Paulette Cooper Versus City of Kenner ( 2020 )

PAULETTE COOPER NO. 19-CA-383
VERSUS FIFTH CIRCUIT
CITY OF KENNER COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE CITY OF KENNER CIVIL SERVICE BOARD
PARISH OF JEFFERSON, CITY OF KENNER, STATE OF LOUISIANA
NO. 18-1, DAVID RICHARDSON, CHAIRMAN PRESIDING
April 28, 2020
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Stephen J. Windhorst
APPEAL DISMISSED; REMANDED
FHW
SMC
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
PAULETTE COOPER
Clement P. Donelon
COUNSEL FOR DEFENDANT/APPELLANT,
CITY OF KENNER
C. A. Fleming, III
WICKER, J.
Defendant, the City of Kenner, appeals from a ruling of the City of Kenner
Civil Service Board (the Board), granting summary judgment in favor of plaintiff,
Paulette Cooper. For the following reasons, we dismiss Kenner’s appeal without
prejudice and remand this matter, as the ruling sought to be appealed is not a final
judgment in this matter.
PROCEDURAL HISTORY
On December 6, 2017, Ms. Cooper was terminated from her employment
with the City of Kenner Mayor’s Court. On January 5, 2018, Ms. Cooper
instituted this action by filing a Petition for Appeal to the City of Kenner Civil
Service Board (the Board), requesting that the Board hear her appeal and
revoke my termination, reinstate me back to my position as Court Manager
at my rate of pay (as of 12/6/17), reinstate my tenured service without
penalty and all back pay which may be owed to me. I also would request to
be compensated for any and all COBRA costs; expenses and/or co-pays.
And that this matter be redacted from my permanent file as it was never
brought forth.
Ms. Cooper apparently filed a motion for summary judgment as the record
contains a memorandum in support of a motion for summary judgment dated May
8, 2018 and a supplemental memorandum in support of a motion for summary
judgment filed on June 1, 2018.
The City filed a motion to dismiss Ms. Cooper’s petition for appeal and also
a motion for summary judgment on June 4, 2018.
Also on June 4, 2018, the Board rendered judgment on Ms. Cooper’s motion
as follows:
Accordingly, it is ordered that the Motion for Summary Judgement be, and
same is hereby, GRANTED. Disciplinary action against the Appellant is
overturned and seniority and backpay (sic) awarded. Per Civil Service Rule
II, Section 2.09(8), in cases in which back pay is awarded, the appellant shall
be required to file with the Finance Director a notarized statement of all
monies earned by appellant during the period of absence from the City
payroll, and such earnings shall be deducted in computing the amount of the
back pay award.
19-CA-383 1
There is no written judgment pertaining to the City of Kenner’s motion for
summary judgment.
On June 15, 2018, the City filed an Application for Reconsideration or
Rehearing and Motion for Stay, contending that Ms. Cooper’s motion for summary
judgment should not have been granted. The Civil Service Board denied the
Application on January 10, 2019.
On February 8, 2019, the City filed an appellate brief with the City’s Civil
Service Department. The City filed the identical brief in this court. There is no
motion for appeal, grant, or setting of return date in the record. Nevertheless, the
record was prepared and lodged in this Court on August 8, 2019.1
However, we dismiss this appeal and remand the matter, because the
judgment at issue is not final for purposes of immediate appeal and therefore is not
a final, appealable judgment.
Our review of the record in this matter reveals the following issues. First,
the Civil Service Board did not address and determine all of Ms. Cooper’s claims.
In this regard we could deem these claims are denied. When a judgment is silent
as to a claim or demand that was litigated, it is presumed to be deemed denied by
the trial court. Cambre v. St. John the Baptist Parish, 12-590 (La. App. 5 Cir.
05/16/13), 119 So.3d 73, 81, writ denied, 13-1415 (La. 10/11/13), 123 So.3d 1227.
However, because there is no transcript, we cannot determine whether her
additional claims were litigated or waived for failure to present evidence to support
them, or whether the Board even considered them. In brief to this court, the City
contends that the Board did not consider its motion for summary judgment.
1
On September 3, 2019, Ms. Cooper filed a motion to dismiss appeal in this court, arguing that this Court
does not have jurisdiction to hear an appeal from a decision of the Kenner Civil Service Board. In a per
curium opinion issued by this court on October 30, 2019, Ms. Cooper’s motion to dismiss was denied.
19-CA-383 2
In addition, the Board did not issue a ruling on the City’s motion to dismiss
or cross motion for summary judgment, and therefore the judgment in favor of Ms.
Cooper is not final for purposes of immediate appeal. La. C.C.P. art. 1915(B).2
Both parties treat the granting of Mrs. Cooper’s motion for summary
judgment as a ruling denying the City’s Motion. The City, in its appellate brief,
states that its motion was orally denied, without consideration, at the summary
judgment hearing. An oral ruling is not appealable. “[W]here there is no signed
judgment in the record, there is no final judgment from which appeal to a Court of
Appeal can be taken, the appeal is premature, and the Court of Appeal is required
ex proprio motu to dismiss the appeal. Louisiana Nat. Bank v. Hebert, 398 So. 2d
632, 634 (La. App. 4 Cir. 1981).
This court may not determine the merits of an appeal unless our jurisdiction
is properly invoked by a final judgment. Tomlinson v. Landmark Am. Ins. Co., 15-
0276, p. 2 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 156.
The judgment in this case does not dismiss any party from the suit and does
not decide all of the claims, demands, issues, or theories in the original action and
reconventional demand. Therefore, it is a partial summary judgment which cannot
be appealed unless it has been designated as a final judgment by the trial court after
an express determination that there is no just reason for delay. There is no such
determination in the judgment on appeal in this case.
There has been no certification of the partial judgment as final pursuant to
La. C.C.P. art. 1915, and therefore, we have no appellate jurisdiction to review it.
2
La. C.C.P. art. 1915(B) provides:
(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part,
as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in
an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment
shall not constitute a final judgment unless it is designated as a final judgment by the court after an
express determination that there is no just reason for delay.
2) In the absence of such a determination and designation, any such order or decision shall not constitute
a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition
of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
19-CA-383 3
In addition, because there is no transcript of the proceedings below, we are unable
to review some of the assignments of error raised by appellant, the City of Kenner.
Accordingly, we dismiss this appeal without prejudice, and remand this matter for
further proceedings. All costs of this appeal are assessed against the City of
Kenner.
APPEAL DISMISSED; REMANDED
19-CA-383 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 28, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-383
E-NOTIFIED
CITY OF KENNER CIVIL SERVICE BOARD (CLERK)
CLEMENT P. DONELON (APPELLEE) C. A. FLEMING, III (APPELLANT)
MAILED
DAVID RICHARDSON TODD MCDOWELL