Cochran v. American Advantage Mortg. Co.

638 So. 2d 1235, 93 La.App. 1 Cir. 1480, 1994 La. App. LEXIS 2038, 1994 WL 278564
CourtLouisiana Court of Appeal
DecidedJune 24, 1994
DocketCA 93 1480
StatusPublished
Cited by20 cases

This text of 638 So. 2d 1235 (Cochran v. American Advantage Mortg. Co.) 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
Cochran v. American Advantage Mortg. Co., 638 So. 2d 1235, 93 La.App. 1 Cir. 1480, 1994 La. App. LEXIS 2038, 1994 WL 278564 (La. Ct. App. 1994).

Opinion

638 So.2d 1235 (1994)

Penelope COCHRAN
v.
AMERICAN ADVANTAGE MORTGAGE COMPANY, INC.

No. CA 93 1480.

Court of Appeal of Louisiana, First Circuit.

June 24, 1994.

*1236 C. Glenn Westmoreland, Rome & Westmoreland, Baton Rouge, for plaintiff-appellant Penelope Cochran.

Jerry F. Pepper, Baton Rouge, for defendant-appellee American Advantage Mortg. Co., Inc.

Before CARTER, GONZALES and WHIPPLE, JJ.

WHIPPLE, Judge.

This is a suit by plaintiff, Penelope Cochran, against defendant, American Advantage Mortgage Company, Inc. (AAMC), for wages, statutory penalties and attorney's fees pursuant to the Louisiana Wage Payment Law, LSA-R.S. 23:631 et seq. The trial court rendered judgment in favor of plaintiff for unpaid wages, plus interest and costs, but denied her claim for penalty wages and attorney's fees. From this judgment, plaintiff appeals.

FACTS AND PROCEDURAL HISTORY

Cochran began work with AAMC on March 13, 1991, and was employed as a manager, loan processor and underwriter at a salary of $1,500.00 per month. Beginning April 1, 1992, plaintiff was to receive the additional sum of $25.00 per loan closed, payable monthly. These amounts were referred to by plaintiff and defendant as "bonuses." AAMC terminated plaintiff's employment on October 23, 1992. On October 30, 1992, plaintiff was issued a check representing her monthly salary, but did not receive any additional compensation for the loans closed prior to termination of her employment. By letter dated February 11, *1237 1993, plaintiff demanded payment of $25.00 per loan for sixty loans closed in the months of August, September and October of 1992. In response, defendant transmitted a letter to plaintiff, stating that, according to its calculations, she was due $725.00, and offering to pay plaintiff this amount in exchange for a full release of all claims.

Plaintiff responded by filing suit against defendant on March 9, 1993, seeking to recover: (1) her salary for the month of November, claiming that she was not given thirty days written notice of termination as allegedly required by her employment contract; (2) the additional amounts due for loans closed in the months of September and October of 1992; and (3) penalty wages and attorney's fees. Defendant answered, denying the existence of any employment agreement requiring thirty days notice of termination, and denying that any wages or bonuses were due plaintiff. Defendant also alleged that plaintiff was required to close a minimum of ten loans per month before she was entitled to any bonus.

Following trial, the court rendered judgment in favor of plaintiff and against defendant, awarding unpaid wages, interest and costs. As shown by the trial court's written reasons for judgment, the court concluded that plaintiff was not entitled to a salary for the month of November because she failed to prove the existence of an employment contract requiring defendant to give thirty days notice of termination of employment. The trial court further concluded that plaintiff was entitled to additional compensation in the amount of $25.00 per loan closed per month, without a minimum ten loan requirement, and found that plaintiff was entitled to compensation for sixteen loans closed during the months of September and October of 1992. Thus, plaintiff was awarded the amount of $440.00.[1] The court denied plaintiff's claim for penalties and attorney's fees, concluding that the provisions of LSA-R.S. 23:634, prohibiting employment contracts which contain forfeiture for failure to continue employment, did not apply to bonuses. From this judgment, plaintiff appeals, setting forth the following assignments of error:

1. The trial court erred in awarding only $440.00 for bonuses due plaintiff.
2. The trial court erred in denying plaintiff's claim for penalties and attorney's fees.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, plaintiff argues that the trial court was manifestly erroneous in awarding plaintiff compensation for only sixteen loans closed prior to her termination. Plaintiff argues that defendant admitted prior to and during litigation that it owed her $725.00, representing compensation for twenty-nine loans closed during the months of September and October of 1992. We agree.

It is well settled in our jurisprudence that an appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). In order to reverse a factfinder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart, 617 So.2d at 882.

The record establishes that plaintiff was entitled to $25.00 per loan closed as additional compensation.[2] The trial court found, as a fact, that plaintiff was entitled to compensation for sixteen loans closed prior to her termination and made an award based on that figure. However, our review of the *1238 appellate record herein fails to disclose any factual basis in the record for the trial court's conclusion that plaintiff closed only sixteen loans for which she had not been paid during the months of September and October of 1992.

Although plaintiff was unable to clearly state the exact number of loans closed for which she had not been paid, the testimony of David Lane Manning, the manager of American Advantage Mortgage Company, set forth the amount due plaintiff. At trial, plaintiff introduced, without objection, a letter dated March 2, 1993, on defendant's letterhead and bearing Manning's signature, which contained an outline and current history of the loan closings for which payments had been made to plaintiff and for which payment was outstanding. The letter shows that $725.00 was the amount due plaintiff, representing twenty-one loans closed in September and eight loans in October of 1992.

At trial, Manning acknowledged sending the letter and testified that he and Mr. Richard Hedler (the company's secretary/treasurer and 50% shareholder) had calculated the amount due, which was $725.00.[3]

In the instant case, the trial court determined that plaintiff was only owed for sixteen unpaid loan closings. The trial court's determination of a factual issue should not be altered by an appellate court in the absence of manifest error. Rosell v. Esco, 549 So.2d 840 (La.1989). However, under the facts and circumstances here presented, we are convinced that the trial court manifestly erred in its determination. Considering the testimony of Manning and the documentary evidence, the record does not support the trial court's determination that plaintiff was only owed for sixteen loans.

Instead, the record reflects that plaintiff closed a total of twenty-nine loans prior to her termination, for which she was not compensated by defendant. We find that the record establishes that plaintiff is entitled to compensation for the twenty-nine loans closed prior to her termination, and we amend the judgment of the trial court to award the amount of $725.00 due plaintiff, for unpaid compensation.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, plaintiff contends that the trial court erred in failing to award penalties and attorney's fees. We shall first address the applicability of LSA-R.S.

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Bluebook (online)
638 So. 2d 1235, 93 La.App. 1 Cir. 1480, 1994 La. App. LEXIS 2038, 1994 WL 278564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cochran-v-american-advantage-mortg-co-lactapp-1994.