Donna Watson VS Juban Express I, LLC
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1735 DONNA WATSON VERSUS L JUBAN EXPRESS I L C Judgment Rendered N 1 1 ZQ 3 On Appeal from the 21 s Judicial District Court In and for the Parish of Livingston State of Louisiana Civil Docket No 136 Division D 444 The Honorable M Douglas Hughes Judge Presiding Chase Tettleton Attorneys for Plaintiff Appellant Babcock Stephen Baton Rouge Louisiana Donna Watson C Glenn Westmoreland Attorney for Defendant Appellee Juban Express I L C Livingston Louisiana BEFORE PARRO WELCH AND KLINE JJ t J ruvW e c Hon William F Kline Jr retired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court KLINE J An employee appeals a final judgment that dismissed her petition for unpaid wages statutory penalty wages and attorney fees For the following reasons we reverse and render FACTS AND PROCEDLIRAL HISTORY Appellant Plaintiff Donna Watson was hired on November 1 2010 by Appellee Defendant Juban Express I L Juban Express to work as a clerk C and cashier at its convenience store in Livingston Parish eaming 9 per hour 00 Ms Watson worked there continuously until Sunday November 27 2011 when she resigned at the end of her shift On the next scheduled payday December 2 2011 Ms Watson appeared at the store to collect her final paycheck The owner of Juban Express told Ms Watson that because she quit Juban Express had an additional fourteen days to issue her final paycheck Ms Watson left the premises without her final paycheck Ms Watson sent a demand letter to Juban Express on December 13 2011 detailing the amount of unpaid wages she was owed and outlining her employer s duties under the Louisiana Wage Payment Act AcY Ms Watson received no response After she retained legal counsel Ms Watson attorney sent a second s demand letter to Juban Express on February 28 2012 detailing her unpaid wages an employer sobligations under the Act and the consequences for noncompliance Ms Watson again received no response and subsequently filed a petiYion for unpaid wages penalties and attorney fees s Ms Watson alleged she was due 38 444 from Juban Express in unpaid wages was entitled to statutory penalty Z Louisiana Revised Statutes 23 et seq 631 3 In the pay period immediately preceding her resignation Ms Watson worked a total of 25 46 hours At the hourly rate of 9 Ms Watson earned 360 for 40 hoars At the statutory 00 overtime rate of time and a half or l 3 per overtime hour Ms Watson earned 8438 for the 50 remaining 6 hours she worked 25 2 wages totaling 4 and was entitled to attorney fees In its answer to Ms 70 628 s Watson petition Juban Express asserted the affirmative defense of setoff and argued that no wages were owed to Ms Watson due to the fact that she owed Juban Express more money than she was owed in unpaid wages The minutes reflect that the district court heard Ms Watson case against s Juban Express at a bench trial on July 26 2012 At the conclusion of the trial the district court dismissed Ms Watson petition and subsequently signed a judgment s to that effect on August 15 2012 Ms Watson now appeals the dismissal of her petition DISCUSSION Pavment of Wa upon Termination of Emplovment es Louisiana Revised Statutes 23 provides in pertinent part 631 b 1 A Upon the resignation of any laborer or other employee of any kind whatever it shall be the duty of the person employing such laborer ar 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 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 It is uncontroverted that Ms Watson worked 46 hours during the week 25 before she quit Juban Express however claimed that Ms Watson was paid in cash for the first three days of her last week of work Juban Express co s owner 4 See Louisiana Revised Statutes 23 Band Louisiana Code of Civil Procedure article 631 12 2592 Ms Watson worked Monday November 21 Tuesday November 22 Wednesday November 23 Saturday November 26 and Sunday November 27 2011 prior to quitting her job at Juban Express 3 Imteyaz Sheikha testified before the district court that Ms Watson was paid in cash on Thursday November 24 2011 but that Ms Watson was never paid for the final Saturday and Sunday she worked priar to resigning The district court believed Ms Sheikha testimony finding that Juban Express was in good faith s regarding the cash payment of Ms Watson swages for the first three days of her last week of work The trial court determination of a witness credibility is s s entitled to great weight and should not be disturbed on appeal See Stobart v State through Dept of Transp Dev 617 So 2d 880 882 La 1993 Thus Ms Watson is entitled to recover unpaid wages at the rate of 9 per hour for the 00 5 7 hours she warked on Saturday November 26 2011 and the 7 hours she 5 worked on Sunday November 27 2011 which totals 135 Penalty Wa es Ms Watson also claimed she is entitled to recover statutory penalty wages equal to ninety days of her pay pursuant to Louisiana Revised Statutes 23 in 632 the amount of 4 for the failure and refusal of Juban Express to pay the 70 628 amount due her within fifteen days of the termination of her employment Section 632 provides Any employer who fails or refuses to comply with the provisions of R 23 shall be liable to the employee either for S 631 ninety days wages at the employee daily rate of pay or else for full s wages from the time the employee demand for payment is made s 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 suit for any unpaid wages whatsoever founded 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 To recover penalties under Section 632 the employee must prove that 1 wages were due and owing 2 demand far payment was made at the place where the employee was usually paid and 3 the employer failed to pay upon demand 4 Because Section 632 is penal in nature it must be strictly construed Berard v L 3 Communications Yertex Aerospace LLC 09 pp 13 La App 1 Cir 1202 14 10 12 2 35 So 3d 334 344 writ denied 10 La 6 38 So 3d 302 45 0715 10 4 Equitable defenses are available however and penalty wages are not to be absolutely imposed A claim for penalty wages under Section 632 may be defeated by an equitable defense that is a good non defense to liability for faith arbitrary unpaid wages Richard v Vidrine Auto Services Inc 98 La App 1 Cir 1020 99 1 4 729 So 2d 1174 1177 However when the employer is arbitrary sets 78 out procedural pitfalls for the employee or is merely negligent in failing to pay past due wages penalry wages will be assessed Whether there exists a valid equitable defense to a claim of penalty wages depends on the particular facts of each case Berard 35 So 3d at 345 Louisiana courts have recognized that an employer claim of setoff or s compensation constitutes an equitable defense to a penalty wage claim Richard 729 So 2d at 1178 The defense of setoff requires mutual obligations whereby each obligor owes an equally liquidated and demandable debt to the other Winkle v Advance Products Sys Inc 98 La App 3 Cir 10 721 So 2d 694 98 28 983 989 see also La Civ Code art 1893 In the present case Juban Express averred it is not liable for penalry wages because it had a reasonable belief that it was entitled to a setoff against the amount owed Ms Watson in final wages conduct during her employment Juban Express claimed that Ms Watson s with the store allegations of theft improperly processing customer refunds ordering merchandise from vendors without permission shortage in lottery ticket sales and selling cigarettes at unauthorized discounts resulted in losses to the store that exceeded her unpaid wages Following the trial the district court determined that Juban Express did not owe Ms Watson any penalty wages based on its setoff 5 A party claiming setoff or compensation as an affirmative defense has the burden of proving his claim Winkle 721 So 2d at 989 Here Juban Express carried its burden of proving its entitlement to set off Ms Watson debts against s the payment of her wages such that the store is not subject to penalty wages While there is no indication from the record of the exact amount of the setoff claimed by Juban Express and whether or not this amount was liquidated at the time Ms Watson demanded her unpaid wages the district court was convinced that Juban Express made a good non defense to its liability for faith arbitrary penalty wages We agree with the district court Ms Watson pattern of unauthorized acts s during the year of her employment with Juban Express was financially detrimental to the store The covert nature of Ms Watsods actions does not lend itself to the determination of an exact dollar amount It is evident from the record that Juban Express is a victim of Ms Watson employment To reiterate the district court s in determining credibility found Juban Express had a valid equitable defense in the form of a setoff such that it was not subject to penalty wages Attornev Fees Unlike the award of penalty wages the award of reasonable attorney fees under Section 632 is mandatory when an employee brings a suit founded well for unpaid wages irrespective of any equitable defenses that may have been raised Suits in which the recovery of unpaid wages is granted are considered founded well Berard 35 So 3d at 345 Reasonable attorney fees are to be awarded even if penalty wages are not due Cochran v American Advantage Mortgage Comparry Inc 93 La App 1 Cir 6 638 So 2d 1235 1480 94 24 1240 Ms Watson suit for unpaid wages is well because she s founded prevailed on the issue of unpaid wages on appeal Accordingly she is entitled to 6 attorney fees Here the record does not disclose any evidence as to the value of attorney fees however this court may examine the record and determine a reasonable value See Wilson u Inessa Stewart Antiques Inc 96 La App s 2767 1 Cir 2 708 So 2d 1132 1135 writ denied 98 La 5 7l 8 So 98 20 0777 98 8 2d 435 We conclude that 1 is a reasonable amount and will award these 500 attorney fees to Ms Watson See Richard 729 So 2d at 1179 80 In conclusion the recognition of Juban Express equitable defense the s setoff does not relieve the store of its obligation to pay Ms Watson the wages due her however the equitable defense does relieve Juban Express of liability for any penalty wages In fairness there are other remedies which Juban Express may explare to seek recovery of its losses DECREE Far the foregoing reasons the district court judgment dismissing Ms s s Watson claim is reversed Judgment is rendered awarding Plaintiff Appellant Donna Watson 135 in unpaid wages and 1 in attorney fees to be taxed as 500 costs Costs of this appeal are assessed to Defendant Juban Express I Appellee C L REVERSED AND RENDERED 7
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