Arnold Lowther v. Town of Bastrop

Judgment rendered September 23, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,586-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

ARNOLD LOWTHER, ET AL Plaintiff-Appellants

versus

TOWN OF BASTROP Defendant-Appellees

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 2008333

Honorable Robert C. Johnson, Judge

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VILAR & GREEN, LLC Counsel for Appellants,
By: Aaron L. Green Arnold Lowther, Mark
Mark Felipe Vilar Middlebrook, Richard
McDonald, Stephen
Kelly, Bard White,
Jeffery Ramey, Heath
Eppinette, Timothy
Williams, Jamie Walker,
Marvin A. Holmes, Jr.,
Kenneth Watt, Chad
Manning, John W. Sharp,
Ted Grimes, Kenneth G.
Diel, Ricky King, Josh
Morrison, Kevin Riles,
Damon Carroll, Greg
Cheek, David Robinson,
Corey Robinson, Scott

G. Bulloch, Danny D.
Barmore, Rodney
Brown, Arnold D. Ray,
John Hattaway, Chad
Yeldell, Kevin Diel,
William Lee James,
Chris Parker

PIERRE & PIERRE, L.L.C. Counsel for Appellees,
By: James Rodney Pierre City of Bastrop, Town of
Bastrop, Henry Cotton,
Marvin Moore, Larry
Prator, Robert Shaw,
Darry Green, Howard
Loche

*****

Before WILLIAMS, MOORE, and STONE, JJ.

STONE, J.

The plaintiffs-appellants are 32 current and former firemen with the

City of Bastrop Fire Department. Appellants filed a petition for writ of

mandamus seeking enforcement of a May 6, 2019 judgment, ordering

previously calculated back pay amounts from the City of Bastrop and its

officials. In response, the City of Bastrop and its officials filed an exception

of no cause of action, which the trial court sustained. Appellants now appeal

that ruling.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 5, 2008, appellants filed suit against the City of Bastrop

(“City”), alleging that the City’s pay practices violated applicable law.

On November 13, 2014, the trial court granted appellants’ petition for

declaratory judgment, and ordered the City and its fire department to enact a

uniform salary/plan scheme that complied with applicable law.

On December 19, 2016, the trial court adopted appellants’ proposed

pay plan from January 1, 2005 through the indefinite future, and awarded a

monetary judgment for all amounts due appellants under that plan.

Following the May 6, 2019 trial, judgment was rendered in favor of

each appellant, confirming the calculated back pay amounts as mandated by

law.

On October 16, 2019, appellants filed a petition for writ of mandamus

requesting the trial court order the City to comply with its ministerial duty to

pay its firemen in accordance with applicable law, as reflected in the May 6,

2019 judgment. In response, the City filed an answer and exception of no

cause of action. The City argued that appellants are not entitled to use a writ

of mandamus as an alternative means to execute a judgment against a

political subdivision. Appellants filed an opposition to the City’s exception

of no cause of action. Appellants argue that they are entitled to the writ of

mandamus, as it relates to ministerial duties afforded by the Louisiana

Constitution and Louisiana Civil Service laws.

After a hearing on the exception of no cause of action, the trial court

sustained the exception and the appellants were granted ten days to amend

their petition for writ of mandamus. Appellants subsequently filed a timely

amended petition for writ of mandamus. The trial court, again, sustained the

City’s exception of no cause of action, signed a judgment to that effect, and

dismissed appellants’ amended petition for writ of mandamus with

prejudice. The appellants now seek review.

DISSCUSSION

Appellants have filed an appeal asking this Court to review the trial

court’s ruling which sustained the City’s exception of no cause of action.

The peremptory 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 petition. Gipson v. Fortune, 45,021 (La. App. 2

Cir. 1/27/10), 30 So. 3d 1076, writ denied, 10-0432 (La. 4/30/10), 34 So. 3d

298. The burden of showing that the plaintiff has stated no cause of action is

upon the exceptor. City of New Orleans v. Board of Directors of La. State

Museum, 98-1170 (La. 3/2/99), 739 So. 2d 748; In re Succession of Carroll,

46,327 (La. App. 2 Cir. 7/20/11), 72 So. 3d 384, writ not cons., 11-1844 (La.

11/4/11), 75 So. 3d 912.

The exception is triable on the face of the petition, and each well-pled

fact must be accepted as true. There is no requirement that the court accept

as true any conclusions of law alleged in the petition. Dejoie v. Medley,
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41,333 (La. App. 2 Cir. 12/20/06), 945 So. 2d 968. In determining whether

the law affords any remedy, all reasonable inferences are made in favor of

the nonmoving party. City of New Orleans v. Board of Directors of La.

State Museum, supra; Rangel v. Denny, 47,381 (La. App. 2 Cir. 8/8/12), 104

So. 3d 68. Generally, an exception of no cause of action must be overruled

unless the allegations in the petition exclude every reasonable hypothesis

other than the premise on which the defense is based, i.e., unless the plaintiff

has no cause of action under any evidence admissible under the pleadings.

Steed v. St. Paul’s United Methodist Church, 31,521 (La. App. 2 Cir.

2/24/99), 728 So. 2d 931, writ denied, 99-0877 (La. 5/7/99), 740 So. 2d

1290.

Appellate courts conduct a de novo review of a district court’s ruling

sustaining an exception of no cause of action, because the exception raises a

question of law and the district court’s decision should be based only on the

sufficiency of the petition. An exception of no cause of action is sustained

only when it appears beyond doubt that the plaintiff can prove no set of facts

in support of any claim which would entitle him to relief. The question is

whether, in the light most favorable to the plaintiff, the petition states any

valid cause of action for relief. Badeaux v. Southwest Computer Bureau,

Inc., 05-0612 (La. 3/17/06), 929 So. 2d 1211; City of New Orleans v. Board

of Directors of La. State Museum, supra.

In the instant case, the City filed an exception of no cause of action in

response to the appellants’ request for a writ of mandamus to enforce the

May 6, 2019 judgment. The City argues that as a political subdivision it

cannot be compelled to pay the May 6, 2019 judgment, via a writ of

mandamus.
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A writ of mandamus may be issued in all cases where the
law provides no relief by ordinary means or where the delay
involved in obtaining relief may cause injustice; provided,
however, that no court shall issue or cause to be issued a writ of
mandamus to compel the expenditure of state funds by any state
department, board or agency, or any officer, administrator or
head thereof, or any officer of the state of Louisiana, in any suit
or action involving the expenditure of public funds under any
statute or law of this state, when the director of such
department, board or agency or the governor shall certify that
the expenditure of such funds would have the effect of creating
a deficit in the funds of said agency or be in violation of the
requirements placed upon the expenditure of such funds by the
legislature. La. C.C.P. art. 3862.

“Mandamus is a writ directing a public officer ... to perform” “a

ministerial duty required by law.” Jazz Casino Company, L.L.C v. Bridges,

16-1663 (La. 5/3/17), 223 So. 3d 488, 492. “A ‘ministerial duty’ is one ‘in

which no element of discretion is left to the public officer,’ in other words,

‘a simple, definite duty, arising under conditions admitted or proved to exist,

and imposed by law.’” Id. at 492, citing Hoag v. State, 04-0857 (La.

12/1/04), 889 So. 2d 1019. “If a public officer is vested with any element of

discretion, mandamus will not lie.” Id. at 492, citing Landry v. City of

Erath, 628 So. 2d 1178 (La. App. 3 Cir. 1993).

In order to determine if the trial court properly sustained the City’s

exception of no cause of action, we must first determine if the requested

action in the writ of mandamus is a ministerial act.

Appellants rely upon La. R.S. 33:1969 (which mandates that firemen

receive equal compensation for equal performance); and La. R.S. 33:1992,

(which mandates the minimum salaries for firemen in the City and how

longevity pay is calculated), in arguing that the requested action is a

ministerial act. Appellants argue that the mandatory language of these

statutes removes from the city council any discretion to perform. Appellants

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further argue that they have no other legal mechanism to obtain payment of

the funds, as they have already exhausted ordinary proceedings as evidenced

by the May 6, 2019 judgment.

The state constitution divides governmental power among separate

legislative, executive, and judicial branches and provides that no one branch

shall exercise powers belonging to the others. Hoag v. State, supra, citing

La. Const., art. II, §§ 1 and 2. “This trichotomous branching of authority

furnishes the basis for the existence of an inherent judicial power that the

legislative and executive branches cannot abridge.” Id. “Likewise, the

judicial branch is prohibited from infringing upon the inherent powers of the

legislative and executive branches.” Id. Thus, when litigants seek to invoke

the power of the judiciary to compel another branch of government to

perform or act, care must be taken in examining whether the action is within

the confines of the judiciary’s constitutional authority. Id.

Newman Marchive Partnership, Inc. v. City of Shreveport, 07-

1890 (La. 4/8/08), 979 So. 2d 1262, held:

The constitution allocates the judiciary some power over
the other branches through article XII, section 10(A), where it
waives the State’s immunity in suits in contract and tort. See
Jones v. City of Baton Rouge, 388 So. 2d 737, 740 (La.1980).
Thus, the judicial branch is empowered to render judgments
against the state. Hoag v. State, 04-0857 (La. 12/1/04), 889
So.2d 1019. However, the constitution does not provide the
judiciary with the ability to execute those judgments…

Still, the combined effect of article XII, section 10(C)
and LSA-R.S. § 13:5109(B)(2) is clear. Judgments against a
political subdivision of the State may only be paid “out of funds
appropriated for that purpose by the named political
subdivision,” LSA-R.S. 13:5109(B)(2); Hoag, 04-0857, p. 5,
889 So. 2d at 1023, and under no circumstance shall “public
property or public funds ... be subject to seizure”.

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The constitution provides the judiciary the power to award a judgment

against a political subdivision, but reserves the power to execute the

judgment for the legislature.1 The legislature has statutorily created a

mechanism by which to execute judgments. See La. R.S. 13:5109(B)(2).

Though the City of Bastrop has a statutory mandate to adequately pay its

firemen, there is no statutory mandate to pay a judgment. Claims against the

state expressly require an appropriation of funds by the legislature or in this

case the city council. See Town of Sterlington v. Greater Ouachita Water

Company, 52,482 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1257, writs denied,

19-0913 (La. 9/24/19), 279 So.3d 386 and 19-0717 (La. 9/24/19), 279 So.3d

931.

This case falls squarely within the scope of La. Const. art. XII, §

10(C), and La. R.S. 13:5109(B)(2), and thus requires an appropriation of

funds by the legislature or the political subdivision against which a judgment

was rendered. Payment of a judgment is not ministerial act. Appellants, as

judgment creditors of the City of Bastrop, are required to use the statutory

mechanisms provided by the legislature for executing a judgment against a

political subdivision. Appellants must obtain an appropriation of funds by

the city council.

1
[T]he legislature by law may limit or provide for the extent of
liability of the state, a state agency, or a political subdivision in all cases,
including the circumstances giving rise to liability and the kinds and
amounts of recoverable damages. It shall provide a procedure for suits
against the state, a state agency, or a political subdivision and provide for
the effect of a judgment, but no public property or public funds shall be
subject to seizure. The legislature may provide that such limitations,
procedures, and effects of judgments shall be applicable to existing as well
as future claims. No judgment against the state, a state agency, or a
political subdivision shall be exigible, payable, or paid except from funds
appropriated therefor by the legislature or by the political subdivision
against which the judgment is rendered. La. Const. art. XII, § 10(C).

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Appellants’ request to enforce the May 6, 2019 judgment is not within

the judiciary’s purview to enforce, and it is not appropriate for a writ of

mandamus. The trial court did not err in granting the City of Bastrop’s

exception of no cause of action. As judgment creditors, appellants are not

entitled to circumvent La. R.S. 13:5109(B)(2), and request a writ of

mandamus.

Appellants also argue that the trial court incorrectly dismissed their

writ of mandamus with prejudice, though the parties agreed the matter

would be dismissed without prejudice. To preserve an evidentiary issue for

appellate review, it is essential that the complaining party enter a

contemporaneous objection to the ruling and state the reasons for the

objection. Robinson v. Healthworks Intern., L.L.C., 36,802 (La. App. 2 Cir.

1/29/03), 837 So. 2d 714, writ not cons., 03-0965 (La. 5/16/03), 843 So. 2d

1120; Currie v. Myers, 32,633 (La. App. 2 Cir. 1/26/00), 750 So. 2d 388,

writ not cons., 00-0665 (La. 3/17/00), 756 So. 2d 316. A review of the

records shows that at the conclusion of the hearing counsel for the City of

Bastrop presented a judgment that had been approved as to form by both

parties. The trial court later questioned why the prepared judgment stated

that the exception was rendered without prejudice and informed the parties

that the judgment should contain the “with prejudice” language. Counsel for

the City of Bastrop agreed with the trial court, while counsel for appellants,

who was present, remained silent. The record does not show that appellants’

counsel objected to the trial court’s ruling to dismiss the matter with

prejudice, as to preserve the issue for appellate review. As such, this

argument is not properly before this Court.

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CONCLUSION

For the reasons set forth above, the trial court’s judgment sustaining

the exception of no cause of action filed by the City of Bastrop and

dismissing with prejudice appellants’ writ of mandamus is AFFIRMED.

Costs of this appeal are assessed to plaintiffs-appellants.

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