Solter v. P.M. Place Stores Co.

748 S.W.2d 919, 29 Wage & Hour Cas. (BNA) 805, 1988 Mo. App. LEXIS 320, 1988 WL 28234
CourtMissouri Court of Appeals
DecidedApril 5, 1988
DocketNo. WD 39556
StatusPublished
Cited by8 cases

This text of 748 S.W.2d 919 (Solter v. P.M. Place Stores Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Solter v. P.M. Place Stores Co., 748 S.W.2d 919, 29 Wage & Hour Cas. (BNA) 805, 1988 Mo. App. LEXIS 320, 1988 WL 28234 (Mo. Ct. App. 1988).

Opinion

CLARK, Judge.

This suit was brought by appellant Solter against his former employer, respondent, for non-payment of wages and for penalties and interest. The principal issue in the case is whether an employer may offset a debt owed it by the employee against wages otherwise due the employee without incurring the penalties provided in § 290.110, RSMo 1986.1

The relevant facts are that Solter was employed by P.M. Place Stores, and its predecessor, Mattingly Stores, from 1977 until January 2, 1984 when he was discharged for generally unacceptable performance. In 1980, Solter had borrowed $2500.00 from the employer giving his promissory note with interest at 10%. Commencing in 1982, the employer began deducting $50.00 each pay period from Sol-ter’s wages to retire the note. It appears to have been undisputed that in January, 1984, the balance Solter owed on the note was $1579.59. Also as of January, 1984, Solter was owed pay for two days work and whatever accrued benefits for severance and vacation the employment agreement included.

On January 12, 1984, the employer wrote to Solter informing him of the amount they [921]*921calculated to be due him in wages, and also making demand on him to pay the balance due on the note, $1579.59. That sum was greater than the amount of Solter’s unpaid wages and any termination benefits he was entitled to receive. Solter did not answer the payment request but he did write the employer demanding payment of his wages. The matter remained at an impasse until this suit was filed in January, 1985.

The case was tried to the court which found Solter entitled to $646.80 for two weeks severance pay and two days worked and $744.37 for accrued vacation pay, the amount for severance pay and days worked being adjusted for payroll taxes. The court also found that Solter owed P.M. Place Stores $1579.59 principal and $594.52 interest on the note. The result was a net judgment against Solter for $782.94 and costs.

In the most significant point, Solter claims the court erred in failing to assess penalties against the employer under § 290.110 for its refusal to pay Solter the wages he was entitled to receive. He argues that the loan was a separate transaction unrelated to his employment and that an employer cannot escape the penalty for non-payment of wages by setting up an offset as was done here.

The question is ruled by McLaurin v. Frisella Moving and Storage Co., 355 S.W.2d 360 (Mo.App.1962). In McLaurin, the offsetting debt was an employment agency fee which the employer paid on the strength of the employee’s promise to repay the amount to the employer. After discharge, the employee brought suit for unpaid wages and the statutory penalty, as did appellant here. On appeal by the employee, the court explicitly held an employer is entitled to apply the wages due a discharged employee against an indebtedness due from the employee and not thereby incur any penalty under the statute. The trial court was correct in disallowing Solter’s claim against respondent for the statutory penalty of sixty days additional wages. We rule the point against Solter.

Appellant next contends the trial court erred in computing his employment termination benefits in that he did not receive an allowance of pro-rated vacation pay for the period from October 1,1983, the anniversary of his employment, to January 2, 1984, the date his services were terminated.

Respondent’s employee handbook was introduced in evidence. With regard to vacation pay, the handbook states that when an employee is discharged, he is entitled to unused vacation pay pro-rated to the date of termination. The president of respondent testified that such was the company’s policy and that Solter was entitled to be paid for his unused vacation time. There was no evidence to the contrary. It must be assumed the trial judge overlooked the item in his computation. We are obligated to revise the judgment in this detail because the order denying the claim for unused vacation allowances is not supported by any substantial evidence and is contrary to all the evidence in the case. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We are not, however, able to grant Solter the amount of vacation pay he seeks.

Solter claimed his unused vacation pay was in the amount of $279.34. He does not indicate how he arrived at this figure. He was entitled to a two week vacation a year. The three months from October to January amount to one-fourth of the year, which would entitle Solter to an equal proportion of two weeks’ pay. His wages at the time were $744.37 for two weeks. The correct amount of vacation pay allowance is one-fourth of $744.37 or $186.09. The judgment in favor of Solter should be increased by this amount.2

[922]*922Solter next claims his allowance of two days pay and two weeks severance pay should have been in the gross amount of $893.35 rather than the net allowance of $646.80. The difference is accounted for by deductions for federal and state income taxes and the monthly amount applied to the loan. In the first place, it is obvious that Solter can demonstrate no prejudice because his loan account was credited with the payment and the income taxes accrued to his benefit, either by reducing the amounts he would otherwise owe the taxing authorities or by increasing his tax refunds. Moreover, the respondent introduced in evidence Solter’s previous payroll records which showed identical deductions routinely made for Solter’s account. The point has no merit.

Solter next claims the court erred in failing to allow prejudgment interest on his claims for wages and employment termination benefits.

Prejudgment interest is the measure of damages for failure to pay money when payment is due. Ehrle v. Bank Building & Equipment Corp. of America, 530 S.W.2d 482, 497 (Mo.App.1975). As a general rule, interest is not allowable prior to judgment upon an unliquidated claim for the reason “that where the person liable does not know the amount he owes he should not be considered in default because of his failure to pay.” Fohn v. Title Insurance Corp., 529 S.W.2d 1, 5 (Mo. banc 1975). An amount is sufficiently liquidated for the purpose of allowing prejudgment interest thereon if the amount is readily ascertainable by computation or by determination according to a recognized standard. Ehrle, 530 S.W.2d at 496. Where a claim is liquidated or where the defendant contests liability and not the amount of damages, the interposition of a counterclaim or setoff does not convert the liquidated demand into an unliquidated one or preclude recovery of prejudgment interest even though the counterclaim or setoff places the amount payable in doubt. Id. at 497; Ohlendorf v. Feinstein, 670 S.W.2d 930, 935 (Mo.App.1984). It is the character of the claim and not of the defense that determines whether an amount sued for is liquidated. Burger v. Wood, 446 S.W.2d 436, 444 (Mo.App.1969).

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748 S.W.2d 919, 29 Wage & Hour Cas. (BNA) 805, 1988 Mo. App. LEXIS 320, 1988 WL 28234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solter-v-pm-place-stores-co-moctapp-1988.