Cleary v. LEC UNWIRED, LLC

804 So. 2d 916, 2000 La.App. 1 Cir. 2532, 2001 La. App. LEXIS 3127, 2001 WL 1659425
CourtLouisiana Court of Appeal
DecidedDecember 28, 2001
Docket2000 CA 2532
StatusPublished
Cited by19 cases

This text of 804 So. 2d 916 (Cleary v. LEC UNWIRED, 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
Cleary v. LEC UNWIRED, LLC, 804 So. 2d 916, 2000 La.App. 1 Cir. 2532, 2001 La. App. LEXIS 3127, 2001 WL 1659425 (La. Ct. App. 2001).

Opinion

804 So.2d 916 (2001)

Marc CLEARY
v.
LEC UNWIRED, L.L.C.

No. 2000 CA 2532.

Court of Appeal of Louisiana, First Circuit.

December 28, 2001.

*917 Stephen J. Holliday, Baton Rouge, LA, for plaintiff-appellant Marc Cleary.

John S. Bradford, Lake Charles, LA, for defendant-appellee LEC Unwired, L.L.C.

BEFORE: FOIL and PETTIGREW, JJ., and KLINE[1], J., Pro Tem.

*918 PETTIGREW, J.

In this summary proceeding, Marc Cleary sought unpaid wages in the form of commissions from his previous employer, LEC Unwired, L.L.C. ("LEC"). The trial court rendered judgment in favor of LEC, concluding that the commissions at issue were not earned. This appeal by Mr. Cleary followed. For the reasons set forth below, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Cleary began working at LEC in September of 1999 as an account executive. According to the terms of his employment, Mr. Cleary was to receive a salary of $24,000.00 per year, plus commission and an expense allowance. There was some dispute as to exactly what Mr. Cleary was told at the time he was hired regarding the commission plan. Mr. Cleary acknowledged he was aware that commissions on his sales would be paid at a rate of 55 percent in the month following the sale, and then 15 percent per month for the following three months. However, Mr. Cleary indicated that he was not aware that he would forfeit commissions if he was terminated or resigned.

Mr. Cleary resigned in March of 2000. His last paycheck was for the pay period ending March 24, 2000, and included his regular salary, commissions for February and March, and payment for unused vacation days. In early April 2000, Mr. Cleary, through his counsel of record, sent a letter to LEC demanding payment of wages that he alleged had been withheld from his final paycheck. Mr. Cleary requested payment of $4,856.04 for the following items: $329.63 for four days of wages, $86.63 for expenses related to a business trip to Lake Charles, Louisiana, and $4,439.78 in commissions. LEC did not respond to Mr. Cleary's demand, prompting Mr. Cleary to file suit via summary proceeding against LEC on April 27, 2000. In his petition, Mr. Cleary alleged that LEC was in violation of La.R.S. 23:635 by withholding certain sums from his wages. He further asserted that pursuant to La.R.S. 23:631 and 23:632, he was entitled to the following: 1) wrongfully withheld wages in the amount of $329.63; 2) referral incentives in the amount of $1,000.00; 3) commissions in the amount of $4,439.78; 4) wrongfully withheld wages in the form of incentive pay and vacation; 5) expenses in the amount of $86.63; 6) penalty wages in accordance with La.R.S. 23:631, et seq.; and 7) attorney fees in the amount of $6,500.00. The matter was scheduled for hearing on June 12, 2000, at which time LEC presented evidence attempting to prove that the commissions at issue were not owed to Mr. Cleary, as they were not earned at the time of his resignation. LEC further argued that the referral incentives that Mr. Cleary was trying to recover were not available to him because the company had cancelled the referral incentive program prior to Mr. Cleary's employment at LEC.

After considering the evidence submitted and the argument of both counsel, the trial court found in favor of LEC, dismissing Mr. Cleary's claim with prejudice. The trial court concluded that the commissions at issue were not earned, that Mr. Cleary was not entitled to any referral incentives, and that Mr. Cleary was not entitled to penalties or attorney fees. A judgment in accordance with the trial court's findings was signed on June 30, 2000. Thereafter, on July 11, 2000, Mr. Cleary filed a motion for new trial, which was denied ex parte by the trial court on July 12, 2000. This appeal by Mr. Cleary followed, wherein he urged the trial court erred in: 1) failing to determine whether *919 an agreement existed between the parties regarding withholding payment of commission as wages; 2) failing to find that LEC's compensation policy violated La. R.S. 23:634; 3) failing to hold a contradictory hearing on his motion for new trial; 4) failing to find that a potestative or suspensive condition existed in LEC's compensation policy; 5) failing to find that his consent to the agreement was vitiated by error as set forth in La.Civ.Code art. 1948; and 6) failing to award penalties and attorney fees.[2]

STANDARD OF REVIEW

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La. 1993).

For an appellate court to reverse a trial court's factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder's decision to credit a witness's testimony must be given "great deference" by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

LEC'S COMMISSION POLICY

In his first assignment of error, Mr. Cleary argues that the trial court erred by refusing to determine whether there was an agreement between the parties regarding withholding payment of commissions as wages. In brief, Mr. Cleary acknowledges "[t]here is no dispute that the terms of employment guaranteed him a commission based on his sales at a rate of 55%, 15%, 15%, 15% over time." He argues, however, that he never agreed to forfeit his commissions upon termination and that there was no requirement that commissions be "earned" by providing additional services or support following a sale of LEC's product. Mr. Cleary further contends that absent an agreement between the parties, commissions are due at the time of the sale.

In response, LEC argues that the trial court correctly ruled that Mr. Cleary was aware of the commission policy and could have sought additional information about same if he truly had questions. LEC asserts that it proved commissions were not earned until the time limits under the policy had been fulfilled. Based on our review of the record, we agree with LEC's position regarding this issue.

The first witness to testify in this matter was Bryan Stanley, LEC's Director of *920 Sales since July 1999. According to Mr. Stanley, LEC's commission plan provided that in the month following a sale, an account executive would receive 55 percent of the commission due, with the remaining 45 percent being paid out equally over the next three months.

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Bluebook (online)
804 So. 2d 916, 2000 La.App. 1 Cir. 2532, 2001 La. App. LEXIS 3127, 2001 WL 1659425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleary-v-lec-unwired-llc-lactapp-2001.