LEGAL CORNER: Can I file for wrongful termination if I retired before filing?

LEGAL CORNER: Can I file for wrongful termination if I retired before filing?
Agnes and Genia

LAKE CHARLES, La. (KPLC) - Submit your questions to Civil matters only, please.

Question 1: I was verbally notified by my employer that my contract, for the position I was working in at the time, had not been renewed. I was offered another position with the company with a lesser salary. I did not accept and instead, chose to retire. I would like to file for wrongful termination but I am being told that I cannot because I retired before I filed. I did not know that. Is this true?

ANSWER: Probably so. Your retirement was a voluntary resignation of your position. Ignorance of the law, or not knowing that you should have filed for wrongful termination before you retired, does not reinstate your right to file a lawsuit. Of course, in retrospect, you should have sought legal advice prior to your retirement and acceptance of benefits. However, the Court cannot now supply you with a remedy to a problem which was caused by your own actions, even though you just simply did not know. Very sorry for your lost.

THE LAW: 95-284 La.App. 3 Cir. 10/4/95, Smith v. Evangeline Parish School Bd., 663 So.2d 281 (La. App., 1995)This case arises out of the failure of the Evangeline Parish School Board (the Board) to renew Aubrey Smith’s contract of employment as the principal of Mamou Upper Elementary School. In July 1989, the Board appointed the plaintiff-appellant, Aubrey Smith, to the position of principal of the Mamou Upper Elementary School. In July 1990, the Board and Smith entered a contract under which Smith was to have the position of principal for two years ending June 3, 1992.

In May 1992, the Board voted not to renew Smith’s contract as principal. The Board advertised the position in the local paper. It was not until August 1992 that the Superintendent of the Evangeline Parish Schools, Larry Broussard, verbally notified Smith that his contract had not been renewed. Smith was never given written notice [95-284 La.App. 3 Cir. 2] of the non-renewal of his contract. He did not ask for and was not given any reason for the decision not to renew his contract. The Board offered Smith a job as a teacher at Ville Platte High School at the regular teacher’s salary rather than at the higher principal’s salary. By a letter dated August 17, 1992, Smith resigned “as a teacher at Ville Platte High School....” He applied for retirement benefits on the same day. The Board, at its regular meeting of August 19, 1992, accepted Smith’s resignation as principal. The Board notified Smith of its acceptance by letter dated September 3, 1992. On May 13, 1993, Smith filed this suit against the Board and its insurer alleging that he was wrongfully terminated from his position as principal of the Mamou Upper Elementary School. He alleged that the Board was required by La.R.S. 17:444(B)(4)(c)(iv) to give him written notice of its reason for not renewing his contract. He further alleges that the contract itself required that he be given written notice of the decision not to renew at least 60 days before June 30, 1992. He prayed for reinstatement with back pay and damages in the amount he lost by not being able to participate in the Deferred Retirement Option Plan available to participants in the Louisiana Teachers’ Retirement System. After a trial on the merits, the district court judge rendered judgment in favor of the Board dismissing the plaintiff’s action at his cost.

QUESTION 2: My step-mom was appointed curator over my Dad. They both actually live in Arkansas, however, while temporarily residing in Louisiana at his home here, he was legally determined to be mentally incompetent and she was appointed as his legal caretaker. I want to challenge her appointment on the grounds that the Louisiana court did not have the authority to do this; that it should have been done in a court in Arkansas. Am I right?

ANSWER: According to the facts you have stated, you are probably not correct about this. A Louisiana court probably had authority to hear the case because your Dad was a resident here and it sounds like he owns a home here. Ownership of property and or residing in this state, can give the Louisiana court the authority to make the appointment. The good news is that you may now file your petition in either state, in Arkansas where they live or in Louisiana in the court where the appointment was made.

THE LAW: Plaintiff alleges that she and her husband, although citizens of Arkansas, were temporarily residing in this state, where he was formally interdicted and she was appointed curatrix of his person and estate by the district court of Caddo parish. Under the Louisiana Code, as well as general jurisprudence, the domicile of the tutor or guardian is the domicile of the minor or interdict. La. Civ. Code, art. 39. The citizenship of [46 F.2d 337]the guardian controls the jurisdiction of the federal court, regardless of where he was appointed. In re Estate of McClean, Jr., deceased (C. C.) 26 F. 49; C. J. vol. 25, p. 754, verbo “Guardian and Ward,” and footnotes. The petition in this case affirmatively alleges that the plaintiff, curatrix, is a citizen of the state of Arkansas, and this I think is sufficient for the purposes of the motion. Smith v. Burt, 46 F.2d 336 (W.D. La., 1930)

The plea for a further statement of the proceedings leading up to her appointment is, as appears from the briefs, to enable respondents to make an attack upon her capacity to represent her husband. My view is that it cannot be done in this collateral manner. The rule is the same as in the cases of administrators and tutors, and it is well settled that the letters of appointment afford full proof of plaintiffs’ authority until the same have been vacated by the court granting them in a direct action. Duson v. Dupre, 32 La. Ann. 896; Robinson v. Scharfenstein, 148 La. 364, 86 So. 915. However, if we were to go into the question, we would find the appointment of curators to interdicts is made “according to the same forms as the appointment to the tutorship of minors.” Civ. Code, art. 405. See, also, article 415. The following articles of the Civil Code and Code of Practice recognize the power of the courts of this state to appoint a nonresident as tutor, and I think are, by analogy and the express provisions of the Code just above referred to, equally applicable to interdicts and their curators, to wit: Article 307, Civ. Code:

"What Court Appoints; Appeal. The appointment, recognition or confirmation of tutors must be made by the judge of the parish where the minor has his domicile, if he has a domicile in the State, or if he has no domicile in the State, by the judge of the parish where the principal estate of the minor is situated, saving to the parties the right of an appeal within thirty days from the judgment decreeing the nomination or confirmation, after which delay no appeal shall be admitted. Article 946 of the Code of Practice also provides: “If the father and mother of the minor reside out of the State, and are not represented in it, and the minor be also absent, he may be provided with a tutor or curator by the judge of probate of the place where he has interests to assert or defend.”See, also, Code Prac. art. 962.

In the present case the interdict had an estate or interest to assert in Caddo parish, and I think the court of that district had authority to make the appointment.

Smith v. Burt, 46 F.2d 336 (W.D. La., 1930)

QUESTION 3: My ex-wife is deceased and I have power of attorney for her. Before she died, she transferred a tract of land, that she acquired from our previous marriage, to her new husband so that he could qualify to have his trailer moved on it free of charge. Once the costs to move were paid, the land was transferred back to my ex-wife. Now that she is deceased and it was her separate property, I want him off the property. Can I do this?

ANSWER: The procedural answer to your question is no because the power of attorney became invalid upon the X-wife’s death. Since the power of attorney is no longer valid, the divorced husband has no standing to the bring an eviction suit on behalf of his X-wife. The more substantive question is whether the X-wife’s estate has the authority to evict her widower from the estate’s property. If the X-wife were still alive, the answer would be no, because spouses generally may not sue spouses. The law in Louisiana states that ‘[m]arried persons owe each other fidelity, support, and assistance.’ Even though the wife is deceased, she was still married at the time of her death. If she had not died, interspousal immunity would have protected her new husband from eviction. However, since the marriage to the new husband ended upon the wife’s death, there is no longer spousal immunity. Therefore, the deceased wife’s estate can evict the widowed husband. (Note: the heirs of the deceased wife or a duly authorized representative of the deceases wife would have standing to bring the eviction actions). .

THE LAW: Hinds v. Hinds, 897 So.2d 890 (La., 2005)

In this eviction case, the city court granted plaintiff, Robie Fisher Crawford Hinds, through her duly appointed mandatary, Melvin J. Crawford, an eviction of her husband, George Hinds, from the separate property of the late Mrs. Hinds. The separate property was immovable property and the matrimonial domicile of Mr. and Mrs. Hinds. Mr. and Mrs. Hinds were not divorced. “Louisiana Civil Code Article 98 states that ‘[m]arried persons owe each other fidelity, support, and assistance.’ Article 98 incorporates the basic principles of the marital relationship.” Hinds v. Hinds, 897 So.2d 890 (La., 2005) In response to the eviction suit, Mr. Hinds filed an exception of no right of action based on La.R.S. 9:291, which sets forth the general provision for interspousal immunity. Louisiana Revised Statutes 9:291 states: “Spouses may not sue each other except for causes of action pertaining to contracts or arising out of the provisions of Book III, Title VI of the Civil Code; for restitution of separate property; for divorce or declaration of nullity of the marriage; and for causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart. “The eviction suit in this case is barred because of interspousal immunity pursuant to La.R.S. 9:291.” Hinds v. Hinds, 897 So.2d 890 (La., 2005)

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