Wanda Frank VS The Parish of Pointe Coupee Through Sheriff Beauregard Torres
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 0 j 4 1 2010 CA 0299 c WANDA FRANK VERSUS THE PARISH OF POINTE COUPEE THROUGH ITS SHERIFF BEAUREGARD TORRES Judgment Rendered September 10 2010 APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF POINTE COUPEE STATE OF LOUISIANA DOCKET NUMBER 42 DIVISION A 006 THE HONORABLE JAMES J BEST JUDGE Roy Maugham Sr Attorneys for Plaintiff Appellant James Maughan Baton Rouge Louisiana Wanda Frank Deborah Carriere Cifreo Attorney for Defendant Appellee Parish of Pointe Coupee through its New Roads Louisiana Sheriff Beauregard Torres BEFORE WHIPPLE McDONALD AND McCLENDON JJ 10 1 s ctr and e 5s Ass McDONALD J This is an appeal of a judgment from the Eighteenth Judicial District Court granting a peremptory exception raising the objection of prescription filed by the defendant For the following reasons the judgment is affirmed The plaintiff in this matter Wanda Frank was employed by the Sheriff of Pointe Coupee Parish as a deputy sheriff assigned as a dietary employee On December 3 2007 Ms Frank slipped and fell on some hot beans that had spilled onto the floor in the kitchen Because of the injury sustained in the fall Ms Frank was not able to return to work In March 2008 a letter was sent to Ms Frank by the Chief Civil Deputy Stacy Devillier advising that a Certification of Health Care Provider dated February 14 2008 stated that she was unable to return to work until May The letter further advised that Ms Frank did not have leave available to cover her through May and requested that she schedule an appointment with a Dr Picard so that the Sheriffs office could reevaluate her leave status The letter also stated although PCSO was under no obligation to do so you have been paid 100 of your salary from December 3 2007 through March 2 2008 On April 11 2008 a letter regarding leave status was sent to Ms Frank by Chief Deputy Devillier It advised that effective April 14 2008 Ms Frank leave s status was to be changed to unpaid It stated Despite exhausting all available leave with PCSO you have been paid and will continue to be paid 100 of your salary from December 3 2007 through April 13 2008 notwithstanding no requirement of PCSO to do so On December 4 2008 Ms Frank filed a petition for damages alleging that s defendant employees negligently created a condition that created an unreasonable The petition was fax filed on this date and the original was filed into the record on December 8 2008 2 risk of harm and as a direct result of the hazardous condition plaintiff slipped and fell causing injury to her body Plaintiff prayed for judgment against the Parish of Pointe Coupee through its Sheriff Beauregard Torres In August 2009 an exception raising the objection of prescription was filed by the defendant A first amending petition was filed by plaintiff in September 2008 alleging that prescription of plaintiff claim was interrupted by express acknowledgments s by defendant representatives relying particularly on the unconditional payment s of plaintiff salary and medical expenses from December 3 2007 through April s 11 The trial court issued a ruling on the peremptory exception raising the objection of prescription correctly noting that the plaintiff had the burden of proof and that she had failed to convince the court that she was lulled into not filing suit timely Judgment was signed on November 3 2009 granting the exception and dismissing plaintiffs suit with prejudice at her cost This appeal timely followed Plaintiff argues that the court committed legal error in dismissing her claim because the Sheriff payment of unearned wages was an acknowledgement of s liability that interrupted prescription Plaintiff is correct that review by this court is de novo While the issue of acknowledgment is a mixed question of law and fact which is generally subject to the manifest error standard of review where as here there is no dispute as to the dispositive facts the issue can be decided as a matter of law and the review is de novo Demma v Automobile Club Inter Insurance Exchange 082810 La 6 15 So 95 100 n However we do not agree 09 26 3d 4 that the payment in this case interrupted prescription as a matter of law 2 Sheriffs deputies with the exception of criminal deputy sheriffs for the Parish of Orleans are exempted from the statutory Workers Compensation scheme LSAR 23 S 1034 3 Prescription that has commenced to accrue but that has not yet run may be interrupted when one acknowledges the right of the person against whom he had commenced to prescribe LSA C art 3464 Demma 15 3d So at 98 Substantively an acknowledgment is a simple admission of liability resulting in the interruption of prescription that has commenced to run but not accrued Id The form the acknowledgment may assume has been extensively discussed in doctrinal writings as well as in numerous decisions of this court Id The supreme court in Demma recognized that acknowledgment sufficient to interrupt prescription may be made verbally in writing by partial payment by payment of interest or by pledge or in other ways and that it may be implied or it may be inferred from the facts and circumstances Id 15 So at 99 3d The court then considered tacit acknowledgment noting that in Mallett v McNeal 05 2289 05 2322 La 10 939 So 1254 1259 the court held that one form of 06 17 2d acknowledgment that will interrupt the running of prescription is the tacit acknowledgment resulting when the debtor makes an unconditional payment of a portion of the debt Demma 15 So at 99 106 3d In Lima v Schmidt 595 So 624 634 La 1992 the supreme court 2d defined a tacit acknowledgment as occurring when a debtor performs acts of reparation or indemnity makes an unconditional offer or payment or lulls the creditor into believing he will not contest liability which definition was reiterated in Mallett In Mallett court went on to note that the jurisprudence has also established that mere settlement offers or conditional payments humanitarian or charitable gestures and recognition of disputed claims will not constitute acknowledgments Mallett 939 So at 1259 2d In this matter the letters by the Sheriff representative to Ms Frank clearly s convey the Sheriff s belief that he had no legal obligation to Ms Frank Ms Frank states in her affidavit that she was told that the reason the Sheriff continued to pay 4 her salary although she was unable to work was because it was their fault that the injury occurred As set forth in her brief and affidavit she contends she was lulled into inaction by the belief that the Sheriff accepted responsibility for her injuries As noted by the trial court Ms Frank knew seven months before the prescriptive date that she was no longer being paid by the Sheriffs Office She had ample time to file suit if she believed she was entitled to compensation from the Sheriff The letter of April 11 2008 unequivocally informed Ms Frank of the s Sheriff position Moreover this letter was signed by Ms Frank acknowledging that she received and understood it The trial court did not accept Ms Frank s contention that she was lulled into inaction by the Sheriff Neither do we We find that the payment of unearned wages to Ms Frank was a humanitarian or charitable gesture not an acknowledgment of liability sufficient to interrupt prescription Further we do not find it necessary to reexamine the facts to determine if actions by the Sheriff could be considered a tacit acknowledgment in the face of the s Sheriff expressly stated position denying liability Accordingly the judgment appealed is affirmed This memorandum opinion is issued in compliance with Uniform Rules Courts of Appeal Rule 2 16 13 1 Costs are assessed to plaintiff Wanda Frank AFFIRMED 5 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0299 WANDA FRANK VERSUS THE PARISH OF POINTE COUPEE THROUGH ITS SHERIFF BEAUREGARD TORRES McCLENDON I concurs and assigns reasons I respectfully concur with the result reached by the majority In her affidavit Ms Frank admitted that the sheriff representative told s her that the sheriff was under no obligation to pay her salary and medical expenses Additionally in the April 11 2008 letter which was signed by Ms Frank as understood and agreed the sheriffs representative informed Ms Frank that her salary would be paid through April 13 2008 although there was no requirement of the sheriff to do so Thus the sheriff was clear that payments to Ms Frank were being made gratuitously Accordingly under the specific facts of this case I do not believe that the plaintiff met her burden of establishing that she was lulled into a course of inaction based upon the conduct of the defendant See Delacruz v Layrisson 071301 La 1 Cir 5 App 08 2 unpublished opinion writ denied 081620 La 10 992 So 1042 08 24 2d
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