Marleny Maldonado Versus El Sabor Catracho Restaurant, LLC & Elsa Mendoza

MARLENY MALDONADO NO. 24-CA-146

VERSUS FIFTH CIRCUIT

EL SABOR CATRACHO RESTAURANT, LLC COURT OF APPEAL
& ELSA MENDOZA
STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION
DISTRICT 7
STATE OF LOUISIANA
NO. 22-1021
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

November 27, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Scott U. Schlegel, and Timothy S. Marcel

AFFIRMED; EXCEPTION OF
NO CAUSE OF ACTION DENIED
TSM
SJW
SUS

COUNSEL FOR PLAINTIFF/APPELLEE,
MARLENY MALDONADO
Taylor M. Burnham
J. Casey Cowley
Imtiaz A. Siddiqui

COUNSEL FOR DEFENDANT/APPELLANT,
EL SABOR CATRACHO RESTAURANT, LLC
Connie P. Trieu

MARCEL, J.

In this worker’s compensation suit, defendants El Sabor Catracho

Restaurant, LLC and Elsa Mendoza appeal a judgment in favor of claimant

Marleny Maldonado following a trial on the merits. Defendants have also filed an

exception of no cause of action in this Court. For the following reasons, we affirm

the judgment of the trial court and overrule defendants’ exception.

BACKGROUND

This worker’s compensation suit arises from an accident that took place at El

Sabor Catracho restaurant on February 21, 2021. At that time, the claimant,

Marleny Maldonado was working as a cook when she tripped and fell while

carrying a large pot of soup off of the stove. Some of this hot soup landed on her

right arm, right calf, and back causing third-degree burns. The occurrence of the

accident is undisputed, though parties dispute its cause. For about a year following

the accident, claimant received weekly cash payments of $500.00 from her

employer.

On February 18, 2022, Ms. Maldonado filed a disputed claim for

compensation with the Office of Worker’s Compensation naming as defendants El

Sabor Catracho Restaurant, LLC and its member/managers Jose Javier Rosales and

Elsa Mendoza. On March 22, 2022, Mr. Rosales filed an answer to this

compensation claim in which he claimed that El Sabor Catracho Restaurant, LLC

was inactive and that he, the co-owner, had established a new LLC in 2019 for the

restaurant’s new location where the incident took place, Sabor Catracho 2, LLC.

In his answer, Mr. Rosales admitted: 1) that Ms. Maldonado sustained an injury on

the date set forth in the claim for compensation; 2) that Ms. Maldonado was his

employee at the time of the alleged injury; and 3) at the time of the injury, Ms.

Maldonado was performing service arising out of and in the course of her

employment. Defendants filed no exceptions at that time. Counsel for defendants

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continued to sign their motions “counsel for El Sabor Catracho” and answered and

propounded discovery on behalf of El Sabor Catracho Restaurant, LLC.

On December 1, 2022, Ms. Maldonado filed a pre-trial statement with

proposed stipulations, including the statement “MARLENY MALDONADO was

employed by EL SABOR CATRACHO RESTAURANT, L.L.C., on February 21,

2021.” On December 6, defendants El Sabor Catracho Restaurant, LLC and Elsa

Mendoza submitted a pretrial statement wherein they stated, “[d]efendants adopt

the stipulations set forth by the Claimant.”

On March 30, 2023, the third day of trial, before the close of plaintiff’s

evidence, counsel for defendants made an oral motion for a directed verdict and/or

a peremptory exception requesting that the case be dismissed because claimant did

not file suit against Sabor Catracho 2, LLC, but rather against El Sabor Catracho

Restaurant, LLC, an inactive LLC. The trial court overruled the exception and

denied the oral motion for a directed verdict, and, in so doing, noted that the

answer was filed by Mr. Rosales on behalf of Sabor Catracho 2, LLC, and that

pleadings including motions to substitute counsel, a motion for continuance and

the pre-trial statement were all filed on behalf of El Sabor Catracho Restaurant,

LLC. Defendants sought supervisory review of the trial judge’s ruling, which this

court denied. (See 23-C-199, unpublished writ disposition.) Judgment was

rendered in claimant’s favor on May 2, 2023.

Even following trial, counsel for defendants continued to file motions on

behalf of El Sabor Catracho Restaurant, LLC. Before this Court, counsel filed an

appellate brief on behalf of EL SABOR CATRACHO RESTAURANT, LLC while

at the same time assigning as error the trial court’s denial of the directed verdict

and overruling of the exception of no cause of action on the basis that El Sabor

Catracho is a non-existent legal entity. In addition, appellant has filed with this

court a peremptory exception of no cause of action asserting the same claims made

24-CA-146 2

in the court below. We address these assignments of error and this peremptory

exception in our discussion below.

DISCUSSION

Motion for a Directed Verdict

As an initial matter, parties concede that defense counsel incorrectly made

an oral motion for a directed verdict pursuant to La. C.C.P. art. 1810 when the

correct procedure for a nonjury case is a motion for involuntary dismissal under

La. C.C.P. art. 1672. We consider whether the trial court erred in denying the oral

motion for involuntary dismissal.

An appellate court may not reverse a ruling on a motion for involuntary

dismissal unless it is manifestly erroneous or clearly wrong. Perkins v. Carter, 09-

0673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862, 867. La. C.C.P. art. 1672 provides

in part:

B. In an action tried by the court without a jury, after the plaintiff has
completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the
ground that upon the facts and law, the plaintiff has shown no right to
relief. The court may then determine the facts and render judgment
against the plaintiff and in favor of the moving party or may decline to
render any judgment until the close of all the evidence.

Review of the record and the trial transcript before us indicates that appellant made

the oral motion for involuntary dismissal before the plaintiff/claimant completed

the presentation of her evidence, and did not subsequently re-urge the motion at the

close of evidence.

The Supreme Court has held that the clear wording of La. C.C.P. art. 1672

indicates that the plaintiff must have completed the presentation of her evidence

prior to the granting of an involuntary dismissal. Taylor v. Tommie’s Gaming, 04-

2254 (La. 5/24/05), 902 So.2d 380, 383. The motion may be made either at the

close of plaintiff’s case or at the close of all of the evidence, but not at points in

24-CA-146 3

between. Id. This is because the trial court is required to weigh and evaluate all

evidence in order to determine whether to grant such a motion. Id.

In this case, the motion for involuntary dismissal was untimely because

defendants moved for it prior to the close of claimant’s arguments. Further, it was

not re-urged at the close of evidence. We find no error in the trial court’s denial of

the motion.

Peremptory Exception of No Cause of Action

We address next defendants’ peremptory exception of no cause of action

raised both orally at trial and filed with their appeal in this Court. Our review of

the trial court’s ruling on the exception of no cause of action is de novo because the

exception presents a question of law and the decision is based solely on the

sufficiency of the petition. Khoobehi Properties, LLC v. Baronne Dev. No. 2,

L.L.C., 16-506 (La.App. 5 Cir. 3/29/17), 216 So.3d 287, 297, writ denied, 17-0893

(La. 9/29/17), 227 So.3d 288. The exception of no cause of action tests the legal

sufficiency of the petition by determining whether the law affords a remedy on the

facts alleged in the pleading. Id. The exception is triable only on the face of the

petition, accepting as true the well-pleaded facts therein. Dileo v. Harry, 17-240

(La.App. 5 Cir. 12/13/17), 238 So.3d 549, 554

Upon de novo review, we find that the facts stated in the claim for

compensation are sufficient to state a cause of action under the worker’s

compensation statutes. La. R.S. 23:1031(A) states, “[i]f an employee … receives

personal injury by accident arising out of and in the course of his employment, his

employer shall pay compensation in the amounts … hereinafter designated.” In her

Disputed Claim for Compensation form filed with the Office of Worker’s

Compensation, Ms. Maldonado alleges that she was injured sometime between

8:30 and 9:00 AM on February 21, 2021 by scalding hot soup while working as a

cook at the El Sabor Catracho restaurant. While the facts in the petition are in and

24-CA-146 4

of themselves sufficient to state a worker’s compensation claim, we also note the

multiple instances on the record where defendants stated that Ms. Maldonado was

the employee of El Sabor Catracho Restaurant, LLC and admitted that the accident

in question occurred at the restaurant. There were also numerous pleadings filed

by counsel on behalf of El Sabor Catracho Restaurant, LLC, including a stipulation

that plaintiff suffered a work-related accident while employed by El Sabor

Catracho Restaurant, LLC.

CONCLUSION

We find no errors in the trial court’s decision to deny defendant’s motion for

a directed verdict / involuntary dismissal, nor in the decision to overrule

defendants’ peremptory exception of no cause of action. We find that claimant’s

petition states a cause of action for worker’s compensation. Defendants’ exception

of no cause of action filed in this court is overruled. The judgment of the trial

court is affirmed.

AFFIRMED; EXCEPTION OF
NO CAUSE OF ACTION DENIED

24-CA-146 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 27, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-146
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
IMTIAZ A. SIDDIQUI (APPELLEE) TAYLOR M. BURNHAM (APPELLEE) CONNIE P. TRIEU (APPELLANT)
MARK J. BOUDREAU (APPELLANT)

MAILED
J. CASEY COWLEY (APPELLEE)
ATTORNEY AT LAW
620 NORTH CARROLLTON AVENUE
NEW ORLEANS, LA 70119