Berard v. L-3 Communications Vertex Aerospace, LLC

35 So. 3d 334, 2009 La.App. 1 Cir. 1202, 2010 La. App. LEXIS 234, 2010 WL 502795
CourtLouisiana Court of Appeal
DecidedFebruary 12, 2010
Docket2009 CA 1202
StatusPublished
Cited by31 cases

This text of 35 So. 3d 334 (Berard v. L-3 Communications Vertex Aerospace, LLC) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berard v. L-3 Communications Vertex Aerospace, LLC, 35 So. 3d 334, 2009 La.App. 1 Cir. 1202, 2010 La. App. LEXIS 234, 2010 WL 502795 (La. Ct. App. 2010).

Opinions

GAIDRY, J.

li»An employer appeals a summary judgment awarding a terminated employee unpaid wages, statutory penalty wages, and attorney fees. • For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Timothy J. Berard, a helicopter mechanic, was a resident of Prai-rieville, Louisiana. After applying for employment and being interviewed by telephone at his home, he was hired to work outside the United States by the defendant, L-3 Communications Vertex Aerospace, LLC (L-3). L-3 was a military contractor authorized to do business in Louisiana. The “Overseas Employment Contract” between the parties was dated July 18, 2006, and was signed by Mr. Berard on July 20, 2006, in Prairie-ville. The term of the contract was one year, commencing on the date the employee left the United States, and the “place of employment [was] defined as being worksites outside the limits of the continental United States.” Mr. Berard’s employment under the contract commenced on August 9, 2006, presumably the day he left the United States.

Mr. Berard was initially assigned to work in Kuwait, but was later transferred to Kandahar Air Force Base in Afghanistan. On May 21, 2007, he was involved in a physical altercation with another L-3 employee, Lloyd Howden. On May 23, 2007, Mr. Berard was advised by Gregory Stokes, L-3’s outgoing site supervisor at Kandahar, and by Gilbert Cherubini, the incoming site supervisor, that his employment would be terminated and that he was to leave that worksite for out-processing in Kuwait.

After arranging to mail his equipment back to the United States, Mr. Berard left Kandahar around May 30, 2007 on a military flight to Bagram Air Force Base. In June 2, 2007, he left on another military flight to Qatar |sAir Force Base, from where he flew to Kuwait, where he was out-processed from employment on June 3, 2007.

[339]*339On August 13, 2007, Mr. Berard sent a letter by certified mail to L-3, demanding payment of travel and per diem pay for May 25 through June 3, 2007. The letter was received by L-3 on August 15, 2007.

On October 17, 2007, Mr. Berard filed a petition naming L-3 as defendant and claiming unpaid wages from May 25 through June 3, 2007, as well as penalty wages and attorney fees pursuant to the Louisiana Wage Payment Act, La. R.S. 23:631, et seq.

L-3 initially responded to the petition with a peremptory exception of no cause of action, contending that the petition failed to assert a cause of action for overtime compensation as a matter of law, as federal law preempted application of the Louisiana Wage Payment Act to a claim for unpaid overtime compensation. Mr. Berard subsequently amended his petition to clarify that his overtime pay (in excess of 48 hours per week) was not based upon the provisions of federal law, but on the specific terms of the employment contract and L-3 policy. Following the amendment, L-3 withdrew its exception.

In its answer to the petition, L-3 admitted certain facts relating to Mr. Berard’s employment, but denied liability for unpaid wages, penalty wages, and attorney fees. It also affirmatively pleaded defenses of equitable estoppel, failure to mitigate damages, and the plaintiffs lack of entitlement to the relief sought.

On June 30, 2008, Mr. Berard filed a motion for summary judgment, together with a supporting affidavit and attached exhibits, alleging that he was entitled to judgment in his favor as a matter of law.

|4On July 10, 2008, L-3 filed a cross-motion for summary judgment, contending that there was no genuine issue of material fact that Mr. Berard was not entitled to the benefit of the Louisiana Wage Payment Act as a matter of law.

Both motions were heard by the trial court on September 8, 2008, after which the trial court took the matter under advisement. On September 15, 2008, L-3 filed by facsimile telecopier an ex parte motion to supplement the record by authenticating its supporting evidence. This motion was granted by the trial court on September 19, 2008.

On January 7, 2009, the trial court rendered and signed its judgment on the cross-motions, denying L-3’s motion and granting Mr. Berard’s motion. The summary judgment in favor of Mr. Berard awarded him unpaid wages of $2,525.04, penalty wages of $35,175.60, attorney fees of $12,232.00, and all costs of court. L-3 now appeals.

ASSIGNMENTS OF ERROR

L-3 contends that the trial court committed error in the following respects:

1. The trial court erred in finding that [Mr.] Berard was entitled to summary judgment pursuant to the Louisiana Wage Payment Act because genuine issues of material fact remain.
2. The trial court erred in awarding penalty wages as [L-3] has a bona fide dispute regarding the wages claimed and at all times acted in good faith.
3. The trial court erred in awarding attorney’s fees to [Mr.] Berard as he did not bring a well-founded suit for wages.
4. The trial court erred in finding that the Louisiana Wage Payment Act is applicable to this litigation as a matter of law.

I,.DISCUSSION

Summary Judgment

Summary judgment is subject to de novo review on appeal, using the same [340]*340standards applicable to the trial court’s determination of the issues. Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 5 (La.App. 1st Cir.6/6/08), 992 So.2d 527, 530, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018. The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The mover has the burden of proof that he is entitled to summary judgment. See La. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

16In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

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Bluebook (online)
35 So. 3d 334, 2009 La.App. 1 Cir. 1202, 2010 La. App. LEXIS 234, 2010 WL 502795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berard-v-l-3-communications-vertex-aerospace-llc-lactapp-2010.