Harry P. Mendoza v. City of New Orleans and Municipal Police Employees Retirement System

HARRY P. MENDOZA * NO. 2024-CA-0717

VERSUS * COURT OF APPEAL

CITY OF NEW ORLEANS AND * FOURTH CIRCUIT
MUNICIPAL POLICE
EMPLOYEES RETIREMENT * STATE OF LOUISIANA
SYSTEM
*******

CONSOLIDATED WITH: CONSOLIDATED WITH:

HARRY P. MENDOZA NO. 2024-CA-0826

VERSUS

MUNICIPAL POLICE
EMPLOYEES RETIREMENT
SYSTEM

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2011-10000, DIVISION “A”
Honorable Ellen M. Hazeur, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

Edward F. Kohnke, IV
LAW OFFICE OF RICHARD V. KOHNKE
2917 Magazine Street
Suite 201
New Orleans, LA 70115

Patrick J. Fanning
ATTORNEY AT LAW
238 Huey P. Long Avenue
Gretna, LA 70053

COUNSEL FOR PLAINTIFF/APPELLANT

Sheri Marcus Morris
Sarah S. Monsour
DAIGLE, FISSE & KESSENICH, PLC
8900 Bluebonnet Boulevard

Baton Rouge, LA 70810

Benjamin A. Huxen II
ATTORNEY AT LAW
MUNICIPAL POLICE EMPLOYEE'S RETIREMENT SYSTEM
7722 Office Park Blvd., Ste. 200
Baton Rouge, LA 70809

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
NOVEMBER 12, 2025

SCJ
TGC
DNA

Harry P. Mendoza (“Mr. Mendoza”) appeals the August 27, 2024 judgment

that granted Municipal Police Employees Retirement System’s (“MPERS”) motion

for summary judgment, dismissing Mr. Mendoza’s claims with prejudice. For the

reasons that follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Mendoza was employed by the New Orleans Police Department

(“NOPD”) as a police captain. The NOPD demoted Mr. Mendoza to the rank of

lieutenant and subsequently terminated his employment. Mr. Mendoza appealed

his termination with the Civil Service Commission of the City of New Orleans

(“CSC”).

MPERS is the statewide retirement system established by the legislature to

provide retirement allowances and other benefits for municipal policeman. While

terminated, Mr. Mendoza received monthly retirement benefits totaling

$121,275.37 and withdrew $10,134.00 from his Deferred Retirement Option Plan

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(“DROP”) account. Thereafter, the CSC granted the appeal and ordered that Mr.

Mendoza be reinstated with all lost pay and benefits. The NOPD appealed the

CSC’s decision and on August 20, 2008, this Court affirmed the decision. See

Mendoza v. Dep’t of Police, 2008-0062 (La. App. 4 Cir. 8/20/08), 991 So.2d 1155.

By letters dated March 23, 2011, April 6, 2011, and June 20, 2011, MPERS

informed Mr. Mendoza that he was required to repay the benefits of both

retirement and withdrawals from the DROP account he received. Mr. Mendoza

failed to comply with MPERS’ requests.

On September 16, 2011, Mr. Mendoza filed a petition against the City of

New Orleans (the “City”) and MPERS, alleging he should not have to reimburse

MPERS for the funds advanced during his wrongful termination.1 On May 12,

2012, Mr. Mendoza retired from the NOPD. Thereafter, MPERS withheld his

monthly benefits of $5,818.05 from May 12, 2012, through July 12, 2014, and

applied those benefits as payments to the amount due. Mr. Mendoza filed an

amended petition alleging that MPERS was legally obligated to inform him that

the retirement funds were subject to repayment if his termination was overturned.

On October 29, 2021, MPERS informed Mr. Mendoza that he was overpaid

by $60,962.85 and that his gross monthly retirement benefit for the next forty-eight

months would be reduced to correct the overpayment within a reasonable number

of months. Mr. Mendoza filed a petition for temporary restraining order,

preliminary and permanent injunctive relief, seeking to prevent MPERS from

1 Mr. Mendoza moved to dismiss the claims asserted against the City with prejudice. On October

3, 2024, all claims against the City were dismissed with prejudice.

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recouping the overpayment. MPERS filed exceptions of nonconformity with La.

C.C.P. art. 3603, improper venue, improper cumulation of actions and

unauthorized use of a summary proceeding. After a hearing, the trial court granted

MPERS’ exception of improper venue, noting that the mandatory venue for suits

against MPERS pursuant to La. C.C.P. art. 84 is the Nineteenth Judicial District

Court for East Baton Rouge Parish.2

On October 11, 2023, Mr. Mendoza filed a motion for partial summary

judgment, asserting that summary judgment was appropriate because he was

legally entitled to receive the retirement benefits during his termination and

MPERS had no legal right to charge interest on his benefits. MPERS opposed the

summary judgment. Subsequent to a hearing, the trial court signed a judgment on

February 12, 2024, denying Mr. Mendoza’s motion for partial summary judgment.3

On July 17, 2024, MPERS moved for summary judgment, asserting that it is

entitled to judgment as a matter of law based on the law of the case doctrine and

Mr. Mendoza’s failure to meet his burden of proof at trial. A hearing on the motion

for summary judgment was held on August 21, 2024. On August 27, 2024, the

trial court granted the motion for summary judgment in favor of MPERS and

dismissed Mr. Mendoza’s claims against MPERS with prejudice. This appeal

followed.

2 On December 9, 2021, Mr. Mendoza filed a petition for temporary restraining order,
preliminary and permanent injunctive relief in the Nineteen Judicial District Court for East Baton
Rouge Parish. Thereafter, on February 10, 2022, the court denied Mr. Mendoza’s request for
permanent injunctive relief.
3 Mr. Mendoza sought supervisory review of the trial court’s denial of his motion for summary

judgment. This Court denied the writ on March 25, 2024. Mendoza v. City of New Orleans and
Mun. Police Emps.’ Ret. Sys., unpub., 2024-0146 (La. App. 4 Cir. 3/25/24).

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DISCUSSION

Mr. Mendoza assigns three errors; however, we narrow our discussion to

whether the trial court erred in granting MPERS’ motion for summary judgment.4

Mr. Mendoza argues that he had an absolute right to receive retirement

benefits during his termination. Mr. Mendoza further argues that La. R.S. 11:192

does not entitle MPERS to withhold the retirement benefits it owed him.

Standard of Review

“Appellate courts review summary judgments under the de novo standard of

review, using the same standard applied by the trial court in deciding the motion

for summary judgment; as a result, we are not required to analyze the facts and

evidence with deference to the judgment of the trial court or its reasons for

judgment.” Amedee v. Aimbridge Hosp. LLC, 2020-0590, p. 3 (La. App. 4 Cir.

12/16/22), 354 So.3d 250, 252 (quoting Smith v. State, 2018-0197, p. 3 (La. App. 4

Cir. 1/9/19), 262 So.3d 977, 980). Thus, “[a]fter an opportunity for adequate

discovery, a motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue as to

material fact and that the mover is entitled to judgment as a matter of law.” Id.

(quoting La. C.C.P. art. 966(A)(3)).

4 Mr. Mendoza’s three assignments of error are: 1) the trial court erred when it granted MPERS’

motion for summary judgment and denied his motion for summary judgment on the issue of
whether MPERS could use La. R.S. 11:192 to recover the retirement benefits; 2) the trial court
erred when it granted MPERS’ motion for summary judgment and denied his motion for
summary judgment because the clear statutory language of La. R.S. 11:192 only authorizes
recovery of an overpayment of benefits that is not due; and 3) the trial court erred when it
granted MPERS’ motion for summary judgment and denied his motion for summary judgment
because the clear statutory language of La. R.S. 11:192 only authorizes the recovery of an
overpayment and not interest.

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The burden of proof rests on the mover to demonstrate entitlement to

judgment as a matter of law, in accordance with La. C.C.P. art. 966(D)(1), which

provides:

[i]f the mover will not bear the burden of proof at trial on the issue
that is before the court on the motion for summary judgment, the
mover’s burden on the motion does not require him to negate all
essential elements of the adverse party’s claim, action, or defense, but
rather to point out to the court the absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense.

After the burden has shifted, “the adverse party [must] produce factual support

sufficient to establish the existence of a genuine issue of material fact or that the

mover is not entitled to judgment as a matter of law.” Haynes v. Sewerage & Water

Bd. of New Orleans, 2023-0678, p. 15 (La. App. 4 Cir. 7/31/24), 399 So.3d 626,

638 (alteration in original) (quoting La. C.C.P. art. 966(D)(1)).

Here, in its motion for summary judgment, MPERS argued that it was

entitled to a judgment as a matter of law because Mr. Mendoza was not legally

entitled to retain both his retirement benefits and back pay. MPERS elaborates that

since Mr. Mendoza was subsequently reinstated to his position retroactively, with

full back pay and benefits, he was not entitled to the MPERS benefits paid to him

during his termination period. MPERS further argued that it had the authority to

recover any overpayment by reducing Mr. Mendoza’s retirement benefits.

In support of its motion for summary judgment, MPERS attached the

affidavit of Melissa Frazier (“Ms. Frazier”); Mr. Mendoza’s DROP transaction

history; letters from MPERS to Mr. Mendoza, dated September 30, 2008, March

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23, 2011, April 6, 2011, June 20, 2011, October 19, 2021, and October 29, 2021;

and Mr. Mendoza’s statement of benefits.

In opposition, Mr. Mendoza argued that MPERS’ decision to withhold his

retirement benefits and deduct interest violated La. R.S. 49:113. Mr. Mendoza

argued that during his termination, he did not earn any wages or salaries. He

further argued that since his retirement benefits were not classified as wages or

salaries, MPERS was not entitled to a set-off or credit for retirement benefits it

paid him. In support of his opposition, Mr. Mendoza attached his January 12, 2024

memorandum in support of the motion for partial summary judgment and his

affidavit.

Ms. Frazier attested that she was the benefits administrator for MPERS and

that she had personal knowledge of the records maintained by MPERS regarding

Mr. Mendoza. Ms. Frazier testified that while enrolled in DROP, a participating

employee does not receive service credit and the employee and employer are not

required to pay contributions to MPERS. Ms. Frazier provided that after the City

terminated Mr. Mendoza, from July 29, 2006, to September 30, 2008, MPERS paid

him retirement benefits totaling $121,275.37 and DROP withdrawals totaling

$10,134.00. Ms. Frazier further provided that on September 22, 2008, Mr.

Mendoza was reinstated by the City retroactive to July 29, 2006.

Further, Ms. Frazier attested that MPERS informed Mr. Mendoza by letters

that he was required to repay the monthly retirement benefits and the DROP

withdrawals he received during his termination. She provided that Mr. Mendoza

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was informed that interest had accrued on the debt he owed. Ms. Frazier attested

that after Mr. Mendoza retired, from May 12, 2012, to July 2, 2014, MPERS

withheld the monthly benefits of $5,818.05 owed to Mr. Mendoza and applied the

benefits as payments to the debt. Lastly, Ms. Frazier attested that Mr. Mendoza

was informed that he was overpaid by $60,962.85 and that his gross monthly

retirement benefits would be reduced for forty-eight months to correct the

overpayment.

Mr. Mendoza attested that he worked as a commissioned police officer for

NOPD and was illegally terminated on July 28, 2006. Mr. Mendoza provided that

during his illegal separation from July 28, 2006, to September 22, 2008, he

performed no work and earned no salary from private employment.

Louisiana Revised Statutes 49:113 states:

Employees in the state or city civil service, who have been illegally
discharged from their employment, as found by the appellate courts,
shall be entitled to be paid by the employing agency all salaries and
wages withheld during the period of illegal separation, against which
amount shall be credited and set-off all wages and salaries earned by
the employee in private employment in the period of separation.

With respect to the overpayment of retirement benefits, La. R.S. 11:192

provides:

Whenever any state, parochial, or municipal retirement system or
pension fund pays any sum of money or benefits to a retiree,
beneficiary, or survivor which is not due them, the board of trustees
shall adjust the amount payable to the correct amount, and the board is
hereby authorized to recover any overpayment by reducing the
corrected benefit such that the overpayment will be repaid within a
reasonable number of months. The board shall notify the beneficiary,
or survivor, of the amount of overpayment in benefits and the amount
of the adjustment in benefits, thirty days prior to any reduction from
the benefit amount without the overpayment.

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In the instant matter, it is undisputed that Mr. Mendoza was wrongfully

terminated from the NOPD and during his termination he was entitled to his

retirement benefits. We find that Mr. Mendoza’s interpretation of La. R.S. 49:113

is misplaced. While Mr. Mendoza is correct that his retirement benefits are not

classified as salaries or wages, he fails to consider that he was reinstated to his

prior position with all lost pay and benefits. See Mendoza, 2008-0062, p. 13, 991

So.2d at 1163. Louisiana Revised Statutes 49:113 does not authorize double

recovery of retirement benefits. As such, we do not find that this statute prohibits

MPERS from reimbursement of retirement benefits for overpayment.

Next, La. R.S. 11:192 authorizes a municipal retirement system to recover

payments that were not due to the beneficiary. As previously mentioned, it is

undisputed that Mr. Mendoza received retirement benefits during his termination,

but was later reinstated with all lost pay and benefits. MPERS provided sufficient

evidence to show that Mr. Mendoza was overpaid retirement benefits and that it

was authorized to recoup overpayments. As such, the burden shifted to Mr.

Mendoza. While Mr. Mendoza filed an opposition to MPERS motion for summary

judgment, his affidavit and January 12, 2024 memorandum in support of the

motion for partial summary judgment did not produce factual support to show the

existence of a genuine issue of material fact. Therefore, the trial court did not err in

granting MPERS’ motion for summary judgment and dismissing Mr. Mendoza’s

claims against MPERS with prejudice.

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CONCLUSION

For the foregoing reasons, the August 27, 2024 judgment is affirmed.

AFFIRMED

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