proceeding without first being given the opportunity ON REMAND to introduce evidence to establish the sufficient interest criteria. This course of action is clearly authorized in Smith v. Parish of East Baton Rouge, 509 So.2d 24 (La.App. 1st Cir. 1987), writ granted, 510 So.2d 1 (La.1987), wherein the Louisiana Supreme Court ordered a remand under similar circumstances.

In Smith v. Parish of East Baton Rouge, supra, the plaintiff alleged the following facts in Paragraph 1 of his petition:

Plaintiff-mover is a resident of the Parish of East Baton Rouge, Louisiana, who uses the sewerage system of the Parish and pays on a monthly basis sewer user fees for such usage, is a duly registered voter of the State of Louisiana, qualified and registered to vote in the Parish of East Baton Rouge, and is a property owner and taxpayer in the Parish of East Baton Rouge. [509 So.2d at 28]

The defendants denied these allegations. No evidence was presented at the trial to prove these facts. In his oral reasons for judgment, the trial court judge observed that “standing certainly is a necessity before a person can bring a lawsuit” and held “inasmuch as there has been no evidence of standing, that would be a second reason to deny the ... petition.” [509 So.2d 28] Apparently, no attempt was made in the trial court to reopen the case to present proof of standing.

In Smith, this court, in dismissing the plaintiff’s suit, stated:

It is hornbook law that, as a general rule, a plaintiff in a civil action bears the burden of proving each of the elements of his claim by a preponderance of the evidence. To have standing to sue, the plaintiff must assert (and prove) an adequate interest in himself, which the law recognizes, against a defendant having a substantial adverse interest. Terrebonne Parish Police Jury v. Matheme, 405 So.2d 314 (La.1981). In Producing Manager’s Company, Inc. v. Broadway Theater League of New Orleans, Inc., 288 So.2d 676, 679 (La.App. 4th Cir.1974), appears the following:
The law is clear and well settled that an action can only be brought by a person having a real and actual interest in that which he asserts.... A plaintiff must prove that he has some interest in prosecuting the suit in order to establish his rights to recover damages, just as he must prove any other essential allegation of the petition.... Thus, if plaintiff fails to prove his interest to the Court’s satisfaction, his suit will generally be dismissed for failure to prove an essential element of his right to recovery.
See also La.C.C.P. art. 681; Geigy Chemical Corporation v. Rada, 264 So. 2d 279 (La.App. 4th Cir.1972). As previously indicated, the plaintiff has failed to prove his standing to bring this suit. The trial court ruling on this issue is correct. [509 So.2d 28-29]

This court declined to remand the case to give Smith an opportunity to produce evidence establishing standing for two reasons. First, this court opined that LSA-C. C.P. art. 2164 and the jurisprudence on remands for taking additional evidence were inapplicable to suits arising under LSA-R.S. 13:5121 et seq. Second, this court stated that the plaintiff did not seek to reopen his case to present evidence when the issue was raised in the trial court, and a remand at that stage of the proceedings was inconsistent with the legislative intent of LSA-R.S. 13:5121 et seq.

In granting the plaintiffs application for supervisory writs, the Louisiana Supreme Court stated:

Granted. This case is remanded to the district court for an expedited hearing to entertain evidence on plaintiffs standing to sue; any appeal thereafter to the Court of Appeal is to be expedited. [510 So.2d 1]

* In the instant case, the defendant Ms. Madden, in answer to a motion for judgment, alleged that she was “a citizen, taxpayer of the full age of majority resident in the Parish of East Baton Rouge, Louisiana.” As such, LSA-R.S. 13:5124 required that she be made a party defendant. The majority opinion correctly refers to LSA-R. S. 13:5124 which provides in part:

By publication of such motion for judgment, all taxpayers, property owners and citizens of such governmental unit including nonresidents owning property or subject to taxation therein, and all other persons having or claiming any right, title, or interest in any property or funds to be affected in any way by the issuance of such bonds, or having or claiming to have any right or interest in the subject matter of such motion for judgment, shall be considered as parties defendant in such proceedings and as having been duly served, and the court shall have jurisdiction of them the same as if each of them were named individually as a party defendant in such motion for judgment and personally served with process.

The majority further points out that LSA-R.S. 13:5126 in part provides that “[a]ny property owner, taxpayer, citizen, or other person in interest may become a party to said proceedings by pleading to the motion .... ” In short, the majority notes that by publication of the motion for judgment, under LSA-R.S. 13:5124 certain persons are made defendants and, pursuant to LSA-R.S. 13:5126, certain other persons may become parties. Then, the majority requires the persons so made defendants prove they have a right to be named as defendants.

Plaintiff did not take issue with Ms. Madden’s standing to take part in these proceedings until after both sides had rested their respective cases. When defendant requested that the trial court reopen the case to permit the introduction of evidence on this specific issue, plaintiff withdrew its motion to dismiss. The issue was therefore never resolved by the trial court, and, after plaintiff raised the issue of defendant’s standing, defendant was not given an opportunity to establish her standing. After defendant perfected the instant appeal, plaintiff again challenged defendant’s standing, urging this court to deny defendant the right to participate without giving defendant the opportunity to establish legal standing.

Generally, the plaintiff in a proceeding bears the burden of proving standing. A declaratory proceeding of this type places the defendant in an unusual posture in that, as the party attacking the constitutionality of Acts 1988, No. 15, she must establish her interest in the proceeding. Requiring defendants in cases of this type to establish their standing has resulted in confusion. As a result, I believe that basic fairness and the Supreme Court’s decision in Smith v. Parish of East Baton Rouge, 510 So.2d 1 (La.1987) clearly support a remand of this case to the trial court. Defendant should be given an opportunity, if possible, to establish her standing. Despite the “urgency of this proceeding,” justice requires that interested persons with standing be heard.

For these reasons, I respectfully concur with that portion of the majority opinion finding that defendant failed to establish legal standing in this suit. However, I dissent from the majority opinion in that this proceeding should be remanded to the trial court for an expedited hearing on the issue of defendant’s standing.

Further, the course of action taken by the majority leaves unanswered crucial, overriding Constitutional questions raised by the merits which go to the heart of separation of powers and Constitutional government. These questions will remain unanswered unless action is taken by the Louisiana Supreme Court.

At the risk of being repetitious, in commenting on the merits of this case, I again quote from Washington’s Farewell Address as published in Sparks’ Writings of Washington, vol. 12, pp. 382-398, and whose observations are as pertinent and relevant now as they were when enunciated by President Washington:

It is important, likewise, that the habit of thinking in a free country should inspire caution, in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments, ancient and modem; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use may at any time yield.

Cf. Carso v. Board of Liquidation of State Debt. 205 La. 368,17 So.2d 358 (1944). Cf also Concurring and Dissenting Opinion, Bruneau v. Edwards, 517 So.2d 818 (La. App. 1st Cir.1987), writs denied, 508 So.2d 806, 832 (La.1987). 
      
      . In essence what plaintiff filed at this stage of the proceedings was a peremptory exception raising the objection of no right of action. La. Code Civ.P. arts. 927 and 928.
     
      
      . Generally, exceptions are filed by defendants to suits by plaintiffs. However, in the context of the procedural posture of a bond validation suit instituted by a governmental unit, we find it proper and appropriate that the governmental unit, as plaintiff, be allowed to file exceptions to defendant’s answer.
     
      
      . La.R.S. 13:5122.
     