DAVID M. BODENHEIMER Vs. CARROLLTON PEST CONTROL & TERMITE COMPANY
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DAVID M. BODENHEIMER * VERSUS NO. 2017-CA-0595 * COURT OF APPEAL CARROLLTON PEST CONTROL & TERMITE COMPANY * FOURTH CIRCUIT * STATE OF LOUISIANA ******* APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2016-08223, SECTION “C” Honorable Veronica E Henry, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods) ON APPLICATION FOR REHEARING John A. Venezia Julie O’Shesky VENEZIA & ASSOCIATES, APLC 757 St. Charles Avenue, Suite 302 New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLANT Brigid E. Collins BRIGID COLLINS, LLC 935 Gravier Street, Suite 2150 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLEE REHEARING GRANTED; JUDGMENT MODIFIED AS TO THE ISSUE OF ATTORNEY’S FEES; MATTER REMANDED MARCH 14, 2018 On February 14, 2018, this Court reversed the judgment of the First City Court for the City of New Orleans regarding Appellant’s wage claim. Appellant also sought attorney’s fees pursuant to La.R.S. 23:632, which provides: A. Except as provided for in Subsection B of this Section, 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. B. When the court finds that an employer’s dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. If the court determines that the employer’s failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section. C. 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. In our previous ruling, we declined to award attorney’s fees based on our finding that Appellee did not withhold payment to Appellant in bad faith. However, based on the plain language of subsection (C), Appellant shall be allowed attorney’s fees as this Court’s ruling found his suit for unpaid wages to be well-founded. Accordingly, we grant Appellant’s motion for rehearing for the limited purpose of holding that Appellant is entitled to attorney’s fees pursuant to La.R.S. 23:632(C). This matter is remanded to the district court for further proceedings in this regard. 1 REHEARING GRANTED; JUDGMENT MODIFIED AS TO THE ISSUE OF ATTORNEY’S FEES; MATTER REMANDED 2
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