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

WENDELL G. RUSS * NO. 2019-C-0579

VERSUS *
COURT OF APPEAL
CITY OF NEW ORLEANS, *
NEW ORLEANS POLICE FOURTH CIRCUIT
DEPARTMENT, AND *
LIEUTENANT ALDRICH IN STATE OF LOUISIANA
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
******
Judge Paula A. Brown
******
(Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Tiffany
G. Chase)

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 5E03
1300 Perdido Street
New Orleans, LA 70112
COUNSEL FOR RELATORS

G. Karl Bernard
G. Karl Bernard & Associates, LLC
1615 Poydras Street, Suite 101
New Orleans, LA 70112
COUNSEL FOR RESPONDENT

WRIT GRANTED;
JUDGMENT REVERSED
8/28/2019

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

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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.

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The judgment also denied Relators’ exceptions of no cause and no right of action; however,
Relators do not assign these denials as error in their writ application.

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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 for breach of

contract, which allots a ten-year prescriptive period as permitted by La. C.C. art.

3499.3

In denying the exception of prescription, the district court noted that “the

employer-employee relationship is a contractual relationship,” citing West v. State

Through State Superintendent of Public Ed., 324 So.2d 579 (La. App. 1 Cir. 1975)

and Castille v. St. Martin Parish School Board, 2015-997 (La. App. 3 Cir.

4/27/16), 190 So.3d 1225. In West, the First Circuit found the plaintiff’s suit for

unpaid wages stated a cause of action for breach of contract. 324 So. 2d at 581. In

Castille, the Third Circuit awarded damages for a school board’s violation of

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La. C.C. art. 3494 provides, in pertinent part:

The following actions are subject to a liberative prescription of three years:

(1) An 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;
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La. C.C. art. 3499 provides that “[u]nless otherwise provided by legislation, a personal action is
subject to a liberative prescription of ten years.”

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tenure laws in assigning a bus route to a bus driver. In doing so, the Third Circuit

quoted West, stating, “[w]e deem it elementary that the relationship of employer-

employee is contractual in nature.” Castille, 2015-997, p. 5, 190 So.3d at 1229,

quoting West, 324 So.2d at 581. The district court, in Castille, awarded damages

“in the form of repayment in full for any time or salary lost as a result of the

School Board’s actions, but dismissed [the plaintiff’s] claim for non-pecuniary

damages.” 2015-997, p. 3, 190 So.3d at 1228. The Third Circuit affirmed in part

the district court’s award of pecuniary damages and reversed in part the district

court’s dismissal of the plaintiff’s claims for non-pecuniary damages, such as

anxiety and depression. Id., 2015-997, pp. 21-22, 190 So.3d at 1239.4

We find West and Castille distinguishable from the case sub judice in that

those cases did not address the issue of prescription. However, the prescriptive

period to bring an employee breach of contract claim for wages was addressed by

the Supreme Court in Grabert v. Iberia Parish School Bd., 1993-2715, p. 2 (La.

7/5/94), 638 So.2d 645, 646. The Grabert Court found the three-year prescriptive

period of La. C.C. art. 3494 applied to claims that an employer “breached the

respective contracts by paying them less than they were due under the appropriate

salary index.” In arriving at this conclusion, the Court reasoned:

The actions are plainly for salary or wages past due under the
allegedly appropriate salary index. The three year prescription
provided for in article 3494 is directly and explicitly applicable. The
nature of the claim (for under paid wages) is not something different
because it arises out of breach of contract. The contract breached
made provisions for the very wages sought.

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The Supreme Court reversed that portion of the Third Circuit’s judgment which awarded
$75,000.00 in contractual damages to the plaintiff for anxiety and depression, finding that the
School Board did not breach its contract with the plaintiff in bad faith. See Castille v. St. Martin
Parish School Board, 2016-1028, p. 8 (La. 3/15/17), 218 So. 3d 52, 56-57.

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This petition to recover underpaid “compensation for services
rendered” is admittedly a personal action as defined by Louisiana
Civil Code of Procedure article 422.3 However, the ten year
prescriptive period set forth in article 3499, is only applicable to
personal actions “unless otherwise provided for by legislation.” La.
Civ. Code art. 3499 (West 1994). The prescriptive period for the
instant consolidated suits for the recovery of underpaid wages is
otherwise provided for in article 3494, for that article, as earlier
indicated, provides a three year prescriptive period for personal
actions seeking “compensation for services rendered.”

Grabert, 1993-2715, p. 2, 638 So.2d at 647.

Thus, the Grabert Court acknowledged that “all actions covered by

article 3494 are grounded in contractual relationships,” 1993-2715, p. 3, 638

So.2d at 647, and that “‘[a]rticle 3494 does not present a choice between a

contract remedy and some other remedy; it merely provides exceptions to

the general rule stated in article 3499 that a personal action prescribes in ten

years.’” Id., quoting Starns v. Emmons, 538 So.2d 275, 278 (La.

1989)(applying La. C.C. art. 3494’s three-year prescriptive period to claims

for breach of a lease contract).

In the case sub judice, Respondent’s breach of contract claims all derive

from the alleged 2008 erroneous payroll classification of his status as “Sick-

Workman’s Compensation/Leave Without Pay/Sick” instead of “Injured on Duty.”

According to the allegations raised in Respondent’s Petition, he discovered this

discrepancy on November 11, 2008 and filed a grievance on November 13, 2008.

The Petition also alleged he applied for disability retirement on May 10, 2009; he

was apprised of discrepancies with his reported salary on June 15, 2009; and he

was removed from service on July 8, 2009. At the very latest, Respondent’s cause

of action became exigible by July 8, 2009, the date he was discharged from

service. Hence, Respondent had until July 8, 2012 to file his Petition.

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Respondent’s Petition was not filed until October 23, 2018, long after his claims

had prescribed.

CONCLUSION

Based on the foregoing reasons, the district court erred in denying Relators’

exception of prescription. Respondent’s breach of contract claims, seeking

recovery of wage benefits, is covered by the three-year prescriptive period as

provided by La. C.C. art. 3494(1). We, therefore, grant Relators’ writ and reverse

the judgment of the district court.

WRIT GRANTED;
JUDGMENT REVERSED

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