Ronald Bodenheimer v. The State of Louisiana, The Honorable Jeff Landry, in His Capacity as the Louisiana Attorney General, The Honorable Leon Cannizaro, in His Capacity as the Orleans Parish District Attorney, and The City of New Orleans

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

c-,

W14- 1 -- W- 2019 CA 1561

4/' RONALD BODENHEIMER
1
4; VERSUS

THE STATE OF LOUISIANA, THE HONORABLE JEFF LANDRY, IN HIS CAPACITY
AS THE LOUISIANA ATTORNEY GENERAL, THE HONORABLE LEON
CANNIZARO, IN HIS CAPACITY AS THE ORLEANS PARISH DISTRICT
ATTORNEY, AND THE CITY OF NEW ORLEANS

Judgment Rendered:
OCT 2 1 2021

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 670054, Sec. 27

The Honorable Trudy M. White, Judge Presiding

John Venezia Attorneys for Plaintiff/ Appellant
Julie O' Shesky Ronald Bodenheimer
New Orleans, Louisiana

David C. Fleshman Attorneys for Defendant/ Appellee
Jacqueline B. Wilson Jeff Landry in his capacity as
Ross A. Dooley Louisiana Attorney General
James G. Evans
Baton Rouge, Louisiana

BEFORE: GUIDRY, MCCLENDON, WELCH, HOLDRIDGE, AND LANIER, JJ.

McCLENDON, J.

The plaintiff appeals a judgment granting a motion for judgment on the pleadings

in favor of the defendants. For the reasons that follow, we affirm.

BACKGROUND

In 1983, Ronald Bodenheimer was an assistant district attorney ( ADA) in Orleans

Parish and prosecuted Reginald Adams for murder. In 2015, Mr. Adams sued Mr.

Bodenheimer in federal court, contending that Mr. Bodenheimer and others committed

wrongdoings while prosecuting him. Mr. Bodenheimer sought representation and

indemnification for attorney fees from the Attorney General to defend the lawsuit;

however, his claim was denied.

On June 8, 2018, Mr. Bodenheimer filed this lawsuit against the State of Louisiana

and Jeff Landry in his capacity as the Louisiana Attorney General, ( sometimes collectively

the State"), Leon Cannizzaro in his capacity as the Orleans Parish District Attorney, and

the City of New Orleans. In the petition, Mr. Bodenheimer sought to recover attorney

fees from the State incurred in connection with Mr. Adams's federal lawsuit. With respect

to the State, Mr. Bodenheimer made the following allegations: From 1979 to 1984, Mr.

Bodenheimer was an ADA for the Orleans Parish District Attorney's Office and prosecuted

Reginald Adams for burglary on or about July 12, 1982, and for the murder of Cathy

Ulfers at Mr. Adams' s first trial on or about August 9, 1983. Thereafter, Mr. Bodenheimer

worked as a prosecutor in the Jefferson Parish District Attorney's Office, where he

remained until 1997.

Mr. Bodenheimer also alleged that on May 11, 2015, Mr. Adams filed a complaint

in the U. S. District Court for the Eastern District of Louisiana alleging numerous violations

of his constitutional rights by Mr. Bodenheimer while Mr. Bodenheimer was employed by,

and acting in the course and scope of employment with, the Orleans Parish District

Attorney's Office. Mr. Adams claimed that Mr. Bodenheimer participated in the New

Orleans Police Department's investigation of Mr. Adams. Mr. Bodenheimer then alleged

that in response to a motion to dismiss in the federal litigation, Mr. Adams was ordered

to file an amended complaint, which Mr. Adams did on November 12, 2015, again alleging

numerous violations of his constitutional rights by Mr. Bodenheimer, while Mr.

2

Bodenheimer was employed by, and acting in the course and scope of his employment

with, the Orleans Parish District Attorney's Office. Mr. Bodenheimer then asserted that,

on or about August 15, 2016, he filed an answer denying all allegations of wrongdoing

alleged by Mr. Adams and added that he committed no intentionally wrongful acts or acts

of gross negligence against Mr. Adams at any time.

Mr. Bodenheimer further alleged that he made a written request for representation

in the Adams's litigation to then Louisiana Attorney General James " Buddy" Caldwell;

however, on June 1, 2015, and again on June 10, 2015, the Attorney General denied

and/ or rejected Mr. Bodenheimer' s request in writing. Thereafter, on or around May 11,

2016, Attorney General Jeff Landry was requested to provide indemnification; however,

no response was received. Mr. Bodenheimer alleged that despite amicable demand, the

State failed to acknowledge its legal obligations to him as an Orleans Parish ADA.

Mr. Bodenheimer also alleged that on or about June 13, 2017, Mr. Adams entered

into a consent judgment in the federal lawsuit that would dismiss his claims against Mr.

Bodenheimer with prejudice. Mr. Bodenheimer alleged that he did not pay Mr. Adams

any amount demanded in the complaint and did not concede that any allegations of

wrongdoing were valid. Mr. Bodenheimer asserted that he incurred attorney fees in the

amount of $70, 000. 00 in defense of Mr. Adams's lawsuit.

The petition additionally contains allegations pertaining to the legal basis upon

which Mr. Bodenheimer' s indemnification claim against the State is based. These

allegations are as follows:

8. During the time of Mr. [ Adams' s] allegations against Mr. Bodenheimer,
La. R. S. 13: 5108. 2( B) was in full force and effect, and provided:

It is hereby declared to be the public policy of this state that the
state shall hold harmless and indemnify each official, officer, and
employee of the state from any financial loss for which, for purposes
of this Section, shall mean and include court costs, judicial interest
and monetary damages, arising out of any claim, demand, suit or
judgment in any court by reason of alleged negligence or other act
by the official, officer or employees, if the official, officer, or
employees, at the time damages were sustained, was acting in the
discharge of his duties and within the scope of his office or
employment and such damages did not result from the intentional
wrongful act or gross negligence of the official, officer or employee.

9. The Louisiana Supreme Court in Diaz v. Allstate, ( La. 6/ 3/ 83), 433
So. 2d 699 determined that district attorney employees are [ employees]

03

of the state for the purposes of then La. R. S. 13: 5108. 2 and have
permitted district attorneys to file claims for indemnity against the state.

10. The Louisiana Fourth Circuit Court of Appeal held in Donnell v. New
Orleans, 89 -CA -0792 ( La. App. 4 Cir. 1/ 16/ 90) 557 So. 2d 278; 1990 La.
App. LEXIS 25, that assuming arguendo that Act 923 of 1984 which
amended La. R. S. 13: 5108. 2 excludes district attorneys and their
employees from indemnification, that amendment would effect a
change in substantive law since it would revoke the right to
indemnification from persons employed in the district attorney's office
and would be applied prospectively only in accordance with La. Civ.
Code Art. 6.

11. Since the alleged acts of Ronald Bodenheimer occurred prior to the
effective date of the amendment to La. R. S. 13: 5108. 2, Diaz controls
and Ronald Bodenheimer is entitled to indemnity by the State of
Louisiana.

The State filed an answer to Mr. Bodenheimer' s petition, as well as a motion for

judgment on the pleadings. In its motion for judgment on the pleadings, the State

asserted that Mr. Bodenheimer did not have a right under Louisiana law to seek indemnity

for attorney fees incurred in connection with the federal lawsuit. The State relied on LSA-

R. S. 13: 5108. 1C, which provides that the State shall be obligated to indemnify a " covered

individual" for attorney fees if the attorney general determined not to assume the defense

of the covered individual and a court later finds that the covered individual was engaged

in the performance of duties of his office or employment and was free of criminal conduct.

The State submitted that it was obliged to indemnify Mr. Bodenheimer only if Mr.

Bodenheimer was a " covered individual" and all of the requirements of LSA- R. S.

13: 5108. 1C were met, namely, that: ( 1) the attorney general declined to defend Mr.

Bodenheimer; ( 2) a court found Mr. Bodenheimer was engaged in the performance of

duties of his office or employment; and ( 3) a court found Mr. Bodenheimer to be free

from criminal conduct.

The State submitted that Mr. Bodenheimer could not demonstrate that he is a

covered person entitled to indemnification from the State because under Louisiana law,

ADAs are not, and have never been, covered individuals entitled to indemnification from

the State. The State also pointed to LSA- R. S. 13: 5108. 1E, which excludes district

attorneys and their employees from the term " covered individual" contained in the

indemnification statute.

Id

In its second attack on the pleadings, the State argued that even if Mr.

Bodenheimer was a " covered individual" for the purpose of LSA- R. S. 13: 5108. 1C, two of

the statutory requirements necessary to trigger the State' s indemnification obligation

under that provision could not be met in this case. The State maintained that because a

consent agreement had been entered into in the federal litigation, no court had made a

determination that Mr. Bodenheimer was either " engaged in the performance of duties

of his office or employment" or that he was " free from criminal conduct," and therefore,

neither the second nor third element of LSA- R. S. 13: 5108. 1C were met. The State also

pointed to the requirement in LSA- R. S. 13: 5108. iC(3) that to be entitled to

indemnification, the demand must contain a certified copy of a final judgment reflecting

exoneration of the employee and an itemized accounting of the attorney fees and costs

due, and Mr. Bodenheimer failed to allege that he met those statutory requirements.

The State insisted that the question for the court was not whether Mr.

Bodenheimer was acting in the scope of his employment or whether Mr. Bodenheimer's

damages resulted from his intentional wrongful or gross negligence. Instead, the State

posited that the only question before the court was whether a local ADA can be

reimbursed by the State for fees he incurred in connection with his acts as an ADA when

the statutory requirements for indemnification have not been met. According to the

State, it is well settled that Mr. Bodenheimer is not entitled to the relief he seeks, and

therefore, the motion for judgment on the pleadings should be granted.

In a memorandum opposing the motion, Mr. Bodenheimer urged that the motion

should be denied because LSA- R. S. 13: 5108. 2, as it existed at the time Mr. Bodenheimer

prosecuted Mr. Adams in 1983, and the jurisprudence interpreting that provision,

particularly the Louisiana' s Supreme Court's 1983 decision in Diaz v. Allstate

Insurance Company, 433 So. 2d 699 ( La. 1983), unambiguously required the State to

reimburse him for attorney fees incurred in defending Mr. Adams' s lawsuit. Mr.

Bodenheimer argued that the State's motion relied on language excluding district

attorneys from the purview of the indemnification provision that did not exist at the time

he prosecuted Mr. Adams. Mr. Bodenheimer maintained that accepting his allegations as

true and applying the law in effect at the relevant time, he is entitled to the relief sought

5

in the petition, and because the State did not have a clear legal right to dismissal of the

lawsuit, the court should not grant the motion for judgment on the pleadings. Mr.

Bodenheimer attached numerous acts of the Louisiana Legislature to his memorandum

opposing the motion.

In reply, the State submitted that regardless of which version of the

indemnification statute applies to Mr. Bodenheimer' s indemnification claim, Mr.

Bodenheimer has not satisfied the statutory requirements to obtain indemnification from

the State. The State further insisted that Mr. Bodenheimer misread the statutory

language and asked the court to disregard the 1983 Diaz opinion, as only two justices

agreed that a district attorney was an employee of the state for the purpose of the

statutory indemnification provision, and because one year following the decision, the

Louisiana Legislature amended the indemnification provision to exclude district attorneys

from its scope, thereby overruling the Supreme Court's decision in Diaz.

Following a hearing on the motion, the trial court granted the State' s motion for

judgment on the pleadings, dismissing all claims asserted by Mr. Bodenheimer against

the State of Louisiana and the Attorney General.' This appeal, taken by Mr. Bodenheimer,

challenges the correctness of the dismissal of his claim for indemnification on a motion

for judgment on the pleadings.

MOTION FOR JUDGMENT ON THE PLEADINGS

Louisiana Code of Civil Procedure article 965 permits any party to move for a

judgment on the pleadings. It provides:

Any party may move for judgment on the pleadings after an answer
is flied, or if an incidental demand has been instituted after the answer
thereto has been filed, but within such time as to not delay the trial. For
the purposes of this motion, all allegations of fact in the mover' s pleadings
not denied by the adverse party have the effect of law, and all allegations
of fact in the adverse party's pleadings shall be considered as true.

1 Specifically, the trial court found that the undisputed facts established by the parties' pleadings showed
that Mr. Bodenheimer was not entitled to indemnification for his attorney fees under the current version of
the indemnification statute, LSA- R. S. 13: 5108. 1, because LSA- R. S. 13: 5108. 1E expressly excludes district
attorneys from the definition of "covered individuals," and because the statutory requirements necessary
for indemnification of attorney fees had not been met. The trial court further found that the undisputed
facts established by the parties' pleadings showed that Mr. Bodenheimer was not entitled to indemnification
of attorney fees under the former version of the indemnification statute, LSA- R. S. 13: 5108. 2, because
district attorneys are not, and have never been, entitled to indemnification from the State, and because
the statutory requirements necessary for indemnification of attorney fees had not been met.
C.1

A motion for judgment on the pleadings tests the sufficiency of a party's
allegations. It presents solely a question of law, which is reviewed de novo without

deference to the legal conclusions of the trial court. Louisiana Machinery Rentals,

L. L. C. v. Kean Miller, L. L. P., 17- 1768 ( La. App. 1 Cir. 2/ 20/ 19), 2019 WL 759935 at * 4;

writ denied, 19- 0464 ( La. 6/ 17/ 19) 274 So. 3d 1260; Gadrel, L. L. C. v. Williams, 17-

537 ( La. App. 5 Cir. 3/ 14/ 18), 241 So. 3d 508, 512- 13; Stonebridge Development, LLC

v. Stonebridge Enterprises, LLC, 42, 039 ( La. App. 2 Cir. 4/ 4/ 07), 954 So. 2d 893, 895,

writ denied, 07- 0963 ( La. 6/ 22/ 07), 959 So. 2d 508. The motion for judgment on the

pleadings is tried solely on the face of the pleadings, and a court may not consider

affidavits or other evidence in passing on the motion. z Louisiana Machinery Rentals,
2019 WL 759935 at * 4; Gadrel, 241 So. 3d at 512.

For the purpose of the motion, all allegations of fact contained in the opponent's

pleadings, as well as all allegations in the mover's pleadings and not denied by the

opponent are considered true. LSA- C. C. P, art. 965; Gibbens v. Wendy' s Foods, Inc.,

31, 487, p. 2 ( La. App. 2d Cir. 1/ 20/ 99), 729 So. 2d 629, 631; 1 Frank L. Maraist, Louisiana

Civil Law Treatise, Civil Procedure, § 6. 8, p. 188 ( 2d ed. 2008). However, when a motion

for judgment on the pleadings is filed by the defendant, all of the allegations in the

defendant's answer are considered to be denied. Gibbens, 729 So. 2d at 631. Since the

defendant is the mover in this case, all of the allegations of Mr. Bodenheimer's petition

are considered true, and the allegations in the State' s answer are considered denied. See

A & B Bolt & Supply, Inc. v. Dawes, 04- 699 ( La. App. 3d Cir. 11/ 10/ 04), 888 So. 2d

1023, 1026, writ denied, 05- 0265 ( La. 4/ 1/ 05), 897 So. 2d 609; Gibbens, 729 So. 2d at

631. Moreover, because our courts favor giving a party his day in court, a judgment on

the pleadings is granted only when the legal right is clearly established and the facts are

so clear and unquestioned that a trial on the merits is unwarranted. Louisiana

Machinery Rentals, 2019 WL 759935 at * 6; Gadrel, 241 So. 3d at 513.

2 Although a motion for judgment on the pleadings can be raised by any party, it is primarily a device by
which the plaintiff tests the sufficiency of the allegations of the defendant' s answer, including any
affirmative defenses. Gadrel, 241 So. 3d at 512- 13; 1 Frank L. Maraist, Louisiana Civil Law Treatise, Civil
Procedure, § 6. 8, p. 188 ( 2d ed. 2008).

7

The prior version of the attorney fee indemnification provision, LSA- R. S.

13: 5108. 2, which is relied on by Mr. Bodenheimer, as well as the present version of LSA-

R. S. 13: 5108. 1C( 1) impose specific procedural requirements for the recovery of attorney

fees from the State in the event the attorney general fails to assume the employee' s

defense. Louisiana Revised Statutes 13: 5108. 2C( 3) provided:

T] the State shall not be obligated to indemnify said officer or
employee for attorney fees incurred, unless the attorney general ... had
determined not to assume the defense of said officer or employee based
on his investigation, and the court subsequently finds that the officer or
employee was acting in the discharge of his duties and within the scope of
his employment and the damages did not result from the intentional
wrongful act or gross negligence of said officer or employee.

The present version of LSA- R. S. 13: 5108. 1C provides, in pertinent part:

1) The state shall additionally be obligated to indemnify a covered
individual for the attorney fees and all costs so incurred if the attorney
general had determined not to assume the defense of a covered individual
in accordance with Subsection B of this Section, and a court later finds that
the covered individual was engaged in the performance of duties of his
office or employment and was free of criminal conduct.

3) To be entitled to payment, any such demand must contain therein a
certified copy of the final judgment reflecting the exoneration of the
employee or officer and an itemized accounting of the attorney fees and
costs due.

Both versions provide for a factual finding, as a prerequisite for the recovery of attorney

fees, that the governmental employee was acting in the performance of his employment

duties and was free of wrongful conduct. Although Mr. Bodenheimer argues that the

prior version of the statute allows the court hearing the indemnification claim to make

the required finding, we disagree. It is clear that under either version of the statute, the

legislature intended that the court's finding of exoneration be made prior to the officer or

employee seeking indemnification.

In this matter, it is undisputed that a consent agreement was entered into in the

underlying federal litigation. As such, at the time this lawsuit was filed, no allegation was

made in the plaintiff's petition that a court had determined Mr. Bodenheimer was acting

in the discharge of his duties and within the scope of his employment, was engaged in

the performance of the duties of his employment, and was free of criminal conduct in

defending that lawsuit. Therefore, regardless of which version of the statute is applicable

to the determination of whether Mr. Bodenheimer is a covered person entitled to

indemnification for attorney fees incurred in the defense of the federal lawsuit, he could

not and did not allege in his petition that a court has determined he was acting in the

scope of his employment and that he was free from misconduct. 3 Therefore, accepting

all of the allegations in Mr. Bodenheimer's petition as true, and applying either version of

the indemnification statute, Mr. Bodenheimer's petition failed to allege a statutory pre-
requisite for indemnification. Accordingly, the State carried its burden of proving that Mr.

Bodenheimer failed to allege sufficient facts to prove that he is entitled to the relief he

seeks.

Further, to the extent that Mr. Bodenheimer suggests that he should be allowed

the opportunity to amend his petition, this is not a case where the effect of an amendment

can cure a technical defect in the pleadings.4 The State is not questioning the sufficiency

of the petition, but rather the inability of Mr. Bodenheimer to plead the facts necessary

for the recovery of attorney fees. Here, all of the facts have been alleged and are not

disputed, leaving for decision only a question of law, and the case can be decided by the

summary method of judgment on the pleadings. Because Mr. Bodenheimer cannot cure

by amendment the insufficiency of the petition under either version of the indemnification

statute, any attempt to amend the petition would be a vain and useless act. Accordingly,

we find that the trial court correctly granted the State' s motion for judgment on the

pleadings.

CONCLUSION

For the foregoing reasons, the trial court judgment in favor of the defendants, the

State of Louisiana and Jeff Landry in his capacity as the Louisiana Attorney General,

against Mr. Bodenheimer is affirmed. Costs of this appeal are assessed to the plaintiff,

Ronald Bodenheimer.

AFFIRMED.

3 Nor has Mr. Bodenheimer alleged that he provided a certified copy of a final judgment reflecting his
exoneration and an itemized accounting of the attorney fees and costs due.

4 With regard to the procedural right to amend in order to cure the insufficiency of the petition, in
connection with a judgment on the pleadings, see Lemelle v. City of Opelousas, 540 So. 2d 1232
La. App. 3d Cir. 1989) 540 So. 2d 1232, 1235. See also Daw v. Home Depot, Inc., 578 So. 2d 151, 152-
53 ( La. App. 1 Cir. 1991).
9

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2019 CA 1561

RONALD BODENHEIMER

VERSUS

THE STATE OF LOUISIANA, THE HONORABLE JEFF LANDRY, IN HIS
CAPACITY AS THE LOUISIANA ATTORNEY GENERAL, THE
HONORABLE LEON CANNIZARO, IN HIS CAPACITY AS THE ORLEANS
PARISH DISTRICT ATTORNEY, AND THE CITY OF NEW ORLEANS

Judgment rendered

Holdridge, J. Dissenting

I respectfully dissent. I find that the State failed to demonstrate that the law

clearly and unquestionably denies Mr. Bodenheimer the relief he seeks on the face

of the pleadings.

For the purpose of the motion for judgment on the pleadings, all allegations

contained in the opponent' s pleadings, as well as all allegations in the mover' s

pleadings and not denied by the opponent, are considered true. La. C. C.P. art. 965;

1 Frank L. Maraist, Louisiana Civil Law Treatise, Civil Procedure Civil Procedure,

6. 8, p. 168 ( 2d Ed. 2008). Thus, all of the allegations of Mr. Bodenheimer' s

petition are considered as true and all of the allegations in the State' s answer,

which have been denied by Mr. Bodenheimer, are considered as denied. A& B

Bolt & Supply Inc. v. Dawes, 2004- 699, p. 4 ( La. App. 3d Cir. 11/ 10/ 04), 888

So. 2d 1023, 1025, writ denied, 2005- 0265 ( La. 4/ 1/ 05), 897 So. 2d 609; Gibbens v.

Wendy' s Foods, Inc., 31, 487, p.2 ( La. App. 2d Cir. 1/ 20/ 99), 729 So. 2d 629, 631.

Although a motion for judgment on the pleadings may be raised by any

party, it is primarily a device by which the plaintiff tests the sufficiency of the

allegations of the defendant' s answer, including any affirmative defenses. Gadrel,

L.L.C. v. Williams, 17- 537, 241 So. 3d 508, 512- 13. It is of limited utility because

the defendant can ordinarily defeat the motion by denying the allegations of the
plaintiff' s petition, and the defendant can test the allegation of the plaintiff' s

petition by filing an exception of no cause of action. Maraist, at 189. Because our

courts favor giving a party his day in court, a judgment on the pleadings is granted

only when the legal right is clearly established and the facts are so clear and

unquestioned that a trial on the merits is unwarranted. Louisiana Machinery

Rentals v. Kean Miller, L.L. P., 2017- 1768, p. 8 ( La. App. 1St Cir. 2/ 20/ 19), 2019

WL 759935 at * 13. The presence of a conflict in the pleadings precludes the

granting of a motion for judgment on the pleadings. Gadrel, 241 So. 3d It 513.

It is evident from a de novo review of the pleadings that there are a myriad

of substantive legal issues which must be resolved by a court in determining the

merits of Mr. Bodenheimer' s indemnification claim, including: ( 1) whether the

current version of La. R.S. 13: 5108. 1, which expressly excluded district attorneys

as covered individuals thereunder, governs this case; ( 2) if the current version

applies, did Mr. Bodenheimer have an indemnity right that vested in 1983, when

the actions for which he was later sued in federal court took place, thus prohibiting

the prospective application of the amendment to the indemnity statute; ( 3) whether

the version of La. R.S 13: 5108. 2 in existence in 1983 governs this case; ( 4)

whether the Supreme Court' s 1983 decision in Diaz is controlling in this case; and

5) whether Mr. Bodenheimer can meet the statutory prerequisites to obtain

indemnification by demonstrating to the court in the indemnification lawsuit that

he was acting in the course and scope of his employment and was free from

wrongdoing in prosecuting Mr. Adams.

The majority answers the latter question in the negative, holding that the

indemnification statute mandates that a person seeking indemnification

2

demonstrate that a judgment has been entered in the wrongdoing proceeding on the
merits vindicating that person before indemnification can be sought. Essentially,

the majority concludes that the absence of a final determination on the merits by

the court hearing the wrongdoing lawsuit extinguishes any indemnification claim

an employee may have against the State at the time the wrongdoing lawsuit was

initiated. In my view, the language of the statute is subject to several different

interpretations as to whether the Legislature intended this result. This uncertainty

as to the proper interpretation of the statute precludes the granting of a motion for

judgment on the pleadings, where all uncertain issues are resolved in favor of the

opposing party.

The version of La. R.S. 13: 5108. 2B upon which Mr. Bodenheimer asserts

his indemnification claim declares that it is the public policy of this State that the

State shall indemnify officials, officers, and employees of the State from " any

financial loss" arising out of "any claim, demand, suit, or judgment in any court"

as a result of the alleged negligence or other act by such persons. Such losses

include court costs, judicial interest, and monetary damages. The right to

indemnification arises if, at the time the damages were sustained, the person

acting in the discharge of his duties and within the scope of his office or

employment" and such damages did not result from the person' s intentional

wrongful act or gross negligence. La. R.S. 13: 5108. 2B. Mr. Bodenheimer alleged

in the instant lawsuit that he committed no intentional wrongful acts or gross

negligence against Mr. Adams at any time. The State admitted most of the factual

allegations regarding Mr. Bodenheimer' s work as an ADA for Orleans Parish, his

prosecution of Mr. Adams, and the filing of the federal lawsuit against Mr.

Bodenheimer. Further, Mr. Bodenheimer alleged that in entering into the consent

3

judgment to dismiss the claims of wrongdoing in the federal lawsuit, he never

conceded that any of the allegations of wrongdoing were valid.

The language of La. R.S. 13: 5108. 213 extends the State' s indemnification not

only to those losses arising out of a court judgment, but also to those resulting from

any claims, demands, or suits. Moreover, the version of the statute relied on by

Mr. Bodenheimer makes it clear that that the State is not liable for attorney' s fees

incurred in defending those claims unless " the court subsequently finds that the

officer or employee was acting in the discharge of his duties and within the scope

of his employment and the damages did not result from the intentional wrongful

act or gross negligence of said officer or employee." ( Emphasis added). The

version of La. R.S. 13: 5108.2C( 3) relied on by Mr. Bodenheimer did not expressly

require that a court make these determinations before an indemnification claim

could be judicially asserted against the State. It is at least arguable that the

Legislature envisioned those determinations could be made by a court

subsequently hearing an indemnification claim in the event person seeking

indemnification has incurred attorney' s fees in the defense of a claim of

wrongdoing, but has not been judicially vindicated in those proceedings because

there has been no judicial determination on the merits of the wrongdoing claim,

whether that claim is settled, a consent judgment has been entered into, or the

proceedings are simply abandoned.

For these reasons, I disagree with the majority' s conclusion that Mr.

Bodenheimer' s inability to plead that a court had previously determined he was

acting within the scope of his employment and was free from intentional wrongful

acts or gross negligence at the time of the filing of the indemnification claim

entitles the State to a judgment on the pleadings.' Furthermore, I find that the trial

court went well beyond the scope of the pleadings in considering and accepting all

of the arguments raised by the State, which under La. C. C. P. art. 965, were all

contested and considered denied for the purpose of the motion for judgment on the

pleadings. In its supporting memoranda, the State asked the trial court to resolve

complex legal issues using a procedural device that is available only when there is

no conflict in the pleadings and there is no reasonable hypothesis upon which the

plaintiff may prevail. The resolution of the difficult legal issues presented in this

case involves the type of complex legal analysis that simply is not within the

purview of a motion for judgment on the pleadings. Accordingly, I find that the

trial court erred in granting the motion for judgment on the pleadings, and I would

remand this case to the trial court for further proceedings.

At best, Mr. Bodenheimer' s inability to plead that he had been vindicated in a judicial proceeding before filing the
indemnification lawsuit presents a question of prematurity; to cure this defect, Mr. Bodenheimer should be allowed
to amend his petition allege that he will obtain the requisite judicial ruling in the indemnification proceeding before
proceeding with his indemnification claim. See Lemelle v. City of Opelousas, 540 So. 2d 1232 ( La. App. 3d Cir.
1989), 540 So.2d 1232) ( holding that in light of the long- standing leniency in our law favoring the amendment of
pleadings, where the defendants' motion for judgment on the pleadings could be regarded as nothing more than a
challenge to the plaintiffs petition to state a cause of action, a plaintiff should be permitted to amend the petition to
cure the technical deficiencies in the petition).
I find that the trial court and the majority erred by not permitting Mr.
Bodenheimer to amend the pleadings to cure any technical defect therein prior to dismissing Mr. Bodenheimer' s
lawsuit.

5