Lalena v. Municipal Fire and Police Civil Service Bd.

661 So. 2d 520, 1995 WL 567033
CourtLouisiana Court of Appeal
DecidedOctober 23, 1995
Docket27,244-CA
StatusPublished
Cited by4 cases

This text of 661 So. 2d 520 (Lalena v. Municipal Fire and Police Civil Service Bd.) 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
Lalena v. Municipal Fire and Police Civil Service Bd., 661 So. 2d 520, 1995 WL 567033 (La. Ct. App. 1995).

Opinion

661 So.2d 520 (1995)

James R. LALENA, Plaintiff-Appellee,
v.
MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD and City of Shreveport, Defendants-Appellants.

No. 27,244-CA.

Court of Appeal of Louisiana, Second Circuit.

September 27, 1995.
Order Clarifying Opinion October 23, 1995.

*521 Wiener, Weiss, Madison & Howell by Susie Morgan, Shreveport, for Appellant.

Tyler & Johnson by Tommy J. Johnson, Shreveport, for Appellee.

Before SEXTON, NORRIS and WILLIAMS, JJ.

SEXTON, Judge.

This is an appeal by the Municipal Fire and Police Civil Service Board for the city of Shreveport ("Board") complaining that the district court erred when it issued a preliminary injunction enjoining the Board from re-opening for hearing the matter of the reinstatement of James R. Lalena into the Shreveport Fire Department. For the reasons discussed in this opinion, the judgment of the trial court is affirmed.

Subsequent to the Board's appeal, Lalena filed a supplemental brief and attached thereto a copy of a Petition filed in district court by members of the fire department against the city of Shreveport and the Board regarding the Lalena reinstatement. The Board moved to strike the attachment as not constituting part of the record on appeal.

Under LSA-C.C.P. Art. 2164, an appellate court must render its judgment based upon the record on appeal. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Guedry v. Fromenthal, 633 So.2d 287 (La.App. 1st Cir.1993). Moreover, in Louisiana Business College v. Crump, 474 *522 So.2d 1366, 1369 (La.App. 2d Cir.1985), this court stated:

There is no provision in the law for this court to take judicial notice of the suit record from another court.... Counsel for appellant did attach to her brief a copy of the petition in the previous suit on open account. However, an attachment to the appellate brief does not constitute part of the record on appeal. (Citations omitted.)

The attachment in question is not part of the record on appeal. Accordingly, the board's motion to strike the attachment to Lalena's supplemental brief is granted.

We now turn to Board's appeal.

James R. Lalena was injured in an off-duty automobile accident on July 16, 1991. As a result of injuries from the accident, Lalena was rendered physically unable to continue his duties as a fireman and was told by the department that he could not return to work. He was further advised by the fire department to take a regular retirement in lieu of a disability retirement because of increased benefits. After Lalena retired, the fire department physician stated during a deposition (apparently in a suit by Lalena against the alleged tortfeasor) that Lalena could be physically rehabilitated to return to the fire line. Lalena had never previously been told by the fire department physician that he could be physically rehabilitated to return to work, and he alleged in his petition that he never would have retired had he known that rehabilitation was possible.

Lalena subsequently rehabilitated himself and physically qualified to return to the fire line. Chief Roberts, upon the advice of counsel for the city, allowed Lalena to return to work on April 11, 1994. On or about April 13, 1994[1], counsel for the city, which is the appointing authority, and counsel for Mr. Lalena appeared at a scheduled meeting of the Board and jointly requested that Mr. Lalena be reinstated in the fire department. A protracted discussion regarding the unusual nature of the situation ensued among members of the Board and the appointing authority and Mr. Lalena's attorney. The city's attorney acknowledged that Mr. Lalena was wrongly informed by letter from the fire department that he could not return to work after the accident and consequently, must retire; that Mr. Lalena had never wanted to retire and was never given an opportunity to appeal the decision to the Board; and that he had never signed a letter of resignation, nor was he terminated. The Board, upon the recommendation of the city, voted (3-2) to reinstate Mr. Lalena as a fire captain, retroactive to April 11, but, as agreed to by the city and Lalena, without back pay or reinstatement of his seniority for the period he was in retirement. Two of the members of the Board felt that Mr. Lalena, notwithstanding the admission by the city that Mr. Lalena was never given a choice in the matter, should have investigated the matter on his own before taking the retirement. Chief Roberts, who voted in favor of reinstatement, was very concerned about setting a precedent for allowing retired employees to return to work. It is clear, however, that the Board, as well as the city, recognized the unusual circumstances under which the action was taken.

Subsequently, many of the personnel the in fire department became disgruntled over Lalena's reinstatement because they believed it affected their opportunity to be promoted. This apparently prompted the chairman of the Board, Mr. Donald J. Zadeck, to have the Board secretary issue a letter dated May 20, 1994 to Lalena and other interested parties, stating that the Board was reopening for discussion the matter of Mr. Lalena's reinstatement at the next meeting on June 16, 1994. The letter requested that Captain Lalena be in attendance.

Two days prior to the scheduled meeting, Lalena filed a petition for injunctive relief claiming he would suffer irreparable harm if the Board had the meeting and that the April 13 decision was final pursuant to LSA-R.S. 33:2501 E. LSA-R.S. 33:2501 E allows an employee or the appointing authority 30 days to appeal a Board decision to the district court. The Board contended, on the other *523 hand, that the statute applies only to appeals by employees or the appointing authority, but does not apply to the Board itself. It argued that pursuant to LSA-R.S. 33:2477(4), it may review, modify, or set aside upon its on motion any of its actions, including its earlier decision authorizing the city's reinstatement of Mr. Lalena.

The district court found that the lapse of the 30-day delay for taking an appeal of the Board's decisions provided for in LSA-R.S. 33:2501 E has the effect of res judicata, and accordingly, the Board's decision on April 13, 1994 reinstating Mr. Lalena had become final by the time the Board attempted to reopen the matter. It concluded that the Board itself was subject to the finality of the decision under LSA-R.S. 33:2501 E and, therefore, Mr. Lalena was entitled to injunctive relief prohibiting the Board from reconsidering his reinstatement. The Board appeals the issuance of the injunction.

The Board raises seven assignments of error by the district court. The first three alleged errors specify that the district court erred in making certain factual findings alleged in plaintiff's petition. The Board contends these allegations were denied in its answer, and there was no evidence introduced at trial that would support the court's findings. These findings included factual determinations that (1) it was uncontested that Lalena never wanted to leave his employment with the fire department voluntarily; (2) that it was uncontested that Lalena was never given the right to appeal to the Board the options that were given to him when he took the retirement; and (3) that there was no resignation letter or termination letter concerning Lalena's leaving active employment with the fire department and that Lalena did not have the right to go before the Board for review.

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Bluebook (online)
661 So. 2d 520, 1995 WL 567033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lalena-v-municipal-fire-and-police-civil-service-bd-lactapp-1995.