Susan Carragher v. Pittman Broadcasting

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-857

SUSAN DUNN CARRAGHER

VERSUS

PITTMAN BROADCASTING SERVICES, L.L.C.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 2002-4395,
HONORABLE CHARLEY QUIENALTY,
DISTRICT JUDGE PRO TEMPORE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

AFFIRMED AS AMENDED.

Benjamin W. Mount
Bergstedt & Mount
Post Office Drawer 3004
Lake Charles, Louisiana 70602
(337) 433-3004
Counsel for Plaintiff/Appellee:
Susan Dunn Carragher

Jimmy R. Faircloth, Jr.
Faircloth, Vilar & Davidson, L.L.C.
Post Office Box 12730
Alexandria, Louisiana 71315-2730
(318) 442-9533
Counsel for Defendant/Appellant:
Pittman Broadcasting Services, L.L.C.

SULLIVAN, Judge.

Pittman Broadcasting Services, L.L.C. (“Pittman Broadcasting”) appeals an

award of unpaid wages, penalties, and attorney fees in favor of its former employee,

Susan Dunn Carragher. For the following reasons, we affirm as amended.

Discussion of the Record

Ms. Carragher was employed by Pittman Broadcasting from January 15, 2000

through October 5, 2001 as sales manager for the radio station KAOK in Lake

Charles, Louisiana. Prior to working for Pittman Broadcasting, she had been

employed for approximately five years as an account executive by Cumulus

Broadcasting (“Cumulus”), where she earned between $47,000.00 and upwards of

$50,000.00 in the last two years of her employment there. Ms. Carragher testified

that she agreed to work for Pittman Broadcasting after its owner, Dr. Marcus Pittman,

guaranteed her a salary of $5,500.00 per month, or $66,000.00 per year, plus

commissions, for a minimum of two years. She explained that she accepted Dr.

Pittman’s offer because of the salary guarantee, so that she would not have to worry

about earning commissions anymore.

It is undisputed that for the first three months of her employment at Pittman

Broadcasting, Ms. Carragher was paid according to the above terms, but that she

received a substantially smaller check in May of 2000. She testified that, when she

questioned Dr. Pittman about this, he explained that he was having serious financial

problems, but that he would pay her “the balance due” as soon as he received a

settlement from a lawsuit involving damage to a broadcasting tower that occurred

before she started working there.

In a letter dated May 29, 2000, Ms. Carragher wrote to Dr. Pittman stating that

she had left her former job at Cumulus “based on a promise to pay me $5,500 per

month and a commission on sales over thirty thousand,” but that “[w]e have

continually chipped away at that deal, now to the point of a new pay plan,” which

plan she described as “unacceptable.” She included with the letter a proposed

contract with a lower “salary” and “guaranteed commissions” that would not have to

be paid until the following month, but that would still guarantee a minimum pay of

$66,000.00 per year. That agreement was never signed by either party.

Ms. Carragher explained that she continued working for Pittman Broadcasting

based upon Dr. Pittman’s assurances that he would pay her “the right amount” when

he received the expected settlement proceeds. She testified that she left that job in

October of 2001 because of “lack of payment,” her inability to live on what she had

been receiving, and the failure to “get a straight answer” on when she would be paid

what she was owed.

Jane Young, who worked with Ms. Carragher at Cumulus, testified that she was

concerned about Ms. Carragher leaving her position there, where she was the leading

salesperson who was making “a good bit of money.” Ms. Young explained that she

overheard the conversation in which Dr. Pittman offered Ms. Carragher the job at his

company, when his call came while the two were working together and Ms. Carragher

transferred it to a conference call. According to Ms. Young, she heard Dr. Pittman

offer Ms. Carragher $5,500.00 a month for two years, which offer was to be put in

writing within one week.

Scott Bailey, a longtime friend of Ms. Carragher’s who also participated in a

program on KAOK, testified that Ms. Carragher sought his advice about whether to

accept the position at Pittman Broadcasting. Mr. Bailey testified that he was

concerned about Ms. Carragher leaving her job at Cumulus, where she had reached

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her highest income ever, but that Ms. Carragher explained to him that the new

position included a guarantee of $5,500.00 a month and represented a chance to get

into management, whereas her job at Cumulus was still on a commission basis.

Justin Morris, a producer who worked with Ms. Carragher at Pittman

Broadcasting, testified that he overheard numerous conversations in which

Ms. Carragher asked Dr. Pittman, “When am I going to get what’s owed?” According

to Mr. Morris, Dr. Pittman always replied that it was contingent on receipt of monies

from the damage to the tower, as well as from insurance proceeds that would be

forthcoming from a fire in which Pittman Broadcasting’s office was destroyed in

February of 2001. Mr. Morris also described the payment of wages at the station as

“completely unstable,” in that employee paychecks were rarely delivered in a timely

manner.

Ted Williams, who contributed to a gardening program on KAOK, testified that

he was present during a “pretty heated discussion” at a restaurant in which

Dr. Pittman suggested bringing in a new employee as general manager of the station

and Ms. Carragher then brought up that she was still owed a sum of money based

upon her guaranteed salary of $5,500.00 a month. Mr. Williams also described a

conversation in which Dr. Pittman and Ms. Carragher’s husband “were coming almost

to blows,” with the Carraghers stating, “You’re not paying us what you said you

would pay us,” and Dr. Pittman replying that he would pay them as soon as he

received the insurance money.

Dr. Pittman testified that he offered Ms. Carragher only three months at

$5,500.00 per month, which amount represented a monthly salary of $1,500.00 plus

a draw of $4,000.00 towards future commissions; after the first three months, she

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would be paid a salary of $1,500.00 per month plus a thirty-percent commission on

her advertising sales. He explained that in May of 2000, Ms. Carragher’s salary was

not reduced, nor was her commission schedule altered, but rather she was no longer

receiving the automatic $4,000.00 draw because that was to come from actual

commissions. He stated that he did not agree to the terms of the written contract that

Ms. Carragher presented to him in May of 2000 and that he was not aware of the

letter dated May 29, 2000 until June of 2005. He testified that in May of 2000, when

Ms. Carragher began complaining about the commissions, he allowed her to live in

a house that he owned rent-free, whereas before she had been paying him $510.00 per

month for use of the home. Dr. Pittman also allowed Ms. Carragher to operate her

own advertising agency from his broadcasting offices. Dr. Pittman acknowledged

that he had spoken of receiving a settlement for the damaged tower, but he testified

that when he did so, he referred to using that money to upgrade the station’s

equipment or to hire additional salespeople, rather than to pay Ms. Carragher any

additional money.

Dr. Pittman’s wife, Janet, testified that, as a co-owner of the business, she

exercised some payroll responsibilities, including keeping an activity log in which

she recorded each employee’s starting salary, as well as any subsequent changes, and

any other information that may affect payroll. Ms. Carragher’s activity log reflects

an initial entry that states, “Salary: $5500/month[,] first $4000 draw on commission.”

The next entry reflects starting May 1, 2000: “Salary $1500/month + commissions

@ 30%.” Mrs. Pittman explained that the second entry was not recorded until May

of 2000, and she acknowledged that the first entry did not indicate that the initial

arrangement was meant to be in place for only three months.

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At the conclusion of the evidence, the trial court ruled from the bench, finding

that Ms. Carragher had proved her case by a preponderance of the evidence, citing her

credibility as well as that of her supporting witnesses. A judgment was later signed

awarding Ms. Carragher a total of $42,785.41 in unpaid wages,1 as well as $16,273.97

in penalty wages and $7,706.54 in attorney fees under La.R.S. 23:632.

Unpaid Wages

Pittman Broadcasting first argues that the trial court erred in awarding unpaid

wages under La.R.S. 23:631, where Ms. Carragher was paid in the amount and

manner to which the parties originally agreed, or in the alternative, pursuant to a

modified agreement as evidence by the conduct of the parties.

Louisiana Revised Statutes 23:631(A)(1)(b) (emphasis added) provides:

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.

In the present case, Ms. Carragher sought wages in excess of $500.00 due

under the terms of an oral contract. In Smith v. Dishman & Bennett Specialty Co.,

Inc., 35,682, pp. 3-4 (La.App. 2 Cir. 1/23/02), 805 So.2d 1220, 1223 (citations

omitted), the court explained the plaintiff’s burden of proof in such cases:

In a suit to recover additional wages in excess of $500.00 under
an oral contract of employment the basic rule governing proof is the
second paragraph of La. C.C. art. 1846, which requires that plaintiff
prove his case by one credible witness “and other corroborating
circumstances.” The plaintiff may be the one credible witness. “Other

1
The trial court awarded unpaid wages based upon a salary of $66,000.00 per year, subject
to a credit for the rent and utilities that would have been due while Ms. Carragher occupied the house
owned by Dr. Pittman.

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corroborating circumstances” need only be general in nature;
independent proof of every detail of the agreement is not required.2

Additionally, “the trial court’s determination as to the pay rate promised under

the terms of the oral contract of employment is a finding of fact . . . .” Id. at 1224.

Accordingly, the following standard of review applies:

[A] court of appeal may not set aside a trial court’s finding of fact in the
absence of manifest error or unless it is clearly wrong. When there is a
conflict in the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review; the
issue for the reviewing court is not whether the trier of fact was wrong,
but whether the factfinder’s conclusions were reasonable under the
evidence. When a factfinder’s determination is based on its discretion
to credit the testimony of one of two or more witnesses, that finding can
virtually never be wrong.

Id. at 1223-24 (citations omitted).

In the present case, the trial court found that Ms. Carragher proved her case by

a preponderance of the evidence based upon its finding that her testimony was

credible, as was that of several witnesses called on her behalf. Ms. Carragher,

Ms. Young, and Mr. Bailey all testified regarding Ms. Carragher’s concerns about

leaving her high-paying, but commission-based job at Cumulus, as well as the

importance of a position with a guaranteed salary. Ms. Young testified that she

actually overheard the offer and acceptance of a position that guaranteed a monthly

salary of $5,500.00 per month for two years. Payroll records establish that

2
Louisiana Civil Code Article 1846 provides in full:

When a writing is not required by law, a contract not reduced to writing, for
a price or, in the absence of a price, for a value not in excess of five hundred dollars
may be proved by competent evidence.

If the price or value is in excess of five hundred dollars, the contract must be
proved by at least one witness and other corroborating circumstances.

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Ms. Carragher was issued checks corresponding to this figure for approximately three

months. Mr. Morris and Mr. Williams testified as to Ms. Carragher’s demands, after

her paychecks were reduced, that she was still owed monies based upon a monthly

salary of $5,500.00, as well as to Dr. Pittman’s assurances that she would be paid

with the proceeds from a pending lawsuit. We find no error in the trial court’s

conclusion that Ms. Carragher proved the existence of a contract of employment

through credible testimony and other corroborating circumstances. We further find

that the evidence does not support a subsequent modification of that contract, given

Ms. Carragher’s written objection calling her new pay plan “unacceptable” and the

testimony of those who witnessed her continued demands to be paid in accordance

with the original contract. The trial court’s award of unpaid wages is hereby

affirmed.

Penalty Wages and Attorney Fees

Pittman Broadcasting next argues that the trial court erred in awarding penalty

wages and attorney fees pursuant to La.R.S. 23:632. That statute provides:

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. 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.

(Emphasis added.)

Concerning penalty wages, the courts have recognized:

In order for the employee to recover penalty wages, the employer
must be found to have acted in an arbitrary or unreasonable manner.

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Only “a good-faith, non-arbitrary defense to liability for unpaid wages,
i.e., a reasonable basis for resisting liability” permits a court to excuse
the employer from the imposition of penalty wages.

Dickerson v. Cajun Communications of Texas, Inc., 40,026, p. 6 (La.App. 2 Cir.

8/17/05), 910 So.2d 477, 481, writs denied, 05-2267 (La. 3/8/06), 925 So.2d 490, and

05-2332 (La. 3/10/06), 925 So.2d 520 (citations omitted).

Attorney fees, however, “are to be awarded in the event that the plaintiff files

a well-founded suit for unpaid wages, even if penalty wages are not due.” Id.

(emphasis added).

In the present case, the trial court awarded both penalty wages and attorney

fees upon finding that Ms. Carragher’s suit for unpaid wages was well-founded.

Although this is the correct standard to be applied in awarding attorney fees, a more

stringent standard must be met before penalty wages can be awarded. Specifically,

the trial court should have determined whether the employer presented a “good-faith,

non-arbitrary” defense that would defeat the claim for penalty wages. Id. Because

the record before us is complete, however, we are able to determine this issue de

novo.

In Dickerson, 910 So.2d 477, the issue presented was whether the employer

and employee had agreed that the employee would be entitled to severance pay

should he be terminated within the first ninety days of hire. The court accepted the

employee’s testimony on this point, then went on to conclude that arbitrary conduct

by the employer was implicit in this finding, reasoning:

The dispute in this case was whether the parties reached an agreement
concerning severance pay commencing with the first day of
employment. [The employee] testified that the parties had reached such
an agreement but that [the employer] had refused to honor it. In finding
[the employee’s] testimony credible, the court necessarily found that
[the employer] knew and agreed to the severance payments.

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Id. (emphasis added). The present case, likewise, involves the acceptance of one

party’s testimony over another’s, with the acceptance of that testimony implying

knowledge of the disputed terms. Ms. Carragher’s testimony, as well as that of at

least two other witnesses, established not only her continued demands to be paid per

the $5,500.00/month agreement, but also Dr. Pittman’s assurances of payment upon

receipt of certain funds. On this basis, we find that an award of penalty wages is

proper.

Because Ms. Carragher’s suit for unpaid wages has merit, the award of attorney

fees is affirmed. Ms. Carragher has answered the appeal, seeking additional attorney

fees for defending this appeal, which we fix at $1,500.00.

Decree

For the above reasons the judgment of the trial court is affirmed, but is

amended to award additional attorney fees of $1,500.00. Costs of this appeal are

assessed to Pittman Broadcasting, L.L.C.

AFFIRMED AS AMENDED.

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