Hayden v. State, Department of Public Safety

FORET, Judge. Defendant-appellant, State of Louisiana, Department of Public Safety, appeals from a judgment granting plaintiff, Michael R. Hayden, a restoration of his suspended driving privileges pursuant to La.R.S. 32:415.1. The State did not make an appearance in the trial court and has filed an exception of no cause of action on appeal, as well as addressing the merits of the case. La.C.C.P. art. 927. To state a cause of action under La.R.S. 32:415.1A(1), the plaintiff must allege in his petition that the suspension complained of is his first suspension. Sibley v. Louisiana Dept. of Public Safety, 385 So.2d 505 (La.App. 1 Cir.1980); Crooks v. Dept. of Public Safety, 401 So.2d 638 (La.App. 3 Cir.1981); Freeman v. State of Louisiana, Dept. of Public Safety, 420 So.2d 1246 [59] (La.App. 3 Cir.1982); Mango v. State of Louisiana, Dept. of Public Safety, 425 So.2d 350 (La.App. 3 Cir.1982). In reviewing the entire record, we find the pleadings and evidence submitted at trial do not satisfy this requirement. On the contrary, Article 2 of plaintiff’s petition states: “On or about the 31st day of July, 1986, petitioner’s Louisiana license was suspended for one year for an earlier revocation violation.” Despite contradictory statements in plaintiff’s brief that this is his first revocation, the pleadings are clear and are in the record. It is thus apparent from the record that plaintiff could not have truthfully alleged that this was his first suspension. We need not discuss the merits of the case, nor need we remand to allow plaintiff a chance to amend his pleadings. Plaintiff’s own petition shows that this would be a futile gesture. Kleckley v. State of Louisiana, Dept. of Public Safety, 502 So.2d 213 (La.App. 3 Cir.1987); Sibley, supra; Crooks, supra. For these reasons, the judgment of the trial court is reversed and judgment is rendered in favor of the State of Louisiana, Department of Public Safety, dismissing plaintiff’s suit. Plaintiff-appellee is cast for all costs at the trial level and on appeal. REVERSED AND RENDERED.