author: GAIDRY, J.

text:
    FIDELITY NATIONAL BANK OF BATON ROUGE v. Van B. CALHOUN.
    No. 2008 CA 1685.
    Court of Appeal of Louisiana, First Circuit.
    March 27, 2009.
    Rehearing Denied May 21, 2009.

      Mark C. Landry, Metairie, Louisiana, for Plaintiff in Revival Action/Appellee, The Cadle Company.
    DeVan Pardue, Springfield, Louisiana, for Defendant/Appellant, Van B. Calhoun.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|2A judgment debtor appeals a judgment reviving a judgment against him on a promissory note. Converting his suspen-sive appeal to a devolutive appeal, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On April 29, 1981, Fidelity National Bank of Baton Rouge (Fidelity) filed suit against the defendant, Van B. Calhoun, on a promissory note in the principal amount of $17,646.58, with accrued interest and costs. The defendant was personally served with citation and a certified copy of the petition on August 12, 1981. A preliminary judgment by default was entered on September 3, 1981, and was confirmed and signed on September 11, 1981.

On February 8, 1990, Hibernia National Bank (Hibernia), as successor to Fidelity, filed a petition to revive the original judgment. The defendant was personally served with citation and a certified copy of the petition to revive the judgment on October 1, 1991. A preliminary judgment by default was entered on July 1, 1992, and was confirmed and signed on October 22, 1992. A motion for a judgment debtor examination was filed on July 5, 1994, and the defendant was ordered to appear for examination on August 10, 1994. However, the defendant was never served with notice of the order for examination, as the sheriff was unable to locate him at his last-known residence or his last-known place of employment.

On September 18, 2002, a second petition to revive judgment was filed by The Cadle Company (Cadle). This petition listed “Hibernia National Bank in Baton Rouge” as the plaintiff in the suit title, with the docket number and defendant’s name unchanged. The defendant was personally served with citation and a certified copy of that petition on | ^October 7, 2002. A preliminary judgment by default was entered on November 18, 2002. The default judgment was confirmed and signed on May 29, 2003. However, notice of the judgment was not mailed to the defendant until May 8, 2008.

On June 6, 2008, the defendant filed a motion for a suspensive appeal, seeking to appeal the judgment of May 29, 2003. A surety bond, dated and signed by the defendant and his surety on February 18, 2008, with its amount blank, was also filed on June 6, 2008. The order of appeal was signed by the trial court on June 11, 2008, fixing the amount of the suspensive appeal bond at $85,000.00. The required amount of the bond was never placed on the bond.

On November 26, 2008, Cadle filed a request in this court that we take judicial notice of certain facts relating to the changes of name and status of Fidelity and Hibernia.

ASSIGNMENTS OF ERROR

We summarize the substance of the defendant’s assignments of error on the part of the trial court as follows:

(1) The trial court erred in rendering judgment reviving the judgment against the defendant, as the evidence did not establish Cable’s status as an interested party entitled to revival of the judgment and its attorney’s authority and status to seek such relief on behalf of any party.

(2) The trial court erred in rendering the default judgments of 1992 and 2003, reviving the original judgment, since the supporting affidavits were defective and contradictory.

|4(3) The trial court erred in rendering the default judgments of 1992 and 2003, reviving the original judgment, since the defendant was not served with notice of judgment as required by La. C.C.P. art. 1913(C).

DISCUSSION

The Nature of the Appeal

The furnishing of bond or security is a necessary step in the process of sus-pensive appeal, and certain definite requirements apply to appeal bonds. Guilliot v. City of Kenner, 326 So.2d 359, 362 (La.1976). Louisiana Code of Civil Procedure article 2124(E) sets forth the substantive requirements of a suspensive appeal bond:

A suspensive appeal bond shall provide, in substance, that it is furnished as security that the appellant will prosecute his appeal, that any judgment against him will be paid or satisfied from the proceeds of the sale of his property, or that otherwise the surety is liable for the amount of the judgment.

See also La. C.C.P. arts. 5121 and 5122.

An appellate court does not have jurisdiction to review or consider objections to the form, substance, and sufficiency of an appeal bond, if it otherwise complies substantially with the legal requirements; such jurisdiction is retained by the trial court. La. C.C.P. art.2088(5); Guilliot, 326 So.2d at 362-63. However, an appellate court does have the authority to determine whether what purports to be a bond is in fact a bond, or whether the defects of the purported bond are so glaring and so numerous that it constitutes no bond at all. Id.

On our review of the record in this matter, we note that the defendant’s sus-pensive appeal bond is seriously deficient in a number of Rrespects. The surety bond initially recites that the defendant “has this day [February 18, 2008] obtained an order from the 19th Judicial District Court for the Parish of East Baton Rouge appointing him as administrator in the suit entitled Hibernia National Bunk v. Van B. Calhoun No. 24.6-167 Div. “H” on the docket of that court;” and then describes the obligation undertaken in the following terms:

We, the undersigned principal and surety, do by these presents, firmly bind ourselves to be responsible for such damages as the [sic] any party may recover against the said VAN B. CALHOUN in case it should be decided that the said order was wrongfully obtained, and for the payment of which we,
VAN B. CALHOUN, as principal, a resident of the Parish of Livingston, and TERRY O’NEAL, as surety, a resident of the Parish of Livingston, are by these presents, held firmly bound unto [the clerk of court], and his successors in office, in the full sum of $_, lawful money of the United States of America.

(Emphasis supplied.) Beneath the signatures of the defendant and Mr. O’Neal appear their affidavits, providing as follows:

TERRY O’NEAL, being duly sworn, says that he is worth over and above all his debts and obligations $_in assets valued in excess of the amount bonded....
VAN B. CALHOUN, being duly sworn, says he is informed that the Surety on this bond is worth over and above his debts and obligations in assets valued in excess of the amount bonded, the amount for which he has bound himself in this bond.

No “order” appointing the defendant as “administrator,” as described in the bond, is present in the record. Given the description of the obligation purportedly undertaken (payment of an indeterminate amount of “damages” for wrongfully obtaining an order of administration), the defendant’s attorney seems to have prepared the bond using a form for a tutor’s or | (¡curator’s bond. While the premature date of the bond and the absence of a monetary amount in the blanks are not fatal to the defendant’s suspensive appeal, the substance of the expressed obligation is. It simply does not comply with the plain, mandatory language of La. C.C.P. art. 2124(E). This bond is not merely deficient in form; in substance, it is no appeal bond at all.

Since the procedural elimination of the requirement for bond for devolutive appeals, our jurisprudence has recognized that the failure to file the required bond for a suspensive appeal does not deprive an appellate court of jurisdiction, as long as the appellant has met the requirements for a devolutive appeal. In such event, the suspensive appeal should be converted to a devolutive appeal. R.G. Claitor’s Realty v. Rigell, 06-2336, p. 5 (La.App. 1st Cir.5/4/07), 961 So.2d 458, 461, writ denied, 07-1214 (La.9/21/07), 964 So.2d 340; Clement v. Graves, 04-1831, p. 6 (La.App. 1st Cir.9/28/05), 924 So.2d 196, 200. The defendant obtained an order of appeal within the requisite period for taking a devolutive appeal. See La. C.C.P. arts. 2087(A) and 2088. Thus, we dismiss the appeal as a suspensive appeal, but maintain the appeal as a devolutive appeal. See R.G. Claitor’s Realty, 06-2336 at p. 5, 961 So.2d at 461-62.

Request for Judicial Notice

Cadle has requested that we take judicial notice of the following facts, supported by attached certificates of the United States Comptroller of the Currency: (1) On July 1, 1986, Fidelity changed its name to Hibernia National Bank of Baton Rouge; and (2) Effective January 1, 1987, Hibernia National Bank of Baton Rouge merged into Hibernia, with Hibernia being the surviving entity.

Louisiana Code of Evidence article 201 governs judicial notice of adjudicative facts, defined as facts “normally determined by the trier of 17fact.” La. C.E. art. 201(A). A court shall take judicial notice upon request if supplied with the information necessary for the court to determine that there is no reasonable dispute as to the fact. La. C.E. art. 201(D). A party may request judicial notice at any stage of the proceeding. La. C.E. art. 201(F).

Louisiana Code of Evidence article 202(B)(1)(e) further directs a court, if so requested by a party, to take judicial notice of the “[rjules and decisions of boards, commissions, and agencies of the United States ... which have been duly published and promulgated and which have the effect of law within their respective jurisdictions.” Judicial notice of the foregoing legal matters may be taken at any stage of the proceedings. La. C.E. art. 202(D). These provisions authorize us to take judicial notice of the Comptroller of the Currency’s approval of Fidelity’s change of name to Hibernia National Bank in Baton Rouge and the subsequent merger of Hibernia National Bank in Baton Rouge into Hibernia. See Premier Bank v. Daigle, 599 So.2d 503, 504 (La.App. 3rd Cir.1992). We may further take judicial notice of the legal effect of the name change and merger. See La. C.E. art. 202(A).

We grant Cadle’s request, and further take judicial notice of the legal effect of the adjudicative facts noticed, such effect being that Hibernia became the owner of Fidelity’s original default judgment against the defendant effective January 1, 1987. See 12 U.S.C. § 215(e) and La. R.S. 6:355(D).

Cadle’s Status as an “Interested Party” and its Attorney’s Status

In his first assignment of error, the defendant challenges Cadle’s status as an “interested party” entitled to seek revival of the money judgment. Louisiana Civil Code article 3501 establishes a prescriptive period of ten years from its signing for a money judgment. It further | ¡¡provides that “[a]ny party having an interest in a money judgment may have it revived before it prescribes,” and that the revived judgment in turn prescribes in ten years and may itself be revived. At the time Cadle filed its petition to revive the judgment, and at the time its default judgment was confirmed, La. C.C.P. art.2031 provided as follows:

A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered.
The judgment debtor shall be made a defendant in the proceeding to revive the judgment, unless he is dead, in which event his legal representative or legal successor shall be made a defendant.
A judgment shall be rendered in such a proceeding reviving the original judgment, unless the defendant shows good cause why it should not be revived.

This article has since been amended to permit an interested party to seek revival of a judgment by filing an ex parte motion in the court and the same original suit in which the judgment was rendered. The present language of La. C.C.P. art. 2031 clarifies the term “interested party” as including “the holder and owner of the judgment.” As we have judicially noticed, Hibernia was legally the successor in interest and, for all practical purposes, the same entity as Fidelity. Thus, Hibernia unquestionably was a “party having an interest in a money judgment” at the time it filed its petition to revive the original judgment.

Hibernia, as the owner of the money judgment, had the right to assign or transfer the judgment, as a property right and asset. See La. C.C. art. 2642. Louisiana Civil Code article 2643 provides that “[t]he assignment of a | aright is effective against the debtor ... only from the time the debtor has actual knowledge, or has been given notice of the assignment.” No particular form is required for the notice of assignment of the judgment. See La. C.C. art. 2643, Revision Comments—1993, (a). It is only necessary that the debtor be informed that his former creditor has divested himself of all rights to the thing assigned. Peoples Bank & Trust Co., Natchitoches v. Harper, 370 So.2d 1291, 1294 (La.App. 3rd Cir.), writ denied, 371 So.2d 1330 (La.1979).

Cadle’s petition to revive the judgment, filed on September 18, 2002, was filed in the suit record of Fidelity’s original action against the defendant, and bore the same civil docket number. The petition to revive incorrectly described the 1992 judgment reviving the original judgment as being rendered in Cadle’s favor, rather than in Hibernia’s favor, but otherwise accurately described the 1992 judgment by date of rendition, docket number, judgment amount, and original suit title (bearing Fidelity’s name as plaintiff). Although the plaintiff in the suit title was designated as “Hibernia National Bank in Baton Rouge,” the petition to revive was brought in Cadle’s name as plaintiff, and Cadle affirmatively alleged that it was “entitled to have this judgment revived before it prescribes.” The defendant was personally served with citation and a certified copy of Cadle’s petition on October 7, 2002. Such service was sufficient to constitute notice of the assignment of the judgment by Hibernia to Cadle, pursuant to La. C.C. art. 2643. See Robert Haynes Tarrant, Inc. v. Holden, 19 La.App. 598, 599, 141 So. 100 (La.App.Orl.Cir.1932).

| mThe default judgment in favor of Cadle, reviving the 1992 judgment of revival, recites that the trial court was presented with “due proof in support of the plaintiffs demands.” In support of the judgment, Cadle introduced the affidavit of Vikki Dales, an account officer with Cadle, who stated that Cadle was “the owner of the judgment previously entered herein by assignment, for good and valuable consideration, from [Hibernia], against the defendant. ...” If Cadle’s petition was ambiguous due to the allegation that the 1992 judgment was rendered in Cadle’s favor, rather than Hibernia’s favor, the affidavit conclusively resolved that ambiguity, and constituted prima facie proof of Cadle’s status as an interested party and its claim.

It was not procedurally necessary for either Hibernia or Cadle to file a motion to substitute itself as party plaintiff in order to revive the original judgment against the defendant. Fidelity’s claim was reduced to an executory money judgment by the confirmation of the original default judgment and the lapse of the delay for a suspensive appeal. A civil action is a demand for the enforcement of a legal right. La. C.C.P. art. 421. A judgment is the determination of the rights of the parties in an action. La. C.C.P. art. 1841. Thus, once an action has been adjudicated by a final, executory judgment, its litigation on the merits and status as a civil “action” are at an end. See Mayfair Sales, Inc. v. Sams, 339 So.2d 1277, 1279 (La.App. 1st Cir. 1976), writ denied, 342 So.2d 676 (La.1977). Louisiana Code of Civil Procedure articles 801 through 807, governing substitution of parties, apply only to pending civil actions, not actions reduced to judgment. See La. |nC.C.P. arts. 801 and 821. Once its claim was reduced to judgment, Fidelity was technically no longer a plaintiff in a civil action, but a judgment creditor with the right to execute upon the judgment upon its becoming final and definitive. The same conclusion is warranted with respect to Hibernia upon rendition of the judgment reviving the original judgment.

The defendant has cited no authority in support of his challenge to the authority of Hibernia’s attorney and Ca-dle’s attorney to file pleadings on behalf of their respective clients, nor any authority in support of his implied objection to the change in the plaintiffs name from Fidelity to Hibernia National Bank in Baton Rouge in the second petition to revive. If the defendant wished to raise such objections, he could have filed a dilatory exception, on the grounds of the petition’s nonconformity with the requirements of La. C.C.P. art. 891 and its vagueness or ambiguity. See La. C.C.P. art. 926(A)(4), (5). Louisiana Code of Civil Procedure article 891 requires a petition to comply with La. C.C.P. arts. 853 and 863, among other requirements. Louisiana Code of Civil Procedure article 853 sets forth the requirement that every pleading bear the title of the action, which “shall state the name of the first party on each side with an appropriate indication of other parties.” Louisiana Code of Civil Procedure article 863(A) specifically requires that “[e]very pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.” (Emphasis supplied.) Having failed to raise his procedural objections relating to the title of the action and the attorneys’ status as attorneys of record in the petition through a dilatory exception, those objections were waived.

Additionally, to the extent that the defendant seeks to challenge the legal validity of the default judgment, based upon the supposed lack of the |12attorney’s enrolled status and authority, we find no merit to his argument. The defendant incorrectly seems to assume that an attorney may become an “attorney of record” only through the procedural vehicle of a motion to enroll in that capacity or a motion to substitute an attorney. An “attorney of record” is “[t]he lawyer who appears for a party in a lawsuit and who is entitled to receive, on the party’s behalf, all pleadings and other formal documents from the court and from other parties.” Black’s Law Dictionary 138 (8th ed.2004). When an attorney files an initial pleading on behalf of his client, listing himself as attorney in compliance with La. C.C.P. art. 863, he assumes the capacity of “attorney of record.” It is only when an attorney enrolls as counsel after the petition or first responsive pleading is filed that a separate “notice of enrollment” must be filed. Comment, La. Dist. Ct. R. 9.12; Tasch, Inc. v. Horizon Group, 08-0635, p. 2 (La.App. 4th Cir.1/7/09), 3 So.3d 562, 563. In this case, both Hibernia’s attorney and Cadle’s attorney filed initial pleadings, the petitions to revive, on behalf of each client as an “interested party” under La. C.C.P. art.2031. There was no need for either attorney to seek to enroll or substitute himself for Fidelity’s attorney, since Fidelity (in its original capacity and name) was no longer an “interested party” or “holder and owner of the judgment” at the time each petition to revive was filed. See La. C.C.P. art.2031.

The defendant’s first assignment of error has no merit whatsoever.

Sufficiency of the Supporting Affidavits

The defendant contends that the 1992 judgment of revival and the 2003 judgment of revival were both erroneous, in that the supporting affidavits were defective and self-contradictory.

We will first address the defendant’s argument concerning the 1992 judgment of revival. The defendant emphasizes that the supporting affidavit 11sof Hibernia’s officer, Calvin Talbot, incorrectly stated at one point that the original 1981 judgment was rendered against “Defendant, Calvin Talbot,” rather than the actual defendant. This obviously inadvertent error would not render the affidavit insufficient, however, as the affidavit itself bears the suit title listing “Van B. Calhoun” as the sole defendant, the subject matter of the affidavit is described as “the loan account of VAN B. CALHOUN,” the last paragraph of the affidavit refers to “the defendant, VAN B. CALHOUN,” and all other documents in the suit record refer to only that defendant. Additionally, even assuming that the affidavit’s error would somehow render the 1992 judgment null, such nullity would constitute, at most, only a relative nullity. The same conclusion is warranted regarding the defendant’s argument challenging Hibernia’s status as an interested party. As the defendant did not bring an action in the trial court to annul the 1992 judgment within a year of the discovery of the claimed errors (presumably October 7, 2002 at the latest, the date of service of the second petition to revive), he could not raise that issue even in defense of the second petition to revive. See La. C.C.P. art. 2004(B). As Cadle has correctly pointed out, the defendant may not now collaterally attack the 1992 judgment. See Gilbert v. Pearson, 478 So.2d 937, 939-40 (La.App. 3rd Cir.1985), writ denied, 482 So.2d 629(La.1986).

Although the defendant expressly contends that Vikki Dales’s affidavit filed by Cadle in support of the 2003 judgment was defective and contradictory, his brief does not address or identify any defect or contradiction in the affidavit, and we can find none. The defendant instead challenges only the technical error in Cadle’s petition, describing the 1992 judgment as being rendered in its favor. We have previously addressed and rejected that challenge.

114The defendant’s second assignment of error has no merit.

Notice of Judgment

The defendant contends that the trial court failed to serve him notice of the 1992 judgment of revival pursuant to La. C.C.P. art. 1913(C), and that such failure rendered it unenforceable and in turn invalidated the 2003 judgment reviving the 1992 judgment. We disagree. As emphasized by Cadle, the defendant was personally served with citation and a certified copy of Hibernia’s petition to revive. Although La. C.C.P. art. 1913(C) presently requires the clerk of court to mail notice of a default judgment to a defendant served personally with the petition, it did not so require at the time the 1992 judgment was rendered. See Acts 2001, No. 512, § 1, effective August 15, 2001. See also Acts 1999, No. 1263, § 1, effective January 1, 2000.

Finally, the defendant contends that the trial court did not serve him notice of the 2003 judgment of revival in favor of Cadle. In his motion for suspensive appeal filed on June 6, 2008, the defendant also stated that “[t]he clerk’s record does not contain any notice of mailing of the judgment to the defendant.” The record reflects otherwise. On May 8, 2008, notice of judgment was mailed to the defendant at the same address at which he was personally served with Cadle’s petition to revive. See La. C.C.P. art. 1913(C).

The defendant’s third assignment of error has no merit whatsoever.

CONCLUSION

In summary, the record supports the finding that Cadle adequately proved its status as an “interested party” and the “holder and owner of the judgment.” The defendant did not file a contradictory motion in the trial court seeking to have the judgment of revival annulled on the grounds that the judgment had been satisfied prior to the filing of the motion to revive it, 116as authorized by La. C.C.P. art. 2031(B). The defendant’s appeal has no merit, and Cadle is entitled to its judgment, which is now executory due to the patent nullity of the purported appeal bond.

The judgment of the trial court in favor of the plaintiff, The Cadle Company, and against the defendant, Van B. Calhoun, is affirmed. All costs of this appeal are assessed to the defendant.

SUSPENSIVE APPEAL CONVERTED TO DEVOLUTIVE APPEAL; JUDGMENT AFFIRMED.

      . Curiously, although the motion for the sus-pensive appeal was filed on June 6, 2008, its certificate of service, signed by the defen-danl's attorney, was dated February 25, 2008, over three months prior to the judgment being mailed.

      . In its appellate brief, Cadle slates that it has filed a motion in the trial court to test the "sufficiency of the bond and the solvency of the surety.” The record does not reflect the trial court’s disposition of that motion and the current status of the defendant's appeal bond. At any rate, the trial court’s decision is not binding upon our independent review on the issue of the purported appeal bond’s status as such.

      . See Acts 2003, No. 806, § 1, effective August 15, 2003, and Acts 2005, No. 205, § 1, effective January 1, 2006.

      . To the extent that the defendant may have attempted to challenge Hibernia’s status as an interested party with regard to the 1992 judgment of revival, we will further address that point in our discussion of the defendant’s second assignment of error.

      . Insofar as the defendant's first assignment of error might be construed to constitute a challenge to the adequacy of notice of assignment of the judgment, it must also be rejected on procedural grounds. One obvious purpose of the notice required by La. C.C. art. 2643 is protection of the assignee against payments made in error by the debtor to the assignor. Hubbs v. Gramm-Bernstein Co., 12 Orleans App. 292 (La.App. 1915). Another obvious purpose is protection of the debtor against erroneous or duplicative payment. See La. C.C. art. 2644. Lack of notice under La. C.C. art, 2643 is thus an affirmative defense that must be specially pleaded by a defendant debtor; it is not fundamental notice for purposes of due process. Not having answered Cadle’s petition or otherwise raised such a defense in the trial court, the defendant may not urge that defense for the first time on appeal. See Costello v. Hardy, 03-1146, p. 16 n. 13 (La. 1/21/04), 864 So.2d 129, 142 n. 13.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Russell LEDAY, Vickie Jackson, Gwendolyn F. Giles, Albert Dennis, Jerry Don McMurry, Martha E. Norman, Dr. Angelia Weaver, Ullysses Tucker, Jr., Catherine B. Nicholson, and Peter G. Forest, Plaintiffs-Appellants v. STATE of Louisiana and Grambling State University, through the University of Louisiana System, Defendants-Appellees.
    No. 44,069-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 15, 2009.
    Opinion on Rehearing May 7, 2009.
    Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, for Appellants.
    Wiener, Weiss & Madison, by John M. Madison, Jr., Shreveport, for Appellees.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

|, Several longtime employees of Gram-bling State University (“GSU”) here appeal a judgment granting defendants’ motion for partial summary judgment and dismissing with prejudice plaintiffs’ petition for wrongful termination. The judgment also sustained the defense exception of no cause of action under the “whistle blower” statutes and further dismissed with prejudice plaintiffs’ petition asserting a “personal vendetta” against them by the defendants. The judgment is reversed and the matter is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In their wrongful termination action, plaintiffs sought to be reinstated to their positions with back pay and attorney’s fees plus legal interest. Demanding damages sufficient to compensate them for loss of employment, mental anguish and attorney’s fees, plaintiffs named as defendants the State of Louisiana and the Louisiana Board of Supervisors of the University of Louisiana System by and through GSU along with Dr. Horace Judson, President of GSU, and Mr. Billy Owens, Vice President for Finance.

Some of the original plaintiffs have exited the lawsuit, leaving eight active plaintiffs, one of whom was not terminated but was “demoted.”

Although the terminations were characterized as post-Hurricane Katrina budget cuts, the following active plaintiffs alleged they were unlawfully terminated (or demoted in the case of Dr. Angela Weaver):

12Vickie Jackson Director of Communications and Public Affairs — Mr. Owens stifled her work performance by having paperwork previously approved by Dr. Judson (Owens’ supervisor) disapproved or delayed; Owens was blatantly insubordinate to Dr. Judson and also made the work environment inhospitable to those who questioned his bad fiscal management practices.
Jerry Don McMurry Manager of Mechanical and Plumbing Systems' — Terminated when he did not perform (due to lack of funds) renovations totaling approximately $120,000 to the president’s residence at the direction of the president’s wife, Dr. Gail Shorter-Judson; outside contractors are now performing the work at a greater cost to GSU.
Martha E. Norman Director of Planning and Analysis — Demoted in responsibility, but not pay, to a “mail-carrier” at registrar’s office, which did not have duties and responsibilities for an employee of her institutional research background; then terminated.
Dr. Angela Weaver Executive Assistant to President and Assistant Professor of Political Science (removed from administrative duties but continued as a tenured teacher — not terminated, but demoted with a reduction in pay).
Ullysses Tucker, Jr. Annual Fund Director — Terminated.
Catherine B. Nicholson Associate Director of Development — Mr. Owens stifled her work performance by having paperwork (previously approved by Dr. Judson, Owens’ supervisor) disapproved or delayed; Owens was blatantly insubordinate to Dr. Judson and also made the work environment inhospitable to those who questioned his bad fiscal management practices. Alleged to have been required to perform additional duties without being compensated and being paid less than President Judson’s development employee, Ullysses Tucker.
Peter G. Forest Director of Athletic Media Relations — Terminated.
|3Mark Hall Strength and Conditioning Football Coach (added as plaintiff in first amending petition) — Relieved of duties 8/2/05 for refusing to help cover up NCAA violations; declined request to recant a 8/4/05 letter reporting NCAA violations to the Athletic Director with a copy to President Judson, who by 8/11/05 letter terminated Hall as of 8/31/05.

The plaintiffs attributed some terminations to the direction of Dr. Sally Clausen, the President of the Board of Trustees for Colleges and Universities. Although GSU attempted to justify the layoffs as necessary budget reductions, no reduction to GSU’s budget occurred. Plaintiffs contended that some people were replaced with others at an increased pay scale while other positions were given a change in name, such as “Assistant Director” to “Assistant to Director.” Some of those dismissed had complained about the actions of Owens, but were entitled to protection under the “whistle blower” statutes. Some were terminated when they refused to follow instructions given by President Judson’s wife.

Alleging that they had exhausted their administrative procedures, plaintiffs contended that:

• GSU failed to follow its own administrative requirements and did not provide due process to its employees who asserted that merit raises were given without the required evaluations;
• they had a reasonable expectation of continued employment;
• GSU was in extremely bad faith and arbitrary and capricious in its actions toward them;
• termination letters cited the concurrence of department heads who were never consulted;
• some of the people terminated were replaced almost immediately;
14* some dismissals were exacted against those who had complained about financial practices of the university;
• the actions of President Judson and Mr. Owens were a misuse of their offices and amounted to a personal vendetta against the plaintiffs; and
• the plaintiffs relied to their detriment on the GSU Employee Manual and the 1998 Unclassified Personnel Handbook and Policy Statement I.

In their motion for partial summary judgment, defendants stated that all of the plaintiffs were at-will employees, who could be discharged for any reason. In addition, defendants filed a peremptory exception of no cause of action based upon plaintiffs’ failure to state a cause of action under the “whistle blower” statutes, ie., La. R.S. 23:967 and 42:1169, and then-failure to state a personal cause of action against Judson and Owens.

REASONS FOR JUDGMENT

After reviewing the affidavits and depositions filed into the record, the trial court found that:

• none of the plaintiffs had a fixed term of employment;
• the grievance procedures found in the employee handbook did not apply to terminations and termination procedures;
• absent a specific contract or agreement setting a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability;
• the reason for termination need not be accurate, fair or reasonable and the termination can be for no reason at all; and therefore
• defendants were entitled to the partial summary judgment.

Likewise, the trial court found that the defense was entitled to the exception of no cause of action in the action under the “whistle blower statutes,” because:

Is*under La. R.S. 42:1169, pertaining to violations of the Code of Governmental Ethics, the employee must report what he reasonably believes is a violation of any provision of the law within the jurisdiction of the board or any order, rule or regulation, or any other alleged acts of impropriety;
• La. R.S. 23:967 protects an employee who reports or refuses to participate in illegal work practices;
• the employer must have violated state law to trigger these protections;
• accepting all of plaintiffs’ allegations as true for the purposes of deciding the exception of no cause of action, plaintiffs’ petition challenged questionable actions but did not allege violations of state law or the Code of Governmental Ethics;
• the termination of these at-will employees did not violate state law or the Code of Governmental Ethics;
• the allegations of “personal vendetta” was not actionable in the termination of at-will employees; and
• plaintiffs are required to state with specificity how the whistle blower statutes were violated, and these plaintiffs did not do so.

DISCUSSION

Our law on review of summary judgments is well settled.

|(iThe defendants supported their motion for summary judgment with the affidavit of Dr. Judson averring that all the plaintiffs were at-will employees and the Unclassified Personnel Handbook (a copy of which was attached to their motion) was not applicable to terminations, but only to GSU employees’ complaints which could affect their attitude and work. The handbook stated at the outset that it was not intended to form a contract and that unclassified administrative employees served at the “pleasure or will of the President and the Board of Trustees.” The plaintiffs opposed the motion for summary judgment with multiple references to depositions filed by both parties establishing many complaints by plaintiffs concerning financial practices and questionable actions.

Prior to trial the parties agreed to the following material facts:

1. Paragraph F, p. 19, of the “unclassified Personnel handbook Grambling State University Fall 1998” contained the statement:
All unclassified administrative staff shall hold their administrative appointment at the pleasure or will of the President and the Board of Trustees. The annual approval of the budget and personnel documents designating the salary and other personnel benefits for administrative personnel shall not constitute an implied nor expressed agreement for continued employment throughout the fiscal year but, are executed or approved solely for the purpose of budgeting in associated fiscal and administrative matters.
2. The active plaintiffs were hired in the listed years: Norman (1974), McMurry (1979), Jackson (1982), Nicholson (1973), Forest (2003), and Tucker (2005).
|73. All the active plaintiffs, except Angela Weaver, were terminated on the following dates: Jackson (January 4, 2006), McMurry (January 4, 2006), Norman (January 4, 2006), Tucker (December 2005/January 2006), Nicholson (January 6, 2006), Forest (December 13, 2005), and Hall (August 11, 2005).
4. Angela Weaver was relieved of administrative duties and continued as a tenured teacher at GSU.

The defendants argued, and the trial court found, that:

• the plaintiffs were at-will employees with no fixed term of employment;
• where a term of employment is indefinite, the employment is terminable at the will of either the employer or the at-will employee;
• absent a specific contract or agreement establishing a fixed term of employment, an at-will employee is free to quit at any time without liability to the employer and may be terminated by the employer at any time; and
• the reasons for termination need not be accurate, fair or reasonable. In fact, there need be no reason at all for termination. See discussion, Clark v. Acco Systems, Inc., 39,532 (La.App. 2d Cir.4/6/05), 899 So.2d 783.

In Clark, supra, summary judgment in favor of the employer was affirmed by this court based upon Clark’s at-will employment. Clark stated he was terminated due to his job performance, while the employer stated Clark was terminated to make room for a salaried supervisor with an employment contract. Clark’s status as an at-will employee was undisputed. In the Clark decision, this court found the summary judgment was appropriate because Acco needed to show only that Clark was an at-will employee. Even if the employer gave a false reason for termination, termination for any or no reason was legal. Clark, supra.

This present dispute is factually distinguishable from Clark, supra. These plaintiffs disputed their status as at-will employees. More | ^significantly, the plaintiffs alleged that the defendants engaged in questionable actions and personal vendettas which resulted in plaintiffs’ terminations and demotion, making them eligible for protections under the “whistle blower” statutes. The important distinction to be drawn is that even at-will employees are protected by the “whistle blower” statutes.

La. R.S. 23:967 (Employee protection from reprisal; prohibited practices; remedies) states:

A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
(1) “Reprisal” includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such.
(2) “Damages” include compensatory damages, back pay, benefits, reinstatement, reasonable attorney fees, and court costs resulting from the reprisal.
D.If suit or complaint is brought in bad faith or if it should be determined by a court that the employer’s act or practice was not in violation of the law, the employer may be ^entitled to reasonable attorney fees and court costs from the employee.

The version of La. 42:116 9(B) (1999 Acts, No. 327, § 1) in effect at the time these plaintiffs were terminated stated:

B. Any public employee who reports to a person or entity of competent authority or jurisdiction information which he reasonably believes is a violation of any law or of any order, rule, or regulation issued in accordance with law or any other alleged acts of impropriety related to the scope and/or duties of public employment or public office within any branch of state government or any political subdivision shall be free from discipline or reprisal for reporting said acts of alleged impropriety. No employee with authority to hire and fire, supervisor, agency head, or other elected official shall subject to reprisal any such public employee because of said employee’s efforts to disclose such acts of alleged impropriety.

The trial court gave a very thoughtful, scholarly discussion of the issues presented in this case. However, the trial court erred in dismissing plaintiffs’ action with prejudice without providing the plaintiffs an opportunity to amend their pleadings within a reasonable time period to state a cause of action and to make more specific many of the sometimes vague assertions of wrongdoings in their filings.

La. C.C.P. art. 934 directs that:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. (Emphasis added.)

Until plaintiffs are given that opportunity to amend their pleadings to specify how the “whistle blower” statutes apply to each of them, we find granting of the partial summary judgment based upon their status as at-will 1 inemployees to be premature. Whether or not any amendments will result in a different outcome is not the issue. The law directs that each plaintiff should be given the opportunity to amend their pleadings in these situations. If the amendments fail to allege with sufficient specificity the acts that resulted in their termination (or demotion), the defendants will be able to re-urge their motion for summary judgment and any appropriate exceptions.

DECREE

The judgment is reversed and the matter is remanded for further proceedings. The trial court is directed to order the plaintiffs to file their amendments within a delay set by the trial court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ON REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and DREW, JJ.

PER CURIAM.

IjAt the request of the defendants, we grant rehearing to clarify our original opinion in one respect only. From our de novo review of the record, we agree with the trial court’s finding that all of the plaintiffs were at-will employees of Gram-bling State University. There are no other changes to our original opinion.

      . Russell LeDay — Asst. Dir. of Alumni Affairs (later withdrew as plaintiff); Gwendolyn F. Giles — Hospitality Specialist (later dismissed at her own request); and Albert Dennis— Athletic Director (later withdrew as plaintiff).

      . In Haley v. Wellington Specialty Ins. Co. 44,014 (La.App. 2d Cir.2/25/09), 4 So.3d 307, this court discussed appellate review of a summary judgment. In deciding if a summary judgment is appropriate, appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is proper. The summary judgment procedure is designed to secure the just, speedy, and efficient determination of every action and shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(2) and (B).
      The party seeking the summary judgment has the burden of proof. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, the movant's burden on the motion does not require him to negate all essential elements of the adverse parties' claims, actions, or defenses, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse parties’ claims, actions, or defenses. Thereafter, if the adverse parties fail to produce factual support sufficient to establish that they will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. Haley, supra. For purposes of summary judgment, a fact is material if it potentially insures or precludes recovery, affects a party's ultimate success or determines the result of a legal dispute. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App. 2d Cir.8/21/96), 679 So.2d 477.
      When a motion for summary judgment is made and supported, the adverse parties may not rest on the mere allegations or denials in pleadings, but must respond with affidavits, depositions, etc., and show specific facts establishing there is a genuine issue for trial. If they do not do so, summary judgment, if appropriate, shall be rendered. LSA-C.C.P. art. 967(B). Haley, supra.


author: EZELL, Judge.

text:
    Gilbert MOUTON, Jr. v. GULFSTREAM SERVICES.
    No. WCA 08-1186.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.
    Order Granting Rehearing July 8, 2009.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Gilbert Mouton, Jr.
    Travis Ron LeBleu, Egan, Johnson and Stiltner, Baton Rouge, LA, for Defendant/Appellee, Gulfstream Services.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

|, Gilbert Mouton, Jr. appeals a decision of a workers’ compensation judge denying him penalties and attorney fees on a disputed workers’ compensation claim. For the following reasons, we affirm the decision of the workers’ compensation judge.

Mr. Mouton worked for Gulfstream Services, Inc. pressure-testing oilfield valves. On November 7, 2007, Mr. Mouton injured his back while attempting to close a valve in order to test it. He filed a workers’ compensation claim on December 13, 2005, seeking medical and indemnity benefits. After a contentious trial, the workers’ compensation judge found that Mr. Mouton had sustained a work-related injury and awarded supplemental earnings benefits in the amount of $454.00 per week. Mr. Mouton was also awarded medical benefits but was not given penalties and attorney fees. From that decision, Mr. Mouton appeals. Gulfstream did appeal the judgment, but that appeal was dismissed for failure to timely file a brief in this matter.

On appeal, Mr. Mouton asserts three assignments of error: that the workers’ compensation judge erred in failing to award penalties and attorney fees, that the workers’ compensation judge improperly allowed surveillance videos into evidence, and that the workers’ compensation judge erred in not allowing the cross-examination of Michael Mire on the third day of trial.

Awards of penalties and attorney fees in workers’ compensation cases are penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Sharbono v. Steve Lang & Son Loggers, 97-110 (La.7/1/97), 696 So.2d 1382. “To reasonably controvert a workers’ compensation claim so as to avoid imposition of penalties and attorney fees, the employer and its insurer must |2provide sufficient factual and medical information to reasonably counter the evidence provided by the claimant.” Johnson v. Johnson Controls, Inc., 38,495, pp. 16-17 (La.App. 2 Cir. 5/12/04), 873 So.2d 923, 933-34. “Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay.” Young v. Christus Schumpert Med. Ctr., 39,593, p. 10 (La.App. 2 Cir. 5/11/05), 902 So.2d 1180, 1186-87. “In order for the claimant to recover penalties and attorney fees, there must be a showing that the defendant did not raise a seriously disputed issue.” Hickman v. Jim Smith Logging, 04-157, p. 10 (La.App. 3 Cir. 9/29/04), 883 So.2d 1072, 1078, writ denied, 04-2682 (La.1/14/05), 889 So.2d 269. “[A] workers’ compensation judge has great discretion in deciding whether to allow or disallow penalties and attorney fees, and the decision will not be disturbed absent abuse of that discretion.” Frank v. City of Lake Charles, 04-820, p. 3 (La.App. 3 Cir. 11/10/04), 887 So.2d 679, 681.

The workers’ compensation judge noted that Mr. Mouton was less than forthcoming about his medical history, to be generous. He was inaccurate on multiple occasions, hiding a series of automobile and work-related accidents, as well as back injuries that occurred prior to the accident that serves the basis of this claim. He was not forthcoming regarding his medical treatment concerning his back, including pain management for back pain prior to the accident. The workers’ compensation judge found that Mr. Mouton’s credibility was “legitimately suspect” and that Gulf-stream was not unreasonable in taking the matter to court because of this fact. There is nothing in the record which shows this finding to be in error, let alone an abuse of discretion.

His remaining assignments of error asserted by Mr. Mouton are moot in light of our above findings. Moreover, Mr. Mouton does not set forth any way in which |sthey could alter the judgment of the workers’ compensation judge below, even if we were to find them to be correct. Therefore, we need not address them.

For the above reasons, the decision of the workers’ compensation judge is hereby affirmed. Costs of this appeal are assessed against Gilbert Mouton, Jr.

AFFIRMED.

APPLICATION FOR REHEARING

GRANTED.

|/The court granted the rehearing in this matter for the limited purpose of amending the workers’ compensation judgment to reflect the proper date that Gilbert Mouton began receiving workers’ compensation benefits. The workers’ compensation judgment incorrectly stated that workers’ compensation weekly benefits began on November 17, 2007, when benefits actually began on November 17, 2005. Pursuant to La.Code Civ. P. art. 2164, this court finds that it is just, legal and proper to amend the judgment of the office of workers’ compensation to reflect that weekly benefits began on November 17, 2005.