Osborne v. Stone

• Decision Date: 25 June 1985
• Docket Number: No. CA,CA
• Parties: 26 Ed. Law Rep. 554 Milton OSBORNE, Jr. v. Jesse N. STONE, Jr., Individually, etc., et al. 84 0517.
• Court: Court of Appeal of Louisiana — District of US

Page 223

472 So.2d 223

26 Ed. Law Rep. 554

Milton OSBORNE, Jr. v. Jesse N. STONE, Jr., Individually, etc., et al.

No. CA 84 0517.

Court of Appeal of Louisiana First Circuit.

June 25, 1985.

Milton Osborne, Jr., Baton Rouge, for plaintiff-appellant Milton osborne, jr.

David G. Sanders, La. Dept. of Justice, Baton Rouge, for defendant-appellee Jesse N. Stone, Jr., individually & as president of the Southern University System: B.K. Agnihotri, individually & as Dean of Southern University School of Law & the Southern University Bd. of Suprs.

Before GROVER L. COVINGTON, C.J., and COLE, CARTER, LANIER and JOHN S. COVINGTON, JJ.

CARTER, Judge.

This is a suit by a tenured university professor for a declaratory judgment defining his employment status, reinstatement to his former position of employment, and all backpay, allowances, benefits and other emoluments of office. Defendants ¹ filed an "exception" of laches. After an evidentiary hearing, the trial court rendered judgment sustaining the exception of laches and dismissed the suit. This devolutive appeal followed.

FACTS

In August of 1971, Milton Osborne, Jr. became employed as a professor of law at Southern University School of Law. He acquired tenure in 1975. Because of a policy of the American Bar Association about faculty members not working full time in the law school, Dean B.K. Agnihotri of the Southern Law School began sending out a letter to all faculty members to ascertain their availability to teach on a full-time basis. After 1975, this letter of availability was customarily sent out every year to each faculty member.

On May 9, 1980, at a faculty meeting, a letter of availability was given to each faculty member requesting formal notice of availability to teach for the 1980-81 academic year. A reply was requested by May 16, 1980. Mr. Osborne was present at this meeting. When Mr. Osborne failed to timely communicate his intentions, Dean Agnihotri again requested notice of his availability to teach. Mr. Osborne was given until May 23, 1980, to respond, and, if no response was received by that date, it would be assumed that he was not available to teach. No response was received, and, by letter dated July 21, 1980, Dean Agnihotri informed Mr. Osborne that he would not be recommended as a member of the law faculty for the 1980-81 academic year.

By letter dated July 30, 1980, Mr. Osborne answered Dean Agnihotri's letter as follows:

Receipt of your letter of July 21, 1980 in which you disclosed an expression of intent not to recommend my appointment to the Law School Faculty for the 1980-81 academic year, is hereby acknowledged. Please be advised that I intend and expect that there would be no involuntary interruption of my employment as a tenured faculty member of the Southern University School of Law unless and until there has just been a finding of just cause after due deliberations and proceedings are had and made definitive.

I shall reserve my right to timely accept, reject or seek modification of my presumptively continuous tenured appointment as a member of the law school faculty only after having had a reasonable opportunity to thoroughly consider the terms and conditions of the appointment for the 1980-81 academic year.

Mr. Osborne was not assigned any classes, and he did not teach or attempt to teach in the 1980-81 academic year. Instead, two individuals were hired to replace Mr. Osborne and to teach his courses. Dean Agnihotri acknowledged that tenured professors are normally on continued appointment, but considered Mr. Osborne's nonavailability for the 1980-81 academic year as a resignation (and not a termination). ² At that time, Mr. Osborne did not request a hearing on the matter.

When preparing faculty recommendations for the 1981-82 academic year, Dean Agnihotri, by letter dated June 23, 1981, requested advice from Jesse N. Stone, Jr., the President of Southern, concerning the status of Mr. Osborne. By letter dated July 7, 1981, Mr. Robert Williams, counsel for Mr. Osborne, advised Dean Agnihotri of his client's availability to teach for the 1981-82 academic year. President Stone responded by letter dated August 3, 1981, informing Mr. Osborne that his abandonment of his job for one full academic year constituted a resignation. By letter dated November 21, 1981, Mr. Williams formally requested the Board of Supervisors of Southern University to review Mr. Osborne's case. On November 12, 1982, Mr. Osborne filed the present suit.

DOCTRINE OF LACHES

Laches is an equity doctrine of the common law that is without statutory (codal) basis in Louisiana. It has been engrafted jurisprudentially into our law to a limited degree. However, that jurisprudence is somewhat confused. State ex rel. Guste v. Estate of Himbert, 327 So.2d 698 (La.App. 1st Cir.1976), writs denied, 330 So.2d 308, 311 (La.1976). Because laches is an equity doctrine, Louisiana courts can only use it in the absence of express law. La.C.C. art. 21; Terrebonne Parish Police Jury v. Kelly, 428 So.2d 1092 (La.App. 1st Cir.1983). For example, laches is not applicable to bar a suit solely on the basis of the passage of time where the statutory law has established a prescriptive period. ³ Corbello v. Sutton, 446 So.2d 301 (La.1984); Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966); Succession of Picard, 238 La. 455, 115 So.2d 817 (1959). However, laches can provide a defense when other factors, coupled with the passage of time, are present.

The doctrine of laches has been applied to claims by public employees for reinstatement. In Williams v. Livingston Parish School Board, 191 So. 143, 144-145 (La.App. 1st Cir.1939), appears the following:

Sound public policy requires that an employee of a public body who claims to have been illegally discharged should press his claim for reinstatement with diligence and without unnecessary delay. The rule that laches on the part of such public employee will bar his claim for reinstatement is not based on any law of prescription or limitation of actions, but it arises from reasons of public policy. The processes of government must go on and employees and officials must be paid out of public revenue for carrying on the functions of government. Where a discharged employee sits idly by for an unreasonable length of time without pressing his claim for reinstatement, those charged with the duty of securing the necessary working personnel cannot hold up the administrative functions of government awaiting a decision on the part of the discharged employee as to what course he will take. The prevention of duplication of positions and the payment of double salaries requires such discharged employee, not only to press his demands, but also to submit his claim to the courts for adjudication without unnecessary delay.

See also Fields v. Rapides Parish School Board, 231 La. 914, 93 So.2d 214 (1957) and Doyal v. Bossier Parish School Board, 340 So.2d 392 (La.App. 2nd Cir.1976). To successfully invoke the doctrine of laches to unprescribed claims by a public employee, a public entity must prove (1) unreasonable delay by the employee in presenting his claim, and (2) substantial prejudice to or upset of the public's fiscal affairs. Bradford v. City of Shreveport, 305 So.2d 487 (La.1974); Stansbury v. City of Opelousas, 341 So.2d 33 (La.App. 3rd Cir.1976), writ refused, 343 So.2d 197 (La.1977). The application of the doctrine of laches is within the discretion of the trial court, and each case must be decided on its own facts and circumstances. Molero v. Bass, 322 So.2d 452 (La.App. 4th Cir.1975), writ denied, 325 So.2d 609 (La.1976).

Mr. Osborne contends that laches is an affirmative defense which can only be determined after a trial on the merits and that it was error to decide its applicability on the trial of an exception. The appellees contend laches can properly be raised by way of an exception.

LSA-C.C.P. art. 927 provides that the objections which may be raised through the peremptory exception include, but are not limited to the five enumerated objections set forth in that article. The note to art. 927 provides: "The list is illustrative, not restrictive." The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent or barred by law, and hence the exception tends to dismiss or defeat the action. LSA-C.C.P. art. 923.

The jurisprudence has treated the doctrine of laches as both an exception and as an affirmative defense. In Bradford v. City of Shreveport, supra, Munson v. Martin, supra, Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946), Stansbury v. City of Opelousas, supra, Doyal v. Bossier Parish School Board, supra, and Kachelmyer v. Ames, 335 So.2d 525 (La.App. 1st Cir.1976), laches was treated as an affirmative defense to be heard on the merits. In Corbello v. Sutton, supra, Succession of Picard, supra, and Williams v. Livingston Parish School Board, supra, laches was asserted by an exception, but the exception was referred to and decided on the merits. In Molero v. Bass, supra, the court ruled laches could be determined after an evidentiary hearing on an exception pleading laches or on the merits of the case. In Barnett v. Develle, 289 So.2d 129 (La.1974), Miller v. East Ascension Telephone Company, Inc., 331 So.2d 182 (La.App. 1st Cir.1976) and Albritton v. Union Parish School Board, 307 So.2d 676 (La.App. 2nd Cir.1975), writs denied, 310 So.2d 844 (La.1975), laches claims were heard on exceptions. (In Barnett and Miller, the exceptions were overruled, and, in Albritton, the exception was sustained.)

Whether laches may be raised by objection as a peremptory exception or whether laches constitutes an affirmative defense on the merits must be determined on a case by case basis.

On May 9, 1980, plaintiff was made aware of the reasonable requirement that he make known his availability to teach for the 1980-1981 academic year. The chronology of events thereafter clearly demonstrated plaintiff's...