Michelle Zellner v. Loving Hearts of La, LLC

MICHELLE ZELLNER * NO. 2024-CA-0738

VERSUS *
COURT OF APPEAL
LOVING HEARTS OF LA, LLC *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2024-00768, DIVISION “A”
Honorable Ellen M Hazeur, Judge
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Daniel L. Dysart, Judge Tiffany Gautier Chase, Judge
Monique G. Morial)

Barry W. Sartin, Jr.
Kevin P. Riche
SARTIN & RICHE TRIAL LAWYERS
2118 N. Causeway Boulevard
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT

Laura F. Ashley
Gabrielle L. Ferrara
KREBS FARLEY, PLLC
400 Poydras Street, Suite 2500
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
MARCH 17, 2025

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TGC
DLD
MGM

Michelle Zellner (hereinafter “Ms. Zellner”) seeks review of the trial court’s

September 5, 2024 judgment denying her request for penalty wages.1 After

consideration of the record before this Court and the applicable law, we affirm the

trial court’s judgment.

Facts and Procedural History

Ms. Zellner was employed at Loving Hearts of LA, LLC (hereinafter

“Loving Hearts”) from September 11, 2023 until October 3, 2023 and completed

approximately one-hundred and thirty-one hours of work. On October 6, 2023, Ms.

Zellner received her only paycheck from Loving Hearts. The paycheck included all

but thirty-nine hours of work. In an attempt to resolve the error, Ms. Zellner

contacted Loving Hearts, who explained that the error resulted from a clerical error

caused by misplacement of her September 25, 2023 to September 29, 2023

timesheet. Loving Hearts located the missing timesheet and informed Ms. Zellner

that it would issue a check for the unpaid wages by October 20, 2023. When Ms.

Zellner did not receive her check, she traveled to Loving Hearts’ main office where

1 Ms. Zellner does not seek review of the trial court’s ruling regarding the unpaid wages and

award of attorney fees.

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she was advised that another discrepancy occurred. Specifically, the system

incorrectly listed her resignation date as September 25, 2023 rather than October 3,

2023. Loving Hearts indicated that her check would be forthcoming.

On January 26, 2024, after not receiving her check, Ms. Zellner filed a “Rule

for Judgment for Unpaid Wages” pursuant to La. R.S. 23:631.2 She sought unpaid

wages, attorney fees and penalty wages. After the filing of the lawsuit, Loving

Hearts mailed a check for the unpaid wages to Ms. Zellner’s attorney’s office.3

The case proceeded to trial and by judgment dated September 5, 2024, the

trial court deemed the unpaid wages issue moot, awarded attorney fees and denied

Ms. Zellner’s request for penalty wages. The trial court did not find that Loving

Hearts’ failure to remit payment was arbitrary or in bad faith. Rather, it determined

that the “claim of clerical error is a good faith defense that precludes an award of

penalty wages.” This appeal followed.

Assignments of Error

Ms. Zellner presents two assignments of error, which collectively challenge

the trial court’s denial of her request for penalty wages. Specifically, she maintains

that La. R.S. 23:632 mandates an award of penalty wages when wages are

withheld.

Standard of Review

“A trial court’s determination of whether an employer is arbitrary or in bad

faith for purposes of imposing penalty wages is a question of fact and is, therefore,

2 La. R.S. 23:631 is entitled “Discharge or resignation of employees; payment after termination

of employment.”
3 Gian Durand (hereinafter “Ms. Durand”), Chief Executive Officer at Loving Hearts, testified

that she first discovered Ms. Zellner had not received the amount of the wages owed when she
was served with the rule for judgment. Upon inquiring into the matter, Ms. Durand stated that
she personally mailed the check for the unpaid wages to Ms. Zellner’s attorney’s office.

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subject to the manifest error standard of review.” Kaplon v. Rimkus Consulting

Grp., Inc. of Louisiana, 2009-1275, p. 12 (La.App. 4 Cir. 4/28/10), 39 So.3d 725,

733 (citation omitted). This Court has previously stated that a two-part inquiry is

required to reverse a trial court’s finding of fact: “(1) the appellate court must find

from the record that a reasonable factual basis does not exist for the finding of the

trial court, and (2) the appellate court must further determine that the record

establishes the finding is clearly wrong (manifestly erroneous).” Ladd v. Law Enf’t

Dist. for Par. of Orleans, 2022-0212, p. 3 (La.App. 4 Cir. 10/5/22), 350 So.3d 962,

965 (citations omitted).

Penalty Wages

Ms. Zellner maintains the trial court erred in denying her request for penalty

wages because Loving Hearts did not present a good faith defense for failing to

timely tender her unpaid wages. She asserts that Loving Hearts’ failure to timely

tender her unpaid wages was arbitrary as evidenced by the fact that it issued a

check after the filing of the lawsuit. Conversely, Loving Hearts contends that the

failure to timely tender the unpaid wages was due to an office oversight and was

not arbitrary or in bad faith. La. R.S. 23:632 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

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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.

To recover penalty wages under La. R.S. 23:632, Ms. Zellner must prove that: (1)

unpaid wages are due; (2) demand for payment was made at the place where the

employee was customarily paid; and (3) the employer did not pay within the

required timeframe after demand of payment. Kaplon, 2009-1275, p. 12, 39 So.3d

at 733 (citation omitted). However, ‘“a good-faith non-arbitrary defense to liability

for unpaid wages, i.e., a reasonable basis for resisting liability” permits a court to

decline to impose penalty wages on an employer.”’ Wyatt v. Avoyelles Par. Sch.

Bd., 2001-3180, p. 15 (La. 12/4/02), 831 So.2d 906, 917 (quoting Beard v. Summit

Inst. of Pulmonary Med. & Rehab., Inc., 1997-1784, p. 7 (La. 3/4/98), 707 So.2d

1233, 1236 (citation omitted).

After hearing the testimony, the trial court denied Ms. Zellner’s request for

penalty wages. Testimony elicited at the hearing reveals that Ms. Zellner’s

timesheet for the week of September 25, 2023 to September 29, 2023 was missing

when Loving Hearts initially paid her on October 6, 2023. The trial court

determined this oversight was a clerical error thus, constituting a good faith

defense that did not warrant the imposition of penalty wages. We agree. “The

penalty statute requires more than a mere showing that the wages were due and

owing.” Bodenheimer v. Carrollton Pest Control & Termite Co., 2017-0595, p. 13

(La.App. 4 Cir. 2/14/18), 317 So.3d 351, 360. “[T]he employer must be found to

have acted in bad faith or in an arbitrary or unreasonable manner.” Washington v.

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Landry’s Seafood House New Orleans, Inc., 2014-0128, p. 6 (La.App. 4 Cir.

11/19/14), 154 So.3d 677, 681 (quoting Brown v. Navarre Chevrolet, Inc., 610

So.2d 165, 171 (La.App. 3 Cir. 1992). The amount paid to Ms. Zellner, on October

6, 2023, did not include payment for thirty-nine hours of work for the week of

September 25, 2023 to September 29, 2023. Ms. Zellner contacted Loving Hearts

who acknowledged that it owed additional wages. After not receiving the full

amount of the wages owed on October 6, 2023, Ms. Zellner again contacted

Loving Hearts. It was discovered that Loving Hearts’ system incorrectly reflected

Ms. Zellner’s resignation date. Ms. Zellner was advised that she would receive the

unpaid wages on October 26, 2023. Albeit several months later, Ms. Zellner

received the full amount of the wages owed.

Brandye DeLarge, the finance administrator at Loving Hearts, testified at

trial regarding the check for unpaid wages dated October 20, 2023. She stated that

she wrote the check to Ms. Zellner; however, it was not mailed. Ms. DeLarge

specified that she placed the check on another employee’s desk and attached a note

directing the employee to mail the check to Ms. Zellner. The employee was not

present at the office when Ms. DeLarge placed the check on the employee’s desk

and the check was not mailed. “La. R.S. 23:632, authorizing the imposition of

penalties or sanctions [is] penal in nature and must be strictly construed.”

Washington, 2014-0128, p. 6, 154 So.3d at 681 (citations omitted). “Penalties

should not be imposed on the employer when it presents a good faith non-arbitrary

defense to its liability for unpaid wages.” Saacks v. Mohawk Carpet Corp., 2003-

0386, p. 16 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 370 (citation omitted).

Loving Hearts did not dispute that it owed Ms. Zellner the unpaid wages and

sought to remit payment. The trial court acknowledged that Loving Hearts failed to

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timely tender the unpaid wages. However, the wages were eventually paid. Ms.

Durand explained that it was not until she received the lawsuit that she discovered

that Ms. Zellner had not received the check.4 Nonetheless, the trial court found

Loving Hearts’ failure to timely tender the unpaid wages was a clerical error and

not arbitrary or in bad faith. In applying a manifest error standard of review, we

consider the reasonableness of the trial court’s factual determinations. See Waters

v. Oliver, 2016-1262, p. 6 (La.App. 4 Cir. 6/22/17), 223 So.3d 37, 43. “The issue

to be resolved by a reviewing court is not whether the trier of fact was right or

wrong, but whether the factfinder’s conclusion was a reasonable one.” Ladd, 2022-

0212, p. 4, 350 So.3d at 965 (citation omitted). The trial court weighed the

evidence presented and ultimately determined that Loving Hearts presented a good

faith defense for failing to timely tender the unpaid wages to Ms. Zellner. We find

the trial court’s findings are reasonably supported by the evidence and testimony.

Accordingly, we find that the trial court did not err in denying Ms. Zellner’s

request for penalty wages.

Decree

For the foregoing reasons, we affirm the trial court’s judgment denying Ms.

Zellner’s request for penalty wages.

AFFIRMED

4 In its reasons for judgment, the trial court notes that the parties stipulated that a check for the

unpaid wages was mailed to Ms. Zellner’s attorney’s office after the filing of the lawsuit.

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