Acadiana Renal Physicians, Amc v. Precious Hodges

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-302

ACADIANA RENAL PHYSICIANS, AMC

VERSUS

PRECIOUS HODGES

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2023-6080
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

**********

Court composed of Candyce G. Perret, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED.

Charlotte C. Meade
Meade Young, LLC
400 Poydras Street, Suite 1680
New Orleans, Louisiana 70130
(504) 416-3975
COUNSEL FOR PLAINTIFF/APPELLANT:
Acadiana Renal Physicians, AMC

Monica V. Bowers
Attorney at Law
1200 Camellia Blvd., Suite 205
Lafayette, Louisiana 70508
(337) 406-9615
COUNSEL FOR DEFENDANT/APPELLEE:
Precious Hodges

PERRY, Judge.

This case involves a petition for damages for breach of an employment

agreement brought by the employer against a nurse practitioner formerly employed

by it. Also, the employer’s petition seeks a declaratory judgment to have the court

judicially determine that its actions following the employee’s resignation did not

constitute racial discrimination and retaliation. The trial court sustained the

employee’s peremptory exceptions of no cause of action and no right of action and

dismissed the employer’s petition for damages as well as its petition for declaratory

judgment. We affirm the trial court’s judgment dismissing the employer’s petition

for declaratory relief, reverse the trial court’s judgment dismissing the employer’s

petition for breach of contract, and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to its pleadings, Acadiana Renal Physicians, AMC (“ARP”)

offered Precious Hodges (“Ms. Hodges”) a written contract to provide nurse

practitioner services on a full-time basis.1 The pleading further states that the

contract provided a one-year term of employment, and that one-year term

automatically renewed for successive one-year terms, unless either party gave notice

1
The written contract is neither part of ARP’s petition nor incorporated by reference as an
attachment to the petition. However, it does appear in the appellate record as an attachment to a
memorandum filed by Ms. Hodges. In pleading her peremptory exceptions Ms. Hodges states,
“Pursuant to La. Code Civ. P. art. 853, Defendant adopts by reference her . . . memorandum in
support of these exceptions.”

Louisiana Code of Civil Procedure Article 853 states in pertinent part: “A copy of any
written instrument that is an exhibit to a pleading is a part thereof.” As provided in La.Code Civ.
P. art. 852, “The pleadings allowed in civil actions, whether in a principal or incidental action, shall
be in writing and shall consist of petitions, exceptions, written motions, and answers.” A
memorandum does not constitute a pleading. Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94),
646 So.2d 859. But see La.Code Civ.P. art. 965 which treats memorandums differently for
purposes of a motion for summary judgment. Accordingly, we do not find that the contract
attached as an exhibit to the memorandum of Ms. Hodges may be considered. Thus, we are bound
to only consider the written allegations of ARP’s petition which purportedly detail the contents of
the employment contract.

of at least ninety days of their intent for the contract to not renew for another one-

year term.

Additionally, the petition alleges that the initial contract term began on

February 1, 2019, and ran to February 1, 2020. It renewed for another one-year term

on February 1, 2020, to February 1, 2021. This repeated with one-year contracts

being completed for the term February 1, 2021, to February 1, 2022, whereupon the

contract automatically renewed again, making Ms. Hodges bound for the term

February 1, 2022, to February 1, 2023, and then again from February 1, 2023, to

February 1, 2024. At no time before February 1, 2023, did either ARP or Ms.

Hodges give notice of the termination and non-automatic renewal of the contract.

The petition further states that on September 18, 2023, Ms. Hodges informed

ARP that she would be resigning her employment effective October 9, 2023, to take

a new position as nurse practitioner with Ochsner Lafayette General. At that point,

ARP informed Ms. Hodges that she was under contract, and that she was required to

have given ninety days’ notice before the automatic renewal, which did not occur.

Beyond that, ARP’s petition alleges that it has not been able to replace Ms.

Hodges, causing it to suffer economic injury, lost productivity, and damage to its

reputation. Additionally, ARP alleges that it paid Ms. Hodges for vacation time that

she did not earn for the 2023–2024 term of employment.2

Lastly, ARP alleges that after it notified Ms. Hodges that she was in breach of

contract, Ms. Hodges’s counsel wrote to ARP, denying that she breached her

contract and specifically stated:

Lastly, as I have reviewed the evidence, I believe Ms. Hodges likely
has a claim for discrimination and retaliation. It has come to my
attention that at least five (5) white employees of ARP have resigned
over the past several months and none of those employees provided
2
In its petition, ARP alleges that it paid Ms. Hodges’s unearned vacation time because she
threatened to sue it for penalty wages and attorney fees under the provisions of La.R.S. 23:631.
Thus, it seeks to recover these sums as an element of damages.
2

ARP with 90 days’ notice or received threats of litigation. A more
thorough investigation by the EEOC in this regard may be warranted.

ARP contends that this communication created a justiciable controversy between it

and Ms. Hodges. Accordingly, it alleges that it may obtain a declaration of its legal

rights under La.Code Civ.P. art. 1872 that it had not engaged in any discrimination

and retaliation when it asserted its rights against Ms. Hodges for breach of contract,

and it is entitled to a declaratory judgment to that effect.

In response to ARP’s petition, Ms. Hodges filed peremptory exceptions of no

right of action and no cause of action. On February 20, 2024, the trial court heard

oral arguments by the parties, sustained both peremptory exceptions, and dismissed

ARP’s claims with prejudice. This appeal followed.

ASSIGNMENTS OF ERROR3

(1) The trial court erred in sustaining the peremptory exception
of no cause of action brought by Ms. Hodges because ARP’s petition
clearly states a cause of action for breach of contract.

(2) The trial court erred in sustaining the peremptory exception
of no right of action brought by Ms. Hodges because ARP is the proper
party to sue Ms. Hodges for breach of contract.

(3) The trial court erred in dismissing ARP’s petition in its
entirety because the petition states a cause of action for declaratory
judgment by setting forth the pendency of a justiciable controversy
between the parties.

(4) The trial court erred in sustaining the peremptory exception
of no right of action brought by Ms. Hodges as to ARP’s petition for
declaratory judgment because it is the proper party to sue Ms. Hodges
under the circumstances set forth in the petition.

3
A review of the hearing on the peremptory exceptions shows that Ms. Hodges attempted
to argue transaction or compromise as a ground for the peremptory exception of no right of action;
the transcript shows that the trial court did not consider that argument because Ms. Hodges had
not sought to enforce a compromise. Although ARP has included a fifth assignment of error that
the trial court erred in sustaining the peremptory exception of no right of action based upon a
theory of transaction or compromise, it has not argued that issue in its briefs to this court.
Assignments of error neither briefed nor argued in brief are deemed abandoned. Uniform Rules—
Courts of Appeal, Rule 2–12.4; Prudhomme v. Nationwide Mut. Ins. Co., 465 So.2d 141 (La.App.
3 Cir.), writ denied, 467 So.2d 1132 (La.1985).
3

PLAINTIFF’S ARGUMENTS

ARP argues that its petition pleads facts that support the existence of a limited-

term contract of employment between it and Ms. Hodges. It contends that when

employment contracts are for one year but are subject to automatic renewal for

successive terms, the employment is not at-will.

ARP further argues that its petition alleged facts which establish that Ms.

Hodges breached her contract.4 Thus, ARP argues that the trial court erred when it

found that Ms. Hodges carried her burden of proof on the exceptions. In the

alternative, it argues that even if ARP’s petition was flawed in describing the

contract and/or its breach, the trial court should have granted ARP leave to amend

the petition. Thus, it asks this court to reverse the trial court and remand the matter

to allow ARP to amend its petition.

Additionally, ARP contends that it asserted a valid cause of action for

declaratory judgment and has the right to bring that action because the petition

alleges that Ms. Hodges threatened to sue ARP for employment-based racial

discrimination and retaliation. According to ARP, this amounts to a justiciable

controversy sufficient for the trial court to render a declaratory judgment. Thus,

ARP also asks this court to reverse this aspect of the judgment and allow ARP’s

petition for declaratory judgment to proceed to trial.

DEFENDANT’S POSITION

Ms. Hodges argues that ARP has failed to identify or include facts in its

petition to establish a limited duration contract during which Ms. Hodges was not

4
ARP further contends that Ms. Hodges failed to present evidence to counter the
allegations made in ARP’s petition. Despite that contention, we point out that 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. State v. Ctr. For Tech and
Civic Life, 21-670, 21-671 (La.App. 3 Cir. 3/30/22), 350 So.3d 534, writ denied, 22-721 (La.
6/28/22), 341 So.3d 568.
4

free to depart without cause nor was ARP as the employer at liberty to dismiss the

employee without cause. Accordingly, Ms. Hodges asks this court to recognize that

ARP’s failure to provide the facts to sustain a limited duration contract further

supports the trial court’s decision to grant her peremptory exception of no right of

action to bring a breach of contract claim with no actual limited duration contract.

Finally, Ms. Hodges argues that ARP fails to identify a justiciable controversy

of an existing actual dispute to warrant a cause of action or right of action for a

declaratory judgment.

PEREMPTORY EXCEPTIONS—THE LAW AND JURISPRUDENCE

No Cause of action

In City of New Orleans v. Board of Directors of Louisiana State Museum, 98-

1170, pp. 9–10 (La. 3/2/99), 739 So.2d 748, 755–56, the court stated:

The purpose of the peremptory exception of no cause of action is
to determine the sufficiency in law of the petition. The burden of
showing that the plaintiff has stated no cause of action is upon the
exceptor. The public policy behind the burden is to afford the party his
day in court to present his evidence. Jarrell v. Carter, 577 So.2d 120
(La.App. 1 Cir.), writ denied, 582 So.2d 1311 (La.1991). The exception
is triable on the face of the papers, and for the purpose of determining
the issues raised by the exception, the court must presume that all well-
pleaded facts in the petition are true. All reasonable inferences are
made in favor of the nonmoving party in determining whether the law
affords any remedy to the plaintiff. LA.CODE CIV.P. arts. 927, 931;
Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984). A court of
appeal reviews de novo a lower court’s ruling sustaining an exception
of no cause of action because the exception raises a question of law and
because the lower court’s decision is generally based only on the
sufficiency of the petition. Mott v. River Parish Maintenance, Inc., 432
So.2d 827 (La.1983). The question is whether, in the light most
favorable to the plaintiff, the petition states any valid cause of action
for relief. Jarrell, 577 So.2d at 120.

Generally, under LA.CODE CIV.P. art. 931 parties may
introduce no evidence to support or controvert the exception. See, e.g.,
Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010 (La.App.
1 Cir. 3/27/97), 691 So.2d 751, 754, writ denied, 97-1066 (La. 6/13/97),
695 So.2d 982. . . .

5

An exception of no cause of action is likely to be granted only in
the unusual case in which the plaintiff includes allegations that show
on the face of the petition that there is some insurmountable bar to
relief. Thus, dismissal is justified only when the allegations of the
petition itself clearly show that the plaintiff does not have a cause of
action, or when its allegations show the existence of an affirmative
defense that appears clearly on the face of the pleadings. [City of New
Orleans v.] Board of Comm’rs of Orleans Levee Dist., [93-690 (La.
7/5/94)], 640 So.2d [237]. A court appropriately sustains the
peremptory exception of no cause of action only when, conceding the
correctness of the well-pleaded facts, the plaintiff has not stated a claim
for which he can receive legal remedy under the applicable substantive
law.

No Right of Action

In McKay v. Fontenot, 22-690, pp. 3–4 (La.App. 3 Cir. 6/28/23), 368 So.3d

282, 285, writ denied, 23-1040 (La. 11/8/23), 373 So.3d 62, we stated:

The peremptory exception of no right of action, La.Code Civ.P.
art. 927(A)(6), is based on La.Code Civ.P. art. 681, which provides that
“an action can be brought only by a person having a real or actual
interest which he asserts.” “The function of an exception of no right of
action is a determination of whether plaintiff belongs to the class of
persons to whom the law grants the cause of action asserted in the
petition.” Badeaux v. Southwest Computer Bureau, Inc., 05-612, p. 6
(La. 3/17/06), 929 So.2d 1211, 1217. The exception questions
“whether the plaintiff in the particular case is a member of the class of
persons that has a legal interest in the subject matter of the litigation.”
Id.

Appellate review of a trial court’s decision on an exception of no
right of action is de novo because it presents legal questions—the
determination of whether a plaintiff has a right of action is a question
of law. Guidry v. Ave Maria Rosary & Cenacle, Inc., 21-507 (La.App.
3 Cir. 6/1/22), 341 So.3d 779. “When evidence is introduced in support
of or in opposition to the exception, however, a trial court’s findings of
fact are subject to the manifest error-clearly wrong standard of review.”
Id. at 797 (quoting Rain CII Carbon, LLC v. Turner Indus. Grp., LLC,
19-403 (La.App. 3 Cir. 3/18/20), 297 So.3d 797, writ denied, 20-774
(La. 10/20/20), 303 So.3d 319). Furthermore, though evidence could
be considered in determining an exception of no right of action, whether
the defendant may be able to defeat the plaintiff’s cause of action is
immaterial to the determination of an exception of no right of action.
Any evidence admitted which does not relate to the plaintiff’s right of
action must be referred to the merits of the case. See Madisonville State
Bank v. Glick, 05-1372 (La.App. 3 Cir. 5/3/06), 930 So.2d 263.

6

LAW AND JURISPRUDENCE APPLIED

The Suit for Damages

As the party who advanced the two peremptory exceptions, Ms. Hodges states

that ARP had the burden of alleging the existence of a fixed term employment

contract that included language that the employee is not free to depart without

assigning cause and the employer is not free to terminate without giving reasons. In

support of her argument, Ms. Hodges relies heavily on Read v. Willwoods

Community, 14-1475 (La. 3/17/15), 165 So.3d 883.

Next, relying on Seals v. Calcasieu Parish Voluntary Council on Aging, Inc.,

99-1269 (La.App. 3 Cir. 3/1/00), 758 So.2d 286, writ denied, 00-928 (La. 5/12/00),

761 So.2d 1292, she argues that the opinion provides that successive options for

renewal in a limited term contract will revert to that of employment at-will if either

party can terminate the employment obligation by not exercising the options via a

notice of non-renewal provision. Against that background, Ms. Hodges contends

that the automatic renewal provisions that require written notice to terminate without

including a “just cause” provision suffer the same fate as the initial term of the

contract relative to the absence of for-cause termination language. Thus, Ms.

Hodges contends that because the employment contract did not include “cause”

language, the trial court properly granted her peremptory exception of no cause of

action. After carefully reviewing the Read and Seals decisions, we find these

decisions do not support Ms. Hodges’s argument.

The Read decision concerned an oral contract of employment and whether the

plaintiff proved that there was an oral contract. Specifically, in Read, 165 So.3d at

886–87 (footnotes omitted), the court stated:

The employer-employee relationship is a contractual
relationship, and thus an employer and employee may negotiate the
terms of an employment contract and agree to any terms not prohibited
7

by law or public policy. Louisiana law provides that employment
contracts are either limited term or terminable at-will. Under a limited
term contract[,] the parties agree to be bound for a certain period during
which the employee is not free to depart without assigning cause nor is
the employer at liberty to dismiss the employee without cause. When
a contract does not provide for a limited term, an employer can dismiss
the employee at any time and for any reason without incurring liability.
When the employer and employee are silent on the terms of the
employment contract, the Civil Code provides the default rule of
employment-at-will.

Even though the supreme court held that the evidence did not support a finding

that the employee and employer entered into a five-year employment contract, its

determination was not based upon a failure to include at-will language in their

contract. To the contrary, the court’s holding simply concluded that there was no

proof that there was a meeting of the minds that a fixed-term contract was formed.

In the present case, it is unquestioned that ARP and Ms. Hodges executed a contract

of employment that provided successive fixed terms which either party could

terminate by providing ninety days’ notice.

Ms. Hodges next relies on Seals, 758 So.2d 286, to support her argument. In

Seals, the written employment contract provided that the employee could terminate

the employment relationship upon giving thirty days’ notice, but the employer could

only terminate for just cause. After reviewing the record, this court made a threefold

finding: (1) a provision in Seals’s employment agreement that provided she give

thirty days’ notice before terminating the employment agreement was valid; (2) a

contract of indefinite duration will be sustained when the employee gives “special

consideration” in addition to the services he promised to perform; and (3) if the

execution of the contract makes the obligation to work immediately enforceable, the

decision to terminate employment was an uncertain event that constituted a

resolutory condition. Here, too, Ms. Hodges’s reliance on Seals is misplaced

because its factual basis is dissimilar to the present case. In particular, the

8

employment contract in Seals was not voided because of the termination clause of

the contract.

In response to the argument of Ms. Hodges, ARP contends that the signed

employment contract Ms. Hodges entered into specified a certain term of

employment. It further contends that it was not necessary to include “just cause”

termination language in the initial term of the contract and the successive automatic

renewals because La.Civ.Code art. 2747 provides this language by default. It further

asserts that during the fixed term of employment neither Ms. Hodges nor ARP could

terminate the employment contract unless there was “just cause” or by providing the

requisite ninety days’ notice specified in the contract. It further points out that the

facts alleged in its petition state a cause of action for damages, and it is the entity

who has a right of action to enforce the contract. Accordingly, ARP asks this court

to reverse the trial court’s decision to dismiss its petition for breach of contract on

peremptory exceptions of no cause of action and no right of action.

“A contract is formed by the consent of the parties established through offer

and acceptance.” La.Civ.Code art. 1927. It follows, therefore, that an enforceable

contract requires a meeting of the minds. Chandler Groceries, Inc. v. Ali, 22-63

(La.App. 3 Cir. 9/28/22), 348 So.3d 904, writ denied, 22-1611 (La. 1/11/23), 352

So.3d 985. Because there is a presumption that employment is at-will, the party

seeking damages under an alleged contract of employment for a limited term bears

the burden of alleging there was a meeting of the minds on the term of employment.

See La.Civ.Code art. 1831; Suire v. Lafayette City-Par. Consol. Gov’t., 04-1459, 04-

1460, 04-1466 (La. 4/12/05), 907 So.2d 37; Krielow v. R & H Supply, Inc., 13-217

(La.App. 3 Cir. 10/9/13), 123 So.3d 1235.

In Quebedeaux v. Dow Chemical Co., 01-2297, p. 5 (La. 6/21/02), 820 So.2d

542, 545, the court stated, “When the employer and employee are silent on the terms
9

of the employment contract, the civil code provides the default rule of employment-

at-will . . . . This default rule is contained in [La.Civ.Code] art. 2747.” It has been

held that under La.Civ.Code art. 2747, “[w]here an employee’s employment is for

an indefinite term, the employment is terminable at the will of either the employer

or the employee.” Williams v. Delta Haven, Inc., 416 So.2d 637, 638 (La.App. 2

Cir. 1982). However, under a fixed term contract of employment, “the parties have

agreed to be bound for a certain period during which the employee is not free to

depart without assigning cause, nor is the employer at liberty to dismiss the

employee without assigning any reason for so doing.” Chandler v. Kenyan, 38,084,

p. 4 (La.App. 2 Cir. 12/19/03), 862 So.2d 1182, 1184; see also La.Civ.Code art.

2749.

Likewise, when an employer and employee enter an employment contract for

one year with automatic renewal for successive terms, such an employment contract

is not at-will. One such example is Graham v. Magnolia School, Inc., 297 So.2d

435 (La.1974). In Graham, a teacher entered into an employment contract with the

defendant, Magnolia School, Inc. of New Orleans. The contract provided that

Graham would be engaged and employed by Magnolia School from the first day of

May 1956 to the first day of May 1959. The contract additionally provided that the

contract may continue in full force year after year, unless terminated by the Magnolia

School’s Board of Directors by written notice sixty days prior to severance. On

August 29, 1968, Graham’s employment was terminated by written notice, and he

was paid two months’ salary and subsistence at the time of termination. Graham

filed suit alleging that the termination was in violation of the employment contract

and was without cause. In response, Magnolia argued that after the initial term

lapsed, the contract term became indefinite and, therefore, terminable at-will. In

rejecting Magnolia’s argument, the supreme court stated:
10

The agreement consists of two provisions independent of each
other, one of which controlled with respect to the initial period of
employment and the other after that term.

The provision which came into effect after the initial period
obviously intended to modify the original agreement with respect to
term, compensation and to provide for a method of termination.

We believe the intent of the parties was to continue the
employment in increments of one year. The contract provides that the
employment shall continue ‘year after year.’ Although this phrase may
also be interpreted to mean merely an indefinite period of employment,
we do not think such a construction is reasonable in light of the nature
of the employment. Such a factor may be properly considered in
determining the contemplated term of employment where the intent of
the parties may not be clear.

Graham, 297 So.2d at 436.

Furthermore, the jurisprudence has recognized that automatic renewal

provisions are enforceable. See Barbe v. A.A. Harmon & Co., 94-2423, 94-2424

(La.App. 4 Cir. 1/7/98), 705 So.2d 1210, writs denied, 98-526, 98-529 (La. 5/15/98),

719 So.2d 462; Prevost v. Eye Care and Surgery Ctr., 93-1016 (La.App. 1 Cir.

4/8/94), 635 So.2d 765, writ denied, 94-1214 (La. 7/1/94), 639 So.2d 1168.

After considering the nature of the at-will rule, we find employment at-will is

the default rule which exists by virtue of La.Civ.Code art. 2747, and the fixed-term

contract exists as an exception to that rule. Simply stated, a fixed-term employment

contract need not include “at-will” language. Although we agree that it was ARP’s

burden to plead facts supporting the existence of a fixed-term employment contract,

we find no merit to Ms. Hodges’s contention that those allegations must include that

the contract had to contain “for cause” language.

After reviewing the allegations of fact detailed in ARP’s petition, accepting

them as true, and examining the question in the light most favorable to the plaintiff,

we find ARP’s pleadings alleged facts to support a cause of action that Ms. Hodges

purportedly breached a contract of employment for a limited term sufficient to

11

remove the contract from the default rule of employment at-will codified in

La.Civ.Code art. 2747. Therefore, we reverse the trial court’s judgment which found

ARP failed to state a cause of action against Ms. Hodges for breach of her

employment contract and remand the case for further proceedings.

We likewise find no merit as to the argument made by Ms. Hodges that ARP

did not have a right of action because it failed to allege facts which showed the

employment contract contained language that the employee was not free to terminate

without assigning cause and the employer was not free to depart without giving

reason. For the same reasons shown above, we find no merit to Ms. Hodges’s

peremptory exception of no right of action. Therefore, we also reverse the trial court

judgment which dismissed the petition of ARP on the grounds that it did not have a

right of action.

The Petition for Declaratory Judgment

ARP’s petition also seeks a declaration that it is not liable for employment-

based racial discrimination and retaliation.

In Manning v. State, 19-698, p. 5 (La.App. 3 Cir. 9/23/20), 304 So.3d 1038,

985, writ denied, 20-1239 (La. 12/22/20), 307 So.3d 981, this court stated:

A party is entitled to relief by declaratory judgment when
“his rights are uncertain or disputed in an immediate and
genuine situation, and the declaratory judgment will
remove the uncertainty or terminate the dispute.” Spicer
v. Spicer, 2010-1577 (La. App. 1 Cir. 3/25/11), 62 So.3d
798, 800.

Greene v. Greene, 19-37, p. 14 (La.App. 5 Cir. 12/11/19), 286 So.3d
1103, 1115.

Furthermore, in Desselle v. Dresser Industrial Valve, 96-374, pp. 3–4

(La.App. 3 Cir. 2/5/97), 689 So.2d 549, 551–52, writ denied, 97-618 (La. 4/25/97),

692 So.2d 1086 (quoting Ricard v. State, 544 So.2d 1310, 1312 (La.App. 4 Cir.

1989)) (emphasis added), this court also noted:
12

The codal articles authorizing declaratory judgment are declared
remedial and should be liberally construed and administered. La.C.C.P.
Art. 1881; Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9
(1964). Nevertheless, there is no right or cause of action when there
is no justiciable controversy. Abbott v. Parker, 259 La. 279, 249
So.2d 908 (1971). . . .

In Abbott, 249 So.2d at 918, the Supreme Court defined
“justiciable controversy”:

A “justiciable controversy” connotes, in the present
sense, an existing actual and substantial dispute, as
distinguished from one that is merely hypothetical or
abstract, and a dispute which involves the legal relation of
the parties who have real adverse interests, and upon
which the judgment of the court may effectively operate
through a decree of conclusive character. Further, the
plaintiff should have a legally protectable and tangible
interest at stake, and the dispute presented should be of
sufficient immediacy and reality to warrant the issuance of
a declaratory judgment.

Turning to the facts alleged in ARP’s petition, the premise for its request for

declaratory judgment is based on correspondence received from counsel for Ms.

Hodges. In that communication (emphasis added), counsel stated that “I believe Ms.

Hodges likely has a claim for discrimination and retaliation” and that “A more

thorough investigation by the EEOC in this regard may be warranted.”

A petition for declaratory judgment “cannot generally be maintained unless it

involves some specific adversary question or controversy asserted by interested

parties and based on existing state of facts.” Am. Waste & Pollution Control Co. v.

St. Martin Par. Police Jury, 627 So.2d 158, 162 (La.1993). “Cases submitted for

adjudication must be justiciable, ripe for decision, and not brought prematurely.” Id.

A court must refuse to entertain an action for a declaration of rights “if the issue

presented to the court is academic, theoretical, or based upon a contingency which

may or may not arise.” Tugwell v. Members of Bd. of Highways, 83 So.2d 893, 899

(La.1955).

13

Applying this well-established jurisprudence to the present case, it is clear that

the question ARP raises in its petition is hypothetical or abstract and is based on a

contingency which may not arise, and a justiciable controversy is lacking.

Therefore, we affirm the trial court’s decision which granted Ms. Hodges’s

peremptory exceptions of no cause of action and no right of action for declaratory

judgment and dismissed that portion of the petition seeking such relief.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment which granted

the peremptory exceptions of no cause of action and no right of action brought by

Precious Hodges regarding the petition for declaratory judgment brought by

Acadiana Renal Physicians, AMC.

For the reasons stated, we reverse the trial court’s judgment which granted the

peremptory exceptions of no cause of action and no right of action regarding the

petition of Acadiana Renal Physicians, AMC against Precious Hodges for breach of

her employment contract and remand the case for further proceedings.

Costs of this appeal are cast equally to Acadiana Renal Physicians, AMC and

Precious Hodges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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