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Dixon v. City of Alexandria

Court of Appeals of Louisiana, Third Circuit

May 31, 2017



Eugene P. Cicardo, Jr. COUNSEL FOR PLAINTIFF/APPELLEE: Kendall Dixon

Michael J. O'Shee Joshua J. Dara, Jr. Steven M. Oxenhandler Gold, Weems, Bruser, Sues & Rundell COUNSEL FOR DEFENDANT/APPELLANT: City of Alexandria

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.

          MARC T. AMY JUDGE

         The plaintiff firefighter's employment was terminated following a purportedly failed breath alcohol test. Thereafter, his employment was repeatedly reinstated and terminated as the matter proceeded through various reviews. The plaintiff filed this matter seeking back pay attributable to the periods of retroactive reinstatement as well as for work actually performed during certain discrete periods. The plaintiff also sought penalties and attorney fees pursuant to La.R.S. 23:631 and La.R.S. 23:632. In pretrial proceedings, the trial court denied various exceptions, including an exception of no cause of action. The trial court denied those exceptions and, on the merits, awarded penalties, attorney fees, and court costs. The City appeals that ruling. The plaintiff answers the appeal. For the following reasons, we reverse the trial court's denial of the City's exception of no cause of action, in part, sustain the City's exception of no cause of action, in part, and dismiss claims regarding back pay. We thereafter reverse the judgment on the merits and enter a judgment of entitlement to penalties and attorney fees pursuant to La.R.S. 23:632. We further deny the plaintiff's motion to supplement the record and motion to produce, both referred to in the merits of this appeal.

         Factual and Procedural Background

         The employment matter underlying the present wage claim initially arose after the City of Alexandria terminated the employment of firefighter Kendall Dixon, effective September 18, 2014, due to the results of a breath alcohol test. The propriety of that termination is the subject of multiple administrative and court rulings, resulting in periods of reinstatement and repeated terminations. Although the rulings are not now at issue in this wage-related matter, we revisit those somewhat convoluted time periods as relevant to this matter.

         Following the initial, September 2014 termination, the Alexandria Municipal Fire and Police Service Board reviewed the action, excluding the results of the breath alcohol test relied upon by the City. The Board ordered reinstatement of the plaintiff's employment retroactive to the September 18, 2014 termination.

         However, on April 16, 2015, the Ninth Judicial District Court[1] reversed the Board's decision to reinstate the plaintiff and ordered the reinstatement of the City's September 18, 2014 termination of employment. That termination was again reversed, when a panel of this court granted the plaintiff's writ application and, for the second time, reinstated the decision of the Board on August 25, 2015. See City of Alexandria v. Kendall Dixon, 15-585 (La.App. 3 Cir. 8/25/15) (unpublished writ ruling), writ granted, City of Alexandria v. Dixon, 15-1718 (La. 11/16/15), 184 So.3d 20. However, the Supreme Court of Louisiana later reversed the writ ruling, reinstating both the trial court ruling in favor of the City and its order of remand to the Board for its consideration of the breath alcohol test previously excluded from consideration. See City of Alexandria v. Dixon, 15-1718 (La. 5/3/16), 196 So.3d 592.

         Fire Chief Bernard Wesley explained at trial that the City, in turn, terminated the plaintiff's employment on the same date as the supreme court's opinion, May 3, 2016. Yet, following the supreme court's remand to the Board for reconsideration, the Board again reinstated the plaintiff's employment. A Personnel Status Change form included in this record indicates that the reinstatement was made retroactive to May 4, 2016. The City appealed that ruling to the Ninth Judicial District Court which, by a December 16, 2016 ruling, affirmed the plaintiff's dismissal.[2] The plaintiff's application for supervisory writs, in which he seeks review of the trial court's ruling, is currently pending before this court. See City of Alexandria v. Kendall Dixon, 17-327.

         During this period of repeated reinstatements and subsequent dismissals, the plaintiff filed this matter as a Petition for Unpaid Compensation on July 29, 2015. [3]Therein, he alleged "that, upon his retroactive reinstatement, he did not receive the back-due supplemental pay for the period for which he was unemployed due to wrongful termination." [4] He also alleged that, following the April 16, 2015 discharge, he "did not receive his regular wages from the City for the shifts he worked on April 12th, 14th, and 16th, 2015[, ]" and that he was not "paid the Firefighter's Supplemental Salary (La. R.S. 33:2001, et seq.) for the period of time between September 17, 2014 and January 12, 2015, and for the month of April, 2015." He asserted that he made demand for those sums, but that the "wages have still not been paid." He thus suggested that: "[b]ecause the City of Alexandria has failed or refused to comply with the provisions of R.S. 23:631, it is liable . . . for ninety days wages at the daily rate of pay, or else for full wages from the time . . . demand for payment was made until the City pays or tenders the amount of unpaid wages due." He also sought attorney fees.

         In its answer, the City advanced various exceptions, including those of prematurity, no cause of action for state supplemental pay, and improper use of summary proceedings. Those exceptions related, in part, to the City's contention that the claim for penalties and attorney fees arising under La.R.S. 23:631 and La.R.S. 23:632 was inapplicable to the plaintiff as his employment status with the City was not final and still under review. The City also filed a reconventional demand against the plaintiff, suggesting that, because the district court retroactively terminated the plaintiff's employment by its April 15, 2015 ruling, it had "improperly overpaid . . . wages not owed to him between September 17, 2014 and April 16, 2015." The City therefore sought the return of "all wages, benefits, and other emoluments of employment" from that time period pursuant to La.Civ.Code art. 2299.[5]

         In response to the reconventional demand, the plaintiff filed an exception of no cause of action as to the City's claim for reimbursement for previously paid back pay. Referencing La.R.S. 33:2501, the plaintiff contended that "the City has no right to reclaim compensation paid . . . pursuant to the Board's decision." Citing Moore v. City of Abbeville, 01-1362 (La.App. 3 Cir. 3/6/02), 809 So.2d 1244. The plaintiff suggested that such a position is contrary to La.R.S. 33:2501(C) which, he contended, indicated that payment of back pay must be implemented immediately and not subject to a "suspensive appeal" pending review. Following a hearing, the trial court denied both parties' exceptions.

         The plaintiff filed a supplemental petition on July 8, 2016, subsequent to the termination of employment that followed the supreme court's May 3, 2016 judgment and after the Board again ordered the reinstatement of employment. The plaintiff asserted that, despite demand, "all compensation and benefit[s] due [him] after his September 17, 2014 termination and January 12, 2015 reinstatement [were] not paid . . . within the delays allowed La.R.S. 23:631, et seq., subjecting the City to penalties and attorney's fees." He further asserted that "all compensation due . . . from his actual work from January 12, 2015 until his April 16, 2015 termination was not paid . . . within the delays allowed by La.R.S. 23:631, et seq., subjecting the City to additional penalties and attorney's fees." As for the time period immediately before the supplemental petition, the plaintiff again suggested that "all compensation and benefits due . . . after his May [3], [6]2016 termination and June 22, 2016 reinstatement [were] not paid . . . within the delays allowed by La.R.S. 23:631, et seq., subjecting the City to additional penalties and attorney's fees." Thus, in addition to his claim for all back pay due, he alleged entitlement "to penalties and attorney's fees for each time the City did not comply with La.R.S. 23:631, et seq."

         In its answer, the City again advanced exceptions of prematurity, no right of action, and no cause of action. The trial court considered these exceptions immediately prior to the beginning of the resulting trial on the plaintiff's claims. Following the presentation of evidence, the trial court denied the City's exceptions. The resulting judgment both addressed the denial of the exceptions and determined "that wages were due and owing Kendall Dixon, proper demand was made and after demand wages were not paid by the City[.]"[7] In turn, the trial court ordered the City to pay penalties to the plaintiff in the amount of $32, 000.00 and attorney fees in the amount of $32, 000.00. Taxing this latter award as court costs, the trial court ordered the City to pay court costs in the amount of $34, 249.60.[8]

         The City appeals, assigning the following as error:

[1.] The Trial Court Erred in Denying the City's Exceptions of Prematurity, No Cause of Action and No Right of Action.
[2.] Alternatively, The Trial Court Erred in Awarding Penalty Wages.
[3.] Alternatively, The Trial Court Committed Legal and Fact Errors in its Calculation of Penalty Wages.
[4.] Alternatively, Attorney Fees Were Improperly Awarded; or in the Further Alternative, the La.R.S. 23:632 Attorney Fee Award Erroneously Included Attorney Time Spent for Pursuing Back Wages Under La.R.S. 33:2501(C)(1).
[5.] Alternatively, The Trial Court Erred in Making a Costs Award of $34, 249.60 With No Determination of Compensable Costs or the Amount Thereof; Without Any Evidence to Support the Costs Award; and With No Evidence to Show That Costs of $34, 249.60 Had Even Been Incurred.

         The plaintiff answers the appeal, seeking specification of the amount of unpaid wages he was due and additionally requesting an increase in those wages. He also seeks an increase in the amount of attorney fees awarded and an amendment to the judgment indicating that interest is due on the award of penalties and attorney fees. Finally, he seeks attorney fees for work performed on appeal.


         Motions Filed on Appeal

         Before submission of this matter to the panel, the plaintiff filed two motions with this court which were referred to the panel for consideration on the merits. First, the plaintiff filed a motion to supplement the record by which he seeks to introduce the image of a September 2016 check stub. He contends that this image reflects a post-trial payment by the City, acknowledging that sums are due him.

         Additionally, by a motion to produce, the plaintiff seeks an order to the City of an accounting of time spent, hours billed, and for work performed by counsel in this matter. He asserts that the billing information is relevant in the assessment of attorney fees he seeks for work performed on appeal.

         However, an appellate court "may not consider evidence not in the record before the trial court and may not receive new evidence." Pickett v. J.B. Tuck Land Clearing, 12-1409, p. 14 (La.App. 3 Cir. 5/1/13), 157 So.3d 34, 44. Both motions must be denied on this basis as they anticipate the introduction of evidence that was not and could not have been introduced below in light of their post-trial creation. Accordingly, we deny both the motion to supplement and motion to produce. Exceptions

         In its first assignment of error, the City addresses its exceptions of prematurity, no cause of action, and no right of action. As it has throughout this matter, the City continues to reference the ongoing reviews associated with the plaintiff's termination of employment pursuant to La.R.S. 33:2501. In light of the various terminations and reinstatements of employment, the City contends first that the plaintiff cannot avail himself of the provisions of La.R.S. 23:631 insofar as the statute anticipates a termination. The City pointedly notes that the plaintiff was an employee (with his employment having been reinstated) at the time he filed the July 2016 supplemental petition in which he sought both back pay attributable to reinstatement and those attributable to certain shifts he actually worked, namely April 12, 14, and 16, 2015. Accordingly, the City contended through its exception both that the plaintiff's claims were premature, as he could not be considered a former employee due to the lack of finality on the civil service claim and, alternatively, that the plaintiff had neither a right of action nor a cause of action.

         We first set forth the relevant statutory framework. As apparent from the factual and procedural background, the merits of the civil service employment dispute are proceeding pursuant to La.R.S. 33:2501. Entitled "Appeals by employees to the board[, ]" La.R.S. 33:2501 provides, in part:

         § 2501. Appeals by employees to the board

A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.
. . . .
C. (1) After the investigation provided for in Subsection B of this Section, the board may, if the evidence is conclusive, affirm the action of the appointing authority. If the board finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period, a reduction in pay to the rate prevailing ...

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