author: WEIMER, Justice.

text:
    B.W. GREEMON v. CITY OF BOSSIER CITY, Louisiana and the Bossier City Municipal Fire and Police Civil Service Board.
    Nos. 2010-C-2828, 2011-C-0039.
    Supreme Court of Louisiana.
    July 1, 2011.

      Cook, Yancey, King & Galloway, APLC, Michael Danforth Lowe, Kenneth Mascagni, for Applicant (No. 2010-C-2828).
    Bradley Murchison Kelly & Shea LLC, Jerald Norman Jones, Kenneth David McLean, Hilburn & Hilburn, Cary Allen Hil-burn, for Respondent (No. 2010-C-2828).
    Bradley Murchison Kelly & Shea LLC, Kenneth David McLean, Jerald Norman Jones, for Applicant (No. 2011-C-0039).
    Cook, Yancey, King & Galloway, APLC, Kenneth Mascagni, Michael Danforth Lowe, Hilburn & Hilburn, Cary Allen Hil-burn, for Respondent (No. 2011-C-0039).
   WEIMER, Justice.

I,This court granted writs to determine whether respondent’s civil service hearing must be nullified because the board that conducted the hearing did not formally vote to deliberate in an executive session closed to the public. Although we in no way condone a failure to vote, because respondent first asserted a claim that the Open Meetings Law was violated some 17 months after the hearing, we find that respondent’s claim was barred by the 60-day limitation period of former LSA-R.S. 42:9 (now redesignated as LSA-R.S. 42-.24).

| ¿FACTUAL AND PROCEDURAL BACKGROUND

B.W. Greemon was a paramedic with the Bossier City Fire Department. On November 7, 2007, Mr. Greemon responded to a call to assist an apparently intoxicated individual, Eric Holloway, who was in police custody.

At the scene, Mr. Greemon was informed that Mr. Holloway had consumed as many as 18 beers and was possibly a diabetic. Mr. Greemon evaluated Mr. Holloway and authorized Mr. Holloway’s transport to jail. Mr. Holloway was then transported to and booked into jail, where he was found dead the next morning.

A complaint was filed against Mr. Greemon for clearing Mr. Holloway’s transport to jail rather than to a medical facility. Mr. Greemon was questioned by the Bossier City Fire Department’s internal affairs board and by a predisciplinary review board. Fire Chief Sammy Halphen reviewed the results of the investigation, and Mr. Greemon was terminated from his employment with Bossier City.

Mr. Greemon filed a civil service appeal, which was considered by the Bossier City Municipal Fire and Police Civil Service Board (“Civil Service Board”). After the presentation of evidence, counsel for Mr. Greemon and for Bossier City were asked by the legal advisor for the Civil Service Board whether the parties were willing to submit the matter for decision. Both parties agreed to submit the matter to the Civil Service Board.

One Civil Service Board member then moved to enter into executive session, and another member “seconded” the motion. No formal vote on the motion to enter executive session is reflected in the hearing transcript, but the presiding board member clearly directed that the Civil Service Board enter the executive session, Lwhich was closed to the public. No one from the Civil Service Board voiced an objection to entering the executive session, and neither of the parties contemporaneously objected. After the executive session, the Civil Service Board returned to an open session. Neither of the parties registered a complaint at that time to the executive session that had just occurred. The Civil Service Board then publicly voted, 3 to 2, to uphold Bossier City’s termination of Mr. Greemon’s employment. The majority found that Bossier City had acted in good faith and for just cause when terminating Mr. Greemon’s employment.

On April 11, 2008, Mr. Greemon filed with the district court a pleading captioned: “NOTICE OF APPEAL AND PETITION FOR RELIEF FROM DENIAL OF DUE PROCESS.” In this pleading, Mr. Greemon alleged that he acted appropriately in evaluating Mr. Holloway and that Mr. Greemon was therefore terminated without good faith for cause in violation of civil service law. Mr. Greemon also alleged that he was denied due process because, among other reasons, the Civil Service Board “recessed in a closed-door ‘executive session’ not otherwise open to the public in violation of La.Rev.Stat. 33:2475(M).” Mr. Greemon urged that he was prejudiced by the closed meeting because “one or more persons not members of the BOARD participated in and/or commented on the evidence.”

The Civil Service Board filed a responsive memorandum. Later, Bossier City filed an answer to Mr. Greemon’s district court pleading. In its answer, Bossier City suggested that memorandums were the usual responsive pleadings to civil service appeals because answers were not required in such appeals. Bossier City further explained that it was filing an answer “out of an abundance of caution” because a citation commanding an answer had been issued at the behest of Mr. Greemon’s [^counsel and served on Bossier City. No contemporaneous exceptions were raised in Bossier City’s answer, and Bossier City has never filed any other form of exception.

On September 1, 2009, Mr. Greemon filed a motion for summary judgment, arguing that the Civil Service Board’s procedures had violated Louisiana’s Open Meetings Law requirements and that Bossier City had failed to prove that it had acted in good faith and with just cause in terminating Mr. Greemon’s employment.

Bossier City objected to the motion for summary judgment, arguing, among other matters, that the motion was the first time Mr. Greemon had sought relief under the Open Meetings Law and that such a claim was untimely.

The district court granted Mr. Greem-on’s motion for summary judgment inasmuch as the district court ordered that the Civil Service Board’s “action ... is declared void and hereby remanded to the Bossier City Municipal Fire and Police Civil Service Board for further proceedings as it deems appropriate to be conducted in strict adherence with the Open Meetings Law.” However, the district court declined to reach the merits of Mr. Greem-on’s termination from employment, commenting that to do such would be premature.

The district court explained that “ [violations of the Open Meetings Law were alleged sufficiently” in Mr. Greemon’s initial pleading as “to place that issue before [the district] Court.” Noting that a challenge based on the Open Meetings Law, LSA-R.S. 42:4.1, et seq., must be filed within 60 days, the district court found Mr. Greem-on’s initial pleading satisfied this deadline. Emphasizing that no formal vote by the Civil Service Board had been made on the motion to enter into executive (ie., closed) session, the district court found that the Civil Service Board’s decision to uphold Mr. Greemon’s termination should be voided.

IsThe court of appeal affirmed the district court’s remand to the Civil Service Board, after first addressing the question of timeliness. Greemon v. City of Bossier City, 45-0664, p. 6, 8 (La.App. 2 Cir. 11/24/10), 59 So.3d 412, 416-417. Noting that Louisiana is a “fact pleading” jurisdiction, the court of appeal found that Mr. Greemon had sufficiently pled facts in his initial pleading to put Bossier City on notice that the Open Meetings Law was at issue. Id., 45-0664 at 5-7, 59 So.3d at 416. The court of appeal, therefore, reasoned that Mr. Greemon’s initial pleading satisfied the requirement to file an Open Meetings Law challenge within the 60-day limitation period. Id., 45-0664 at 7, 59 So.3d at 416-417.

The court of appeal then found that the Civil Service Board had violated the Open Meetings Law: “The Board members neither voted nor gave a reason for the executive session at the March 2008 meeting. Thus, the record supports the district court’s finding that the Board held an executive session in violation of LSA-R.S. 42.6.” Id., 45-0664 at 8-9, 59 So.3d at 417. The court of appeal explained that “[t]he Open Meetings Law is not optional.” Id., 45-0664 at 8, 59 So.3d at 417. The Civil Service Board’s procedural violation justified voiding the Civil Service Board’s employment determination because “[t]he express procedure required by the Open Meetings Law is not a ‘technical’ triviality, which may be ignored at the whim of a public body.” Id., 45-0664 at 8-9, 59 So.3d at 417.

One judge from the court of appeal dissented, and would have reversed the district court’s ruling that the Civil Service Board’s employment decision must be voided. Greemon, 45-0664, p. 4, 59 So.3d at 418, 419 (Gaskins, J., dissenting). Judge Gaskins opined that Mr. Greemon had not sufficiently pled a cause of action under the Open Meetings Law in the initial pleading. Id., 45-0664 at 2-3, 59 So.3d at 418. According to Judge Gaskins, when Mr. Greemon later filed a motion for summary | ^judgment invoking the Open Meetings Law, any cause of action Mr. Greem-on may have had was perempted because the motion was filed after the 60-day limitation period. Id., 45-0664 at 3, 59 So.3d at 418. Judge Gaskins also explained that under the Open Meetings Law, closed or executive sessions are allowed to review employment decisions, thus, under no set of facts assumed to be true in Mr. Greem-on’s motion did the Civil Service Board violate the law. Id., 45-0664 at 2, 59 So.3d at 418. Judge Gaskins further concluded the lack of a contemporaneous objection by Mr. Greemon to the executive session was an omission that was fatal for Mr. Greem-on’s effort to obtain relief under the Open Meetings Law. Id., 45-0664 at 3, 59 So.3d at 418.

Both the Civil Service Board and Bossier City applied for writs of review, which this court consolidated and granted. Greemon v. City of Bossier City, 10-2828, 11-0039 (La.3/4/11), 58 So.3d 463.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A court must grant a motion for summary judgment “[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B).

In their applications to this court, rela-tors Bossier City and the Civil Service Board have raised several assignments of error stemming from the district court’s granting of summary judgment. Relators argue that an Open Meetings Law claim cannot be cumulated with a civil service appeal, an Open Meetings Law claim cannot 17be adjudicated as a summary proceeding, the Civil Service Board’s decision regarding Mr. Greemon’s employment cannot be nullified because the Board was authorized to enter executive session, and Mr. Greemon’s Open Meetings Law claim was untimely.

Because timeliness is a threshold issue, our analysis of the correctness of the district court’s grant of summary judgment begins there. Although relators filed no exception of prescription/preemption in the district court, the issue of whether Mr. Greemon timely pled a cause of action under the Open Meetings Law is squarely presented for this court’s review because the district court granted relief under the Open Meetings Law when ruling on Mr. Greemon’s motion for summary judgment. See, e.g., Berard v. L-3 Communications Vertex Aerospace, L.L.C., 09-1202, p. 6 n. 1 (La.App. 1 Cir. 2/12/10), 35 So.3d 334, 340 n. 1, writ denied, 10-0715 (La.6/4/10), 38 So.3d 302 (“A judgment granting or denying summary judgment is necessarily based upon the initial determination of the substantive law applicable to the issues, as it is only in the context of that applicable substantive law that any issues of material fact can be ascertained.”).

The time limit applicable to Mr. Greem-on’s case is contained in LSA-R.S. 42:9, which then provided:

Any action taken in violation of R.S. 42:4.1 through R.S. 42:8 shall be voidable by a court of competent jurisdiction. A suit to void any action must be commenced within sixty days of the action.

Undisputedly, Mr. Greemon’s motion for summary judgment, which sought relief under the Open Meetings Law, was filed long after the 60-day limitation period. |8The ultimate question, therefore, is whether Mr. Greemon’s initial pleading, which was filed within the limitation period, satisfied the requirements to seek relief under the Open Meetings Law. For the reasons that follow, we find that the initial pleading was inadequate to timely state a claim under the Open Meetings Law.

Louisiana’s Code of Civil Procedure uses a system of pleading based upon the narration of factual allegations. See Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. As described in LSA-C.C.P. art. 854: “No technical forms of pleading are required. All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs.” The fact-pleading requirement replaces an earlier “theory of the case” pleading requirement. See LSA-C.C.P. art. 862, Official Revision Comments— 1960, cmt. (b). Because the “theory of the case” pleading requirement has been abolished, “[s]o long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleadings and evidence.” Cox v. W.M. Heroman & Co., Inc., 298 So.2d 848, 855 (La. 1974), overruled on other grounds by A. Copeland Enterprises, Inc. v. Slidell Memorial Hosp., 94-2011, p. 9 (La.6/30/95), 657 So.2d 1292, 1299. However, even though the “theory of the case” need no longer be pled, LSA-C.C.P. art. 891 provides that a petition “shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.” (Emphasis added.)

The following commentary sums up what constitutes “material facts” within Louisiana’s fact-pleading system: “The Code requires the pleader to state what act or omission he or she will establish at trial, such as the fact that the defendant failed to deliver goods by a designated date, exceeded the speed limit, or failed to pay | ^workers’ compensation benefits although the evidence in his or her possession clearly established a compensable injury and disability.” 1 FRANK L. MaRAISt et al„ Louisiana Civil Law Treatise: Civil Procedure § 6:3 at 143 (2d ed.2008) (footnote omitted).

As the above commentary indicates, a fact is “material” if it points to a violation of the applicable law. The portion of the Open Meetings Law applicable to this case required:

A. Every meeting of any public body shall be open to the public unless closed pursuant to R.S. 42:6, R.S. 42:6.1, or R.S. 42:6.2.
B. Each public body shall be prohibited from utilizing any manner of proxy voting procedure, secret balloting, or any other means to circumvent the intent of R.S. 42:4.1 through R.S. 42:8.
C. All votes made by members of a public body shall be viva voce[] and shall be recorded in the minutes, journal, or other official, written proceedings of the body, which shall be a public document.

LSA-R.S. 42:5.

With both the applicable law and the principles of fact pleading in mind, we turn to Mr. Greemon’s initial pleading to determine what, if any, facts Mr. Greemon may have alleged to show a violation of the Open Meetings Law. In his brief to this court, Mr. Greemon argues that the following factual allegations in his initial pleading are material to an Open Meetings Law cause of action:

• He challenged the “illegal, closed-door meeting.”
• He complained that the Civil Service Board “recessed into a ‘closed ... executive session.’ ”
lm* “After a hearing on GREEMON’s appeal ... the Board recessed for ‘executive session’ where a closed-door meeting, a so-called ‘executive session,’ was held.... in a setting not open to the public.”
• “Upon return to the open public meeting, a motion was made ‘that the city acted in good faith and for just cause,’ wherein the Board voted by a margin of 3-2 in favor of the motion affirming [Bossier City’s] decision to terminate GREEMON’S employment.”
• “GREEMON would show that prior to the BOARD publicly voting and rendering its decision, it recessed in a closed-door ‘executive session’ not otherwise open to the public in violation of La.Rev.Stat. [sic] 33:2476(M).”

We address each of these allegations in turn.

A careful review of Mr. Greemon’s initial pleading reveals, contrary to his brief, that nowhere does he complain of an “illegal, closed-door meeting.” At several points, the initial pleading uses the phrase “closed-door meeting,” but never, as Mr. Greemon now asserts in his brief, does his initial pleading describe the meeting as “illegal.”

Continuing our analysis, to determine whether Mr. Greemon’s initial pleading satisfied the fact-pleading standard, we turn to the next part of his allegation, ie., that the meeting was a “closed-door” meeting. Another allegation, that the Civil Service Board held an “executive session,” is substantially the same as the “closed-door” allegation. Mr. Greemon cites both allegations to this court to support his argument that his “right to have public business performed in an open and public manner” was violated. We therefore analyze the “closed-door” and “executive session” allegations to determine if they are material to an Open Meetings Law claim.

_[nThere is nothing inherently unlawful about a “closed-door” or “executive session” under the Open Meetings Law. These types of non-public meetings are described in LSA-R.S. 42:6, which provided, in pertinent part: “A public body may hold executive sessions upon an affirmative vote, taken at an open meeting for which notice has been given ... of two-thirds of its constituent members present.” The Open Meetings Law expressly authorized entry into executive session where, as here, there are discussions of a person’s “professional competence.” LSA-R.S. 42:6.1(A)(1).

A narrative in an initial pleading such as Mr. Greemon’s, which alleges conduct permitted by law, does not significantly advance the goal of describing a cause of action. The fact that the Civil Service Board went into a “closed-door” or “executive session” is not, under Louisiana’s fact-pleading system, a material fact for purposes of stating a cause of action for violation of the Open Meetings Law. The fact of a “closed-door” or “executive session” may be useful for background or understanding, but without an allegation of how the session was conducted in violation of the law, there is no stated cause of action.

In brief, Mr. Greemon poses to this court the question: “What facts must be alleged to properly challenge an illegal, closed-door meeting?” As we have come to understand the nature of his claim through his brief, Mr. Greemon appears to have found the answer, not in his initial pleading, but in his motion for summary judgment which was filed approximately one-and-a-half years after the time limit for pleading a cause of action had expired. The following narrative from the motion for summary judgment bears the hallmarks of a short, plain statement of material facts: “the Board [ 12violated the open meetings law by recessing into executive session without first securing the two-thirds vote of the Board members in favor of going into such a closed session of a public body.” There, and for the first time we can discern in the record, did Mr. Greemon assert what was allegedly unlawful about a meeting that was statutorily authorized. As stated in the motion for summary judgment, it was not the closed session itself that Mr. Greemon claimed was actionable; what was allegedly actionable was the Civil Service Board’s failure to adequately vote to exit from public hearing to closed discussions.

Since the motion for summary judgment cannot satisfy the requirements for timely pleading, we continue our analysis of the initial pleading to determine if Mr. Greem-on pled a cause of action under the Open Meetings Law. Mr. Greemon argues that another factual assertion from his initial pleading is material to a cause of action: “Upon return to the open public meeting, a motion was made ‘that the city acted in good faith and for just cause,’ wherein the Board voted by a margin of 3-2 in favor of the motion affirming [Bossier City’s] decision to terminate GREEMON’s employment.” We disagree. Mr. Greemon points to no provision of the Open Meetings Law, nor are we aware of any, which is violated by the Civil Service Board returning from executive session to an open meeting and then publicly considering a motion and voting on the motion.

Lastly, we consider Mr. Greemon’s argument that because his initial pleading alleged a violation of LSA-R.S. 33:2476, he adequately pled a cause of action under the Open Meetings Law. By way of review, the initial pleading, in pertinent part, describes that the Civil Service Board “recessed in a closed-door ‘executive session’ not otherwise open to the public in violation of La.Rev.Stat. [sic] 33:2476(M).” 11 aWe note, however, that LSA-R.S. 33:2476 is not an Open Meetings Law statute, but a civil service statute. The subsection Mr. Greemon cited in his pleading provides:

M. The board shall meet at any time after its original meeting upon the call of the chairman, who shall give all members of the board due notice thereof. The chairman of the board shall call, and the members of the board shall attend, one regular meeting of the board within each quarterly period of each calendar year. If a chairman fails or refuses to call such quarterly meeting of his board, the members of the board shall meet upon the written call of any two members mailed ten days in advance of the meeting. Four members of the board shall constitute a quorum, and the concurring votes of any three members comprising the quorum of the board shall be sufficient for the decision of all matters to be decided or transacted by it. Meetings of the boards shall be open to the public.

Presumably, it is only the last sentence of this section of the civil service statute (regarding meetings being open to the public), which Mr. Greemon believes assists his initial pleading in setting out a cause of action under the Open Meetings Law. Even if the contradiction of how citing one specific statute somehow sets out a cause of action under an entirely different statute is overlooked, the requirement to plead the “theory of the case” as previously indicated has long ago been abandoned. See LSA-C.C.P. art. 862, Official Revision Comments — 1960, cmt. (b). Allegations of material fact now guide courts in determining whether a cause of action has been pled. As we noted above, there is nothing inherently unlawful about a board recessing into an executive, closed-door session. Such a session is authorized by statute when there are discussion of one’s professional competence. See LSA-R.S. 11442:6.1(A)(1). Thus, the initial pleading fails at this last juncture to have raised a material fact in support of a cause of action under the Open Meetings Law.

Having found that the initial pleading failed to state a cause of action under the Open Meetings Law, we return to the procedural posture of this ease to ascertain the consequences. Pursuant to LSA-R.S. 42:9, a cause of action to void the decision of a public body for alleged violations of the Open Meetings Law “must be commenced within sixty days of the action.” “When the legislature amended the open meeting law in 1979 to provide for the first time the right to an aggrieved party to have the actions of a public body voided as provided in La. R.S. 42:9, it saw fit to limit this right to a short period of sixty days to insure a degree of certainty in the actions of the public body.” Kennedy v. Powell, 401 So.2d 453, 457 (LaApp. 2 Cir.1981). Mr. Greemon’s initial pleading brought an appeal of the Civil Service Board’s action, but as we have found, the initial pleading did not state a cause of action under the Open Meetings Law. After filing what was substantively a civil service appeal, it appears this case remained dormant until Mr. Greemon filed a motion for summary judgment, which for the first time contained an allegation of material fact to support a cause of action under the Open Meetings Law. Therefore, the district court erred in granting relief under the Open Meetings Law, because the claim had not been presented timely.

11fiWe therefore reverse the grant of summary judgment, and remand this case to the trial court for further proceedings consistent with this opinion. Because our review of the record convinces us that the claim was untimely, we pretermit consideration of all other issues raised in these consolidated writ applications. Furthermore, because we find that Mr. Greemon was untimely in asserting a cause of action for the Civil Service Board failure to vote to enter into executive session, we do not reach the issue of whether such a failure would be sufficient grounds to nullify the Board’s decision. However, we do not condone the Civil Service Board’s apparent failure to formally vote, and urge careful compliance with the Open Meetings Law.

CONCLUSION

Because Mr. Greemon failed to bring a timely claim under the Open Meetings Law, the district court erred in granting summary judgment under that law. The judgment of the district court granting Mr. Greemon’s motion for summary judgment and voiding the Civil Service Board’s action is therefore reversed. This matter is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . By 2010 La. Acts No. 861, § 23, former Louisiana Revised Statutes 42:4.1 through 42:9 were redesignated as Revised Statutes 42:11 to 42:24, and the redesignated statutes were formally given the short title of the "Open Meetings Law." Throughout this opinion, we refer to the earlier numerical designations because they were effective during the relevant events here. However, for simplicity, this opinion often employs the new formal designation of "Open Meetings Law" to refer in general terms to the earlier statutory framework then in effect. Even before the formal designation of “Open Meetings Law,” the statutory framework has long been described by that title. See, e.g., Phillips v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 391 So.2d 1217 (La.App. 1 Cir.1980) (noting that the statutory framework was “commonly referred to as the 'Sunshine Law' or 'Open Meeting Law’.”).

      . LSA-R.S. 33:2476 is not an Open Meetings Law statute, but a civil service statute. Quoted, infra.

      . Lower courts have held that the 60-day period is peremptive, not prescriptive. Sandi's II, Ltd. v. Assumption Parish Police Jury, 01-2819 (La.App. 1 Cir. 12/31/02), 837 So.2d 124, 127; Hoffpauir v. State, Dept. of Public Safety and Corrections, 99-1089, p. 4 (La.App. 1 Cir. 6/23/00), 762 So.2d 1219, 1222; Norwood v. Layrisson, 451 So.2d 1338, 1339 (La.App. 1 Cir.1984); Kennedy v. Powell, 401 So.2d 453, 457 (La.App. 2 Cir.1981). Because there is no question of whether any event interrupted or suspended this time period, it is unnecessary for us to decide here whether the period is prescriptive or peremp-tive.

      . "Viva voce” is defined as: "With the living voice; by word of mouth.” Black’s Law Dictionary 1573 (6th ed.1990).

      . Even if Mr. Greemon’s initial pleading had described the meeting as "illegal,” it is well-established that the "mere conclusion” of a violation of the law is insufficient to "set forth a cause or right of action." Montalvo, 637 So.2d at 131 (finding allegations that a Dial-practice suit against an attorney was " ‘frivolous’ and was instigated and continued in 'bad faith' are mere conclusions unsupported by facts” and, therefore, the attorney failed to state a cause of action for malicious prosecution). Therefore, under Louisiana's system of fact pleading, even if Mr. Greemon had described the meeting as "illegal,” in that assertion alone he has not satisfied the requirement of pleading anything material.

      . Relators argue that a non-public session was also authorized under LSA-R.S. 42:6.1(A)(4), which allowed non-public sessions for "[i]investigative proceedings regarding allegations of misconduct.” Because we have found that the justification stated in the first part of the statute, Le., LSA-R.S. 42:6.1(A)(1) (allowing non-public discussions of a person's "professional competence”) applies here, it is unnecessary for us to determine whether Mr. Greemon’s civil service hearing was an investigative proceeding within the meaning of LSA-R.S. 42:6.1(A)(4).

      . Of course, this is not to say that citing the law a party believes to be applicable is somehow inappropriate or unhelpful. However, in the absence of a specific requirement, under the general fact-pleading system, a party’s citation to the law does not control: "Under the system of fact pleading established by La. Code Civ. Proc. Ann. art. 891 and other codal articles, plaintiffs are not required to specifically label a claim or special defense as such.... Plaintiffs should be awarded any recovery allowable under any legal theory justified by the facts the plaintiff has alleged in his or her petition." 2 Judge Steven R. Plot-kin & Mary Beth Akin, Louisiana Practice Series: Louisiana Civil Procedure, Article 926, Commentary (4)(C)(3) (2010).

      . While we find that Mr. Greemon's initial district court pleading did not state a cause of action under the Open Meetings Law, the parties are in apparent agreement that Mr. Greemon had lodged a civil service appeal via his initial pleading. We also agree that Mr. Greemon lodged a civil service appeal. See LSA-C.C.P. art. 865, "Every pleading shall be so construed as to do substantial justice.” See also La. Const. art. V, § 16 ("A district court shall have appellate jurisdiction as provided by law.”); Baton Rouge Police Dept. v. Robinson, 2009-1571 (La.App. 1 Cir. 4/30/10), 38 So.3d 993, 996 ("The district court’s review of the Board’s quasi-judicial administrative determination is an exercise of appellate jurisdiction.”).

      . In his brief to this court, Mr. Greemon concedes that if — as we have found — his motion for summary judgment is the first time that he stated a claim under the Open Meetings Law, "the Court would have no choice but to hold that Mr. Greemon's claim is outside the sixty (60) day ... period set forth in the Open Meetings Law.” In addition to LSA-R.S. 42:9, which contained the 60-day limitations period, another statute also was apparently designed to ensure that Open Meetings Law claims are adjudicated quickly. Specifically, LSA-R.S. 42:12(B) provided that Open Meetings Law enforcement proceedings "shall be tried by preference and in a summary manner.”


source: Caselaw Access Project

author: CLARK, Justice.

license: Public Domain

text:
    In re Judge Reginald T. BADEAUX, III, Twenty-Second Judicial District Court Parish of St. Tammany, State of Louisiana.
    No. 2011-O-0214.
    Supreme Court of Louisiana.
    July 1, 2011.
    Office of Special Counsel, Henry Nathan Bellamy, Special Counsel, Michael Bewers, Assistant Special Counsel, for Applicant.
    The Law Offices of James E. Boren, James Edgar Boren, Baton Rouge, for Respondent.
    Nancy E. Rix, Commission Counsel.
   CLARK, Justice.

_JjThis matter comes before the Court on the recommendation of the Judiciary Commission of Louisiana (“Commission”) that Judge Reginald T. Badeaux, III (“Judge Badeaux”) of the 22nd Judicial District Court for the Parish of St. Tammany, State of Louisiana, be publicly censured and ordered to reimburse the Commission for costs incurred in the investigation and prosecution of this case. For the reasons that follow, we order Judge Badeaux to be publicly censured and ordered to reimburse and pay to the Commission $1,439.15 in costs.

FACTS AND PROCEDURAL HISTORY

On May 4, 2006, Mary Sinclair filed a petition in the 22nd Judicial District Court seeking a divorce from her husband, Cayman Sinclair. The petition also sought joint custody of the couple’s minor son, Cole. The case was randomly allotted to Judge Badeaux, who was a close, personal friend of both Mary and Cayman Sinclair. Nevertheless, Judge Badeaux did not re-cuse himself from hearing the Sinclair case. Moreover, during the sixteen months Judge Badeaux presided over the Sinclair case, he continued to socialize with Mr. Sinclair and conversed with him by-telephone.

The record shows that during Easter 2007, Judge Badeaux, Mr. Sinclair, and his son, Cole, were weekend guests of Mr. Sinclair’s sister and her husband at their home |⅞⅛ Gulf Shores, Alabama. Judge Badeaux’s activities during that weekend included accompanying Mr. Sinclair while he drove Cole to visit with his mother at a meeting point near Destín, Florida, where Ms. Sinclair was then living. In July 2007, Judge Badeaux and his girlfriend took a three-day trip to Sandestin, Florida with Mr. Sinclair and his girlfriend. During the trip, Judge Badeaux and Mr. Sinclair discussed Ms. Sinclair’s intention to move Cole to Destín and enroll him in school there. Further, during the return drive, Judge Badeaux agreed to Mr. Sinclair’s request to pick up Cole in Florida, where he had been visiting his mother.

In the late summer of 2007, Ms. Sinclair reminded Mr. Sinclair that she preferred to enroll Cole in school in Destín. Until this point in time, Mr. Sinclair and Ms. Sinclair had informally and amicably shared custody of Cole; however, Mr. Sinclair began to worry that if his son attended school and lived in Florida for six months, his ex-wife could try to initiate formal custody proceedings there and he could be disadvantaged. Consequently, on August 14, 2007, Mr. Sinclair brought to Judge Badeaux’s chambers a pro se Rule to Establish Interim Physical Custody and Visitation and For Emergency Order. Judge Badeaux’s law clerk contacted Judge Badeaux by phone and advised him that Mr. Sinclair was seeking to have an order signed. Judge Badeaux first told his clerk to instruct Mr. Sinclair to take the order to another judge but was informed that Mr. Sinclair had already been to other judges’ offices and none were available. Pursuant to Judge Badeaux’s instructions, the law clerk then brought Mr. Sinclair to Judge Badeaux’s car at the south entrance of the Covington courthouse, where Judge Badeaux was waiting. After reviewing the pleading and listening to the ex parte representations made by Mr. Sinclair, Judge Badeaux recognized that the custody, domicile, and related issues had become highly contentious and hotly ^contested. Nevertheless, instead of immediately recusing himself, Judge Ba-deaux signed an order proposed by Mr. Sinclair, which required Cole’s immediate return to the State of Louisiana and granted interim physical custody to Mr. Sinclair.

Notably, the order was clearly contrary to law, particularly La.Code Civ.P. art. 3945, in that it lacked verification or a supporting affidavit that immediate irreparable injury would result to the child before the adverse party could be heard; failed to certify efforts made to give Ms. Sinclair reasonable notice that the order 'was being presented to the court; failed to provide for temporary visitation by Ms. Sinclair; and bordered Ms. Sinclair to show cause at a hearing on October 30, 2007 why Mr. Sinclair should not be designated the domiciliary parent of the minor child (this hearing was set more than 30 days after the signing of the ex parte order granting Mr. Sinclair temporary custody). In his sworn statement, Judge Ba-deaux admitted that he knew Mr. Sinclair’s petition for interim child custody was not in compliance with La.Code Civ.P. art. 3945, and he testified that what he really thought was warranted in the situation was a temporary restraining order. Judge Badeaux said that he nevertheless signed the deficient order because his pen was not working sufficiently for him to strike out some of the language in the pleading as presented.

Ms. Sinclair learned of the order on August 19, 2007, the day before Cole was scheduled to start school in Destín. On that date, Judge Badeaux had invited Mr. Sinclair and Cole to swim at his parents’ home. Mr. Sinclair telephoned Ms. Sinclair during the swimming party and informed her of the order signed by Judge Badeaux, and he told her that he intended to keep Cole in Louisiana instead of returning him to Destín to start school. Judge Badeaux has admitted that he was “shocked” and “dismayed” that Mr. Sinclair chose that time and place to call Ms. Sinclair, who was very upset by the conversation; nevertheless, Judge Badeaux continued to fail to self-recuse from the Sinclair case.

For the next month, on the advice of his new counsel, Mr. Sinclair used the ex parte order granting him interim physical custody and the fact that a hearing was not set until October 30, 2007 to refuse to permit Ms. Sinclair to see Cole. Ms. Sinclair then filed a Motion for New Trial, alleging inappropriate and biased actions by Judge Badeaux. On September 6, 2007, Judge Badeaux signed an order of recusal in Sinclair v. Sinclair. On September 14, 2007, Judge William Burris of the 22nd Judicial District court, vacated Judge Badeaux’s August 14, 2007 order because it lacked verification |fiand did not otherwise comply with the Code of Civil Procedure.

On September 10, 2007, Ms. Sinclair filed a complaint with the Office of Special Counsel (“OSC”) against Judge Badeaux. On June 28, 2010, the Commission filed a Formal Charge alleging Judge Badeaux engaged in judicial misconduct by failing to recuse himself in the Sinclair case, by engaging in impermissible ex parte communications, and by issuing an order contrary to clearly established law, including, but not limited to, the requirements of La.Code Civ.P. art. 3945. The Commission alleged that Judge Badeaux’s conduct violated Canons 1 (a judge shall uphold the integrity and independence of the judiciary), 2A (a judge shall respect and comply with the law), 3A(1) (a judge shall be faithful to the law and maintain professional competence in it), 3A(4) (a judge shall perform judicial duties without bias or prejudice), 3A(6) (a judge shall not permit private or ex parte interviews, arguments or communications designed to influence his judicial action in any case), and 3C (a judge should disqualify himself in a proceeding in which the judge’s impartiality might reasonably be questioned) of the Code of Judicial Conduct. The Commission further alleged that Judge Badeaux engaged in willful misconduct relating to his official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in violation of La. Const, art. V, § 25(C).

Joint Stipulations

A hearing officer was appointed to conduct proceedings pursuant to Supreme Court Rule XXIII, § 29; however, prior to a hearing, the parties entered into an extensive stipulation of facts and a partial stipulation of ethical rules violated. The | (¡parties also offered a proposed joint stipulation that Judge Badeaux would be censured if his case were eventually referred to this court. The Commission agreed to dispense with convening a hearing and to accept the stipulated facts and law.

The Commission invited Judge Badeaux to appear before the members, which occurred on December 3, 2010. During his appearance, Judge Badeaux expressed remorse for not self-recusing immediately upon being assigned the Sinclair case.' He explained that he did not recuse because he believed his close, personal relationship with the Sinclairs afforded him “a unique opportunity” to “be of assistance to them in resolving any of the issues they might have.” Judge Badeaux also viewed the matter as amicable because the Sinclairs were “getting along well” and “sharing custody with no difficulties whatsoever.” Further, Judge Badeaux acknowledged his error in signing the ex parte order of physical custody in favor of Mr. Sinclair, stating that was “a bad judgment made only in haste, with no malice towards anyone and only towards what I thought was in the best interest of the minor child.” Judge Badeaux assured the Commissioners that a similar situation will not recur in the future:

... Not a day goes by that I don’t contemplate the harm I’ve caused to Mrs. Sinclair and Mr. Sinclair, the loss of our friendship. I’ve learned from it. I hope it will make me a better judge. Certainly [I am] much more sensitive to issues of recusal.... I would like to assure the Members of the Commission that that mistake will never happen again. If presented with a similar scenario, I will recuse myself from the beginning.

Following the December proceedings, the Commission filed its recommendation |7in this court on January 28, 2011.

Recommendation of the Commission

(Conclusions of Fact and Law)

In his sworn statement Judge Badeaux testified that he realized Mr. Sinclair’s petition for interim child custody was not in compliance with La.Code Civ. P. art. 3945, and what he really thought was warranted was a temporary restraining order. He said that he signed the deficient order while sitting in his car because his pen was not working sufficiently for him to strike out some of the language in the pleading as presented. He noted that he was also confused because he thought he was considering a verification. He maintained he felt there was urgency to keep Cole out of Florida courts and so he signed an order based upon a woefully defective pleading. Knowingly proceeding in the face of these realities compounds his admitted violations of Canons 2A and SA(1) of the Code of Judicial Conduct.

Judge Badeaux’s explanation in his sworn statement that his motive for granting interim physical custody of Cole to his father was to prevent any proceedings from being filed in Florida demonstrates that he had a personal interest in the case that was inconsistent with a judge’s necessary role as a neutral arbiter. Such a personal feeling about this hypothetical development further demonstrated that Judge Badeaux violated Canon 3C by his failure to remain impartial.

As a district court judge who had served for almost ten years, Judge Badeaux was unexpectedly naive to think Canon 3C did not require his recusal when two friends who were opposing parties in a domestic dispute were assigned by random allotment to present their case to him. He should have been fully aware that issues of divorce and child custody create situations where emotions run high and individuals tend to disagree. It was predictable that the Sinclairs might contest any one or more issues as [Rthey dissolved their marriage. No judge should preside over any case involving close friends, in particular not a divorce and custody case, on the basis that the judge expects things to remain amicable.

Judge Badeaux impressed the Commission as being sincerely sorry for his conduct, as stipulated, and the Commissioners found him credible as he apologized for his actions. The Commissioners are aware, however, that good judges sometimes commit serious violations of ethics rules. When this occurs, especially if the conduct is public, it is necessary for the case to be referred to the court with a recommendation of discipline so that the public, including other members of the judiciary, know and understand when judicial conduct is ethically unacceptable.

DISCUSSION

Because the facts and legal conclusions were stipulated, the sole issue presented is the appropriate measure of discipline. In re: Shea, 02-0643 (La.4/26/02), 815 So.2d 813. In considering the issue, the Commission looked to the factors set forth by this court in In re: Chaisson, 549 So.2d 259 (La.1989). We adopt the conclusions reached by the Commission and find as follows:

(a) and (b) Judge Badeaux’s admitted misconduct occurred in connection with his official duties — in connection with one case assigned to him, where he wrongfully | flfailed to disqualify himself from presiding when he was close personal friends with both parties to a divorce and custody proceeding. While there was only one case, Judge Badeaux retained it in excess of fifteen months. During the first year of the case there were few, if any, occasions for him to exercise his judicial powers, but he continued to socialize with the husband during that period and he engaged in ex parte communications with him about child custody. He acted in a judicial capacity based upon at least one ex parte communication. Judge Badeaux’s eventual recusal occurred after he took a judicial action that favored the husband and within a week of the time the wife accused him of wrongfully failing to recuse, among other things, both in a court pleading and in her complaint to the Commission;

(c) and (d) Judge Badeaux’s misconduct occurred with respect to his official judicial duties;

(e) Judge Badeaux has acknowledged his wrongful acts. He entered into a full stipulation of facts, and when he appeared before the Commission on December 3, 2010, he acknowledged his wrongdoing and expressed apparently sincere regret; (f) As to whether Judge Badeaux has indicated he will modify his behavior, we adopt the Commission’s belief from his statement to them that he will not repeat the violations of the Code that are evident and admitted in this case;

(g) Judge Badeaux assumed judicial office in January of 1998, and thus he was an experienced judge at the time of his ethical misconduct;

(h) The present case represents the first meritorious complaint lodged against Judge Badeaux;

(i) Judge Badeaux’s misconduct as proven placed the judiciary as a whole in a negative light because those persons with whom Judge Badeaux and the Sinclairs associated and traveled, some of whom were prominent attorneys, witnessed his | mcontinued socializing with Mr. Sinclair during the time the judge was presiding over the Sinclair case. Further, court personnel who learned of the manner in which Judge Badeaux signed a legally unauthorized order that deprived a mother of her right to visit her child for at least four weeks and that exposed her to the difficulties and cost of overturning the wrongful ruling potentially lost confidence in the fairness and integrity of the judicial system; and

(j) No evidence was introduced (nor was it alleged) that Judge Badeaux gained any personal advantage as the result of his stipulated misconduct.

We adopt the Commission’s conclusion that although Judge Badeaux’s conduct was “extremely troubling,” he was genuinely contrite and is unlikely to fail to recuse in the future when he faces a case involving persons with whom he has a close personal relationship. Accordingly, we will accept the recommendation of the Commission and publicly censure Judge Badeaux, as well as order him to pay the costs of these proceedings.

DECREE

For the reasons assigned, it is ordered that Judge Reginald T. Badeaux, III be publicly censured for violating Canons 2A, 3A(1), 3A(6), and 3C of the Code of Judicial Conduct. Judge Reginald T. Badeaux, III is further ordered to reimburse the Judiciary Commission of Louisiana the sum of $1,439.15 in costs.

      . A divorce was granted on June 22, 2006 pursuant to an uncontested filing based upon living separate and apart for 180 days. Contested issues subsequently arose regarding child custody.

      . Mary and Cayman Sinclair had for a number of years socialized with Judge Badeaux and his wife (now his ex-wife), and the two couples had taken vacations and celebrated birthdays and holidays together.

      . Judge Badeaux paid the costs of the condominium where the group stayed in Sandestin, and drove them to Sandestin and back to Mandeville.

      . Louisiana Code of Civil Procedure Article 3945 provides, in pertinent part:
      B. An ex parte order of temporary custody of a minor child shall not be granted unless:
      (1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.
      (2) The applicant's attorney certifies to the court, in writing, either:
      (a) The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.
      (b) The reasons supporting his claim that notice should not be required.
      C. An ex parte order of temporary custody shall:
      (1) Expire by operation of law within thirty days of signing of the order; however, the order may be extended for good cause shown at any time before its expiration for one period not exceeding fifteen days.
      (2) Provide specific provisions for temporary visitation by the adverse party of not less than forty eight hours during any fifteen day period, unless the verified petition or supporting affidavit clearly demonstrates that immediate and irreparable injury will result to the child as a result of such visitation.
      (3) Be endorsed with the date on which the ex parte order is signed and the date and hour of the rule to show cause.
      D. The rule to show cause why the respondent should not be awarded the custody, joint custody, or visitation of the child shall be assigned for hearing not more than thirty days after signing of the ex parte order of temporary custody.
      E. Any ex parte order not in compliance with the provisions of this Article is not enforceable, and is null and void.

      . The Commission accepted Judge Badeaux's stipulation that he violated Canons 2A, 3A(1), 3A(6), and 3C of the Code of Judicial Conduct. Judge Badeaux did not stipulate that he violated Canons 1 and 3A(4), nor did he agree he violated La. Const. art. V, § 25(C), as charged; however, the Commission was not concerned by this fact, reasoning that "the admitted violations were the critical problems that support a recommendation of discipline in this case.”

      . Judge Badeaux twice requested that the Commission consider entering into a Deferred Recommendation of Discipline Agreement to resolve Ms. Sinclair's complaint. The Commission declined, reasoning that a Deferred Recommendation of Discipline Agreement was not appropriate because some of the judge's admitted violations of the ethics rules were too serious to allow for closure of the case without a recommendation of public discipline. Moreover, the Commission noted that there was some degree of public knowledge about Judge Badeaux's failure to recuse when necessary, and that he was an experienced judge at the time he violated the Code.

      .Judge Badeaux explained that he viewed "the real problem” as the possibility that Ms. Sinclair "might file something down there in Destín," and so "the important thing was to get the ball rolling here in Louisiana and preempt any action in a foreign jurisdiction.”

      . In Chaisson, 549 So.2d 259, this court, citing Matter of Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987), set forth a non-exclusive list of factors a court may consider in imposing discipline on a judge:

        (a) whether the misconduct is an isolated instance or evidenced a pattern of conduct;
      (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge’s official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.


author: KIMBALL, C.J.

text:
    Charles EBINGER, et ux. v. VENUS CONSTRUCTION CORPORATION, et al.
    No. 2010-C-2516.
    Supreme Court of Louisiana.
    July 1, 2011.

      Staines & Eppling, Thomas J. Eppling, Metairie, LA, for Applicant.
    Thomas H. Morrow, Babovich & Spe-dale, PLC, Wayne M. Babovich, New Orleans, LA, Hailey, McNamara, Hall, Lar-mann & Papale, LLP, Shailendra U. Kulkarni, W. Evan Plauche’, Metairie, LA, Law Offices of Randall L. Kleinman, LLC, Randall Leland Kleinman, Salley, Hite & Mercer, LLC, Glen E. Mercer, New Orleans, LA, for Respondent.
   KIMBALL, C.J.

| tin this dispute over alleged defects in the construction of a new home, the issue before this Court is whether the construction company’s third-party demand against a subcontractor is time-barred. The resolution of this issue depends primarily upon the application of La. R.S. 9:2772, which establishes a peremptive period for actions against residential building contractors. This peremptive period was established originally at ten years, but subsequent amendments have shortened its duration twice. A 1999 amendment reduced the period to seven years; a 2003 amendment reduced it to five years. For the reasons that follow, we find the latest version of the statute applies; consequently, the construction company’s right to indemnity is extinguished and its third-party demand is perempted.

FACTS

In 1995, Charles and Charlene Ebinger contracted with Venus Construction Corporation to build a home in Lafayette, Louisiana. The couple moved into their new residence in the spring of 1997, obtaining a certificate of occupancy on April 22, 1997. On October 9, 2003, the Ebing-ers filed the instant suit against Venus, alleging defects in the home’s foundation had caused cracks in the drywall, tile, brick walls, and floor. The Ebingers sought recovery under the New Home | ^Warranty Act, La. R.S. 9:3141, et seq. On September 22, 2006, Venus filed a third-party demand seeking indemnification from engineer Roy Carubba and the subcontractor that supplied the foundation, Post-Tension Slabs, Inc. Mr. Carubba filed an exception of peremption based on La. R.S. 9:5607, which governs damages actions against engineers and establishes a five-year peremptive period for such claims. The trial court granted the exception, ruling the statute applies retroactively. The Third Circuit Court of Appeal affirmed the trial court’s ruling, finding that Venus’ indemnification claim against Mr. Carubba did not exist before La. R.S. 9:5607 was enacted because Venus was not sued by the Ebingers until after the statute took effect. Ebinger v. Venus Constr. Corp., 08-379 (La.App. 3 Cir. 10/1/08), 995 So.2d 1224, 1226 (“Ebinger I ”). The court of appeal agreed with the trial court that Venus acquired an “unvested, conditional right” to indemnification when the Ebing-ers filed suit, but that it was by that time perempted under La. R.S. 9:5607. Id.

Following the outcome of that appeal, Post-Tension Slabs filed an exception of prescription, asserting an argument similar to Mr. Carubba’s — that Venus’ indemnification claim against it also was per-empted. However, Post-Tension [¡¡based its argument on La. R.S. 9:2772, which provides a five-year peremptive period for such claims against contractors. The trial court granted the exception. Venus appealed, contending the 1997 version of La. R.S. 9:2772, which provided a ten-year per-emptive period, should apply. The Third Circuit Court of Appeal reversed the trial court’s ruling. Ebinger v. Venus Constr. Corp., 10-194 (La.App. 3 Cir. 10/6/10), 48 So.3d 375 (“Ebinger II”). The court of appeal agreed with Venus, basing its opinion in part on a provision in La. R.S. 9:2772 that is not contained in La. R.S. 9:5607. Section 2772 provides that its per-emptive period “shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.” La. R.S. 9:2772(B)(3). The Third Circuit reasoned that this language started the per-emptive period when the certifícate of occupancy was issued in 1997; the court also determined that Venus’ claim for indemnity against Post-Tension became a vested right at that time. Id. at 379. Therefore, the court of appeal concluded that the ten-year peremptive period contained in the 1997 version of § 2772 applied, and because Venus’ claim against Post-Tension was filed nine years after the peremptive period began, it was not perempted. To review the correctness of this decision, and to resolve an apparent conflict between courts of Lappeal, we granted certiorari. Ebinger v. Venus Constr. Corp., 10-2516 (La.1/28/11), 56 So.3d 955.

LAW AND ANALYSIS

Venus’ third-party demand against Post-Tension is based on the longstanding principle that a party whose liability results from the faults of others may recover by way of indemnity. See Bewley Furniture Co., Inc. v. Maryland Casualty Co., 285 So.2d 216 (La.1973). The rule of indemnity is founded upon the general obligation to repair the damage caused by one’s fault and the moral maxim that “no one ought to enrich himself at the expense of another.” Id. at 220 (citing La. C.C. arts. 2315); see also La. C.C. art. 2298. However, the right to indemnity is not necessarily absolute; it may be modified by prescriptive or peremptive periods. As the parties in this matter have acknowledged, La. R.S. 9:2772 establishes a per-emptive period for the exercise of Venus’ indemnification right against Post-Tension. The crux of their dispute is whether that period is ten years, as the statute originally established, or five years, as a 2003 amendment subsequently established. First, we must determine when the per-emptive period commenced. Second, we must address which version of La. R.S. 9:2772 applies to the instant matter. Third, we must decide when Venus’ cause of action arose. We will analyze each of these issues in turn.

When Did The Applicable Peremptive Period Begin?

Enacted in 1964, La. R.S. 9:2772 provides that no action against a residential building contractor can be brought after the applicable peremptive period has run. This prohibition includes third-party demands; the peremptive period “shall extend to every demand, whether brought by direct action or for | .^contribution or indemnity or by third party practice.... ” § 9:2772(B)(3). Originally, the statute forbid litigation of such an action once ten years had passed from the owner’s acceptance of the work. As amended in 2003, the statute precludes any action brought “more than five years after the date of registry in the mortgage office of acceptance of the work by owner.” § 9:2772(A)(l)(a). If no such acceptance has been recorded six months after the owner takes possession, the statute precludes any action brought “more than five years after the improvement has been thus occupied by the owner.” § 9:2772(A)(l)(b). Therefore, regardless of the length of the peremptive period, it began when the owners took possession of the house or filed an acceptance of the work. In her deposition, Mrs. Ebinger testified that the couple moved into the house in April or May 1997. The parties in this matter agree that a certificate of occupancy was issued for the Ebingers’ residence by American Metropolitan Code Authority on April 22, 1997. No notice of the owners’ acceptance appears in the record before us; we therefore assume the peremptive period commenced upon the issuance of the certificate of occupancy. Thus, Venus’ indemnity claim is not per-empted if the ten-year period applies because its third-party demand was filed in September 2006, approximately nine years and five months after the Ebingers took occupancy of their new home. Alternatively, Venus’ indemnity claim is perempt-ed if the five-year period applies. We turn next to the question of which period applies.

Which Peremptive Period Applies To This Claim?

As previously mentioned, the peremp-tive period prescribed by La. R.S. 9:2772 has been shortened twice, by amendments in 1999 and 2003. Acts 1999, No. 1024, § 1 substituted “seven” for “ten” years in subsection (A)(1)(a). However, Section 2 of Acts 1999 states: “The provisions of this Act shall have prospective application only and shall apply to contracts entered into on or after the | fieffective date of this Act.” The amendment took effect August 15, 1999. Therefore, because the Ebingers entered into a contract with Venus in 1995, the 1999 amendment is inapplicable to the instant matter under the plain meaning of its terms.

Whether the 2003 amendment applies is a more difficult question. Acts 2003, No. 919, § 1 substituted “five” for “seven” years in subsection (A)(1)(a). However, the 2003 amendment did not carry the above-quoted provision that it would “have prospective application only.” Venus contends the restriction applies to the 2003 amendment despite the absence of that language in the legislation. Venus avers the “prospective only” proviso reflects the legislative intent behind both amendments. Because the statute that shortened the peremptive period of § 2772 from ten years to seven years had prospective application only, Venus asserts, the statute that shortened the period from seven years to five years should likewise have prospective application only. We cannot agree with this statutory construction. When analyzing legislative history, it is presumed the legislature’s actions in drafting a law were knowing and intentional. In re Succession of Faget, 10-0188 (La.11/30/10), 53 So.3d 414, 420. More particularly, this Court must assume the legislature was aware of existing laws on the same subject, as well as established principles of statutory construction and the effect of their legislative acts. Id. Therefore, we must interpret the omission of any reference to “prospective only” application in the 2003 amendment as deliberate. The restriction contained in the 1999 amendment referred, by its own terms, to the provisions of the 1999 Act. Had the legislature intended the 2003 amendment to apply only to contracts entered into after its effective date, it would have included the same language in the 2003 Act. We cannot read into the statute language that is absent from it.

17Nevertheless, Venus argues the 2003 amendment cannot be applied to per-empt its third-party demand against Post-Tension because to do so would disturb a vested indemnification right. Under the Due Process and Contract Clauses of both the United States and Louisiana Constitutions, a law may not be applied retroactively if it would impair contractual obligations or disturb vested rights. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08), 998 So.2d 16, 29-30. Before we consider whether Venus’ indemnification right vested before the 2003 amendment took effect, however, we must analyze whether the 2003 amendment otherwise may be applied retroactively.

The Louisiana Revised Statutes are not applied retroactively “unless it is expressly so stated.” La. R.S. 1:2. However, the Louisiana Civil Code makes clear that this rule of statutory construction applies to substantive laws only. In the absence of contrary legislative expression, procedural and interpretive laws apply both prospectively and retroactively. La. C.C. art. 6. “[Statutes of limitation [the common-law analog to statutes of peremption or prescription] are remedial in nature and as such are generally accorded retroactive application.” Lott v. Haley, 370 So.2d 521, 523 (La.1979). La. R.S. 9:2772 does not expressly state that it may be applied retroactively. However, it is a procedural law, establishing a period after which a plaintiff may no longer assert a claim. Subject to the caveat that it may not operate to disturb a vested right, § 2772 may be applied retroactively.

Despite the trial court and court of appeal’s rulings in this case, we do not find it necessary to accord the statute retroactive application. The 2003 amendment became effective August 15, 2003, approximately two months before the Ebingers filed suit against Venus. Therefore, its application in this matter is not necessarily retroactive. Although the applicable peremptive period | scommenced in 1997, before the amendment took effect and before the suit was filed, this antecedent does not in itself require retroactivity. “[AJpplying a legislative act to conduct antedating the statute’s enactment or upsetting a party’s expectations based upon prior law does not mean the statute is impermissibly ‘operating retroactively.’ ” Elevating Boats, Inc. v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153, 1163.

As Marcel Planiol explained, a law is retroactive “when it goes back to the past either to evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired. Outside of those conditions, there is no retroactivity.” Id. (quoting 1 Marcel Planiol, Treatise on the Civil Law, § 243 (La. State Law Inst. Trans.1959) (12th ed.1939)). In the instant matter, § 2772 “goes back to the past” not to evaluate the legality of an act but to begin the peremptive stopwatch. Therefore, it is retroactive only if it affects a right already acquired, i.e. vested. The 2003 amendment of La. R.S. 9:2772 became effective before Venus filed its third-party demand against Post-Tension, and it will apply prospectively to perempt that claim if it does not disturb a vested indemnification right. We now turn to the question of whether Venus’ right to indemnity vested before the 2003 amendment became effective.

When Did Venus’ Cause Of Action Arise?

Under Louisiana law, a cause of action accrues when a party has the right to sue. Bourgeois v. A.P. Green Indus., Inc., 00-1528 (La.4/3/01), 783 So.2d 1251, 1259. Fault, causation, and damages are required for a cause of action to accrue. Owens v. Martin, 449 So.2d 448, 451 (La.1984). “Once a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.” Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). A right is vested when “the right to enjoyment, present or prospective, has become the | nproperty of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit ... does not constitute a vested right.” Sawicki v. K/S Stavanger Prince, 01-0528 (La.12/7/01), 802 So.2d 598, 604 (ellipses in original).

Venus contends its right of indemnity against Post-Tension vested as soon as the Ebingers first noticed cracks in the brick veneer of their house. In support of this proposition, Venus relies on lower courts’ pronouncements that La. R.S. 9:2772 is an exception to the general rule that prescription on a claim for indemnification does not begin to run until the party seeking indemnification has been cast in judgment. Smith v. Ly, 498 So.2d 128, 130 (La.App. 5 Cir.1986); see also Claiborne v. Rheem Mfg. Co., 579 So.2d 1199, 1200 (La.App. 5 Cir.1991). Because of this purported exception, Venus argues, its indemnity right vested as soon as the alleged damage manifested itself. In support of this proposition, Venus cites our discussion of libera-tive prescription in Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268,1275 (explaining that prescription “generally begins to run when the victim knows or should know of the damage, the delict and the relationship between them.”).

We disagree that Venus’ indemnification right vested as soon as the Ebing-ers noticed damage in their home. As an initial matter, we are mindful of the difference between prescription and peremption. Although related, the two are not the same and should not be confused; what is true of prescription may not be true of peremption. Peremption differs from prescription in two respects: (1) the expiration of the peremptive time period destroys the cause of action itself; and (2) nothing may interfere with the running of a peremptive time period. Naghi v. Brener, 08-2527 (La.6/26/09), 17 So.3d 919, 926.

110In addition to this critical distinction between peremption and prescription, we are mindful of the difference between the commencement of peremption and the accrual of a cause of action. These key moments in time apparently have been confused in this case. Although the peremptive period in this matter began on April 22, 1997, nothing in La. R.S. 9:2772 indicates that Venus’ right to indemnity vested at that time, as Venus contends. Logic and the nature of indemnity instruct otherwise. Although cracks in the Ebingers’ brick veneer may create a cause of action for the homeowners, it did not create Venus’ cause of action for indemnity. Indemnity is a separate substantive cause of action, independent of the underlying wrong. Nassif v. Sunrise Homes, 98-3193 (La.6/29/99), 739 So.2d 183, 186. As we explained in Nassif, “[indemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed.” Id. at 185. Unless and until Venus is cast in judgment, it has discharged no liability for which to seek reimbursement from Post-Tension. A third-party defendant is liable to the third-party plaintiff only if the third-party plaintiff is cast in judgment. Howard v. Baker Heritage Hosiery, 683 So.2d 827, 830 (La.App. 5 Cir.10/1/96). In other words, liability on a third-party demand is contingent upon the result of the main demand. Burns v. McDermott, Inc., 665 So.2d 76, 79 (La.App. 1 Cir.1995).

When the trial court granted the exception of peremption in this matter filed by Carubba, the engineer, the court reached a similar conclusion using the same reasoning. The court held: “Venus only has an unvested, inchoate right to indemnification prior to being cast in judgment. [Venus’] right for indemnification against the third party is not absolute, complete and unconditional, but dependent on a contingency, i.e. being cast in judgment.” Ebinger I, 995 So.2d at 1225. The court of appeal reached the same conclusion and adopted the trial court’s language, | 1 ¶ stating: “Once the Ebingers’ suit was filed, Venus Construction acquired an unvested, conditional right to indemnification.” Id. at 1226.

In a similar dispute, the Fourth Circuit Court of Appeal also reached the same conclusion and adopted the language used by the trial court in Ebinger I. In Metairie III v. Poche’ Constr., Inc., 10-0353 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, an assisted-living center sued its general contractor after problems with the building’s sewer system emerged. The general contractor, Poche Construction, Inc., brought a third-party action against its plumbing subcontractor. The Fourth Circuit held Poche’s third-party claim against the subcontractor was “merely an unvested inchoate right to indemnification prior to being cast in judgment.” Id. at 454. Nevertheless, the Third Circuit Court of Appeal in Ebinger II, supra, reached a conclusion different from those in Ebinger I and Poche’. The court distinguished the former case because it involved interpretation of a different statute, La. R.S. 9:5607. The Third Circuit also relied on our holding that “statutes shortening a prescriptive period may be impermissible absent a transitional period sufficient to permit a claimant to seek judicial enforcement of a claim otherwise adversely affected by the new prescriptive period.” Ebinger II, 48 So.3d 375, 380 (quoting Elevating Boats, supra, 795 So.2d at 1163, n. 12) (emphasis in original). The court of appeal’s reliance on this dictum is misplaced for several reasons. First, the statement applies to statutes that shorten prescriptive periods, not peremptive periods. Second, the statement is conditional, indicating that such statutes are not necessarily impermissible. Third, and most important, to conclude Venus’ claim was adversely affected by the new peremptive period is to mistakenly assume Venus could have sought judicial enforcement of that claim. If Venus’ cause of action for indemnity did not accrue before the 2003 amendment, as we discussed 112earlier, its claim did not yet exist. A non-existent claim cannot be adversely affected by a change in the law.

As we have explained, the conclusion reached by the court of appeal in Ebinger II was different from the court in Ebinger I because of the following language in La. R.S. 9:2772: “this peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity ...” Because the statute explicitly commenced the prescriptive period for Venus’ third-party claim at the time the Ebingers took occupancy of their home, the Ebinger II court held that Venus’ right to indemnification vested simultaneously. As discussed above, we disagree. A vested right must be absolute, complete and unconditional, independent of a contingency. Sawicki, 802 So.2d at 604.

When the Ebingers took occupancy in 1997, Venus had no claim for indemnification because it had neither been sued nor east in judgment. Venus’ indemnity right was conditional because it depended on the Ebingers’ action; it was contingent because it depended on the outcome of that principal demand. Although cracks in the Ebingers’ brick veneer may have established a cause of action for the homeowners, it did not create a cause of action for Venus’ third-party claim because that action depends on the Ebingers seeking judicial enforcement of their claim. Until Venus has been cast in judgment, it has not suffered damages that can be recovered from Post-Tension through indemnity because liability has not been established. Therefore, Venus’ indemnification right was conditional and incomplete when the Ebingers filed suit against the company. For these reasons, we find Venus’ right to indemnification was not vested when the 2008 amendment to La. R.S. 9:2772 became effective. Therefore, the five-year peremptive period established by the amendment applies to this matter, and Venus’ third-party demand against Post-Tension is perempted.

| ^CONCLUSION

La. R.S. 9:2772, which established a five-year peremptive period for actions involving construction defects, became effective on August 15, 2003. More than three years later, Venus Construction Corporation filed a third-party demand seeking indemnification from Post-Tension Slabs, Inc. Because the peremptive period began when the Ebingers occupied the residence in 1997, Venus’ claim was perempted before its cause of action arose. Accordingly, the court of appeal’s ruling is reversed, and the judgment of the trial court is reinstated.

REVERSED.

      . The statute provides, in pertinent part:
      No action for damages against any professional engineer, surveyor, engineer intern, surveyor intern, or licensee as defined in R.S. 37:682, or any professional architect, landscape architect, architéct intern, or agent as defined in R.S. 37:141, or professional interi- or designer, or licensee as defined in R.S. 37:3171, or other similar licensee licensed under the laws of this state, or real estate developer relative to development plans which have been certified by a professional engineer or professional architect, whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from ... the date of registry in the mortgage office of acceptance of the work by owner.

      . Paragraph A provides, in pertinent part:
      No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9) ...

      . Interpreting the statute at issue in this matter, La. R.S. 9:2772, the courts of appeal reached different results in Ebinger II, supra, and Metairie III v. Poche’ Constr., Inc., 2010-0353 (La.App. 4 Cir. 9/29/10), 49 So.3d 446. A discussion of this conflict follows, infra.

      . Art. 2315 provides, in pertinent part: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Art. 2298 provides, in pertinent part: "A person who has been enriched without cause at the expense of another person is bound to compensate that person.”


text:
    In re Ramsey T. MARCELLO.
    No. 2011-OB-1539.
    Supreme Court of Louisiana.
    July 15, 2011.
   ORDER

|, Considering the original and supplemental Motion to Revoke Conditional Admission filed by the Office of Disciplinary Counsel, and the response to each filed by respondent,

IT IS ORDERED that respondent, Ramsey T. Marcello, Louisiana Bar Roll number 32977, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, §§ 25.1(1) and 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that this matter be remanded for a hearing pursuant to Supreme Court Rule XIX, § 25.1(2). The hearing shall be conducted on an expedited basis, at which time respondent shall be required to show by clear and convincing evidence why his conditional admission should not be permanently revoked. The hearing committee shall file its report and recommendation in this court no later than thirty days from the conclusion of the hearing.

FOR THE COURT:

/s/ Jeannette T. Knoll

/s/ Justice, Supreme Court of Louisiana


text:
    In re Arthur GILMORE, Jr.
    No. 2011-B-1401.
    Supreme Court of Louisiana.
    July 19, 2011.
   ORDER

| t Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Arthur Gilmore, Jr., Louisiana Bar Roll number 1059, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance "with Supreme Court Rule XIX, §§ 11 and 19.

FOR THE COURT:

/s/ Jeanette T. Knoll

/s/ Justice, Supreme Court of Louisiana