Brian Burns v. National Communications, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-453

BRIAN BURNS

VERSUS

NATIONAL COMMUNICATIONS, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2003-5405
HONORABLE RICK BRYANT, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Chris J. Roy, Sr.,*
Judges.

REVERSED AND RENDERED.

John J. Simpson
Post Office Box 2900
Lake Charles, Louisiana 70602
(337) 436-9491
Counsel for Plaintiff/Appellant:
Brian Burns

Charles H. Hollis
Vasilios Manthos
The Kullman Firm
Post Office Box 60118
New Orleans, Louisiana 70160
(504) 524-4162
Counsel for Defendant/Appellee:
National Communications, Inc.

_____________________
*Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

GENOVESE, Judge.

Brian Burns appeals the trial court judgment denying him penalty wages for the

breach of his employment contract by his former employer, National

Communications, Inc. (National). For the following reasons, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

On October 21, 2002, Mr. Burns signed a two-year employment contract to be

a news anchorman on KVHP-TV, a television station in Lake Charles, Louisiana,

which is owned by National. The employment contract, which commenced on

October 30, 2002, provided that “[National] may terminate this agreement at anytime

providing that [National] notify [Mr. Burns] in writing of such intent at least ninety

(90) days prior to the determined date of termination.” On April 4, 2003, Mr. John

Korbel, the News Director for KVHP-TV, personally delivered to Mr. Burns a letter

entitled “Personal Services Contract Release” wherein it stated that National

“inten[ded] to fulfill its obligations under our contract and ensure[] continuation as

provided through June 25, 2003, under the [ninety]-day termination provision of that

agreement.” The last day of Mr. Burns’s employment at KVHP-TV was on June 25,

2003.

On October 8, 2003, Mr. Burns filed suit against National for its breach of their

employment contract in violation of La.R.S. 23:631, seeking penalty wages and

attorney fees pursuant to La.R.S. 23:632. He alleged that National breached their

employment contract by not providing him with the required ninety-day notice as

required by the contract, in violation of La.R.S. 23:631. Specifically, Mr. Burns

contends that National provided him with only eighty-two days notice. Therefore,

Mr. Burns asserted that he was entitled to penalty wages and attorney fees pursuant

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to La.R.S. 23:632 for National’s breach of the terms of their employment contract, in

violation of La.R.S. 23:631.

National answered the lawsuit denying that it breached the terms of the

employment contract. Specifically, National asserted “that [Mr. Burns] is in error and

is mistaken in his allegation that he was not given ninety days notice.”

A bench trial was held on September 25, 2007. At trial, National argued that,

prior to writing the termination letter, it had determined that Mr. Burns had taken

excess “comp time1” in the amount of eight days. In substantiation of this allegation,

Mr. Korbel testified at trial that, using company records, he had determined that Mr.

Burns had taken excess comp time in the amount of eight days. According to Mr.

Korbel, after this determination had been made, he and Ms. Chrissy Irwin, National’s

Business Manager, subtracted the eight days of excess comp days that Mr. Burns had

taken from the ninety-day notice period when they calculated Mr. Burns’ pay up

through his last day at the station. Ms. Irwin’s testimony at trial reiterated this

calculation methodology.

After taking this matter under advisement, the trial court rendered its judgment

on December 1, 2007, wherein National was ordered to pay $1,280.00 in wages to

Mr. Burns. The judgment also provided, in relevant part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the penalty wages sought by [Mr. Burns] are denied;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
[Mr. Burns] is entitled to attorney fees pursuant to [La.R.S.] 23:632 and
that National . . . is cast in judgment for attorney fees in the amount of
$10,000[.00.]

Mr. Burns appeals the part of the judgment denying him penalty wages and

1
Though “comp time” was not defined in the employment contract, it was generally referred
to as vacation time.

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seeks attorney fees for work done on appeal.

ASSIGNMENTS OF ERROR

Mr. Burns contends that:

I. The [t]rial [c]ourt [c]ommitted [l]egal [e]rror [b]y [f]ailing
to [a]ward [p]enalty [w]ages [p]ursuant [t]o [La.R.S.]
23:632 [a]fter [f]inding Mr. Burns [e]ntitled to the [w]ages
[d]ue.

II. The [t]rial [c]ourt [c]ommitted [l]egal [e]rror [b]y
[i]gnoring [t]he [a]dmissions [o]f [t]he Defendant [i]n [i]ts
[s]ummary [j]udgment [p]leadings [a]nd [c]onsidering [i]ts
[c]ontrary [p]osition [a]t [t]rial.

III. Appellant [s]eeks [a]dditional [attorney] [f]ees [m]ade
[n]ecessary [b]y [t]he [t]rial [c]ourt[’s] [f]ailure [t]o
[a]ward [p]enalty [w]ages.

LAW

The appropriate standard of review for appellate courts in a case such as this

is the manifest error standard; thus, this court may not set aside the trial court’s

findings of fact in the absence of manifest error or unless they are clearly wrong.

Fontenot v. Ryder Truck Rental, Inc., 03-1129 (La.App. 3 Cir. 3/24/04), 869 So.2d

330 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).

Louisiana Revised Statutes 23:631 provides:

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

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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.

(3) The provisions of this Subsection shall not apply when there
is a collective bargaining agreement between the employer and the
laborer or other employee which provides otherwise.

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.

C. With respect to interstate common carriers by rail, a legal
holiday shall not be considered in computing the fifteen-day period
provided for in Subsection A of this Section.

D. (1) For purposes of this Section, vacation pay will be
considered an amount then due only if, in accordance with the stated
vacation policy of the person employing such laborer or other employee,
both of the following apply:

(a) The laborer or other employee is deemed eligible for and has
accrued the right to take vacation time with pay.

(b) The laborer or other employee has not taken or been
compensated for the vacation time as of the date of the discharge or
resignation.

(2) The provisions of this Subsection shall not be interpreted to
allow the forfeiture of any vacation pay actually earned by an employee
pursuant to the employer’s policy.

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Louisiana Revised Statutes 23:632 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.

Our supreme court in Wyatt v. Avoyelles Parish School Board, 01-3180, p. 15

(La. 12/4/02), 831 So.2d 906, 916-17, declared:

La. R.S. 23:632 is a penal statute that must be strictly construed
and may yield to equitable results. Beard [v. Summit Inst. of Pulmonary
Med. & Rehab., Inc., 97-1784 at p. 7, 707 So.2d at 1236 (citing Bannon
v. Techeland Oil Corp., 205 La. 689, 693, 17 So.2d 921 (1944)). This
court has previously stated that “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.
Beard, 97-1784, p. 7, 707 So.2d at 1236 (citing Carriere v. Pee Wee’s
Equipment Co., 364 So.2d 555, 557 (La.1978)).

DISCUSSION

Mr. Burns contends that La.R.S. 23:631 requires that, upon the discharge of an

employee, the employer has a duty to pay the amount then due under the terms of

employment on or before the next regular payday or no later than fifteen days

following the date of discharge. Mr. Burns asserts that, under the terms of his

employment contract, he was entitled to work and earn wages through July 3, 2003;

however, National discharged him on June 25, 2003, which Mr. Burns contends was

eight days premature under the terms of their contract. Mr. Burns asserts that, when

National did ultimately make an unconditional tender of the wages owed to him, it

was not until November 26, 2003, some ninety days after he made legal demand. Due

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to National’s failure to comply with La.R.S. 23:631, Mr. Burns argues that National

is also liable for penalty wages pursuant to La.R.S. 23:632. He asserts, in brief, that

the trial court erred when it only assessed National with attorney fees pursuant to

La.R.S 23:632 and not with both attorney fees and penalty wages. Finally, Mr. Burns

asserts that he is entitled to additional attorney fees for the work done on the instant

appeal.

National argues that the trial court was correct in its finding that it had a good

faith, reasonable belief that it was entitled to an offset for comp time used by Mr.

Burns as substantiated by the trial testimony of Mr. Korbel and Ms. Irwin. However,

we note that neither Mr. Korbel nor Ms. Irwin produced documentary evidence to

substantiate such assertion. Our review of the record further reveals that, when Mr.

Korbel was deposed2 in January of 2006, he made no mention of his alleged

determination that National was entitled to an offset. In fact, during his deposition,

Mr. Korbel recalled a conversation he had with Ms. Irwin prior to the receipt of a

demand letter from Mr. Burns wherein he stated:

I had met with Chrissie and we figured out where the error occurred was
on the calendar, however they did it, okay, when she explained it to me
-- she showed me that the way it was done on the calendar was screwed
up. Somebody hasn’t used the calendar to make sure the 90 day -- what
-- whatever it was -- and she explained it to me. I said, well, we screwed
up. She says, yeah, but we’re correcting it and he will get the extra
money.

In a letter dated August 6, 2003, Mr. Burns made demand upon National for

outstanding back pay. When Mr. Korbel was asked at his deposition what his

reaction was when he became aware that Mr. Burns had made a written demand for

outstanding back pay, Mr. Korbel answered, “I was rather surprised to see it, so I took

2
The trial court allowed the deposition of Mr. Korbel to be admitted into the note of evidence.

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it to Chrissie and she says [sic] I -- my recollection is it was something to the effect

that I thought all this had been taken care of long ago. . . .”

Based upon our review of the record in this matter, we find clear error in the

trial court’s determination that National presented a good-faith, non-arbitrary defense

to liability for its failure to pay to Mr. Burns the wages he was owed. There simply

does not exist any reasonable factual basis for the trial court’s finding that penalty

wages were not due. The trial court was clearly wrong and manifestly erroneous on

the issue of penalty wages. The testimony elicited by National at trial was suspect,

self-serving, and insufficient; further, said testimony was soundly impeached through

the use of deposition testimony. For this reason, we reverse the trial court’s judgment

denying Mr. Burns penalty wages and award him penalty wages in the amount of

$14,400.00 in accordance with La.R.S. 23:6323. Further, we award Mr. Burns

additional attorney fees in the amount of $2,500.00 for work done on appeal.

DECREE

For the foregoing reasons, the judgment of the trial court relative to penalty

wages is reversed, and Mr. Burns is awarded $14,400.00 in penalty wages and

$2,500.00 in additional attorney fees for work done on appeal. Costs of this appeal

are assessed against the Defendant/Appellee, National Communications, Inc.

REVERSED AND RENDERED.

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Based on the trial court’s award to Mr. Burns of $1,280.00 for eight days of wages, we
compute Mr. Burns’ daily wage as $160.00. Therefore, in accordance with La.R.S. 23:632, to
determine Mr. Burns’ penalty wages, we have multiplied $160.00 by ninety, the result of which is
$14,400.00.

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