Jack L. Duty v. Louisiana Firefighters' Retirement System

• Court: Louisiana Court of Appeal
• Decided: December 1, 2010
• Docket: CA-0010-1226
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-1226

JACK DUTY, ET AL. VERSUS LOUISIANA FIREFIGHTERS’ RETIREMENT SYSTEM, ET AL.

**********

APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. 81,283 HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

********** JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, J. David Painter, and David E. Chatelain*, Judges.

APPEAL DISMISSED.

Bradley Charles Myers Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman Post Office Box 3513 Baton Rouge, LA 70821-3513 (225) 387-0999 COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Municipal Association

Ronald E. Corkern, Jr. Corkern & Crews Post Office Box 1036 Natchitoches, LA 71458-1036 (318) 352-2302 COUNSEL FOR DEFENDANT/APPELLEE: City of Natchitoches

____________________ *Judge David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Otis Edwin Dunahoe, Jr. Dunahoe Law Firm Post Office Box 607 Natchitoches, LA 71458-0607 (318) 352-1999 COUNSEL FOR PLAINTIFFS/APPELLANTS: Jack L. Duty, individually and on behalf of a class of persons similarly situated

Michael John O'Shee Steven M. Oxenhandler Gold, Weems, Bruser Post Office Box 6118 Alexandria, LA 71307 (318) 445-6471 COUNSEL FOR DEFENDANT/APPELLEE: City of Natchitoches

Steven Scott Stockstill Attorney at Law 3100 Brentwood Drive Baton Rouge, LA 70809 (225) 925-4060 COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Firefighters' Retirement System

Tina L. Kappen Lugenbuhl, Wheaton, Peck, Rankin & Hubbard 601 Poydras St., Ste 2775 New Orleans, LA 70130 (504) 568-7990 COUNSEL FOR DEFENDANT/APPELLEE: St. Paul Fire & Marine Ins. Co. SAUNDERS, Judge.

Upon receipt of the record in the above captioned appeal, this court issued a

rule for the plaintiffs-appellants, Jack Duty, individually and on behalf of a class of

persons similarly situated, to show cause why their appeal should not be dismissed

as having been taken from a partial judgment which has not been designated as final

pursuant to La.Code Civ.P. art. 1915(B). For the reasons discussed below, we

dismiss the appeal.

The plaintiffs filed this action on May 1, 2008, against the defendants-

appellees, the Louisiana Firefighters’ Retirement System and the City of

Natchitoches, individually and as representative of a class of defendants: cities and

municipalities, parishes, or fire protection districts throughout the State of Louisiana,

who contribute to this retirement system. The suit claims that the defendants have

improperly calculated the amount of contributions due to be paid into the retirement

system and the amount of the retirement benefits paid to the retired firefighters.

In the course of litigating this matter, Natchitoches filed an exception of

prescription seeking dismissal of the plaintiffs’ claims which date from more than

three years prior to the date that this suit was filed. The trial court signed a written

judgment granting this exception on September 17, 2009.

Subsequently, Natchitoches filed a motion for a protective order. Natchitoches

asserted that since the trial court had issued a ruling barring any claims arising prior

to three years from the date this suit was filed, the plaintiffs’ discovery requests

should be limited to that same time period. The protective order came for hearing on

January 12, 2010.

During the hearing on the motion for the protective order, counsel for the

retirement system orally raised an exception of prescription seeking to bar any of the

1 plaintiffs’ claims preceding three years from the date the suit was filed. The trial

court signed a written judgment on March 8, 2010, granting this exception of

prescription.

On March 30, 2010, the plaintiffs filed a motion for appeal. The motion states,

“Appearer has agreed [sic] by the Judgment of this Court sustaining an Exception of

Prescription by the Firefighters’ Retirement System limiting the liability for payment

of retroactively corrected benefits, if any, to the three(3) year period preceding the

filing of this lawsuit, said Judgment being signed March 8, 2010.” The order of

appeal signed by the trial court on April 5, 2010, merely grants “a devolutive appeal

from the Judgment rendered in the above cause”.

Upon lodging of the record in this court, this court issued the above-mentioned

rule for the plaintiffs to show cause why their appeal should not be dismissed. This

court cited La.Code Civ.P. art. 1915(B) and noted that the appealed judgment did not

have a certification that the judgment was final and immediately appealable, nor did

the judgment provide express reasons why an immediate appeal is appropriate. The

plaintiffs have filed a response to this rule, and Natchitoches has also filed a reply

brief in this matter.

The plaintiffs first argue in their response to this court’s rule that the appealed

judgment effectively dismisses all plaintiffs whose claims arose more than three years

prior to the filing of this action. Therefore, the plaintiffs urge this court to find that

the judgment falls under La.Code Civ.P. art. 1915(A)(1) in that the judgment

effectively dismisses some of the parties to this action.

The plaintiffs’ argument, as to the inference to be drawn from the trial court’s

ruling, is based on conjecture, not the words of the appealed judgment. In this

proposed class action, the petition, which has been neither supplemented nor

2 amended since its filing, mentions no dates of employment or dates of retirement as

to any particular plaintiff, including the proposed class representative. Therefore, we

find that this judgment, as worded, does not dismiss any particular party to this action

and that the judgment does not fall under the purview of La.Code Civ.P. art.

1915(A)(1).

As an alternative ruling on the instant rule, the plaintiffs contend that this court

should designate the appealed judgment as immediately appealable pursuant to

La.Code Civ.P. art. 1915(B), citing R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.

3/2/05), 894 So2d 1113, and Fakier v. State of La., Bd. of Sup’rs for Univ. of La. Sys.,

2008-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024. However, we find neither of

these cases supports the plaintiffs’ position. Unlike the instant case, in both of the

cited cases, the trial court had designated the appealed judgments as immediately

appealable without expressly giving reasons for the designation as statutorily

mandated by La.Code Civ.P. art. 1915(B). Thus, the issue presented in those cases

was whether the designation was appropriate, not whether to designate the judgment

as final and immediately appealable. We find that the instant judgment is not

appealable without a designation that the judgment is final and immediately

appealable, with express, written reasons for the designation.

As a final alternative, the plaintiffs ask that this court remand this matter to the

trial court for an evidentiary hearing as to whether the appealed judgment should be

designated final. We find that this requested relief is beyond the scope of the issue

presented herein and that the appropriate action for this court is limited to ordering

the dismissal of the appeal as having been taken from a non-appealable, interlocutory

ruling. Accordingly, we hereby dismiss this appeal at plaintiffs’ cost.

3 APPEAL DISMISSED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.