City of Breaux Bridge v. Charles Thibodeaux

(NOT FOR PUBLICATION)

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-851 C/W 11-852

CHARLES THIBODEAUX, ET AL.

VERSUS

CITY OF BREAUX BRIDGE

AND

CITY OF BREAUX BRIDGE

VERSUS

CHARLES THIBODEAUX, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, DOCKET NO. 72,633 and 72,666
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John D. Saunders and Shannon J. Gremillion,
judges.

AFFIRMED.

Michael D. Hebert
Milling, Benson, Woodard, LLP
101 La Rue France, Suite 200
Lafayette, LA 70508
(337) 232-3929
Attorney for Defendant/Appellee, City of Breaux Bridge

Dawn N. Guillot
P.O. Box 80819
Baton Rouge, LA 70898
(225) 383-0304
Attorney for Plaintiffs/Appellants Charles Thibodeaux, Et Al.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Charles Thibodeaux, Aline Dardar, Myra Montet, Dickie Davitt, and Diana

Batiste, (Plaintiffs) municipal police officers for the City of Breaux Bridge,

(Breaux Bridge) filed suit against Breaux Bridge alleging they were improperly

denied participation in the Municipal Police Employees‟ Retirement System

(MPERS). The beginning dates of employment for Plaintiffs ranged from 1979 to

1993. Plaintiffs allege that, although under the provisions of La.R.S. 11:2213 they

are all entitled to participate in the MPERS, Breaux Bridge has never made any

contributions to the MPERS on behalf of any of Plaintiffs. Instead, Breaux Bridge

has paid into the federal social security retirement system for these employees.

Plaintiffs made demands on Breaux Bridge to enroll them in the MPERS but

Breaux Bridge responded that it was not required to enroll Plaintiffs in the system.

Plaintiffs filed suit on October 19, 2007. Breaux Bridge subsequently filed a

Petition for Declaratory Judgment. Plaintiffs filed an exception of lis pendens.

The trial court denied Plaintiffs‟ exception and consolidated the two actions.

Breaux Bridge then filed an Exception of Prescription. The parties submitted the

matter on briefs. No evidence was presented to the trial court.

The trial court ruled Plaintiffs‟ claims for contributions prior to October 19,

2004, (three years before suit was filed in 2007), were prescribed and, therefore,

dismissed. The trial court designated its judgment as a final judgment subject to

immediate appeal.

Plaintiffs appeal this ruling alleging two assignments of error asserting that

the trial court erred in applying the three year prescriptive period of La.Civ. Code

art. 3494(1) and in finding their claims are exigible each time Breaux Bridge failed

to make a monthly contribution to the MPERS on behalf of each Plaintiff.

Plaintiffs did not appeal the trial court‟s denial of their exception of lis pendens.

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DISCUSSION

Plaintiffs acknowledge that this court has previously ruled in two cases that

the three year prescriptive period found in La.Civ. Code art. 3494(1) applies to

such claims and argues our reliance in those cases on the Louisiana Supreme

Court‟s ruling in Fishbein v. State ex rel. La. State University Health Sciences

Center, 04-2482 (La. 4/12/05), 898 So.2d 1260 is misplaced. We disagree. For

the reasons set forth below we affirm the trial court‟s ruling.

Contrary to Plaintiffs‟ arguments, our decisions in Deshotels v. Village of

Pine Prairie, 09-670 (La.App. 3 Cir. 12/9/09), 26 So.3d 975, writ denied 10-429

(La. 4/30/10), 34 So.3d 293 and Coker v. Town of Glenmora, 09-1432 (La.App. 3

Cir. 5/5/10), 37 So.3d 532, writ denied 10-1302 (La. 10/1/10), 45 So.3d 1096 are

applicable to this case and properly relied upon the supreme court‟s ruling in

Fishbein. The Louisiana supreme court‟s holding in Fishbein is likewise

applicable. We reject Plaintiffs‟ assertion that this is a contract dispute and

therefore subject to the ten year prescriptive period provided in La.Civ.Code art.

3499. As the Louisiana supreme court held in Grabert v. Iberia Parish School

Board, 93-2715 (La. 7/5/94), 638 So.2d 645, 647: (emphasis in original)

This petition to recover underpaid „compensation for services
rendered‟ is admittedly a personal action as defined by Louisiana
Civil Code of Procedure article 422. However, the ten year
prescriptive period set forth in article 3499, is only applicable to
personal actions „unless otherwise provided for by legislation.‟
La.Civ.Code art 3499. The prescriptive period for the instant
consolidated suits for the recovery of underpaid wages is otherwise
provided for in article 3494, for that article, as earlier indicated,
provides a three year prescriptive period for personal actions seeking
„compensation for services rendered.‟

As the Louisiana supreme court stated in Fishbein:

This court has recognized that retirement contributions represent „an
increasingly important part of an employee‟s compensation for his
services.‟ Andrepont v. Lake Charles Harbor & Terminal Dist., 602
So.2d 704, 708 (La. 1992). Because of this, many courts have found
in a variety of factual contexts that retirement benefits are deferred
compensation for services. Id. In T.L. James & Co., Inc. v.

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Montgomery, 332 So.2d 834, 851 (La. 1975) (on rehearing), this court
concluded that an employer‟s contribution into a retirement-type plan
„is not a purely gratuitous act, but it is in the nature of additional
remuneration to the employee who meets the conditions of the plan.
The employer expects and receives something in return for his
contribution, while the employee, in complying, earns the reward.
The credits to these plans, when made, are in the nature of
compensation (although deferred until contractually payable).‟
Relying on this portion of T.L. James, the Andrepont court concluded
there is ample support for determining that contributions to retirement
plans are among the emoluments of employment and can be
considered deferred compensation. Andrepont, 602 So.2d at 708.

We reaffirm our previous statements that contributions to retirement
plans are a form of deferred compensation. Consequently, we find
that plaintiff‟s claim is one for compensation for services rendered.
The applicable prescriptive period, then, is found in La. C.C. art.
3494, which provides that an action for the recovery of compensation
for services rendered is subject to a liberative prescription of three
years.

Fishbein, 898 So.2d at 1265-66 (emphasis added).

Louisiana Civil Code Article 3494 provides in pertinent part: (emphasis added)

The following actions are subject to a liberative prescription of
three years:

(1) An action for the recovery of compensation for services
rendered, including payment of salaries, wages, commissions,
tuition fees, professional fees, fees and emoluments of public
officials, freight, passage, money, lodging, and board; …

Because this matter was submitted on briefs by agreement of both parties, no

evidence was introduced at trial. When no evidence is presented an exception of

prescription must be decided based upon the facts of the pleadings. Denous v.

Vessel Management Services, Inc., 07-2143(La. 5/21/08), 983 So.2d 84. Plaintiffs‟

petition alleges that Breaux Bridge made no contributions to Plaintiffs‟ retirement

plan with the MPERS and further alleges that Breaux Bridge should have made

such contributions on behalf of Plaintiffs. The petition also alleges Breaux Bridge

wrongfully failed and/or refused to make contributions to the retirement system for

Plaintiffs and failed to enroll Plaintiffs in the MPERS. The petition seeks relief in

the form of a judgment requiring Breaux Bridge to “make any and all payments to

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the MPERS” on behalf of Plaintiffs as wells as requiring Breaux Bridge “to allow

the petitioners to participate in MPERS” and make appropriate future contributions

to that retirement system for Plaintiffs. The judgment from which Plaintiffs appeal

grants Breaux Bridge‟s Exception of Prescription and limits Plaintiffs‟ claims to

those arising after October 19, 2004, a period of three years prior to the date

Plaintiffs filed suit. The judgment does not determine whether Breaux Bridge can

be compelled to enroll Plaintiffs in the MPERS. Thus, the matter before us only

concerns whether the trial court properly limited Plaintiffs‟ potential recovery to a

three year period prior to the filing of their action. Plaintiffs seek compensation in

the form of retirement benefits which they claim Breaux Bridge did not pay, but

should have paid, into this retirement system for municipal employees such as

these police officers.

We have addressed this issue twice before in both Coker and Deshotels. In

Coker, two police chiefs for the city sued the Town of Glenmora seeking recovery

of contributions to MPERS which the town had not made on their behalf. They

also sought enrollment in the MPERS. We upheld the trial court‟s ruling which

found that the plaintiffs‟ claims were for unpaid wages and therefore subject to the

three year liberative prescriptive period provided in La.Civ.Code art. 3494. We

further note that in Coker, this court rejected the plaintiffs‟ reliance on the legal

doctrine of contra non valentem as an exception to the prescription argument. As

we stated in Coker, 37 So.3d at 534: (emphasis in original)

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 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 the

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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.

In Deshotels, we found the defendant breached its duty to the employee but

nevertheless found that his claim was subject to the three year liberative

prescriptive period provided in La.Civ.Code art. 3494. Likewise, we find no error

in the trial court‟s ruling in this case which limits Plaintiffs‟ claims to a period of

three years prior to the filing of their lawsuit. For the reasons as stated the

judgment of the trial court is affirmed with all costs of this appeal to be paid by

Plaintiffs.

AFFIRMED.

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