Opinion
NUMBER 2022 CA 0630.
12-22-2022
Jeremy LOCKE v. MADCON CORPORATION.
John A. Venezia , Julie O'Shesky , New Orleans, LA, Counsel for Plaintiff/Appellee, Jeremy Locke. Jason P. Waguespack , Kathleen K. Charvet , Wendell F. Hall , New Orleans, LA, Counsel for Defendant/Appellant, MADCON Corporation. BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
John A. Venezia , Julie O'Shesky , New Orleans, LA, Counsel for Plaintiff/Appellee, Jeremy Locke.
Jason P. Waguespack , Kathleen K. Charvet , Wendell F. Hall , New Orleans, LA, Counsel for Defendant/Appellant, MADCON Corporation.
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
GUIDRY, J.
In this action seeking unpaid wages and penalties under the Louisiana Wage Payment Act, La. R.S. 23:631 et seq., defendant/appellant, MADCON Corporation, appeals from a trial court judgment in favor of plaintiff/appellee, Jeremy Locke, awarding Locke wages, penalties, and attorney's fees. Locke answered the appeal seeking an increase in the attorney fee award for work performed on appeal. For the reasons that follow, we amend the judgment of the trial court and affirm as amended.
FACTS AND PROCEDURAL HISTORY
MADCON, a Louisiana company operating as a marine and diving contractor, hired Locke on January 19, 2019, for a commercial diving job in Kamsar, Guinea, West Africa. Pursuant to the terms of the employment agreement, MADCON hired Locke as a lead diver with both diving and non-diving duties at a flat rate of $575/day to be paid bi-weekly. MADCON also agreed to pay for all meals, lodging, and travel expenses. Locke's compensation also included a bonus of $22,000.00 if the project was completed within ninety working days in addition to still receiving the full ninety days of pay at the $575.00/day rate. The agreement further provided that Locke would receive a $5,000.00 bonus if the project was completed without any safety incidents.
Locke arrived in West Africa in April 2019 and commenced mobilization work. In August 2019, upon arrival of crew members, Locke started working on pilings, which work was completed on October 28, 2019. Following demobilization, which took approximately five days, Locke and his crew returned to the United States on November 7 or 8, 2019.
On November 20, 2019, Locke inquired with Bruce Trader, President of MADCON, about when he could expect to receive his bonus money and was told MADCON would be able to pay Locke once MADCON was paid. Thereafter, in January 2020, Locke went to MADCON's office and spoke with Dean Curl, who works in operations for MADCON and is in charge of hiring divers, about payment of Locke's bonus. Locke subsequently hired counsel, who sent a letter to MADCON on January 16, 2020, stating that during 2019, MADCON had failed to pay significant portions of Locke's wages, including an earned $5,000.00 safety bonus, a $22,000.00 timely completion bonus, and thirteen days of work at $575.00/day, for a total of $34,475.00. Counsel requested that the amount be paid immediately within fifteen days or counsel will file an action in court seeking the wages due, penalty wages, attorney's fees and costs pursuant to La. R.S. 23:631 et seq. Counsel for MADCON replied on March 31, 2020, indicating that no unpaid wages were due Locke. Particularly, MADCON alleged Locke was not entitled to bonus money because the project was not completed (piling 34-E not completed and MADCON had to remobilize to complete the repair and crew did not properly complete demobilization).
Accordingly, Locke filed a Petition for Wages, Penalty Wages, Attorney's Fees, and Request for Summary Proceeding on April 24, 2020. Locke alleged that he timely finished the West Africa job within ninety days and as such, was entitled to the $22,000.00 bonus. Additionally, Locke alleged because he performed the job safely, he was also entitled to the $5,000.00 safety bonus. Locke alleged MADCON failed to pay him either of these bonuses or for the additional thirteen days of work at $575.00/day. Locke alleged that he made written demand on MADCON for sums due, but that MADCON refused to pay any portion of the amount owed, and such refusal was not in good faith. As such, Locke sought penalty wages, interest, attorney's fees, and costs of the proceeding pursuant to La. R.S. 23:631 and 632. Furthermore, Locke alleged that La. R.S. 23:631(B) permits him to proceed by use of summary proceeding. By order dated May 19, 2020, the matter was set for hearing on September 10, 2020.
Thereafter, MADCON filed exceptions raising the objection of unauthorized use of summary proceeding and no cause of action, alleging that La. R.S. 23:631-632 do not apply because Locke failed to allege that he was terminated or had resigned. On September 8, 2020, Locke filed a first amended petition, alleging he returned from West Africa on November 7, 2019, because the project was complete and his employment under the contract was terminated. Locke further alleged that he informed MADCON on January 6, 2020 that he would no longer accept any future diving jobs and resigned from his employment with MADCON. Locke also filed an opposition to MADCON's exceptions. In response, MADCON filed a motion to convert action from a summary proceeding to an ordinary proceeding on September 9, 2020, asserting that Locke's filing of responsive pleadings to MADCON's exception to Locke's original petition converted Locke's action to an ordinary proceeding. MADCON also filed a motion to strike Locke's first amended petition.
On September 10, 2020, Locke filed a second amended petition seeking an additional twenty-seven days of wages at $575.00/day. At the September 10, 2020 hearing on the foregoing petitions, exceptions, and motions, the trial court denied MADCON's exceptions, denied MADCON's motion to convert action and motion to strike, granted Locke leave to amend his petition to correct the amount of alleged unpaid days and wages, and continued the matter to September 30, 2020. Following the trial on September 30, 2020, the trial court signed a judgment on October 22, 2020, in favor of Locke and against MADCON "for wages in the amounts of $28,725.00 for wages, $51,750.00 for penalty wages, and $20,000.00 for attorney's fees, with judicial interest on all amounts from date of filing until paid, along with all costs of these proceedings." MADCON now appeals from the trial court's judgment and Locke has answered the appeal.
DISCUSSION
Rule to Show Cause
On August 10, 2022, this court, ex proprio motu, issued a rule to show cause order, finding an apparent defect in the trial court's October 22, 2020 judgment. Particularly, this court noted that the judgment includes an award for "all costs of these proceedings" but did not specify the amount of the costs nor indicate whether the costs awarded included court costs, attorney's fees, expert witness fees, if any, and/or other expenses incurred. Noting that the precise amount awarded to Locke could not, therefore, be determined from the judgment alone, this court ordered the parties to show cause why the appeal should not be dismissed or remanded. The rule to show cause was thereafter referred to the merits of the appeal.
Louisiana Code of Civil Procedure article 1920 provides that "[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause." "Costs" include costs of the clerk, sheriff, witness' fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court. See La. R.S. 13:4533. Once a final judgment is rendered and an appeal is granted, the trial court retains jurisdiction while the appeal is pending to set and tax costs, expert witness fees, and attorney fees. See La. C.C.P. art. 2088(A)(10) and Comments-2021, comment (a).
Accordingly, because the trial court judgment set forth the amount of attorney's fees but left to be determined the "costs" of the proceeding, for which the trial court retains jurisdiction pursuant to La. C.C.P. art. 2088(A)(10), we find the judgment to be precise, definite, and certain for purposes of constituting a valid, final judgment on appeal. See Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 17-3250, p. 4 (La. App. 1st Cir. 12/20/18), 268 So.3d 1044, 1046. Therefore, we recall the rule to show cause order and maintain the appeal.
In issuing the show cause order, this court cited D'Luca v. Kirkland , 20-0713, 20-0714, p. 3 (La. App. 1st Cir. 2/19/21), 321 So.3d 411, 413 and U.S. Bank National Association v. Dumas , 21-0585, p. 2 (La. App. 1st Cir. 12/22/21), 340 So.3d 246, 248. However, on further review, we find these two cases to be distinguishable from the facts presented in the instant matter. With regard to U.S. Bank National Association , we note that the problematic language in the judgment at issue in that case was not limited to a reference to "costs of the proceeding" but rather, included additional awards of damages and left their resolution to be proven by reference to extrinsic documents. U.S. Bank National Association , 21-0585 at p. 3, 340 So. 3d at 249. Furthermore, unlike the judgment at issue in D'Luca , the instant judgment delineates an amount awarded for attorney's fees in addition to awarding "costs of the proceeding." See D'Luca , 20-0713 at p. 5, 321 So. 3d at 414.
Louisiana Wage Payment Act Claim
Louisiana Revised Statutes 23:631 provides, in pertinent part:
§ 631. Discharge or resignation of employees; payment after termination of employment
A. (1)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether
the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee's or laborer's current address as shown in the employer's records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
* * *
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.
Louisiana Revised Statutes 23:632, in turn, provides:
A. Except as provided for in Subsection B of this Section, any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.
B. When the court finds that an employer's dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. If the court determines that the employer's failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section.
C. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.
Accordingly, pursuant to La. R.S. 23:631, it shall be the duty of the person employing any laborer or other employee who has resigned or been terminated to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge or resignation, whichever occurs first. La. R.S. 23:631(A)(1)(a) and (b). In the event of a dispute as to the amount due under La. R.S. 23:631(A), the employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to La. C.C.P. art. 2592. La. R.S. 23:631(B).
Louisiana Code of Civil Procedure article 2592 sets forth certain circumstances under which summary proceedings may be used for trial and disposition of matters. Particularly, La. C.C.P. art. 2592(13) provides that summary proceedings may be used in "[a]ll other matters in which the law permits summary proceedings may be used." Accordingly, because La. R.S. 23:631 specifically provides for wage claim disputes brought pursuant to that section to be tried by way of summary proceeding pursuant to La. C.C.P. art. 2592, such claims are properly brought by way of summary proceeding.
Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all of the formalities required in ordinary proceedings. La. C.C.P. art. 2591. In a summary proceeding, an answer is not required, except as otherwise provided by law, and exceptions must be filed prior to and disposed of at the trial. La. C.C.P. art. 2593. No responsive pleadings to an exception are permitted. La. C.C.P. art. 2593.
In the instant case, MADCON filed an exception raising the objection of unauthorized use of summary proceedings, alleging that La. R.S. 23:631 et seq. did not apply to Locke's claims because he failed to allege that he was terminated or resigned. After MADCON filed its exception, Locke filed a first amended petition and a second amended petition wherein Locke alleged that he resigned from his employment with MADCON on January 6, 2020. MADCON asserts that Locke's filing of these amended petitions after MADCON's filing of its exception raising the objection of unauthorized use of summary proceedings converted the summary proceeding into an ordinary proceeding. As such, MADCON contends the trial court erred in denying its motion to convert action from a summary proceeding to an ordinary proceeding.
From our review of the record and the law applicable to summary proceedings, we do not find, and MADCON has not directed this court to, any authority supporting its proposition. Locke filed a claim pursuant to La. R.S. 23:631 et seq. seeking unpaid wages, penalty wages, and attorney's fees, and these types of claims are to be tried by summary proceeding. See La. R.S. 23:631(B) and La. C.C.P. art. 2592(13). Thereafter, Locke amended his petition to allege a fact that was related to the same cause of action and which did not alter the nature of the proceeding. A plaintiff may amend his petition without leave of court at any time before the answer is served. La. C.C.P. art. 1151. Accordingly, as an answer is not required in a summary proceeding, Locke was permitted to file his amended petition. Furthermore, while MADCON asserts that even if permissible, such amendment was prejudicial, we find the trial court's order continuing the trial of the summary proceeding for twenty days following its granting of plaintiff's request to file a second amended petition obviated any such possible prejudice. Accordingly, absent any provision in the law that either prevents a plaintiff in a summary proceeding from amending their petition prior to the trial of the matter to allege additional, supporting facts relative to the cause of action originally pled or otherwise mandates that the filing of such an amended petition transforms the nature of the proceeding from a summary proceeding to an ordinary proceeding, we find no merit to MADCON's argument. Cf. Boudreaux v. Boudreaux, 21-1050, p. 6 (La. App. 1st Cir. 6/3/22), 2022 WL 1830833, *3 (unpublished opinion) (wherein this court found an amended petition substituting a cause of action for divorce pursuant to La. C.C. art. 103 for a cause of action for divorce pursuant to La. C.C. art. 102 converted the matter from a summary proceeding to an ordinary proceeding and reversed trial court's denial of appellant's exception raising the objection of unauthorized use of summary proceeding).
Rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law. La. C.C.P. art. 2596.
MADCON construes the amended petitions to be in the nature of "responsive pleadings" to its exception, which it argues are prohibited by La. C.C.P. art. 2593. While we have declined to find these amended petitions to be "responsive pleadings," we note that even if they were such, there is no provision of law providing that there is a penalty that shall be imposed for the filing of responsive pleadings nor that the penalty for said filing is conversion of the summary proceeding to an ordinary proceeding.
MADCON next asserts the trial court erred in finding that Locke's employment with MADCON was terminated and as such, erred in finding La. R.S. 23:631 et seq. applies to Locke's claim for unpaid wages. A trial court's determination of whether an employee was terminated or discharged for the purposes of a claim for unpaid wages and penalties pursuant to La. R.S. 23:631 et seq. is a factual determination subject to the manifest error standard or review on appeal. See Molina v. Oilfield Production Contractors, Inc., 17-0455, p. 6 (La. App. 1st Cir. 12/29/17), 241 So.3d 337, 341.
In its oral reasons for judgment, the trial court found that Locke's employment was terminated. The uncontradicted testimony from the parties at the hearing reflects that the employment contract between MADCON and Locke for the West Africa project was complete, that Locke declined further employment from MADCON, and Locke had not worked for MADCON since his return from West Africa. Furthermore, Locke testified that when he met with Curl on January 6, 2020, inquiring about his unpaid wages, he resigned after getting the "run around." Following this meeting, Locke obtained counsel, who issued a formal demand for payment to MADCON. In ruling in favor of Locke, the trial court specifically found Locke's testimony credible. Accordingly, from our review of the record and the trial court's reasonable credibility determination, we cannot say that the trial court's finding was manifestly erroneous.
MADCON finally asserts that the trial court erred in finding that the three-days wages, completion bonus, and safety bonus are "wages" within the meaning of La. R.S. 23:631 and 632. Whether a bonus constitutes wages under La. R.S. 23:631 et seq. is a mixed question of law and fact, and the proper standard of review of a trial court's determination of such a mixed question of law and fact generally is the manifest error standard. See Kaplon v. Rimkus Consulting Group, Inc. of Louisiana, 09-1275, p. 13 (La. App. 4th Cir. 4/28/10), 39 So.3d 725, 733, writ denied, 10-1207 (La. 7/2/10), 39 So.3d 587.
For purposes of La. R.S. 23:631, wages are any amounts due under the terms of employment, which are earned during a pay period. See Boudreaux v. Hamilton Medical Group, Inc., 94-0879, p. 5 (La. 10/17/94), 644 So.2d 619, 622. The test for the determination of whether payment to an employee is a "wage" under La. R.S. 23:631 is not whether the amount owed was paid by the "hour, day, week or month," but rather whether the amount owed was earned by the employee during a pay period. See Kaplon, 09-1275 at p. 13, 39 So. 3d at 734; see also Thomas v. Orleans Private Industry Council, Inc., 95-1577, pp. 6-7 (La. App. 4th Cir. 2/15/96), 669 So.2d 1275, 1279, writ denied, 96-0686 (La. 4/26/96), 672 So.2d 671.
According to the employment contract at issue, MADCON and Locke entered into an agreement for Locke to provide diving services for MADCON on a project in West Africa, with a goal of completing the project within ninety days. MADCON agreed to pay Locke a flat day rate of $575.00/day, to be paid on a bi-weekly basis, which pay was guaranteed for the full ninety-days if the project was completed before that time. Additionally, the contract provided that Locke's compensation included a $20,000.00 bonus if the project was completed within ninety working days and a $5,000.00 bonus if the project was completed without any safety incidents. The trial court found that MADCON failed to pay Locke for three of the ninety-day guaranteed wages. Additionally, the trial court found that the project was completed within ninety days and that there was no evidence of a safety issue during the project.
The issue of whether these bonuses were owed under the terms of the contract is not raised on appeal, i.e., whether the project was timely completed or whether there was a safety incident. Rather, the appeal on this issue is limited to whether these amounts are "wages" within La. R.S. 23:631 et seq.
As such, because the terms of employment provide for the payment of these daily wages, completion bonus, and safety bonus, which were earned during the pay period, we find no error in the trial court's determination that they are "wages" within the meaning of La. R.S. 23:631 et seq.
Answer to Appeal
Locke has answered the appeal seeking an increase in the attorney fees for work performed in connection with the appeal. When a party is awarded attorney fees by the trial court and then is forced to and successfully defends an appeal, it is appropriate for the appellate court to reasonably increase the amount of the awarded attorney fees to keep the appellate judgment consistent with the underlying judgment. Pinnacle Builders, Inc. v. Gilbert, 21-0335, p. 14 (La. App. 1st Cir. 12/22/21), 340 So.3d 107, 118. It is within the appellate court's discretion to award or increase attorney fees for defending an appeal upon consideration of factors such as the skill exercised by the attorney and the amount of time and work reflected in the appeal. See Pinnacle Builders, Inc., 21-0335 at p. 15, 340 So. 3d at 118. After thorough consideration, we find a $2,500.00 increase in the amount of attorney fees is reasonable; therefore, we amend the trial court's judgment to increase the amount of attorney fees awarded by that amount. CONCLUSION
Though acknowledging that he is not appealing the amount of the trial court's attorney fee award, Locke requests that this court increase his attorney fee award for work performed on appeal by $16,213.75, which represents the full amount of the forty-five percent contingency fee. However, given the nature of the proceeding, the work performed on appeal, and the amount of attorney's fees awarded by the trial court, we find such an increase to be unreasonable.
For the foregoing reasons, we amend the judgment of the trial court to increase the attorney fee award from $20,000.00 to $22,500.00 and as amended, we affirm. All costs of this proceeding are assessed to MADCON Corporation.