Luba Workers Comp & TruCare Home Health, LC v. Rebecca Sears

Judgment rendered October 1, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,489-WCA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

LUBA WORKERS COMP AND Plaintiffs-Appellants
TRUCARE HOME HEALTH, LLC

versus

REBECCA SEARS Defendant-Appellee

*****

Appealed from the
Office of Workers’ Compensation, District 1-E
Parish of Ouachita, Louisiana
Trial Court No. 2306058

Brenza Irving Jones
Workers’ Compensation Judge

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PARKER & LANDRY, LLC Counsel for
By: Keith Joseph Landry Plaintiffs-Appellants
Charles Taylor Matthews

STREET & STREET Counsel for
By: Curtis Daniel Street Defendant-Appellee

*****

Before PITMAN, STEPHENS, and HUNTER, JJ.

HUNTER, J.

The insurer, LUBA Worker’s Compensation, and the employer,

TruCare Home Health, LLC, appeal the judgment of the Workers’

Compensation Judge which granted a motion to strike, sustained a

peremptory exception of no cause of action filed by the employee, Rebecca

Wilhite Sears, and denied the employer’s request to file a second amended

disputed claim for compensation. For the following reasons, we reverse the

judgment and remand this matter for further proceedings.

FACTS

On February 14, 2014, Rebecca Wilhite Sears, was involved in a

motor vehicle accident in Monroe, Louisiana, during the course and scope of

her employment with the employer, TruCare Home Health, LLC

(“TruCare”). Ms. Sears suffered injuries to her neck and back, and she

received workers’ compensation benefits for those injuries.

On November 20, 2023, TruCare and its workers’ compensation

insurer, LUBA Workers Comp. (collectively “LUBA”), filed a Disputed

Claim for Compensation and attached an addendum. LUBA alleged as

follows:

Claimant provided intentional false statements and
misrepresentations in violation of La. R.S. 23:1208. The false
statements and misrepresentations were made to medical
providers regarding her injuries, condition, limitations, and
restrictions related to the work injury. See the attached
Addendum filed herewith.

In the addendum attached to the claim, LUBA asserted that between

November of 2021 and July of 2023, Ms. Sears reported to her medical

providers that she suffered radicular, acute pain, which was aggravated by

life activities such as walking, bending or prolonged sitting. Apparently,

because of Ms. Sears’ statements, her medical providers opined that she

needed additional medical treatment and services. LUBA also alleged that

contrary to Ms. Sears’ representations, she can perform daily activities

“without apparent limitations or restrictions, and without assistance.”

LUBA also asserted Ms. Sears made false statements and misrepresentations

for the purpose of obtaining additional compensation benefits, and she

possibly violated La. R.S. 23:1208(A), (C), (D), and (E), which mandated

the forfeiture of her future benefits and restitution for the benefits previously

issued to her.

On February 12, 2024, Ms. Sears filed an answer to the petition.

Within the answer, she clarified the state of her health and the statements she

made to her medical providers. Ms. Sears denied making false statements to

her medical providers or committing fraud.

On May 9, 2024, Ms. Sears filed a “Peremptory Exception of No

Cause of Action” and a memorandum in support thereof. Within the

exception, Ms. Sears contended that LUBA failed to state a claim under La.

R.S. 23:1208, pursuant to La. C. C. P. art. 856, which reads as follows in

pertinent part: “In pleading fraud or mistake, the circumstances constituting

fraud or mistake shall be alleged with particularity.” According to Ms.

Sears, the pleadings filed by LUBA contained a general time frame and

failed to describe any specific misrepresentation or false statement. Ms.

Sears prayed that the claims be dismissed with prejudice. Within the

memorandum in support, Ms. Sears asserted that she gave LUBA an

opportunity to identify particular false statements via interrogatories, but

apparently, it objected to the interrogatories and claimed that “surveillance

information was involved.”
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On June 4, 2024, LUBA filed a “Memorandum In Opposition” to the

exception of no cause of action, asserting that Ms. Sears failed to file her

responsive pleading within 60 days from service of the citation.

Additionally, LUBA argued that Ms. Sears’ exception was a “thinly veiled

attempt” at asserting vagueness – although she had already waived asserting

a dilatory exception when she failed to file her responsive pleading timely.

A hearing was held concerning this matter on June 17, 2024. At the

conclusion of the hearing, the WCJ sustained the exception of no cause of

action, stating:

Okay. The question becomes, if you complied with Code of
Civil Procedure Article 856, which specifically says, “In
pleading fraud or mistake, the circumstances constituting fraud
or mistake shall be alleged with particularity,” I find that it is
not. You made general statements, you gave general dates, and
you gave a bunch of medical providers, but there was no
particularity in reference to what fraud was committed in
reference to these doctors.

And so I am sustaining the exception of no cause of action.
You may amend to show the specific dates and to show to
whom the statement was made and exactly what the statement
was. Just to simply say that she made statements to over ten
different providers concerning her abilities is not enough. It’s
general. It’s general. And 856 is contrary to it being general.
And so I’m sustaining the exception of no cause of action. You
can send me a judgment within the next ten days, please.
Thank you both.

The WCJ granted LUBA leave to amend the claim “to show the

specific dates and to show to whom the statement was made and exactly

what the statement was,” and ordered LUBA “to amend their 1008/Petition

within 15 days of the Notice of the signing of this judgment[.]” The WCJ

further ruled that “in default of such amendment, Plaintiffs’ claims are

dismissed with prejudice.” The notice of the signing of the interlocutory

judgment was issued on June 28, 2024.

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On July 2, 2024, LUBA filed a notice of intent to apply for

supervisory review. On July 8, 2024, the WCJ ordered LUBA to file the

application on or before July 17, 2024. The application for supervisory

review was filed July 17, 2024, and by order dated August 23, 2024, this

Court denied the writ application, finding that an exercise this Court’s

supervisory jurisdiction was not warranted.

On September 23, 2024, LUBA filed a “First Amended Disputed

Claim for Compensation reasserting the claims alleged in the original claim.

LUBA further alleged “the fraud committed by [Ms. Sears] by reference to

Exhibit One to this Amended 1008 Disputed Claim for Compensation.” As

an addendum, LUBA attached a “Table of Statements in Support of La. R.S.

23:1208 Violations,” which set forth specific statements Ms. Sears allegedly

made to various medical providers from October 2021, through April 2024.

On September 24, 2024, Ms. Sears filed a Motion to Strike, arguing

that LUBA did not file an amended petition within 15 days of the date of the

notice of the signing of the judgment. Therefore, according to Ms. Sears, the

interlocutory judgment sustaining the exception of no cause of action was

final because LUBA did not appeal the judgment and did not request a stay

of the proceedings while they sought supervisory review.

A hearing was held on October 28, 2024. The WCJ granted the

motion to strike and dismissed LUBA’s claims with prejudice, stating:

***
All right. So let the record reflect that an exception of no cause
of action was filed by the defendant in this matter, and the
Court granted that exception and allowed the plaintiff or
petitioner time to amend their pleading. The Court notes that
instead of amending the pleadings, the petitioner gave notice of
their intent to file an application for supervisory writ. This
Court signed an order allowing them to do so, or at least
provide a date for the writ application to be filed on or before.
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The Court notes that there was no request made by the
petitioners to stay the effect of the judgment. No application for
a stay was made to this Court. No application for a stay was
made to the Court of Appeal[.] Eventually, the Second Circuit
Court of Appeal denied the plaintiffs’ writ application.

Jurisprudence has held a writ application does not stay further
proceedings unless the trial court or appellate court expressly
orders otherwise. Therefore, the petitioner had only two choices
in this case: one, to comply with the judgment and amend the
pleadings; or request a stay. Neither occurred. Thus, the matter
was actually dismissed with prejudice based on the judgment
previously signed by this Court.
***

LUBA appeals.1

DISCUSSION

LUBA contends the WCJ erred in granting the motion to strike,

sustaining the exception of no cause of action, and dismissing the disputed

claim with prejudice. LUBA argues the WCJ entered an interlocutory

judgment on the exception, and interlocutory judgments are not self-

executing and do not automatically result in a dismissal.

In reviewing a trial court’s ruling sustaining an exception of no cause

of action, the appellate court should conduct a de novo review because the

exception raises a question of law and the trial court’s decision is based only

on the sufficiency of the petition. La. C.C.P. art. 927; Indus. Companies, Inc.

v. Durbin, 02-0665 (La. 1/28/03), 837 So. 2d 1207; Robinson v. Allstate Ins.

Co., 53,940 (La. App. 2 Cir. 5/26/21), 322 So. 3d 381, writ denied, 21-

00906 (La. 10/19/21), 326 So. 3d 264.

La. C.C.P. art. 934 provides:

When the grounds of the objection pleaded by the peremptory
exception may be removed by amendment of the petition, the

1
Ms. Sears filed a motion to dismiss the appeal as untimely and requested
damages for frivolous appeal. This Court denied the motion and request for damages.
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judgment sustaining the exception shall order such amendment
within the delay allowed by the court. If the grounds of the
objection raised through the exception cannot be so removed, or
if the plaintiff fails to comply with the order to amend, the
action, claim, demand, issue, or theory shall be dismissed.

A judgment granting an exception of no cause of action, but providing

leave to amend the petition, is not a final judgment or an interlocutory

judgment subject to appeal. Rather, such a judgment merely permits an

amendment within the delay allowed by the trial court as provided by La.

C.C.P. art. 934. Neville v. LCMC Health Holdings, Inc., 25-00417 (La.

6/17/25), 411 So. 3d 627. Hence, even if the delay period within which to

amend has passed, the plaintiff may still amend unless the defendant has

moved for dismissal. Jones v. Cisneros, 20-0582 (La. App. 4 Cir. 4/7/21),

315 So. 3d 959, Henry v. Bd. of Sup’rs of La. Cmty. & Tech. Coll. Sys., 19-

1672 (La. App. 1 Cir. 9/18/20), 313 So. 3d 1009; Burniac v. Costner, 18-

1709 (La. App. 1 Cir. 5/31/19), 277 So. 3d 1204.

The court, on motion of a party or on its own motion, may at any time

and after a hearing order stricken from any pleading any insufficient demand

or defense or any redundant, immaterial, impertinent, or scandalous matter.

La. C.C.P. art. 964. Whether a motion to strike should be granted pursuant

to Article 964 rests in the sound discretion of the trial court and is reviewed

under the abuse of discretion standard. Thurman v. Aguilar, 21-1514 (La.

App. 1 Cir. 6/22/22), 343 So. 3d 784, writ denied, 22-01110 (La. 11/1/22),

349 So. 3d 7; Cole v. Cole, 18-0523 (La. App. 1 Cir. 9/21/18), 264 So. 3d

537.

Motions to strike are disfavored and infrequently granted. This is

because striking a portion of a pleading is a drastic remedy, and because

motions to strike are often sought by the movant simply as a dilatory tactic.
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Id. However, a motion to strike is proper if it can be shown that the

allegations being challenged are so unrelated to a plaintiff’s claims as to be

unworthy of any consideration and that their presence in the pleading would

be prejudicial to the moving party. A motion to strike is a means of clearing

up the pleadings, not a means of eliminating causes of action or substantive

allegations. Id.

In the instant case, as stated above, the WCJ granted LUBA leave to

amend its petition within 15 days of the notice of the signing of judgment.

In response, LUBA exercised its right to seek supervisory review of the

WCJ’s ruling. This Court denied LUBA’s writ application on August 23,

2024, and LUBA filed amended petition on September 23, 2024. Although

the delay period within which to amend the petition had passed, LUBA was

still entitled to amend because Ms. Sears did not move for dismissal prior to

the amendment. Ms. Sears did not file her motion to strike until September

24, 2024, the day after the amended petition was filed. Accordingly, we find

the WCJ erred in granting the motion to strike the amended petition,

sustaining the exception of no cause of action based on the failure to amend

the petition within 15 days, and dismissing the claims with prejudice.

CONCLUSION

For the reasons set forth herein, the judgment of the WCJ granting the

motion to strike the amended petition, sustaining the exception of no cause

of action, and dismissing the claims with prejudice, is hereby reversed, and

this matter is remanded for further proceedings. Each party is to bear its

own costs associated with this appeal.

REVERSED; REMANDED.

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