Louisiana Workers' Compensation Corporation VS Louisiana Demolition, Inc.

Annotate this Case

Download PDF

STATE OF LOUISIANA CUURT UF APPEAL FIRST CIRCUIT NO 2011 CA 2232 LOUISIANA WORKERS COMPENSATION CORPURATIUN VERSUS LOUISIANA DEMOLITION INC NO 2011 CW 2398 LOUISIANA WORKERS COMPENSATION CORPORATION VERSUS 1 OUISIANA DEMpLITION INC I Juclgment Renderect June 8 Z012 K Appealed from the 19th Judicial llistrict Court In and for the Parish of East Baton Rouge Parish State of Louisiana Case No 572424 The Honorable William A Morvant Judge Presidin a Paul Rumage Baton Rouge Counsel for Defendant Relator Louisiana Louisiana Demolition Inc Chad S Counsel for Ylaint Respondent ff Baton Louisiana Workers Compensation Corporation Berry Rouge Louisiana BEFQRE GAIDRY McDQNALD AND HUGHES JJ c GAIDRY J This is an appeal from the Nineteenth Judicial District Court s granting of an exceptiort of no cause of action for the appellee Louisiana Workers Compensation Corporation LWCC and against the appellant Louisiana Demolition Inc La Demo dismissing the appellant spetition for nullity of judgment with prejudice A supervisory writ filed by La Demo seeking this Court review of an overruling by the Nineteenth s Judicial District Court of its objection to the excessiveness of appeal costs was referred to this appeal panel For the following reasons we grant the writ and remand the issue to the trial court for further proceedings and we affrrm the trial court ruling on the xception for no cause of action s FACTS AND PROCEDURAL HISTORY LWCC filed an original petition on oz about November 6 2008 The defendant La Demo was served with personal service through its agent for service of process La Demo neither answered nor filed any responsive pleadings and a preliminary default was entered against it on October l8 2010 and a default judgment was signed on November 23 2010 La Demo filed a for Nullity which does not explain why it Petition failed to appear and defend the suit itself rather the petition for nullity focuses on the evidence introduced by LWCC which La Demo claims fails to establish a prima facie case La Demo claims the insufFicier of cy s LWCC evidence amounts to fraud or ill practices which are grounds to annul a judgment under Louisiana Code of Civil Procedure article 2004 LWCC filed an exception raising the objection of no cause of action which the trial court grant The trial court stated that the issues raised in d the petition for nullity are issues either for a new trial or appeal The original petition was ta assert a claim for an audit against Louisiana Dernalition Inc and for any amount found to be due 2 La Demo timely tiled a motion and order for appeal on the court s ruling the on devolutiv exception appeal was of signed no on cause of action The order granting a 2011 The Cl of Court for rk August 31 the 19 JDC mailed a of Estimated Appeals Charges to La Demo Notic s counsel on objection September 19 to 2011 On Qctober the excessiveness of the costs 0 201 l La Demo fi led an Th trial court ex parte overruled the objection as untimely giving as reason that Iaa art I C 2l 26 grants the movant twenty days from the mailin of noticE of th costs to file the motion Notice of costs was sent ta I Demo on Sept 19 a mber 2011 and the court concluded th twenty day period ended on October 9 201 l making La Demo f ling untimely by one day s STANDARD OF REVIEW Supervisory Wr it The date which La D filed th writ is not in dispute In a case ira mo which there are no contest issu of fact and the only issue is the d s application of the law to the undisputed facts the proper standard of review is whether or not there has been legal error Starks v Arrlerican Bank Nat n 1219 Ass 2004 p 2 3 App 3 Cir S 901 So 1243 1245 La QS 4 2d xception ofNo Cause ofAction A cause of action when used in the context of the peremptory exception is defined as the operative facts that give rise to the plaintiff s right to judicially assert the action against the defer The function o the dant peremptory xc o no cause of action is to test the legal sufficiency of ption the petition which is done by determining wh the law affords a remedy ther on the facts alleged in the pleading No evid may be introduced to nc support or controvert an exception of no cause of action Consequently the court reviews the petition and accepts well allegations of fact as pleaded 3 true The issue at the trial ot the exception is whether on the face of the petition the is plaintiff ally entitled l to the relief sought 3d hicolu 5 C 09 p 3 App 3 Cir 12 27 So 3 La 09 16 Aycock v OS 1007 refore Th exceptions of no cause of action present legal questions and are reviEwed under the de novo standard of review s Philli v Gibbs 2010 0175 La App 4 Cir S 39 So 795 797 10 21 3d DISCUSSION OF SUPERVISU T RYWR Little needs to be said of the supervisory writ because the trial court admitted it had miscalculated the time period for Iaa Demo to fle its objection to the excessiveness of appeal costs Succinctly October 10 2011 was the last day for La Demo to file tk objection becaus October 9 fell on e a Sunday Therefore th deadline to fil had to be carried over to th next day pursuant to I P C a art 5059 We acknowledge he miscalculation grant the supervisory writ and remand the matter to the trial court for further proceedings if any are to be had ASSIGNMENTS OF ERROR The assignments of error on appeal are as follaws a Louisiai Aevised Statuies SS 1 states i pertinent part a A Tl following shall be days of public rest and legal holidays and hall e olidays l 1 The follawing shall be days of public rest and legal holidays Sundays Lauisiana Cc c Givil Procedure article SOS9 prc de f vides a I computing a period c time allowed or prescribed by law or by order of f court the date of act event or default after which the period begins to the run is not included The last day of the period is to be included unless it is a le I in which event the period runs until the end of the next al oliday day which is not a le hc al liday 4 Counsel for appellant had some discussion with the trial court over whether the matter of the excessiveness of appeal costs was moot We do not believe the issue is moot and remand out ol abundancc of caution an 4 The trial court abused its discretion committed reversible error in rulin that La Demo petition ofnullity failed ta state a cause of action s The trial court abused its discretion committed reversible error in considering th entire record and not solely the petition for nullity in ruling that the petition for nullity failed to state a cause ofaction he T trial court abused its discretion committed reversible error in denying La Uemo the opportunity to amend the petition to state a cause of action DISCUSSI4N This appeal comes b us because of an exception of no cause o fore action which is triable on the face of the papers and for the purpose of determining the issues raised by the xc the court must presume that ptiot all well acts in the petition are true All reasonable inferences are pleaded made in favar of the nonmoving party in determining if the law affords any remedy Blackett v C of 33 La App 2 Cir 9 766 ity Monroe 339 00 7 2d So 76 770 If the allegations set forth a cause of action as to any part of the dein the exception must be overruled Lambert v Riverboat Gczming nd ment rc Enf Dzvrszvn 9b p 4 App 1 Cir 12 70b So 185b La 97 29 2d 172 175 We must therefore first examin La D spetition for nullity to mo determine whether the allegations are well pleaded La Demo statement of racts begins on paragraph 4 of the petition s The earlier proceedings of the court are laid out Although La Demo states the facts through its own biased perspective the facts up to this point are essentially undisputed and do not put forth anything that resembles a cause I of action We acce p t those facts true as In pa ag aph 13 however La r r Demo claims that LWCC failed to offer adequate priina facie evidence to e support tl Judgment and cas law for support 5 What La Demo is doing here is making a gal conclusiort l not an allegation based on fact La s Demo conclusiv statements go on rom there basing all of its allegations on the contention that LWCC did not make a prima faci case This claim is conclusive because the trial court did not rule that no prima facie case was made in LWCC ori petition La Demo makes the claim of its own s inal volition and seeks to prove the legal argument through its p Legal tition uments arare appropriate in memoranda but not in petitions that have to be completely factual La Demo petition therefore does not meet the s threshold standard that Lamb rt requires While Blackett requires us to accept well facts as true we are not required to accept La Demo pleaded s legal arguments as true Neither was the trial court required to accept the legal conclusions as true La Demo claims th trial court erred by going outside of its petition to rule on the xception The trial court recognized in its oral reasons for judgment of August 1 2011 that La Demo petition for nullity centered on s whether or not LWCC pres a prima facie case to the court While it is d nt truE that review of an exception for no cause of action should be limited to the four corners of the petition the trial court revi of anything else in s w the record for this case would be harmless error at most The petition is deficient on its face becaus it never states what constitutes the prima facie evidenc that LWCC was required but failed facie evidence standard is put forth in a statut to present or code article Often a prima La Demo s allud to no such thing and neither we nor the trial court should assume facts La Demo may have relied upan for its legal ar if La Demo ument does not provide them in its own petition LWCC exc oFno cause of ption action was properly sustained and both of La Demo assignments of error s which allege the trial court erred in ruling the petition for nullity fail to d 6 state a cause of action are without merit Likewise the assi of ex nment ror claiming the trial court exceeded tk boundaries of the petition in ruling on e the exception of no cause of action is without merit The final of assignment error claims the trial court erred by disallowing La Demo to amend its petition of nullity in order to stat a cause of action Upon a complete r the record we see that allowing view of La Demo to do so would b an act of futility that would unreasonably occupy the trial court time The main issue here is whether La Demo can s allege facts that it was a victim of traud or il1 practices by either LWCC or the trial court La Demo petition for nullity is based on the languag of La s P C art 2d04 which states A A final judgment obtained by for ill practices may b raud annulled B An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or il1 practices C The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds La Demo petition makes extensive use of the term fraud and ill s practices when discussing the court awarding of interest and attorney fees s to WCC s ILWCC deficient evidence according to La Demo fails to present a prima facie case and equates to fraud and ill practices To support this argument La Demo cites Kem Search Inc v Sheffield 434 So 1067 2d La 1983 which states that La ar 2004 is not limited to cases of P C actual fraud or intentional wrongdoing but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates even innocently to deprive 7 the party cast in judgment o legal right and where the enforcement of some the judgment would be unconscionable and inequitable Ic at 1070 La Demo us for factual similarity the case Temple v Iack 37G s son 2d So 972 La App 1 Cir 1979 where a vendoar who had been granted a default judgment in a breach of contract claim failed to enter into evidence adequate testimony and documents to prov dainages at the confirmation of the default hearing Likewise La Demo claims that LWCC pres as nted evidenc an affidavit of correctness of account where th affiant allegedly did not have personal knowledge of the total amount of unpaid premiums discovered in th audit of La Demo inancial records s According to La Demo this evidence is not sufficient to present a prima facie case on which a default judgment can be granted In Temple the Louisiana Supreme Cou t held that a lack of evidence such as was involved in that case constituted an ill practice sufficient to warrant annulment of the default judgment against the vendee Id With the Kem Search Inc and Te cases together La nple Demo believes the default judgment rendered against it came from a kind of fraud or ill practice that might not have been intentional on the part o LWCC but certainly aris to the level of improper procedur that deprived s La Demo of a right to defend against LWCC claims We disagree s La s Demo widespread inaction in its own defense cannot go unnoticed La Demo did not answer LWCC original petition v though s n there is no dispute that La Demo authorized agent was served La Ue s no did not file any exceptions raise any affirmative defenses or move for summary judgment against what it claims was poor evidence that did not even satisfy the minimal requirements of a prima facie case La Demo did not appeal the default judgment where the ailegations in its petition for nullity could have served well as assignments 8 of error Instead La De no waited until the eleventh hour to til this petition for nullity wk it had tl ich e legal right to do where it ess hashes out complaints that could have ntially been r be solved long are The action for nullity based on fraud or i practices is not intended as l a substitute for an appeal or as a second chance to prove a claim which was previously denied for failure of proof The purpose ot a nullity action is to prevent injustice which cannot be corrected through new trials and appeals First Lake Properties Inc v Smith 09 p 6 App 5 Cir 4 973 La 10 27 4Q So 3d 215 21 The claims asserted by La Demo in its petition for nullity could have been easily handled in an app b La Demo al cause essentially claims the trial court abused its discretion in its award of interest and attorney fees La Demo provides a very weak ar to explain its ument irraction in that it filed no pleadin in the anticipation that the court would s see that LWCC could not prove a prima facie case with the evidence presented The absenc of a valid and sufficient reason for a party failure s to defend a suit in which a default judgment was taken precludes that party frotn later maintainin an action for nullity of the judgment based on fraud or ill practices which could and should have been pleaded in the ori inal suiti Mitchell v Crane 485 So 613 615 La 1986 2d Fraud or ill practices which justify the annulment of a final judgment occur when the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief and wh the n enforcemertt of the judgment would be unconscionable and inequitable Kem Seczrch 434 So Zd at 1070 In the instant case La Demo was not deprived of any legal right La Demo waived its legal rights throu its h inaction La Demo could not remedy its defective petition by amendment This assignment of error lacks merit 9 CONCLUSION rom what is provid in the petition or nullity we see that La d Demo pr conclusive legal arguments instead af factuai allegations to sents prove fraud or ill practices that deprived it of a legal right to defend against s LWCC inal ori petition and no cause of action exists Nothing would prove La Demo has a cause af action for nullity of judgment because the failure to exercise a right is not the same as losin the right through inappropriate judicial procedure We therefore affirm the trial court s sustaining the exc ption DECREE The supervisory writ f led by La Demo to review the Nineteenth Judicial District Court overruling of its objection to the excessiveness of s appeals costs for bein untimeiy is granted The previous ruling by the trial court is vacated and the matter is remanded to th trial court for further proceedings consistent with this opinion The trial court ruling sustaining s the appellee LWCC exception for no cause of action against the appellant s La Demo is affirmed All costs o appeal are assessed to the appellant this TUDGMENT AFFIRMED WR GRANTED and REMANDED T lo

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.