author:
CARAWAY, J.
      MOORE, J.,

text:
    LOUTRE LAND AND TIMBER COMPANY, Plaintiff v. Wilton A. ROBERTS, Edward Roberts, Mark A. Roberts and Toni L. Roberts Daschke, Defendants.
    No. 45,355-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 27, 2011.

      Robert T. Knight, for Edward Roberts.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., Rayville, LA, by John Hoychick, Jr., for Loutre Land and Timber Company.
    Before BROWN, CARAWAY, DREW, MOORE and LOLLEY, JJ.
   CARAWAY, J.

11 This boundary action involving the ownership of immovable property and damages is again before us on remand from the Supreme Court for review of the issues regarding damages which were not addressed in an earlier appeal. Loutre Land and Timber Co. v. Roberts, 10-2327 (La.5/10/11), 63 So.3d 120. The defendant’s actions in attempting to construct a boundary fence were conducted on property owned entirely by plaintiff some distance away from the now established boundary between the parties’ tracts. Those actions damaged plaintiffs property. Defendant contests the assessment of those damages by the trial court and the penalties and attorney fees awarded plaintiff under the timber trespass statute. Plaintiff answered the appeal seeking additional damages and trial costs which the trial court refused to award. For the following reasons, we reverse the trial court’s ruling in part and affirm in part.

Facts

This protracted boundary dispute between owners of two contiguous tracts concerns the ownership of a 15-acre tract which Edward W. Roberts (“Roberts”) and his family had lost through his neighbor’s adverse possession and acquisitive prescription. Defendant Roberts had just begun constructing a boundary fence along the north side of the 15-acre tract when he was halted by this suit filed by Loutre Land and Timber Company (“Loutre”). The ownership to the 15-acre tract has now been adjudicated in favor of Loutre, and therefore, the arguments regarding the award of 1 ^damages, costs and fees not addressed in the earlier appeals are now before this court.

After a trial on the merits, the trial court awarded Loutre $17,650 in total damages for Roberts’s actions. This sum represented the following categories:

Fence and Post Removal: $ 650.00
Restoration: $ 700.00
Treble Damages: $ 300.00
HarassmenVIneonvenience Damages $ 1,000.00
Attorney Fees: $15,000.00

The trial court awarded $300 in treble damages, based upon Loutre’s evidence that the cost for replacement of 65 bare root seedlings was $100. Since a few years had passed between the time of Roberts’s actions in 2003 and the trial, Loutre sought the sum of $1,300 to replace the destroyed seedlings with larger pine trees, plus $1,500 in labor and costs. In contrast to the cost of seedlings, each large tree would cost $20. Loutre’s expert also testified that the site preparation and fertilizer costs would be between $300-$500 each and that total reforestation costs, including the additional $2,800 for planting the larger trees, would be $3,500-$4,000.

Rejecting this view, the trial judge awarded $700 reforestation costs setting forth his reasons for the award as follows:

It is this court’s understanding that Loutre would be entitled to the value of the trees at the time the trees were destroyed. They were seedlings at that time. Loutre would have a duty to replant as soon as possible and then request damages, thereby minimizing damages. The amount they are requesting would be to replant larger trees, so |3they would be put back close to the same position had the trees not been destroyed some years ago. Mr. Perry testified that the value of the seedlings at the time they were destroyed would be approximately $100.00. This amount is fair and reasonable and will be accepted by the Court.
Tracy Scott Weems testified that the site preparation for the replanting would be between $300-$500 and cost of the fertilizer would be between $300-$500. That area that was bush hogged by Roberts was relatively small, therefore the Court will accept the minimum figure. Accordingly, the court will award the sum of $700.00 for the restoration cost.

Thus, the trial court awarded $100 for seedlings, $300 for site preparation and $300 for fertilizer. Additionally, finding that the provisions of La. R.S. 3:4278.1 applied to the facts of this case, the trial court imposed a separate $300 treble damage penalty. The court’s reasoning was as follows:

The evidence clearly shows that Edward Roberts went upon the disputed tract in February, 2003; that he did so when the resident forester was not in the area, that he did bush hog some pine seedlings, and did commence to erect a fence. He obviously was trying to take back what he considered to be his property by building a new boundary fence. He knew at the time that he and his family had not possessed the disputed tract. He and his family had paid taxes as they held record title, but a survey told him that the line was not where he thought it was. He secured "a quit-claim deed and decided to take action to claim what he thought was his. He certainly had the right to take action, but it should have been through a lawsuit, rather than a trespass. Mr. Roberts did go upon the property, he did so willfully and intentionally, he did cause damage, and he did so without the consent of the owner.
Accordingly, Edwards Roberts must respond in damages for his actions in February, 2003, by going upon the land and cutting the trees, and commencing to erect the fence. Even if this Court were to determine the defendant’s actions were in good faith, he must still respond in damages as requested by Plaintiff, because he certainly should have been aware that his actions were without the consent of Loutre, and he has certainly failed to make payment after notification |4and legal demands were made. This Court finds that Roberts will be held liable for the civil damages and reasonable attorney fees as provided for in LSA-R.S. 3:4278.1.

In denying Loutre an award of survey costs and expert witness fees, which is now contested by Loutre, the court reasoned as follows in its written reasons for judgment:

The end result of this case is that Loutre received more land than it paid for, and that Roberts and his family received less land than they paid for. Robert’s actions were more out of frustration than an attempt to cause deliberate harm. This Court does not deem it fair to assess these costs to the Defendant. Both parties incurred costs in the presentation of their cases, and it is equitable to allow both parties to pay them respective costs. Therefore the request that the cost of the survey and the fees of the expert witness will be denied.

Roberts appealed the judgment arguing that the trial court erred in awarding treble damages and attorney fees under La. R.S. 3:4278.1 because the evidence showed his belief that he was the owner of the tract and was acting in good faith with no intent to destroy Loutre’s trees. Alternatively, Roberts argued that the $700 restoration award and the $15,000 attorney fees award are excessive.

Loutre answered the appeal urging that the attorney fee award was insufficient in light of the extensive work and preparation required for preparation and litigation of the case. Loutre also contends that the trial court erred in awarding insufficient damages for reforestation and in denying an award of survey costs and expert witness fees.

Discussion

I.

The trial court applied the treble damage piracy statute La. R.S. 3:4278.1 (“the Statute”) to only the $100 cost of the 65 pine seedlings | ¿recently planted by Loutre in the months before Roberts’s actions. The Statute’s measure of damage is “three times the fair market value of the trees.” Therefore, the court correctly did not triple the other elements of the damage which it assessed to Roberts, and Lou-tre makes no argument for a penalty greater than $300. Therefore, this case presents the question of whether the $100 loss of pine seedlings, which were bush hogged by Roberts in his construction of a disputed boundary fence, falls under the timber piracy Statute entitling Loutre to $15,000 in attorney fees.

The so-called “timber trespass” or “timber piracy” Statute provides, in pertinent part, as follows:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.
D. If a good faith violator of Subsection A fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner or legal possessor, the violator shall also be responsible for the reasonable attorney fees of the owner or legal possessor.

La. R.S. 3:4278.1.

[fiWith only 65 pine seedlings damaged in this boundary dispute and no marketable timber removed from the property, an issue of statutory interpretation for the application of the Statute is obvious. The Civil Code provisions for the interpretation of laws provide as follows:

La. C.C. art. 9. Clear and unambiguous law
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.
La. C.C. art. 10. Language susceptible of different meanings
When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.
La. C.C. art. 12. Ambiguous words
When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.

Additionally, the timber piracy Statute being punitive; it must be strictly construed. Alexander v. Dunn, 44,272 (La.App.2d Cir.6/3/09), 15 So.3d 302, writ denied, 091487 (La.10/2/09), 18 So.3d 122.

In its recent ruling in Sullivan v. Wallace, 10-0388 (La.11/30/10), 51 So.3d 702, our Supreme Court held that the timber trespass Statute does not apply to disputes between co-owners over the harvesting of timberland. In |7making its statutory interpretation, the court made the following general observation about the Statute:

Section 4278.1 is entitled “Trees, cutting without consent; penalty.” Given this context, the legislative purpose behind La.Rev.Stat. 3:4278.1 is to protect those with interests in trees from loggers who enter their property without permission to harvest timber illegally.

Id. at 709. Since no merchantable timber was harvested, removed and sold by Roberts, the damages to pine seedlings resulting from his actions on Loutre’s property appear to fall outside this statutory purpose.

From the language of the Statute, a trespasser shall not “cut, fell, destroy, remove, or ... divert for sale or use ... trees” of the land or timber owner. The “fair market value” of those “trees” serves as the Statute’s measure of loss for the assessment of treble damages. Clearly, pine seedlings may not be cut, felled, removed and diverted for sale. The seedlings were however “destroyed.” Nevertheless, those destroyed seedlings would not have a fair market value in the same sense that mature timber or pulpwood can be sold on the market. Also, seedling destruction, in contrast to the destruction of “trees,” can be immediately and simply remedied by the cost of replanting. Trees are managed by the landowner for years and their lost value when destroyed by the trespasser may not be optimal due to market conditions and the age of the trees when destroyed. “Because the statute is penal and strictly construed, the fair market value of trees referenced in the statute is limited to the fair market value of trees as timber.” Hornsby v. Bayou Jack Logging, note 2, supra at 371, Weimer, J., concurring. Here, the trial court’s award of the expense of seedlings ($100) and the expense of replanting or restoration ($600) was not a “fair market | svalue” determination of the destroyed seedlings which had no value for a market sale.

Thus, even with the Statute’s language regarding “destroyed” “trees,” the other language of the Statute regarding the “sale and use” of those trees as harvested timber and pulpwood which have a merchantable “fair market value” creates the susceptibility for different meanings. La. C.C. art. 10. This requires an interpretation that conforms to the purpose of the law. Moreover, a trespasser’s stepping on or driving over a few seedlings is greatly different from the statutory purpose expressed in Sullivan. Thus, the Statute’s application would arguably represent an absurd result in this instance. Therefore, in accordance with the Supreme Court’s expression of the statutory purpose of the law, we find that the destruction of pine seedlings in this case does not warrant the imposition of treble damages.

Moreover, Roberts’s actions as reviewed by the trial court in its ruling were not those of a mere trespasser. Roberts acted on the strength of the recorded titles to the fifteen acres of his family and predecessors-in-title and his family’s payment of taxes on that fifteen acres. Loutre Land and Timber Co. v. Roberts, supra. He also had obtained a quitclaim deed from the Succession of Morgan in an effort to end the claim caused by Morgan’s lengthy adverse possession of the disputed land. Thus, even assuming that the Statute does apply, the more limited treble damage provision (without attorney fees) of Section C of the Statute would govern. Acting under color 13of title, Roberts was a “good faith violator” who “should have been aware that his actions were without the consent” of Loutre which had acquired a competing claim to the property from the Succession of Morgan. While the treble damage penalty of the Statute would be applicable, the further provision for attorney fees under Section D would not. Neither L outre’s petition nor its evidence at trial revealed that a 30-day demand for the payment of the $100 cost for seedlings was ever made by Loutre prior to the institution of suit, affording Roberts the choice of paying such minor amount and avoiding the harsh penalty, with reservation of his rights for his claim to the land. Therefore, the large award of $15,000 in attorney fees for the collection of $100 is excluded by the operation of Section D.

From the above statutory interpretation of the Statute, the trial court’s judgment is amended to exclude the penalty and award for attorney fees.

II.

In answer to the appeal, Loutre argues that the trial court’s award of $700 for the replanting of seedlings was insufficient. The court found that Loutre could have replanted seedlings in 2003 immediately north of the line for the fence which Roberts had begun to establish. Three years later at the time of the trial, Loutre asserted that the rapid growth of the planted pine thicket necessitated the planting of much larger pine trees to compete with |1ftthe surrounding young, but much taller, pine trees along the disputed line. The planting of 65 larger trees in 2006 would cost $3,500-$4,000, and Loutre now seeks on appeal that larger amount for its damages.

“In assessing damage to property, generally, courts have considered the costs of restoration as the proper measure of damage where the thing damaged can be adequately repaired.... No mechanical rule can be applied with exactitude in the assessment of property damage under La. Civ.Code art. 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record.” Coleman v. Victor, 326 So.2d 344, 346-347 (La.1976).

With this trespass damage recoverable in tort, the trial court was correct in measuring the physical damage to the property as of the time of the loss and in requiring that Loutre mitigate its loss. When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage. Hornsby v. Bayou Jack Logging, supra, citing Coleman v. Victor, supra. An injured plaintiff has a duty to take reasonable steps to mitigate damages. Aisole v. Dean, 574 So.2d 1248 (La.1991); Pisciotta v. Allstate Ins. Co., 385 So.2d 1176 (La.1979).

The very narrow bush hogged strip in question would have grown in new trees with the surrounding pine seedlings had Loutre immediately replanted the line in 2003. The photos taken in 2003 reveal that the field grass growing beyond the bush hogged strip was taller than the surrounding seedlings recently planted. The trial court was not manifestly in error in 1 n concluding that a replanting on the line in the fall of 2003 would have insured a uniform growth of the planted pine forest. This assignment of error has no merit. Likewise, we find no merit in the necessity of the various experts Loutre employed to establish the process for planting the larger trees. The cost of those experts could therefore be rejected by the trial court. La. R.S. 13:3666.

Finally, we find merit in Loutre’s claim for the award for its surveying costs. Under La. C.C.P. art. 3693 for a boundary dispute, “[ajfter considering the evidence, including the testimony and exhibits of a surveyor or other expert appointed by the court or by a party, the court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.” Likewise, all final judgments which affect title to immovable property shall describe the immovable property with particularity. La. C.C.P. art. 1919.

Evidence regarding the survey costs included that of Harry Edward Perry, a Loutre forester. Perry testified that because of the lawsuit, Loutre obtained a survey of the property which was introduced into evidence. The invoice of Mes-singer & Associates showed that Loutre was charged $3,025 for the survey.

The final judgment, which should have incorporated the eleven course and distance calls of the Messinger survey for the line of the meandering old fence across the Northeast Quarter of the Northeast Quarter of Section 10, recognized the old fence line as the boundary between the | ^parties’ contiguous tracts. The location of that fence was essential for Loutre’s claim to the disputed fifteen acres since that line demarcating the parties’ ownership does not appear in any recorded instrument in the competing title chains of the parties.

Accordingly, the trial court’s failure to award Loutre the survey costs for this boundary dispute was error, and the judgment will be amended.

Conclusion

From the above interpretation of the Statute, we reverse the trial court’s award for treble damages and attorney fees. We further reverse the trial court’s ruling denying the cost of Loutre’s survey of $3,025 and that amount is hereby granted. In all other respects, the trial court’s judgment pertaining to the damages and costs of litigation is affirmed. Costs of appeal are assessed to Roberts.

REVERSED IN PART; AFFIRMED IN PART.

MOORE, J., concurs in part, dissents in part and assigns reasons.

MOORE, J.,

concurs in part and dissents in part.

1,1 respectfully concur with the court’s opinion insofar as it awards Loutre Land the cost of the survey, and finds that the district court did not abuse its discretion in rejecting the expert witness fees of Carr and Weems or in fixing the damages for reforestation.

I dissent, however, from the portion of the opinion that reverses the treble damages and attorney fees, ostensibly under a reading of La. R.S. 3:4278.1. The majority cites Sullivan v. Wallace, 2010-0388 (La.11/30/10), 51 So.3d 702, for a rule that the penal provision cannot apply unless the defendant “harvested” trees illegally; Roberts destroyed trees that were mere seedlings, too young to be “harvested” for sale, ergo no penalty applies. However, Sullivan addressed the liability of co-owners of timberland; I do not read it as holding that trespassers may destroy seedlings with impunity. Moreover, I strongly disagree with the majority’s statements that Roberts acted “on the strength of recorded titles” and, critically, on a quitclaim deed obtained in an effort to “end the claim.” In reversing this court, the supreme court held that Loutre Land acquired title by a full warranty deed, including all rights of prescription, and that Roberts obtained a quitclaim deed only because the succession’s attorney told him that the succession had already sold the disputed tract. These facts completely negate any claim of good faith on Roberts’s part. The district court was not plainly wrong to find that Roberts willfully and intentionally violated the statute.

I would therefore affirm the award of treble damages and attorney fees.

      . The actual trial and ruling on the damages occurred in 2006 before the Honorable Glynn D. Roberts. After our reversal of the related summary judgment regarding ownership of the land in Loutre Land and Timber Co. v. Roberts, 42,918 (La.App.2d Cir.4/16/08), 981 So.2d 775, and remand, the evidence and ruling on damages became part of the ultimate judgment by the Honorable James M. Stephens rendered in 2009.

      . The trial court's award of $100 for actual seedling cost and the separate $300 penalty as treble damages for that cost was a calculation error as the penalty should have been only $200. Under the treble damage statute, the court shall "determine the fair market value (“FMV”) of the trees and multiply the FMV by three to arrive at the damage award.” Hornsby v. Bayou Jack Logging, 04-1297 (La.5/6/05), 902 So.2d 361, 365.

      . While Roberts’s assignment of error challenges the award of attorney fees claiming that his actions along the disputed boundary were in good faith (see Sections C and D of the Statute), the appellate court may first question whether a cause of action exists under the Statute. La. C.C.P. art. 927(B). See also, La. C.C.P. arts. 2129 and 2164. As the Supreme Court has recently expressed, “the absence of an assignment of error or lack of objection to the district court’s choice of law ruling by a litigant would not prevent the court of appeal from raising this issue. Without doubt, an appellate court has the authority to raise an issue sua sponte on appeal.” Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 562.

      . The destruction of smaller trees in a case where merchantable timber is removed from the land in violation of the Statute may result in a measure of loss subject to treble damages. The Statute's use of the term "destroyed” may have application for such incidental damage to smaller trees with some merchantable value destroyed by the overall piracy of the timber from a tract.

      . The trial court's quoted ruling indicating that a "notification” for payment was given to Roberts by Loutre is not supported by the record. While Roberts was notified of Lou-tre's title claim and ceased construction of the fence, there was no testimony that any demand for payment of $100 in seedling costs was made.

      . We further note that under the recent ruling in Arceneanx v. Amstar, 10-2329 (La.7/1/11), 66 So.3d 438, the total amount of attorney fees expended in complex litigation may not always be awarded in their entirety if the statutory claim imposing an attorney fee award applies only to a small portion of the litigation.

      . The trial court’s judgment simply recognizes Loutre’s ownership to "that part of the Northeast Quarter, Section 10, Township 16 North, Range 8 East, lying north of the boundary fence, which fence separates the property owned by Edward Roberts (previously property of Wilton A. Roberts, et al) from the 'Morgan Place’ now owned by Loutre Land and Timber Company.” The Messinger survey actually located the fence line as beginning at a point 316.84 feet south of the Northeast corner of Section 10 and ending at a point 412.58 feet south of the Northwest corner of the Northeast Quarter of the Northeast Quarter of Section 10. Although the Messing-er metes and bounds calls for the fence line across the quarter/quarter section were necessary to meet the particularity requirement of La. C.C.P. art. 1919, the trial court’s judgment declaring Loutre’s ownership is now final.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Amy W. MARTIN, Plaintiff-Appellee v. STERLING ASSOCIATES, INC., et al., Defendant-Appellants.
    No. 46,461-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.
    Rehearing Denied Sept. 15, 2011.

      Gordon, Arata, McCollam, Duplantis & Eagan, LLC, New Orleans, LA, by Donna Phillips Currault, Kelly Dussel Perrier, for Appellant.
    Jeffrey L. Robinson, Jonesboro, LA, Hallack Law Firm, West Monroe, LA, by Dennis W. Hallack, William H. Hallack, Jr., for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

| Sterling Associates Inc. and Sterling Pharmacy LLC (“Sterling”) appeal a summary judgment that awarded a former employee, Amy Martin, a penalty wage of $45,000 and attorney fee of $6,500 under the Payment of Employees Law, La. R.S. 23:631-632. Finding genuine issues of material fact, we reverse and remand.

Factual Background

In February 2005, Sterling hired Ms. Martin as a pharmacist in its Ruston store. By 2009 she was normally working four days a week, 10 hours a day, at $50 an hour. She also received paid time off or “flextime” in a specified amount for hours worked.

On March 2, 2009, she gave written notice that she was quitting effective March 6. Her final pay stub, dated March 20, stated that the check was for 38.27 hours’ work, but did not include payment for 70.28 hours’ flextime recorded on the previous pay stub. On April 16, Ms. Martin sent Sterling’s president, CEO and registered agent, Scot Simmons, a written demand for payment, advising that she would take legal action if not paid. Simmons’s office assistant, Brandy Andrews, signed the certified return receipt on April 17, but Sterling sent no payment.

Ms. Martin then retained counsel who sent another letter to Simmons on August 12, 2009, demanding 90 days’ penalty wage and attorney fees under R.S. 23:632. This time, Sterling promptly sent via FedEx a check for |2the unpaid flextime, $3,514.00, together with a check for $500.00 to cover any “associated fees and costs.” A cover letter from Sterling’s attorney firmly stated that they owed nothing more, based on Ms. Martin’s “conduct and manner in departing” her employment. Ms. Martin cashed the wage check but not the fees and costs check.

Procedural History

Ms. Martin filed this suit on September 3, 2009, demanding penalty wages and attorney fees.

By answer, Sterling admitted that when she quit, Ms. Martin had accrued 70.28 hours’ flextime pursuant to company policy. However, it raised the legal defense that she did not comply with the statute in that Simmons himself had not received her demand letter (even though his secretary signed the certified return receipt on April 17). Sterling also raised various equitable defenses to payment: (1) Ms. Martin’s “abrupt departure and insufficient notice” required Sterling to incur additional costs to fill her time slots; (2) she violated her “employment obligations” by removing or improperly using Sterling’s proprietary business information, data, equipment or supplies; (3) she improperly charged Sterling for time she did not work, and had been disciplined for this; (4) she breached her “fiduciary employment duties” by disclosing confidential, proprietary information to Sterling’s competitors; and (5) she violated her professional duty to ensure quality patient care by suddenly leaving an area which is suffering a shortage of pharmacists.

|aMs. Martin filed this motion for summary judgment, arguing that Sterling failed to pay her flextime by the next regular payday or 15 days after her final day of work, as required by R.S. 23:631; thus she was entitled to 90 days’ penalty wage of $45,000 plus attorney fees under R.S. 23:632. In support, she attached her own affidavit, that of her attorney (claiming a fee of $4,400), and copies of her pay stubs and her demand letter to Sterling. She also attached copies of Sterling’s answers to interrogatories, in which Sterling asserted that she stole from the pharmacy.

Sterling then filed its own motion for partial summary judgment, asking to dismiss the penalty wage claim. It attached Simmons’s affidavit stating that when he hired Ms. Martin, she was on five years’ probation from the Louisiana Pharmacy Board for stealing hydrocodone, a controlled narcotic, from a prior employer to give to her husband, but she failed to disclose these facts at the time; also, audits revealed that while she was working for Sterling, “noticeable amounts of hydro-codone went missing,” and he believed she stole from the pharmacy. The affidavit also asserted that Simmons had disciplined her for falsifying her time records (he attached a document labeled “Policy— Written Reprimands/Termination” signed by Ms. Martin on October 3, 2006); as a result, Sterling installed a biometric time clock, after which Ms. Martin’s time decreased six hours a week. Finally, Simmons believed that when Ms. Martin left, she misappropriated sensitive information (price lists, client information, internal accounting procedures, Sterling’s policies and procedures, and prospective client files) and conveyed them to her new employer, toySterling’s detriment.

Ms. Martin opposed Sterling’s motion, arguing that much of Simmons’s affidavit was unsupported speculation, notably his suspicions that she stole narcotics from Sterling and passed its sensitive information to her new employer. In support, she attached the affidavit of her immediate supervisor at Sterling, David Gann, who admitted that even though small amounts of hydrocodone could not be accounted for, nobody ever suspected Ms. Martin of theft. She also argued that the “Policy — Written Reprimands/Termination” was not a disciplinary action but, by its own terms, merely an acknowledgment of Sterling’s discipline policy.

Sterling filed two additional affidavits of Simmons in opposition to Ms. Martin’s motion. These reiterated his earlier assertions but supplied no documentation that Ms. Martin stole any hydrocodone from Sterling, passed confidential information to Sterling’s competitors, or any of his other allegations against her.

Action of the District Court

After a hearing in April 2010, the district court issued a 6y2-page written ruling. Quoting the applicable law of R.S. 23:631-632, the court noted that while penalty wage claims are subject to equitable defenses, Beard v. Summit Inst., 97-1784 (La.3/4/98), 707 So.2d 1233, an employer can avoid the penalty only with a “good-faith, non-arbitrary defense,” Carriere v. Pee Wee’s Equip. Co., 364 So.2d 555 (La.1978). The court then rejected each of Sterling’s defenses:

(1) the conditions of Ms. Martin’s probation were matters of public record and Simmons admitted he was aware of her probation |fistatus when he hired her, so lack of disclosure was not valid.
(2) the affidavit of Gann, the pharmacist in charge, denied that anyone at Sterling ever suspected Ms. Martin of stealing hydrocodone, so Simmons’s assertion that she might have done so was “after-the-fact-speculation.”
(3) the “Policy — Written Reprimands/Termination” document appeared to be Sterling’s blanket policy, not a reprimand of Ms. Martin; at any rate, Ms. Martin stayed on the job over three years after the alleged reprimand, during which time Sterling never charged her for alleged overcompensation; hence, the claim of time theft was not made in good faith.
(4) Ms. Martin’s at-will status under La. C.C. art. 2747 totally negated any claim that she failed to provide adequate notice of her voluntary termination and was liable for Sterling’s incidental expenses.
(5) Simmons admitted that Sterling’s computer system was incapable of tracking whether Ms. Martin stole any data, and without other proof, the allegation of theft of pricing, client lists and other sensitive information was baseless.

Finding no legal or equitable defense to nonpayment, the court granted Ms. Martin’s motion for summary judgment, awarding her the 90 days’ penalty provided by R.S. 23:632. By later ruling, it fixed attorney fees at $6,500.

Sterling filed a motion for new trial which the court denied without a hearing. Sterling now appeals, raising four assignments of error.

Applicable Law

The Payment of Employees Law, La. R.S. 23:631-653, requires the prompt payment of employees upon discharge. The sections applicable to this case are as follows:

§ 631. Discharge or resignation of employees; payment after termination of employment
A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the | fiperson employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first. * * *
§ 632. Liability of employer for failure to pay; attorney fees
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

A claimant seeking to recover penalties or attorney fees under R.S. 23:632 must establish (1) that wages were due and owing, (2) that demand for payment was made where the employee was customarily paid, and (3) that the employer did not pay upon demand. Becht v. Morgan Bldg. & Spas Inc., 2002-2047 (La.4/23/03), 843 So.2d 1109; Hattaway v. Health Paradigm LLC, 45,047 (La.App. 2 Cir. 3/3/10), 31 So.3d 1176, writ denied, 2010-0691 (La.5/28/10), 36 So.3d 251. Accrued vacation pay is an “amount then due under the terms of employment” and must be paid in accordance with R.S. 23:631. Beard v. Summit Inst., supra.

When a bona fide dispute exists over the amount of wages due, an employer’s failure to pay is not an arbitrary refusal and no penalties will be awarded. Hattaway v. Health Paradigm, supra; Smith v. City of Ruston, 42,281 (La.App. 2 Cir. 6/20/07), 960 So.2d 1246. Imposition of penalty 17wages requires a finding that the employer’s failure to pay was arbitrary or in bad faith. Blaney v. Hulsey, Harwood & Hulsey, 27,988 (La.App. 2 Cir. 2/28/96), 669 So.2d 661; Jeansonne v. Schmolke, 2009-1467 (La.App. 4 Cir. 5/19/10), 40 So.3d 347.

A man is at liberty to dismiss a hired servant without assigning any reason for so doing; the servant is also free to depart without assigning any cause. La. C.C. art. 2747. This rule is known as “at-will employment.” Quebedeaux v. Dow Chem. Co., 2001-2297 (La.6/21/02), 820 So.2d 542. An at-will employee is free to quit at any time without liability to her employer. LeDay v. State, 44,069 (La.App. 2 Cir. 4/15/09), 11 So.3d 1129; Clark v. Acco Systems Inc., 39,532 (La.App. 2 Cir. 4/6/05), 899 So.2d 783.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Adams v. JPD Energy Inc., 45,420 (La.App. 2 Cir. 8/11/10), 46 So.3d 751, writ denied, 2010-2052 (La.11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Sensebe v. Canal Indem. Co., 2010-0703 (La.1/28/11), 58 So.3d 441. A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is |sentitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment is usually not appropriate for claims based on subjective facts such as motive, intent, good faith, knowledge and malice. Phipps v. Schupp, 2009-2037 (La.7/6/10), 45 So.3d 593; Johnson v. Pinnergy Ltd., 46,188 (La.App. 2 Cir. 4/13/11), 63 So.3d 302. However, summary judgment may be granted on subjective intent issues when no genuine issue of material facts exists concerning the pertinent intent. Phipps v. Schupp, supra; Johnson v. Pinnergy Ltd., supra.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sensebe v. Canal Indem. Co., supra; Tillman v. Eldridge, 44,460 (La.App. 2 Cir. 7/15/09), 17 So.3d 69.

Discussion

By three of its assignments of error, Sterling urges that summary judgment was improper because (1) Sterling established that it held a good faith belief that Ms. Martin was not entitled to receive flextime, thus precluding the award of penalty wages; (2) Sterling’s belief that flextime wages were not due was a subjective issue of good faith that cannot be resolved on motion for summary judgment; and (3) the court made improper credibility determinations on disputed evidence. Sterling shows that penalty wage claims are subject to “equitable defenses” which are not technically defenses but, rather, equitable showings that greater justice would result from denying penalty wages. Otwell v. Howard Lumber & Supply Co., 283 So.2d 826 (La.App. 2 Cir.), writ denied, 286 So.2d 364 (1973). It argues |3that Simmons honestly (if wrongly) believed he could withhold payment of flextime for the reasons rejected by the district court; nonetheless, these were good-faith beliefs that should preclude the penalty. Carri-ere v. Pee Wee’s Equip. Co., supra. Specifically, Sterling contends that penalty wages have been denied when the claimant’s conduct caused the employer to incur additional expenses, when questions arose as to how many hours the claimant worked, or when the employer believed the claimant had retained company property. See, e.g., Powell v. Flotation Services Inc., 413 So.2d 276 (La.App. 8 Cir.), writ denied, 415 So.2d 941 (1982). It adds that Ms. Martin owed a fiduciary duty not to divulge Sterling’s sensitive information to competitors, even in the absence of a non-competition agreement. Cenla Physical Therapy v. Lavergne, 94-1538 (La.App. 3 Cir. 5/3/95), 657 So.2d 175. Sterling argues that the court, in effect, required irrefutable proof to support its good-faith beliefs, a standard rejected in Carriere v. Pee Wee’s Equip., supra. Finally, it urges the court made improper credibility calls between competing affidavits: Simmons’s affidavit asserted his good faith, while Gann’s and Ms. Martin’s denied it. Sterling concludes that this court should reverse the summary judgment in favor of Ms. Martin and render summary judgment in favor of Sterling, dismissing the penalty wage claim.

Ms. Martin responds that the wages were owed, demanded but not paid, creating liability under R.S. 23:632. Hattaway v. Health Paradigm, supra. She argues that the district court properly analyzed and rejected each alleged defense, and suggests there were many ways Sterling could have created a genuine issue, as by producing the audit showing narcotics | mdisappeared while she was on duty, a report to the DEA, or a complaint to the Pharmacy Board, but none was offered. She also argues that under Phipps v. Schupp, supra, there was no genuine issue of material fact as to Sterling’s bad faith: Sterling’s failure to pay was based not on evidence but on groundless objections and rank speculation, which falls far short of the factual support required to defeat a well-supported motion for summary judgment. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002. Finally, she contends that cases like Carriere and Cenia Physical Therapy, which denied penalty wages, are inapposite in that those employers offered competent evidence of their good faith, a showing utterly absent here. She urges affirmance.

On close examination, we are constrained to agree with Sterling that the issue of bad faith, upon which the equitable defenses to R.S. 23:632 are based, requires a finding of intent which is not suitable for summary judgment disposition on this record. For example, Sterling urges that some narcotics disappeared while Ms. Martin was on duty, and given her history of stealing narcotics from a prior employer, Simmons reasonably suspected Ms. Martin of taking them; Ms. Martin and Mr. Gann, however, stated that she was never under suspicion. A reasonable belief that the employee stole or damaged company property may be a defense to R.S. 23:632 even if the employee is ultimately cleared of the accusation. Glover v. Diving Servs. Int’l, 577 So.2d 1103 (La.App. 1 Cir.1991); Colbert v. Mike-Baker Brick Co., 326 So.2d 900 (La.App. 3 Cir.), writ not cons., 57 Ala.App. 519, 329 So.2d 573 (1976). Whether Simmons’s beliefs were reasonable obviously requires a credibility | ncall and resolution of genuine factual issues. Sterling also urges that Ms. Martin breached a fiduciary duty to Sterling, for which it could withhold her wages. Employees under certain circumstances owe fiduciary duties to their employers. Cenla Physical Therapy v. Lavergne, supra, and citations therein. An at-will employee’s sudden resignation is not in itself a breach of fiduciary duty, Harrison v. CD Consulting Inc., 2005-1087 (La.App. 1 Cir. 5/5/06), 934 So.2d 166, but Simmons’s reasonable belief that Ms. Martin breached other fiduciary duties by misappropriating Sterling’s intellectual property or client lists could be a defense to R.S. 23:632. For these reasons, we find that summary judgment was not appropriate. The judgment will be reversed and the case remanded for further proceedings.

We would observe, however, that if at trial on the merits Sterling offers no more evidence than it has adduced in opposition to the motion for summary judgment, reasonable inferences and factual findings would fully support the district court’s result. First, there is absolutely no merit to Sterling’s position that Ms. Martin’s abrupt departure and insufficient notice provided reasonable grounds to withhold some of her pay. In at-will employment, the employee may quit at any time without liability to her employer. La. C.C. art. 2747; LeDay v. State, supra; Clark v. Acco Systems, supra. Any notion to the contrary is per se unreasonable. Second, aside from Ms. Martin’s history of misappropriating drugs from a prior employer, Sterling has offered nothing to support its suspicion that she stole drugs 112from Sterling, and absolutely nothing to support a suspicion that she stole sensitive company information. The instant showing, at a trial on the merits, could not possibly support a finding of a good faith dispute. Finally, Sterling’s failure to respond to Ms. Martin’s initial demand, on the pretext that Simmons’s secretary signed for it, reeks of bad faith and is precisely the type of disregard that R.S. 23:632 is intended to penalize. A much stronger showing of trial evidence by Sterling will be needed to defeat Ms. Martin’s claim of penalty wages, but in the narrow context of a summary judgment we are constrained to reverse and remand.

Because of this resolution, we pretermit any consideration of Sterling’s third assignment of error, which asserts that the court miscalculated the penalty wage.

Conclusion

For the reasons expressed, the summary judgment is reversed and the case is remanded to the district court for further proceedings. Costs are to be assessed by the district court at the conclusion of trial.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, DREW and MOORE, JJ.

Rehearing denied.

      . Sterling Associates, a corporation, is the "managing member” of Sterling Pharmacy, the limited liability company that actually operates the pharmacy. The corporation initially contended that it had no employment relationship with Ms. Martin, but both entities are aligned for purposes of this appeal.

      . The earlier pay stubs referred to her as Amy Wallace, presumably her maiden name or a prior married name.

      . To the extent that Powell v. Flotation Services, supra, suggests otherwise, we feel that opinion is in error and would not follow it. Notably, Powell never cites or discusses Art. 2747 or at-will employment, and seems to contradict the prevailing law in this area.


author: DREW, J.

text:
    Cynthia C. JOHNSON, Plaintiff-Appellee v. DYKES OIL COMPANY and Administrator, Louisiana Workforce Commission, et al., Defendant-Appellant.
    No. 46,462-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Blanchard Walker O’Quin & Roberts, APLC, Shreveport, LA, by John Thomas Cox, Jr., Scott R. Wolf, for Appellant, Dykes Oil Company, L.L.C.
    Cynthia C. Johnson, In Proper Person, Appellee.
    J. Jerome Burden, Baton Rouge, LA, for Appellee, Louisiana Workforce Commission.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

hThe question in this appeal is whether Cynthia C. Johnson should receive unemployment benefits.

Dykes Oil Company appeals a district court judgment which ruled that Johnson was entitled to unemployment benefits. The Louisiana Workforce Commission has also filed a brief seeking reversal.

The district court held that even though the Board of Review for Office of Regulatory Services made a factual finding that any misconduct by Johnson was unintentional, and thus not aggravated, it nonetheless issued a ruling upholding the hearing officer’s ruling of disqualification for benefits. We agree with the district court that the facts found do not support a denial of benefits.

FACTS

In late 2007, Cynthia C. Johnson was hired by Dykes Oil (“the company”) as an office administrator. Her direct supervisor was Kathy Dykes (“Dykes”), co-owner of the company. Johnson’s duties included reviewing weekly payroll spreadsheets prepared by Larry Meshell, the company’s bookkeeper. After checking the data, Johnson would meet with Dykes, who would approve the payroll, signing checks for those employees not utilizing direct deposit.

Another of Johnson’s duties was to provide orientation for new hires. Part of the orientation process included Johnson explaining the company’s vacation policy, which was that full-time employees only became eligible for paid vacation time (one week) after one year of employment.

li>After working for the company about seven months, Johnson approached Dykes about taking unpaid vacation during May of 2008.

Johnson urges that Dykes approved compensation for the vacation time, an exception to company policy, in order to compensate Johnson for her extra work hours. Similar exceptions had been granted for employees in the past, according to Greg Dykes (“Greg”), the company’s Operations Manager. Kathy Dykes testified that she approved Johnson’s vacation time on an unpaid basis, in accordance with company policy.

Even though Meshell knew that Johnson had been on vacation, he nonetheless provided the paperwork that paid for her vacation time.

Johnson noted that her time off was listed on the spreadsheet to be paid vacation, which apparently comported with her understanding. Accordingly, Johnson made no changes to the payroll spreadsheet and presented it to Dykes, who signed off on the payroll without a close review.

When reviewing her business records at a later time, Dykes:

• discovered Johnson had been paid for her vacation time;
• directed Johnson to speak with Meshell and Greg;
• never spoke with Johnson until her termination on June 2; and
• filled Johnson’s position with a relative.

Johnson applied to the Louisiana Workforce Commission for unemployment benefits.

She was notified by the commission on September 16, 2008, that she was disqualified from receiving benefits because she had been fired for [¡¡misconduct. Her earned wage credits for unemployment insurance were not cancelled because her misconduct was not considered to be “aggravated.”

Johnson appealed the commission’s decision to an Administrative Law Judge (“ALJ”), before whom a hearing was held in late 2008. Testimony was taken from Johnson, Dykes, Greg, and Meshell.

The ALJ found that Johnson:

• had been approved for an unpaid vacation;
• had been fired for approving her own paid vacation without approval from her supervisor;
• deliberately disregarded the interest of the company;
• engaged in aggravated misconduct;
• was not qualified to receive unemployment benefits; and
• was not even entitled to earned wage credits.

Johnson then appealed the ALJ’s ruling to the Board of Review for Office of Regulatory Services.

In an early 2009 decision, the Board found that:

• Johnson was aware that she was ineligible for paid vacation time;
• she approved a paid vacation for herself because she believed her supervisor made an exception for her;
• she was fired for misconduct that was not aggravated because she only took wages to which she thought she was entitled; and
• her disqualification was affirmed, but her wage credits were restored.

Johnson appealed to the 42nd Judicial District Court, which thoroughly reviewed all of the administrative proceedings, holding that:

• the Board of Review, having found no intentional misconduct, erred as a matter of law in nonetheless affirming the denial of benefits; and
14* Johnson was entitled to unemployment benefits and wage credits.

We must resolve two related issues: First, did the district court err in interpreting the Board’s ruling as finding that Johnson had not committed disqualifying misconduct? Second, did the company prove that Johnson had committed such misconduct?

Dykes argues that the answer to each question is “yes” and therefore the decision of the district court should be reversed and the decision of the Board of Review reinstated. Johnson wants the benefits to which she feels she is entitled. She wins, at least in this court.

DISCUSSION

According to La. R.S. 23:1601(2)(a), employees are disqualified from receiving unemployment benefits if they are fired for committing misconduct in the course of employment. Employers bear the burden of proving that an employee was fired due to misconduct. Banks v. Administrator of the Dept. of Employment Security of the State of Louisiana, 393 So.2d 696 (La.1981). Jurisprudence in this circuit requires that an employer trying to prove misconduct show either intentional conduct or negligence that amounts to culpability or an intentional and substantial disregard for the interest of the employer by the ^employee. Delta American Healthcare, Inc. v. Burgess, 41,108 (La.App.2d Cir.5/17/06), 930 So.2d 1108; Lafitte v. Rutherford House, Inc., 40,395 (La.App.2d Cir.12/14/05), 917 So.2d 684.

The decision of a board of review is subject to judicial review. La. R.S. 23:1634. Factual findings of the board are conclusive as long as they are supported by sufficient evidence. La. R.S. 23:1634(B); see Jackson v. Louisiana Board of Review, 41,862 (La.App.2d Cir. 1/10/07), 948 So.2d 327. The board’s factual findings with respect to misconduct must satisfy a “threshold test of reasonableness.” Banks, 393 So.2d at 699. Assuming there is sufficient evidence supporting the findings of fact, judicial review is limited to whether the facts, as a matter of law, support the board’s decision. Lafitte, supra.

The board of review found these facts to have been established:

• Johnson knew the company’s policies;
• she knew she was not strictly entitled to a paid vacation, yet she approved the payroll spreadsheet granting herself this benefit;
• she was under the mistaken impression that Dykes had made an exception to the company policy on this issue; and
• the evidence did not establish any intent by Johnson to take company money to which she was not entitled. zled money and then falsified and destroyed company records whereas Johnson presented the payroll to Dykes without making any changes;

The evidence supports the board’s findings of fact as reasonable. That being so, its legal conclusion is clearly wrong. In other words, despite finding Johnson had no intent to do wrong, the board affirmed the ALJ’s denial of benefits because of Johnson’s misconduct. This cannot be. The facts as found by the board cannot justify its own legal conclusion. There [¿was also no specific finding of such culpable negligence as would require disqualification for benefits.

The district court correctly reversed the board’s decision, pointing out that this Circuit has consistently held that a claimant can be disqualified from receiving unemployment benefits only for either intentional wrongdoing or negligence that shows intentional and substantial disregard for the employer’s interests. See Delta American Healthcare, supra.

The cases cited by the company are easily distinguishable:

• In Vandike v. Brown, 139 So.2d 803 (La.App. 3d Cir.1962), a deliveryman embez-

• In Pope v. Whitfield, 524 So.2d 108 (La.App. 4th Cir.1988), a hotel housekeeper made incorrect entries on time cards, either willfully or accidentally; here, paperwork was prepared by Meshell and presented by Johnson to Dykes, who approved the payments;
• In Roberts v. Office of Employment Sec., 502 So.2d 244 (La.App. 3d Cir.1987), a credit union teller took $20 from her teller box for personal use with intent to return it; here, Johnson was mistakenly paid by direct deposit for vacation time.

Johnson is entitled to unemployment benefits and wage credits. The district court was correct in so ruling.

DECREE

At Dykes Oil Company’s costs, the judgment of the district court is AFFIRMED.

      . Dykes testified that she was in a hurry that day and made only a cursory check of the spreadsheet, on which Johnson was plainly listed as receiving a paid vacation.

      . The "misconduct” statute, La. R.S. 23:1601(2)(a), which was amended in 1990, defines misconduct in a more general sense. The Second, Third, Fourth, and Fifth Circuit Courts of Appeal all continue to apply the "intentional” standard described herein. See Delta American Healthcare, Inc. v. Burgess, 41,108 (La.App.2d Cir.5/17/06), 930 So.2d 1108; Harsco Corp. v. Victoria, 2001-1486 (La.App. 3d Cir.3/20/02), 812 So.2d 871; Emke v. Mouton, 617 So.2d 31 (La.App. 4th Cir.1993); Taco Bell Corp. v. Perkins, 95-225 (La.App. 5th Cir.9/26/95), 662 So.2d 34. The First Circuit initially continued to apply the pre-amendment standard but recently held “misconduct” no longer requires a showing of intentional or wanton conduct and that La. R.S. 23:1601(2)(a) should "be applied as written.” Fontenet v. Cypress Bayou Casino, 2006-0300, p. 7 (La.App. 1st Cir.6/8/07), 964 So.2d 1035, 1040.

      . Dykes should have exercised her fiduciary obligation to the company by carefully checking over the payroll records. In addition, when Dykes discovered what she felt was an overpayment, she should have confronted Johnson directly, rather than tasking other employees to do so. After all, only Dykes and Johnson were privy to their conversation about the paid or unpaid nature of the vacation.