Warren Christopher Williams VS Dutchtown Pharmacy, L.L.C.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 2559 WARREN CHRISTOPHER WILLIAMS VERSUS DUTCHTOWN PHARMACY L L C Judgment Rendered September 11 Appealed 2009 from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Case No 89087 The Honorable Thomas J Kliebert Jr Keith P Baton Amy Counsel for Plaintiff Louisiana Williams Christopher Counsel for Defendant Lawler Gonzales Hammond Louisiana BEFORE Appellee Warren Richards Rouge Judge Presiding Dutchtown Appellant Pharmacy L L C DOWNING GAIDRY AND McCLENDON JJ g J h1 CCc J nctAJ ri ftr u tE tjmS pM ml dtJXJs fMJYd GAIDRY J This appeal involves business for the penalty The pharmacy action on the own merits the trial pharmacy filed After court a close pharmacist against a working his tenure was never pharmacy a peremptory exception of at right of no paid directly by the corporation formed by the pharmacist under determined that such For the provided ending deferring the determination its to escape pharmacy services he a grounds that the pharmacist name allow the by wages owed to him after pharmacy but instead by his action an a obligation following of the exception to the payment arrangement did the to pay reasons we pharmacist affirm the trial not for the court s judgment FACTUAL AND PROCEDURAL BACKGROUND The plaintiff pharmacist On December the defendant 2005 Williams 15 Dutchtown compensation would include 1 of money sufficient premium monthly plus bonus calculated location a was to 1 open and Williams of Before Williams that 10 000 00 per month 5 000 00 for the deductible commencing revenue once for the and an policy 3 a pharmacy Dutchtown named s beginning work for Dutchtown Williams formed Inc Dutchtown that he could Williams had save taxes been advised by incorporating by the As such owners premium reimbursement to 2 Chris Williams Inc of Dutchtown paid all compensation for pharmacist services including salary and insurance 2 operating sufficiently Two weeks after Chris parties agreed of the gross sales months three salary Dutchtown reimburse him for his health insurance payment of equal every to a the licensed a began providing services for L L C Pharmacy commencing work for Dutchtown amount is Christopher Williams Williams Warren a health which in turn paid the wages to Williams Chris Williams personally issued the Inc Internal Revenue Service W 2 forms to Williams for work performed at able to owners of Dutchtown While Williams worked suggest his All of the Williams Inc services work schedule own Dutchtown at were subject once the to pharmacy he s was of the approval deposits made into the corporate of Chris account payments received from Dutchtown for the pharmacist Williams provided Additionally elsewhere Dutchtown Dutchtown In October 2007 s one never earned any income working pharmacy opened of the of Dutchtown Mike numerous owners Tinnerello told Williams that he would be entitled to three weeks of vacation in 2008 On January services for the pharmacy after Dutchtown l his attorney Following sent the year 2007 a to bonus from I 6312 and 23 63 i The trial court Dutchtown on for the year 2008 apparently or was January unpaid wages 2008 sign resolving the week for 29 2008 under La Dutchtown filed a R S peremptory resigned from contract That determination employment question the ultimate issue in Louisiana Revised Statutes 23 631 A discharge be the I a and b generally provide that upon the of any laborer or other employee of any kind whatever it shall resignation of the employer to pay the amount then due under the terms of employment or duty whether the employment is by the hour day regular payday or no later than fifteen days occurs 3 one of vacation pay and the 2008 to 1 with work for Dutchtown did not resolve the issue of whether Williams fired for failure to however is unnecessary for 2 29 s requesting four weeks January April stopped providing sign an employment contract Williams instituted this action for 23 Williams the termination of Williams letter to Dutchtown s 2008 refusing plus three weeks value of Williams 29 paid week after or month discharge or on or before the next separation whichever first Any employer be liable to the who fails employee or comply with the provisions of R S 23 631 shall ninety days wages at the employee s daily rate of pay refuses either for to else for full wages from the time the employee s demand for payment is made until the employer shall payor tender the amount of unpaid wages due to such employee or whichever is the lesser amount of allowed the laborer or employee by wages Reasonable attorney fees shall be the court which shall be taxed as costs to be paid by penalty 3 of exception was not a proper to the referred right of action no judge issued Trial After merits held was July on reasons of La s on the basis that Williams under the statutes conference status 23 2008 fees The trial for judgment finding that Williams 3 500 00 2008 on The exception was the matter the district on court September its judgment 2008 awarding signed 11 vacation pay and bonus pay in the Williams three weeks attorney a 15 bench trial order a and issued written purposes May bring suit to party on R S 23 631 Dutchtown was and 23 632 now of of Dutchtown for employee an amount Williams was also awarded appeals ASSIGNMENTS OF ERROR Dutchtown has assigned the following errors on the part of the trial court 1 The t rial exception c of erred by overruling Dutchtown s right of action since Williams did not ourt no receive his wages from Dutchtown 2 The rial t c accrued and ourt was erred by determining that Williams had entitled to payment for three weeks of vacation in 2008 3 The t rial was entitled to c a ourt erred by determining that Williams bonus in 2008 Standard of Review The determination of whether the a mixed applies question to all of law and fact factual v to warrant Saizon 08 0336 p 6 the employer by the laborer in the event or the first demand the The manifest findings including sufficiency of evidence Barnett plaintiff had a a right of action error standard of review finding relating to application of a legal theory La App raises 1 st Cir 9 23 08 the factual or doctrine 994 So 2d 668 well founded suit for any unpaid wages whatsoever be filed employee after three days shall have elapsed from time of making a following discharge or resignation 4 672 This standard of review also fact such as 97 1174 pp 3 5 appellate 2 court must 364 5 and 1 Frank L factual determination a apply a two part appellate finding is clearly wrong Logging 1 test court must also the that this Jack reverse reasonable factual basis for the a and Waf Mart Stores Inc Maraist 14 14 S 1999 In order to that law and by the trier of fact trigger standard See Reed v 708 So 2d 362 3 La 4 98 questions of T Lemmon Louisiana Civil Law Treatise Civil Procedure Harry 13 mixed the issue of whether the facts found application of a particular legal n to applies the by the trier of fact the appellate finding does not find court must exist in the record determine that the record establishes manifestly 04 1297 p 8 La 5 6 05 Hornsby erroneous 902 So 2d 361 v Bayou 366 ANALYSIS Exception of No Right of Action Neither party disputes that Williams provided professional pharmacist services for Dutchtown received his precludes The only issue is whether the fact that Williams paychecks and employee him from being considered asserting claims under whether Williams was La RS in fact an Dutchtown insists that it the pharmacy forms even to him never forms from Chris Williams Inc tax 23 631 et seq for the purposes Thus we must determine was not the to Dutchtown employer of Williams salary a La RS or issued because employee contemplate an actually paid his wages action brought by a laborer We do not agree with this 5 tax 23 631 and 632 do not contemplate this indirect type of action brought against Dutchtown rather of employee of Dutchtown directly paid Williams According employee an against the party proposition but who When between La to parties the two with respect been determining whether to the given by 102 the court Hickman employer control over La at 117 262 So 2d at 391 that of an 1 there is 2 the work the supposed employee has Southern Pac v the work reserved relationship is one the by of 262 importantly the court is Most 1972 Co Transp Id 262 employer five factor a employment in nature or contractor independent that La the The supreme court has identified determine whether this test to freedom of action and choice the to question that 117 262 So 2d 385 390 examine the employer employee relationship exists looks in undertaking an valid a being contractor contract between the done is of an employ may parties independent non nature such exclusive in means accomplishing it 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 3 the principal except 4 calls for contract as there is to a the result of the services specific price to be rendered for the overall undertaking upon and agreed 5 subject the duration of the work is for to termination side without Tower Credit Inc a v or a discontinuance specific at time and not the will of either corresponding liability for its breach Carpenter 01 2875 p 6 La 9 4 02 825 So 2d 1125 1129 All of Williams s work was done at Dutchtown Dutchtown Although Williams still had the right to approve them pharmacy Williams exclusively from 40 to 55 hours only had the right to a week able to set his was Once s own beginning served the pharmacy hours to benefit Dutchtown work at Dutchtown s pharmacy working anywhere The record further shows that Dutchtown not control Williams well 6 s work but the right to supervise it as Inc Chris Williams urging of Dutchtown Williams The only significantly in order s owners revenue formed was to provide supposed that Chris Williams Inc compensation paid by Dutchtown for Williams services ever also authorized and in fact Williams was clearly for any not Williams fired was time specific or question as to which party determination of Williams Williams s at will work for Dutchtown being an employee as forms tax erroneous was in Thus the we s Inc is irrelevant to the was given nonspecific duration to of support the finding of all the relevant factors paid Williams his salary and issued his weight of the Williams s actual determine that the trial concluding that Dutchtown s relevant employer court was exception of no factors in terms of not manifestly right of action properly overruled Vacation Having determined that the trial exception of no right of action trial relationship Clearly the pharmacy tends combined demonstrates that Dutchtown ultimate control only contemplates the test The status to need to determine whether end the of Dutchtown Though Chris Williams employee required actually ended the relationship employee professional was resigned to the from Dutchtown no whether either party had the power was and There is whether he received to position with Dutchtown the duration of Williams Additionally benefits tax individual s the at accrue specific authority take vacation time based upon by Williams court properly determined court properly we now overruled Dutchtown must determine whether or s not the the value of penalty wages owed to Williams Vacation pay is considered due stated vacation Pay to the policy of the employer employee if in accordance with the or 7 when both of the following apply a The laborer and has accrued the b or other right to The laborer or is deemed employee eligible for take vacation time with pay other has employee compensated for the vacation time discharge or resignation taken not been or of the date of the as La R S 23 631 D Dutchtown contends that the award of three weeks of vacation time Williams violates this statute because Williams 2008 and thus did not accrue Louisiana Court in Morse Supreme So 2d 1353 10 n reasoning 1976 J v entitled Williams does vacation pay afforded La not to that when a Williams company has no weeks that paid s under La R S 23 631 D the pro place our law the trial court as that he to the amount Ebeling v was of 41 710 pp 227 Dutchtown suggests proportionally court in to time worked during Chapman also considered the no vacation payor worth of vacation after was the 2 plaintiff only working correct only other a few answer Id rata basis accrual appears determined that the entire vacation time accrued began work in 2008 contention disagrees it still determined that pro rata accrual Though 344 policy concerning vacation accrued 1 plaintiff be awarded for the full year s 945 So 2d 222 written question Though the possibilities Inc Co t he courts of this out Citing Chapman vacation time should be determined the year in Citing the favored under not are dispute Williams 12 13 06 App 2nd Cir should be points vacation pay however Dutchtown to McDermott Ray days in is consistent with La R S 23 631 Dutchtown 7 8 La three weeks worth of vacation have noted that forfeitures of wages state This 1359 worked for 28 only to Though came Dutchtown did to this the trial court immediately when Williams not have determination after 8 fair a written hearing the policy in testimony of both Williams and John Smith previously fired pharmacist of promised vacation instead looked to Williams s October 2007 that he no Dutchtown at a of the entitled Mfg 823 So 2d 956 8 30 02 employee the policy on upon was La 02 1348 writs denied 53 it 01 594 pp 4 8 Co pay accrued as promised Aguillard 8 30 02 La discharge determining that Williams or concluded from the entire year s 2 27 02 823 was v Crowley Garment 824 So 2d 347 351 So 2d 955 02 1170 this leave is La payable resignation unless the employer has a to stated conditioning the right Id No case the trial Dutchtown had Though the court Additionally Under La R S 23 631 D foregoing entirety of his three weeks of vacation for 2008 with App 3rd Cir such policy existed in the present an to the issue which has the effect of Given the a promised immediately becomes vested property once to whom employee that owners in which he stated that he had been told in stipulation that it could only be taken Vacation leave share s the paid was proportionate testimony was of Dutchtown one court entitled no to was the formal January entirety of his written testimony that it did have vacation effective manifestly not an policy unwritten erroneous in 2008 vacation the trial court to award policy 1 of each year Bonus Pay Dutchtown also The trial Williams bonus of one quarter based 2008 sales appeals the court determined that percent 1 on monthly sales January as of the gross sales However since of Dutchtown in trial court no 2008 s awarding Williams was the was court 9 regularly paid receipts of the pharmacy he should be entitled to 1 evidence of bonus pay to presented took an as of the a every January to the gross sales average of past monthly bonuses 3 500 00 as a bonus for Dutchtown work for the entire Kritikos Inc Tinnerello a the the bonus employee is period applicable 425 So 2d 926 contention Dutchtown 4 000 00 to and awarded Williams January 2008 insists that discretionary bonus then received 3 000 00 ranging from 929 who stated that there monthly bonus and some entitled to it if he has failed to The bonus was court for which he did not record indicates that this it was once in fact non awarded Thus though Williams did 2008 he was in fact owed This conclusion is credibility Therefore from of the we January a not or though the not Dutchtown the yet established until the bonus receipts performance work for the to payment Additionally there but on a was were never straight formula first entirety of the quarter of bonus for the month he did work not numerous manifestly witnesses affirm the award of 1 to at and John Smith that the bonuses discretionary basis on a numerous reasons discretionary Though was contemplating January 2008 would have been paid testimony from both Williams not Williams received his first bonus payment of the sales 1 Michael Dutchtown for the entire quarter because Dutchtown was paid owners Tinnerello did not bonus every quarter he worked a However he continued to be to support this this information and determined that discretionary receive pay the bonuses services provide weighed termed Williams did to Owensby quarters for which Williams award Williams the bonus for the first quarter of 2008 for including the failure To of its testimony of one some v 1983 App 4th Cir were a the bonus Hinton to La to the points not If it is discretionary was January 28 erroneous as as determined it is based by on the the trial court 3 500 00 to Mr Williams for his work 2008 10 Attorney Fees Under La R S 23 632 reasonable attorney fees the event court s of a well founded suit for award of attorney As for however the s fees to he is on not appeal 10 La wages Thus to be awarded in we affirm the trial Williams claim for additional attorney fees it is well settled that when appeal rendered Williams s unpaid are entitled to an appellee neither appeals additional attorney fees for See La C C P 2133 Zavala 10 31 08 v nor answers legal services St Joe Brick Works 999 So 2d 13 07 2217 p Williams requested additional attorney fees in his appellate brief he did App 1st Cir art appeal on properly request them by answering this appeal therefore decline this to or 21 Although filing his own appeal not We award any additional attorney fees in connection with appeal CONCLUSION The are judgment of the trial assessed to the defendant court is affirmed All costs of this appellee Dutchtown Pharmacy AFFIRMED 11 L L C appeal STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2559 WARREN CHRISTOPHER WILLIAMS VERSUS DUTCHTOWN PHARMACY L L C McCLENDON J I was the pay respectfully disagree entitled hearing to to to show that another the extent the reasons majority concludes that the plaintiff Although testimony pharmacist was paid was presented mere fact that plaintiffs employment had plaintiff January colleagues 1 2008 in Chapman 222 instructive Based on v indicate that the the facts Ebeling 47 710 calculating plaintiff s a La Additionally January receive three App I find the 2 Cir 13 12 reasoning 06 of my 945 So 2d payment of an accrued portion based employed during vacation time year entirety of the vacation vested presented herein Thus I would find that the pro rata amount of time terminated in previously been told that he would not 2008 at the remainder of his vacation following his termination that pharmacist had worked the majority of the weeks of vacation in 2008 does on part and dissents in part and assigns three weeks of vacation pay whereas the instant the in concurs is the appropriate on method of
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