Tandy v. Pecan Shoppe of Minden, Inc.

785 So. 2d 111, 6 Wage & Hour Cas.2d (BNA) 1694, 2001 La. App. LEXIS 685, 2001 WL 322807
CourtLouisiana Court of Appeal
DecidedApril 4, 2001
Docket34,578-CA
StatusPublished
Cited by6 cases

This text of 785 So. 2d 111 (Tandy v. Pecan Shoppe of Minden, Inc.) 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
Tandy v. Pecan Shoppe of Minden, Inc., 785 So. 2d 111, 6 Wage & Hour Cas.2d (BNA) 1694, 2001 La. App. LEXIS 685, 2001 WL 322807 (La. Ct. App. 2001).

Opinion

785 So.2d 111 (2001)

Kerry TANDY, Plaintiff-Appellant,
v.
PECAN SHOPPE OF MINDEN, INC., Defendant-Appellee.

No. 34,578-CA.

Court of Appeal of Louisiana, Second Circuit.

April 4, 2001.

*113 Kitchens, Benton, Kitchens & Warren by Graydon K. Kitchens, Jr., Minden, Counsel for Appellant.

James M. Johnson, Minden, Counsel for Appellee.

Before BROWN, STEWART and KOSTELKA, JJ.

KOSTELKA, J.

Kerry Tandy ("Tandy") appeals the judgment of the Twenty Sixth Judicial District Court in favor of Pecan Shoppe of Minden, Inc. ("Pecan Shoppe") wherein his claim for unpaid wages, statutory penalties and attorneys' fees was denied.[1] Finding no error by the trial court, we affirm.

FACTS

Tandy was one of the original stockholders of Pecan Shoppe, along with Charles Eckels ("Eckels"), Jack Southerland ("Southerland") and Dale Denmark ("Denmark")—each of whom owned a 25 percent interest in this Georgia corporation which was organized in 1964. Pecan Shoppe owned a Stuckey's store franchise in Minden, Louisiana. Originally, the franchiser corporation, Stuckey Corporation, managed the franchise, but at some point prior to 1994, the management was left to Pecan Shoppe. Tandy began acting as manager of the store in 1994 and continued to do so until October 1, 1998.

Tandy asserts that he is due wages from July, 1994 through August, 1996 and for the month of September, 1998 in the total amount of $50,000. Prior to filing suit against Pecan Shoppe, Tandy made demand for his alleged past due wages. In his Petition for Wages and Salary, he claims penalties and attorney fees pursuant to La. R.S. 23:631 and 632. After a trial of the matter, the trial court found that there was never an employment contract between Tandy and Pecan Shoppe authorizing payment to Tandy for managing the store. Additionally, the trial court determined that Tandy never received agreement or authorization from the shareholders of Pecan Shoppe for any *114 amount of compensation for his services as manager. This appeal ensued.

DISCUSSION

Failure to Answer Request for Admissions of Fact

A threshold issue to be addressed is Tandy's argument that pursuant to La. C.C.P. arts. 1467 and 1468, the failure by Pecan Shoppe to respond to his request for admission of facts results in those requests being deemed admitted. Of those various requests, Tandy points to the alleged admission by Pecan Shoppe that it was liable for Tandy's past unpaid salary, which Tandy argues is the crux of this litigation and should have resulted in judgment in his favor.

Admissions may be used to establish uncontradicted facts or controversial issues which constitute the crux of the matter in litigation. La. C.C.P. art. 1467; Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La.1976); Remondet v. Reserve Nat. Ins. Co., 433 So.2d 792 (La.App. 5th Cir.1983), writ denied, 441 So.2d 216 (La.1983). When the party receiving the request for admissions fails to respond to the request by any means, the fact is deemed admitted. Succession of Rock, supra; Jones v. Gillen, 504 So.2d 575 (La.App. 5th Cir.1987), writ denied, 508 So.2d 86 (La.1987); Remondet, supra. However, in Succession of Rock, the Louisiana Supreme Court pointed out that the codal articles do not require a party to utilize a particular form to respond to the request. The only formality dictated by La. C.C.P. art. 1467 is that "a written answer or objection addressed to the matter, signed by the party ...." be served upon the party which requested the admission. Article 1467 further states that "[a] denial shall fairly meet the substance of the requested admission...." (Emphasis added). In Voisin v. Luke, 249 La. 796, 191 So.2d 503 (1966), the Court considered verified exceptions as appropriate answers to a request for admissions.

In the case presently before us, the record clearly shows the issue of Tandy's alleged employment as manager of the Stuckey's store was in controversy before Tandy's request for admissions were served on Pecan Shoppe, as well as after their service. In its Answer, Pecan Shoppe denied unequivocally the pertinent allegations. Specifially, Pecan Shoppe denied that Tandy was "employed as manager" from July 1994 through August 1996 at a monthly salary of $2000, which is the issue in litigation. Additionally, after Tandy's request for admissions had been served on Pecan Shoppe's attorney,[2] Pecan Shoppe filed the counter affidavit of Jan Maxwell ("Maxwell"), Eckels' daughter who inherited his shares in Pecan Shoppe upon his death, wherein she stated twice that Pecan Shoppe had never approved a salary for Tandy. Moreover, and perhaps most importantly, we note that Tandy's very pointed requests for admissions do not address the issue of whether Tandy was employed by Pecan Shoppe, which is the determination made by the trial court. Pecan Shoppe's other responsive pleadings filed during the course of the proceedings clearly indicate that the issue of whether Pecan Shoppe owed Tandy any salary for his alleged services to the corporation was disputed, regardless of the fact that Pecan Shoppe failed to file a formal response to Tandy's request for admissions.

Employment of Tandy

As his first assignment of error, Tandy argues that the trial court erred in its factual determination that Pecan Shoppe had not employed him to be manager of the Stuckey's store.

*115 A district court's findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, the linchpin is whether the trial court's findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the trial court's findings cannot be reversed if they are in fact reasonable. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.04/21/95), 654 So.2d 311. In other words, the appellate court may not reverse simply because it is convinced that had it been sitting as the trier of fact, it would have ruled differently. Lewis, supra. A finding of fact by a trial court should be upheld unless it is clearly wrong. Madison v. Thurman, 32,401 (La.App.2d Cir.10/27/99), 743 So.2d 857.

When findings of fact are based upon evaluations of witness credibility, the manifest error/clearly wrong standard demands great deference to the trial court. Only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where two permissible views of the evidence exist, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra; Turner v. State Farm Mut. Auto. Ins. Co., 32,423 (La.App.2d Cir.10/27/99), 743 So.2d 924.

Tandy testified that he had managed the Stuckey's store from July, 1994 through August, 1996 without compensation, because there was not sufficient cash flow at the time to pay himself a salary. In 1996, he began paying himself a salary in the amount of $2000 per month. He admitted that the decision to pay himself was made unilaterally, and there was no agreement by the stockholders that he should have been paid or the amount to pay him.

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Bluebook (online)
785 So. 2d 111, 6 Wage & Hour Cas.2d (BNA) 1694, 2001 La. App. LEXIS 685, 2001 WL 322807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tandy-v-pecan-shoppe-of-minden-inc-lactapp-2001.