Kosmala v. Paul

569 So. 2d 158, 1990 WL 157568
CourtLouisiana Court of Appeal
DecidedOctober 16, 1990
Docket89 CW 1878
StatusPublished
Cited by9 cases

This text of 569 So. 2d 158 (Kosmala v. Paul) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kosmala v. Paul, 569 So. 2d 158, 1990 WL 157568 (La. Ct. App. 1990).

Opinion

569 So.2d 158 (1990)

Dr. Jerzy S. KOSMALA
v.
James PAUL and The Baton Rouge Symphony Association.

No. 89 CW 1878.

Court of Appeal of Louisiana, First Circuit.

October 16, 1990.
Writ Denied January 11, 1991.

Mark E. Falcon, Baton Rouge, for plaintiff Dr. Jerzy S. Kosmala.

Gordon A. Pugh, Baton Rouge, for defendant James Paul and The Baton Rouge Symphony Ass'n.

Before EDWARDS, WATKINS and LeBLANC, JJ.

WATKINS, Judge.

Plaintiff, Dr. Jerzy S. Kosmala, instituted this action against defendants James Paul and the Baton Rouge Symphony Association (BRSA), alleging that he was wrongfully terminated from his employment with BRSA as its principal violist. Defendants filed a declinatory exception of lack of subject matter jurisdiction and a dilatory exception of prematurity, alleging that under the plaintiff's employment contract the instant claim required arbitration. The trial court overruled defendants' exceptions. Defendants applied to this court for supervisory writs which were denied on January 5, 1990. Subsequently, application for supervisory writs was made to the Louisiana Supreme Court. The Supreme Court granted the writ and issued an order on March 22, 1990, ordering a remand of the case to this court for briefing, argument and an opinion. 558 So.2d 577.

On remand, we affirm the trial court and remand for further proceedings.

*159 FACTS

Dr. Kosmala alleges that since 1981 he has entered into successive one-year contracts with the BRSA, which contracts are governed by the provisions of a Master Musicians Contract (MMC).[1] Dr. Kosmala contends that BRSA violated the terms of the MMC when it failed to notify him in writing, before May 1, 1988, that he would not be re-engaged as a musician for the 1988-89 contract year. Accordingly, Dr. Kosmala filed the instant suit.

In response the defendants filed an exception of lack of subject matter jurisdiction and a dilatory exception raising the objection of prematurity. The trial court dismissed both exceptions. In their application for supervisory writs, the defendants contend that the district court did not have subject matter jurisdiction over the suit because the MMC provided for final and binding arbitration over the matter, and that according to the Louisiana Arbitration Law, LSA-R.S. 9:4201, et seq.,[2] the trial court is mandated to stay all further proceedings so that arbitration can be had in accordance with the MMC.

The provisions of the MMC pertinent to the instant case read as follows:

ARTICLE X—DISMISSALS
(1) The Association may dismiss a musician, after warning him and the Local in writing, including but not limited to the following causes: repeated, willful, and unexcused absence from or tardiness *160 at concerts or rehearsals; insubordination; intoxication affecting behavior or performance at a concert or rehearsal; persistent inattention to or neglect of duties, and any behavior which is disruptive or detrimental to rehearsal or performance. A musician may appeal his dismissal by submitting in writing his case to the Dismissals Committee.... Failure to re-engage a musician who has been under contract to the Association for less than four (4) years is not to be considered a dismissal under this clause. Decisions of the Dismissals Committee will be final and binding.
(2) No musician may be dismissed by the Music Director for reasons of musical incompetence without prior written warning to the musician and the Local that the musician's performance is below acceptable standards. Any musician so dismissed will have the right to appeal in writing within fourteen days to the Skills Review Committee.... Failure to re-engage a musician who has been under contract to the Association for less than four (4) years is not to be considered a dismissal under this clause. Decisions of the Skills Review Committee will be final and binding.
ARTICLE XI—CONTRACT NEGOTIATIONS, CONTRACTS AND INTERPRETATION OF CONTRACTS
. . . . .
(3) All complaints, disputes or grievances which involve questions of interpretation or application of any clause of this Agreement will be negotiated among the Association, the Local and the Orchestra Committee.
ARTICLE XII—RE-ENGAGEMENT
(1) Notice of Re-engagement: The Association agrees to notify, in writing prior to May 1 of each year, any musician who has been under contract with the Association for more than four (4) full years, if it intends to re-engage the musician for the following season. In turn, a musician who has been under contract to the Association for more than four (4) full years agrees to notify the Association in writing by May 31 if the musician does not intend to accept the contract.
. . . . .
(2) Re-Engagement Protection: The Association shall not fail to re-engage a musician who has been under contract to the Association for more than four (4) full years, unless it first gives notice of that intention in writing by the applicable dates and that notice must specify whether the failure to re-engage is for reason of some act or action which would fall within the review procedures of the Dismissals Committee as set forth in Article X(1) of this contract or is for reasons of musical incompetence which would fall within the review procedures of the Skills Review Committee as set forth in Article X(2) of this contract. If such a failure to re-engage should occur, the musician shall be entitled to the review procedure set forth in the applicable sub-paragraph of Article X of this contract. The Association's failure to re-engage a musician who has been under contract to the Symphony for less than four (4) full, consecutive years immediately prior to the initial year of this contract, will not, by reason of that failure to re-engage, be entitled to the review procedures set forth in Articles X and XII of this contract.
A musician who has been on authorized leave of absence from the Orchestra during any of the four years prior to the first year of this contract and who, for that reason, is unable to satisfy the requirement of four (4) full consecutive years immediately prior to the first year of this contract, shall, nevertheless, be entitled to the notice and review protections of Articles X and XII so long as the musician has had four (4) full years under contract at some time during the six (6) years immediately prior to the first year of this contract.
ARTICLE XIV—SEASONAL CONTRACTS
(1) Each musician will be engaged season-to-season under the terms of this *161 Master Agreement by the execution of a season contract giving the exact dates of employment for the subsequent season.
(2) If there is a conflict of language between the individual seasonal contract and this Master Agreement, the Master Agreement will be binding on the interpretation of this language.
. . . . .
(4) The individual contracts between the Association and the musicians will become and constitute a part of this Agreement, and this Agreement will be and constitute a part of each individual contract.

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Bluebook (online)
569 So. 2d 158, 1990 WL 157568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kosmala-v-paul-lactapp-1990.