WENDELL G. RUSS
CITY OF NEW ORLEANS, NEW ORLEANS POLICE DEPARTMENT, AND LIEUTENANT ALDRICH IN HER CAPACITY AS SUPERVISOR OF THE ADMINISTRATIVE DUTIES DIVISION
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2018-10282, DIVISION "C"
Honorable Sidney H. Cates, Judge.
J. LeBeouf, City Attorney Donesia D. Turner, Sr. Chief Deputy
City Attorney Elizabeth S. Robins, Deputy City Attorney Renee
Goudeau, Assistant City Attorney City Hall-Room, COUNSEL FOR
Karl Bernard G. Karl Bernard & Associates, LLC, COUNSEL
composed of Judge Daniel L. Dysart, Judge Paula A. Brown,
Judge Tiffany G. Chase.
A. Brown Judge.
the City of New Orleans, the New Orleans Police Department
("NOPD") and Lieutenant Carol Aldrich, in her
capacity as a supervisor, seek review of the district
court's April 30, 2019 judgment which denied their
exception of prescription to the breach of contract petition
(the "Petition") filed by Respondent, former NOPD
officer Wendell G. Russ. Respondent's Petition sought
damages arising out of an alleged incorrect classification of
a 2008 work-related injury. For the reasons that follow, we
grant the writ and reverse the judgment of the district
Petition alleges he injured his back while on dispatch on May
15, 2008. On November 11, 2008, Respondent discovered
NOPD's "T.R.I.P." reporting system classified
his injury as "Sick-Workman's Compensation/Leave
Without Pay/Sick," rather than "Injured on
Duty." The "Injured on Duty" classification
entitled Respondent to greater salary disability benefits.
Respondent submitted a grievance to NOPD on November 13, 2008
to address the misclassification. Respondent filed for
disability retirement benefits on May 10, 2009. On June 15,
2009, Respondent learned from the Municipal Police
Employees' Retirement System that discrepancies remained
with respect to his salary as reported by NOPD. On July 8,
2009, NOPD removed Respondent from service due to his
inability to perform as an officer. His work status
classification dispute remained unresolved. On October 23,
2018, Respondent filed the Petition seeking damages for bad
faith breach of contract arising out of his alleged improper
payroll classification. In response, Relators filed an
exception of prescription, which the district court
standard of review of a trial court's ruling on a
peremptory exception of prescription depends on whether
evidence is introduced. Wells Fargo Financial Louisiana,
Inc. v. Galloway, 2017-0413, pp. 7-8 (La.App. 4 Cir.
11/15/17), 231 So.3d 793, 800 (citations omitted). If
evidence is introduced, the trial court's factual
findings are reviewed for manifest error. Galloway,
2017-0413, p. 8, 231 So.3d at 800. When no evidence is
introduced, the decision is purely legal and requires a
de novo review. Id. Under those
circumstances, the exception is decided based on the facts
alleged in the petition, which are accepted as true.
Id. The defendant bears the burden of proving
prescription, unless the allegations of the petition reflect
that the claim is prescribed, in which event the burden of
proof falls upon the plaintiff to show interruption,
renunciation, or suspension. Felix v. Safeway Ins.
Co., 2015-0701, p. 4 (La.App. 4 Cir. 12/16/15), 183
So.3d 627, 630.
case sub judice, no evidence was introduced at the
March 15, 2019 hearing. As this Court must derive all facts
from the allegations raised in the Petition, we will conduct
a de novo review.
pivotal question presented for review is whether the
Respondent's Petition alleges loss wage claims or breach
of contract claims. The nature of an action determines the
applicable prescriptive period. Faubourg St. Charles, LLC
v. Faubourg St. Charles Homeowners Assoc., Inc.,
2018-0806, p. 4 (La.App. 4 Cir. 2/20/19), 265 So.3d 1153,
argue the district court erred in denying their exception of
prescription because Respondent's action for the recovery
of his wages is subject to a three-year prescriptive period
for employee wage loss claims, pursuant to La. C.C. art.
3494(1). Respondent counters: (1) the nature of
his employment relationship with Relators was contractual;
and (2) he seeks damages ...