Long's Preferred Products, Inc. v. Linda Long Minton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1020

LONG'S PREFERRED PRODUCTS, INC.

VERSUS

LINDA LONG MINTON

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 204,291
HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

AFFIRMED. MOTION DENIED.

Thibodeaux, C.J., dissents in part and assigns written reasons.

Richard E. Lee
810 Main Street
Pineville, LA 71360
(318) 448-1391
COUNSEL FOR PLAINTIFF/APPELLANT:
Long's Preferred Products, Inc.

Larry W. Rivers
4951 Brenman Park Drive, Unit 202
Alexandria, VA 22304-7797
(703) 517-6305
COUNSEL FOR DEFENDANT/APPELLEE:
Linda Long Minton

AMY, Judge.

The plaintiff filed suit seeking repayment of wages paid to the defendant after

she left her employment with the family business. The trial court ruled in favor of the

defendant, finding no indication that the defendant agreed to repay those wages after

her personal share of the business was valued and sold. However, the trial court

denied the defendant’s reconventional demand in which she sought wages continuing

through the time of trial for work performed in her capacity as a member of the

company’s Board of Directors. Both parties raise issues on appeal. The plaintiff has

also filed a motion for contempt and return of brief, alleging that the defendant’s brief

includes inappropriate statements and references. For the following reasons, we

affirm the judgment of the trial court and deny the motion for contempt and return of

brief.

Factual and Procedural Background

This matter arises from the buy out of the defendant, Linda Long Minton, from

the family’s business, Long’s Preferred Products, Inc. The record indicates Ms.

Minton and her brother, Julian W. Long,1 were each fifty percent shareholders in the

family business in July 1997, the date the buy out process began. At that time, Ms.

Minton served as the company’s Vice-President, while Julian served as President.

Both received a salary from the company.

The buy out of Ms. Minton’s portion of the company arose on July 17-18, 1997,

due to tensions between Ms. Minton and one of the company’s employees. Due to

Ms. Minton’s inability to continue in the work environment, she did not return to a

regular work schedule at the company. Julian agreed to buy Ms. Minton’s share in the

1
The father of Ms. Minton and Julian W. Long, Julian E. Long, was also a witness at the trial
in this matter. Julian W. Long will hereinafter be referred to as “Julian” while Julian E. Long will
be referenced by use of his full name.

company. However, the buy out was to occur only after an inventory was taken and

a value placed on the company. During the valuation period, Ms. Minton continued

to receive her $4500 monthly salary. The plaintiff, Long’s Preferred Products, asserts

that the continuation of the salary was made with the understanding that the accrued

salary would be deducted from the value of Ms. Minton’s share at the time of the buy

out. Ms. Minton disputes that an agreement was reached as to repayment.

Long’s Preferred Products filed suit, seeking repayment of the salary paid to

Ms. Minton after her job functions ceased at the company. Ms. Minton filed a

reconventional demand, alleging that the salary reflected her continued duties as a

member of the Board of Directors. Following a bench trial, the trial court concluded

that no oral or written agreement existed requiring Ms. Minton to repay the wages at

issue. Furthermore, with regard to the reconventional demand, the trial court

concluded that, although Ms. Minton remained a member of the Board of Directors

after she ceased her employment functions, the evidence indicated that the members

of the board were not compensated for their duties. Rather, the salary was related to

her function as an employee.

Long’s appeals, presenting the following issues for review:

[1.] Did the trial court err in holding that Ms. Minton did not agree to
repay the monies she received from Long’s Preferred Products, Inc.?

[2.] Did the trial court err when it held that P#5, P#6, and P#7 was not
the agreement that the parties had originally agreed to?

Ms. Minton answered the appeal, asserting that:

The Trial Court erred in finding that Ms. Linda Minton was compensated
as an employee and not as an officer and director of Long’s Preferred
Products, Inc.

Subsequent to the filing of Ms. Minton’s brief, Long’s filed a “Motion and Order for

Contempt and Return of Brief for Violation of Uniform Rule - Courts of Appeal 2-

2

12.4 and 2-16.3.” Long’s alleged that inappropriate reference was made to an

unpublished case and that certain allegations contained in Ms. Minton’s brief are

violative of Uniform Rules - Courts of Appeal, Rule 2-12.4, which requires that briefs

be “free from vile, obscene, obnoxious, or offensive expressions, and free from

insulting, abusive, discourteous or irrelevant matters or criticism of any person ….”

The motion was deferred to the merits of the appeal.

Discussion

Repayment of Salary

Long’s first contends that the payment of Ms. Minton’s salary between the July

18, 1997 cessation of her work duties until the date of the buy out was continued due

to an agreement that the sum would be deducted from the amount paid to Ms. Minton

at the time of the buy out. Long’s contends that the trial court’s determination that

there was no such agreement was in error. In particular, Long’s asserts that Ms.

Minton and her brother, Julian, reached an initial, oral agreement whereby Ms. Minton

would continue to receive her salary which would be deducted from the proceeds of

the buy out. Long’s points to an unsigned agreement that includes language requiring

repayment, asserting that the agreement memorializes the original agreement.

Testimony indicates that Ms. Minton forwarded the buy/sell agreement referenced by

Long’s to an attorney for review, but that it was never signed. Long’s contends that

the attorney’s attention to typographical errors in the agreement, but lack of any

written objection to the inclusion of the repayment language, indicates that the concept

of repayment was a part of Ms. Minton and Julian’s original agreement. Ms. Minton

disputes this assertion, contending that she did not sign the agreement due to her

disagreement with the repayment condition.

3

Further, Long’s points to portions of Ms. Minton’s testimony which, it alleges,

reveal internal inconsistencies indicating a lack of credibility. The majority of the

statements alleged to be “vague, unsubstantiated, and contradictory” relate to various

meetings of the board Ms. Minton alleged occurred. Long’s argues that, in light of

Julian’s clear statements regarding the buy/sell terms agreed to, Ms. Minton’s

contradictory testimony lacks sufficient weight for the trial court to have ruled in her

favor on this issue.

In ruling, the trial court referenced the Louisiana Civil Code’s requirements of

consent, capacity, and cause, see La.Civ.Code arts. 1918, 1927, and 1971,2 as well as

Article 1971’s instruction that: “Parties are free to contract for any object that is

lawful, possible, and determined or determinable.” The trial court then reviewed the

testimony offered at trial, explaining:

Testimony at trial established that Linda Minton and Julian W. Long
discussed the buy-out of Mrs. Minton’s shares of stock. The parties
admitted at trial that they verbally agreed that Mrs. Minton would

2
The Articles provide:

Art. 1918. General statement of capacity

All persons have capacity to contract, except unemancipated minors,
interdicts, and persons deprived of reason at the time of contracting.

Art. 1927. Consent

A contract is formed by the consent of the parties established through offer
and acceptance.

Unless the law prescribes a certain formality for the intended contract, offer
and acceptance may be made orally, in writing, or by action or inaction that under
the circumstances is clearly indicative of consent.

Unless otherwise specified in the offer, there need not be conformity between
the manner in which the offer is made and the manner in which the acceptance is
made.

Art. 1966. No obligation without cause

An obligation cannot exist without a lawful cause.

4

continue to receive her salary during the buy-out. Therefore, the parties
admittedly contracted for the payout of Four Thousand Five Hundred
and No/100 Dollars ($4,500.00) per month to Mrs. Minton during the
period between the agreement to buy back Mrs. Minton’s shares of stock
and the completion of the buy out. Both parties had capacity as well as
consent and they contracted for a lawful cause and determined object.
Therefore, a verbal contract was confected between the parties. At some
point afterwards a written contract was drawn up for the parties to sign.
However, the contract contained a provision that required Mrs. Minton
to repay the Forty-Four Thousand and No/100 Dollars ($44,000.00) in
salary she received from the time of the agreement to buy back the shares
of stock until the time the buy-out was completed. Mr. Ellis Saybe, an
Alexandria attorney, was given the document to review for Mrs. Minton,
during which time Mr. Saybe circled and corrected a typographical error
in the contract. Plaintiff contends that Mrs. Minton admitted that there
was an agreement to repay the monies when she testified that she gave
the contract to Mr. Saybe because she wanted him to look at it before she
signed it and did not mark through the portion requiring her to repay the
monies. However, the Court does not find this argument persuasive.
Mrs. Minton testified that she refused to sign the contract because she
had not agreed to repay the interim salary. Mr. Julian W. Long also
admitted that the reason Mrs. Minton refused to sign the contract was
due to the provision requiring her to repay the salary. Furthermore, it
would not be logical for Mrs. Minton to accept the salary payments as a
loan, pay taxes on the monies thereby only receiving a net amount of the
payments and then repay the gross amount to the Corporation.
Additional evidence of the lack of agreement to repay the funds arises
from the testimony of Julian E. Long, Mrs. Minton and Mr. Julian W.
Long’s father, who testified that he informed Mr. Julian W. Long to
remove the Forty-Four Thousand and No/100 Dollars ($44,000.00) from
the amount Mrs. Minton would receive as the purchase price for her
shares of stock because she did not work for that money and should not
receive it. Mr. Julian E. Long told his son this at the time when the latter
was preparing a written agreement for the purchase price of Mrs.
Minton’s shares of stock, not at a time prior to the oral agreement
between Mr. Julian W. Long and Mrs. Minton. It appears that this
occurred at approximately the time the relations with Mrs. Minton’s
father and brother, Mr. Julian E. Long and Mr. Julian W. Long,
respectively, became strained to the point of no return. It was also
around this time when Julian W. Long changed the locks so that Mrs.
Minton no longer had access to the Corporation and when Mrs. Minton’s
salary was abruptly stopped, approximately March 1998. It was not long
after this when it became obvious that the agreement to buy-out Mrs.
Minton’s stock had fallen through. Mrs. Minton thereafter withdrew the
offer [for Julian] to purchase her Corporation stock. The Court had an
opportunity to view the parties and judge their credibility during trial
and, after reviewing the evidence, the Court is of the opinion no
agreement existed that required Mrs. Minton to repay the monies she
received as salary for that eight (8) month period of buy-out negotiations.

5

Accordingly, the Court finds that the contract to pay Mrs. Minton her
salary from the time of the agreement to buy back her stock until the
completion of this event did not encompass the obligation for Mrs.
Minton to repay the monies she received during this period. As such,
Mrs. Minton is entitled to retain the amount she was paid in salary during
the time of the buy-out negotiations.

The above reasons for ruling reflect the trial court’s acceptance of Ms. Minton’s

testimony over the version of events offered by Julian. The Louisiana Supreme Court

has noted that, “[w]here there is conflicting testimony, reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon review…

.” Parish Nat’l Bank v. Ott, 02-1562, p. 7 (La. 2/25/03), 841 So.2d 749, 753. This

remains true even in the event the appellate court finds that it may have weighed the

evidence differently if it had been sitting as the trier of fact. Id. Only when the trial

court’s factual determinations are clearly wrong will the appellate court substitute its

own findings for that of the trial court. Our review of the record reveals no such error.

Long’s asserts that Ms. Minton’s testimony was unreliable due to what it

contends were internal contradictions. However, we find little merit in the contention

that any such inconsistencies or lack of clarity in her recollection of meetings of an

informally operated board necessarily bear on the central question of whether the

parties agreed that the continued salary would be deducted from the proceeds of the

sale of her share of the company. The testimony, taken as a whole, supports the trial

court’s determination that she and Julian agreed that her salary would continue during

the valuation process. However, the trial court concluded that this initial agreement

did not include a provision that the salary would be repaid from the proceeds. This

is supported by her testimony that she did not sign the written agreement presented to

her as it included this term. Although Julian’s testimony was contrary to this, the trial

court noted that it was able to view the witnesses and make credibility determinations.

6

Furthermore, although Long’s contends that the trial court gave inadequate

consideration to the unsigned buy/sell agreement and related documents, the reasons

for ruling reveal that consideration was given to this evidence. However, the trial

court found that the documents were more supportive of Ms. Minton’s position. As

the record supports its findings, we find no clear error in the trial court’s resolution

of the credibility issue in favor of Ms. Minton.

This assignment lacks merit.

Nature of Compensation

In her reconventional demand, Ms. Minton sought recovery for wages until the

time of trial. She contended that these wages were owed after the buy out as her

compensation with the company was reflective of her position as an officer of the

company and that it was not compensation for her employment-related duties. The

trial court denied this request, finding that the officers of the company were not

compensated for their work in that capacity. In her answer to the appeal, Ms. Minton

questions this finding.

In denying recovery on the reconventional demand, the trial court reasoned:

Ms. Minton claims that she had a verbal contract of employment with
Long’s Preferred Products, Inc. and that she is owed this salary because
she continued to hold a position as officer and director of the
Corporation from the time her salary was stopped to date. It is accurate
that Mrs. Minton continued to serve as director of the Corporation. Mrs.
Minton’s purported discharge on Mary [sic] 14, 1998 by the corporate
board was nullified in Civil Suit Number 196,819, on the docket of the
Ninth Judicial District Court, the Honorable Ross Foote, Presiding. That
Judgment was affirmed by the Third Circuit Court of Appeal and
amended to specifically declare Ms. Minton a director of the
Corporation. However, while the Corporation’s tax returns on their face
show officer compensation, the evidence established that the officers and
directors at the Corporation are not compensated as such. Mrs. Minton
was paid as an employee at the Corporation, not as an officer and
director. It was stipulated by the parties Mrs. Minton’s salary as an
employee of the Corporation from October 1991 through April 1997 was
Two Thousand Five Hundred and No/100 Dollars ($2,500.00) per

7

month. Mrs. Minton was appointed Vice-President and Secretary-
Treasurer of the Corporation on February 24, 1992 while her salary
remained the same until May 1997 when it was raised to Four Thousand
Five Hundred and No/100 Dollars ($4,500.00) per month. It was
additionally stipulated that Ms. Tracy Percy did not receive an increase
in salary when she was appointed Secretary - Treasurer in May 1998 nor
did Mrs. Eva Long receive an increase in salary when she was appointed
Vice-President of the Corporation. Mr. Julian W. Long also testified that
he received no salary increase when he became an officer and director of
the Corporation. Mrs. Minton discontinued her day-to-day duties as an
employee of the Corporation when she agreed to sell her stock, although
she remained an officer and director. However, the Court is of the
opinion that Mrs. Minton was compensated as an employee, not as an
officer and director of the Corporation. Accordingly, Mrs. Minton is not
entitled to an award for her salary from March 1998 to date.

Our review of the testimony and related exhibits supports the above-factual

conclusions. For example, despite conflicting testimony from Ms. Minton and Julian

regarding the nature of their compensation, other members of the board, i.e., Tracy

Percy or Eva Long, did not receive an increase in their salary when their position

changed from employee only, to that of both employee and board member. This

assignment lacks merit.

Motion for Contempt and Return of Brief

Long’s filed a motion with this court, alleging that references contained in Ms.

Minton’s brief were inappropriate and violative of the Uniform Rules of the Courts

of Appeal. Specifically, the motion complains of reference to a decision of this court

rendered in a suit by these same parties, relating to another difficulty with the

business. The motion contends that the unpublished opinion was inappropriately

referenced and mention was not made to the case’s publication status. Long’s asserts

both that the appellee brief should be returned and that sanctions should be imposed.

Relevant to consideration of the motion are Uniform Rules - Courts of Appeal,

Rules 2-12.4 and 2-16.3. Rule 2-12.4, which addresses the requirements of briefs

filed with the court, provides, in part:

8

The language used in the brief shall be courteous, free from vile,
obscene, obnoxious, or offensive expressions, and free from insulting,
abusive, discourteous, or irrelevant matter or criticism of any person,
class or persons or association of persons, or any court, or judge or other
officer thereof, or of any institution. Any violation of this Rule shall
subject the author, or authors, of the brief to punishment for contempt of
court, and to having such brief returned.

Furthermore, with regard to published/unpublished cases, Rule 2-16.3 provides, in

part:

C. Opinions marked “Not Designated for Publication” shall not
be cited, quoted, or referred to by any counsel, or in any argument, brief,
or other materials presented to any court, except in continuing or related
litigation. Opinions marked “Not Designated for Publication” shall be
filed in the clerk’s office as public records.

After review of the appellee’s brief and references made to the other

proceeding, we do not find that those references require return of the brief or

imposition of sanctions. Although the opinion is unpublished, it involves the conduct

of these parties in another, arguably related matter. In fact, the proceeding is

referenced by the trial court in his reasons for ruling. A portion of Rule 2-16.3

permits reference to unpublished opinions if they stem from related litigation. This

court is able to assess the relevance/appropriateness of the references and determine

whether any weight is to be given the information in question.

With regard to Long’s assertion that a statement in Ms. Minton’s brief

questioning the veracity of statements made by Julian and his father, Julian E. Long,

we point out that both briefs call into question the truthfulness or credibility of the

opposing party’s statements. We do not find sanctions in this regard appropriate. The

motion is denied.

DECREE

9

For the foregoing reasons, the decision of the trial court is affirmed. The

motion for contempt and return of brief is denied. All costs of this matter are assessed

equally between the parties, Long’s Preferred Products, Inc. and Linda Long Minton.

AFFIRMED. MOTION DENIED.

10

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1020

LONG’S PREFERRED PRODUCTS, INC.

VERSUS

LINDA LONG MINTON

THIBODEAUX, J., dissenting in part.

The trial court erroneously held that Ms. Minton refused to agree to repay

the monies she received from Long’s Preferred Products, Inc.

I am mindful of the deference which should be accorded to the factual

findings of a trial court. I am equally cognizant that a court of appeal has a

constitutional function to perform and it is entitled to determine if a trial court’s

verdict is without evidentiary support. Ambrose v. New Orleans Police Amb. Serv.,

93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216. In performing this

constitutional function, “[w]here documents or objective evidence so contradict the

witness’s story, or the story itself is so internally inconsistent or implausible on its

face, that a reasonable fact finder would not credit the witness’s story, the court of

appeal may well find manifest error or clear wrongness even in a finding purportedly

based upon a credibility determination.” Rosell v. ESCO, 549 So.2d 840, 844-45.

In this case, it seems to me that the objective evidence militates against

the weight given to the credibility determinations of the trial court. In the proposed

Installment Sale & Act of Pledge, the sum of $732,150.00 was submitted. This sum

reflected in part the deletion of $44,000.00 in salary received by Ms. Minton. The

promissory note reflected this same amount. Ms. Minton was asked during her

deposition:

Q. Did you by any chance consult a lawyer by the name
of Ellis Saybe?

A. Yes, sir, I did. I took this contract, as a matter of
fact, the first time I saw it. Let me make sure I’m
saying this right. Yes, sir, I did, because this is Ellis
Saybe that caught the typo. And I did want him to
look at it before I signed it.

Ms. Minton does not mention any objection to deleting $44,000.00 from the total price

of the proposed buy out. Her attorney, Mr. Saybe, examined the document and made

one minor typographical change deleting “and” and substituting “any” in its place.1

Ms. Minton’s attorney drafted a letter to Julian W. Long on April 23,

1998. That letter does not mention any disagreement with the pay-back provisions of

the Installment Sale & Act of Pledge and the promissory note. Finally, Ms. Minton

admits in her deposition that she never returned after July 18th to the corporate offices

to perform the services she had previously performed for Long’s Preferred Products.

She did not, in other words, perform any work, yet she claims to be entitled to

$4,500.00 per month for work she did not perform.

I feel simply that Ms. Minton’s after-the-fact trial testimony is simply too

inconsistent with the hard, objective evidence. I would reverse the trial court on this

issue.

For the foregoing reasons, I respectfully dissent.

1
See plaintiff’s Exhibit P-5, P-6, and P-7.

2