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Russ v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

August 28, 2019

WENDELL G. RUSS
v.
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.

          Sunni 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 RELATORS.

          G. Karl Bernard G. Karl Bernard & Associates, LLC, COUNSEL FOR RESPONDENT.

          Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Tiffany G. Chase.

          Paula A. Brown Judge.

         Relators, 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 court.

         FACTS

         Respondent's 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 denied.[1]

         STANDARD OF REVIEW

         The 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.

         In the 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.

         DISCUSSION

         The 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, 1157.

         Relators 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)[2]. Respondent counters: (1) the nature of his employment relationship with Relators was contractual; and (2) he seeks damages ...


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