ROSEMARY LEDET, Judge.
This is an accidental disability retirement benefits dispute. The plaintiff, Mary Bates, commenced this suit against her former employer, the City of New Orleans (the "City") and the New Orleans Employees' Retirement System ("NOMERS"). The following is a chronology of the trial court's judgments in this case:
These two consolidated appeals are from the April 26 and the August 9, 2013 judgments, respectively. For the reasons that follow, we reverse in part the April 26, 2013 judgment; and reverse in full the August 9, 2013 judgment.
On February 22, 1999, Ms. Bates sustained a work-related accident during the course of her employment with the City as a procurement supervisor. As a result of her injuries, she developed a permanent disability that prevented her from returning to work. In October 2005, in the aftermath of Hurricane Katrina, Ms. Bates, along with about three thousand other City employees, was laid off.
From February 22, 1999 through February 22, 2009, the City paid Ms. Bates workers' compensation benefits. On April 20, 2009, Ms. Bates filed a disputed claim for compensation with the Louisiana Office of Workers' Compensation; she claimed that there was a dispute regarding her disability status and the February 22, 2009 termination of her indemnity benefits. On December 30, 2009, Ms. Bates settled her workers' compensation claim for a total amount of $41,500.00. The settlement agreement expressly indicated that $8,300.00 of the total amount was for Ms. Bates' attorneys' fee award. On January 5, 2010, the Workers' Compensation Judge approved the settlement agreement.
On October 12, 2010, Ms. Bates filed a Petition for Breach of Contract and Damages against the City and NOMERS. In her petition, she averred that she was vested and eligible for accidental disability retirement benefits under the City's retirement system as a result of the February 22, 1999 work-related injury she sustained. She further averred that her benefits claim was improperly denied as not timely filed during her employment and that she was entitled by the contract and the law to receive those benefits.
Both the City and NOMERS answered the suit. In their answers, they both included the following affirmative defense: "a credit and/or setoff from any sums paid to or on behalf of petitioners by defendants
On September 24, 2012, a bench trial was held; and the trial court took the matter under advisement. On October 31, 2012, the trial court rendered judgment in Ms. Bates' favor, ruling:
Neither a motion for new trial, nor an appeal was taken from this judgment.
In response to the October 31, 2012 judgment, on January 8, 2013, Jesse Evans, Jr., Director of the City of New Orleans Employees' Retirement System, sent a letter to Ms. Bates setting forth the calculation of her monthly retirement benefits and the time line for payment of the benefits; his letter stated:
In response to Mr. Evans' letter, on January 10, 2013, Ms. Bates' attorney sent two faxes to two different recipients. First, he sent the following fax to Mr. Evans:
Second, Ms. Bates' attorney sent the following fax to the City's attorney:
On February 22, 2013, Ms. Bates filed three motions: a Motion for Assessment of Costs; a Motion to Enforce the October 31, 2012 Judgment; and a Motion to Hold Defendants in Contempt. On April 12, 2013, a hearing was held on the motions. At the hearing, Ms. Bates' counsel withdrew the Motion to Hold Defendants in Contempt. On April 26, 2013, the trial court rendered judgment granting Ms. Bates' Motion to Enforce the October 31, 2012 Judgment and her Motion for Assessment of Costs. In its judgment, the trial court stated that its October 31, 2012 judgment was "now final and enforceable." The trial court also made the following rulings:
Thereafter, Ms. Bates filed a second Motion to Hold the Defendants in Contempt; and the City and NOMERS filed a suspensive appeal from the April 26, 2013 judgment.
On June 10, 2013, the City and NOMERS filed an Expedited Motion and Order to Stay Proceedings. In their motion, they pointed out that they had filed a suspensive appeal from the trial court's April 26, 2013 judgment. They further pointed out that they had been advised by Ms. Bates' attorney that he intended to go forward with the hearing scheduled for June 21, 2013 on the second Motion to
On June 11, 2013, the trial court granted the Expedited Motion and Order to Stay Proceedings, issuing the following order:
Despite the above stay order, the June 21, 2013 hearing on the motion for contempt was held.
These consolidated appeals followed.
This court reviews a trial court's factual findings under a manifest error standard. The manifest error standard is one "of great deference to the factual findings of the trier of fact." 1 Frank L. Maraist & Harry T. Lemmon, La. Civ. L. Treatise, CIVIL PROCEDURE § 14:14 (1999). The phrase "manifestly erroneous," in its simplest terms, means "clearly wrong." Id. (citing Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978)). "Mixed questions of law and fact are also reviewed under the manifest error standard." Jones v. Capitol Enterprises, Inc., 11-0956, pp. 10-11 (La.App. 4 Cir. 5/9/12), 89 So.3d 474, 483, writ denied, 12-1634 (La.10/26/12), 99 So.3d 651 (citations omitted).
Pure questions of law are reviewed under a de novo standard "without deference to the legal conclusions of the courts below." Durio v. Horace Mann Ins. Co., 11-0084, p. 14 (La.10/25/11), 74 So.3d 1159, 1168; see also Burnette v. Stalder, 00-2167, p. 5 (La.6/29/01) 789 So.2d 573, 577 (noting that a de novo review standard applies to issues of statutory construction); Henderson v. Bigelow, 07-1441, p. 8 (La. App. 4 Cir. 4/9/08), 982 So.2d 941, 946. As to questions of law, "the standard of review of an appellate court is simply whether the court's interpretive decision is legally correct." Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C., 10-1303, p. 4 (La.App. 4 Cir. 9/21/11), 75 So.3d 471, 474 (citing Glass v. Alton Ochsner Medical Foundation, 02-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405).
In addressing the arguments raised by the City and NOMERS in their two consolidated appeals,
The pivotal issue on this appeal is whether the City and NOMERS are entitled to an offset under New Orleans City Ordinance, Section 114-226 for the workers' compensation benefits the City paid Ms. Bates pursuant to the December 2009 settlement agreement.
Ms. Bates counters that the offset the City and NOMERS seek is relief requested and an affirmative defense. Continuing, she argues that because the October 31, 2012 judgment did not award an offset or a credit, the affirmative defense of offset was denied by the silence of the judgment.
Agreeing with Ms. Bates,
Although in certain other cases courts have recognized offset as an affirmative defense, "[a]n issue does not automatically become an affirmative defense, as that term is defined by Louisiana case law, simply because it appears among the items listed in La. C.C.P. art. 1005, or because courts have recognized it as an affirmative defense in other cases." Bienvenu v. Allstate Ins. Co., 01-2248, p. 5 (La.App. 4 Cir. 5/8/02), 819 So.2d 1077, 1080. Rather, whether an issue is an affirmative defense is a question of fact that must be resolved by consideration of the circumstances of the particular case. Id.
The jurisprudence defines an affirmative defense as a defense that "raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action." Allvend, Inc. v. Payphone Commissions Co., Inc., 00-0661, p. 5 (La.App. 4 Cir. 5/23/01), 804 So.2d 27, 30; Webster v. Rushing, 316 So.2d 111, 114, n. 8 (La.1975) (noting that "Black's Law Dictionary Fourth Edition, defines `affirmative defense' as: `New matter constituting a defense; new matter which, assuming the complaint to be true, constitutes a defense to it.'") "Implicit in that definition is the conclusion that a defendant is not required to raise an issue as an affirmative defense if it does not raise a `new matter.'" Bienvenu, 01-2248 at p. 5, 819 So.2d at 1080. Additionally, "the purpose of the rule established by La. C.C.P. art. 1005, requiring that defendants specially plead affirmative defenses, is `to give fair notice of the nature of the defense and thereby prevent a last minute surprise to the plaintiff.'" Id. (quoting Allvend, 00-0661 at p. 3, 804 So.2d at 29).
Applying these principles, the First Circuit in Fishbein v. State ex rel. LSU Health Sciences Center, 06-0549 (La.App. 1 Cir. 3/9/07), 960 So.2d 67, a retirement benefits dispute, rejected Dr. Fishbein's (the plaintiff's) argument that the application of two statutes constituted affirmative defenses. The two statutes were La. R.S. 11:701(5) — which defined "average compensation" and established the method of computing a member's retirement benefits under the statutory scheme — and La. R.S. 11:888 — which provided a correction mechanism for an "error as to the earnings or salary of a [TRSL] member" under the statutory scheme. In rejecting Dr. Fishbein's argument that these statutory provisions were affirmative defenses, the First Circuit reasoned:
Fishbein, 06-0549 at p. 7, 960 So.2d at 72.
By analogy, the offset contained Sec. 114-226 is not a new matter; rather, it is simply a part of the statutory scheme set forth in the Code of the City of New Orleans under which Ms. Bates is seeking to obtain accidental disability retirement benefits. Indeed, the offset ordinance, Sec. 114-226, cross-references the ordinance on which Ms. Bates' benefits claim is based, Sec. 114-208.
The second issue is the whether the April 26, 2013 judgment is an improper amended judgment. The City and NOMERS contend that the trial court, by adding to its original judgment the limiting language — "without any credit or offset" — issued an improper amended judgment in violation of La. C.C.P. art. 1951. In support, they cite the jurisprudence holding that an amendment that adds to, subtracts from, or in any way affects the substance of a judgment is an improper substantive amendment to the judgment. Ms. Bates counters that the April 26, 2013 judgment did not alter or change the effects of the October 31, 2012 judgment. Rather, she contends that "[i]t is obvious that the Judge never intended to allow defendants any credit or offset."
The governing statutory provision is La. C.C.P. art. 1951,
The jurisprudence construing La. C.C.P. art. 1951 has outlined the following well-settled parameters regarding a court's authority to amend a final judgment:
Applying these principles, we find that the trial court, in ruling on Ms. Bates' motion to enforce the October 31, 2012 judgment, was limited to enforcing the original judgment as written. By adding the limiting language, the trial court did not enforce the initial judgment; rather, it made an improper substantive amendment to the original judgment. To the extent the trial court in the April 23, 2013 judgment added the limiting language, the amended judgment is a nullity. Hence, we set aside the limiting language added in the April 23, 2013 judgment and reinstate the language of the original October 31, 2012 judgment.
In the April 26, 2013 judgment, the trial court also ordered the City and NOMERS to pay Ms. Bates' costs in the specific sum of $484.90 and in the general sum of "all outstanding costs for this suit including all costs associated with these motions." The City and NOMERS assign as error the trial court's assessment of costs against them. In support, they contend that given their compliance with the October 31, 2012 judgment, the trial court had no basis on which to assess costs against them.
The record reflects that the trial court's basis for assessing costs in the specific sum of $484.90 was Ms. Bates' Motion for Assessment of Costs for the underlying trial. The motion was supported by documentation of costs in the specific sum of $484.90 — $370.90 for depositions and $114.00 for filing fees. We find no abuse of discretion in the award of the specific sum of $484.90 for those costs. See La. C.C.P. art. 1920 (providing that "the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable"). We, however, find that the trial court's general award of costs in the April 23, 2013 judgment — its award of "all outstanding costs for this suit including all costs associated with these motions" — was legally erroneous. In suits against state entities, such as the City and NOMERS, La. R.S. 13:5112(A) mandates that cost awards be for a specific sum.
The second judgment from which the City and NOMERS appeal is the August 9, 2013 judgment granting Ms. Bates' contempt motion, imposing $1,500.00 in sanctions, and awarding "all costs associated with these motions as well as attorneys' fees." The City and NOMERS contend that the trial court lacked jurisdiction to consider or rule on the execution of the judgment under appeal — the April 26, 2013 judgment — and that the judgment granting the second Motion to Hold Defendants in Contempt was invalid. Furthermore, they contend that the trial court lacked jurisdiction to consider or rule on Ms. Bates' second contempt motion because none of the exceptions enumerated in La. C.C.P. art.2088 apply. They also emphasize that the trial court neither verbally, nor in its judgment, voided or rescinded its stay order.
Ms. Bates counters that her motion for contempt was based on the October 31, 2012 judgment, which was a final, non-appealable judgment. As to the stay order, Ms. Bates explains that the trial court, agreeing with her argument, orally lifted the stay. She further explains that the argument she made to the trial court, which is the same argument she re-urges in opposition to this appeal, is two-fold. First, she contends that the City and NOMERS were barred by res judicata from raising the issue of the credit or offset in the trial or the appellate court because that relief was denied in the October 31, 2012 judgment, which was final and enforceable. La. R.S. 13:4231. Second, in the alternative, she contends that even if the City and NOMERS were entitled to an offset or a credit, it was only on the workers' compensation benefits — not the medical benefits or the attorneys' fee award — she received in the settlement.
Calculating the offset, Ms. Bates contends that the total settlement amount of $41,500.00 included $8,300.00 for an attorneys' fee award and $17,906.25 for "medical benefits" — for a Medicare set aside — and thus the net amount of workers' compensation benefits she received was only $15,203.75.
Under the plain language of La. C.C.P. art.2088, a trial court's jurisdiction is divested on the taking of an appeal only as to "matters in the case reviewable under the appeal."
Applying these principles, we find, as the City and NOMERS contend, that the issue of the Sec. 114-226 offset was a "matter reviewable on appeal" from the April 26, 2013 judgment. The record reflects that the issue of the offset was a pivotal part of the trial court's determination that the City and NOMERS were in contempt. Indeed, at the hearing on the contempt motion, Ms. Bates' counsel stated that "the defendants main thrust of not being held in contempt is that there's a question on whether they're entitled to an offset." At the hearing, the trial court judge questioned the attorney for the City and NOMERS whether they had "pulled out [from the total settlement amount] the medical benefits and the attorney's fees," as suggested by Ms. Bates' counsel's calculation of the offset. Given that the contempt motion centered around the offset issue, which was an issue reviewable on appeal, we find the trial court was divested of jurisdiction to consider and rule upon the motion. Accordingly, we reverse the trial court's April 9, 2013 judgment in its entirety.
For the foregoing reasons, the trial court's April 26, 2013 is affirmed only insofar as it awards $484.90 in costs against the City of New Orleans and the New Orleans Employees' Retirement System; in all other respects, the judgment is reversed. The trial court's August 9, 2013 judgment is reversed.
(Code 1956, § 55-56) ("Sec. 114-226").
In the second appeal, the City and NOMERS assert the following assignments of error:
No other mention of the settlement agreement being for a specific sum or percentage of medical bills appears in the record. The settlement agreement contains no specific mention of an amount or percentage of medical bills.
October 12, 2009 to June 12, 2013 = 48 months
Monthly retirement amount X $925.00
___________
Total Due $44,400.00
Workers' Compensation Settlement Award $41,500.00
Less Attorneys' Fees (8,300.00)
Less Medical Benefits (17,906.25)
___________
Remainder for Disability Plus Damages $15,203.75
Divided by Monthly Benefit $925.00
Maximum Months Credit 16.44 Months
City Owes Ms. Bates 31.56 months of disability retirement
benefits with credit = $29,106.25
