source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    PHILLIPS’ BAR & RESTAURANT, INC. and Paul F. Ippolito v. CITY OF NEW ORLEANS.
    No. 2012-CA-1396.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.
    Rehearing Denied May 15, 2013.

      Raymond P. Ladouceur, Jane C. Alvarez, Ladouceur and Ladouceur, L.L.C., Abita Springs, LA, for Plaintiff/Appellant.
    Mark D. Macnamara, Deputy City Attorney, Eraka Williams Delarge, Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, New Orleans, LA, for Defendant/Appellee.
    Michael J. Laughlin, Law Office of Salvador Anzelmo, Metairie, LA, for Interve-nor/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

1 tPhillips’ Bar and Restaurant has operated at the same location in the University section of Uptown New Orleans for more than seventy years. The alcohol beverage outlet, or ABO, licenses are held by the corporation Phillips’ Bar & Restaurant, Inc. The property on which Phillips’ operates, that is the licensed premises, is owned by 733 Cherokee, L.L.C., as is an adjoining vacant lot, which Phillips’ used as a patio for about seven years. There is overlap between the corporation’s shareholders and the limited liability company’s members. Phillips’s connections filed a petition for declaratory judgment against the City of New Orleans concerning its non-conforming use of the adjoining vacant lot.

The City reconvened and a sought in-junctive relief to prohibit any use of the vacant lot by Phillips’ as a part of its business operations. A neighborhood association, the Maple Area Residents, Inc., intervened on the side of the City and against the Phillips’s connections and sought to enforce a restrictive covenant through a request for injunctive relief. Following the earlier issuance of a preliminary injunction, the district court denied the declaratory relief Phillips’s ^connections sought and granted the City and MARI declaratory relief and a permanent injunction prohibiting any business use of the patio lot by Phillips’. The Phillips’ connections alone have appealed the judgment.

Upon our review, we conclude that the district court was not clearly wrong in finding that Phillips’s connections had not established that any non-conforming use enjoyed by the licensed premises extended to the adjoining vacant lot or somehow incorporated that property into the licensed property. And, on that account, we also conclude that the injunctive relief granted, such that it prohibits the selling or serving of alcohol or food by Phillips’ or anyone else on the adjoining vacant lot, is proper, but that its reach to prohibiting selling or serving of alcohol or food by Phillips’ for its patrons’ consumption off of its licensed premises, including on the adjoining lot, is not supported by the law and the evidence. Accordingly, we amend the permanent injunction and affirm the judgment as amended.

We explain our decision in greater detail in the following Parts.

I

In this Part we describe the history of the ownership and use of the properties as well as provide the specific legal description for the properties involved, then generally describe the particulars of the ensuing litigation among the parties, and finally summarize the evidence at the trial of this matter and the resulting judgments.

JjA

Paul and JoAnn Ippolito purchased both municipal lots that are the subject of the present controversy from Rose Stipelco-vich Phillips. The Ippolitos purchased Lot 1-A, which bears the municipal address 733 Cherokee Street, New Orleans, on October 23, 1986. This is the lot on which Phillips’ is licensed to operate as an ABO. Later, they acquired Lot 2-A, which bears the municipal address 727 Cherokee Street, on March 9, 1990. This was an unimproved residential lot that was never used by Mrs. Phillips in connection with the operation of Phillips’. The Ippolitos subsequently transferred their interests in the lots, and the improvements thereon, to 733 Cherokee, L.L.C. in November 2009. The Ippolitos are the only members of the limited liability company.

As we noted, Phillips’ is owned by the Louisiana corporation, Phillips’ Bar & Restaurant, Inc. Paul F. Ippolito, who is its president, and his wife, JoAnn Ippolito, own two-thirds of its common stock. Their son, Joseph Ippolito, owns the remaining one-third, is also a corporate officer, and is the bar’s day-to-day manager. The Ippolitos purchased the business, Phillips’ Bar and Restaurant, from Mrs. Phillips in 1986 and incorporated it in 1988.

Phillips’ currently operates the bar on Lot 1-A and holds a Class-A general Alcoholic Beverage Outlet license for use on Lot 1-A only. Importantly, an ABO permit has never been issued for Lot 2-A. Both lots are zoned RD-2, two family presidential, though Lot 1-A acquired a legal non-conforming status by virtue of the many decades that a bar and restaurant have been operated on the premises.

The record suggests that the neighborhood association, MARI, has had, at times, a contentious relationship with Phillips’. Several years prior to the Ippolitos’ purchase of the two lots and the bar and restaurant, Mrs. Phillips entered into an agreement with the association wherein she agreed to enter into a restrictive covenant with MARI in exchange for MARI’s cessation of opposition to Mrs. Phillips’s building renovation plans. Specifically, the restrictive covenant provides that Mrs. Phillips agrees to comply with the requirements of New Orleans’ Comprehensive Zoning Ordinance, that the bar and restaurant, which she was then rebuilding to replace the one that had occupied 733 Cherokee Street, would not be larger in size than that which had previously existed on the site, and that she would not offer a greater scope or degree of service than that offered by her prior restaurant at that location.

After the acquisitions by the Ippolitos, the neighborhood residents and MARI members complained to the City about operation and use of Lots 1-A and 2-A by Phillips’. The complaints intensified in 1996 after the Ippolitos began improving Lot 2-A to serve as an accessory patio bar connected to the bar and restaurant occupying Lot 1-A. For example, after having received complaints about unpermitted construction activities on Lot 2-A, Inspector Mike Savage of the City’s Department of Public Safety and Permits Building Inspection Bureau | ¿conducted a field inspection of both Lot 2-A and the bar and restaurant occupying Lot 1-A on October 23, 1996. Inspector Savage subsequently prepared a written report wherein he noted the construction of a fence, the placement of concrete planters and an air conditioning unit on Lot 2-A. Further, a City investigator again inspected Phillip’s and Lot 2-A on August 1, 1997. This inspection resulted in a September 19, 1997, notice of hearing from the City’s Administrative Adjudication Bureau, though the hearing was subsequently continued by the City, and later abandoned. Moreover, Mr. Savage, the City inspector, examined the property on September 9, 1999, resulting in a September 10, 1999 Notice from the City ordering Paul Ippolito to either remove the improvements on Lot 2-A or secure a building permit. The record also contains a September 17, 1999 memorandum from Paul May, the Director of the City’s Department of Safety and Permits, to a deputy city attorney. In the memorandum, Mr. May notes that he had “received complaints from neighbors of the above alcoholic beverage outlet [at 733 Cherokee Street] that it is operating a patio bar next door to the establishment on a lot at 727 Cherokee Street which I understand the bar owns.” A City inspector again visited Lot 2-A on September 21, 1999, and took photographs of the improvements made to Lot 2-A. These photographs were later forwarded to Paul May. Subsequently, the City issued a municipal citation to Joseph Ippolito, d/b/a Phillips’ Bar and Restaurant, alleging various violations in connection with Lot 2-A. Mr. Ippolito pled not guilty and filed a motion to quash. The court later dismissed the citation.

IfiOn April 20, 2000, MARI’s president wrote a letter on MARI letterhead to Mr. May concerning Phillips’ use of Lot 2-A as a patio bar. The letter asked the City to order Phillips’ to cease commercial activities on Lot 2-A, declare the construction of the patio bar to be in violation of zoning regulations, and sanction Phillips’ appropriately.

B

Subsequently, the City filed a petition for preliminary and permanent injunction on August 23, 2000, against Phillips’ and Paul Ippolito. The City’s petition alleged that the patio bar illegally expanded Lot 1-A’s non-conforming use onto Lot 2-A in violation of the City’s CZO. The City’s petition was supported by an affidavit executed by Mr. May wherein, among other things, he averred:

On September 19, 1999, he personally investigated a complaint that the premises at 727 Cherokee Street were being used as an outdoor patio, where alcoholic beverages were being sold and consumed, for the business “Phillips’ Bar & Restaurant, Inc.” located next door at 733 Cherokee Street. Additionally, since the time of that investigation, [sic] there he has received subsequent complaints that 727 Cherokee Street is being used as an outdoor patio where alcoholic beverages are sold and consumed.

Mr. May concluded:

a. “Phillips’ Bar & Restaurant, Inc.” violated Section 13.5.2 [of New Orleans Comprehensive Zoning Ordinance], by illegally extending or enlarging the non-conforming use of the “Phillips’ Bar & Restaurant, Inc.” onto the lot next door, located at 727 Cherokee Street.
b. Such an expansion of a non-conforming use, in any manner, is expressly prohibited by this section of the CZO.
c. “Phillips’ Bar & Restaurant, Inc.” violated Section 4.5.3, by using the lot, located at 727 Cherokee Street, as a Bar and/or Restaurant which, according to Section 4.5.3, is not a permitted [7use of property located in an RD-2, Two-Family Residential District.

Phillips’ and Ippolito answered the suit and asserted that Lot 2-A had acquired legal non-conforming status by passage of time and that the City’s claim had prescribed. Following a hearing, the district court issued a preliminary injunction on December 12, 2000, against the defendants. Notably, the district court’s judgment merely noted that “the preliminary injunction filed by plaintiff herein is hereby granted.”

The City, however, never set the matter for trial in order to obtain a permanent injunction. Thus, on November 3, 2006, on motion of Phillips’ and Ippolito, the district court issued a judgment declaring the 2000 matter to have been abandoned as of June 6, 2006. (The parties stipulated before the trial of the present matter that the last step taken in the prosecution or defense of the 2000 matter occurred on June 6, 2003.)

On May 9, 2007, plaintiffs initiated the present matter by filing a petition for declaratory relief wherein they requested a judgment declaring that: 1) the 2000 matter, by virtue of its abandonment, is to be considered as never having been filed; 2) all causes of action that were, or could have been, brought by the City in the 2000 action are now prescribed; and 3) they now have a vested property right to use Lot 2-A in connection with their legal nonconforming use of Lot 1-A. The City answered and reconvened asking the district court to enjoin plaintiffs from using Lot 2-A as a prohibited bar and/or restaurant. The City subsequently |samended their reconventional demand several times, though its request for relief remained, essentially, unchanged. On April 2, 2008, the district court issued a preliminary injunction enjoining Phillips’ and Paul Ippol-ito from selling, in the absence of appropriate licenses, alcoholic beverages for consumption at 727 Cherokee Street. On June 9, 2011, MARI intervened in the matter seeking a permanent injunction enjoining the plaintiffs from violating the restrictive covenant signed by Mrs. Phillips in 1981 and prohibiting them from using Lot 2-A in connection with the operation of the restaurant and bar on Lot 1-A.

C

The matter came to trial on December 12, 2011. At trial, the plaintiffs introduced evidence that the patio, like Phillips’ proper, was open for business at least four hours a day, five days a week. The plaintiffs further established that prior to the 2008 preliminary injunction the patio on Lot 2-A had been used by Phillips’ patrons for, among other things, cell phone use, tobacco consumption, socializing, private events, keg parties, political fundraisers, baby showers, and crawfish boils. In fact, the plaintiffs elicited testimony that the patio saw at least fifteen special events a year. The plaintiffs also elicited testimony that prior to the imposition of the 2008 preliminary injunction its patrons were allowed to consume food and alcoholic beverage on the patio that were sold from Phillips’ proper. We emphasize at this point, however, that there is little if any evidence that alcoholic beverages were ever sold on the patio; indeed, the plaintiffs acknowledge that they |flwould need an ABO permit for Lot 2-A for such sales and that they do not and never have had, in fact, such a permit.

Specifically, the plaintiffs elicited testimony that once the patio had been put into service, and prior to the imposition of the 2008 preliminary injunction, no six-month period had elapsed where Phillips’ patrons had not used the patio. The testimony elicited at trial also established that private events are still held on the patio and that Phillips’ patrons, even after the imposition of the 2008 preliminary injunction, have been free to use the patio except that Phillips’ now prohibits its patrons from consuming alcohol on the patio.

After trial, the district court took the matter under advisement and issued a judgment, and reasons therefor, on February 8, 2012. Specifically, the district court’s original judgment: 1) dissolved the 2000 preliminary injunction as abandoned; 2) found that the plaintiffs failed to meet their burden of proving that they have a vested property right to use Lot 2-A in connection with their legal nonconforming use of Lot 1-A; 3) found conversely that the City established that the legal nonconforming use held by 733 Cherokee does not extend to 727 Cherokee; and 4) held that MARI’s action to enforce its restrictive covenant had prescribed. All parties sought motions for new trial. Specifically, the plaintiffs challenged those portions of the district court’s judgment that held that they failed to prove, and that the City established, that the plaintiffs did not have a vested property right to use Lot 2-A in connection with the legal non-conforming use held by Lot 1-A. The City challenged the district court’s factual finding that it has continuously hnpermitted Phillips’ to operate as a bar, and not a restaurant with an accessory bar, since 1998, and the district court’s failure to rule on the City’s request for a permanent injunction. Similarly, MARI also sought a ruling on its request for a permanent injunction against the plaintiffs. Significantly, MAPJ did not ask the district court to revisit its finding that MARI’s right to enforce the restrictive covenant had prescribed. Rather, MARI’s renewed request for a permanent injunction was based on the plaintiffs’ alleged violation of the City’s zoning ordinances.

After a hearing on the motions for new trial, the district court issued an amended judgment on May 4, 2012, which: 1) denied the plaintiffs’ motion for new trial; 2) denied the City’s request to reverse its finding that Lot 1-A has acquired a legal nonconforming status as a bar; and 3) granted the City’s and MARI’s request for a permanent injunction against the plaintiffs. Specifically, the permanent injunction provides, in pertinent part:

a permanent injunction is hereby issued, without bond in accordance with law, directed to Phillip’s Bar & Restaurant, Inc., Paul F. Ippolito, and 733 Cherokee, L.L.C., their agents, employees, and all other persons, firms, or corporations acting or claiming to act on their behalf, and enjoining them from using 727 Cherokee Street, New Orleans, Louisiana as a bar and/or restaurant independently and/or in connection with 733 Cherokee Street and from selling or serving alcoholic beverages for consumption at 727 Cherokee Street.

|nThe plaintiffs timely sought a devolu-tive appeal from the district court’s original and amended judgments. Neither the City, nor MARI, has answered the plaintiffs’ appeal or appealed any aspect of the district court’s original or amended judgments.

II

Before we address the particular issues arising from the judgments’ denial of declaratory relief and grant of injunctive relief, we discuss at the outset in this Part those general principals applicable to zoning and property usage disputes. We reserve for discussion, however, the law regarding acquisition and continuance of nonconforming uses in Part III-B, post.

A

Zoning is designed to foster improvements by confining certain classes of buildings and uses to certain localities without imposing undue hardship on property owners. City of New Orleans v. Elms, 566 So.2d 626, 628 (La.1990). The essence of zoning “is territorial division in keeping with the character of the lands and structures and their peculiar suitability for particular uses, and the uniformity of use within the division.” Id. The traditional purpose of zoning is to reduce or eliminate the adverse effects of one type of land use on another by segregating different uses into different zoning districts. Redfearn v. Creppel, 455 So.2d 1356, 1359 (La.1984).

Zoning by its nature is a legislative function. Elms, 566 So.2d at 629. La. Const. art. VI, § 16 grants local governing authorities the power to adopt zoning | ¶ regulations and standards for use of areas and structures subject to procedures established by law. La. R.S. 33:4721 provides that “[f]or the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of all municipalities may regulate and restrict the height, number of stories, and size of structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of the buildings, structures, and land for trade, industry, residence, or other purposes.” Additionally, La. R.S. 33:4723 indicates that zoning regulations shall, among other things “be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout the municipality.” As observed by the Supreme Court in Elms, the “principal regulation which has been utilized to carry out the purposes of zoning is the exclusion of commercial uses from residential uses.” 566 So.2d at 629. Purely business uses “are generally excluded from residential districts by simply omitting them from the list of permitted uses.” Id.

B

Nevertheless, as observed by us in City of New Orleans v. Hamilton, “[w]hile local municipalities are given the power and function of defining the use of property as they best see fit, property users are not wholly unprotected or expected to change their use of property every time their area is rezoned.” 602 So.2d 112, 114 (La.App. 4 Cir.1992). It is, therefore, “well settled law that use of | ^property which does not conform to the use zoned appropriate for that area may still enjoy the same legal status as property that does conform.” Id. Nonconforming use status is designed to protect those uses which were legally established before the enactment of a restrictive regulation. Id. Thus, a legal nonconforming use is one “which was lawful prior to the enactment of a particular zoning regulation and which is continued after the effective date of the regulation, although the continued use violates the new zoning restrictions for the district in which the property is situated.” Id.

The permitted continuation of a nonconforming use is designed to avoid the hardship, injustice and doubtful constitutionality of compelling the immediate removal of objectionable buildings and uses already in the area. Redfearn, 455 So.2d at 1359. As noted, “the purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities.” Id. Because a nonconforming use is inconsistent with this objective, “it should, consistently with the property rights of the individuals affected and substantial justice, be viewed narrowly and have all doubts resolved against continuation or expansion of the nonconformity.” Id. As noted in Redfearn, the “general rule is that the continuance of a nonconforming use is a continuance of the same use and not some other type of use.” Id. The established use may be continued; a different use inconsistent with the zoning regulations is not authorized. Id.

\UA governing authority may, however, lose the right to prohibit a given nonconforming use through the operation of prescription. La. R.S. 9:5625 provides, in pertinent part:

A. (1) All actions civil or criminal, created by statute, ordinance, or otherwise ... which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation.
(2) Where a violation has existed for a period of two years prior to August 1, 1956, ... the action must be brought within one year from and after August 1, 1956.
(3) With reference to violations of use regulations all such actions, civil or criminal ... must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.
(4) Except as relates to nonconforming signs and billboards, any prescription heretofore accrued by the passage of two years shall not be interrupted, disturbed, or lost by operation of the provisions of this Section.

In determining whether prescription has accrued in a zoning enforcement action, the burden of proof is upon the person pleading prescription. Elms, 566 So.2d at 630. The key element in proving that prescription has accrued is knowledge on the part of the Parish. Id. at 630. With respect to violation of use regulations, the parish must -specifically receive written notice for the prescriptive period to commence. La. R.S. 9:5625 A(3). Once that is shown, however, the burden switches to the party pleading termination of the non-conforming use status by abandonment or discontinuance. Elms, 566 So.2d. at 634. Nonconforming use 1^status, once attained, may be lost if the property is not used for the nonconforming purpose for a continuous period of six months. Orleans Parish CZO, Article 13, Section 13.2.1. The burden of proving termination of nonconforming use status by abandonment or discontinuance is on the party urging termination of the status. Elms, 566 So.2d at 634.

Ill

In this Part, and keeping in mind those general principles of zoning law, we turn to explain why we affirm the declaratory judgment rendered by the district court. This aspect of the present appeal arose out of the plaintiffs’ request for declaratory relief. We begin by discussing in general those principals of law that govern actions for declaratory judgment. We then discuss the particular principals applicable to nonconforming uses. And lastly we address why we reject the plaintiffs’ arguments that the district court erred when it refused to decree that plaintiffs have a vested property right to use Lot 2-A in connection with their legal non-conforming use of Lot 1-A.

A

La. C.C.P. art. 1871 authorizes declaratory judgment actions:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

11fiFurther, La. C.C.P. art. 1872 indicates who may bring such actions:

A person interested under a deed,' will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Therefore, “a declaratory judgment is one which simply establishes the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done, its distinctive characteristic being that the declaration stands by itself and no execu-tory process follows as a matter of course.” Succession of Rickerfor, 120 So.2d 320, 323 (La.App. 4 Cir.1960). Accordingly, the declaratory judgment action is “distinguished from a direct action in that it does not seek execution or performance from the defendant or the opposing litigants.” Id.

A suit for declaratory judgment is, therefore, an appropriate means to decide the rights and obligations of parties to a controversy. In re Peter, 98-0701 (La.App. 4 Cir. 12/23/98), 735 So.2d 665, 667. When a declaratory judgment “would terminate the uncertainty or controversy, the trial court must render such judgment.” Id. Conversely, La. C.C.P. art. 1876 indicates that a “court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.” However, “the courts will only act in cases of a present, justiciable 1 ^controversy and will not render merely advisory opinions.” Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 701 (La.1993).

Nevertheless, La. C.C.P. art. 1881 declares that these Articles are remedial: “Their purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered.” Accordingly, La. C.C.P. art. 1875 provides that “the enumeration in Articles 1872 through 1874 does not limit or restrict the exercise of the general powers conferred in Article 1871 in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.” Therefore, if a district court grants a declaratory relief, La. C.C.P. art. 1878 indicates that further relief may be granted whenever “necessary or proper”:

The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

La. C.C.P. art. 1879 notes that when “a proceeding under Articles 1871 through 1883 involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.” With respect to appellate review, La. C.C.P. art. 1877 indicates that all “orders, judgments, and decrees under Articles 1871 through 1883 may be reviewed as other orders, judgments, and decrees.” Further, as this Court has noted, the scope 11sof appellate review is confined to a determination of whether or not the trial court abused its discretion by granting or refusing to render a declaratory judgment. Ricard, v. State, 544 So.2d 1310, 1312 (La.App. 4 Cir.1989).

B

In this Part we discuss the law regarding the acquisition and continuance of nonconforming uses. As noted, a legal non-conforming use can arise by virtue of the fact that a given use pre-existed the enactment of a current and otherwise applicable, zoning law. On the other hand, a legal non-conforming use can also arise by virtue of sustained governmental acquiescence. Thus, the jurisprudence obligates the proponent of a given use to establish that their nonconforming use of a piece of property has been “regular and consistent” or “continuous and consistent.” See, e.g., Elms, 566 So.2d at 628; Weisler, 98-3007, 745 So.2d at 1262. La. R.S. 9:5625 also touches on this issue. While Section A sets out the applicable prescriptive periods governing actions for the enforcement of zoning provisions, La. R.S. 9:5625 B provides for the “grandfathering” of certain types of nonconforming uses:

B. In all cases where the prescription provided for herein has accrued, the particular property involved in the violation of the zoning restriction, building restriction or subdivision regulation shall enjoy the same legal status as land uses, construction features of buildings or subdivisions made nonconforming by the adoption of any zoning restriction, building restriction or subdivision regulation ...

The grandfathering provided for in La. R.S. 9:5625 B applies solely to those types of violations regulated by the prescriptive provisions set out in Part A(l), i.e., violation respecting of zoning restrictions, building restrictions and subdivision | ^regulations. Part B is, therefore, not applicable to the present matter, which concerns a violation of use regulations that are addressed in La. R.S. 9:5625 A(2). This is not to say, however, that a use regulation could not be grandfathered in by regular and consistent use. Specifically, in Orleans Parish, where Lot 2-A is situated, Article 13, Section 13.6.1 of the CZO provides specifically:

The casual, intermittent, temporary, or illegal use of land or buildings shall not be sufficient to establish and maintain the existence of a nonconforming use. In order to provide for the continuation of a nonconforming use, it must be opened for business a minimum of four (4) hours per day, five (5) days per week. The hours of operation must be posted on the entrance to the use. Equipment or furnishings required by City ordinances for the specific type of activity must be available and the structure shall be maintained in accordance with applicable ordinances of the City. The existence of a nonconforming use on part of a lot or tract shall not be construed to establish a nonconforming use on the entire lot or tract.

As an exception, Article 13, Section 13.6.2 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.

Further, Article 13, Section 13.7 of the CZO, while not applicable specifically to the present matter, indicates further the type of evidence that may be used to establish nonconformity:

The Director of the Department of Safety and Permits, at the time application is filed for a certificate of occupancy (attesting to the legal nonconforming status of an existing use), shall make an initial determination as to the existence of such nonconforming use; and in so doing shall require the property owner, or his agent, to produce acceptable evidence attesting to said legal nonconforming status. 120Such evidence shall include, but need not be necessarily restricted to, such documents, as rent receipts, affidavits, documentation of utility services or other information as may be deemed to be necessary in a particular case.

Article 13, Section 13.2.1 of the Orleans Parish CZO, nevertheless, provides that vacancy can result in a loss of legal nonconforming status:

No nonconforming building or portion thereof, or land used in whole or in part for nonconforming purposes, which hereafter becomes and remains vacant for a continuous period of six (6) calendar months shall again be used except in conformity with the regulations of the district in which such building or land is situated. The intent of the owner or other person to use a building or land for nonconforming purposes shall not be determinative of whether such building or land was vacant. The burden of proof to establish the existence and retention of a nonconforming use shall be on the property owner of the building or land claiming retention of said nonconforming use by clear and convincing evidence.

Accordingly, in order to establish that they had a vested property right to use Lot 2-A in connection with their legal nonconforming use of Lot 1-A, the plaintiffs were obligated to meet the burden of proof set out by CZO Article 13, Section 13.6.1.

C

We analyze and reject the plaintiffs’ arguments that the district court erred when it declined to find that they have a vested property right to use Lot 2-A in connection with their legal nonconforming use of Lot 1-A. In its reasons for judgment, the district court held the plaintiffs did not meet their burden of proof: “The failure to post signs regarding the use of the patio and the intermittent use for smoking and cell phone calls are not sufficient to create non-conforming use.” Similarly, the district court also found that the plaintiffs did not establish that the \9A patio was used frequently enough to support a finding that it attained a legal nonconforming use as a reception facility.

The plaintiffs’ arguments in support of their position have not changed substantially since they were first advanced before the district court. The plaintiffs argue, specifically, that Lot 2-A acquired legal nonconforming use status because: 1) the City received written notice of the plaintiffs’ violation of applicable use regulations in 1999; 2) the City abandoned the 2000 injunction; 3) the effect of this abandonment meant that La. R.S. 9:5625 prescription did not toll on the City’s enforcement action; and 4) its nonconforming use of Lot 2-A had acquired a legal status by operation of La. R.S. 9:5625 and the passage of five years from the City’s receipt of written notice. The plaintiffs also argue that the district court erred when it found that they failed to prove that Lot 2-A acquired legal nonconforming status as a reception facility, and that Section 13.6.1 of the Orleans Parish CZO must be invalidated because it is in conflict with La. R.S. 9:5625.

Having reviewed the record and the exhibits introduced by the parties, we are not prepared to say that the district court committed manifest error when it refused to find that plaintiffs have acquired a vested right to use Lot 2-A in connection with the legal nonconforming use of Lot 1-A. While it is true that the patio bar was open, like Phillips’ proper, for at least four hours a day for five days a week, and that Phillips’ patrons were, before the imposition of the 2008 preliminary injunction, regularly allowed to consume alcoholic beverages on Lot 2-A, and that Lot 2-A played host to numerous types of social gatherings between 122^000 and 2008, the record is devoid of any evidence Phillips’ hours of operation were posted, pursuant to Article 13, Section 13.6.1, at the entrance to either Phillips’ or Lot 2-A.

Further, we are not convinced that the district court misapplied La. R.S. 9:5625 in the context of the plaintiffs’ request for a declaration of vested rights. As noted, the present matter concerns a violation of the City’s use regulations and Section B, La. R.S. 9:5625’s grandfather clause, does not apply to the violation of use regulations. The plaintiffs’ arguments on this point are, thus, misplaced. Similarly, we do not believe that the district court erred when it refused to find that Lot 2-A has acquired legal non-conforming status as a reception hall pursuant to Section 13.6.2 of the CZO. Although there is evidence in the record that at least fifteen private events a year have been held on Lot 2-A, there is no evidence in the record that Lot 2-A was operated as a “designated reception facility.” We, therefore, decline to hold that the district court committed manifest error when it declined to grant the plaintiffs’ request for a judgment declaring that plaintiffs have acquired a vested right to use Lot 2-A in connection with their legal nonconforming use of Lot 1-A.

IV

The plaintiffs assail the district court’s imposition of an injunction permanently enjoining the plaintiffs from using Lot 2-A as a bar and/or restaurant independently and/or in connection with Lot 1-A, and from selling or serving alcoholic beverages on Lot 1-A for consumption at Lot 2-A. The plaintiffs assert, | ^specifically, that the district court erred when it permanently enjoined the sale of alcohol on Lot 1-A (in the bar) for consumption on Lot 2-A (on the patio) because the City’s and MARTs right to seek an injunction on this use of Lot 2-A has prescribed. We agree and, accordingly, modify the injunction by deleting its prohibition on the sale of alcohol on Lot 1-A for consumption on Lot 2-A, and its prohibition against using Lot 2-A in connection with Phillips’ operations as a bar and restaurant. We now explain our decision in this regard.

A

We first, however, set out the law applicable to permanent injunctions. La. C.C.P. art. 3601 A provides in pertinent part: “An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” Traditionally, injunction has been held to be a harsh, drastic and extraordinary remedy which should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law. Kruger v. Garden Dist. Ass’n, 00-1135, p. 7 (La.App. 4 Cir. 1/17/01), 779 So.2d 986, 991. A petitioner is, however, entitled to injunctive relief without the requisite showing of irreparable injury “when the conduct sought to be restrained is unconstitutional or unlawful, ie., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right.” Jurisich v. Jenkins, 99-076 (La.10/19/99), 749 So.2d 597, 599. A municipality may enjoin violations of a zoning ordinance. City of New Orleans v. National Polyfab Corp., 420 So.2d 727, 728 (La.App. 4 Cir.1982).

l^A hearing on a permanent injunction is “an ordinary proceeding.” Elysian Fields Church of Christ v. Dillon, 08-0989, p. 6 (La.App. 4 Cir. 3/18/09), 7 So.3d 1227, 1231. The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence. French’s Welding & Maintenance Service, L.L.C. v. Harris Builders, L.L.C., 12-0200, p. 3 (LaApp. 4 Cir. 12/12/12), 106 So.3d 716, 718. A permanent injunction is a final judgment and “so long as it remains in force, it extends the life of the proceeding in which it was granted until it is modified or revoked in a proceeding brought for that purpose in the district court which issued it.” Tenneco, Inc. v. Oil, Chemical and Atomic Workers Union, Local 4-522, 234 So.2d 246, 248 (La.App. 4 Cir.1970). Appellate courts review a trial court’s granting of a permanent injunction utilizing the manifest error standard. Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29.

B

The plaintiffs argue that the district court erred as a matter of law in granting the permanent injunction because the defendants right to enjoin the consumption of alcohol on Lot 2-A had prescribed by operation of La. R.S. 9:5625 A(3). As noted, the touchstone consideration for this inquiry centers on evidence of written notice. Plaintiffs contend that the City received written notice of the subject use violations in 1999. Regardless of this contention, the trial court observed, and the record indicates, however, that the City received written notice of the fact that alcohol was being sold for consumption on Lot 2-A in 2000.

| 2qAs noted, MARI’s president wrote a letter to Mr. May, the City’s Zoning Administrator, on April 20, 2000, concerning Phillips’ use of Lot 2-A as a patio bar. The letter noted specifically that “Phillip’s Restaurant and Bar has expanded its operations into the adjacent, residentially zoned lot.” The letter further states that “[i]n violation of applicable city zoning regulations, the restaurant has constructed an outdoor bar which it has described as a ‘patio’ in its sidewalk advertisement outside the restaurant.” The letter additionally indicates that alcoholic beverages are being consumed on the lot. Clearly, the City had written notice in 2000, at the latest, of the plaintiffs’ violation of use regulations pertaining to Lot 2-A.

The plaintiffs also contend that the preliminary injunction, which was issued in 2000, did not toll the running of La. R.S. 9:5625 A(3) prescription. The district court found no legal support for this assertion. We disagree and find that the district court committed legal error when it held otherwise.

First, we observe that the district court’s 2000 preliminary injunction could not serve to toll the running of prescription because it was fatally defective, and thus null and void. Specifically, the preliminary injunction stated: “the preliminary injunction filed by plaintiff herein is hereby granted.” We find that the 2000 preliminary injunction is invalid as an injunction because it fails to describe the actions being enjoined. La. C.C.P. art. 3605 states, in pertinent part: “An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or 12fjOther documents, the act or acts sought to be restrained.” Accordingly, a judgment that purports to grant an injunction but fails to describe the prohibited acts with specificity is void. Lucky Coin Machine v. Hillensbeck, 00-0313, p. 5 (La.App. 4 Cir. 1/31/01), 778 So.2d 1262, 1264; Vanvrancken v. Roy, 296 So.2d 460, 462 (La.App. 4 Cir.1974). The 2000 preliminary injunction merely renders judgment in favor of the city. It neither specifies the acts enjoined nor describes the properties involved. The 2000 preliminary injunction is, clearly, null and void as an injunction.

Second, we note that, even had the 2000 preliminary injunction contained the appropriate decretal language, it would not have tolled the running of prescription because the City abandoned the action in 2003. All parties stipulated prior to trial in the present matter that the last step taken in the prosecution of the 2000 matter occurred on June 6, 2003. Moreover, the district court confirmed the 2000 action’s abandonment when it issued a judgment on November 3, 2006, declaring the 2000 matter to have been abandoned as of June 6, 2006. As this Court stated in Box v. French Market Corporation, 00-1880, pp. 5-6 (La.App. 4 Cir. 9/5/01), 798 So.2d 184, 186, when a “party that has obtained a preliminary injunction fails to seek a permanent injunction (and no other action is taken in the case) for a period of at least three years, that case is deemed abandoned by law.” The issue, therefore, is not whether the City abandoned the 2000 matter, but the effect of the abandonment.

127The plaintiffs contend that the 2000 preliminary injunction did not toll the running of La. R.S. 9:5625 A(3) prescription by virtue of the operation of La. Civil Code art. 3463. We agree. La. Civil Code art. 3663 provides:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial.

By the clear wording of La. Civil Code art. 3463, a suit that has been abandoned cannot serve to toll the running of prescription. The Supreme Court in Charbonnet v. State Realty Co., 155 La. 1044, 1049, 99 So. 865, 867 (La.1923), first addressed this principal: “a suit which has been abandoned for nonaction during a period of five [now three] years does not constitute a legal interruption to the course of prescription, and its effect is to leave a plaintiff in the same position that he would occupy if he had not instituted the suit.” The Supreme Court further discussed the issue in Long v. Chailan, 196 La. 380, 397-398, 199 So. 222, 227 (La.1940):

According to the terms of the statute it is not the dismissal of the suit that causes it to lose the effect of interrupting prescription. What causes the interruption to ‘be considered as having never happened’ is the plaintiffs allowing five years to elapse without taking any steps in the prosecution of his suit. The allowing of five years to elapse without taking any steps in the prosecution of a suit constitutes an abandonment of the suit, and the effect of the abandonment is that ‘the interruption [of prescription] shall be | ^considered as having never happened.’ It is not necessary for the defendant to have the suit dismissed or stricken from the docket in order that the abandonment may destroy whatever effect the suit may have had in the way of interrupting prescription. When the five years of inaction on the part of the plaintiff have expired, the suit becomes as ineffectual so far as it may have interrupted prescription as if the interruption had ‘never happened’.

Therefore, as the Supreme Court noted in Losch v. Greco, 173 La. 223, 228, 136 So. 572, 573-574 (La.1931):

In other words, the abandonment which results as a legal consequence of a plaintiffs failure to take any action in his suit during a period of five years merely bars his right to continue with the prosecution of that suit. It does not prevent his bringing another suit for the same cause of action; but, if he brings another suit for the same cause of action, the question whether his right of action is barred by prescription must be determined as if no suit had been theretofore brought.

The City’s institution of the injunction proceeding against the plaintiffs in 2000 did not toll prescription on its attempts to prohibit the sale of alcohol for consumption on Lot 2-A because the City subsequently abandoned its suit. Therefore, the City’s reconventional demand for preliminary and permanent injunctions had prescribed by the time the City again sought to enjoin the plaintiffs from selling alcohol for consumption on Lot 2-A. Accordingly, the district court erred when it granted the City and MARI a permanent injunction in the present case that forbade the sale of alcohol on Lot 1-A for consumption on Lot 2-A.

C

We, therefore, modify the district court’s permanent injunction in light of the fact that Phillips’, as holder of the ABO permit, is not prohibited generally by municipal regulations concerning the sale of alcoholic beverages from selling [^alcohol for consumption off its premises. As noted, Phillips’ holds a Class A-general permit which City ordinance defines as, among other things, a “retail outlet where alcoholic beverage is sold on the premises for consumption on or off the premises by paying customers.” Phillips’ premises are limited to Lot 1-A and we can find no statute or ordinance that would limit its patrons to consumption of alcoholic beverages solely on its premises.

Similarly, our modification is made in light of the fact that 733 Cherokee, as owner of Lot 2-A, is not prohibited from allowing its invitees from consuming alcoholic beverages on its premises. As noted, Lot 2-A is zoned RD-2. The CZO does not prohibit the mere consumption of food and alcoholic beverages on properties zoned RD-2. Specifically, Article 4, Section 4.5.1 of the CZO defines the RD-2 district accordingly: “The RD-2 Two-Family Residential District is intended to provide for two-family developments on smaller lots in older, more densely populated sections of the City. This development may be mixed with single-family dwellings, together with such churches, recreational facilities and with accessory uses as may be necessary or are normally compatible with residential surroundings. Town houses are authorized only as conditional uses.” Nevertheless, the RD-2 district provides for a wide range of property uses. Other permitted uses within an RD-2 district include public parks, playgrounds, and their concession stands, in addition to private recreational clubs. Further, certain types |3nof restaurants and coffee shops are also considered accessory uses in an RD-2 district. Moreover, the CZO provides that private clubs, among other things, are considered a conditional use within an RD-2 district. Our review of the CZO, therefore, has failed to reveal any indication that the mere consumption of alcoholic beverages is prohibited on lots within an RD-2 district.

Therefore, we modify the district court’s permanent injunction by deleting the language that forbade Phillips’ from selling food or alcohol at 733 Cherokee Street (Lot 1-A) for consumption at 727 Cherokee Street (Lot 2-A).

DECREE

Accordingly, the original and amended judgments of the district court denying the plaintiffs’ request for a judgment declaring that plaintiffs do not have a vested property right to use Lot 2-A in connection with their legal nonconforming use of Lot 1-A is affirmed. Similarly, we affirm the original and amended judgments of the district court which found that the legal nonconforming use pertaining to 733 Cherokee Street does not extend to 727 Cherokee Street.

With respect to the original and amended judgments of the district court in favor of the City of New Orleans and Maple Area Residents, Inc., the permanent injunction is modified to remove the restriction on selling food and alcohol at the bar premises on Lot 1-A for consumption by patrons on Lot 2-A and, accordingly, the following permanent injunction issues:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of defendant and plaintiff-in-reconvention, the City of New Orleans, and intervenor, Maple Area Residents, Inc., and against plaintiffs and defendants-injreconven-tion31 and intervention, Phillips’ Bar & Restaurant, Inc., Paul F. Ippolito, and 733 Cherokee, L.L.C., upon the recon-ventional demand and intervention for permanent injunctive relief, and, accordingly, a permanent injunction is hereby issued, without bond in accordance with law, directed to Phillip’s Bar & Restaurant, Inc., Paul F. Ippolito, and 733 Cherokee, L.L.C., their agents, employees, and all other persons, firms, or corporations acting or claiming to act on their behalf, and enjoining them from using Lot 2-A (727 Cherokee Street, New Orleans, Louisiana) as a bar and/or restaurant independently of Lot 1-A (73B Cherokee Street, New Orleans, Louisiana) and from selling or serving alcoholic beverages on Lot 2-A for consumption.

Each party is to bear its own costs. See La. C.C.P. art. 2164.

AMENDED AND AFFIRMED, AS AMENDED

LOMBARD, J., concurs in the result.

      . The parties have stipulated, however, that since 2008 the sale of food and non-alcoholic beverages at 733 Cherokee have accounted for less than 50% of the Phillips’ revenue.

      . Although they hold different procedural postures, Phillips’ Bar & Restaurant, Inc., Paul F. Ippolito, and 733 Cherokee, L.L.C., will, for brevity's sake, be referred to hereafter collectively as "plaintiffs.”

      . The district court noted that "on March 1, 1998, the City issued 733 Cherokee Street a temporary liquor and beer permit as a bar, not a restaurant with a bar. Continuously thereafter, it was permitted by the City and State of Louisiana as a bar." Neither the City, nor MARI, has appealed this finding.

      . The district court also clarified its previous rulings — that the plaintiffs did not meet their burden of proving that they had a vested right to use Lot 2-A in connection with their legal non-conforming use on Lot 1-A and that the legal non-conforming use held by 733 Cherokee did not extend to 727 Cherokee — by providing that these rulings were made in favor of the City and MARI and specifically against Phillips’, Paul F. Ippolito, and 733 Cherokee, L.L.C. No party appeals these clarifications.

      . This principle should not be confused with the principle that a zoning ordinance, being in derogation of the rights of private ownership, must be construed, when subject to more than one reasonable interpretation, according to the interpretation which allows the least restricted use of the property. Weisler v. Board of Zoning Adjustments, 98-3007 (La.App. 4 Cir. 11/17/99), 745 So.2d 1259, 1261. Nevertheless, it has also been held that zoning ordinances must be construed so as to resolve any doubt in favor of the property owner. Elms, 566 So.2d at 632.

      . Our discussion on this point, likewise, addresses the plaintiffs' challenge to the district court's related finding that the City and MARI met their burdens of establishing that the legal non-conforming use held by Lot 2-A does not extend to Lot 1-A.

      . The Code of Civil Procedure was amended in 1997 to reduce the abandonment period from five to three years. See Acts 1997, No. 1221.

      . The Supreme Court in Long was discussing art. 3519 of the La. Civil Code of 1870, the source article for the second sentence of current La. Civil Code art. 3463. As noted by the redactors of the present code, the current article does not change the law. Thus, the Supreme Court’s discussion in Long is still of relevance to the present controversy.

      . We note, however, that City Ordinance 10-404, of Chapter 10, Article III, prohibits an ABO licensee from allowing the sale or consumption of alcoholic beverages in the licensee’s parking lots or driveway areas, except during carnival parade season. Similarly, City Ordinance 10-403, of Chapter 10, Article III, prohibits an ABO licensee from setting up sidewalk chairs and benches adjacent to the licensed premises.


author: CHANDLER, Justice, PIERCE, Justice,

text:
    Tevin James BENJAMIN v. STATE of Mississippi.
    No. 2010-KA-01569-SCT.
    Supreme Court of Mississippi.
    June 6, 2013.

      Robert B. McDuff, Michael P. Addis, attorneys for appellant.
    Office of Attorney General by Ladonna C. Holland, attorney for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. A Jackson County jury found Tevin James Benjamin guilty of capital murder with the underlying felony of robbery, and the court sentenced him to life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole. Benjamin has appealed. We find that Benjamin’s statement to the police was taken in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Therefore, we reverse and remand for a new trial. We do not address Benjamin’s other issues.

FACTS

¶ 2. On October 23, 2008, Michael and Linda Porter were traveling to Pascagoula to watch Linda’s grandson play football. It was a dark, rainy night. At approximately 6:50 p.m., they stopped at a Conoco gas station in Moss Point to ask for directions to the football stadium. The Co-noco was on the corner of Peters Street and Highway 63. Michael, who was driving, pulled in front of the gas station, parallel to the pumps, with the front of the car facing Peters Street. He exited the car to go into the gas station, and Linda stayed in the car. She saw three young men standing in front of the car, one with a white towel over his head. About ten seconds later, two of the men walked past the car, and she heard a commotion in the rear of the car. She looked through the rear window and saw two of the men attacking Michael, while the third man with the white towel kept watch on her. Michael wrestled with the men and managed to open the driver’s side door, push them off, get inside the car, and slam the door on them. Once inside the car, Michael held the door shut with his right hand and attempted to work the gear shift with his left hand. The man with the white towel approached the car, aimed a gun at Linda, and then at Michael, and fired. The bullet struck Michael in the chest. The assailants fled. Michael managed to get the car in gear and drive away, but quickly succumbed to the bullet wound. Linda stopped the car and ran to a nearby house for help. When the police and paramedics arrived, Michael was transported to Singing River Hospital, where he was pronounced dead. Linda was unable to identify the assailants, whom she described as black males in their early twenties.

¶ 3. The police arrested Benjamin, Darwin Wells, Terry Hye, and Alonzo Kelly in connection with the crime. It was determined that Wells had fired the fatal shot. The police searched Wells’s home and found a handgun. Carl Fullilove with the Mississippi Crime Laboratory testified that the bullet that had killed Michael Porter had been fired from that gun.

¶ 4. Kelly, who was indicted and pleaded guilty as an accessory after the fact, was a key witness at Benjamin’s trial. Kelly testified that, the morning of the crime, Hye and Benjamin had come to his house. Hye talked to Wells on the phone about “hitting a lick” to get money to go to the county fair. Then, the three left Kelly’s house and met Wells at the Little Super gas station on Highway 63. They left shortly, and Wells got into a fight, and the four were stopped by police, frisked for weapons, and released. Kelly and Hye spent the rest of the afternoon together, but Wells and Benjamin each went their separate ways until all four men met again at around 5 or 6 p.m. They returned to the Little Super. Wells wanted to “hit a lick” at the Conoco. On the walk to the Conoco, Wells showed the other individuals that he had a gun. At the corner of Gregory and Peters Streets, Kelly stopped and refused to accompany the others to the Conoco. He waited at the intersection while the others proceeded down Peters Street toward the Conoco. He testified that he briefly looked away, then looked back and saw Benjamin and Hye standing near the end of the street. He turned around, and about ten seconds later, he heard a gunshot and saw Benjamin, Hye, and Wells running back toward him. Kelly ran with them to Wells’s house, and then they split up. The next day, they met at Wells’s house and discussed what to say if they were caught. Kelly testified that Benjamin planned to say he was at the fair at the time of the crime.

¶ 5. Benjamin told the police that he, Kelly, and Hye were at the fair at the time of the crime. He claimed to know nothing about the shooting. Jerry Givens, a trusty at the jail where Benjamin was incarcerated awaiting trial, testified that Benjamin had given him a note to pass to Hye. Givens testified that he read the note, threw it away, and told Hye about its contents. Givens testified that the note indicated that Benjamin wanted to get a story together with Hye before trial. Givens testified that the note stated Benjamin and Hye were going to “hit a lick” at the Conoco by getting BC powder to make fake cocaine to “sell ... to a dummy” when they heard a gunshot and ran away. Givens also stated the note indicated Kelly said “they were stupid for shooting the dude.” Givens also testified that an officer caught him with a note from Hye to Benjamin. The State used Benjamin’s statement to the police that he had been at the fair and his note to Hye, to argue that Benjamin had lied about his whereabouts during the crime. The State also argued that Benjamin’s false statement to the police that he had been at the fair corroborated Kelly’s testimony that Benjamin had planned to use the fair as his alibi.

¶ 6. The jury found Benjamin guilty of capital murder with the underlying felony of robbery. He was sentenced to life without the possibility of parole.

DISCUSSION

1. WHETHER BENJAMIN’S STATEMENT WAS OBTAINED IN VIOLATION OF MIRANDA

¶ 7. Benjamin was fourteen years old at the time of the crime. A few days after the shooting, Officer Miller questioned Benjamin in the presence of his mother and a second, unidentified police officer. The conversation was recorded on audio and video. Officer Miller read Benjamin his Miranda rights, but Benjamin asked for his youth-court attorney. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Miller stated that Benjamin would not be in youth court because he was being “charged in the ... capital murder out at the ... Conoco gas station.” Benjamin expressed surprise that he was being charged with capital murder. Then, the following occurred:

Miller: Who is your lawyer?
Benjamin: Mrs. Brenda Lotts.
Miller: Brenda Lott is a ...
Officer: I know Brenda. Down in Youth Court.
Miller: She’s, she’s, you’re gonna have to talk to uh, I don’t think she can come down here but I don’t know. I think she’s a public defender down at the Youth Court. You won’t be going to Youth Court.
Benjamin: Where I’m gonna be staying the night at?
Miller: Right here in the jail.
Mother: You better think about it baby. I’m telling you cause you know dern well I don’t have no money for no lawyer.
Benjamin: So ya’ll saying if I don’t talk to ya’ll, ya’ll just going to charge me with it.
Miller: We’re going to detain you, yes.
Benjamin: It’s just that I don’t even know nothing about no murder.
Miller: Ok.
Benjamin: That’s what I’m saying.
Miller. Ok. You’ll have to tell your lawyer.
Benjamin: I ain’t trying to stay the night here, so could I, you know, I ain’t did nothing.
Miller: Ok, you’ll have to tell your lawyer all of that and then they’ll tell us all of that.
Officer: Ok. That’s all we can do. He asked for his lawyer, so.

At that point, Miller looked at Benjamin’s mother and said “The only way that anything will change is if he request a, you know, request it. And uh, I can’t, I can’t pressure him into changing his tune about wanting a lawyer, you know, and that kind of stuff. So, if you want to speak to him for a few minutes then, you know, we’ll go from there.” Miller and the officer exited the room, leaving Benjamin alone with his mother.

¶ 8. As shown by the following excerpts from their conversation, Benjamin’s mother immediately began pressuring Benjamin into relinquishing his request for an attorney and talking to the police:

Mother: T.J. I’m telling you now. If you know something, you did something, you better let them know.
Benjamin: Know what, I ain’t did nothing. That’s what I’m telling, that’s what I’m steady trying to say.
Mother: See, see what I told you. If you’d just learn to listen to me. That’s why I keep telling you and Trell. Ya’ll put me in predicaments. You know I ain’t got no money for no lawyer. And then if they get a public defender you know how they work.
Mother: Should have do the questioning and told what you know.
Benjamin: What I know about what?
Mother: I don’t know. You have to let them go through the questions with you.

After a few minutes, Miller returned to the room. Benjamin’s mother asked what Benjamin had to do if he was going to talk. Miller responded:

Well he’s gonna have to probably request it that he talks to somebody at this point. But uh, it may be best to just wait until tomorrow and talk, you know, you know, and let him stay back there in jail tonight. Well uh, we got all we need. We don’t really need to talk to him. We just wanted his side of it. And if he don’t want to give it to us that’s fine you know. We’ll we’ll eventually uh, eventually I’m sure that he’ll either tell his attorney or tell the judge or tell somebody while ...

When Miller said that Benjamin would stay the night in jail, he looked directly at Benjamin. Miller said he was trying to get Benjamin’s side of the story, but that they had no problems with it if he wanted to work through it with an attorney. Then, the following occurred:

Mother: So what, why, what you oh so you just saying let him stay here?
Miller: He’s going to have to stay here with us, yes ma’am. It’s a capital offense and that’s happened. It’s a capital murder, ok. Uh, and it’s our position at this point uh, that he had some involvement in it to the extent we’re not 100% sure that was what was going on. We’re going to let him line that out for us. Um, and you know um, we if he wants a lawyer, that’s what we’re going to honor. So you can probably uh, go ahead and say your goodbyes I guess and he’ll be in the big boy jail tonight.

Miller asked Benjamin to empty his pockets and patted him down. Miller asked his mother if she wanted to say goodbye, and she said yes. Miller said “Tell her you love her and hug her neck son, she’s the only one on your side right now.” Then, Miller and the officer again left Benjamin alone with his mother. Their further conversation was not recorded.

¶ 9. Miller testified at the suppression hearing that Benjamin’s mother emerged from the interview room and said that Benjamin wanted to talk. The police recorded his subsequent interview with Officers Miller and Roberts. At the beginning of the interview, Miller said “What’s the deal? You want to talk to us?” Benjamin responded, “I just want to let you know sir, I don’t, you said ya’ll charge me.” Miller read Benjamin his Miranda rights, and Benjamin said he understood. Then, Miller continued questioning Benjamin about whether he wanted to talk. Benjamin said that he wanted to talk and had requested to talk to the police. Then, the following occurred:

Benjamin: Can I say something right quick sir?
Miller: You can say anything you want to buddy, it’s your interview.
Benjamin: So uh, when we get done am I still gonna be getting locked up?
Miller: Well that has a lot to do with what you talk about and everything. Uh, that has a lot to do with that dude.

Miller testified that, although he told Benjamin that whether he stayed in jail depended on what he said to the police, in fact it was a virtual certainty that Benjamin would be incarcerated that night no matter what he told the police. Benjamin gave a statement in which he claimed that he was at the fair on the night of the shooting. This statement corroborated Kelly’s testimony that Benjamin and the others had concocted alibis after the shooting, and that Benjamin had planned on saying he was at the fair. Although the officers and Benjamin’s mother continued to pressure Benjamin to “tell the truth,” Benjamin did not depart from his statement that he had been at the fair, and the interview concluded. At the end of the interview, Officer Miller thanked Benjamin’s mother “for your help.” He also said “Thank you ma’am, we appreciate ya.”

¶ 10. Benjamin filed a pretrial motion to suppress his statement. He argued that, because the police unconstitutionally reinitiated interrogation after he invoked his right to counsel, his statement was given in violation of Miranda. Benjamin claimed that the police had used his mother to prompt his reinitiation of interrogation, and that his waiver of rights was not knowing, intelligent, and voluntary. After hearing the testimony of Officer Miller and viewing the recording of Benjamin’s statement, the trial court denied Benjamin’s motion to suppress. The trial court found that, after Benjamin had invoked his right to counsel, the officers had made no statements in an attempt to elicit a response, and that Benjamin’s waiver of rights was freely, knowingly, and voluntarily made. Benjamin attacks the trial court’s ruling.

¶ 11. For the accused’s statement to be admissible in evidence, “[t]he prosecution must prove beyond a reasonable doubt that [the] statement was given after a valid waiver.” Jordan v. State, 995 So.2d 94, 106 (Miss.2008). When a trial court has overruled a motion to suppress the confession of a defendant, this Court will reverse the trial court’s decision if the ruling was “manifestly in error or contrary to the overwhelming weight of the evidence.” McGowan v. State, 706 So.2d 231, 235 (citing White v. State, 495 So.2d 1346, 1347 (Miss.1986)). This Court also will reverse the admission of a confession if the trial court applied an incorrect legal standard. Moore v. State, 933 So.2d 910, 918 (Miss.2006).

¶ 12. In Miranda, the United States Supreme Court held that the Fifth and Fourteenth Amendments’ privilege against compelled self-incrimination requires that, before any custodial interrogation may occur, the accused must be informed of his right to counsel and right to remain silent. Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612. Once the accused is informed of these rights, custodial interrogation may proceed provided the accused knowingly, intelligently, and voluntarily waives the rights. Id. If the accused chooses to remain silent, then interrogation must cease. Id. If the accused invokes his right to counsel, then interrogation must cease until an attorney is present. Id. at 474, 86 S.Ct. at 1628.

¶ 13. “[I]f the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 493, 83 L.Ed.2d 488 (1984) (citing Edwards v. Arizona, 451 U.S. 477, 485-86 n. 9, 101 S.Ct. 1880, 1885 n. 9, 68 L.Ed.2d 378 (1981)). “[Additional safeguards are necessary when the accused asks for counsel.” Edwards, 451 U.S. at 484, 101 S.Ct. at 1885. “[W]hen an accused has invoked his right to ... counsel ... a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. “[A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1885. Once an accused has invoked his right to counsel, any subsequent waiver of rights carries a presumption of involuntariness that “ensures ... police will not take advantage of the mounting coercive pressures of ‘prolonged police custody’ by repeatedly attempting to question a suspect who previously requested counsel until the suspect is ‘badgered into submission.’ ” Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1220, 175 L.Ed.2d 1045 (2010) (citations omitted).

¶ 14. It is undisputed that Benjamin was in custody and invoked his right to counsel. He contends that, after he invoked his right to counsel, he was subjected to further interrogation by the police and that his mother acted as an agent for the police for the purpose of extracting his statement. “Interrogation” is not limited to express questioning of a suspect while in custody. Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1698, 64 L.Ed.2d 297 (1980). The concept also embraces any words and conduct of the police that are the functional equivalent of interrogation. Id. at 301, 100 S.Ct. at 1689. Thus, “interrogation” encompasses express questioning and “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S.Ct. at 1689-90. The determination of whether the police should have known a particular practice was reasonably likely to elicit an incriminating response focuses on the perceptions of the suspect, not the intent of the police. Id.

¶ 15. This Court has held that a private third party may, without realizing that he or she doing so, act as an agent for the police to induce a defendant’s statement. Abram v. State, 606 So.2d 1015, 1031 (Miss.1992) (overruled on other grounds by Foster v. State, 961 So.2d 670, 672 (Miss.2007)); Agee v. State, 185 So.2d 671, 674 (Miss.1966); Clash v. State, 146 Miss. 811, 112 So. 370 (1927); Johnson v. State, 89 Miss. 773, 42 So. 606 (1907). In Arizona v. Mauro, 481 U.S. 520, 527, 107 S.Ct. 1931, 1935, 95 L.Ed.2d 458 (1987), the United States Supreme Court held that Mauro, who had invoked his right to counsel, was not subjected to the functional equivalent of interrogation when the police allowed him to speak with his wife in the presence of an officer and recorded the conversation. The police allowed Mauro to speak with his wife in response to her insistent demands. Id. at 523, 107 S.Ct. at 1933. They informed Mr. and Mrs. Mauro that an officer would be present and placed a tape recorder in plain sight. Id. at 522, 107 S.Ct. at 1933. During the conversation, Mauro told his wife not to answer questions until a lawyer was present. Id. The State used Mauro’s statement to rebut his claim that he was insane on the day of the crime. Id. at 523, 107 S.Ct. at 1933.

¶ 16. The Court found that there was no evidence that the police decision to allow Mauro’s wife to see him was a psychological ploy that was the functional equivalent of interrogation. Id. at 527, 107 S.Ct. at 1935. The Court found Mauro had not been subjected to compelling influences or direct questioning. Id. at 529, 107 S.Ct. at 1937. Nor was there any evidence that the police had allowed Mrs. Mauro to see her husband for the purpose of eliciting incriminating statements. Id. at 528, 107 S.Ct. at 1936. Viewing the situation from Mauro’s perspective, the Court found that “a suspect, told by officers that his wife will be allowed to speak to him, would [not] feel that he was being coerced to incriminate himself in any way.” Id. The Court held that the conduct of the police was not the functional equivalent of interrogation. Id. at 527, 107 S.Ct. at 1935.

¶ 17. This case stands in contrast with Mauro. After Benjamin invoked his right to counsel, interrogation had to cease until an attorney was present. Miranda, 384 U.S. at 474, 86 S.Ct. at 1628. Instead, the police continued to interact with Benjamin and with his mother, who repeatedly expressed the desire that Benjamin forego an attorney and talk to the police. Officer Miller announced that Benjamin was being charged with capital murder and that Benjamin was going to spend the night in jail. Although Benjamin repeatedly requested confirmation of his erroneous belief that if he talked, he would not have to spend the night in jail, Officer Miller never corrected Benjamin’s false assumption that he could avoid spending the night in jail by talking. Then, with knowledge that Benjamin’s mother wanted Benjamin to waive his right to counsel and talk, Officer Miller informed Benjamin’s mother exactly what Benjamin would have to do in order to reinitiate questioning, and left her alone with Benjamin. Officer Miller explained that he could not “pressure him into changing his tune about wanting a lawyer,” and allowed his mother to speak with Benjamin “for a few minutes,” and “we’ll go from there.” Predictably, Benjamin’s mother used her time alone with Benjamin to pressure him to talk. Then, Officer Miller returned to the interview room to assess the situation, and Benjamin’s mother asked for clarification on what Benjamin had to do to talk. When Benjamin did not relent, officers readied him for incarceration and again left him with his mother to say goodbye. After that conversation, Benjamin announced that he was ready to talk.

¶ 18. Benjamin’s immaturity is revealed by the fact that his main concern at being charged with capital murder was avoiding a night in jail. When the police encourage a parent to pressure a fourteen-year-old suspect to talk, and the police foster the suspect’s mistaken belief that talking would allow him to avoid a night in jail, the police should know their conduct is reasonably likely to elicit an incriminating response. By encouraging Benjamin’s belief that, by talking to the police, he could avoid a night in jail, and by allowing Benjamin’s mother to speak with him after instructing her on how Benjamin could reinitiate questioning, the police used psychological ploys and compelling influences to elicit Benjamin’s statement. These tactics constituted the functional equivalent of interrogation, because they were reasonably likely to elicit an incriminating response from fourteen-year-old Benjamin. We find that Benjamin was subjected to interrogation after invoking his right to counsel in violation of Edwards v. Arizona. Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885.

¶ 19. Under Edwards, Benjamin’s waiver was presumptively involuntary because it was made in response to interrogation after Benjamin had invoked his right to counsel. Shatzer, 559 U.S. at 105, 130 S.Ct. at 1220. Further, the facts condemn any notion that the prosecution proved beyond a reasonable doubt that Benjamin’s waiver was knowing and intelligent. A knowing and intelligent waiver must be “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). Benjamin’s mother was under the false impression that it would be helpful to Benjamin to cooperate and waive his rights. She also communicated that he should talk to the police because they could not afford an attorney. It is manifestly apparent that Benjamin conceded to pressure from his mother and to his desire to avoid a night in jail in deciding to waive his rights. Benjamin’s youth rendered him particularly susceptible to parental pressure. Under these circumstances, we cannot say that the record demonstrates that Benjamin’s waiver was made with full awareness of the nature of the right and the consequences of abandoning it.

¶ 20. For the foregoing reasons, we find that the trial court manifestly erred in failing to suppress Benjamin’s statement to the police. The record reflects that the police subjected Benjamin to interrogation after he had invoked his right to counsel and that the State failed to prove his waiver of rights was knowing, intelligent, and voluntary. We reverse and remand for a new trial consistent with this opinion.

CONCLUSION

¶ 21. The trial court manifestly erred in denying Benjamin’s motion to suppress his statement to the police, which was given in violation of Miranda. We reverse the verdict and sentence and remand the case to the Jackson County Circuit Court for a new trial.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, KING AND COLEMAN, JJ., CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.

PIERCE, Justice,

dissenting:

¶23. Respectfully, I dissent from the majority’s decision to reverse the conviction and sentence and remand this case for a new trial. In my opinion, the record supports the trial court’s ruling that Tevin Benjamin knowingly, intelligently, and voluntarily waived his right to have counsel present during questioning after previously having invoked that right.

¶ 24. As noted by the majority, the United States Supreme Court held in Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980):

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

(Emphasis added.) After Benjamin first invoked his right to counsel, Officer Miller informed Benjamin that he was being charged with capital murder and would not be going to youth court, and he asked who was Benjamin’s attorney. In Gillett v. State, 56 So.3d 469, 486 (Miss.2010), we held that informing a suspect of the charges against him after the suspect had invoked his right to counsel did not constitute continued interrogation. Upon hearing he was being implicated in a capital murder, Benjamin asked Officer Miller where he would be spending the night, and Officer Miller told him, “here in jail.” Benjamin began denying that he knew anything about the murder, and Officer Miller responded, telling Benjamin that he would have to discuss that with his lawyer. Officer Miller then told Benjamin’s mother, “The only way that anything will change is if he request a, you know, request it. And uh, I can’t, I can’t pressure him into changing his tune about wanting a lawyer, you know, and that kind of stuff. So, if you want to speak to him for a few minutes then, you know, we’ll go from there.” The majority contends that this constituted one of a series of psychological ploys and/or compelling influences on the part of Officer Miller. Based on my review of the video-recorded interview, I can no more factually infer the use of psychological or compelling influence on Officer Miller’s part from this portion of the video, than if the video had instead-hypothetically-shown Officer Miller abruptly halting the proceeding and immediately escorting Benjamin’s mother out of the room, leaving fourteen-year old Benjamin alone to await the booking process. Further, I find nothing inherently coercive in the fact that Officer Miller told Benjamin’s mother what Benjamin would have to do if he wanted to talk after having asserted his right to counsel. This was an accurate statement by Officer Miller, for purposes of Innis, and Officer Miller made no promises or threats in conjunction with it.

¶ 25. Afterward, Benjamin and his mother spoke to one another alone. Benjamin told his mother what he later told Officer Miller, that he was at the fair at the time of the murder. Benjamin’s mother did encourage Benjamin to talk, and she then asked Officer Miller what Benjamin would have to do to talk. Even though Officer Miller equivocated with his response, he nonetheless bluntly informed Benjamin and his mother that it was the police’s position that Benjamin was involved with the murder, and Officer Miller unequivocally told Benjamin and his mother that Benjamin was going to be detained.

¶ 26. Benjamin and his mother again spoke alone, and Benjamin thereafter said he wanted to talk. Officer Miller asked Benjamin if he wanted to talk without his lawyer present. Benjamin said he did. Again, Officer Miller informed Benjamin of his Miranda rights. Again, Benjamin confirmed he understood his rights and signed a written waiver. Then, before any questioning took place, the following occurred:

Benjamin: Can I say something right quick sir?
Miller: You can say anything you want to buddy, it’s your interview.
Benjamin: So uh, when we get done am I still gonna be getting locked up?

Miller: Well that has a lot to do with what you talk about and everything. Uh, that has a lot to do with that dude.

I can see how, by isolating this exchange in a vacuum, it could be interpreted as deceptive. But there is more. Officer Miller immediately qualified his response as follows:

Miller: But I’m going to tell you this right now, and I’m not here to be, nobody’s going to be mean to you, mistreat you, or nothing else, ok. But, I don’t want you wasting my time, and I’m not going to waste your time, ok.
Benjamin: Yes, sir.
Miller: I don’t want you to he to me or nothing else. We’ve already interviewed a bunch of boys that was involved in this thing. We know that you’re not the shooter, you know. We have no doubts that you’re not the shooter. But, you’re either going to have to tell your side of the story or we’re going to go with what everybody else is saying, ok. Tell me what happened last Thursday evening.

¶27. We cannot look at statements made by the police in a vacuum in determining whether interrogation occurred; rather, we must view them in light of the circumstances of the interaction between the suspect and the police on the occasion in question. Although Benjamin was fourteen years old at the time in question, Benjamin, as shown by the record, was not unfamiliar with how the system worked, having been exposed to it in the past. He requested his youth-court attorney at the outset of the interview. When Benjamin asked if he was going to be spending the night in jail, Officer Miller, as detailed above, truthfully informed Benjamin of the current state of the investigation. Prior to that, Officer Miller expressly informed Benjamin through the advice of rights form — which, again, Benjamin confirmed he understood — that Benjamin still had the right to stop answering questions at any time until he talked to a lawyer. Benjamin elected to proceed with the interview.

¶ 28. The record, based on my review of it, does not affirmatively show that Benjamin did not voluntarily and intelligently withdraw his previous request for counsel and waive his Miranda rights. Accordingly, I would affirm the trial court’s decision not to suppress Benjamin’s statement as well as Benjamin’s conviction and sentence.

RANDOLPH, P.J., JOINS THIS OPINION.

      . Kelly testified that "hit a lick” meant a robbery.

      . Benjamin did not challenge the voluntariness of his statement. Therefore, we confine our analysis to the Miranda issue.