Orleans Parish School Bd. v. Williams

• Decision Date: 24 April 1975
• Docket Number: No. 55541,55541
• Citation: 312 So.2d 647
• Parties: ORLEANS PARISH SCHOOL BOARD v. James Russell WILLIAMS.
• Court: Louisiana Supreme Court

Page 647

312 So.2d 647

ORLEANS PARISH SCHOOL BOARD v. James Russell WILLIAMS.

No. 55541.

Supreme Court of Louisiana.

April 24, 1975.

Franklin V. Endom, Jr., Richard G. Verlander, Jr., Polack, Rosenberg, Rittenberg & Endom, New Orleans, for plaintiff-applicants.

Emile W. Schneider, Lankford, Schneider & Lankford, New Orleans, for defendant-respondent.

BARHAM, Justice.

Relator, the Orleans Parish School Board (hereinafter referred to as School board), brought suit against respondent Williams, a former School Board employee, alleging that respondent overstated the number of hours he and the members of his cleaning crew worked in connection with a continuous heavy cleaning assignment; it was alleged that respondent was indebted to the School Board for $2,318.86, the amount purportedly overpaid as a result of the misstated hours of work. Respondent's answer denied that he was indebted to the School Board, and incorporated a reconventional demand. In the petition in reconvention, respondent alleged that the School Board entered into an agreement with him and his work crew whereby the crew members agreed to perform certain cleaning tasks in return for payment for eight hours' work for each day worked, regardless of the actual time spent in accomplishing the assigned tasks. Respondent further alleged that in January of 1972 a conspiracy arose to breach the terms of the agreement with respondent and his crew in furtherance of which the relator School Board sought to avoid its obligation under the agreement by determining at a hearing that respondent was indebted to the School Board for payment of hourly wages to himself and his crew in excess of wages due for hours actually worked. The respondent alleged that he was ordered by his employer to repay the money allegedly overpaid and, upon respondent's refusal to comply, was discharged. The reconventional demand avers that as a result of this conspiracy which charges that the respondent is indebted to the relator for money improperly obtained, and as a result of his discharge after twelve years of service, respondent has suffered irreparable damage to his reputation, embarrassment, loss of earning capacity and other enumerated damages.

In response to the reconventional demand, the relator School Board filed an exception of no right of action, claiming immunity from suit and liability under La.Const. art. XIX, § 26 (1921). The trial court maintained the exception and dismissed the reconventional demand. On appeal, the Fourth Circuit reversed. 300 So.2d 848. We granted writs to resolve the dispute. 303 So.2d 176.

After a thorough review of the record we determine that the most salient aspect of the case, and indeed the one dispositive of the issue of the School Board's immunity from suit and liability on respondent's reconventional demand, is the fact that the School Board submitted the issues of its relations with the respondent, and the rights and responsibilities attendant thereto, to the courts for adjudication when it instituted suit against Williams. By invoking the power and authority of the judicial system of adjust its relations with Williams Vis a vis the employment agreement which allegedly led to the overpayment of wages, the School Board concomitantly waived any immunity from suit it May have possessed. In Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Company, Inc., 273 So.2d 19 (La.1973), the majority expressed this idea in the following language:

'Here the Board sues, and when Splendour reconvenes on a claim arising from the same accident, the Board cries, 'King's X$ You can't sue me.' Not even the Board claims that its immunity is fair and just--only legal and traditional. The injustice may not be shocking to lawyers, accustomed to the frequent forfeiture of private advantage for public good. But when an unfair doctrine does not function for the public good, but only for the administrative convenience of a State Agency, the court should do whatever it can to infuse justice in the relationship between the State agency and the private person.'

In a concurring opinion filed in the Splendour case, Justice McCaleb stated:

'* * * the Board of Commissioners, as plaintiff in this suit against Splendour, has effected a waiver of its right to claim immunity from Splendour's reconventional demand which arises out of the same damage suit upon which plaintiff's claim is based. Such a demand, in my view, must be considered as an exception to the constitutional provision requiring legislative action to effect a waiver for, whenever the public agency seeks redress in its own Courts, it would seem but just and meet to conclude that it necessarily waives its immunity from any claim of the defendant cognate with the main demand.'

In keeping with our stated position in Splendour that it is our duty 'to infuse justice in the relationship between the State agency and the private person', we wholly concur in Justice McCaleb's theory of waiver which appears in his concurrence and hold that the School Board's action in seeking redress in the State's courts operates as a waiver of any immunity from suit and liability which may have existed insofar as this reconventional demand by the respondent is concerned because it is related to and arises out of the principal demand.

Thus, the Court the Appeal was correct in refusing to affirm the trial court's action in maintaining the School Board's exception to respondent's reconventional demand. However, since our decision that the School Board may not successfully interpose a plea of immunity to defeat respondent's reconventional demand is based on our determination that the School Board waived any immunity it might have had by filing the main demand, we pretermit a determination of the constitutionality of Act 67 of 1962, the basis upon which the Court of Appeal reversed the trial court's actions.

It is therefore ordered, adjudged and decreed that the judgment of the Court of Appeal be set aside. It is further ordered that the judgment of the trial court sustaining relator's exception be set aside and the exception overruled. Respondent's reconventional demand is reinstated. The case is remanded for further proceedings in accordance with the views herein expressed. Casting of costs is reserved for final disposition of the case in the trial court.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice (dissenting).

The Orleans Parish School Board instituted this suit against James Russell Williams alleging that he was indebted to the School Board in the sum of $2,318,86, plus interest from judicial demand. The suit is founded upon the representation that during 1971 the School Board had a number of individuals in its employ in a night cleaning crew. Williams, a long-time employee, was designated by the School Board to serve as foreman of the crew performing heavy-duty cleaning tasks at various schools on an hourly wage basis. As foreman, it was his responsibility to submit reports of the time worked by the crew. Wages due the crew members were calculated on the basis of these reports.

According to the petition, Williams overstated the number of hours worked by the crew; and, as a result, $2,318.86 was overpaid by the School Board.

Williams denied the allegation of the School Board's petition and reconvened, alleging that in April 1971 the School Board designated him to supervise the experimental night work crew, who were to be paid for an eight-hour day, regardless of the actual hours worked. During January 1972 one Richard Gregory, a member of the School Board's administrative staff, and the School Board are alleged to have conspired to breach the terms of the agreement of April 1971, seeking thereby to avoid responsibility for the experimental night crew arrangement and the wages paid. One objective of the conspiracy was to compel Williams to reimburse the School Board for the overpayment of wages. When Williams refused, he was discharged from his employment with loss of twelve years seniority, pension rights, sick pay and other benefits; and, he alleges, Gregory and the School Board have prevented him from obtaining equivalent employment.

These acts, Williams alleges, have defamed his character, and he prays for damages in the amount of $82,000 against Gregory and the School Board.

To this reconventional demand the School Board filed an exception of no right of action, asserting it was immune from suit and liability by Section 26 of Article XIX of the Constitution of 1921. The trial judge maintained the exception, and on appeal the Fourth Circuit reversed. 300 So.2d 848 (1974). Writs were granted on the application of the School Board. 303 So.2d 176.

This review is limited to the ruling on the immunity exception of the School Board. Issues involving the reconventional demand against Gregory are not before the Court at this time.

I

The summary of the School Board petition and Williams' reconventional demand are in some detail because of the state of this record. The trial court necessarily considered the reconventional demand to be in tort, and the Court of Appeal also refers to the reconventional demand as a claim in tort. Williams, to the contrary, contends that his reconventional demand is 'founded in contract and the damages sought are for breach of a contract.' Under Williams' contention, if the reconventional demand is Ex contractu, based on a contract entered into with the School Board, the School Board must be held to have waived any immunity to any claim cognate to the contract. La.Const. art. XIX, 26 (1921); La.R.S. 17:51. On the other hand, if the claim in reconvention is Ex delicto, the School Board's claim of immunity is conceded to be at issue.

In Louisiana separate actions for breach of contract and in tort may concurrently arise from the same set of circumstances. Liles v. Barnhart, 152 La. 419, 93 So. 490 (1922). The character of the action given by...