Brandon L. Smith v. City of Marksville

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-46

BRANDON L. SMITH
VERSUS

CITY OF MARKSVILLE, ET AL.

oe eB oR ok EK

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2016-3329-A
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

a ok KK KEKE

VAN H. KYZAR
JUDGE

eR RE ER oe

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar,
Judges.

AFFIRMED.

Daniel E. Broussard, Jr.

Broussard, Halcomb & Vizzier

P. O. Box 1311

Alexandria, LA 71309-1311

(318) 487-4589

COUNSEL FOR PLAINTIFF/APPELLANT:
Brandon L. Smith

Derrick M. Whittington

Whittington Law Firm

P. O. Box 127

Marksville, LA 71351

(318) 253-5852

COUNSEL FOR DEFENDANTS/APPELLEES:
City of Marksville
Mayor John E. Lemoine

KYZAR, Judge.

The plaintiff, Brandon L. Smith, appeals from a trial court judgment
sustaining an exception of no cause of action in favor of the defendants, the City of
Marksville and Mayor John H. LeMoine, and dismissing his petition for writ of
mandamus. For the reasons set forth herein, we affirm the decision of the trial
court.

FACTS AND PROCEDURAL HISTORY

Smith, a fireman with the Marksville Fire Department, through the City of
Marksville, also serves as a volunteer fireman for the Fifth Ward Volunteer Fire
Department in Avoyelles Parish. He was injured on February 20, 2016, while
fighting a house fire on Highway 114 in Avoyelles Parish and allegedly was unable
to return to his employment with the Marksville Fire Department due to
complications from smoke inhalation. On July 25, 2016, Smith filed a petition for
writ of mandamus and/or declaratory judgment and mandatory injunction against
the City of Marksville and Mayor John E. LeMoine (referred to collectively as
“Marksville”) for sick leave benefits as a fireman pursuant to La.R.S. 33:1995.

Marksville responded by filing exceptions of no cause of action and
improper use of summary proceedings. In support of its exceptions, it argued that
Smith’s petition failed to state a cause of action for mandamus because the action
he was requesting it to perform was discretionary in nature. It further argued that
by combining the mandamus request with the declaratory judgment request, Smith
had improperly combined a summary-process action with an ordinary-process
action. Smith thereafter amended his petition to solely plead the demand for a writ

of mandamus, omitting the alternate declaratory judgment and mandatory

It is unclear whether Smith was working in his capacity as a Marksville Fire Department
employee or was engaged as a volunteer fireman at the time of his injuries. However, that
determination is not necessary for the disposition of his claims herein.

injunction actions. Following a November 18, 2016 hearing, the trial court
sustained Marksville’s exception of no cause of action and dismissed Smith’s
petition for writ of mandamus. This appeal followed.

ASSIGNMENTS OF ERROR
Smith raises two assignments of error on appeal, as follows:

1. The decision of the trial court of sustaining the exceptions filed
by the defendants and dismissing plaintiff's suit is manifestly
erroneous as a matter of law.

2. The trial court erred in failing to recognize that plaintiff stated a
cause of action for a writ of mandamus to be issued against the
defendants for an abuse of their discretion.

ANALYSIS
The standard of appellate review for an exception of no cause of action is

well settled. In Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114,
118-19 (citations omitted), the supreme court stated:

A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise to the
plaintiff's right to judicially assert the action against the defendant.
The function of the peremptory exception of no cause of action is to
test the legal sufficiency of the petition, which is done by determining
whether the law affords a remedy on the facts alleged in the pleading.
No evidence may be introduced to support or controvert an exception
of no cause of action. Consequently, the court reviews the petition
and accepts well-pleaded allegations of fact as true. The issue at the
trial of the exception is whether, on the face of the petition, the
plaintiff is legally entitled to the relief sought.

Appellate courts review the grant or denial of a peremptory exception of no cause
of action de novo. Salem v. City of Alexandria, 10-1039 (La.App. 3 Cir. 2/2/11),
56 So.3d 457. Smith argues it was legal error for the trial court to find that he
failed to state a cause of action for a writ of mandamus to compel Marksville to

grant him sick leave benefits pursuant to La.R.S. 33:199. In his petition, Smith

2
The amendment of the petition to delete alternate request for declaratory judgment and
mandatory injunction rendered the exception of improper use of summary process moot.
2

sought to compel Marksville to pay him sick leave benefits pursuant to La.R.S.

33:1995, which provides as follows:

Every fireman in the employ of a municipality, parish or fire
protection district to which this Sub-part applies, shall be entitled to
full pay during sickness or incapacity not brought about by his own
negligence or culpable indiscretion for a period of not less than fifty-
two weeks.

He argues that this provision imposes a mandatory legal obligation on Marksville,
as opposed to a discretionary or conditional obligation, such that a writ of
mandamus ts the proper procedural vehicle to compel compliance therewith. We
disagree.

The remedy of mandamus is not available in matters in which discretion and
the evaluation of evidence must be exercised, even to the slightest degree. Messer
v. Dep’t of Corrs., La. State Penitentiary, 385 So.2d 376, 378 (La.App. 1 Cir.),
writ denied, 386 So.2d 1379 (La.1980).

“Mandamus is a writ directing a public officer or a corporation
or an officer thereof to perform any of the duties set forth in Articles
3863 and 3864.” La. C.C.P. art. 3861. Pursuant to La. C.C.P. art.
3863, “[a] writ of mandamus may be directed to a public officer to
compel the performance of a ministerial duty required by law, . . . [.]”
Further, “[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 ordinary relief may cause injustice .. . [.]” La. C.C.P. art.
3862; Board of Trustees of Sheriff's Pension and Relief Fund v. City
of New Orleans, 02-0640 (La.5/24/02), 819 So.2d 290, 291
(“mandamus is an extraordinary remedy which should be applied only
where ordinary means fail to afford adequate relief’). This Court has
explained that “mandamus will only issue where the action sought to
be compelled is ministerial in nature, i.e., where it contains no
element of discretion.” Newman Marchive Partnership, Inc. v. City of
Shreveport, 07-1890 (La.4/8/08), 979 So.2d 1262, 1269; Hoag v.
State, 04-0857 (La.12/1/04), 889 So.2d 1019, 1023. In Hoag, we
defined a ministerial duty as a “simple, definite duty, arising under
conditions admitted or proved to exist, and imposed by law.” 889
So.2d at 1024.

Aberta, Inc. v. Atkins, 12-61, pp. 2-3 (La. 5/25/12), 89 So.3d 1161, 1163.

A fireman only receives the benefits provided by La.R.S. 33:1995 if his
injuries or incapacity did not arise from his own negligent actions. Thus, the
decision of whether to pay a fireman these benefits rests within the discretion of
the municipality, parish, or fire protection district for which the fireman is
employed. We further note that by initially combining his request for a writ of
mandamus with an alternative claim for declaratory judgment, Smith
acknowledged that he had another remedy available by which he could pursue the
benefits through ordinary procedure.

Accordingly, we find that the trial court was correct in sustaining
Marksville’s exception of no cause of action as to the petition for writ of
mandamus.

DISPOSITION
For the reasons assigned herein, we affirm the judgment of the trial
court sustaining the exception of no cause of action in favor of the City of
Marksville and Mayor John H. LeMoine. Costs of appeal are assessed to Brandon
L. Smith.

AFFIRMED.

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