Bennie L. Coker v. Town of Glenmora, Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1432

BENNIE L. COKER, ET AL.

VERSUS

TOWN OF GLENMORA, LOUISIANA, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 231,976
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Daniel E. Broussard, Jr.
Broussard, Halcomb & Vizzier
P. O. Box 1311
Alexandria, LA 71309-1311
(318) 487-4589
Counsel for Plaintiffs/Appellants:
Bennie L. Coker
Jean A. Johnson

Michael D. Hebert
Andrew J. Halverson
Milling Benson Woodward, LLP
101 La Rue France, Suite 200
Lafayette, LA 70508
(337) 232-3929
Counsel for Defendants/Appellees:
Town of Glenmora, Louisiana
Joseph L. Rivers, Mayor
Municipal Police Employees’ Retirement System

DECUIR, Judge.

Plaintiffs, Bennie L. Coker and Jean A. Johnson, filed suit against their

employer, the Town of Glenmora, seeking to recover unpaid contributions on their

behalf to the Municipal Police Employees’ Retirement System (MPERS). Plaintiffs

also filed suit against Mayor Joseph Rivers and MPERS itself, but those parties are

not part of this appeal. In response, the Town asserted a peremptory exception of

prescription which was maintained by the trial court to the extent that it limited

Plaintiffs’ claims to those arising after June 25, 2005, the three-year period

immediately prior to the Plaintiffs’ suit being filed. Coker and Johnson have

appealed that ruling. For the following reasons, we affirm.

At the time this suit was filed on June 25, 2008, Bennie Coker had served the

Town of Glenmora as Chief of Police for twenty-one years, having been first elected

in 1987. Jean Johnson served as the Assistant Chief of Police and was the only other

police employee for seven years. Louisiana Revised Statutes 11:2214 requires all

municipal police officers to be enrolled in MPERS unless the municipality enacted

an ordinance prior to January 1, 1978, exempting it from compliance with that

provision, or unless the municipality has secured an affidavit from the officer stating

his intention not to be a member of MPERS. The record before us establishes that

neither Coker nor Johnson was enrolled in MPERS, and neither had signed the

requisite affidavit, yet the Town of Glenmora did not have an ordinance exempting

it from compliance with La.R.S. 11:2214.

Plaintiffs’ suit seeks enrollment in MPERS and past due contributions on their

behalf retroactive to the date each began his employment as a police officer for the

Town. Coker specifically contends he was given incorrect information by the Town

Clerk when he was first elected Chief of Police. The clerk informed him that he was

ineligible for enrollment in a retirement system because he was an elected official.

Johnson contends he was told simply that the Town had no retirement system in

which he could be enrolled. Instead, both men had social security taxes withheld

from their paychecks. In 2007, the Town’s finances were reviewed by Louisiana’s

Legislative Auditor. When the auditor discovered that Plaintiffs were not enrolled

in MPERS as required by law, the current town clerk was instructed to look into

immediate enrollment for both Coker and Johnson. Subsequently, Plaintiffs instituted

this suit seeking to recover all contributions which should have been made by the

Town on their behalf since the date they first began their employment as police

officers.

The trial court issued written reasons for its judgment maintaining the Town’s

exception of prescription and limiting Plaintiffs’ claims to those arising after July 25,

2005, or three years prior to the date suit was filed. The trial court determined the suit

was one for unpaid wages, a claim which is subject to a three-year prescriptive period,

and cited La.Civ. Code art. 3494 and Fishbein v. LSU Health Sciences Center, 04-

2482 (La. 4/12/05), 898 So.2d 1260. The trial court also explained that Plaintiffs did

not assert an “affirmative action on the part of the Town of Glenmora that prevented

plaintiffs from pursuing a claim against the Town prior to the instant one. They

simply assert that neither Coker nor Johnson was aware of their eligibility until

December 2007 when they were so advised by the auditors.”

As an exception to the prescription argument raised by the Town, Plaintiffs rely

on the legal doctrine of contra non valentem. Under Louisiana law, the doctrine of

contra non valentem halts the running of prescription under certain circumstances.

Carter v. Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261. Here, Coker and Johnson

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contend prescription was suspended from the time the town clerk communicated

inaccurate information regarding their MPERS eligibility until they received correct

information from the legislative auditor in 2007. The trial court disagreed with their

argument:

The court finds that contra non valentem is not applicable here.
The defendants are not responsible for the plaintiffs’ lack of knowledge
regarding the law and regarding the duty owed by defendants under the
statute to contribute to MPERS on their behalf. If the defendant, or
agents of the defendant, misinformed the plaintiffs, this misinformation
and subsequent refusal by the Town to put the plaintiffs into MPERS did
not prevent the plaintiffs from taking advantage of a judicial remedy
against the defendant. When each of the plaintiffs’ requests for
participation in MPERS was denied, the plaintiff[s] then had
“information sufficient to excite attention and prompt further inquiry.”
[Stevens v. Bruce, 04-133, p. 8 (La. App. 3 Cir. 6/2/04), 878 So.2d 734,
739, citing Picard v. Vermilion P. Sch. Bd., 00-1222, p. 5 (La. App. 3
Cir. 4/4/01), 783 So.2d 590, 595, writ denied, 01-1346 (La. 6/22/01),
794 So.2d 794.]

Not knowing the law or that the law provides a remedy is not
equivalent to not knowing that the cause of action has arisen. . . Here,
[p]laintiffs were aware of the facts giving rise to their cause of action
and were not prevented from filing suit by the defendants’ refusal to
enroll the plaintiffs in MPERS.

The trial court’s resolution of the contra non valentem issue was a factual

determination of whether Coker and Johnson were indeed prevented from asserting

their claims as a result of the incorrect information communicated to them by the

Town’s administrative staff. The court resolved the issue in favor of the Town,

noting, “Ignorance of the law does not affect the running of prescription.” As this

court held in the Picard case, the trial court’s findings of fact on the issue of contra

non valentem are subject to the manifest error or clearly wrong standard of review.

In Deshotel v. Village of Pine Prairie, 09-670 (La.App. 3 Cir. 12/9/09), 26

So.3d 975, this court addressed a similar controversy involving a Pine Prairie police

officer who, in 1991, was misinformed about his MPERS eligibility and was

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consequently never enrolled in the state-wide retirement plan. This court specifically

found that Pine Prairie officials breached a duty to the plaintiff by giving him

inaccurate information, but that, nevertheless, his claim was subject to the three-year

prescriptive period set forth in La.Civ. Code art. 3494. Therefore, we held that when

“Deshotel filed suit in June 2007, the only claims that had not prescribed were those

from June 2004 forward.” Deshotel, 26 So.3d at 978. Similarly, in Fishbein, the

supreme court held that the three-year prescriptive period governing a state

employee’s cause of action against her employer for unpaid retirement contributions

began to run upon receipt of the first pay check, in 1980, which did not include the

full contribution. Consequently, the Fishbein plaintiff’s August 2000 suit was

prescribed as to all claims arising prior to August 1997.

Careful consideration of the record before us reveals no manifest error in the

trial court’s decision finding that the doctrine of contra non valentem is not

applicable to the facts of this case. It is axiomatic that ignorance of the law is no

excuse, yet that is exactly what Plaintiffs herein have asserted. Plaintiffs have offered

no evidence to suggest that they were prevented from asserting their claims timely.

Therefore, their claims were appropriately limited to those arising after June 25, 2005.

Finding no manifest error in the judgment rendered below, we hereby affirm.

Costs of this appeal are assessed to Bennie L. Coker and Jean A. Johnson.

AFFIRMED.

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