Opinion
NO. 2014 CA 0848
05-06-2015
ROBERT GROS v. STMG LAPEYRE, LLC, D/B/A ST. MARY GALVANIZING COMPANY, LLC
Steven C. Thompson Baton Rouge, LA J. Keith Hardie, Jr. New Orleans, LA Attorneys for Plaintiff-Appellant, Robert Gros C. Shannon Hardy John W. Penny, Jr. Lafayette, LA Attorneys for Defendant-Appellee, STMG Lapeyre, LLC, d/b/a St. Mary Galvanizing Co., L.L.C.
NOT DESIGNATED FOR PUBLICATION On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana
Trial Court No. 167,970
Honorable Timothy C. Ellender, Judge Presiding Steven C. Thompson
Baton Rouge, LA
J. Keith Hardie, Jr.
New Orleans, LA
Attorneys for Plaintiff-Appellant,
Robert Gros
C. Shannon Hardy
John W. Penny, Jr.
Lafayette, LA
Attorneys for Defendant-Appellee,
STMG Lapeyre, LLC, d/b/a
St. Mary Galvanizing Co., L.L.C.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. HIGGINBOTHAM, J.
This matter involves a trial court judgment sustaining a peremptory exception based on prescription and the subsequent dismissal of the plaintiff's lawsuit. For the following reasons, we affirm in part, reverse in part, and remand for amendment of the pleadings.
FACTS AND PROCEDURAL HISTORY
On June 29, 2011, Robert Gros was driving a truck for his employer, Gulf Horizon Services, L.L.C. ("Gulf Horizon"), when a large piece of galvanized steel pipe dropped off an eighteen-wheeler truck owned and operated by STMG Lapeyre, L.L.C, d/b/a St. Mary Galvanizing Company, L.L.C. ("STMG"). The pipe fell onto the roadway surface of Highway 90 in Terrebonne Parish, where it unavoidably became lodged under the truck driven by Gros, and allegedly led to Gros sustaining neck and back injuries.
On November 14, 2011, Gros timely filed a disputed claim for workers' compensation benefits against Gulf Horizon and its insurer, Granite State Insurance Company, also referred to as "Chartis," claiming that he had been injured in the course and scope of his employment with Gulf Horizon. While his workers' compensation claim was pending, almost a year later, on October 17, 2012, Gros filed a tort suit against STMG, asserting that STMG's negligence caused his injuries. At some point in time that is not clearly revealed in the record, Gulf Horizon began to pay workers' compensation benefits to Gros, which ostensibly resolved the workers' compensation dispute. Gros then filed a motion to dismiss his workers' compensation claim, apparently in consideration of the payment of workers' compensation benefits. Accordingly, by order dated November 28, 2012, the workers' compensation judge signed a judgment dismissing Gros's claims against Gulf Horizon and Chartis, without prejudice.
Thereafter, on July 17, 2013, STMG filed an answer and a peremptory exception raising the objection of prescription, contending that since Gros's tort suit was filed more than a year after the accident, his petition was prescribed on its face. STMG further maintained that pursuant to La. Civ. Code art. 3463, Gros's voluntary dismissal of his workers' compensation claim meant that prescription was never interrupted as to the tort suit. Gros opposed STMG's exception, asserting that his timely filed workers' compensation claim interrupted prescription as to his tort suit against STMG, who is a solidarily liable defendant, and maintaining that the dismissal, without prejudice, of the workers' compensation claim was due to a settlement of his claim for workers' compensation benefits, not a voluntary dismissal.
The trial court held a hearing on the prescription issue on November 25, 2013; no testimony or other evidence was introduced, but several exhibits were attached to the memoranda filed into the record in support of each parties' position. After argument was presented by both parties, the trial court ruled in favor of STMG, sustaining the exception of prescription in a judgment signed on December 12, 2013; however, the judgment did not order any relief. Gros filed a devolutive appeal. This Court, ex proprio motu, issued a rule to show cause order that instructed the parties to show cause by briefs why the appeal should not be dismissed for lack of appropriate decretal language in the judgment that disposed of or dismissed Gros's tort suit. The show cause order also instructed the parties that if the trial court signed an amended judgment addressing the defective decretal language, the appellate record should be supplemented with the amended judgment.
The pertinent decretal language provided: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Peremptory Exception of Prescription filed on behalf of [STMG] be and is hereby GRANTED."
On July 31, 2014, Gros filed a responsive brief to this Court's show cause order, agreeing that the trial court's judgment was fatally flawed for lack of decretal language. Gros argued that the appeal should be dismissed without prejudice and remanded to the trial court for amendment of the judgment, but he did not file a motion to dismiss his appeal. Gros maintained that the trial court now lacked subject matter jurisdiction to substantively amend the judgment absent a remand by this Court, because the trial court's jurisdiction had been divested when Gros filed his appeal. Meanwhile, on August 13, 2014, STMG filed a motion and order to amend the judgment and requested an expedited hearing in the trial court. The record reveals that Gros filed an opposition to the motion on the next day, arguing that the trial court was divested of jurisdiction and that this Court should first remand the matter to the trial court for a contradictory hearing before the issuance of an amended judgment.
Notably, the trial court did not hold a hearing on STMG's motion to amend, but instead, signed an amended judgment on August 13, 2014. The amended judgment added language to the original judgment after sustaining STMG's exception of prescription, and stated that it was a final judgment in favor of STMG, and dismissed all of Gros's claims against STMG. The trial court also ordered that the appellate record be supplemented with the amended judgment. Thereafter, on August 20, 2014, STMG filed a responsive brief to this Court's show cause order, arguing that the amended judgment cured any apparent decretal language defects in the prior judgment such that the appeal was now properly before this Court. Gros filed a reply brief, maintaining his opposition to the manner in which the trial court amended the original judgment, and requesting that this Court remand the matter to the trial court for a contradictory hearing before the trial court renders a valid judgment. Out of an abundance of caution, Gros also filed a separate appeal from the amended judgment, raising the same procedural errors and argument on the merits as in this appeal. A final determination on the rule to show cause was referred to this appellate panel for disposition, along with the merits of the appeal. Therefore, we must first address the rule to show cause before considering the merits on the prescription issue.
The pertinent language in the amended judgment provided as follows:
On November 25, 2013, the Motion for [Peremptory] Exception of Prescription filed by [STMG] was set for a hearing before this Honorable Court, and after considering the law and evidence adduced, the Court ruled as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for [Peremptory] Exception of Prescription filed on behalf of [STMG] be and is hereby GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that final judgment is rendered herein in favor of defendant, dismissing all of plaintiff's claims against defendant.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk's Office for the 32nd Judicial District Court, Parish of Terrebonne, supplement the appellate record with the instant Amended Judgment.
Given that all issues are resolved in the appeal sub judice, Gros's separate appeal, Gros v. STMG Lapeyre, LLC d/b/a St. Mary Galvanizing Company, LLC, 2014-1679 (La. App. 1st Cir. 5/6/15)(unpublished), is dismissed as moot in a separate opinion also rendered this date.
RULE TO SHOW CAUSE
A final, appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1st Cir. 6/27/03), 858 So.2d 598, 600; Carter v. Williamson Eye Center, 2001-2016 (La. App. 1st Cir. 11/27/02), 837 So.2d 43, 44. "A valid judgment must be precise, definite and certain. ... The decree alone indicates the decision. ... The result decreed must be spelled out in lucid, unmistakable language[, and] ... [t]he quality of definiteness is essential to a proper judgment." Input/Output Marine Systems, Inc. v. Wilson Greatbatch, Technologies, Inc., 2010-477 (La. App. 5th Cir. 10/29/10), 52 So.3d 909, 915-16 (citations omitted). The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Id., 52 So.3d at 916.
Because the December 12, 2013 judgment lacked the appropriate decretal language disposing of and/or dismissing Gros's tort claim against STMG, which was necessary for a valid final judgment, this Court ordered the parties to show cause whether the appeal should be maintained. In limited circumstances, when necessary to reach a just decision and to prevent a miscarriage of justice, an appellate court may remand a case to the trial court under the authority of La. Code Civ. P. art. 2164. See Gorman v. Miller, 2012-0412 (La. App. 1st Cir. 11/13/13), 136 So.3d 834, 841, writ denied, 2013-2909 (La. 3/21/14), 135 So.3d 620. So, while it is true that the jurisdiction of the trial court is divested, and that of the appellate court attaches when the trial court grants the order for a devolutive appeal, the trial court is divested of jurisdiction only as to the parties and issues that are the subject of the judgment that has been appealed. La. Code Civ. P. art. 2088(A); James v. Formosa Plastics Corp. of Louisiana, 2001-2056 (La. 4/3/02), 813 So.2d 335, 340.
An appellate court has an independent duty to consider whether it has subject matter jurisdiction over the matter, even when the issue is not raised by the litigants. Gaten v. Tangipahoa Parish School System, 2011-1133 (La. App. 1st Cir. 3/23/12), 91 So.3d 1073, 1074; McGehee v. City/Parish of East Baton Rouge, 2000-1058 (La. App. 1st Cir. 9/12/01), 809 So.2d 258, 260. Once the jurisdiction of the trial court is divested, "the appellate court alone may determine whether an appeal is properly before it." Downey v. Bellue, 178 So.2d 778, 781 (La. App. 1st Cir. 1965). This right in the appellate court "rests solely within the power and jurisdiction of the appellate court by virtue of its supervisory jurisdiction over the lower tribunal." Id. See also Sledge v. McGlathery, 324 So.2d 354, 357 (La. 1975) ("[C]ourts and judges have the inherent power, as well as the constitutional authority, to issue all [meaningful] writs [, orders, and process] in aid of the jurisdiction of their courts. La. Const, art. 5, § 2. Such power and authority is essential to the existence of courts."). Additionally, La. Code Civ. P. art. 191 provides that "[a] court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law."
In the interest of judicial efficiency and economy, this Court occasionally remands an appeal to a trial court for the limited purpose of allowing the trial court to issue an amended judgment in response to this Court's show cause or interim orders regarding the lack of appropriate decretal language in a judgment that has been appealed. See In re DeBram, 2011-0280 (La. App. 1st Cir. 8/27/12), 102 So.3d 830, 832 (show cause order regarding judgment that sustained an exception of prescription, but lacked appropriate decretal language); Henkelmann v. Whiskey Island Preserve, LLC, 2011-0304 (La. App. 1st Cir. 6/1/12), 2012 WL 1965853, pp. 2-3 (unpublished) (show cause and interim orders regarding a declaratory judgment that lacked appropriate decretal language disposing of some claims); and In re C.E.F., 2007-0992 (La. App. 1st Cir. 9/14/07), 977 So.2d 1, 2-3 (interim order concerning a judgment in an intrafamily adoption that failed to include decretal language that terminated parental rights). See also Goux v. St. Tammany Parish Government, 2013-1387 (La. App. 1st Cir. 10/24/14), 156 So.3d 714, 719-20, writ not considered, 2014-2471 (La. 2/13/15), 158 So.3d 828 (show cause order regarding the lack of appropriate decretal language in a judgment denying a writ of mandamus). Without a limited remand of the case, the trial court would not have jurisdiction to amend the judgment, and we would simply dismiss the appeal and remand. See Costanza v. Snap-On Tools, 2013-0332 (La. App. 1st Cir. 3/5/14), 2014 WL 886021, p. 4 (unpublished) (appeal dismissed because judgment purporting to evidence a settlement did not contain appropriate decretal language).
We find no merit to Gros's contention that this Court's show cause procedure resulting in a limited remand is faulty. It is well-settled that prior to final judgment, a trial court may, at its discretion and on its own motion, change the result of interlocutory rulings it finds to be erroneous. VaSalle v. Wal-Mart Stores, Inc., 2001-0462 (La. 11/28/01), 801 So.2d 331, 334. If not a definitive judgment, it is an interlocutory ruling, and as such is revisable by the trial court before final adjudication. Id., 801 So.2d at 335. A judgment that does not contain decretal language cannot be considered as a final judgment. See Johnson v. Mount Pilgrim Baptist Church, 2005-0337 (La. App. 1st Cir. 3/24/06), 934 So.2d 66, 67. Additionally, because the original judgment was not final, we find no grounds for Gros's contention that a contradictory hearing pursuant to La. Code Civ. P. art. 1951 was necessary since he did not consent to the trial court's amendment of the judgment for inclusion of appropriate decretal language. Louisiana Code of Civil Procedure article 1951 only applies to the amendment of final judgments, and as such the trial court was not required to hold a hearing before amending the original interlocutory judgment.
Louisiana Code of Civil Procedure article 1951 specifically provides: "On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received." (Emphasis added.)
While we acknowledge that this Court's show cause order did not explicitly state that the case was remanded to the trial court, without a doubt, this Court's order implicitly remanded the matter to the trial court for the limited purpose of having the trial court sign a valid written judgment that included appropriate decretal language disposing of Gros's claim against STMG. Further, this Court's show cause order explicitly instructed that the appellate record should be supplemented with the amended judgment by order of the trial court. Thus, pursuant to this Court's order, the trial court obtained limited jurisdiction to amend the judgment in order to provide the appropriate decretal language and supplement the record on appeal with the amended judgment.
In response to the show cause order, the trial court signed an amended judgment with the proper decretal language on August 13, 2014, and the amended judgment was properly filed in the appellate record of these proceedings. Consequently, we find that the December 12, 2013 judgment, as amended by the August 13, 2014 judgment, contains the appropriate decretal language to be considered a valid final judgment that addresses all of the jurisdictional issues raised in this Court's show cause order, i.e., after sustaining STMG's peremptory exception raising the objection of prescription, the judgment, as amended, dismisses all of Gros's claims against STMG. Therefore, we dismiss the rule to show cause, declare the existence of a final, appealable judgment, reinstate the appeal in this court after the implicit remand, and maintain the appeal. See La. Code Civ. P. art. 2088. See also Goux, 156 So.3d at 719-20; Henkelmann, 2012 WL 1965853 at p. 3. We now address the merits of Gros's appeal.
PRESCRIPTION
The issue presented is whether Gros's tort suit against STMG is barred by prescription. Prescription statutes are strictly construed against prescription and in favor of maintaining the cause of action. Babineaux v. State ex rel. Dept. of Transp. and Development, 2004-2649 (La. App. 1st Cir. 12/22/05), 927 So.2d 1121, 1124. Thus, if there are two possible constructions, the one which favors maintaining an action, as opposed to barring, should be adopted. Oil Ins. Ltd. v. Dow Chemical Co., 2007-0418 (La. App. 1st Cir. 11/2/07), 977 So.2d 18, 22, writ denied, 2007-2319 (La. 2/22/08), 976 So.2d 1284. Ordinarily, the party raising the objection of prescription bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 2001-2707 (La. 6/21/02), 828 So.2d 502, 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed by showing a suspension or interruption of the prescriptive period. Id.; Daisey v. Time Warner, 98-2199 (La. App. 1st Cir. 11/5/99), 761 So.2d 564, 567.
At the trial of a peremptory exception, "evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." La. Code Civ. P. art. 931. When evidence is introduced and evaluated, the trial court is not bound to accept as true the allegations of the petition, and an appellate court must review the entire record to determine whether the trial court manifestly erred in its factual conclusions. Krolick v. State ex rel. Dept. of Health and Human Resources, 99-2622 (La. App. 1st Cir. 9/22/00), 790 So.2d 21, 24-25, writ denied, 2000-3491 (La. 2/9/01), 785 So.2d 829. Conversely, the proper application and interpretation of a statute or article involves a question of law. McKenzie v. Imperial Fire and Cas. Ins. Co., 2012-1648 (La. App. 1st Cir. 7/30/13), 122 So.3d 42, 46, writ denied, 2013-2066 (La. 12/6/13), 129 So.3d 534.
Pursuant to La. Civ. Code art. 3492, a tort action is subject to a prescriptive period of one year from the date the injury or damage is sustained. However, according to La. Civ. Code art. 2324(C), a suit against one joint tortfeasor will interrupt prescription as to other joint tortfeasors, and the same rule applies with respect to solidary obligors. La. Civ. Code arts. 1799 and 3503. Similarly, prescription on a tort action by an employee against a joint third-party tortfeasor is interrupted by the filing of the workers' compensation action against the employer where both actions are based on the same occurrence. See Glasgow v. PAR Minerals Corp., 2010-2011 (La. 5/10/11), 70 So.3d 765, 769-70; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1390 (La. 1993). See also Pierce v. Foster Wheeler Constructors, Inc., 2004-0333 (La. App. 1st Cir. 2/16/05), 906 So.2d 605, 608, writ denied, 2005-0567 (La. 4/29/05), 901 So.2d 1071; Dark v. Marshall, 41,711 (La. App. 2d Cir. 12/13/06), 945 So.2d 246, 250-51. Further, the interruption of prescription by the filing of suit in a court of competent jurisdiction within the prescriptive period continues as long as the suit is pending. La. Civ. Code art. 3463. If prescription is interrupted, the time that has run is not counted; prescription commences to run anew from the last day of the interruption. La. Civ. Code art. 3466.
In this case, it is undisputed that Gros timely filed his workers' compensation claim against his employer, Gulf Horizon, and the workers' compensation insurer, Chartis, within one year from the accident date. It is also undisputed that Gros's tort suit against the third-party tortfeasor, STMG, was subsequently filed more than one year after his injury, but while the workers' compensation claim remained pending. Gros maintains that the timely instituted claim for workers' compensation benefits interrupted prescription as to his tort suit. But STMG contends that the interruption of prescription is considered never to have occurred since Gros voluntarily dismissed his workers' compensation claim after he filed his tort suit. STMG relies on the language of La. Civ. Code article 3463, which provides:
An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. [Emphasis added.]
STMG also relies on Williams v. Shaw Group, Inc., 2009-0301 (La. App. 1st Cir. 9/11/09), 21 So.3d 992, and Sims v. American Ins. Co., 2012-0204 (La. 10/16/12), 101 So.3d 1, contending that Gros voluntarily, unilaterally, and without any consideration, dismissed his workers' compensation proceeding. We note a factual distinction in both cases. In Sims, it was undisputed that the dismissal with prejudice was not the result of any settlement agreement, whereas in this case, Gros contends the dismissal was due to a settlement of the earlier filed workers' compensation suit. See Sims, 101 So.3d at 9. In Williams v. Shaw Group, the earlier filed suit involved a tort suit, not a workers' compensation claim, with absolutely no evidence of any amount paid or agreed to be paid to the plaintiff, and the dismissal of the tort suit was with prejudice. Williams v. Shaw Group, 21 So.3d at 994. We note a significant factual distinction between Williams v. Shaw Group and the case sub judice in that the dismissal of a tort suit with prejudice is binding and precludes the subsequent filing of the previously dismissed case, as opposed to a dismissal without prejudice of a disputed workers' compensation claim that may be re-opened due to the continuing jurisdiction of the workers' compensation judge. See La. R.S. 23:1310.8(A)(1). For these reasons, we do not find that Williams v. Shaw Group or Sims control the outcome of this case.
Conversely, Gros argues that the dismissal of his workers' compensation claim did not constitute a "voluntary dismissal," because it was the result of an agreement that resolved the issues between him and Gulf Horizon in consideration of Chartis's ongoing payment of workers' compensation benefits, not a full and final discharge and release of Gulf Horizon and Chartis. In other words, this was not the result of a unilateral dismissal by Gros after receiving nothing in return; the dismissal was based upon Gulf Horizon and Chartis's agreement to pay Gros past and ongoing workers' compensation benefits. Gros relies on Pierce, 906 So.2d at 609-10, contending that because the dismissal of his workers' compensation claim was based on the ongoing payment of workers' compensation indemnity benefits to him, the dismissal cannot be classified as "voluntary," but rather it was akin to a transaction or compromise between him and his employer and workers' compensation insurer. As we held in Pierce, 906 So.2d at 610, Gros asks this court to again reject the characterization that a plaintiff alone voluntarily dismisses the action by virtue of a settlement, since both parties resolve the dispute by transaction or compromise.
The dismissal, without prejudice, in Pierce was based on settlement terms that had been outlined and explicitly set forth in a joint motion to dismiss that was considered and approved by the workers' compensation judge. See Pierce, 906 So.2d at 610. In contrast, the motion and order to dismiss in this case was unilaterally filed by Gros, stating that "all issues ... have resolved[.]" The workers' compensation judge signed the order of dismissal "without prejudice," which was contained on the same page as Gros's motion, without any indication that the order of dismissal had the force and effect of a final judgment on the merits of Gros's workers' compensation claim for benefits. This is a distinguishing point from Pierce, because in that case, the judgment of dismissal on the basis of settled workers' compensation claims had the force and effect of a final judgment on the merits. Id.
Furthermore, Gros points out that Gulf Horizon and Chartis would have opposed the final release and dismissal of Gros's workers' compensation claim had they known that Gros would lose his third-party tort claims against STMG, because they would have lost their ability to recover the amount of their workers' compensation lien to the extent that benefits had been paid. Under Louisiana's workers' compensation scheme, the settlement of a workers' compensation claim that does not involve a final release does not require court approval. Trahan v. Coca Cola Bottling Co. United, Inc., 2004-0100 (La. 3/2/05), 894 So.2d 1096, 1103-04. Further, if the settling employee does not forgo future compensation claims, the settlement need not be approved by the workers' compensation judge. Id., 894 So.2d at 1105-06; Young v. Jack in the Box, Inc., 2005-1573 (La. App. 3d Cir. 5/3/06), 929 So.2d 855, 857, writ denied, 2006-1357 (La. 9/22/06), 937 So.2d 390.
We note that Gros's petition against STMG does not contain any allegations regarding his workers' compensation claim, the interruption of prescription, or a recitation that Gulf Horizon was solidarity liable with STMG. At the hearing on STMG's exception of prescription, argument was presented by both parties, but no testimony or evidence was received by the court. Exhibits were attached to the memoranda filed in support of each parties' position on the merits, which were apparently considered by the trial court and are contained in the record. Pursuant to a joint stipulation and order signed by the trial court on June 30, 2014, the record was corrected and supplemented with copies of the exhibits attached to STMG's memorandum in support of its exception of prescription. The exhibits included: (1) a copy of Gros's petition filed against STMG on October 17, 2012; (2) a copy of Gros's disputed claim for workers' compensation filed on November 14, 2011; and (3) a copy of the motion and order of dismissal, without prejudice, of the workers' compensation claim signed on November 28, 2012. Attached to Gros's opposition memorandum was a lien notification letter representing that Chartis had paid Gros $25,226.63 in workers' compensation benefits as of June 20, 2012. The lien notice also indicates that the amount of the lien could change "as future claim payments are made." We note, however, that none of these exhibits provide explicit or authentic proof that a settlement agreement occurred between Gros, Gulf Horizon, and Chartis, or details of Gros's workers' compensation benefit payments.
Generally, this Court does not consider exhibits filed into the record as an attachment to a memorandum in determining the issues on appeal. Union Planters Bank v. Commercial Capital Holding Corp., 2004-0871 (La. App. 1st Cir. 3/24/05), 907 So.2d 129, 130. "They are not evidence and are not properly part of the record on appeal." Id.
Since there is no explicit evidence in the record that the dismissal of Gros's workers' compensation claim without prejudice was due to a settlement agreement in consideration of ongoing workers' compensation payments from Gulf Horizon and Chartis, instead of a voluntary dismissal of his claim for workers' compensation benefits, we find that the trial court did not err in sustaining STMG's peremptory exception raising the objection of prescription as to this later-filed tort suit, which was prescribed on its face. Unlike the plaintiff in Pierce, Gros did not carry his burden of proof to show an interruption of prescription in the trial court on the exception of prescription. See Pierce, 906 So.2d at 610. Further, any dismissal without prejudice may be considered a voluntary dismissal for purposes of La. Civ. Code art. 3463. See Dark, 945 So.2d at 250-51. For this reason, we affirm the portion of the trial court judgment sustaining STMG's exception.
Nevertheless, because we find that facts exist which may be sufficient to overcome prescription by showing there was a settlement of the workers' compensation claim in consideration of ongoing benefit payments, we believe that in the interest of justice, Gros must be given the opportunity to amend his petition to allege those facts, pursuant to the mandate of La. Code Civ. P. art. 934. The trial court erred in failing to allow Gros an opportunity to amend his petition, even if the ultimate outcome of the prescription issue, once the petition is amended, is uncertain. See Wyman v. Dupepe Construction, 2009-0817 (La. 12/1/09), 24 So.3d 848, 849 (per curiam); Forbes v. Superior Elec. Products Corp., 567 So.2d 594, 595-96 (La. 1990) (per curiam). See also Finch v. Lake, 396 So.2d 391, 392-93 (La. App. 1st Cir. 1981). Accordingly, we reverse in part the trial court's judgment that dismissed all of Gros's claims against STMG, and we remand for the trial court to allow Gros to amend his petition within a specified period of time. If Gros fails to so amend the petition, the suit should be dismissed. If Gros amends his petition and alleges facts that support a settlement of the earlier-filed workers' compensation claim thereby interrupting prescription, the trial court should consider anew the exception of prescription.
Louisiana Code of Civil Procedure article 934 provides:
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 plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. [Emphasis added.]
CONCLUSION
Based on the above reasoning, we affirm in part the amended and final judgment of the trial court sustaining STMG's exception of prescription, we reverse in part the dismissal of Gros's claims against STMG, and we remand this case to the trial court to allow Gros to amend his petition within the delay allowed by the trial court to allege facts that would show his claim is not prescribed, or face dismissal with prejudice. Costs of this appeal are assessed equally between Gros and STMG.
RULE TO SHOW CAUSE DISMISSED; APPEAL MAINTAINED; JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; REMANDED TO TRIAL COURT WITH ORDER.