Alex Guillard v. Copeland's of New Orleans, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-0867

ALEX GUILLARD

VERSUS

COPELAND’S OF NEW ORLEANS, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 05-4275 “F”
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
James T. Genovese, Judges.

AFFIRMED.

Timothy O’Dowd
Attorney at Law
921 Ryan Street, Suite D
Lake Charles, LA 70601
(337) 310-2304
COUNSEL FOR THE PLAINTIFF/APPELLEE:
Alex Guillard

Len R. Brignac, T.A.
Lindsay A. Larson, III
King, LeBlanc & Bland, P.L.L.C.
201 St. Charles Avenue, 45th Floor
New Orleans, LA 70170
(504) 582-3800
COUNSEL FOR DEFENDANT/APPELLANT:
Copeland’s of New Orleans, Inc.

PETERS, J.

The defendant, Copeland’s of New Orleans, Inc. (Copeland’s), appeals the trial

court’s judgment awarding the plaintiff, Alex Guillard, $46,500.00 in damages for

Copeland’s breach of a three-year employment contract with him. Mr. Guillard has

answered the appeal, asserting that the trial court erred in failing to award him

penalties and attorney fees. For the following reasons, we affirm the trial court

judgment in all respects.

DISCUSSION OF THE RECORD

On December 30, 2004, Mr. Guillard entered into a three-year employment

contract with Copeland’s, wherein he agreed to provide janitorial services at

Copeland’s Lake Charles, Louisiana, restaurant, and Copeland’s agreed to

compensate him for the services at the rate of $1,500.00 per month. In May of 2005,

Copeland’s closed the Lake Charles restaurant and informed Mr. Guillard that his

janitorial services were no longer needed. The quality of Mr. Guillard’s services was

not at issue in terminating the contract, and Copeland’s only reason for taking that

action was the failure of the restaurant to meet its performance expectations.

Copeland’s decided not to reopen the restaurant, and, by the end of June 2005, it had

entered a listing agreement for the sale of the restaurant property.

On August 17, 2005, Mr. Guillard filed suit for damages against Copeland’s,

asserting that it had breached its three-year contract for employment. On September

24, 2005, Hurricane Rita struck the Lake Charles area and caused approximately

$400,000.00 in damages to the building which had previously housed the restaurant.

At trial, the trial court rendered judgment finding that Mr. Guillard was an

independent contractor, that Copeland’s had breached the contract, and that Mr.

Guillard was not entitled to attorney fees and penalties pursuant to La.R.S. 23:631-

632. The trial court then awarded Mr. Guillard judgment in the amount of

$46,500.00, said award representing the amount that would have been due Mr.

Guillard had the contract remained in force and effect for the full three years.

Copeland’s timely appealed this judgment, and Mr. Guillard answered the appeal.

OPINION

In its appeal, Copeland’s asserts two assignments of error: (1) the trial court

erred in not finding that Hurricane Rita was a fortuitous event making Copeland’s

performance impossible and allowing it to dissolve the contract pursuant to

La.Civ.Code art. 1876, and (2) the trial court erred by not reducing Mr. Guillard’s

recovery, since Mr. Guillard failed to mitigate his damages as required by

La.Civ.Code art. 2002. Mr. Guillard answered the appeal, asserting in his one

assignment of error that the trial court erred in failing to award penalties and attorney

fees payable to employees under La.R.S. 23:631-632.

Copeland’s Assignment of Error Number One

Relying on La.Civ.Code art. 1876, Copeland’s contends that the trial court

erred in holding that Mr. Guillard was entitled to payment for the full term of the

contract. Louisiana Civil Code Article 1876 provides that “[w]hen the entire

performance owed by one party has become impossible because of a fortuitous event,

the contract is dissolved” and the other party’s recovery is limited to “any

performance he has already rendered.” A fortuitous event is defined by La.Civ.Code

art. 1875 as “one that, at the time the contract was made, could not have been

reasonably foreseen.”

Copeland’s does not dispute that it owes Mr. Guillard for services rendered

under the contract from May of 2005, when it informed Mr. Guillard that it would not

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honor the contract, until September 24, 2005, when Hurricane Rita struck. Its dispute

with the trial court judgment is the award which represents the remaining term of the

contract, or until December 30, 2008. Copeland’s argues that since Hurricane Rita

was a fortuitous event that made Copeland’s performance impossible, the contract

was dissolved pursuant to La.Civ.Code art. 1976 as of September 24, 2005, limiting

what it owed Mr. Guillard to the period ending on that date.

While Hurricane Rita was unquestionably a fortuitous event, Copeland’s

argument ignores La.Civ.Code art. 1873, which provides in part that an obligor is

liable for his failure to perform “when the fortuitous event occurred after he has been

put in default.” (Emphasis added.) In this case, Copeland’s had unquestionably been

put in default over one month before Hurricane Rita struck the Lake Charles area,

when Mr. Guillard filed his suit. Thus, pursuant to La.Civ.Code art. 1873,

Copeland’s is liable for Mr. Guillard’s lost wages until the end of the contract.

We find no merit in this assignment of error.

Copeland’s Assignment of Error Number Two

Copeland’s contends in this assignment of error that the judgment against it

should be reduced because Mr. Guillard failed to make a reasonable effort to mitigate

his damages. In making this argument, Copeland’s relies on La.Civ.Code art. 2002

which provides that “[a]n obligee must make reasonable efforts to mitigate the

damage caused by the obligor’s failure to perform,” and that when he does not, “the

obligor may demand that the damages be accordingly reduced.”

The issue of mitigation of damages by a laborer/employee has been addressed

by the supreme court in Andrepont v. Lake Charles Harbor & Terminal Dist., 602

So.2d 704, 706-07 (La.1992) (emphasis added) with the following conclusion:

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Article 2749 of the Louisiana Civil Code addresses an employer’s
liability for terminating an employee with a fixed term contract without
cause. It provides:

If, without any serious grounds of complaint, a man should
send away a laborer whose services he has hired for a
certain time, before that time has expired, he shall be
bound to pay to such laborer the whole of the salaries
which he would have been entitled to receive, had the full
term of his services arrived.

An employer’s breach of a fixed term contract without cause results in
the employee’s entitlement to compensation for all wages or salary that
he would have received but for the breach. . . . .

Of course, there is no duty to mitigate lost salary damages in these
circumstances.

While we recognize that the trial court concluded that Mr. Guillard was an

independent contractor and not an employee, we find this is a distinction without a

difference for purposes of considering his obligation to mitigate damages. As pointed

out by the first circuit in Guidry v. Freeman, 555 So.2d 588, 591-92 (La.App. 1 Cir.

1989) (emphasis in original),

The Louisiana Civil Code provides for the employer-employee
contractual relationship in Book I (Of Persons), Title VI (Of Master and
Servant). La.C.C. arts. 162, l63 and l64 provide as follows:

Art. 162. There is only one class of servants in this
State, to wit: Free servants.

Art. 163. Free servants are in general all free
persons who let, hire or engage their services to another in
this State, to be employed therein at any work, commerce
or occupation whatever for the benefit of him who has
contracted with them, for a certain price or retribution, or
upon certain conditions.

Art. 164. There are three kinds of free servants in
this State, to wit:

1. Those who only hire out their services by the day,
week, month or year, in consideration of certain wages; the

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rules which fix the extent and limits of those contracts are
established in the title: Of Letting and Hiring. ...

Thus, a servant (employee) for purposes of our Civil Code is any
person who lets, hires or engages his services to another to be employed
at any work, commerce or occupation whatever for the benefit of him
(employer) who has contracted with the servant. La.C.C. art. 164(1)
provides that employment contracts of persons who hire out their
services for wages are controlled by the Civil Code rules of lease. A
lease of labor is a synallagmatic contract based on mutual consent by
which one party (the servant or employee) gives to the other (master or
employer) his labor (services) at a fixed price. La.C.C. arts. 2669, 2670,
2673 and 2675. La.C.C. 2745 provides as follows:

Labor may be let out in three ways.

1. Laborers may hire their services to another
person.

2. Carriers and watermen hire out their services for
the conveyance either of persons or of goods and
merchandise.

3. Workmen hire out their labor or industry to make
buildings or other works.

Thus, for purposes of the employer-employee contractual
relationship, it is irrelevant whether the employee-servant is an
independent contractor or a nonindependent contractor. In either
situation, the contractual relationship is governed by the same rules.

Given the finding that the same rules govern the employer-employee and

principal-independent contractor relationship, we find the decision of the supreme

court in Andrepont, 602 So.2d 704, governs our decision is this matter. Thus, we

conclude that Mr. Guillard had no duty to mitigate his damages. Therefore, we find

no merit in this assignment of error.

Mr. Guillard’s Assignment of Error as Raised by his Answer to the Appeal

In his answer to Copeland’s appeal, Mr. Guillard contends that the trial court

erred in finding that he was an independent contractor and, thus, was not entitled to

an award of penalties and attorney fees because Copeland’s failed to pay him the

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amounts due within three days of his discharge under the contract.1 We find no merit

in this assignment of error.

The trial court’s factual finding that Mr. Guillard was an independent

contractor is reviewed under the manifest error/clearly wrong standard. Hall v.

Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90. In determining whether

there is a principal/independent contractor relationship, as opposed to an

employer/employee relationship, a court should determine whether:

(1) there is a valid contract between the parties; (2) the work being done
is of an independent nature such that the contractor may employ non-
exclusive means in accomplishing it; (3) the contract calls for specific
piecework as a unit to be done according to the independent contractor’s
own methods, without being subject to the control and direction of the
principal, except as to the result of the services to be rendered; (4) there
is a specific price for the overall undertaking agreed upon; and (5) the
duration of the work is for a specific time and not subject to termination
or discontinuance at the will of either side without a corresponding
liability for its breach.

Gordon v. Hurlston, 03-112, p. 4 (La.App. 3 Cir. 9/10/03), 854 So.2d 469, 472.

Applying these factors to the evidence now before us, we find no manifest error

in the trial court’s conclusion that Mr. Guillard was an independent contractor. The

agreement between Mr. Guillard and Copeland’s is based on a proposal for specific

services prepared by Mr. Guillard. It requires Mr. Guillard to provide cleaning

services to the Lake Charles restaurant, but provides only that a specific result be

obtained without reference to specific hours or work schedules. Thus, Copeland’s did

not have the right to control the method and means by which Mr. Guillard performed

his cleaning services. The contract price provides a set fee for services rendered

1
Louisiana Revised Statute 23:631 requires an employer to pay any amounts due to a
discharged employee or laborer within three days of his discharge. Louisiana Revised Statute 23:632
provides for an award of penalties and attorney fees for an employer’s failure to comply with the
requirements of La.R.S. 23:631.

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without regard to the time involved, and the contract itself is for a fixed three-year

period. Although Copeland’s did make arrangements for Mr. Guillard to work during

certain hours, that arrangement accommodated the restaurant’s schedule and did not

address how or when Mr. Guillard performed his services.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment in all respects.

We assess all costs of this appeal to the defendant, Copeland’s of New Orleans, Inc.

AFFIRMED.

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