author: WELCH, J. McClendon, J., concurring.

text:
    Ceasar SHANNON v. Warden Darrell VANNOY, State of Louisiana through Louisiana Department of Public Safety and Corrections, Dixon Correctional Institute
    2017 CA 1722
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 01, 2018
    Donna U. Grodner, Baton Rouge, Louisiana, Attorney for Appellant Plaintiff-Ceasar Shannon DOC # 085847
    Jeff Landry, Attorney General and Van A. Heard, Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Appellees Defendants-Warden Darrell Vannoy and the State of Louisiana, through the Department of Public Safety and Corrections
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

Ceasar Shannon, an inmate formerly in the custody of the Louisiana Department of Public Safety and Corrections ("DPSC"), and housed at Dixon Correctional Institute during all relevant times, appeals a judgment of the district court sustaining an exception of prescription in favor of the defendants-Dixon Correctional Institute Warden Darrell Vannoy and the State of Louisiana, through the DPSC-and dismissing Mr. Shannon's claims, with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Mr. Shannon, an inmate formerly in the custody of the DPSC was housed at Dixon Correctional Institute in Jackson, East Feliciana Parish, Louisiana during all material times herein. Mr. Shannon alleged his cell had a "large hole" in the ceiling that leaked water when it rained and that he and other inmates made multiple complaints and maintenance requests to fix the hole. According to Mr. Shannon, five-gallon buckets were often placed on the floor to catch rainwater. Mr. Shannon contends that on May 28, 2014, rainwater leaked through the hole and onto the floor and when he arose to go to the bathroom during the night, he allegedly slipped in a puddle and fell, sustaining injuries to his back, shoulder, and hip.

Five days later, on June 2, 2014, Mr. Shannon filed a grievance in accordance with the Louisiana Corrections Administrative Remedy Procedure Act ("CARP"), La. R.S. 15:1171 -1179, assigned case number DCI-2014-550, seeking formal review of his alleged slip-and-fall incident. Mr. Shannon exhausted his administrative remedy procedure ("ARP") on February 6, 2015, when his grievance was denied through the second step.

Thereafter, in July 2015, Mr. Shannon filed a 42 U.S.C. § 1983 action in federal court against Darrel Vannoy, employed by Dixon Correctional Institute as the Warden. Mr. Shannon advanced claims of negligence as well as deliberate indifference and violations of his civil rights under the Eighth Amendment to the United States Constitution and 42 U.S.C. § 1983. See Shannon v. Vannoy, No. CV 15-446-SDD-RLB (M.D. La.).

In October 2015, Warden Vannoy filed a motion to dismiss Mr. Shannon's claims pursuant to Rule 12(b)(6) 1 of the Federal Rules of Civil Procedure, arguing that inmate slip-and-fall cases are properly characterized as state law tort claims and are not actionable under § 1983. On April 18, 2016, the federal district court granted Warden Vannoy's motion to dismiss, and dismissed all of Mr. Shannon's federal claims against Warden Vannoy, with prejudice. See Shannon v. Vannoy, No. CV 15-446-SDD-RLB, 2016 WL 1559583 (M.D. La. Apr. 18, 2016) (unpublished). The federal district court held that Mr. Shannon's negligence claim is a state law tort claim, which is not actionable under federal law, as § 1983 requires a plaintiff to show deprivation of a federal right. Id. , 2016 WL 1559583, at *2. As to the alleged violations of his Eighth Amendment rights, the federal district court held that Mr. Shannon's allegations failed to state a claim sufficiently serious to constitute deliberate indifference under the applicable legal standards. Id. , 2016 WL 1559583, at *4. Finally, the federal district court declined to exercise 28 U.S.C. § 1367 supplemental jurisdiction over Mr. Shannon's state law claims (i.e., negligence claim), which the federal district court dismissed, without prejudice. Id.

On March 16, 2017, the United States Court of Appeals, Fifth Circuit affirmed the federal district court's judgment. Shannon v. Vannoy, 682 Fed.Appx. 283, 284 (5th Cir. 2017).

On April 11, 2017, Mr. Shannon filed the instant lawsuit in the 20th Judicial District Court ("JDC") in East Feliciana Parish, Louisiana, which is the parish where Dixon Correctional Institute is located. Mr. Shannon named as defendants Warden Vannoy, acting within the course and scope of his employment with the DPSC during all material times and under the color of state law, and the State of Louisiana, through the DPSC.

The defendants filed a peremptory exception raising the objections of prescription, no cause of action, and res judicata. Regarding prescription, the defendants argued that Mr. Shannon's state law tort claims were prescribed because he filed suit outside of the one-year liberative prescriptive period applicable to delictual actions. The defendants argued that prescription on Mr. Shannon's claims began running on the date of his alleged accident, May 28, 2014. Prescription on his claims was suspended when he filed his ARP on June 2, 2014, which continued until the final decision on his ARP was delivered on February 6, 2015. During that period, prescription was suspended and began to run again from the date of exhaustion of the ARP, February 6, 2015, which pushed back the tolling of prescription to February 1, 2016. Because Mr. Shannon did not file suit in state district court until April 11, 2017, the defendants argued his state law tort claims had prescribed.

The defendants further argued that the federal suit, which only named Warden Vannoy (in his official capacity) as a defendant, did not serve to interrupt or suspend prescription against Warden Vannoy or the State, through the DPSC. Mr. Shannon's state law tort claims against Warden Vannoy arose out of the warden's employment at Dixon Correctional Institute. In accordance with the doctrine of vicarious liability, the defendants argue that claims against employees that arise out of their employment must be brought against the employer, not the individual employee. Warden Vannoy's employer is the State, through the DPSC; thus, the defendants contend that Mr. Shannon's federal suit against Warden Vannoy should have also been filed against the State, through the DPSC. However, the defendants argued that the State is immune to suit on state law claims brought in federal court. Therefore, because Mr. Shannon only named Warden Vannoy as defendant in the federal suit, when he should have also named as defendant the State, through the DPSC, as the warden's employer, the federal suit against Warden Vannoy could not serve to interrupt or suspend prescription on Mr. Shannon's state law tort claims against Warden Vannoy and the State, through the DPSC.

Mr. Shannon opposed the defendants' exceptions. As to the exception of prescription, Mr. Shannon contended that the federal suit did interrupt prescription on his state law tort claims, and thus, his suit in state court was timely filed against the defendants. Even though the DPSC was not named as a defendant in the federal suit, Mr. Shannon argued that through vicarious liability, an employer is liable for the torts of its employees committed in the course and scope of employment, making the employee and employer solidary obligors. Accordingly, Mr. Shannon averred that when prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors. Mr. Shannon argued that the filing of the federal suit interrupted prescription as to Warden Vannoy. Since Warden Vannoy is an employee of the DPSC, Mr. Shannon averred that interruption was also effective against his employer, the State, through the DPSC.

Following a hearing on September 11, 2017, the district court sustained the defendants' objection of prescription, dismissing all of Mr. Shannon's claims against the defendants, with prejudice. The district court ruled as follows:

The exception of prescription is sustained. I find that Mr. Vannoy was not timely served with the action in the Federal court. This is a final judgment because it terminates the litigation between the parties.
[...]
I mean to dismiss all-this action against all of the defendants as having been prescribed.

The district court signed a judgment in accordance with its ruling on October 4, 2017. The judgment pretermitted a ruling on the defendants' objections of no cause of action and res judicata . Mr. Shannon now appeals.

ASSIGNMENTS OF ERROR

Mr. Shannon assigns the following errors to the district court's judgment:

1) The Trial Court erred in finding that the filing of the lawsuit in federal court did not interrupt prescription. Legal error-de novo review.
2) To the extent the Trial Court found that the Middle District was not the proper venue for a case arising out of East Feliciana, that finding was in error. Legal error-de novo review.
3) To the extent the Trial Court found that the federal court lacked subject matter jurisdiction over the federal court action, that finding was in error. Legal error-de novo review.
4) The Trial Court erred in finding that service on Warden Vannoy in federal court has any effect on prescription in this case, because the United States Court Middle District of Louisiana was a court of competent jurisdiction and proper venue for a case arising out of East Feliciana Parish, which is in the middle district. Legal error-de novo review.

LAW & DISCUSSION

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. Mr. Shannon's personal injury claims arising from his alleged slip-and-fall incident while housed at Dixon Correctional Institute comprise a delictual action that is subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. See La. C.C. art. 3492 ; see also Raborn v. Albea, 2013-0633 (La. App. 1st Cir. 4/16/14), 144 So.3d 1066, 1070-1071, writ denied, 2014-1239 (La. 9/26/14), 149 So.3d 264. Any defendant objecting to a plaintiff's claim on the basis of prescription may do so by peremptory exception. La. C.C.P. art. 927(A)(1).

Prescription runs against all persons unless an exception is established by legislation. La. C.C. art. 3467. A number of legal doctrines provide for exceptions to the tolling of a prescriptive period. For example, prescription may be renounced, interrupted, or suspended. See La. C.C. arts. 3449 - 3472. Prescription is interrupted by the filing of a suit in a court of competent jurisdiction and venue. If an action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. La. C.C. art. 3462. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue, or from service of process within the prescriptive period, continues as long as the suit is pending. La. C.C. art. 3463. Interruption not only stops the running of prescription, it annuls the commenced prescription so that after the interruption ceases, a new prescription must commence. LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226, 1229.

In contrast, suspension of prescription constitutes a temporary halt to its running. LeBreton, 714 So.2d at 1229. If prescription is suspended, the period of suspension is not counted toward accrual of prescription, and prescription commences to run again upon the termination of the period of suspension. La. C.C. art. 3472. Prescription is suspended for as long as the cause of suspension continues. After the cause for the suspension ends, the prescriptive time begins running, and the time which preceded the suspension is added to the time which follows it to compose the necessary period; only the period of the suspension is deducted. LeBreton, 714 So.2d at 1229.

The burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the face of the plaintiff's petition shows that the prescriptive period has run, and the plaintiff is contending there is a suspension or interruption of prescription, the burden is on the plaintiff to prove suspension or interruption. St. Romain v. Luker, 2000-1366 (La. App. 1st Cir. 11/9/01), 804 So.2d 85, 88, writ denied, 2002-0336 (La. 4/19/02), 813 So.2d 1083. Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Mallett v. McNeal, 2005-2289 (La. 10/17/06), 939 So.2d 1254, 1258.

Appellate review applicable to a peremptory exception depends on the manner in which the exception is heard. Evidence may be introduced to support or controvert the exception of prescription when the grounds thereof do not appear from the petition. See La. C.C.P. art. 931 ; Kelley v. General Insurance Company of America, 2014-0180 (La. App. 1st Cir. 12/23/14), 168 So.3d 528, 533, writs denied, 2015-0157, 20150165 (La. 4/10/15), 163 So.3d 814, 816. In the absence of evidence, the exception must be decided on the facts alleged in the petition, which are accepted as true. Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, 2011-2835 (La. 11/2/12), 125 So.3d 1057, 1072. When evidence is received at the trial of the exception, the appellate court reviews the district court's factual findings under the manifest error-clearly wrong standard. Warren v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 2014-0310 (La. App. 1st Cir. 11/20/14), 168 So.3d 436, 439, writ denied, 2015-0068 (La. 4/2/15), 163 So.3d 795. However, in a case involving no dispute regarding material facts, only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the district court's legal conclusions are not entitled to deference. TCC Contractors, Inc. v. Hospital Service Dist. No. 3, 2010-0685 (La. App. 1st Cir. 12/8/10), 52 So.3d 1103, 1108. In this matter, no evidence was introduced at the hearing on the exception. Accordingly, we accept as true the facts alleged in the petition and apply the de novo standard to our review of the district court's legal conclusions.

Mr. Shannon filed his grievance pursuant to the provisions of CARP, La. R.S. 15:1171 -1179, which allows the DPSC and each sheriff to adopt administrative remedy procedures ("ARP") at their respective correctional institutions for receiving, hearing, and disposing of any and all complaints and grievances by an offender against the state, the DPSC, or its employees that arise while an offender is within the custody or under the supervision of the DPSC. See La. R.S. 15:1171(A) and (B). The broad scope of such complaints and grievances includes, but is not limited to:

any and all claims seeking monetary, injunctive, declaratory, or any other form of relief authorized by law and by way of illustration includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies, or statutes.

La. R.S. 15:1171(B).

All complaints and grievances, including traditional tort claims seeking monetary relief, are subject to administrative procedures. This is clearly shown by La. R.S. 15:1172(B)(1), stating that an offender shall initiate his administrative remedies for a delictual action for injury or damages within 90 days from the day the injury or damage is sustained. Additionally, La. R.S. 15:1184(A)(2) of the Prison Litigation Reform Act ("PLRA") requires prisoners to exhaust the ARP process prior to asserting any claim under state law. While an offender's ARP is pending, CARP provides for the suspension of prescription as to the offender's tort claims, as stated in La. R.S. 15:1172(E) :

Liberative prescription for any delictual action for injury or damages arising out of the claims asserted by a prisoner in any complaint or grievance in the administrative remedy procedure shall be suspended upon the filing of such complaint or grievance and shall continue to be suspended until the final agency decision is delivered.

Regardless of the outcome of the ARP for such claims, once administrative review is complete, delictual actions for injury or damages then shall be filed separately as original civil actions, which are not subject to the limited judicial review afforded other adverse administrative decisions. The provisions of CARP related to judicial review of administrative acts specifically excludes "decisions relative to delictual actions for injury or damages." As a result, traditional tort actions are not subject to the more limited judicial review available in district court for administrative decisions. Instead, such delictual actions are governed by the pertinent provisions of La. R.S. 15:1177(C) :

This Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions.

In other words, an ARP decision on a true tort action does not limit a district court's constitutional grant of original jurisdiction in any way. See La. R.S. 15:1177(C) ; see also Nichols v. Cain, 2003-1169 (La. App. 1st Cir. 4/2/04), 871 So.2d 654, 656, writ denied, 2004-1711 (La. 10/8/04), 883 So.2d 1017 ; Wood v. Martin, 37,856 (La. App. 2nd Cir. 12/10/03), 862 So.2d 1057, 1060. The exclusive venue for delictual actions for injury or damages is the parish where the prison is situated to which the prisoner was assigned when the cause of action arose, which in this case is the 20th JDC in East Feliciana Parish, Louisiana. See La. R.S. 15:1184(F) ; La. R.S. 13:5104 ; Foster v. Louisiana Dep't of Pub. Safety & Corr., 2012-0358 (La. App. 1st Cir. 11/2/12), 111 So.3d 81, 82-83.

In this matter, the actions Mr. Shannon complains of occurred on May 28, 2014. Mr. Shannon thereafter sought administrative review on June 2, 2014. Thus, the prescriptive period began on May 28, 2014, and was suspended on June 2, 2014. Five days counted toward the accrual of prescription (five days between May 28, 2014 and June 2, 2014). Mr. Shannon's second step ARP was denied on February 6, 2015. The period of suspension-from June 2, 2014 to February 6, 2015-is not counted toward the accrual of prescription. Prescription commenced to run again upon the termination of the period of suspension. See La. C.C. art. 3472 ; La. R.S. 15:1172(E). Accordingly, suspension of the prescriptive period ended on February 6, 2015, and prescription commenced to run again. Thus, prescription tolled on February 1, 2016. Mr. Shannon's petition was not filed in state court until April 11, 2017. On the face of Mr. Shannon's petition, the prescriptive period on his state law tort claims has tolled. Thus, the burden was on Mr. Shannon to prove suspension or interruption of prescription. See St. Romain v. Luker, 804 So.2d at 88.

To prove that the 42 U.S.C. § 1983 action he filed in federal district court against Warden Vannoy in his official capacity interrupted the prescriptive period on his state law tort claims against Warden Vannoy and the State, through the DPSC, Mr. Shannon had the burden to show that the federal district court was a court of competent jurisdiction and venue. If the federal district court was an incompetent court, or an improper venue, then Mr. Shannon had the burden to show that service of process occurred within the prescriptive period, which would serve to interrupt prescription only as to the defendant served. See La. C.C. art. 3462.

The record in this matter contains no evidence of the date Warden Vannoy was served with process of Mr. Shannon's federal suit. Therefore, for the federal suit to interrupt prescription on the state law tort claims, Mr. Shannon had the burden to prove the federal district court was a court of competent jurisdiction and venue.

No suit against the state, or a state agency, or a political subdivision shall be instituted in any court other than a Louisiana state court. La. R.S. 13:5106(A). A "state agency" means any means any board, commission, department, agency, special district, authority, or other entity of the state. La. R.S. 13:5102(A). A "political subdivision" means any parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency. La. R.S. 13:5102(B). Louisiana Revised Statutes 13:5104 provides, in pertinent part:

A. All suits filed against the state of Louisiana or any state agency or against an officer or employee of the state or state agency for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arises.
B. All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

Louisiana Revised Statutes 13:5104 is a mandatory venue provision. See generally Alvarado v. Poche, 2002-2 (La. App. 3rd Cir. 6/5/02), 819 So.2d 1150, 1152, writ denied, 2002-2212 (La. 11/8/02), 828 So.2d 1120.

Under La. R.S. 13:5102(A), the DPSC is a state agency. Under La. R.S. 13:5102(B), Dixon Correctional Institute is a political subdivision. Warden Vannoy is an employee of that political subdivision, and the instant suit is based upon Warden Vannoy's actions while in the course and scope of that employment. See La. R.S. 13:5102(B) and 5104(B). Louisiana has not waived its immunity in federal court for state law claims. See La. R.S. 13:5106(A) ; Fairley v. Stalder, 294 Fed.Appx. 805, 811 (5th Cir. 2008) ; Griffith v. Louisiana, 808 F.Supp.2d 926, 933 (E.D. La. 2011). Accordingly, Mr. Shannon was required by La. R.S. 13:5606(A) to file suit against Warden Vannoy and the State, through the DPSC in state district court, either in East Baton Rouge Parish or East Feliciana Parish, in accordance with La. R.S. 13:5104(A) and (B).

However, in Arnouville v. Crowe, 2016-0046 (La. App. 1st Cir. 9/16/16), 203 So.3d 479, this court held that filing a suit in federal court, even if the federal court lacks subject matter jurisdiction, interrupts prescription on a plaintiff's state law tort claims up until the federal district court rules that it does not have subject matter jurisdiction. Arnouville involved a personal injury case in which the plaintiffs initially filed suit in federal court. While the case was still pending in federal court, the plaintiffs filed a suit in state court; the federal case was subsequently dismissed upon agreement of the parties. This court held that the federal court had maintained its subject matter jurisdiction by denying a motion to dismiss due to lack of diversity, filed by the defendants. When the plaintiffs filed the state court suit, the federal suit was still pending in a "court of competent jurisdiction." Until there was a decision by the federal court that it lacked jurisdiction, this court held that the federal suit served to interrupt prescription on the state law tort claims, an interruption that continued as long as the federal suit was pending. Id., 203 So.3d at 487.

In accordance with Arnouville , Mr. Shannon's federal court suit served to interrupt prescription on Mr. Shannon's state law tort claims against Warden Vannoy up until March 16, 2017, when the United States Court of Appeals, Fifth Circuit affirmed the federal district court's grant of Warden Vannoy's 12(b)(6) motion to dismiss, without prejudice. As the employer of Warden Vannoy, the DP SC is vicariously liable for Warden Vannoy's negligent acts occurring during the course and scope of his employment. Accordingly, Warden Vannoy and the DPSC are solidary obligors, as the vicarious responsibility of the DPSC for the delicts of Warden Vannoy create an obligation whereby the DPSC and Warden Vannoy are each obligated for the same thing-total reparation of the damages to Mr. Shannon. Accordingly, a suit against one solidary obligor, Warden Vannoy, interrupts prescription as to the other solidary obligor, the DPSC. See Younger v. Marshall Industries, Inc., 618 So.2d 866, 868 (La. 1993). Therefore, Mr. Shannon's federal court suit interrupted prescription on his state law claims against Warden Vannoy and the DPSC up until March 16, 2017. Accordingly, Mr. Shannon's state law tort claims filed on April 11, 2017 were not prescribed. We find that the district court erred in sustaining the defendants' objection of prescription and dismissing all of Mr. Shannon's claims against the defendants, with prejudice.

DECREE

The October 4, 2017 judgment of the district court, sustaining the defendants' objection of prescription and dismissing all of Mr. Shannon's claims against the defendants, with prejudice, is reversed. We remand this matter to the district court for further proceedings consistent herewith. All costs of this appeal, in the amount of $775.00, are cast to the defendants/appellees-Dixon Correctional Institute Warden Darrell Vannoy and the State of Louisiana, through the DPSC.

REVERSED; REMANDED.

Theriot, J. concurs

McClendon, J. concurs for reasons assigned.

McClendon, J., concurring.

A key issue here is whether filing suit in federal court interrupted the prescriptive period for Mr. Shannon's state law tort claims. As noted by the majority, in order for the federal suit against Warden Vannoy to interrupt prescription against DPSC as a solidary obligor, the federal court was required to be a court of competent jurisdiction and venue.

In in the instant case, Mr. Shannon's action in federal court was dismissed pursuant to F.R.C.P. 12(B)(6) for failure to state a claim upon which relief could be granted under federal law. See Shannon v. Vannoy, No. CV 15-446-SDD-RLB, 2016 WL 1559583 (M.D. La. 2016) (unpublished). A motion under F.R.C.P. 12(b)(1) that dismisses claims based on subject matter jurisdiction should not be confused with a motion under Rule 12(b)(6) that dismisses an action for failure to state a claim for relief under federal or state law because the two are analytically different; as many courts have observed, the former determines whether the plaintiff has a right to be in the particular court and the latter is an adjudication as to whether a cognizable legal claim has been stated. See 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1350 (3d ed. 2017). See also Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (A motion to dismiss for lack of subject matter jurisdiction is not the same as a motion to dismiss for failure to state a federal claim.) "It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 1010, 140 L.Ed.2d 210 (1998).

The federal court did not dismiss Mr. Shannon's action because it lacked subject matter jurisdiction. Rather, it properly dismissed Mr. Shannon's action under F.R.C.P. Rule 12(B)(6) for failure to state a claim upon which relief could be granted under federal law. Accordingly, because the federal court was a court of proper venue and jurisdiction, I concur in the majority's conclusion that Mr. Shannon's federal suit interrupted prescription on his state law tort claims against Warden Vannoy and DPSC.

      Throughout the record and briefs on appeal, the parties agree that prescription on Mr. Shannon's state law claims tolled on December 31, 2015; however, this court finds that the parties have miscalculated that date. The actions Mr. Shannon complains of occurred on May 28, 2014. Mr. Shannon thereafter sought administrative review on June 2, 2014. The prescriptive period began on May 28, 2014, and was suspended on June 2, 2014 in accordance with La. R.S. 15:1172(E). Thus, 5 days counted toward the accrual of prescription (5 days between May 28, 2014 and June 2, 2014). Mr. Shannon's second step ARP was denied on February 6, 2015. The period of suspension, from June 2, 2014 to February 6, 2015, is not counted toward the accrual of prescription. Prescription commenced to run again upon the termination of the period of suspension. See La. C.C. art. 3472 and La. R.S. 15:1172(E). Accordingly, suspension of the prescriptive period ended on February 6, 2015, and prescription commenced to run again. Since 5 days had already counted toward the accrual of prescription, 360 days remained. 360 days from February 6, 2015 is February 1, 2016. Thus, prescription tolled on February 1, 2016, not on December 31, 2015.

      The district court designated the judgment as final for the purposes of an immediate appeal pursuant La. C.C.P. art. 1915(B)(1), finding no just reason for delay; however, such designation was unnecessary. The October 4, 2017 judgment determined the merits of this matter in whole; thus, it is a final judgment, which is appealable and does not require designation by the district court judge as appealable. See La. C.C.P. arts. 1841, 1915, and 2083.

      Generally, when a judgment is silent as to a claim or demand, it is presumed that the district court denied the relief sought. Barham & Arceneaux v. Kozak, 2002-2325 (La. App. 1st Cir. 3/12/04), 874 So.2d 228, 241, writ denied, 2004-0930 (La. 6/4/04), 876 So.2d 87. And generally, where a party who has filed exceptions in the district court does not insist upon a ruling on his exceptions, the exceptions are deemed waived and need not be considered by the court on appeal. Shear v. Shear, 96-934 (La. App. 5th Cir. 5/28/97), 695 So.2d 1026, 1031, writ denied, 97-2138 (La. 11/14/97), 703 So.2d 632 ; see also La. C.C.P. art. 928 ; Quinette v. Delhommer, 247 La. 1121, 1143, 176 So.2d 399, 407 (1965).

      Mr. Shannon meets the definitions of both "offender" under CARP and "prisoner" under the PLRA. See La. R.S. 15:1174(2) and La. R.S. 15:1181(6).

      5 days between May 28, 2014 and June 2, 2014, plus 360 days between February 6, 2015 and February 1, 2016.

      In his brief on appeal, Mr. Shannon provided a date of service of process and stated that the receipt of service "is a public record and it proves that Warden Vannoy was served...." As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal. La. C.C.P. art. 2164 ; Moore v. Murphy Oil USA, Inc., 2015-0096 (La. App. 1st Cir. 12/23/15), 186 So.3d 135, 143, writ denied, 2016-00444 (La. 5/20/16), 191 So.3d 1066. The record on appeal is that which is sent by the district court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. See La. C.C.P. arts. 2127 and 2128. The arguments of counsel contained in appellate briefs and references to facts and issues that are not currently before the court in the record on appeal, are not considered record evidence. In re Succession of Badeaux, 2008-1085 (La. App. 1st Cir. 3/27/09), 12 So.3d 348, 352-53, writ denied, 2009-0822 (La. 5/29/09), 9 So.3d 166. As the appellant, Mr. Shannon is charged with the responsibility of completeness of the record for appellate review, and the inadequacy of the record is imputable to him. See Niemann v. Crosby Dev. Co., L.L.C., 2011-1337 (La. App. 1st Cir. 5/3/12), 92 So.3d 1039, 1044.
      This court also is precluded from taking judicial notice of a suit record from another court. Pinegar v. Harris, 2006-2489 (La. App. 1st Cir. 5/4/07), 961 So.2d 1246, 1249. Louisiana Code of Evidence article 202(A) provides for mandatory judicial notice of federal and state laws and certain ordinances. Article 202(B) also provides for notice of various legal matters, when requested by a party and with proper documentation. Those legal matters include presidential and gubernatorial proclamations; rules of Louisiana state agencies, boards, and commissions; ordinances of political subdivisions of this state; procedural rules of federal and state courts; rules of federal and state agencies, boards, and commissions; and laws of foreign countries, international law, and maritime law. La. C.E. art. 202(B). Although decisions of district courts are not included in Article 202(B)'s enumeration, it has been held that Article 202(B)(e) allows courts to take judicial notice of court decisions that "have the effect of law." See Perez v. Evenstar, Inc., 2012-0941 (La. App. 4th Cir. 1/30/13), 108 So.3d 898, 905 ; see also United Gen. Title Ins. Co. v. Casey Title, Ltd., 2001-600 (La. App. 5th Cir. 10/30/01), 800 So.2d 1061, 1065. That would not apply here, however, because we are asked to notice proceedings of a federal district court, which has no effect except in the specific case in which the rulings are made. See United Gen. Title Ins. Co. v. Casey Title, Ltd., 800 So.2d at 1065. Although a court may take judicial notice of its own proceedings, Article 202 does not allow, nor has it ever been interpreted to allow, courts to take judicial notice of suit records in other courts. Documentation of other courts' proceedings must be offered into evidence in the usual manner. See Pinegar v. Harris, 961 So.2d at 1249.
      Additionally, Rule 2-1.7 of the Uniform Rules, Courts of Appeal expressly provides that no record of another case (or prior record in the same titled and numbered case) shall be included in the record, unless such other record has been introduced in evidence in the case on appeal, in which event such other record shall accompany the record on appeal as an exhibit.

      An employer is answerable for the damage caused by its employee in the exercise of the functions in which the worker is employed. La. C.C. art. 2320. An employer's vicarious liability for conduct not his own extends only to the employee's tortious conduct which occurs within the course and scope of that employment. An employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business. Woolard v. Atkinson, 43,322 (La. App. 2nd Cir. 7/16/08), 988 So.2d 836, 838-39.

      See generally Kern v. Travelers Ins. Co., 407 So.2d 2, 4 (La. App. 4th Cir. 1981).

      Rule 12(b)(6) is a defense to a claim for failure to state a claim upon which relief may be granted. In contrast, Rule 12(b)(1) is the defense of lack of subject-matter jurisdiction, which was not raised in the federal proceeding.

      A Rule 12(b)(1) motion most typically is employed when the movant believes that the claim asserted by the plaintiff does not involve a federal question, and there is no diversity of citizenship between the parties or, in a diversity of citizenship case, the amount in controversy does not exceed the required jurisdictional amount. Subject-matter jurisdiction often is considered a "threshold issue" for every federal case. See 5B Wright & Miller, Federal Practice & Procedure § 1350.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Bob HABER v. OCEAN CANYON PROPERTIES, INC.
    NUMBER 2017 CA 1472
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 31, 2018
    J. Michael Rhymes, Monroe, LA, Counsel for Plaintiff/Appellant Bob Haber
    Kailey L. LeBoeuf, Susanne Cambre, Metairie, LA, Counsel for Defendant/Appellee Ocean Canyon Properties, Inc.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

Plaintiff, Bob Haber, appeals from a trial court judgment granting summary judgment in favor of defendant, Ocean Canyon Properties, Inc. (Ocean Canyon). For the reasons that follow, we reverse and render.

FACTS AND PROCEDURAL HISTORY

Haber was hired by Ocean Canyon in August 2014 to work as its Operations Manager in Abita Springs. Haber began working for Ocean Canyon on August 27, 2014, with an annual salary of $35,000.00, or $134.62/day. However, on September 1, 2014, Ocean Canyon terminated Haber's employment. On the same date, Haber informed representatives of Ocean Canyon, Jim Wofford and Renea Daley, that his final paycheck should be mailed to his home.

Thereafter, on November 6, 2014, counsel for Haber mailed a letter to Ocean Canyon, which was received on November 10, 2014, stating that at the time of Haber's termination on September 1, 2014, he was owed approximately $2,000.00 in wages, which Ocean Canyon had failed to pay. As such, counsel made a demand for the unpaid wages, as well as for ninety days penalty wages. In response to the demand, on November 13, 2014, Ocean Canyon tendered two checks to Haber: a check in the amount of $1,128.80 for past due wages and a settlement check in the amount of $1,038.46 for four days penalty wages and attorney fees. Haber thereafter negotiated the check for past due wages.

On July 22, 2016, Haber filed a petition for damages, naming Ocean Canyon as defendant, asserting that he had instructed Ocean Canyon to mail his final paycheck to his home, and thereafter, his attorney had made written demand in November 2014 for payment of wages due and owing, plus ninety days penalty wages. Haber asserted that while Ocean Canyon had subsequently paid the past due wages, it had not made an unconditional tender of the ninety days penalty wages and reasonable attorney fees. Accordingly, Haber requested judgment in his favor in an amount equal to ninety days penalty wages plus reasonable attorney fees.

Ocean Canyon answered Haber's petition and thereafter filed a motion for summary judgment, asserting that there is no genuine issue as to material fact that Haber made his first demand for past due wages on November 10, 2014, and Ocean Canyon tendered past due wages on November 13, 2014. As such, Ocean Canyon asserted that Haber is only entitled to recover penalty wages for four days.

Haber also filed a motion for summary judgment, asserting that his notification to representatives of Ocean Canyon that he wanted his final paycheck to be mailed to his home constituted a demand for payment within the meaning of La. R.S. 23:632, entitling him to ninety days penalty wags and reasonable attorney fees.

Following a hearing on both motions, the trial court granted Ocean Canyon's motion, finding Ocean Canyon liable to Haber for $538.48 in penalty wages, denied Haber's claim for attorney's fees; denied Haber's motion for summary judgment; and dismissed the matter in its entirety, with prejudice. Haber now appeals from the trial court's judgment, asserting that the trial court erred in: awarding only a portion of the penalty wages claimed, denying attorney fees for the prosecution of the wage claim, and denying his motion for summary judgment and dismissing his suit.

DISCUSSION

Standard of Review

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. M/V Resources LLC v. Louisiana Hardwood Products LLC, 16-0758, p. 8 (La. App. 1st Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 17-1748 (La. 12/5/17), 231 So.3d 624. A motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions. La. C.C.P. art. 966(A)(4). The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. La. C.C.P. art. 966(D)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC, 16-0758 at p. 9, 225 So.3d at 1109.

On a motion for summary judgment, the burden of proof is on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

In the instant case, Haber appeals from the trial court's judgment granting summary judgment in favor of Ocean Canyon and also denying his motion for summary judgment. The denial of a motion for summary judgment is not appealable. However, because the granting of Ocean Canyon's summary judgment deals with essentially the same legal issues as Haber's motion for summary judgment, we will review Haber's motion for summary judgment in the interest of judicial economy. MP31 Investments,LLC v. Harvest Operating, LLC, 15-0766, pp. 7-8 (La. App. 1st Cir. 1/22/16), 186 So.3d 750, 755.

Penalty Wage Claim

The Louisiana Wage Payment Act, La. R.S. 23:631, et seq., is designed to compel prompt payment of earned wages upon an employee's discharge or resignation. Molina v. Oilfield Production Contractors, Inc., 17-0455, p. 2 (La. App. 1st Cir. 12/29/17), --- So.3d ----, 2017 WL 6629235. The main purpose of the wage payment law is to compel an employer to pay the earned wages of an employee promptly after his dismissal or resignation and to protect discharged employees from unfair and dilatory wage practices of employers. Molina, 17-0455 at p. 3, --- So.3d at ----.

Specifically, La. R.S. 23:631(A)(1)(a) provides that upon discharge of an employee, the employer shall "pay the amount then due under the terms of employment ... on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first." Furthermore, any employer who fails or refuses to comply with the provisions of La. R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay or full wages from the time the employee demands payment until the employer pays or tenders the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. La. R.S. 23:632(A).

Accordingly, to prove entitlement to penalty wages under La. R.S. 23:632, the employee must prove: (1) that wages were due and owing, (2) that demand for payment was made at the place where the employee was usually paid, and (3) that the employer failed to pay upon demand. Kern v. River City Ford, Inc., 98-0407, pp. 8-9 (La. App. 1st Cir. 2/19/99), 754 So.2d 978, 983. Louisiana Revised Statute 23:632 is penal in nature and, therefore, must be strictly construed. Pokey v. Five L Investments, Inc., 96-0018, p. 5 (La. App. 1st Cir. 9/27/96), 681 So.2d 489, 492.

There is no dispute that Ocean Canyon owed Haber wages for work performed prior to his termination on September 1, 2014. These wages earned during the pay period constitute "the amount then due under the terms of employment." See Davis v. St. Francisville Country Manor, LLC, 13-0190, p. 4 (La. App. 1st Cir. 11/1/13), 136 So.3d 20, 22.

Furthermore, with regard to demand for payment, the record establishes that on the date of Haber's termination, he spoke with Renea Daley, an employee who was training Haber and who he had been shadowing, and Jim Wofford, Operations Director and the person to whom Haber reported. Haber stated in his deposition, which was offered in support of both motions for summary judgment, that on the date of his termination, Daley told him that Ocean Canyon was letting him go. Haber stated that he asked Daley when and how he was going to be paid. Daley then told him that checks were normally mailed, and she asked where he wanted his check sent. Haber told Daley to send his check to the address listed on his resume.

Haber further stated that he called Wofford several times later that day, and upon finally speaking with him, Wofford confirmed that Haber had been terminated. Haber stated that he asked about his pay, and Wofford asked where he wanted it sent. Haber told Wofford to send his check to the address listed on his resume. According to Haber, when he did not receive his paycheck, he retained an attorney, who sent a demand letter to Ocean Canyon on November 6, 2104.

Ocean Canyon contends that Haber's conversations with Ocean Canyon employees on the date of his termination do not constitute a demand for payment, and furthermore, even if they do amount to a demand for payment, the wages were not due at that time because Ocean Canyon had until the next regular payday, or fifteen days, whichever occurs first, to pay Haber his wages. As such, Ocean Canyon contends that the first demand for payment it received from Haber was the letter from Haber's counsel on November 6, 2014.

However, we note that a statutorily sufficient demand for payment does not have to be in writing, and a "fairly precise and certain" oral request for payment is sufficient. See Kern, 98-0407 at p. 10, 754 So.2d at 984. Furthermore, an employee's demand for payment need only be made once. Kern, 98-0407 at p. 10, 754 So.2d at 984. According to Haber's uncontroverted testimony, while at the place of his employment and in phone calls made to his employer, he asked how and when he was going to be paid for the wages he had earned, and gave representatives of Ocean Canyon his address so that the wages could be mailed to him in accordance with Ocean Canyon's stated procedure. This oral request was precise and certain, and therefore constituted a demand for payment. See Kern, 98-0407 at p. 10, 754 So.2d at 984 (an oral request for payment "as quick as possible" made to an employee's immediate supervisor is "fairly precise and certain").

Additionally, contrary to Ocean Canyon's assertion, the demand was not premature. The wages were owed as of the date of Haber's termination, which is the date that Haber made demand for his wages. The fact that La. R.S. 23:631(A)(1) allows Ocean Canyon until the next regular payday or fifteen days following Haber's discharge, whichever occurs first, to pay Haber these wages does not negate Haber's proper demand. See Kern, 98-0407 at p. 10, 754 So.2d at 984 (applying a prior version of La. R.S. 23:631(A) stating that wages must be paid within three days following termination, this court concluded that a demand made on the final day of employment sufficient) and Pokey, 96-0018 at p. 9, 681 So.2d at 494 (applying a prior version of La. R.S. 23:631(A) stating that wages must be paid within three days following termination, this court concluded that a demand made the day following termination was sufficient). To hold otherwise would defeat the purpose of the Act, which is to compel an employer to pay the earned wages of an employee promptly after his dismissal and to protect Louisiana employees from unfair and dilatory wage practices by employers. See Berard v. L-3 Communications Vertex Aerospace, LLC, 09-1202, p. 9 (La. App. 1st Cir. 2/12/10), 35 So.3d 334, 342, writ denied, 10-0715 (La. 6/4/10), 38 So.3d 302.

Finally, it is undisputed that Ocean Canyon did not pay the amount due Haber in accordance with La. R.S. 23:631(A)(1)(a). Ocean Canyon acknowledges that it did not forward payment to Haber until November 13, 2014, and emails attached to its motion for summary judgment evidence that Ocean Canyon's failure to pay was likely due to an oversight. However, mere negligence on the part of the employer in failing to pay past due wages is not a valid defense. See Kern, 98-0407 at p. 9, 754 So.2d at 983.

Therefore, from our review of the record, we find that Haber established his entitlement to penalty wages. However, contrary to Haber's assertion, we find that he is owed penalty wages from the time of his demand for payment on September 1, 2014, until Ocean Canyon paid the amount of unpaid wages on November 13, 2014, or seventy-four days of full wages. See La. R.S. 23:632(A). The record establishes that Haber's daily rate of pay was $134.62. Therefore, we find that Ocean Canyon owes Haber penalty wages in the amount of $9,961.88.

Attorney's Fees

Louisiana Revised Statute 23:632(C) provides:

Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

The award of reasonable attorney fees is mandatory when an employee brings a "well-founded" suit for unpaid wages, irrespective of any equitable defenses that may be raised by the employer. Molina, 17-0455 at pp. 6-7, 241 So.3d at 341-42. A suit is considered "well-founded" when the employee brings a successful suit and recovers unpaid wages. See Cleary v. LEC Unwired, LLC, 00-2532, pp. 9-10 (La. App. 1st Cir. 12/28/01), 804 So.2d 916, 923. Furthermore, because La. R.S. 23:632(C) states that attorney fees shall be allowed in the event of a well-founded suit for "any unpaid wages whatsoever ," reasonable attorney fees may be awarded by the trial court in the event of a well-founded suit for penalty wages. See Sifers v. Exxon Corporation., 338 So.2d 763, 766 (La. App. 4th Cir. 1976) ; see also Pace v. Parker Drilling Company and Subsidiaries, 382 So.2d 988, 991, writ denied, 383 So.2d 1016 (La. 1980).

In the instant case, this court has found that Haber established his entitlement to penalty wages. As such, because Haber's suit is well-founded, he is entitled to attorney fees. Haber failed to introduce any evidence as to the time and costs of his attorney's services; however, the court may nonetheless fix the fee. See Molina, 17-0455 at p. 7, 241 So.3d at 342-43.

Rule 1.5(a) of the Rules of Professional Conduct provides the following factors to be considered by the court in setting reasonable attorney fees:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

Considering what we are able to glean from the record regarding the foregoing factors, we award an attorney fee in the amount of $5,000.00. See Chesterfield v. Genesis Hospice, LLC, 13-0179, p. 6 (La. App. 1st Cir. 12/19/13), 137 So.3d 22, 25.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and render judgment in favor of Bob Haber, granting his summary judgment and ordering Ocean Canyon Properties, Inc. to pay penalty wages in the amount of $9,961.88 and attorney fees in the amount of $5,000.00. All costs of this appeal are assessed to Ocean Canyon Properties, Inc.

REVERSED AND RENDERED.

Crain, J. concurs and assigns reasons.

CRAIN, J., concurs.

While bound by the precedent, I concur to express my disagreement with Kern v. River City Ford, Inc., 98-0407, pp. 8-9 (La. App. 1st Cir. 2/19/99), 754 So.2d 978 and Pokey v. Five L Investments, Inc., 96-0018, p. 5 (La. App. 1st Cir. 9/27/96), 681 So.2d 489. In my opinion, the penalty provision in Louisiana Revised Statute 23:632A is not triggered by a demand for payment made before the statutory deadline for payment of the wages. Under Louisiana Revised Statute 23:631 A, an employer is granted a statutory delay of up to fifteen days to pay the amount due to a discharged employee. If the employer fails to pay the wages by the deadline, Subsection 632A authorizes penalty wages beginning from the date of the "employee's demand for payment" until the wages are paid, subject to a ninety-day maximum. Strictly construing this penalty provision, I interpret the phrase "demand for payment" to mean a demand made after the expiration of the deadline for the payment of the wages, not before. To hold otherwise, as demonstrated by this case, results in the assessment of penalty wages against the employer for a time when payment was legally withheld under Subsection 23:631 A. An employer should not be penalized for exercising a statutorily granted right.

I believe Kern and Pokey were erroneously decided and should be corrected.


author: CRAIN, J.

text:
    SUCCESSION OF Glenn Michael LABORDE
    NO. 2017 CA 1334
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: MAY 31, 2018 Rehearing Denied June 22, 2018
    Glen R. GalbraithJulie R. Johnson Hammond, Louisiana, Attorneys for Appellant, Daniel Joseph Laborde
    Walter Antin Jr. Hammond, Louisiana, Attorney for Appellant, Ethel Annette Laborde
    Richard J. Brazan Jr. Baton Rouge, Louisiana, Attorney for Appellee, Glynis Annette Laborde
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

This appeal of a judgment of possession challenges the trial court's conclusion that an heir did not forfeit legacies pursuant to a no-contest clause. We reverse and remand.

FACTS

Glenn Michael Laborde died on December 19, 2012, and his will was probated on January 9, 2013. Mr. Laborde's daughter, Glynis Annette Laborde, filed a motion to contest and nullify the will. About the same time, a codicil was filed containing a no-contest clause, which pertinently provided if Glynis filed a legal action contesting any provision of the will, all bequests to her were revoked, forfeited, void, null, without effect, and lapsed. The codicil was not probated or otherwise made executory until September 2016. Glynis eventually, and voluntarily, dismissed her motion before the codicil was probated, but only after the parties engaged in discovery and the executrix, Glynis' mother, filed a motion for summary judgment.

In 2016, the executrix and Glynis filed motions to be placed in possession of property pursuant to the will. The executrix then sought to enforce the no-contest clause contained in the codicil. Glynis objected to the enforcement of the no-contest clause, arguing her actions prior to the codicil being probated had no legal effect.

Before the trial court, the parties argued whether the codicil, once probated, was effective retroactively to the date of Mr. Laborde's death, placing emphasis on when the challenge was pending, not whether it was filed. The trial court refused to enforce the no-contest clause, reasoning Glynis filed her motion before she knew the codicil existed and withdrew the motion approximately six months after it was filed. The court found "the filing of the Motion contesting the Will, without knowledge of the Codicil, which Motion was subsequently withdrawn, fails to qualify as a legal action contesting the Will as contemplated by the language of the Codicil and intent of the testator." The trial court also determined Glynis did not violate the no-contest clause by other actions taken during the course of the succession, including filing a motion to traverse the detailed descriptive list and opposing a partial judgment of possession because certain property was improperly listed on an inventory. The trial court rendered a judgment rejecting the executrix's arguments and placing Glynis and the executrix in partial possession of property specified in the will.

The executrix and Mr. Laborde's other heir, Daniel Joseph Laborde, appeal, contending the trial court erred by refusing to enforce the no-contest clause. They argue Glynis filed a legal action contesting the will, therefore, pursuant to the no-contest clause, the bequests to her were revoked, forfeited, null, void, without effect, and lapsed. Glynis maintains the trial court correctly held the codicil was not effective until probated and, once probated, did not apply retroactively to Mr. Laborde's death.

DISCUSSION

This appeal challenges the trial court's finding that Glynis did not violate the no-contest clause and the judgment placing her in possession of succession property. The parties argue the resolution of the challenge depends on whether the codicil containing the no-contest clause, once probated, applied retroactively to Mr. Laborde's death, citing Louisiana Civil Code article 1605, which provides, "A testament has no effect unless it is probated in accordance with the procedures and requisites of the Code of Civil Procedure."; The parties dispute the meaning of revision comment "(b)" to Article 1605, which provides, "When a valid testament is probated, it is effective as of the date of the testator's death. See [Louisiana Civil Code] Article 935." Article 935 is entitled "Acquisition of ownership; seizin," and pertinently provides for transferring ownership of the estate to universal successors and things bequeathed to particular successors immediately at the decedent's death. We find these arguments misplaced.

A codicil is an addition or qualification to a will and is considered part of the will. In re Succession of Cannon , 14-0059 (La. App. 1 Cir. 3/25/15), 166 So.3d 1097, 1101, writ denied , 15-0816 (La. 6/5/15), 171 So.3d 948. Pursuant to Article 1605, the codicil became effective upon its probate. That is, once probated, the no-contest clause in the codicil could be enforced according to its terms. The question presented here is not one of retroactivity, but the meaning of the language in the no-contest clause.

The intent of the testator is paramount in interpreting the provisions of a will. If the language of the will is clear, it must be carried out according to its written terms. See La. Civ. Code art. 1611A. The court's function is to construe the will as written, without adding words to any controversial parts under the guise of interpreting the testator's intent. See In re Succession of Boyter , 99-0761 (La. 1/7/00), 756 So.2d 1122, 1132 ; Succession of Montegut , 217 La. 1023, 1029-30, 47 So.2d 898, 900 (La. 1949). It is well-established that in interpreting wills, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but is conveying his ideas to the best of his ability so as to be correctly understood at first view. Succession of Hurst v. Gremillion , 552 So.2d 799, 801 (La. App. 1 Cir. 1989).

Mr. Laborde left no forced heirs; therefore, he was free to dispose of his estate to whomever and in any manner he wished and to impose any conditions on his bequests, as long as they contained nothing contrary to law or good morals. See La. Civ. Code arts. 1519 and 1528 ; Howard v. Administrators of Tulane Educational Fund, 07-2224 (La. 7/1/08), 986 So.2d 47, 55 ; Baten v. Taylor , 386 So.2d 333, 339 (La. 1979) ; Succession of Ruxton , 226 La. 1088, 1090-91, 78 So.2d 183, 184 (La. 1955). The subject no-contest clause provides:

If my daughter, Glynis Annette Laborde, files a legal action in court contesting any provision of my April 14, 2010 will, all bequests I make to her or in trust for her benefit in that will, particularly without limit the bequest of paragraph 2.4(A), shall be revoked, forfeited, null and void and without effect, and lapse.

This language is clear and unambiguous. Mr. Laborde conditioned all bequests to Glynis upon her not filing a legal action contesting any portion of his will.

After the executrix filed the petition to probate the will, Glynis filed a motion to nullify the will and convert the proceeding to an intestate succession proceeding. While acknowledging the motion was a legal action contesting the will, the trial court found the motion failed to qualify as a legal action contesting the will as contemplated by the language of the codicil and intent of the testator because it was filed before the codicil containing the no-contest clause was probated and before Glynis or her attorney knew of the codicil.

The clause contains neither a knowledge requirement nor a good faith exception based on lack of knowledge. Mr. Laborde could have restricted the clause's application to legal actions filed after the codicil was probated, or after Glynis learned of its contents, but he did not. In the absence of ambiguity, the codicil's terms must be carried out as written. See La. Civ. Code art. 1611A.

Glynis contends the trial court's ruling reflects its obvious awareness of the confusion created by the codicil being filed but not probated or made executory for years and by her counsel providing legally incorrect advice regarding the effect of the codicil. She essentially argues a good-faith exception should excuse her from the forfeiture provision. However, the court is not at liberty to create such an exception. The codicil provides Glynis forfeits all bequests to her by filing any legal action contesting the will, leaving no good-faith exception available.

Mr. Laborde was free to dispose of his estate as he wished. The court's duty is to follow his expressed wishes. Under the express terms enunciated by Mr. Laborde, the consequence of Glynis violating the no-contest clause is all bequests to her are revoked, forfeited, null, void, without effect, and lapsed. It was error to disregard this clearly expressed intent.

CONCLUSION

The judgment of partial possession rendered by the trial court upon finding Glynis did not forfeit the bequests to her is reversed. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Glynis Annette Laborde.

REVERSED AND REMANDED.

Pettigrew J. concurs and assigns reasons.

PETTIGREW, J., CONCURS AND ASSIGNS REASONS.

Considering the unique facts of this case, I concur with the majority.

However, when reading La. Civil Code Art. 1605, together with La. Code of Civil Procedure Arts. 2852 and 2853, it appears that if a petitioner files a petition to probate a testament and has possession of a codicil, the petitioner is required to attach and include the codicil with the petition to probate the original testament.

I can envision a scenario where the possessor of the codicil secretes it from the other heirs and legatees for an extended period of time without their knowledge and until after they have acted to their detriment. I believe under those circumstances the possessor of the codicil may very well have waived or lost their right to enforce the codicil.

      Glynis does not challenge the no-contest clause as violating law or good morals. See La. Civ. Code art. 1519. We note, however, no-contest clauses are not expressly prohibited by Louisiana law, and since Glynis is not a forced heir, Louisiana law does not require that she receive any portion of the estate. See La. Civ. Code art. 1493 ; Succession of Wagner , 431 So.2d 10, 13 (La. App. 4 Cir. 1983) ; contrast, e.g., Fla. Stat. § 732.517. Further, we note that a no-contest clause does not foster the probate of invalid wills; rather, a successful challenge will invalidate the will, making the no-contest clause of no consequence. On the other hand, a no-contest clause will generally prevent frivolous challenges that may exhaust the estate. See Smithsonian Institution v. Meech , 169 U.S. 398, 415, 18 S.Ct. 396, 402-03, 42 L.Ed. 793 (1898) (generally recognizing no-contest clauses "are good law and good morals," because of their deterrent effect on litigation that might "[bring] to light matters of private life that ought never to be made public").

      Glynis alleged the will was written when Mr. Laborde was "suffering ... of a dread disease," was heavily medicated, lacked testamentary capacity, and under undue influence. She alleged her "good faith" belief the will submitted might not be Mr. Laborde's last will and testament, claiming he informed her after that will was executed he was changing his will to reflect his original intent to equally distribute his assets between Glynis and her brother. Further, Glynis contended the will contained dispositions suggestive of "masked disinheritance" and prohibited substitutions.

      Because the codicil has no knowledge requirement, we do not address whether Glynis or her attorney knew of the codicil when the will contest motion was filed.

      We pretermit discussion of Daniel's additional request that we modify the trial court's judgment "out of an abundance of caution" to specifically describe the "super usufruct" set forth in the will.


author: SAUNDERS, Judge

text:
    Marvin Ray SCOTT v. PACKAGING CORPORATION OF AMERICA
    18-338
    Court of Appeal of Louisiana, Third Circuit.
    July 5, 2018
    Philip E. Roberts, Ungarino & Maldonado, LLC, 600 Jefferson Street, Suite 850, Lafayette, LA 70501, (337) 235-5656, COUNSEL FOR DEFENDANT/APPLICANT: Packaging Corporation of America
    Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/RESPONDENT: Marvin Ray Scott
    J. Michael Nash, Ungarino & Maldonado, LLC, 910 Pierremont Road, Suite 103, Shreveport, LA 71106, (318) 866-9598, COUNSEL FOR DEFENDANT/APPLICANT: Packaging Corporation of America
    Court composed of John D. Saunders, Marc T. Amy, and Candyce G. Perret, Judges.
   SAUNDERS, Judge

STATEMENT OF THE CASE

The issues presented in this writ application arise out of a claim for workers' compensation brought by Marvin Ray Scott against his employer, PCA, alleging that his hearing loss was caused by his employment at the Boise Paper Mill in DeRidder. Scott retired on July 17, 2017, after being employed at the paper mill since 1969. The 1008 was filed on August 23, 2017.

On January 23, 2018, Scott filed a motion for expedited hearing pursuant to La.R.S. 23:1121. Scott alleged that PCA failed to authorize an initial visit with his choice of treating physician, Dr. Brad LeBert, an otolaryngologist. Scott sought an order from the WCJ directing PCA to authorize the initial visit with Dr. LeBert, to reimburse Scott for the cost of an audiogram, and to pay two penalties and attorney's fees for PCA's arbitrary and capricious behavior.

PCA responded by filing an exception of improper use of summary proceedings alleging that while Scott could utilize summary proceedings to have his choice of physician approved, he could not utilize summary proceedings for the imposition of penalties and attorney's fees. PCA also opposed Scott's motion and alleged that Scott's claim was prescribed.

Scott's motion and PCA's exception came for hearing on February 23, 2018. At the hearing, the WCJ found that PCA did not have a "pliable" defense not to pay for the audiogram and ordered that the medical bill be repaid at full cost, that Scott's choice of treating physician be approved, and that PCA pay two separate penalties of $2,000.00 each and attorney's fees of $3,000.00. Scott's counsel was ordered to prepare a judgment. The judgment granting Scott's motion, imposing the penalties and attorney's fees, and denying PCA's exception was signed on March 21, 2018.

PCA timely filed its notice of intent to seek writs, and the WCJ set a return date of April 25, 2018. PCA's request for a stay of the proceedings pending review of the issue was denied. This writ application was timely filed and did not include a request for a stay or for expedited consideration. Scott filed his opposition on May 3, 2018. A supplement was filed by PCA on May 8, 2018. This supplement included a complete copy of PCA's opposition to the motion for expedited hearing. A second supplement was filed by PCA on May 25, 2018. This supplement contained the transcript of the February 23, 2018 hearing.

This matter is presently set for trial on the merits on August 2, 2018

SUPERVISORY RELIEF

The denial of an exception of unauthorized use of summary proceedings is an interlocutory ruling. MAPP Construction, LLC v. Amerisure Mutual Insurance Company , 13-1074 (La.App. 1 Cir. 3/24/14), 143 So.3d 520. "The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933.

Scott contends that the ruling regarding his motion for expedited hearing "appears to constitute a final judgment or order 'not requiring further trial on the merits.' " La.R.S. 23:1201.1(K)(8)(a)(i).) Scott also cites Ewing v. Hilburn , 11-1243 (La.App. 3 Cir. 3/7/12), 88 So.3d 640, wherein this court reviewed the denial of penalties and attorney's fees based on the employer's refusal to approve treatment by the claimant's orthopedic surgeon of choice. In Ewing , the request for expedited hearing appears to have been the only pleading filed. There is no mention that a 1008 had been filed in Ewing as it has in the case sub judice. This court has held that a ruling allowing a claimant to replace his choice of physician was an interlocutory order. Dunlap v. Cajun Livestock, LLC , 15-357 (La.App. 3 Cir. 6/10/15), 166 So.3d 1264.

Furthermore, Scott's attorney has sought writs in our sister case, Kyle v.

Boise Cascade Co. , 18-384. Scott goes on to suggest that this court should act on the present writ application and affirm the ruling awarding Scott penalties and attorney's fees and issue its own judgment ordering PCA to approve a visit with Dr. LeBert.

ON THE MERITS

"Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Foster v. Rabalais Masonry, Inc. , 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied , 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted). Additionally, "the determination of whether an employer should be cast with penalties and attorney fees in a workers' compensation case is essentially a question of fact, and 'subject to the manifest error/clearly wrong standard of review.' " Reed v. Abshire , 05-744 p.4 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224, 1226.

"[G]radual noise induced hearing loss caused by occupational exposure to hazardous noise levels" has been recognized as an occupational disease such that the employee's remedy was in workers' compensation rather than in tort. Arrant v. Graphic Packaging International, Inc. , 13-2878, p. 2 (La. 5/5/15), 169 So.3d 296, 298.

Louisiana Revised Statutes 23:1121 provides that the employee is entitled to select one treating physician in any field or specialty without the approval of the employer and that if the employer denies that right, the employee "shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8), when denied his right to an initial physician of choice." See also Smith v. Southern Holding, Inc. , 02-1071 (La. 1/28/03), 839 So.2d 5. Furthermore, pursuant to La.R.S. 23:1201(F), penalties and attorney's fees may be imposed "for failure to consent to the employee's request to select a treating physician or change physicians when such consent is required by [La.]R.S. 23:1121." Youngblood v. Covenant Sec. SVC, LLC , 11-2382, p. 12 (La.App. 1 Cir. 12/21/12), 112 So.3d 233, 241, writ denied , 13-0200 (La. 3/8/13), 109 So.3d 363. Scott argues that "because a workers' compensation claimant cannot establish entitlement to workers' compensation benefits (either medical or indemnity) without, at a minimum, an opinion from a treating physician, refusing this initial step would allow an employer to defeat a workers' compensation claim from the outset by simply refusing to authorize an initial visit with claimant's choice of treating physician."

In Ewing , 88 So.3d 640, this court noted that the burden of proof rests on the employer to establish that the employee's request to see his choice of physician was reasonably controverted. In that case, this court stated that causation was not the issue and, therefore, found that the employer's conclusion that causation did not exist was not enough to constitute reasonable controversy. Moreover, in Nelson v. Windmill Nursery of Louisiana, LLC , 04-1941, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 709, 712, writ denied , 05-2294 (La. 3/10/06), 925 So.2d 516, the court stated that "causation of the alleged accident is not an issue in determining whether an employee has been deprived of the right to see a treating physician of her choice."

In Deloach v. FARA Insurance Services , 14-408, p. 4 (La.App. 3 Cir. 12/10/14), 154 So.3d 737, 739, this court stated:

The law is clear that to determine if a claim has been reasonably controverted, "a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant." Brown v. Texas-LA Cartage, Inc ., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

PCA alleges that Scott's claim is prescribed pursuant to La.R.S. 23:1031.1(E), which provides:

All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

The WCJ stated: "I think you can prove maybe one or three but two-I don't believe you can prove that the employee is disabled from working as a result of the disease because the last test that he [did] was [ ] in July of 2008[.]" Even though that test showed some hearing loss, the recommendation was for annual retesting, and there was no mention that the hearing loss prevented Scott from doing his work. PCA recognizes that prescription does not begin to run until all three conditions have been met. But, PCA argues that subpart (2) is met because Scott's hearing loss was documented as early as 1990. This article ignores the wording of that subsection that says: "from working." It is not enough that hearing loss is a disability, it must disable the claimant from working as noted by the WCJ.

Additionally, it must be noted that while PCA argues that it has a valid exception of prescription, it also acknowledges that discovery on the issue needs to be completed before it brings the exception of prescription. PCA wanted the WCJ to postpone its ruling on the motion for expedited hearing until it completed discovery and could have its exception of prescription decided. But the WCJ cited Nelson , 923 So.2d at 714 : "The lack of opportunity to investigate or conduct discovery is irrelevant to reaching a conclusion as to whether Windmill was remiss in not authorizing Nelson to be examined by her choice of physician pursuant to LSA-R.S. 23:1121 B(1). Brown [v. Texas-LA Cartage, Inc .,] 98-1063 at p. 9 [(La. 12/1/98)], 721 So.2d [885]."

PCA is concerned that paying for Scott's hearing test and paying for him to see his physician of choice would constitute an acknowledgment of the claim resulting in the loss of its prescription defense. PCA cites Estate of Belaire v. Crawfish Town USA , 15-180 (La.App. 3 Cir. 12/9/15), 182 So.3d 1093, and Reed v. Mid-States Wood Preservers, Inc. , 43,799 (La.App. 2 Cir. 12/3/08), 999 So.2d 189, writ denied , 09-9 (La. 2/20/09), 1 So.3d 500. In Estate of Belaire , 182 So.3d 1093, this court noted that under La.R.S. 23:1209(A), the employer's payment of benefits would interrupt prescription where "the parties have agreed upon the payments to be made under this Chapter." But the issue in Estate of Belaire , 182 So.3d 1093, was whether the employer's failure to file a WC-1003 to stop payment of benefits was an acknowledgment of liability. This court found that it was not and that plaintiffs had failed to establish that there was acknowledgment to interrupt prescription. In Reed , 999 So.2d 189, this court held that the transmittal of Medicare Set-Aside Analyses from the employer to the claimant was an explicit acknowledgment of the claim that interrupted the three-year prescriptive period provided in La.R.S. 23:1209(C).

However, in Gary v. Camden Fire Insurance Company , 96-55, p. 5 (La. 7/2/96), 676 So.2d 553, the court noted that La.R.S. 23:1204 provides: "Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation under this Chapter." The court went on to state that:

Were it not for the existence of La.Rev.Stat. 23:1204, it would seem evident that voluntary payment of compensation benefits constitutes an acknowledgement of the employer's debt to the injured employee. Section 1204, however, encourages voluntary payment of compensation by assuring the employer that his voluntary payment does not, and will not, constitute an admission of liability. Because of Section 1204's statutory command, the voluntary payment of compensation here is not an acknowledgement of debt or liability and does not interrupt prescription under La.Civ.Code art. 3464.

Gary , 676 So.2d at 556.

Based on these established tenets, we find that the WCJ did not err in ordering PCA to approve a visit with Scott's choice of physician, Dr. LeBert.

PCA acknowledges that there are cases where awards of penalties and attorney's fees are made in connection with motions for expedited hearings but argues that none of the employers in those cases asserted exceptions of improper use of summary proceedings. However, in Nelson , 923 So.2d at 713-14, the employer did argue "that the OWC erred in deciding an issue of penalties and attorney fees under La. R.S. 23:1201(F) via a summary proceeding before Windmill was served and before it had an opportunity to investigate Nelson's claim of injury." The court found that argument to be without merit:

Windmill had the opportunity to controvert whether it denied Nelson her choice of a physician. Windmill was not denied the right.
....
An award of attorney fees under LSA-R.S. 23:1201 F [sic] is allowed for a violation of LSA-R.S. 23:1121 B(1). The purpose of such an award is to discourage indifference or undesirable conduct by employers. Williams v. Rush Masonry, Inc ., 98-2271, pp. 8-9 (La. 6/29/99), 737 So.2d 41, 46. Windmill's inaction appears to manifest the sort of indifference to be discouraged by an award of attorney fees. Therefore, the OWC's decision to award Nelson attorney fees was not manifestly erroneous or clearly wrong.

Nelson , 923 So.2d at 714.

Accordingly, we find that the WCJ did not err in denying PCA's exception of unauthorized use of summary proceedings.

WRIT DENIED.

      The mill was originally owned by Boise. At some point, PCA bought the mill.

      The pertinent court minutes are not attached to the writ application as required by Uniform Rules-Courts of Appeal, Rule 4-5(C)(10). PCA asserts that the minutes were not available at the time the writ was filed. The transcript of the hearing is attached; so, all the necessary information is provided.