Richard D. Sudduth VS Board of Supervisors for the University of Louisiana System, The University of Louisiana at Lafayette
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1144 RICHARD D SUDDUTH VERSUS n THE BOARD OF SUPERVISORS U FOR THE UNIVERSITY OF LOUISIANA SYSTEM THE UNIVERSITY OF LOUISIANA AT LAFAYETTE Judgment Rendered December 22 2010 On Appeal from the 19 Judicial District Court In and for the Parish of East Baton Rouge Docket No 511 Division F Section 22 926 Honorable Timothy E Kelley Judge Presiding Charles W Rea Counsel for PlaintiffAppellant Baton Rouge LA Richard D Sudduth Linda Law Clark Counsel for DefendantsAppellees The University of Louisiana at Lafayette and the Board of Supervisors for the University of Louisiana System Baton Rouge LA BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES J This is an appeal defendants appellees from a judgment of the district exception raising the court granting objection of prescription and dismissing plaintiff s suit with prejudice For the following reasons sappellant we affirm FACTS AND PROCEDURAL HISTORY By letter dated March 12 1999 Richard D Sudduth was offered the position of Senior Plastics Researcher at the University of Southwestern Louisiana The policies and procedures of the the university on a Tenure Track university define a tenure track appointment as Tenure track appointments are for regular fulltime faculty with academic rank of Assistant Professor or higher These appointments require faculty members to serve a probationary period of employment before a consideration for tenure is made Tenuretrack appointments shall not create any manner of legal right interest or expectancy of renewal or any other type of appointment and shall be subject to annual renewal by the University Emphasis added Mr Sudduth accepted the offer by letter dated April 5 1999 Thereafter Mr Sudduth appointment form dated April 12 1999 provided that Mr s s Sudduth tenure probationary period was to be seven years with a mandatory review in the fall of the sixth year Mr Sudduth began his employment on May 17 1999 and on September 29 2000 Mr Sudduth was given written notice that the 20002001 academic year would be a terminal appointment with the university and his last day of employment would be May 12 2001 On September 19 2003 Mr Sudduth filed a petition for damages alleging that he was wrongfully terminated and was entitled to damages Defendants filed a motion for summary judgment and also pled the exceptions of no cause of action and prescription The trial court initially allowed Mr Sudduth to amend his 4 petition but ultimately dismissed his claims with prejudice as prescribed This appeal followed LAW AND ANALYSIS The trial court sustained the university exception raising the objection of s prescription Normally the exceptor bears the burden of proof regarding his exception however if the exception of prescription is raised and prescription is evident on the face of the pleadings the burden shifts to the plaintiff to show suspension interruption or renunciation SS v State ex rel Dept of Social Services 20020831 La 12 831 So 926 931 citing Lima v Schmidt 02 4 2d 595 So 624 628 La 1992 That proof must be clear specific and positive 2d Unlimited Horizons L v Parish of East Baton Rouge 990889 La App C 1st Cir 5 761 So 753 00 12 2d A claim for wrongful discharge or termination is a delictual action subject to the oneyear prescriptive period provided for in LSAC C art 3492 This prescriptive period commences to run from the day injury or damage is sustained LSAC art 3492 C In this case while the date of notice of termination or actual termination were not included in Mr Sudduth original or amended petitions the relevant s dates was contained in the affidavits and other evidence submitted by the defendants in connection with the motion for summary judgment As such while it may not have been clear on the face of the pleadings that Mr Sudduth claim s was prescribed the evidence submitted shifted the burden to Mr Sudduth to prove that prescription had been interrupted or suspended Specifically the evidence showed that Mr Sudduth was given written notice on September 29 2000 and his last day of employment with the university was May 12 2001 Mr Sudduth did not file suit for damages arising from his termination until September 19 2003 As 3 such prescription seemed evident and the burden shifted to Mr Sudduth to prove otherwise Mr Sudduth claims that prescription was suspended under the theory of contra non valentum Contra non valentem is a judiciallycreated doctrine which has been applied to prevent the running of prescription in four distinct situations 1 where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action 2 where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting 3 where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action and 4 where the cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not induced by the defendant Plaquemines Parish Commission Council v Delta Development Co Inc 502 2d So 1034 1054 56 La 1987 Corsey v State Dept of Corrections 375 So 2d 1319 1321 22 La 1979 Mr Sudduth does not dispute that the first three situations are not applicable to this case We therefore only address whether prescription was prevented from running on Mr Sudduth cause of action due to the fact that the cause of action s was not known and could not have been reasonably knowable by Mr Sudduth It appears that Mr Sudduth assumes that the university was required to show cause for his discharge article 2747 sets However unless specifically contracted otherwise LSAC C forth s Louisiana default at will employment policy Generally an employer is free to dismiss an employee at any time for any reason without liability and vice versa See LSAGC art 2747 Sanchez v Georgia 1 Article 2747 states A man is at liberty to dismiss a hired servant attached to his person or family without assigning any reason for so doing The servant is also free to depart without assigning any cause 4 Gulf Corporation 2002 0904 La App 1st Cir 11 860 So 277 280 03 12 2d writ denied 20040185 La 4 869 So 877 04 2 2d The evidence clearly establishes that Mr Sudduth was an at will employee albeit on a tenure track As such the university was free to discharge Mr Sudduth at any time While the law does provide a few exceptions to that general rule i an employee cannot be terminated because of his race sex or e religious beliefs Mr Sudduth does not allege that his termination was based upon C S e C S any of those discriminatory grounds See 42 U 2000 42 U 1981 LSAR 23 et seq S 301 reason for terminating Absent any alleged discrimination the university s Mr s Sudduth employment is of no consequence Moreover the offer and acceptance of employment clearly indicates that while Mr Sudduth was on a tenure track he did not have any manner of legal right interest or expectancy of renewal and was required to complete a sevenyear probationary period with a mandatory review in the sixth year before he would be considered for tenure Until then he remained an at will employee Mr Sudduth claims for s wrongful termination on May 12 2001 were clearly prescribed at the time he filed his petition on September 19 2003 We find no error in the trial court judgment s dismissing his claims CONCLUSION For the reasons assigned herein the judgment of the district court is affirmed Costs of this appeal are assessed against plaintiffappellant Richard Sudduth AFFIRMED 61
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