Economy Fire & Casualty Co. v. Swaney

768 So. 2d 822, 2000 La. App. LEXIS 2487, 2000 WL 1468589
CourtLouisiana Court of Appeal
DecidedOctober 4, 2000
DocketNo. 33,950-CA
StatusPublished
Cited by2 cases

This text of 768 So. 2d 822 (Economy Fire & Casualty Co. v. Swaney) 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
Economy Fire & Casualty Co. v. Swaney, 768 So. 2d 822, 2000 La. App. LEXIS 2487, 2000 WL 1468589 (La. Ct. App. 2000).

Opinion

| t CARAWAY, J.

In this wage garnishment proceeding, a judgment pro confesso was entered against the employer ordering payment of the entirety of the underlying judgment. The employer was late in answering the garnishment interrogatories. Nevertheless, the employer appeared at the trial of the matter and produced payroll checks and data for 32 weeks of wage payments subsequent to the date of service of the interrogatories. After the seizing creditor contested the accuracy of the employer’s wage data, the trial court ruled that the employer concealed the total wages and employment hours and entered judgment pro con-fesso. Finding that a personal judgment pro confesso was procedurally inappropriate under the facts of this case, we reverse the trial court.

Facts

This action was commenced by plaintiffs, Economy Fire & Casualty Company and David Roy Coffey (hereinafter collectively “Economy”), in Caddo Parish to make ex-ecutory a $15,944.06 Bossier Parish judgment against Tracey Swaney and to commence wage garnishment proceedings against Falcon Crane and Equipment Company, Inc. (“Falcon”). Falcon is the employer of Tracey’s husband, James Swa-ney (“James”). Garnishment interrogatories were served on Falcon on February 10, 1998, and Falcon failed to timely respond with answers to the interrogatories.

On April 17, 1998, Economy filed a “Motion for Entry of Judgment” against Falcon. Citing La. C.C.P. art. 2413 and Falcon’s failure to answer, Economy sought judgment against Falcon for the entire [824]*824$15,944.06 judgment, plus interest on that judgment, and attorney’s fees and costs for the garnishment proceeding.

Before a hearing on Economy’s Motion for Entry of Judgment, Falcon’s attorney contacted Economy’s counsel, and on July 8, 1998, Falcon filed answers 12to the garnishment. Falcon’s answers admitted James’s employment, and attached to the answers were copies of James’s paychecks and pay stubs revealing hourly payroll data, wages and withholdings for weekly work periods from February 15, 1998 through June 28, 1998. The record does not show that, pursuant to La. C.C.P. art. 2414, the clerk served written notice of the filing of Falcon’s answers on Economy.

On August 7, 1998, Falcon filed a response to Economy’s motion. In the response, Falcon attempted to explain its delay in initially answering the garnishment interrogatories. Additionally, Falcon’s response noted the following:

“A dispute apparently has arisen over the proper amount to be withheld from Mr. Swaney’s checks on a periodic basis, but, despite requests the Plaintiff/Gar-nishor has not specified the errors it perceives in the calculations.”

Without further pleadings by either party, Economy’s Motion for Entry of Judgment was tried on September 21, 1998. Payroll records were filed supplementing Falcon’s answers to interrogatories through September 13, 1998. Records revealed that Falcon also delivered $1,571.41 to the Caddo Parish Sheriff as the nonexempt portion of James’s wages. The payroll data from February through September reveals that the hours worked by James decreased dramatically after mid-April with no overtime hours reported. Before mid-April, James worked, on average, over 50 hours per week. For 16 weeks thereafter, James averaged only 18 hours per week, and in the final seven weeks before the September hearing, he averaged 33 hours per week.

Economy presented the testimony of three private investigators who, through surveillance and recorded statements, obtained information indicating that James had worked for Falcon many additional hours than the hours listed in Falcon’s payroll records. From this evidence, Economy claimed that considerable “off-the-books” income was paid to James by Falcon. Economy was unable to ^subpoena James for the trial, and he did not testify. Likewise, other than the payroll records submitted by Falcon, no additional financial documents of Falcon were presented into evidence.

Falcon was represented at the hearing by its president, Michael Long. Long denied that he allowed James to work “off-the-books.” He explained that Falcon’s crane business employed crane operators like James as full-time employees, yet the hours worked by operators depended upon the volume of the lifting contracts of Falcon’s business. He testified that James also performed general maintenance for Falcon, and that in April 1998, James had cut back on his hours worked. Long also testified that James sometimes remained at Falcon’s facilities to work on his motorcycle.

After hearing all of the testimony, the trial court rendered judgment against Falcon, stating, in part:

In this case, Falcon failed to prove the extent of its liability and has presented false testimony and documents in this case. Plaintiffs have proven that Falcon has concealed the true wages and work hours of Swaney. Falcon has failed to rebut plaintiffs prima facie case and for the foregoing reasons the plaintiffs are entitled to the Enforcement of Judgment Against Garnishee, Falcon Crane & Equipment Co., Inc., together with all attorney’s fees, cost[s] and other expenses incurred.

Based upon this ruling and the judgment incorporated therein and upon the additional ruling of the trial court denying Falcon’s motion for new trial, the trial [825]*825court rendered judgment against Falcon for the entirety of the $15,944.06 judgment against Tracey Swaney, plus legal interest. Regarding the award of the attorney’s fees and costs, the amount of those fees and costs was not fixed by the trial court.

Discussion

Underlying its various assignments of error, Falcon disputes the personal liability and burden of proof which the trial court imposed upon Falcon despite its answers to the garnishment interrogatories admitting James’s wages. The trial 14court ruled that “Falcon has failed to prove the extent of its liability” and “has failed to rebut plaintiffs prima facie case,” and accordingly, Falcon was held personally liable for the $15,944.06 judgment. This ruling was awarded under La. C.C.P. art. 2413(A), because of Falcon’s failure to timely answer the garnishment interrogatories. Because we find that the personal judgment pro confesso against the garnishee was inappropriate in this wage garnishment case, we reverse the ruling of the trial court.

The Code of Civil Procedure’s general provisions on garnishment and the special statutory provisions for wage garnishments have application together for the resolution of this dispute. La. C.C.P. arts. 2411, et seq. and La. R.S. 13:3921, et seq. Garnishment interrogatories directed to an employer seek information regarding the judgment debtor’s employment, rate of compensation, manner of wage payments, and other garnishments or claims affecting the employee’s compensation. La. R.S. 13:3924. The Code of Civil Procedure requires that garnishment interrogatories be answered within fifteen days from date of service upon the garnishee. La. C.C.P. art. 2412(D). Unlike other garnishments, a wage garnishment can be continuing in nature for the accrual of future wages after the time of the initial service of the garnishment interrogatories. La. R.S. 13:3923 and La. C.C.P. art. 2411(C).

La'. C.C.P. art. 2413(A) provides in pertinent part as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
768 So. 2d 822, 2000 La. App. LEXIS 2487, 2000 WL 1468589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/economy-fire-casualty-co-v-swaney-lactapp-2000.