Ricky B. Davis v. Austin Industries, Inc. F/K/A Austin Industrial, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-772

RICKY B. DAVIS

VERSUS

AUSTIN INDUSTRIES, INC. F/K/A AUSTIN INDUSTRIAL, INC.

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2002-88
HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

Peters, J., dissents and assigns written reasons.

AFFIRMED AS AMENDED;
APPEAL DISMISSED.

Kenneth Michael Wright
Ike A. Hobaugh
Wright & Moreno, L.L.C.
203 West Clarence Street
Lake Charles, LA 70601-9431
(337) 439-6930
Counsel for Plaintiff/Appellant:
Ricky B. Davis

John S. Bradford
Stockwell, Sievert, Viccellio,
Clements & Shaddock, L.L.P.
P. O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
Counsel for Defendant/Appellee:
Austin Industries, Inc.

Allen J. Mitchell, II
Mitchell & Blanco
One Lakeshore Dr., Suite 1135
Lake Charles, LA 70629
(337) 436-8686
Counsel for Defendant/Appellee:
Austin Industries, Inc.

GREMILLION, Judge.

In this case, the plaintiff, Ricky B. Davis, appeals the judgment in favor

of the defendant, Austin Industries, Inc., granting its exception of no right of action.

For the following reasons, we affirm as amended and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Davis filed suit in January 2002, against his former employer, Austin,

urging that he was discriminated against based on his age. Austin filed an exception

of no right of action, prescription, and prematurity. Following a hearing in November

2004, the trial court rendered a written judgment in April 2005, dismissing Davis’

suit. Davis now appeals.

At the hearing on the exceptions, Austin withdrew the exception of

prescription. Davis testified that his former employer, IMC, was taken over by

Austin. He said that Austin had all the employees come to a group meeting and that

they were told if they did not sign the employment application they would be fired.

He stated that he had “no choice” but to sign the application. However, he admitted

that if he did not sign the agreement, he could have gone to work elsewhere.

Submitted into evidence was Davis’ signed employment application in which he

provided an extensive work history. Two paragraphs before his signature is the

following language:

If employed, I agree that my employment is at will, which means it can
be terminated with or without cause, and with or without notice, at any
time by either Austin or me. I agree to be bound by and accept as a
condition of employment the terms of Open Door, Austin’s dispute
resolution plan and rules, which are incorporated herein by reference.
I understand that Open Door requires as its last step the binding
arbitration of employment disputes regarding legally protected rights.

1

The “Open Door” dispute resolution pamphlet states:

Austin Industries and its affiliated subsidiaries, including Austin Bridge
& Road, Austin Commercial and Austin Industrial adopted Open Door
effective June 1, 1996 as the exclusive means for resolving all
workplace disputes including legally protected rights, such as sexual
harassment or discrimination based on age, sex or race. That means if
you accept or continue your employment with Austin after that date, you
agree to waive your right to a trial in a court of law, and you agree
instead to resolve all legal claims against Austin through Open Door
instead of through the court system. Austin likewise waives its right to
trial in a court of law and agrees to resolve such disputes through Open
Door.
....

Austin is an at-will employer. Open Door establishes a mandatory
program for the resolution of disputes arising from or related to
employment. Neither Austin nor Open Door guarantee employment or
create a contract for the employment of any person on a permanent basis
or for any period of time. You may leave Austin at any time for any
reason. Likewise, your employment may be terminated by Austin at any
time for any reason.

At the conclusion of the hearing, the trial court found that Davis was bound by the

arbitration agreement and granted Austin’s exception of no right of action.

DISCUSSION

Pursuant to Collins v. Prudential Insurance Company of America, 99-

1423 (La. 1/19/00), 752 So.2d 825, we find that Davis did not have the right to an

immediate appeal and we, therefore, dismiss it as inappropriately before this court.1

The supreme court in Collins discussed the standard a trial court must

utilize in determining whether it must compel arbitration:

1. The trial court must ensure that a valid arbitration
agreement exists between the parties; and,

1
An order compelling arbitration is not a final judgment. Collins, 752 So.2d 825.
Rather, it is an interlocutory judgment which can be appealed only if it resulted in an irreparable
harm. Id. Whether irreparable harm occurred is decided based on the facts and circumstances of
each individual case. Id.

2

2. The trial court must decide whether the dispute at issue
falls within the scope of the agreement.

Only if the trial court “has committed a clear error in ordering

arbitration, will supervisory relief be appropriate based on the facts and circumstances

of a particular case.” Id. at 831. The supreme court further stated that in keeping

with its policy of favoring arbitration, relief from the court of appeal “should be

granted only sparingly.” Id.

First, there is no doubt that the dispute at issue falls within the scope of

the agreement. Davis is alleging he was discriminated against based on his age, which

the Open Door policy particularly addresses. Accordingly, the trial court committed

no error in relation to that prong. Second, the trial court found that a valid arbitration

agreement existed between the parties. We find no error in that finding. Davis signed

an employment application agreeing that his employment was at-will and that he

accepted the Open Door Policy as a condition of his employment. The trial court’s

conclusion is certainly not unreasonable. Accordingly, this case is not appropriately

before us on the merits. However, we note that the trial court dismissed Davis’ case

on the basis of no right of action. The correct procedural device is the exception of

prematurity. Accordingly, we amend the trial court’s judgment to dismiss Davis’ case

on the basis of Austin’s exception of prematurity. Davis’ right of action has not yet

abated.

CONCLUSION

This appeal is dismissed. The order of the trial court dismissing Davis’

suit is affirmed, however, based on an exception of prematurity. All costs of this

appeal are assessed against the plaintiff-appellant, Ricky B. Davis.

AFFIRMED AS AMENDED; APPEAL DISMISSED.

3

This opinion is NOT DESIGNATED FOR PUBLICATION, Uniform
Rules—Courts of Appeal, Rule 2-16.3.

4

NUMBER 06-772

COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

RICKY B. DAVIS

VERSUS

AUSTIN INDUSTRIES, INC. F/K/A AUSTIN INDUSTRIAL, INC.

PETERS, J., dissenting.

The majority correctly concluded that the trial court erred in granting Austin’s

exception of no right of action. The function of that exception is to determine

whether Mr. Davis belongs to a class of persons to whom the law grants the cause of

action asserted in the suit. Turner v. Busby, 03-3444 (La. 9/9/04). Clearly Mr. Davis

belongs to that class of persons. However, I find that the majority erred in

recognizing an exception of prematurity and dismissing the matter on that basis.

While that action might be an efficient means of disposing of the litigation, I find no

legal authority for that action given the fact that the trial court has not acted on that

exception.

In rendering its decision, the trial court specifically stated that “I’m not called

upon to rule on prescription or prematurity at this time.” Thus, the trial court did not

find that Mr. Davis’ claim was premature, but rather that he had no claim at all. Thus,

the effect of the majority opinion is to consider an issue not yet ruled on by the trial

court. See Uniform Rules—Courts of Appeal, Rule 1-3. Additionally, while La.Code

Civ.P. art. 927(B) provides that the court of appeal may recognize certain exceptions

on its own motion, the exception of prematurity is not one of those exceptions.

I would reverse the judgment and remand the matter to the trial court for further

proceedings.