Christopher Terito VS Wall-Vaughn Motors, Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0627 CHRISTOPHER TERITO VERSUS WALL VAUGHN MOTORS INC w Judgment Rendered December 21 2007 @ Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 528 458 Honorable R Michael Caldwell Judge Counsel for Dudley Baton Rouge LA Peter T Plaintiff Appellee Christopher Karl J Koch Counsel for Baton Rouge LA Terito Defendant Wall BE ORE 1 vyrr jI J p r RY AND HUG WHIPPLE t J7 c v n 1 I Appellant Vaughn Motors S n Inc GUIDRY J An employer appeals money for work judgment awarding perfonned during have back surgery this matter a the time the employee employee was a sum absent from work law and evidence Having reviewed the performed former a of to governing we reverse FACTS AND PROCEDURAL HISTORY In January 2004 Wall Vaughn began operating Motors Inc in Hammond Louisiana called Hammond Suzuki the finance and insurance manager for the work with the company 26 2004 the surgery after couple a of made demand allegedly Terito May agreed Vaughn Wall as On April Vaughn for his 3 100 00 Motors Motors Inc Motors Inc resignation in Inc unpaid Terito wages for the services during the months of denied owing Terito any wages Vaughn January Motors wages and 20 Inc 2005 awarding him the om work Wall Although Terito s surgery superimposed testimony it a medical was over was a petition for damages against Wall 3 100 00 in wages and further attorney fees pursuant Following the trial absent fi Terito filed seeking Motors Inc answered the Terito Wall performed on behalf of Wall Vaughn On trial position Following Inc paid by hired was Shortly after cormnencing dealership Motors be 2004 and June 2004 unpaid from his Vaughn dealership In June 2004 Terito returned to work but performed was Wall to Terito Christopher Terito disclosed that he needed back surgery days resigned on a car to La R S 23 631 seeking penalty and 632 Wall petition denying the alleged debt and the matter on the merits the trial sum of Vaughn excuse 880 00 for work Motors Inc 4 rendered judgment performed by the number in the date and based established that the surgery was 2 went to in favor of him while he was appeals the judgment asserting that introduced into evidence and marked scheduled for 5 26 04 the number court Vaughn on performed 5 clearly as April states that appears to have been other evidence on D l 26 2004 including Terito s the trial court erred in evidence introduced obligated the rendering judgment proving that a in favor of Terito because there person with authority was no bind the company to company to pay Terito DISCUSSION A mandate is on La another person the C C 2989 art determination whether the 2 by which contract a mandatary The the agent has the to right and authority Succession of Johnson 05 1192 p In Barrilleaux 1 st Cir 11 8 96 2d 864 683 So Apparent a affairs for the basically implied principal a factual agency exists is control the conduct of the agent and whether to or represent 16 La 4 4 06 bind the principal Lewis 925 So 2d 1172 Hospital 96 0343 pp emphasis added determination of this court v 1182 6 7 La 2d 348 354 writ denied 96 2885 La 124 97 citations omitted principles governing one or more determine whether Franklin Foundation v principal confers authority of mandate agency is test to principal has the right person the to transact question The essential a App 686 So succinctly presented the apparent agency agency arises when the principal has acted so as to give an innocent third party a reasonable belief that the agent had the authority to act for the principal and the third party reasonably relies Apparent agency is established by the words and conduct of the parties and the circumstances of the case An agency relationship may be created even though there is no intent to do so An agency relationship is never presumed it must be clearly established The burden of proving apparent authority is on the party seeking to bind the principal A third party may not blindly rely on the assertions of an agent but has a duty to determine at his peril whether the agency purportedly granted by the principal permits the proposed act by the agent One must look from the viewpoint of the on the manifested third party to authority determine whether At trial Terito testified that D of the an prior 2 On appeal a trial court s determination not be reversed absent reasons for expressly judgment a finding of manifest that its decision was apparent agency has been created to Vaughn the dealer principal and part agent having back owner as error found had not been established 3 of Wall to whether however not premised surgery he asked Michael on a Vaughn Motors Inc if agency exists should clear from the trial cOUli s it is an apparent finding of apparent agency which it there any work he could do from home and Vaughn told him that he could not work from home and that the company would not pay him while he was from work for his surgery from home Terito testified that contacted from work I talked be taken care m y to my 3 and I was was being plus insurance based taken that care s work I started being sic that I would care of while I of meant that was accountant worked under subsequent conversation with the on a absent from work for back surgery Vaughn testified that and and the authority to decide whether Terito would be that when Terito however Terito s was hired he allowed offer Terito he owner to make the As absent from the be paid while dealership only of the decision He explained to hire him Terito the final decision about what Vaughn stated Kemp simply delivered the back surgery 4 about salary to message surrounding the work performed by Terito dealership for his he dealership had paid during his absence Kemp Vaughn actually made As for the circumstances 3 majority at the not Vaughn said that while Kemp negotiated directly with salary and the Vaughn Vaughn likewise testified that he told Terito that he would Garry Lewis the senior partner out he would dealership comptroller accountant yet he acknowledged that both his boss comptroller absent to request once explained of and that my insurance would be taken 00 400 2 understanding boss Terito testified that he understood that receive Terito Despite Vaughn s denial of was Vaughn stated while that he knew that manager for the dealership at that time Brett Kemp to be his boss and he was the person to whom Terito spoke Terito further stated that he told Kemp that I was being called and that I expected if I was going to have to work from my house and take care of my office I expected to be paid And he informed me that it would be handled and worked out and that I would be compensated for doing my job because LD S could not get a Terito considered the temporary to replace me general while I was out of work 4 Specifically Vaughn explained I let Kemp pick who he wanted as an F I person because I knew they would be married and coupled closely together There was sic two guys he was looking at He bounced both of them off of me asked me what I thought which one did I Im want him to pick which one did I want to pick And I said well Kemp going to let you decide which F I person you want to hire 4 salespeople from the dealership surgery to to see how Terito was him about business deals that job and I assumed it entitled Work Status that Terito zero work until he Based on compensation back was was to being taken work care 5 of pending home know was a Vaughn the supervisor and the express declaration of the trial court to handle medical excuse and that he could perfonn released from surgery this evidence any of those persons had his they were talking we find the trial court erred in performed while he and owner co workers i nor be Although the at to erred in awarding Terito to Vaughn s prior compensation for he the actions of Terito requesting Terito countennand dealership compensated while perform were Vaughn there was no evidence presented authority Terito absent from work for his was principal authority e awarding employment duties and assuring him that he would be compensated to following paying Jeff Moreover treatment absent from work for his back surgery immediate at introduced into evidence in which it is noted expressly informed Terito that he could neither work was not I Vaughn explained was for the work he surgery contacting Terito doing but he said he did As Report unable was were to s some contrary show that directive Thus the work performed under such circumstances CONCLUSION Based court All on costs the foregoing discussion of this appeal are cast to the we reverse the judgment of the trial appellee Christopher Terito REVERSED 5 Vaughn had previously testified on direct examination that he had Jeff Tambrino one our better salespeople from St Louis fill Terito s place as finance and insurance manager 5 of CHRISTOPHER TERITO STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT WALL VAUGHN MOTORS INC Whipple Y I t j performed J concurring In the instant some back surgery case from Nonetheless employees compensated Terito failed to undisputedly found that Terito had dealership for his Vaughn testified and Terito acknowledged that him that the company would not pay him while he absent from work the the trial court work from home while absent from the Vaughn had informed was NUMBER 2007 CA 0627 In my view who given allegedly I must agree with the told the absence of any Terito majority satisfy his burden of proof s that he testimony would be ultimate conclusion that
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