La. Workers' Comp. Corp. v. La. Demolition, Inc.
| Citation | 93 So.3d 765 |
| Decision Date | 08 June 2012 |
| Docket Number | 2011 CW 2398.,Nos. 2011 CA 2232,s. 2011 CA 2232 |
| Parties | LOUISIANA WORKERS' COMPENSATION CORPORATION v. LOUISIANA DEMOLITION, INC. Louisiana Workers' Compensation Corporation v. Louisiana Demolition, Inc. |
| Court | Court of Appeal of Louisiana (US) |
93 So.3d 765
LOUISIANA WORKERS' COMPENSATION CORPORATION
v.
LOUISIANA DEMOLITION, INC.
Louisiana Workers' Compensation Corporation
v.
Louisiana Demolition, Inc.
Nos. 2011 CA 2232, 2011 CW 2398.
Court of Appeal of Louisiana,
First Circuit.
June 8, 2012.
[93 So.3d 766]
Paul Rumage, Baton Rouge, LA, for Defendant/Relator Louisiana Demolition, Inc.
Chad S. Berry, Baton Rouge, LA, for Plaintiff/Respondent Louisiana Workers' Compensation Corporation.
Before GAIDRY, McDONALD, and HUGHES, JJ.
GAIDRY, J.
[1 Cir. 2]This is an appeal from the Nineteenth Judicial District Court's granting of an exception 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's petition for nullity of judgment, with prejudice. A supervisory writ filed by La. Demo seeking this Court's review of an overruling by the Nineteenth 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 affirm the trial court's ruling on the exception for no cause of action.
LWCC filed an original petition on or about November 6, 2008.1 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 18, 2010 and a default judgment was signed on November 23, 2010.
La. Demo filed a “Petition for Nullity,” which does not explain why it 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 insufficiency of LWCC's 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 granted. The trial court stated that the issues raised in the petition for nullity “are issues either for a new trial or appeal.”
[1 Cir. 3]La. Demo timely filed a motion and order for appeal on the court's ruling on the exception of no cause of action. The order granting a devolutive appeal was signed on August 31, 2011. The Clerk of Court for the 19th JDC mailed a “Notice of Estimated Appeals Charges” to La. Demo's counsel on September 19, 2011. On October 10, 2011, La. Demo filed an objection to the excessiveness of the costs. The trial court, ex parte, overruled the
[93 So.3d 767]
objection as untimely, giving as reason that La.C.C.P. art. 2126 grants the movant twenty days from the mailing of notice of the costs to file the motion. Notice of costs was sent to La. Demo on September 19, 2011, and the court concluded the twenty day period ended on October 9, 2011, making La. Demo's filing untimely by one day.
The date which La. Demo filed the writ is not in dispute. In a case in which there are no contested issues of fact, and the only issue is the application of the law to the undisputed facts, the proper standard of review is whether or not there has been legal error. Starks v. American Bank Nat. Ass'n, 2004–1219, p. 2, 3 (La.App. 3 Cir. 5/4/05), 901 So.2d 1243, 1245.
Exception of No Cause of ActionA 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 defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as [1 Cir. 4]true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Aycock v. Chicola, 09–563, p. 3 (La.App. 3 Cir. 12/16/09) 27 So.3d 1005, 1007. Therefore, exceptions of no cause of action present legal questions, and are reviewed under the de novo standard of review. Phillips v. Gibbs, 2010–0175 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 797.
Little needs to be said of the supervisory writ, because the trial court admitted it had miscalculated the time period for La. Demo to file its objection to the excessiveness of appeal costs. Succinctly, October 10, 2011 was the last day for La. Demo to file the objection, because October 9 fell on a Sunday.2 Therefore the deadline to file had to be carried over to the next day pursuant to La.C.C.P. art. 5059.3 We acknowledge the miscalculation, grant the supervisory writ, and remand the matter to the trial court for further proceedings, if any are to be had.4
The assignments of error on appeal are as follows:
[1 Cir. 5]The trial court abused its discretion (committed reversible error) in ruling that
[93 So.3d 768]
La. Demo's petition of nullity failed to state a cause of action;
The trial court abused its discretion (committed reversible error) in considering the entire record and not solely the petition for nullity in ruling that the petition for nullity failed to state a cause of action;
The trial court abused its discretion (committed reversible error) in denying La. Demo the opportunity to amend the petition to state a cause of action.
This appeal comes before us because of an exception of no cause of action, which is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of the nonmoving party in determining if the law affords any remedy. Blackett v. City of Monroe, 33,339 (La.App. 2 Cir. 9/7/00), 766 So.2d 768, 770. If the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Lambert v. Riverboat Gaming Enforcement Division, 96–1856, p. 4 (La.App. 1 Cir. 12/29/97), 706 So.2d 172, 175. We must therefore first examine La. Demo's petition for nullity to determine whether the allegations are well-pleaded.
La. Demo's statement of facts begins on paragraph 4 of the petition. 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 of action. We accept those facts as true. In paragraph 13, however, La. Demo claims that LWCC “failed to offer adequate prima facie evidence to support the Judgment” and case law for support. What La. Demo is doing [1 Cir. 6]here is making a legal conclusion, not an allegation based on fact. La. Demo's conclusive...
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