Opinion
2022 CA 0853
04-18-2023
NOLAN BATES v. CITY OF DENHAM SPRINGS
Scott L. Smith, Jr. New Roads, Louisiana Counsel for Plaintiff -Appellant Joy C. Rabalais H. Edward Barousse, III Jordan John Henagan Grant R. Schexnailder K. Elizabeth Heinen Cranay D. Murphy Kate B. Labue Lafayette, Louisiana Nolan Bates Counsel for Defendant -Appellee City of Denham Springs
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA NUMBER 699742, SECTION 26 HONORABLE RICHARD "CHIP" MOORE, III, JUDGE
Scott L. Smith, Jr. New Roads, Louisiana Counsel for Plaintiff -Appellant
Joy C. Rabalais H. Edward Barousse, III Jordan John Henagan Grant R. Schexnailder K. Elizabeth Heinen Cranay D. Murphy Kate B. Labue Lafayette, Louisiana Nolan Bates Counsel for Defendant -Appellee City of Denham Springs
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
CHUTZ, J.
Plaintiff-appellant, Nolan Bates, appeals the trial court's judgment, which sustained a peremptory exception raising the objection of prescription filed by defendant-appellee, the City of Denham Springs (the City), for whom Bates worked as a fireman prior to his resignation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Bates filed this lawsuit on September 17, 2020, naming the City as a defendant. Bates averred that he was owed monetary relief, including reasonable attorney fees and costs, because while he was a fireman in the employ of the City, he became incapacitated due to a cause not brought about by his own negligence. According to the police report attached to his petition, on October 1, 2015, Bates was involved in a motor vehicle accident when a Ford truck pulling a boat on a trailer entered into his lane of travel as he was driving a motorcycle. Bates was thrown from his motorcycle, struck the side of the boat, and was severely injured. Attaching numerous documents to his petition, Bates claimed entitlement to statutory relief for the full period of his incapacity, which he maintains was one year.
In the petition, Bates incorrectly asserted that because Denham Springs was a city located within its jurisdiction, the Nineteenth Judicial District Court was the proper venue under La. R.S. 13:5104(B). Although the official minutes noted on July 28, 2021 that venue in the Nineteenth Judicial District Court was not proper, the City did not assert a declinatory exception objecting on the basis of venue. See La. C.C.P. art. 925.
The City filed a peremptory exception of prescription on May 28, 2021, averring that Bates's claim was untimely since it was asserted more than three years after he resigned his position as a fireman, which was evident from the petition and the exhibits attached thereto. Therefore, the City contended that Bates's claims against the City should be dismissed with prejudice.
A hearing was held on September 27, 2021, after which the trial court took the matter under advisement. On May 9, 2022, the trial court signed a judgment, sustaining the exception of prescription and dismissing Bates's lawsuit with prejudice. Bates appeals.
DISCUSSION
The objection of prescription may be raised by a peremptory exception. La. C.C.P. art. 927(A)(1). Ordinarily, a party urging the exception of prescription bears the burden of proving that the prescriptive period has elapsed. Newton v. St. Tammany Fire Dist. No. 12, 2020-0797 (La.App. 1st Cir. 2/19/21), 318 So.3d 206, 210.
Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription asserted prior to trial must be decided upon facts alleged in the petition with all allegations accepted as true. See La. C.C.P. art. 931. Where neither party introduced any evidence at the hearing, our role as an appellate court is to simply determine whether the trial court's ruling was legally correct in light of the allegations in the petition, and the exhibits attached thereto. See La. C.C.P. art. 853; Morris v. Jones Funeral Home, Inc., 2020-1002 (La.App. 1st Cir. 6/18/21), 328 So.3d 472, 475.
La. C.C. art 3494(1) provides that "[a]n action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board" is subject to a liberative prescription of three years. According to La. C.C. art. 3495, the three-year liberative prescription period commences to run from the day payment is exigible, and it accrues as to past due payments even if there is a continuation of labor, supplies, or other services. However, absent legislation providing for a different prescriptive period, personal actions are subject to a liberative prescription of ten years. See La. C.C. art. 3499.
In asserting his claim for monetary relief, Bates relied on La. R.S. 33:1995, entitled "Sick leave," which states in part:
Every fireman in the employ of a municipality, parish[,] or fire protection district ... shall be entitled to full pay during sickness or incapacity not brought about by his own negligence or culpable indiscretion for a period of not less than fifty-two weeks.
On appeal, Bates asserts that the provisions of La. R.S. 33:1995 are not compensation for services rendered but rather a gratuity of unearned wages in lieu of compensation provided by the employer to its firemen. See Walters v. Gen. Acc. &Fire Assur. Corp., 119 So.2d 550, 555 (La. 1st Cir. App. 1960). Bates further contends that the plain language of Article 3494 does not expressly set forth "sick leave" among the actions to which the three-year prescriptive period applies, pointing out that he rendered no services to the City during the year of incapacity for which he seeks relief. Reasoning that because neither the three-year period nor any other period provided by legislation sets forth an applicable prescription period for his claim for sick-leave benefits under La. R.S. 33:1995, Bates urges that the ten-year prescriptive period of Article 3499 applies to his claim. We disagree.
The Louisiana Constitution is violated whenever the state or a political subdivision seeks to give up something of value when it is under no legal obligation to do so. See La. Const. Art. VII, § 14 (as amended by Acts 1983, No. 729, § 1, approved Oct. 22, 1983, and effective Nov. 23, 1983). The payment of sick leave benefits to firemen for off-duty injuries pursuant to La. R.S. 33:1995 is not a loan, pledge, or donation. Rather, these sick leave benefits are a legislatively created benefit earned by virtue of the employment itself. Johnson v. Marrero-Estelle Volunteer Fire Co, No. 1, 2004-2124 (La. 4/12/05), 898 So.2d 351, 358. Thus, Bates is incorrect in asserting that the sick leave available to a qualifying fireman under La. R.S. 33:1995 is a gratuity.
La. Const. Art. VII, § 14 states in relevant part, "(A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private." The parties do not dispute that the City is a political subdivision. See La. Const. Art. VI, § 44(2) (defining a political subdivision to include a municipality or any other unit of local government) and (3) (defining a municipality to mean an incorporated city, town, or village).
Since the sick leave benefits are earned by virtue of a fireman's employment, a claim for relief under La. R.S. 33:1995 is "[a]n action for the recovery of compensation for services rendered." La. C.C. art. 3494(1). See Montiville v. City of Westwego, 592 So.2d 390, 391 (La. 1992) (Police officers' claims for payments of overtime, sick leave, and annual leave as recognized by a declaratory judgment constituted a suit seeking compensation for services rendered subject to the liberative prescription of three years set forth in Article 3494.). See also Boseman v. Orleans Par. Sch. Bd., 98-1415 (La.App. 4th Cir. 1/6/99), 727 So.2d 1194, 1196, writ denied, 99-0390 (La. 4/1/99), 742 So.2d 554 (the three-year prescriptive period of Article 3494 applied to statutory sick leave payments claimed by a teacher injured or disabled while in her official capacity as a result of assault or battery by a student, which entitled the teacher to sick leave without a reduction in pay and without reduction in accrued sick leave days during the period of her disability as provided by statute).
Despite his characterization of his employment as one where he did not render any services because he was incapacitated during the time for which he seeks relief, Bates's ability to qualify for the sick leave benefits available under La. R.S. 33:1995 was necessarily by virtue of his full-time employment or engagement with the City. See La. R.S. 33:1991 (including within the word "fireman" as used in La. R.S. 33:1995, "all persons employed or engaged full-time by municipalities or municipal fire departments, parishes or parish fire departments, or fire protection districts for firefighting, fire prevention, fire record clerk, fire investigation, fire protection, or emergency duties and services, or the fire training officers of such persons."). A letter, attached to Bates's petition, from the Human Resources Manager, Gary V. Watson, stating that Bates was employed by the City's fire department from July 11, 2014 through August 31, 2017, when Bates resigned for personal reasons, supports the conclusion that Bates was employed or engaged by the City between October 1, 2015 and August 31, 2017, which includes the time that he claimed he was incapacitated.
It is undisputed that the last possible date that Bates may have claimed sick leave benefits under La. R.S. 33:1995 was on August 31, 2017, the date he resigned. Bates did not file this suit until September 17, 2020, at which time the three-year prescriptive period of Article 3494 had already accrued. Because Bates's claim was filed after the accrual of the three-year prescriptive period, it is unnecessary for us to determine whether the claim became exigible at an earlier date and we pretermit such a discussion. See e.g., Newton, 318 So.3d at 211 (payment of wages is exigible, and the prescriptive period begins to run, at the time the wages are earned and payment is due).
Bates's final contention is that prescription was interrupted by a tacit acknowledgment by the City that it would honor his claim for sick leave benefits under La. R.S. 33:1995. Pointing to the attachments to his petition, Bates suggests that due to a tacit acknowledgement by the City, the prescriptive period for his claim for sick leave benefits under La. R.S. 33:1995 began to accrue on July 22, 2020.
Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. An acknowledgment is the recognition of the creditor's right or obligation that halts the progress of prescription before it has run its course. It involves an admission of liability, either through actions of the debtor that constitute a tacit acknowledgement, or through explicit recognition of a debt owed. An acknowledgment may be oral, in writing, formal, informal, express or tacit. A tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgments. Schilling v. Cooper, 2004-2460 (La.App. 1st Cir. 12/22/05), 928 So.2d 19, 22. If the acknowledgement is tacit, it is necessary to ascertain that the alleged facts imply a definite admission of liability. Safeco Ins. Co. v. Norcold, Inc., 2012-0755 (La.App. 1st Cir. 2/25/13), 113 So.3d 1104, 1107.
We find nothing in the attachments to Bates's petition that constitutes a recognition of Bates's right to collect relief under La. R.S. 33:1995 or that implies a definite admission of liability by the City. While it is evident from an email dated June 9, 2020 that Bates's wife was operating under a belief that the City would be "paying this year of sick pay," nothing on the part of HR Manager Watson indicated an intent to tender any monies to Bates or can be construed as a definite admission of liability.
A review of the correspondence shows that on April 20, 2020, in an email, Watson advised Mrs. Bates that he would contact a City representative, "and we may have to do some type of phone or facetime interview just to verify his/your recollection of the accident." In an email dated April 28, 2020, Watson also asked Mrs. Bates whether any citations had issued as a result of the October 1, 2015 accident. On June 9, 2020, Watson wrote to Mrs. Bates, "Working on the dates and numbers." He also inquired of Mrs. Bates, whether Bates had engaged in "any other employment during this time." Finally, on July 22, 2020, Watson emailed Mrs. Bates and stated, "It looks like y'all may have to file litigation to proceed with this matter," apparently based on information obtained from "the insurance firm." Thus, the record establishes that a month before prescription ran, the City advised Bates that it would not be paying the monetary relief he requested, which allowed him an opportunity to file his petition timely.
Based on the allegations of Bates's petition, including the attached documents, Bates has pointed to nothing that constitutes a tacit acknowledgement of liability by the City. Watson's statements appear to merely recognize that Bates was making a claim. Accordingly, the trial court correctly rejected Bates's claim of a tacit acknowledgement by the City sufficient to interrupt prescription. Thus, Bates failed to timely assert a claim for relief under La. R.S. 33:1995, and the trial court correctly sustained the City's exception of prescription.
In its written reasons for judgment, under a section entitled "Factual Summary," the trial court stated that the April 28, 2020 email between Watson and Mrs. Bates "indicated that the City only had to complete a brief interview with Bates and then payment would be tendered." And the trial court also stated that the June 9, 2020 email from Watson to Mrs. Bates "implied that the City was getting close to getting his sick leave paid." Based on these statements, Bates insinuates that the trial court actually indicated that a tacit acknowledgement had been made by the City. At most, these comments by the trial court appear to have been merely an attempt to present the information contained in the attachments to the petition in the best possible light for Bates. Nevertheless, it is the judgment not the reasons for judgment - before us on appellate review. See LAD Services of Louisiana, L.L.C. v. Superior Derrick Services, L.L.C., 2013-0163 (La.App. 1st Cir. 11/7/14), 167 So.3d 746, 753-54, writ not considered. 2015-0086 (La. 4/2/15), 162 So.3d 392. Therefore, after our de novo review of the allegations of the petition, including its attachments that we have taken as true, we find no error with the trial court's conclusion that Bates has not established that the City tacitly acknowledged its liability to Bates for sick leave payments under La. R.S. 33:1995.
DECREE
For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against plaintiff-appellant, Nolan Bates.
AFFIRMED.