Southeastern Louisiana University VS Mark Cook

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STATE OF LOUISIANA COURT OF APPEAL FIRST CTRCUIT Z012 CA 0021 SOUTHEASTERN LOUISIANA UNIV RSITY VERSUS MARK COOK udgment Rendered SEP 2 1 2q12 On Appeal from the Office of Workers Compensation District 6 In and for the Parish of Livingston State of Louisiana Dacket No 11 00997 Hanarable Gwendolyn F Thompson Workers Compensation Judge Presiding James D Attorney Buddy Caldwell General Jodi A Moscona Counsel for Plaintiff Appellant State of Louisiana Southeastern Louisiana University Assistant Attorney General Baton Rouge Lauisiana Nelson Dan Taylor Thibodaux Louisiana BEFORE Counsel for Defendant Appellee Mark Cook WHIPPLE McCLENDON AND HIGGINBOTHAM MCCLENDON Appellant seeks review of an Office of Warkers Compensatian OWC judgment dismissing with prejudice its d Disput Claim for Compensation For the fallowing rwe reverse the judgment and remand this matter to the asans OWC to allow appellant to amend its Disputed Claim for Compensation FACTS AND PROCEDURAL HISTORY In March 2007 Mark Cook was injured while in the caurse and scope of his emplayment at Sautheastern Louisiana Mr University Cook has been receiving warkers compensation bene since that time ts On February 9 2011 Mr Caak employer the State of Louisiana s astern South Louisiana University he State filed a disputed claim far compensation alleging that Mr Cook was in v of LSA 23 ialation S R 1208 Follawing Mr Cook failure to file an answer the State maved for a preliminary s default which was denied by the Office of Warkers Compensation OWC because the facts cancerning the statutary violatian had not been specifically pled Mr Cook subsequently answered the petition and lodged the following objection in his answer The petition fled is insuffici on its face to sustain a nt violatian af S R1208 LSA 23 The p contains no supparting facts and tition should be dismissed after Ther the State issued discovery and attempted to set the deposition of Mr Cook Having received no discovery responses and based on Mr Caok s failure to appear for his scheduled depasition the State filed a Motion to Campel Answers to Discovery and a Motian ta Compel Deposition On 7uly 27 2011 a status conference was held The OWC denied the motion to compel Mr Cook deposition based upon Mr Cook objection alleging s s that the State in its disputed claim failed ta allege specific facts to warrant a 2 violation of LSA 23 The OWC hawever ordered Mr Cook to r S R 1208 spond to the other autstanding discover within fifteen days The OWC also allawed the State ta file an amended Disputed Claim for Compensation to allege statutary violations In its amendment the State amended paragraph 15 C 12 to ras follows ad ather claimant Mark Cook has violated Louisiana Revised Statute 23 208 by misrepresenting the information contained in various s Employer Monthly Request af Earnings Forms LDOL WG1020 filed with employer misrepresenting the extent of his injuries his actual physical condition his ability ta work his ability to earn income and his actual incame and incame sources The amended claim was accepted by the OWC by an order sign on uly 28 d 2Q11 On September 9 2011 Mr Cook filed a Motion to Dismiss contending that the State has provided no informatian from which the Administrative Law Judge can determine wh there is an actual factual basis ar a frivolous ther inquiry behind these proceedings Mr Cook asserted that the case has all the markings of a fishing expeditipn where the State really does not have a cause but is looking to see if there might b samething that it does nat know about Emphasis added Following a hearing on th Motian to Dismiss the OWC first stat d This is M Cook Motion for Dismissal which the cpurt rk s s the Court is reading as more appropriately an exception of no cause of actian seeking a dismissal because af that and that how s m I reading this motion I am granting the motion that this does not state a cause of action this first amended petition S the tate has 15 days to amend and file its second amended petition and to s Th State is alleging allege specific fac of alleged fraud conclusions However following the State objection to the OWC granting the exception of s na cause of action the OWC subsequently granted Mr Cook Motion to Dismiss s issuing a final judgment dismissing the case with prejudice without allowing the State an opportunity to amend Mr Cook has not yet responded ko the propaunded discovery 3 The State has appealed asserting that the QWC erred in dismissing its Disputed Claim for Compensation with prejudice The State alsa asserts that the OWC erred in denying the State Mation to Compel Discovery and Deposition s DISCUSSION ouisiana lis a fact pleading state that values substance over form and does no rthe use of magic titles or terminolagy as a threshold quire requirement far validly pleading a action Wheat v Nievar 07 p 0680 5 App La 1 Cir 2 984 So 773 7 Caurts should look through the 08 8 2d 6 caption of pleadings in arder to ascertain their substance and to do substantial justice to the parties Smith v Cajun Insulation Inc 392 Sa 398 402 n 2d La 2 1980 See also LSA art 865 P C We read Mr Coak Motion ta s Dismiss to include the dilatory exception raising the objection of vagueness or and the peremptory exception raising the abjectian af no cause of action A cause of actian far purposes of the peremptory exception is defined as the operative facts that give rise to the plaintifF right to judicially assert the s action against the defendant Ramey v DeCaire 03 p La 3 1299 7 04 19 869 So 2d 114 118 The functian of the exception of no cause of actian is to test the legal sufficiency of the petition by determining whether the law affords a remedy an the facts alleged on the petition Id Generally no evidence may be introduced to support or contravert the exceptian raising the objection of no cause af actian LSA art 931 P C Ramey 03 a p 869 So at 118 Tn addition all facts pled in the 1299 7 2d petition must be accepted as true and any doubts are resolved in favor of the sufficiency of the petition to state a cause of action Ramey id If the petition alleges sufficient facts to establish a case cognizable in law the exception raising the objection of no cause of actian must fail Rebardi v Crewboats Inc 04 0641 pp 3 La 1 Cir 2 1 906 So 455 457 However the mere 4 App 05 2d conclusions af the plaintiff unsupported by facts do not set forth a cause of action Montalvo v Sondes 93 p 6 5G37 So 127 131 2813 La 23 94 2d 4 Appeliate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action de novo Ramey 03 at p 7 1299 869 So at 1 This is becaus the exception rais a questian of law and the 2d 9 s trial cour d is based anly on the sufficiency of the petition Ramey 03 s cision 1299 at pp 7 869 Sa at 119 8 2d By contrast the purpose of the dilatory exceptian of vagueness is to place the defendant on notice of the nature of the facts sought to be proved sa as to enable him to identify the cause of action thus preventing its future relitigation after a judgment is obtained in the present suit Vanderbrook v Jean 06 1975 p 5 1 Cir 2 959 So 965 968 However the objection App La 07 14 2d of vagueness does not entitle the defendant to demand exactitude and detail of pleading beyond what is necessary ta fulfill these aims Vanderbrook 06 1975 at p 5 9S9 So at 968 If the plaintifFs petition fairly informs the defendant of 2d the nature of he cause ofi actian and includes sufficient substantial particulars ta enable the defendant to prepare its defiens then the exception of vagueness will be denied Id Because the exception of vagueness is a dilatary exceptian it must be pleaded prior ta or in the answer or it is waived LSA arts P C A 926 and 928 Vanderbrook 06 at p 5 9S9 So at 968 1975 2d Mr Cook cantends that the allegations in the State amended petition fail s ta allege specific facts Mr Cook asserts that the State does not have a cause of ac but ion is looking to see if there might be something He alleges that such conduct is an abuse of the administrative judicial process and that the State is required as a matter of law ta inform him as to the specific facts by which it claimed that he committed fraud We note that the State in its amended petition alleged that the employee misrepresented information in the 1020 farms including that the employee lied about the extent af his injuri that the emplayee lied about his physical s condition that the employee lied about his ability to work and that the employee lied about his ability to earn income Although nat pleaded with particularity the allegations da minimally sta a cause of action under LSA e S R 5 1208 23 in that the State alleges that the emplayee made several false statements ta receive benefits under the Louisiana Warkers Compensation Act A claim of vagueness ar uncertainty directed at the factual allegations is subject to an exception raising the objection af vagueness not the exception of no cause af action Pelts Skins l v Louisiana Dept of Wildlife and C L isheries 05 p La 1 Cir 6 38 So 1047 1053 writ 0952 8 App 06 21 2d denied 06 La 10 939 So 281 1 18 06 27 2d Although the State maintains that Mr Coak never filed an exceptian of vagueness as noted above substance is valued aver form and the law does not require the use of magic titles or terminalogy as a threshold requirement for validly pleading failur to an action over Mor Mr Caak initially objected to the State s plead specific facts in his answer As such the dilatory exception raising the objection of vagueness was timely pled LSA 928A P C While the State contends that its amended petition was sufficient to put Mr Caak on notice of the nature of the facts saught ta be proved the State has nat alleged any sufficiently substantial particulars to enable Mr Cook to prepare his defense an the fraud or misrepresentation claims ven so when the grounds of the objections pleaded in the dilatary action may be removed by amendment of the pe or other action by plaintiff the trial court is required ition by LSA art 933 ta order the plaintifF ta remove the grounds for objection P GC within the delays allowed by the caurt and it can dismiss the suit only for noncompliance with this order Accordingly we remand this matter to the OWC to give the S an opportunity to amend the Disputed Claim for Compensation ate to cure the vagueness Z We recognize that the OWC previausly orally ordered the State to amend its pisputed Claim for Campensation to allege specific facts of alleged fraud Although the State failed to amend its Disputed Claim for Compensation with sufficient particularity the law takes a liberal approach toward allowing amended pleadings in arder to promote the interests of justice Klein v American Life Cas Co p1 p La 1 Cir 6 8S8 So 527 531 writs 2336 S App 03 27 2d denied 03 03 La 11 8S7 So 497 857 Sa 499 MoreovEr under the 2073 ZiQi 03 7 Zd 2d circumstances herein it appears that the objection may be curable and we cannot conclude that allowing an additional amendment would be a vain and useless act See Prudential Ins Ca of America 3 v CC F Batan Rouge Dev Co 93 p 13 La 1 Cir 10 647 So 2074 App 94 7 2d 139 6 The State also asserts that it had the right to propound written discovery and to take Mr Cook deposition We note that prior to the dismissal the OWC s although it denied the State motion o compel Mr Cook deposition ardered s s Mr Cook to respond to discovery written In light of its ruling dismissing the case the OWC never addr Mr Cook failure ta respond to the discov ssed s ry requests Under these ances circums Mr discavery should be addressed in the s Cook failure to respond the proceedings before the OWC See LSA P C arts 1470 and 1471 Additionally considering this court ruling the OWC s is ordered to revisit the State motion to compel Mr Cook deposition s s CONCLUSION For the foregoing reasons the s OWC judgment dismissing with prejudice the S Disputed Claim for Compensation is revers and this s ate d matter is remanded to the Office of Workers Compensatian to permit the State to amend its Disputed Claim for Compensatian within thirty days of this decision becoming final to cure the defects af vagueness and to revisit th State mation s to s l comp Mr Cook deposition All costs of this appeal are ass to ssed defendant Mark Cook UDGMENT REVERSED MATTER REMANDED 3 The OWC denied the motion based on employee oral objection to the 1008 filed by the s employer on failure to allege any specific facts of 12Q8 vialation 7

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