author: Judge Regina Bartholomew Woods • LOBRANO, J., JENKINS, J.,

text:
    ENGLISH TURN PROPERTY OWNER’S ASSOCIATION, INC. v. Marilyn Cutrone CONTOGOURIS
    NO. 2016-CA-1284
    Court of Appeal of Louisiana, Fourth Circuit.
    October 18, 2017
    Rehearing Denied November 2, 2017

      Jacob Kansas, LAW OFFICE OF JACOB KANSAS, 1801 Carol Sue Avenue, Gretna, LA 70054, COUNSEL FOR PLAINTIFF/APPELLANT
    Jack E. Truitt, Pamela S. Chehardy, Alexandra Schultz, Amber L. Mitchell, Peter M. Gahagan, THE TRUITT LAW FIRM, 149 North New Hampshire Street, Covington, LA 70433-3235, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Joy- Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods, Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore)
   Judge Regina Bartholomew Woods •

JjThis case arises as a result of a claim for a delinquent homeowner’s association assessments owed to Appellant, English Turn Property Owner’s Association (“ET-POA”). Notified nearly four years after the first delinquent assessment, the homeowner tendered payment for delinquent assessments prior to trial; therefore, that matter-was not at issue during the trial or on appeal. At issue at trial were the resulting interest, attorney’s fees, and costs that accumulated as a result of the delinquent assessments. After a trial on the merits, the trial court ¿warded a reduced amount of interest, attorney’s fees, and costs; pursuant to the reductions, the ETPOA appealed. For the reasons that follow,.we reverse, in part; vacate, in part; and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY .

Appellee, Marilyn Cutrone Contogoüris; owns property located at 15 Murifield Place in the English Turn subdivision. Pursuant to the English Turn |aproperty covenants, homeowners are required to pay an assessment twice per year; payment is due January 1st and July 1st of each year. According to ETPOA, Ms. Con-togouris failed to pay the'following-assessments: July 2010 ($1,230.00), July 2011 ($1,230.00), January 2012 ($1,290,00), July 2012 ($1,290.00), January 2013 ($1,290.00), July 2013 ($1,290.00), January 2014 ($1,350.00), and July 2014 ($1,350.00); the total of the unpaid assessments was $10,320.00. It was not until August 20, 2014, that the ETPOA notified Ms. Conto-gouris by letter of the delinquent assessments. In addition to demanding payment of delinquent assessments, ETPOA demanded attorney’s fees at the rate of thirty-five percent (35%), late fees at the rate of ten percent (10%), and interest at the rate of twelve percent (12%). In this letter, ETPOA’s attorney stated the following:

“[federal law gives you [thirty] 30 days after you receive this letter to dispute the validity of this debt or any part of it.... If you request proof of the debt within the thirty (30) day period that begins with your receipt of this letter, the law requires me to suspend my efforts through litigation or otherwise to collect the debt until I mail the requested information to you.”

In an undated letter to ETPOA’s counsel, Mr. Contogouris challenged the debt and requested the opportunity to retrieve his bank records. Although the timeliness of Mr. Contogouris’ letter to plaintiffs counsel was disputed, an email from ET-POA dated September 10, 2014, makes reference to a letter from Mr. Contogour-is. However, ETPOA’s counsel wrote to Mr. Contogouris on September 1 s24, 2014, and stated that he had not received Mr. Contogouris’ letter until September 22, 2014. On September 23, 2014, ETPOA filed the petition that gave rise to the underlying matter from which this appeal lies.

In its judgment and incorporated reasons for judgment, the trial court awarded ETPOA late fees in the amount of five hundred dollars ($500), interest in the amount of eight hundred dollars .($800), attorney’s fees in the amount of four thousand sixty-seven dollars ($4,067), and court costs and judicial interest. In reaching this judgment, the trial court found “that defendant’s practices are inconsistent, deficient, and' inaccurate.” The trial court also “took note of the length of time the defendant took to collect his bank records, and the years it took the plaintiff to bring forth this action ... as well as the length of time it took for [ETPOA] to deposit various checks that were tendered by the defendant. Hence, a substantial amount of late fees have not been awarded.” The trial court also found that the defendant’s “nonpayment of assessments for over four years” and the “process by which the defendant paid his assessments and kept this accounting” was “negligent” and is “not reasonable or responsible.” “Hence, some interest has been awarded to the plaintiff.” In reaching its decision, the trial court “took note of the conflicting testimony of the employees and bookkeepers of English Turn, and their failure to properly and adequately give timely notice of fees due.” It is from this judgment that ETPOA appeals.

DISCUSSION

|4In its brief, ETPOA designates a number of assignments of error. In summary, ETPOA questions whether the trial court erred in refusing to award the total amount of interest, late fees and attorney’s fees it sought.

Although this matter stems from delinquent property owners’ association assessments, as noted in the trial court’s judgment and incorporated reasons for judgment, the parties reached a consent regarding the unpaid assessments totaling $10,320.00; therefore, the delinquent assessments are not part of this appeal, only the interest, late fees, attorney’s fees and costs associated therewith.

INTEREST AND LATE FEES

Disputes, such as the instant one, are governed by the Louisiana Homeowners Association Act as set forth in La. R.S. 9:1141.1, et. seq. Specifically, La. R.S. 9:1141.8 sets forth that “community documents of residential planned communities shall have the force of law between the homeowners association and the individual lot owners and as between individual lot owners. The remedies for breach of any obligation imposed on lot owners or the association shall include damages, injunctions, or such other remedies as are provided by law.”

In the instant matter, the community document pertinent to this appeal that was introduced into evidence during the trial of this matter is the Declaration of Covenants, Conditions and Restrictions (the “covenants”). The covenants provide for semi-annual assessments to be paid by the homeowner to ETPOA.

This Court has previously interpreted the ETPOA covenants in accordance with this State’s jurisprudence regarding the interpretation of contracts. See English Turn Prop. Owner’s Ass’n, Inc. v. Short, 2016-0460, p. 8 (La. App. 4 Cir. 11/30/16, 1), 204 So.3d 672, 679, reh’g denied (Dec. 14, 2016). The interpretation of unambiguous contractual provisions is a matter of law, which this- Court reviews under the de novo standard. Landis Const. Co. v. St. Bernard Parish, 2014-0096, p.5 (La. App. 4 Cir. 10/22/14), 151 So.3d 959, 963. “[T]he determination of whether, a contract is clear or is ambiguous is- also a question of law.” Id. “Errors of law are reviewed de novo by the appellate courts.” Norfleet v. Lifeguard Transp. Serv., Inc., 2005-0501, p. 5 (La. App. 4 Cir. 5/17/06), 934 So.2d 846, 852.

In the instant matter, we find that the trial court committed legal error in awarding conventional interest to the ET-POA. Section 9.08 of the covenants, which provides for conventional interest relative to unpaid assessments of an owner, reads as follows:

9.08 Effect of Nonpayment; Remedies of the Association. Any assessments of an owner.. .which are not paid when due shall be delinquent. Any assessment delinquent for a period of more than ten (10) days after the date when due shall incur a late charge in an amount as may be determined by the Board from time to time and shall also commence to accrue simple interest at the maximum rate , of eighteen (18%) percent per annum, but in no event to exceed the maximum rate authorized by Louisiana law.

ETPOA introduced into evidence at trial the Minutes of the Board of Directors Meeting of the English Turn Property Owners’ Association, dated December 11, 2002. -These minutes contained a resolution, which provided the following (“the 2002 Resolution”):

IfiAll accounts not paid by the end of the first month are considered delinquent and a Fast Due Notice with a copy of the account will be mailed to the property owner. All delinquent accounts will be assessed a (10%) late fee for the current period and each previous past delinquent assessment, and will commence to accrue simple interest at the rate of eighteen (18%) per annum.
(Footnote added).

ETPOA argues that it should be awarded $4,977.75 in conventional interest, which is twelve percent (12%) on each semi-annual assessment from the due date until June 16, 2016, when the defendant’s check was honored by her bank. Twelve percent is the maximum conventional interest rate provided under La. R.S. 9:3503.

In English Turn Prop. Owner’s Ass’n, Inc. v. Short, this Court-interpreted Section 9.08 .of the covenants, finding that ETPOA was entitled to judicial interest, not conventional interest, because the interest rate was not “fixed in writing.” Short, 2016-0460 at pp. 13-15, (La. App. 4 Cir. 11/30/16), 204 So.3d 672, 681-82. This Court stated the following:

... Rather than setting forth a definite rate of interest, Section 9.08 sets forth a range for the interest,rate.“as may be determined by the Board from time to time” which can be at any amount, so long as it is no more than “eighteen (18%) percent per annum” and so long as it does not “exceed the maximum rate authorized by Louisiana law.” Under these terms, the Board could arbitrarily choose any rate between zero (0) percent and twelve (12) percent, the maximum rate for conventional interest, [footnote omitted] Had the covenants specifically provided that the ETPOA could charge interest on unpaid assessments in the amount of twelve percent (12%), as the ETPOA seeks to do in this matter, there would be no issue, as that is the .maximum amount permitted by law; and the parties would be bound by that term. ....
|7The covenants, though, do not comply with La. R.S. 9:3500 C(1), which provides that conventional interest “must be fixed in writing; testimonial proof of it is not admitted in any case,” We believe the term “fixed in writing” indicates that the interest rate set forth in a contract must be “fixed.” That is, it must, be certain so that the parties are mutually clear as to the amount of interest being charged. See, e.g., Gold, Weems, Bruser, Sues & Rundell v. Granger, 06-859 (La. App. 3 Cir. 12/29/06), 947 So.2d 835, 843 (“[i]t is allowable under Louisiana law for an attorney to charge a client interest on sums overdue as long as that interest rate is spelled out in a contractual agreement”).
The covenants in this matter do not explicitly set forth the interest rate and are, thus, not “fixed in writing.” Moreover, under the Louisiana Homeowners Association Act, La. R.S. 9:1141.1, et. seq. (“the Act”):
Upon the filing of a sworn detailed statement in accordance with this Part, an association of owners of lots in a residential or commercial subdivision shall have a privilege upon the lot and improvements thereon of an.owner in the subdivision who fails to .pay charges, expenses or dues imposed upon such lot and improvements thereon in accordance with recorded restrictions, servitudes, or obligations affecting such subdivision. The privilege shall secure unpaid charges, expenses or dues imposed by the association of owners, together with legal interest from the date due and reasonable attorney’s fees.
La. R.S. 9:1145. (Emphasis added). It is clear that the privilege afforded under the Act includes legal interest.
Based on the provisions of this statute and the ambiguity in ’ the covenants’ terms concerning interest, we find that thp ETPOA is entitled only to’ legal interest. We, therefore, find no error in the trial court’s award of judicial interest. However, the judgment, states that judicial interest is. owed “from the Date of -Judicial Demand.” La. R.S. 9:1145 provides that judicial interest is- owed from the date that the unpaid dues (assessments)' are owed. We therefore amend the judgment to reflect that judicial interest is owed from the date that the assessments became due.

Id.

^Notwithstanding the standard, set forth by this Court in Short, ETPOA argues that the instant matter differs from Short in a significant way. In Short, the 2002 resolution was never admitted into evidence. Id, at pp. 16-17, 204 So.3d at 683. The ETPOA would like this Court to believe that the 2002 resolution is equivalent to the term of “fixed in writing,” as contemplated by the instructive Louisiana Revised Statutes. However, that argument fails for two reasons: first, there was no evidence introduced that the 2002 Resolution was ever made part of the covenants or transmitted to the homeowners as an amendment and integral part of the covenants; furthermore, even if there was evidence showing that it was made part of the covenants, the interest rate contained in the resolution runs afoul of La. R.S. 9:3503, which provides for a maximum conventional interest rate of 12%, Moreover, La. R.S. 9:3501 provides that “[a]ny contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.” [Emphasis added].

Based on the aforementioned, the covenants between the ETPOA and the homeowner are considered a contract.. Further, pursuant to applicable statutory law, since there was no evidence showing that the 2002 resolution was made a part of the covenants, the ETPOA is disallowed from collecting any conventional interest for the reasons assigned by this Court in Short, to wit, the interest rate was never fixed in writing. Thus, analogous to the decision reached in Short, we find that while the ETPOA is not allowed to collect any conventional interest, we do hold |flthat an award of judicial interest is warranted. We find that the trial court committed legal error in awarding any amount of conventional interest to the ETPOA, as opposed to judicial interest from the date the unpaid assessments were due, and reverse that portion of the judgment accordingly, and remand for further proceedings.

Next, we turn to the issue of late fees. Section 9.08 of the covenants provides that “[a]ny assessment delinquent for a period of more than ten (10) days after the date when due shall incur a late charge in an amount as may'be determined by the Board from time to time....” The 2002 resolution provides that “[a]ll delinquent accounts will be assessed a (10%) late fee for the current period and each previous past delinquent assessment....” ETPOA argues that under the 2002 resolution, ET-POA should be awarded $1,032.00 in late fees, which is ten percent (10%) of the outstanding assessments of $10,320.00. We disagree.

“Contracts have the effect of law between the parties, and the courts are bound to interpret them according to the common intent of the parties.” 6126, L.L.C. v. Strauss, 2013-0853, p. 12 (La. App. 4 Cir. 12/4/13), 131 So.3d 92, 100-01 (citing La. C.C. arts. 1983 and 2045). See also La. R.S. 9:1141.8 (“community documents of residential planned communities shall have the force of law between the homeowners association and the individual lot owners. ..”). ‘When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide.” 6126, L.L.C., 2013-0853 at p. 13, 131 So.3d at 1001.

|tp |tpThe 10% late fee was set forth in the 2002 Resolution. However, there was no evidence introduced at trial that the 2002 Resolution was ever made part of the covenants or' transmitted to thé homeowners as an amendment and integral part of the covenants. Notice of modification of a contract that is reasonable in time and form is a basic right of any party. Harp v. Autrey, 47,749 (La. App. 2 Cir. 8/21/13, 10), 121 So.3d 1260, 1267(citing Stegall v. Orr Motors of Little Rock Inc., 48,241 (La. App. 2 Cir. 6/26/13), 121 So.3d 684, 688. Without the 2002 Resolution, Section 9.08 of the covenants is vague and does not contain a definitive method by which late charges are to be determined. See e.g., Short, 2016-0460 at p.17, 204 So.3d at 683. Thus, we find that the ETPOA is not entitled to any late fees and the trial court committed legal error when it awarded late fees to the ETPOA. Accordingly, we reverse and set aside that portion of the judgment.

ATTORNEY’S FEES

Regarding attorney’s fees, the trial court awarded $4,067.00, which is thirty-five percent (35%) of the total three items: $10,320.00 in assessments, $500.00 in late fees, and $800.00 in conventional interest. While not expressly stating the basis of its attorney’s fee award, it is clear that the trial court relied on the contract between ETPOA and counsel for ETPOA, which provides for attorney’s fees of “thirty-five (35%) percent of all funds received, including principal, late charges, interest, and costs,”

This Court has “noted that ‘[a] court may consider a contingency fee contract when awarding attorney’s fees, but the court is not bound by the contract’s |terms.’ ” Short, 2016-0460 at p. 18, 204 So.3d at 684 (quoting Norfleet, 2005-0501 at pp. 18-19, 934 So.2d at 859).

“The trial court is vested with great discretion in arriving at an award of attorney’s fees, the exercise of which will not be reversed on appeal absent a showing of clear abuse of that discretion.” Discover Bank v. Rusher, 2010-0850, p. 3 (La. App. 4 Cir. 12/8/10), 53 So.3d 651, 653. Because we find that the trial court erred as a matter of law in its awards of late fees and conventional interest, it stands to reason that the trial court abused its discretion in calculating attorney’s fees based on the other erroneous awards. Furthermore, it should be noted that the contract between ETPOA and counsel for ETPOA provides for costs to be included in the calculation of attorney’s fees. The lower court awarded court costs to ETPOA but did not set forth the amount of those court costs in the judgment. Therefore, it is impossible to determine the exact calculable award of attorney’s fees without knowing the exact amount of costs to be awarded. Thus, we vacáte the award of attorney’s fees and remand this matter to the lower court for a determination of court costs and attorney’s fees.

DECREE

| igFor the foregoing reasons, we reverse and set aside the trial court’s award of conventional interest and • award judicial interest from the date due to the ETPOA; we reverse the trial court’s award of late fees; and we vacate the trial court’s judgment awarding attorney’s fees, and remand this matter for further proceedings not inconsistent with this opinion to determine the total amount of interest owed, court costs incurred, and an appropriate attorney’s fee award.

REVERSED, in part, VACATED, in part and REMANDED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

JENKINS, J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J.,

DISSENTS AND ASSIGNS REASONS.

hi respectfully dissent. I disagree with the majority’s reversal of all late fees and conventional interest. I would amend the lower court’s judgment to reflect an award of $1,032.00 in late fees and $4,977.75 in conventional interest and affirm as amended. I would also vacate the lower court’s ruling on attorney’s fees and remand for a determination of court costs and attorney’s fees consistent with my dissent.

This appeal arises from a homeowners’ association assessment dispute between ETPOA and Contogouris, which is governed by the Louisiana Homeowners Association Act as set forth in La. R.S. 9:1141.1, et seq. Louisiana Revised Statute 9:1141.8 provides that “community documents of residential planned communities shall have the force of law between the homeowners association and the individual lot owners and as between individual lot owners. The remedies for breach of any obligation imposed on lot owners or the association shall include damages, injunctions, or such other remedies as are provided by law.” The community documents relevant to this appeal are the Declaration of Covenants, Conditions and Restrictions (the “covenants”). The covenants provide for semiannual assessments to be paid by the homeowner (here, Contogouris) to ET-POA.

| gCommunity documents, such as the ETPOA covenants, are subject to the rules of the civil code and principles of contract interpretation contained therein. Fairway Estates Homeowners Ass’n, Inc. v. Jordan, 2008-0949, p. 10 (La. App. 4 Cir. 5/20/09), 15 So.3d 1011, 1017 (citing Williams v. Southern Trace Property Owners Ass’n, Inc., 43,186, p. 3 (La. App. 2 Cir. 4/23/08), 981 So.2d 196, 198). “Contracts have the effect of law between the parties, and the courts are bound to interpret them according to the common intent of the parties.” 6126, L.L.C. v. Strauss, 2013-0853, p. 12 (La. App. 4 Cir. 12/4/13), 131 So.3d 92, 100-01 (citing La. C.C. arts. 1983 and 2045). “When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide.” 6126, L.L.C., 2013-0853 at p. 13,131 So.3d at 1001.

Turning first to the award of late fees, ETPOA argues on appeal that it should be awarded $1,032.00 in late fees, which is ten percent (10%) of the outstanding assessments of $10,320.00. I agree. For the reasons explained below, I dissent from the majority’s reversal of all late fees. I find that the lower court properly concluded that ETPOA was entitled to a late fee; however, the lower court erred in awarding a reduced amount of late fees.

Section 9.08 of the ETPOA covenants provides for late fees and conventional interest relative to unpaid assessments, as follows:

9.08 Effect of Nonpayment; Remedies of the Association.- Any assessments of an owner.., which.are not paid when due shall be delinquent. Any assessment delinquent for a period of more than ten (10) days after, the date when due shall incur a late charge in an amount as may be determined by the Board from time to time and shall also commence to accrue simple interest at the maximum rate of eighteen (18%) percent per an-num, but in no event to exceed the maximum rate authorized by Louisiana law:

ETPOA introduced into evidence at trial Minutes of the Board of Directors Meeting of the English Turn Property Owners’ Association, ’ dated December 11, 2002. These minutes contained a resolution (the “2002 resolution”) providing as follows:

All accounts not paid by the end of the first month are considered delinquent and a Past Due Notice with a copy of the account will be mailed to- the property owner. All delinquent accounts will be assessed' a (10%) late fee for the current period and each previous past delinquent assessment, and will commence to accrue simple interest at the rate of eighteen (18%) per annum.

I find that the 10% late fee was set forth in. clear, unambiguous language and is. enforceable as written. Section 9.08 of the covenants explicitly provided the ETPOA Board with the authority to determine the amount of a late fee “from time to time.” Under La. C.C. art. 1971, “[p]arties are free to contract for any object that is lawful, possible, and determined or determinable.” “If the determination of the quantity of the object has been left to the discretion of a third person, the quantity of an object is determinable.” La. C.C. art. 1974. ETPOA and Contogouris contracted that the amount of the late fee may be determined by the ETPOA Board, as permitted by La. C.C. art. 1974.

. The majority acknowledges that the 10% late fee was set forth in the 2002 resolution, but finds that ETPOA is nevertheless not entitled to late fees. The majority cites to English Turn Prop. Owner’s Ass’n, Inc. v. Short, 2016-0460, p. 16 (La. App. 4 Cir. 11/30/16), 204 So.3d 672, 683, reh’g denied (12/14/16) for the proposition that “[without the 2002 Resolution, Section 9.08 of the covenants is vague and does not contain a definitive method by which late charges are to be detennined.” The majority also protests that “there was.no evidence that the 2002 Resolution was ever made part of the covenants or transmitted to the homeowners as an amendment and integral part of the covenants.,.” I disagree with these findings.

This case is distinguishable from Short on the issue of late fees because, in Short, the 2002 resolution was not offered into evidence at trial. 2016-0460 at p. 16, 204 So.3d at 683. In the matter currently on appeal, however, it is clear from the record that the 2002 resolution was introduced as an exhibit at trial. The 2002 resolution is evidence that the ETPOA Board determined the amount of the late fee at its December 11, 2002 meeting. The majority fails to explain with law or record evidence how the 2002 resolution could have been “made part of the covenants” or what ET-POA failed to do in this respect.

The majority cites to no law and I find none that prohibits a late fee that may be re-determined periodically by a governing board of homeowners in the. manner, done in this case. Rather, this Court has permitted imposition of a late fee in similar circumstances. In Eastover Prop. Owner’s Ass’n, Inc. v. Cochrane, 2002-1502, pp. 5-6 (La. App. 4 Cir. 5/21/03), 848 So.2d 710, 713, this. Court upheld a late fee not specified in the community documents where those community documents gave the board the “authority to do any other things that, in their opinion, will promote the common benefit and enjoyment of the residents of the subdivision” finding that the late fee was “necessitated because a short fall in the collection of the quarterly assessments would directly impact all of the property owners in the subdivision because services would have to be reduced or eliminated.”

The majority cites to Harp v. Autrey, 47,749 (La. App. 2 Cir. 8/21/13), 121 So.3d 1260 for the proposition that a party has a right to reasonable notice of modification of a contract. Harp is distinguishable, as that casé involved termination of a contract without notice. A lot owner of a mobile home community sent a letter to residents in which the owner assumed a duty to provide water 'and sewer services, and then severed those services without notifying the residents. Id., 47,749 at p. 11, 121 So.3d at 1267. Here, no contract was terminated or modified; the ETPOA Board determined the amount of the late fee in accordance with the authority provided to the Board by the ETPOA covenants.

| ^Moreover, whether the homeowners had notice of the 2002 resolution was not an issue litigated at trial, and this Court lacks authority to review facts that were never before the lower court. The lower court awarded late fees, albeit at a reduced rate, such that it is evident that the lower court found late fees proper under the covenants. The parties did not introduce evidence regarding notice or lack of notice of thé 2002 resolution, and no such evidence forms a part of the record on appeal. “A court of appeal is a court of review. It is limited' in its review to the evidence submitted and entered into the record at the trial court level.” Lorbeck v. Lorbeck, 99-1257, p. 5 (La. App. 4 Cir. 5/23/01), 789 So.2d 656, 659 (citing Uniform Rules, Courts of Appeal, Rule 1-3). As the parties did not submit evidence of notice to thhomeowners at trial, this issue is beyond the scope of this Court’s appellate review.

• I find merit to ETPOA’s assignment of error as to late fees. I find that the lower court erred as a matter of law in awarding a reduced amount of $500.00 in late fees, based on its finding that ETPOA’s bookkeeping practices were substandard and the length of time it took ETPOA to bring its suit to collect the unpaid assessments and deposit certain checks tendered by Contogouris. I find no law that supports the method of reducing late fees set forth in the lower court’s judgment. - -

Contogouris suggests that La. C.C. art! 2003 operates to reduce late fees due to ETPOA’s negligence,, arguing that this article supports the lower court’s decision to award late fees at. a reduced rate." La. C.C. art. 2003 provides as follows:

An obligee may not recover damages when his own bad faith has caused the obligor’s failure , to perform pr when, at the time of the contract, he has concealed from the obligor facts that he knew or should have known would cause a failure. ■
■If the obligee’s negligence contributes to the obligor’s failure to perform, the damages are reduced in proportion to that negligence.

|RI find that La. C.C. art. 2003 does not apply to the facts of this case. Under Contogouris’ argument, failure to perform is failure'to pay semiannual homeowners’ assessments timely. The record evidence does not show that the' obligee, ETPOA; caused the obligor,' Contogouris, to fail to pay semiannual assessments timely or that ETPOA concealed facts that ETPOA knew or should have known would cause Conto-gouris to fail to pay her semiannual assessments timely. There is no evidence that any purportedly negligent collection efforts by ETPOA, which took place years after outstanding assessments were due, contributed to those assessments not being paid in the first place. ETPOA’s after-the-fact collection efforts are irrelevant to Contogouris’ ability' to pay assessments when they became due under the ETPOA covenants.

. Louisiana Civil Code article 2003 should not operate to reduce late fees otherwise due under contract in the case before this Court, especially where Contogouris paid the underlying assessments on the last day of trial, without objection.' The lower court erred as a matter of. law in reducing the late fee award based on the court’s perception that collection practices took too long.

.1 would therefore amend the portion of the lower court’s judgment regarding late fees to reflect an award of $1,032.00 in late fees to ETPOA and affirm as amended.

Addressing .the issue of conventional interest, I agree with ETPOA’s argument that it should be awarded $4,977.75 in conventional interest, which is twelve percent (12%) of the $10,320.00 homeowners’ associate -assessment in' dispute. Twelve percent is the maximum conventional interest rate provided under La. R.S. 9:3500(C)(1) at all pertinent times. I find that the lower court correctly concluded that ETPOA was entitled to conventional interest pursuant to the ETPOA covenants. Nevertheless, for the reasons discussed above regarding late 17fees, I find that the lower court erred as a matter of law in awarding a reduced amount of $800.00 in conventional interest. I do not find that La. C.C. art. 2003 applies or provides a basis to reduce conventional interest under the facts on appeal.

Section 9.08 of the covenants provides a maximum cap on the conventional interest rate, that “[a]ny assessment delinquent for a period of more than ten (10) days after the date when due shall ... commence to accrue simple interest at the maximum rate of eighteen (18%) percent per annum, but in no event to exceed .the maximum rate authorized by Louisiana law.” Stated another way, Section 9.08 fixes the conventional interest rate at the lesser, of 18% or the maximum interest rate permitted by Louisiana law.

I disagree with the majority’s reversal of the.entire conventional interest award. The majority takes issue with the 2002 resolution, in which the ETPOA Board adopted an 18% conventional interest rate on delinquent assessments. The majority finds (1) that there was no evidence that the 2002 resolution was “made a part of the covenants or transmitted to the homeowners”; (2) that the conventional interest rate was not fixed in writing as described in Short, 2016-0460 at p. 14, 204 So.3d at 682; and (3) that the 18% interest rate exceeded the statutory maximum conventional interest rate of twelve percent (12%).

As. discussed above, the issue of notice to the homeowners of the 2002 resolution was not litigated at trial and is beyond the scope of this Court’s appellate review, as no evidence was introduced into the record on this issue. See Lorbeck, 99-1257 at p. 5, 789 So.2d at 659; Uniform Rules, Courts of Appeal, Rule 1-3.

The majority also does not explain with any law or record evidence how the 2002 resolution could have been “made a part of the covenants” or what ETPOA failed to do to accomplish those ends. I find, however, that the 2002 resolution does not govern the conventional interest rate. The ETPOA covenants do not give |Rthe ET-POA Board the authority to change the interest rate by enacting a resolution. In fact, ETPOA never tried to enforce the 18% interest rate in the 2002 resolution with respect to Contogouris and charged a 12% interest rate pursuant to the covenants.

Under Section 9.08 of the covenants, the Board may determine the amount of a “late charge” “from time to time” but- the covenants do not state that the Board can change the interest rate. I disagree with Short and the majority’s interpretation of Short to the extent that Section 9.08 is misquoted and the opinion concludes that Section 9.08 provides a “range for the interest rate.” 2016-0460 at p. 13, 204 So.3d at 681.

Instead, Section 9.08 of the covenants unambiguously provides a cap on the conventional interest rate, the lesser of 18% or the maximum rate allowed by Louisiana law. Louisiana Revised Statute 9:3500(0(1) requires that the conventional interest rate must be “fixed in writing.” I find this requirement was satisfied.

In addition, I do not find that conventional interest was forfeited under La. R.S. 9:3501 because there is no evidence that ETPOA collected or attempted to collect usurious conventional interest in excess of the maximum rate of 12%. Rather, the trial record is clear and none of the litigants disputed that ETPOA only sought to collect 12% conventional interest and did not actually collect conventional interest in excess of 12%. The Louisiana Supreme Court has found that, where a note contained an interest rate in excess of the statutory maximum, but the note holder did not collect or intend to collect the interest over the maximum rate, the interest collected should not be forfeited. See Huddleston v. Bossier Bank & Tr. Co., 475 So.2d 1082, 1084-85 (La. 1985). Here, the conventional interest rate is further limited because Section 9.08 provides that such interest rate is “in no event to exceed the maximum rate authorized by Louisiana law.” I do not find that La. R.S. 9:3501 applies to the facts of this case.

Thus, I would amend -the lower court’s judgment to reflect an award of $4,977.75 in conventional interest and affirm as amended.

For the reasons stated herein, I would also vacate the lower court’s ruling on attorney’s fees and remand for a determination of court costs and attorney’s fees consistent with my dissent..

JENKINS, J.,

DISSENTS AND ASSIGNS REASONS

^Because the decretal language in the trial court’s money judgment does not give the name of the party in whose favor the judgment is rendered, and the name of the party cast in judgment, I would find that this court lacks appellate jurisdiction to review this judgment.

Before considering the merits of any appeal, appellate courts have the duty to determine, sua sponte, whether subject matter jurisdiction exists, even when the parties do not raise the issue. Urquhart v. Spencer, 15-1354, p. 3 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077. This court cannot determine the merits of this appeal unless its jurisdiction is invoked by a valid final judgment. Id. For a judgment to be a “valid final judgment,” it must contain specific decretal language. Id. “Decretal language is defined as the portion of a court’s judgment or order that officially states (‘decrees’) what the court is ordering and generally starts with the formula, ‘It is hereby ordered, adjudged, and decreed that Freeman v. Phillips 66 Co., 16-0247, p. 2 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 440. “The decree alone indicates the decision.” Jones v. Govt. Employees Ins. Co., 16-1168, p. 2 (La. App. 4 Cir. 6/14/17), 220 So.3d 915, 919 (emphasis added).

A valid judgment must be precise, definite, and certain. Urquhart, 15-1354, p. 3, 204 So.3d at 1077. The quality of definiteness is essential to a proper | ¿judgment. Id. The result decreed, therefore, must be spelled out in lucid, unmistakable language. Id.

Importantly for this case, the decree must name the party in favor of whom the ruling is ordered, and the party against whom the ruling is ordered, and the relief that is granted or denied. Id, These requirements must be evident without reference to an extrinsic source such as pleadings or reasons for judgment. Thompson v. Beagle, 17-0207, p. 4 (La. App. 4 Cir. 8/16/17), 226 So.3d 518, 521-22, 2017 WL 3499011, *2.

Here, the decree in the judgment states as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED: The Court hereby awards the following late fees in the amount of FIVE HUNDRED DOLLARS ($500.00); interest in the amount of EIGHT HUNDRED DOLLARS ($800.00); attorney fees in the amount of FOUR THOUSAND SIXTY-SEVEN DOLLARS ($4,067.00); and court costs and judicial interest.

This decretal language does not give the name of the party awarded these sums, and does not give the name of the party cast in judgment. The result decreed, therefore, is not spelled out in precise, definite, certain, and unmistakable language. In the absence of this requisite decretal language, I find that the judgment is not final and appealable.

The absence of decretal language also creates practical difficulties related to the execption of the judgment. In enforcing an imprecise judgment such as this, a sheriff who is directed to seize the- defendant’s property “would have to act as a judge” .to determine whether that person, was the party cast in judgment. See Borg-Warner Acceptance Corp. Through Borg-Warner Leasing v. Whitlow Truck Ctr., Inc., 508 So.2d 857, 859 (La. App. 5th Cir. 1987). And with such a deficient judgment, a trial court might later set aside and revoke a writ of fieri facias or garnishment order on the grounds that, in the absence of the necessary decretal language, the judgment being enforced was not a valid final judgment. See Morris, Lee and Bayle, LLC v. Macquet, 14-1080, pp. 12-13 (La. App. 4 Cir. 3/23/16), 192 So.3d 198, 207-08 (concluding that because the judgment “does not state that it is rendered in favor of Plaintiff against Defendant,” it is “riot a final, enforceable money judgment,” arid “the writ of fifa and the order for garnishment were improperly sought, issued, and executed”).

Because the judgment lacks the necessary decretal language, I would find that this court lacks appellate jurisdiction to consider the merits of this appeal.

      . On April 16, 2002, husband and wife, Spyro and Marilyn Contogouris, acquired this properly. In 2009, Spyro and Marilyn Contogouris divorced, but continue to live together in the home. Mr, Contogouris donated his orie-half interest in the property to Mrs. .Contogouris. By their agreement, Mr. Contogouris remains financially responsible for the English, Turn Property Owners Association assessments.

      .In his letter, Mr. Contogouris, states, in pertinent part, that he "feels certain that the demand for earlier payments must be in error as I recall paying my POA dues. Accordingly, I’ll order my check copies from the bank today and retrieve all the payments I have made and [forward] them to you upon receipt, along with any difference.”

      . Additionally, a copy of Mr. Contogouris’ letter is contained in the record and is marked "POA Received 9/9/14.”

      . While it is obvious that the trial court is referring to ETPOA, the trial court inadvertently labels ETPOA as "the defendant” rather than as the plaintiff.

      . In Section 9.08 of the covenants, the term "delinquent'’ describes assessments not paid within ten (10) days of becoming due. The 2002 resolution describes accounts not paid by the end of the first month as “delinquent.” Any distinction between these documents as to when assessments become "delinquent,” however, has no bearing on the disputed issues in the case sub judice.

      . This case differs from Short in that no party in Short introduced the 2002 resolution into evidence. See Id., 2016-0460 at pp. 16-17, 204 So.3d at 683, To the extent the 18% interest rate set forth in the 2002 resolution could be considered "fixed in writing,’’ this interest rate runs afoul of La. R.S. 9:3503, which provides a maximum conventional rate of 12%. La. R.S. 9:3501 provides that [a]ny contract for payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.

      . "[T]his Court noted that certain factors are to be considered in determining the reasonableness of an award of attorney's fees, including:
      1) the ultimate result obtained; 2) the responsibility incurred; 3) the importance of the litigation; 4) the amount of money involved; 5) the extent and character of the work performed; 6) the legal knowledge, attainment, and skill of the attorneys; 7) the number of appearances made; 8) the intricacies of the facts involved; 9) the diligence and skill of counsel; and 10) the court’s own knowledge.”

        Id. (citations omitted).

      . Although I would not find this sufficient, the decree does not even refer to the parties in their procedural capacities, such as "defendant” or "plaintiff.” See English Turn Prop. Owners Ass'n v. Taranto, 16-0319, p. 2 (La. App. 4 Cir. 4/19/17), 219 So.3d 381, 395 (Jenkins, J., dissenting).

      . 1 also note that the trial court’s incorporated reasons for judgment refers to the "bookkeeping and records” maintained by ETPOA, and then concludes that "the defendant’s practices are inconsistent, deficient, and inaccurate.” This confusing language adds further uncertainty to what I find to be an imprecise, indefinite, and uncertain judgment.


source: Caselaw Access Project

author: ISHEE, P.J.,

license: Public Domain

text:
    Lee MANFREDI, JKS Construction, Inc., AMS Staff Leasing and Dallas National Insurance Company, Appellants v. HARRELL CONTRACTING GROUP, LLC, Zurich American Insurance Company, Antonio Mondragon, The Charter Oak Fire Insurance Company and Travelers Insurance Company, Appellees
    NO. 2015-WC-00522-COA
    Court of Appeals of Mississippi.
    11/29/2016
    Rehearing Denied April 25, 2017

      ATTORNEYS FOR APPELLANTS: ROBERT A. BIGGS III, RONALD L. ROBERTS, ROGEN K. CHHABRA, LYNN PATTON THOMPSON, WILLIAM G. ARMISTEAD
    ATTORNEYS FOR APPELLEES: LUTHER T. MUNFORD, KAYTIE MICHELLE PICKETT, KEITH R. RAULSTON, BRYAN GRAY BRIDGES, KAREN KORFF SAWYER, MATTHEW JASON SUMRALL, JULIAN DENNARD MILLER
    BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
   ISHEE, P.J.,

FOR THE COURT:

¶ 1. In March 2012, Lee Manfredi suffered severe injuries after falling from three-story scaffolding while working on the construction of “Arbor Hall,” located on the campus of Mississippi State University. A dispute arose as to the identity of Manfredi’s “employer” as defined under the Mississippi Workers’ Compensation Act. Manfredi filed a petition to controvert in May 2012 with the Mississippi Workers’ Compensation Commission. Manfredi named as “employers” Harrell Contracting Group LLC (and its carrier, Zurich American Insurance Company), Antonio Mondra-gon (and his carrier, The Charter Oak Fire Insurance Company), and JKS Construction Inc. AMS Staff Leasing (and its carrier, Dallas National Insurance Co.) was added by Manfredi in an amended petition to controvert. All named “employers” denied being the actual employer of Manfredi at the time of his injury. Evidentiary hearings were conducted before an administrative judge (AJ), and in February 2014, the AJ determined that Mondragon was Man-fredi’s actual and responsible employer, and that Mondragon and Charter Oak were responsible for all workers’ compensation and indemnity benefits from and after the date of Manfredi’s injuries. Mon-dragon and Charter Oak were then granted a review of the AJ’s order by the Commission, which reversed the AJ’s decision in March 2015, finding JKS to be Manfredi’s employer by virtue of its relationship with AMS and Dallas National. JKS now appeals. Finding clear error, we reverse and render.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In or around September 2011, Harrell was awarded a contract for the construction of a dormitory known as Arbor Hall at Mississippi State University. Harrell entered into a contract with JKS, a wood-framing contractor, to perform a portion of the work on Arbor Hall. JKS then contacted Mondragon to perform a subcontracting portion of the project’s work. JKS had also entered into an agreement entitled “Staff Leasing Agreement” on April 28, 2006, with AMS, which was in effect at the time of Manfredi’s accident. On March 3, 2012, Manfredi suffered an accidental injury arising out of and in the course of his work on the Arbor Hall project after falling from three-story scaffolding. Manfredi’s injuries resulted in him being temporarily totally disabled from the date of his accident to present day. None of the parties involved claimed to be Man-fredi’s “employer” for purposes of workers’ compensation liability and coverage.

¶ 3. Prior to Manfredi’s work on Arbor Hall, Manfredi performed work with Mon-dragon on a subcontract Mondragon entered into with JKS for a project in Cool Springs, Tennessee. During this project, JKS directly paid Mondragon for his work, who in turn' paid' Manfredi; it is undisputed that Manfredi was an employee of Mondragon and covered by Mondra-gon’s insurance- for the Tennessee project. Shortly after being awarded the Arbor Hall subcontract, Mondragon contacted Manfredi requesting Manfredi’s presence for the work to be performed in Starkville, Mississippi. Both Mondragon and Man-fredi traveled to Starkville, albeit in separate vehicles. Mondragon was to perform two separate phases of work: (1) “pop out” (or “layout”) work for wall installation; and (2) roof installation, when the project progressed to that point. Mondra-gon and JKS entered into a contract labeled as “Independent Contractor Agreement,” which held Mondragon responsible for his own employees, including providing workers’ compensation coverage. The record reflects that Mondragon provided workers’ compensation coverage for the entire duration of the Arbor Hall project. Shortly after securing the subcontract with JKS, however, Mondragon left Stark-ville, while Manfredi remained.

¶ 4. JKS had previously entered into an agreement with AMS, in which AMS would provide administrative aid in the processing of payroll, taxes, unemployment, and workers’ compensation benefits for any leased employees. AMS was not, however, involved in the operational aspects of. JKS’s leased employees, rendering JKS responsible for its employees’ daily activities, and safety, as well as their selection and wages. Importantly, under the agreement entered into by JKS, any individual JKS would like to lease had to complete an AMS application, which would then be submitted to AMS. Once the employee was a leased employee with AMS, then AMS would process the actual check writing to the employee. AMS’s duties, however, did not cover all of JKS’s employees—rather, only those employees AMS leased to JKS by _ virtue of the AMS lease application. Manfredi was not a leased employee from AMS, and JKS never claimed that Man-fredi was its employee. AMS also testified that Manfredi was considered Mondra-gon’s “agent on site.”

. ¶ 5. As part of. JKS’s orientation, all JKS employees, subcontractors, and subcontractors’ employees were required to complete a safety-training course. JKS maintained that it carried out these courses to comply with Occupational Safety and Health Law (OSHA) mandates. Manfredi completed the training course held for the Arbor Hall project; however, Mondragon was not present and did not participate in the. course. During the safety training, each person was given a hardhat sticker number provided by JKS. The sticker number was used to identify persons on the job site and was also used when JKS issued safety-violation citations during the course of the project, The record shows that Manfredi was issued prior safety citations from JKS for failure to properly secure himself to scaffolding,

(¶ 6. On March 3, 2012, Manfredi was injured after sustaining a three-story fall from scaffolding while performing roof work that was part of Mondragon’s subcontract with JKS. Manfredi suffered lifelong, debilitating brain injuries, and is still unable to communicate. The record reflects that Mondragon stated to his insurance carrier that Manfredi was not his employee despite purportedly admitting the opposite to a JKS project manager. Mondragon then allegedly told JKS that he had not told his insurance carrier that Manfredi was not his employee because it was clear that Manfredi was. JKS’s last list of “men on site” before Manfredi’s accident identifies Manfredi as Mondra-gon’s employee.

¶ 7. Manfredi filed a petition to controvert in May 2012 with the Commission, naming as “employers” Harrell (and its carrier, Zurich), Mondragon (and his carrier, Charter Oak), and JKS, with AMS (and its carrier, Dallas National) added later in an amended petiticm to controvert. All named “employers” denied being the actual employer of Manfredi at the time of his injury. It was subsequently stipulated that Harrell was not Manfredi’s actual employer, but could be held liable as his statutory employer; Harrell denied liability as Man-fredi’s statutory employer by virtue of terms of its subcontract with JKS requiring workers’ compensation coverage for its employees, AMS denied Manfredi was a leased employee through JKS, while Dallas National denied being JKS’s insurer in the event that JKS was determined to be Manfredi’s employer.

¶8. Manfredi filed a motion to compel medical treatment and temporary total disability benefits on June 1, 2012. After a hearing, a June 18, 2012 , order granted in part Manfredi’s motion to provide necessary medical treatment. The order required Manfredi’s medical expenses be páid temporarily in equal shares divided among Mondragon and his carrier, Harrell and its carrier, and JKS/AMS and its carrier, until Manfredi’s actual and responsible employer could be determined. No temporary total disability benefits were awarded. On October 1, 2012, Harrell and its carrier were ordered to temporarily serve as the sole payor of the medical expenses and temporary total disability payments, with all rights to reimbursement reserved until Manfredi’s actual employer was resolved. The order also stated that an evidentiary hearing would be set to determine Manfredi’s actual employer following the conclusion of discovery. On November 5, 2012, Harrell and "Zurich filed a motion to dismiss claiming no liability as both JKS and Mondragon—the only possible employers of Manfredi—were insured and had secured workers’ compensation coverage. The AJ reserved ruling on the motion until the scheduled March'27, 2013 hearing on the merits.

¶ 9. In a February 25, 2013 telephonic conference with the AJ, all parties were instructed to correspond prior to the March 27, 2013 hearing to finalize all exhibits. The AJ also instructed all counsel that it was mandatory for each employer to have at least one representative present to testify and be subject to cross-examination. Counsel for JKS made it known that it intended to call Mondragon as the first witness. Formal notice of this hearing was sent to all parties on February 25, 2013; As scheduled, the March 27, 2013 hearing took place, where all counsel and parties were present, with the exception of Mon-dragon.' Moridragon’s counsel admitted Mondragon was aware his presence was required, but he had indicated he might not appear, yet informed neither the parties nor the AJ of his possible absence.

¶ 10. Due to Mondragon’s absence, neither he nor his counsel was permitted to offer evidence or to directly examine or cross-examine the witnesses at the 'hearing, pursuant to Mississippi Workers’ Compensation ' Commission Procedural Rule 7. Furthermore,- the AJ ruled that Mondragon’s deposition testimony would not be allowed into evidence in lieu of live testimony and cross-examination.. The result of this ruling was that Mondragon, Charter Oak, and their counsel were precluded from participating in the hearing. The AJ offered Mondragon and Charter Oak the opportunity to proffer evidence, which they declined to do. Following the •hearing on the merits, Mondragon and Charter Oak filed a motion for a mistrial or reconsideration. On May 10, 2013, the AJ denied the motion. Mondragon and Charter Oak filed, a petition for review before the Commission. On December 16, 2013, the Commission unanimously affirmed the AJ’s exclusion of Mondragon and Charter Oak from the hearing, denying their petition; this order was never appealed, resulting in a’final judgment. On February 27, 2014, the AJ ruled on the merits, adducing from the evidence presented at the hearing that Mondragon was Manfredi’s actual and responsible employer.

¶ 11. On March 19, 2014, Mondragon and Charter Oak filed their petition for review to the Commission, alleging that the AJ erred by excluding Mondragon and Charter Oak from the March 2013 hearing and that the record did not support the finding that Mondragon was Manfredi’s employer. On March 4, 2015, the full Commission issued its order. In that order, the Commission reaffirmed its December 16, 2013, findings regarding the AJ’s exclusion of Mondragon and Charter Oak from the hearing. Nonetheless, the Commission permitted into evidence and considered additional exhibits that had previously been stipulated to for the March 2013 hearing when all the parties believed that Mondra-gon would be present and subject to cross-examination; the Commission refused to allow Harrell or JKS to rebut the additional evidence,

¶ 12. Reviewing the evidence presented before the AJ, as well as the additional evidence previously stipulated to, the Commission found that JKS was Manfredi’s actual and responsible employer, thereby reversing the AJ’s order. Finding JKS responsible as Manfredi’s employer, the Commission then found that JKS was insured by virtue of its relationship with AMS/Dallas National. Finding clear error on the part of the Commission, we reverse and render.

STANDARD OF REVIEW

¶ 13. “The ... Commission sits as the ‘ultimate finder of facts’ in deciding compensation cases, and therefore, ‘its findings are subject to normal, deferential standards upon review.’” Pilate v. Int'l Plastics Corp., 727 So.2d 771, 774 (¶ 12) (Miss. Ct. App. 1999) (quoting Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss. 1993)). This Court will only reverse the findings of the Commission if the findings are “clearly erroneous.” J.R. Logging v. Halford, 765 So.2d 580, 583 (¶ 13) (Miss. Ct. App. 2000) (citing Evans v. Cont’l Grain Co., 372 So.2d 265, 269 (Miss. 1979)). A finding is clearly erroneous if, “although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the [Workers’ Compensation] Act.” Id. However, “this Court reviews matters of law de novo, while according the interpretation of the Commission great weight and deference.” Natchez Equip., 623 So.2d at 273 (citation omitted).

DISCUSSION

¶ 14. In workers’ compensation cases, we have held that “[s]o long as there is substantial evidence in the record to support the Commission’s findings, this Court is obligated to affirm the Commission.” Hollingsworth v. I.C. Isaacs & Co., 725 So.2d 251, 254-55 (¶ 11) (Miss. Ct. App. 1998). The issue at hand is whether there is substantial evidence in the record to support a finding that JKS, by virtue of its relationship with AMS/Dallas National, is Manfredi’s actual and responsible employer. We find that such evidence does not exists.

¶ 15. Pertinent to the Commission’s finding that JKS was Manfredi’s actual employer was its application and analysis of the “control” and “nature of the work” tests. The Commission stated that while generally these two tests are used to determine when an individual is an employee or independent contractor, they are equally as applicable in determining which entity is Manfredi’s employer. Both tests were discussed at length in Davis v. The Clarion-Ledger, 938 So.2d 905, 908-09 (¶¶ 6, 8) (Miss. Ct. App. 2006), where this Court reiterated that “the issue of whether an individual is an employee or independent contractor is an issue of law.” Id. at 907-08(¶ 5) (citing Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss. Ct. App. 1998)).

¶ 16. The control test looks to four factors: “(1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.” Id. at 908 (¶ 6) (quoting Shelby, 724 So.2d at 507 (¶ 13)). The nature-of-the-work test considers factors such as:

[T]he character of the claimant’s work or business—how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on—and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.

Id. at 909 (¶ 8) (quoting Boyd v. Crosby Lumber & Mfg. Co., 250 Miss. 433, 166 So.2d 106, 110 (1964)). It is undisputed by the parties that Manfredi is considered an “employee,” as defined under Mississippi Code Annotated section 71-3-3(d) (Rev. 2011); thus, this Court must only determine by, whom Manfredi was actually employed. Reviewing the record before us in light of these two tests, we. find there is substantial evidence in the record supporting that Mondragon .was the actual and responsible employer of Manfredi.

I. Control Test

¶ 17. It is the “ultimate right of control” rather than the “overt exercise of that right” that is decisive under this prong. See Georgia-Pacific Corp. v. Crosby, 393 So.2d 1348, 1349 (Miss. 1981). In its order, the Commission found that JKS was Manfredi’s actual employer for the following reasons:

JKS in almost every aspect of this job had the right to control [Manfredi]. JKS directed [Manfredi] to what portion of the job to work on and provided [Man-fredi] with safety training. JKS provided [Manfredi] with lodging during the job. [Manfredi] was paid by JKS in regular intervals,'at a set amount, rather than by price per square foot amount. Further, JKS not only had the right to control [Manfredi]’s work, but also had the ability to suspend [Manfredi] from the job site for safety violations.

¶ 18. Reviewing the record as a whole, we disagree. The record reveals that Mon-dragon determined which subcontracts to undertake, arranged crews, and instructed those crews where to travel and what work to perform, with Manfredi supervising, managing, and directing those' crews throughout the duration of the subcontracts’ work. JKS did not negotiate subcontracts with Manfredi. Rather, JKS negotiated only with Mondragon on both the Tennessee and Arbor Hall projects. Furthermore, JKS provided the project plans for Arbor Hall to Mondragon, which were later found in Manfredi’s -vehicle. This is likely because Mondragon did not remain in Starkville after negotiating the subcontract with JKS, while Manfredi did, serving as Mondragon’s “agent on site.”

¶ 19. Paramount to our finding that Mondragon is Manfredi’s employer rather than JKS is the undisputed testimony of Jim Fleming, a project manager of JKS. Fleming testified that JKS never told Manfredi how to do any aspect of his job, and that “[Manfredi] knew how to do his job.” Adding to Fleming’s testimony, David Castro’s unchallenged testimony revealed that Manfredi was crucial' to the completion of Mondragon’s subcontracts. Castro was contacted by Mondragon directly, and hired as a crewman for the roof-installation portion of Mondragon’s work. Castro further testified that Mon-dragon put Castro in touch with Manfredi because Manfredi was supervising the Arbor Hall project for Mondragon. Castro also testified it was clear that he worked for Mondragon, and not Manfredi; rather, Manfredi would provide instruction on the work to be completed. Thus, Fleming and Castro’s testimony shows that Mondragon possessed the “ultimate right of control” over Manfredi, not JKS. . i

¶20. Nonetheless, Mondragon‘asserts that JKS may have given direction or instruction as to the details of the work, thereby proving JKS is Manfredi’s employer. We disagree. JKS merely provided project plans that Manfredi utilized in the completion of Mondragon’s “layout” work, We do not find this equates to “control” over Manfredi, In Jones v. James Reeves Construction. Inc., 701 So.2d 774 (Miss. 1997), the Mississippi Supreme Court held;

[T]he mere fact that a servant is sent to do. work pointed out to him by a person . who .has made a bargain with his master does not make him that person’s servant .He does his own business in his own way, and the orders he receives simply point out to him the work which he or his master has undertaken to do

Jones, 701 So.2d at 780 (quoting Standard Oil Co. v. Anderson, 212 U.S. 215, 225-26, 29 S.Ct. 252, 53 L.Ed. 480 (1909)). Thus, any instructions or directions on the part of JKS were.“mere suggestions as to details or the necessary cooperation, where the. work furnished [was] part of a larger undertaking.” Id. at 779, Moreover, JKS had other employees for portions of the work not subcontracted to Mondragon. Therefore, we find JKS was not in control of Manfredi, as there was no master-servant relationship between JKS and Manfredi.

¶21. Looking next to the “method of payment,” we do not find JKS’s direct issuing of payments to Manfredi as conclusive that JKS was Manfredi’s employer-. This is because the record illustrates that JKS did so only at the request of Mondra-gon. Mondragon had left the construction site almost immediately after securing the subcontract with JKS. As such, Fleming testified. Mondragon requested that JKS directly pay Manfredi because Mondragon did not want to drive all the way to Stark-ville to pay Manfredi himself. Fleming’s testimony is further supported by an email from Mondragon requesting the same. JKS paid Manfredi in partial payments, or “progress payments,” based upon the wall pop-put budget agreed to by JKS and Mondragon; they were delivered to Man-fredi only at the request of Mondragon. As a result, JKS provided Manfredi with a 1099 tax form for 2011. JKS never paid Manfredi for any work other than that which was contracted for by Mondragon, and subsequently denied Mondragon’s later accommodation request for direct payment to his roofing crews. Thus, we do not find JKS’s method of .payment to Manfredi as persuasive proof that JKS was Man-fredi’s employer. .

¶ 22. Regarding the “furnishing oí equipment” prong, it is undisputed that JKS did not provide Manfredi with any equipment. Fleming testified that Manfredi arrived to the construction site with his own “essential tools,” encompassing his own hardhat, tape measures, chalk -lines, and chalk boxes. All of these essential tools' were the same tools Manfredi used for Mondragon’s Tennessee project. As such, this prong does not weigh in favor of finding JKS as Manfredi’s employer.

¶23. Lastly, under, the “right to fire” prong of the control.test, we-find that JKS did not possess the right to fire Manfredi. Mondragon asserts that .because JKS could, and did, issue safety violations to workers on the construction site, JKS had the right to fire, and thus, the “ultimate right to control” Manfredi. The record reveals that JKS issued two separate safety citations to Manfredi, one of which resulted ⅛ Manfredi’s brief suspension from the job site. In addition, the record shows that Manfredi completed JKS’s safety-orientation class, which .resulted in JKS providing Manfredi with a hardhat sticker indicating such. Mondragon argues the hardhat sticker, in conjunction with the safety violations, shows that Manfredi was an employee of JKS. Again, we disagree with these contentions.

¶ 24. JKS provided the safety-orientation classes to not only JKS employees, but all its subcontractors and its subcontractors’ employees. Thus, JKS contends that it specifically contracted with Mondra-gon to ensure that he and his employees would comply with QSHA' mandates. Therefore, JKS maintained the right to ensure that JKS employees, and all other subcontractors and subcontractor employees, were complying with OSHA. Thus','the mere fact that JKS issued citations for the same problem (i.e., failure to securely affix one’s self to scaffolding) that led to Man-fredi’s accident does not sufficiently prove JKS had the right to fire Manfredi. There is no evidence in the record showing that JKS hired Manfredi, and therefore, we find that JKS did not have the right to fire him. As such, an application of the control test shows there is substantial evidence indicating that Mondragon is Manfredi’s employer, not JKS.

II. Nature-of-the-Work Test

¶25. As we do under the control test, we find that application of the nature-of-the-work test reveals that JKS was not Manfredi’s actual employer. The record shows that Manfredi was performing Mon-dragon’s work. Mondragon was specifically hired to perform pop-out installations for walls and roofing, which was Mondragon’s specialty. That JKS had to subcontract out this portion of the work rather than having other JKS employees, perform the work evidences the fact this was considered “skilled” work or a “separate calling,” See Davis, 938 So.2d at 909 (¶ 8) (quoting Boyd, 166 So.2d at 110).

. ¶ 26. Furthermore, we find that nothing in the record shows that Manfredi "had: a “continuous”, relationship with JKS. Mon-dragon’s work on the Arbor Hall project was a “contract for.the completion of a particular job”; that is, the layout, or pop-out, installations for the walls and roofing of Arbor Hall. Manfredi was there only at the request of Mondragon, and to ensure that Mondragon’s “particular job” was completed. In light of these facts, we find that JKS was not Manfredi’s employer.

III. Due-Procéss Issues

¶ 27. Lastly, Mondragon asserts that his due-process rights were violated by the AJ’s ruling barring his and Charter Oak’s participation in the March 27, 2013 hearing on the merits. However, we decline to address this issue. During the March 27 hearing, the AJ invited Mon-dragon and Charter Oak’s counsel to make a proffer of evidence at the request of Manfredi’s counsel; Mondragon and Charter Oak refused to do so. Where a party fails to proffer testimony or evidence when provided with an opportunity to do so, the party waives those issues for appellate review. See Blackmon v. State, 803 So.2d 1253, 1258-59 (¶ 27) (Miss. Ct. App. 2002). As such, Mondragon and Charter Oak are procedurally barred from raising this issue on appeal. See id.

CONCLUSION

¶ 28. In sum, we find reversible error on the part of the Commission in finding that JKS was Manfredi’s employer, 'as there was not substantial evidence in the record to support this conclusion. Application of the “control” and “nature of the work” tests reveals that Mondragon was Manfredi’s actual and responsible employer. The Commission’s ruling was clearly erroneous, and therefore, we reverse and render.

¶ 29. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J., IRVING, P.J., CARLTON, FAIR, JAMES AND GREENLEE, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., DISSENTS WITHOUT SEPARATE OPINION. BARNES, J., NOT PARTICIPATING.

      . Specifically, the contract stated: "I [ (Mon-dragon) ] am an independent contractor and I am responsible for my own employees. I hereby agree that I am/will be responsible for employees and my own Social Security, Medicare, [fiederal and [s]tate withholding taxes along with any appropriate workers’ compensation and/or liability insurance needed for your above stated name ... [and] will comply with the requirements of the Federal Occupational Safety and Health Law.’’

      . Procedural Rule 7 reads as follows: “Should a party fail to appear at a scheduled hearing, the Administrative Judge on his or her motion, or on a motion of an appearing party, may dismiss the case or award compensation upon presentation of proper proof.” Miss. Admin. Code § 20-2-1:2.7.


author: GREENLEE, J.,

text:
    Vanessa J. JONES, Appellant v. CITY OF HATTIESBURG, Mississippi, Appellee
    NO. 2015-CA-00923-COA
    Court of Appeals of Mississippi.
    01/10/2017
    Rehearing Denied May 23, 2017

      KIM T. CHAZE, ATTORNEY, FOR APPELLANT
    L. CLARK HICKS JR., R. LANE DOS-SETT, ATTORNEYS FOR APPELLEE
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from Forrest County Circuit Court where former municipal judge Vanessa Jones filed suit against the City of Hattiesburg (City) and other unknown defendants asserting that she was wrongfully terminated and that unknown city officials, in their official capacities, committed slander, menace, outrage, and intentional infliction of emotional distress against her. The circuit court granted summary. judgment to the City. Because Jones was.an at-will employee, and because the Mississippi Tort Claims Act (MTCA) provides immunity to the City for the alleged offenses, we affirm,

FACTS AND PROCEEDINGS BELOW

¶ 2. In June 2003, Jones was appointed along with two others as a municipal-court judge for Hattiesburg on a part-time basis. After receiving complaints and reports of misconduct within the municipal-court system, the City conducted an internal investigation. After the investigation was concluded, Mayor Johnny Dupree (Mayor) chose to reorganize the municipal-court system to have one full-time municipal judge, rather than the three-part-time-judge system. Under this reorganization, the three part-time municipal-judge positions, including Jones’s, were eliminated. Subsequently, Jones filed a complaint on September 6, 2013, asserting slander, defamation, intentional infliction of emotional distress, menace, outrage, and wrongful termination. The City answered, asserting that Jones was an at-will employee, thus barring her wrongful-termination claim, and that it was immune from her other claims under the MTCA, along with other defenses,

¶ 3. ■ On ' January 21, 2014, the City moved for summary judgment, The City asserted that Jones’s claim for wrongful termination was barred due to her at-will-employment status. Further, the City moved for dismissal of Jones’s remaining claims asserting that Jones, concerning her claims of slander, menace, outrage, and intentional infliction of emotional distress, failed to identify the' person who purportedly communicated such statements, when they were communicated, or the context of the statements, or to offer any evidence of malice. Jones responded by pointing to the City’s employment handbook and asserting that it established a contractual right of employment for her with the City, and that the City failed to follow its grievance procedure provided in the handbook. On June 4, 2014, the circuit court held a hearing on the City’s motion for summary judgment. On May 19, 2015, the circuit court granted summary judgment for the City based on its motion. On June 12, 2015, Jones appealed the circuit court’s grant of summary judgment to this Court.

DISCUSSION

¶ 4. A grant or denial of summary judgment is reviewed de novo, considering all the evidence in the light most favorable to the nonmoving party. Smith ex rel. Smith v. Leake Cty. Sch. Dist., 195 So.3d 771, 774 (¶ 8) (Miss. 2016). Though she asserts five separate issues, Jones’s appeal boils down to two: (1) whether she was wrongfully terminated, and (2) whether she has a viable claim against the City for defamation, intentional infliction of emotional distress, menace and outrage, or slander. We affirm the judgment of dismissal of the circuit court.

I. Employment

¶ 5. Jones argues that she is not an at-will employee or, in the alternative, that the City’s employee handbook controls the City over her employment, thus entitling her to the procedures and relief provided within it. However, Mississippi Code Annotated sections 21-3-3 and 21-3-5 state that an appointed municipal judge holds her office at the pleasure of the governing authorities and may be discharged by such authorities at any time, either with or without cause. Miss. Code Ann. §§ 21-3-3, 21-3-5 (Rev. 2015). An employee who may be terminated by the employer, with or without cause, is an at will employee. Galle v. Isle of Capri Casinos Inc., 180 So.3d 619, 622 (¶ 13) (Miss. 2015). Thus, because Jones was an appointed municipal judge, she was an at-will employee. The Mayor was entitled to terminate her with or without cause at any time. Thus, this issue is without merit.

¶ 6. In the alternative, Jones argues that the City’s employee handbook controls over her employment with the City regarding discharge and grievance procedures. The handbook, in its introduction, states that nothing in the handbook implies or assures employment or creates an employment contract. The Mississippi Supreme Court has held that a handbook with a disclaimer such as the one at issue here does not alter the at-will status of the employment relationship. Hartle v. Packard Elec., 626 So.2d 106, 109-10 (Miss. 1993). Thus, this issue is without merit.

II. Jones’s Other Claims

¶7. Jones also asserts defamation, slander, and intentional-infliction-of-emotional-distress claims. In a defamation action brought by a public figure, like a judge, the plaintiff must also prove that the defendant acted with actual malice. Franklin v. Thompson, 722 So.2d 688, 692 (¶ 12) (Miss. 1998). The MTCA states that “a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.” Miss. Code Ann. § 11-46-5 (Rev. 2012). Thus, the City is immune from Jones’s defamation and slander claims under the MTCA. This leaves Jones’s intentional-infliction-of-emotional-distress claim for us to address.

¶ 8. A claim for intentional infliction of emotional distress requires that (i) the defendant acted willfully or wantonly toward the plaintiff by committing certain described actions; (2) the defendant’s acts are ones that evoke outrage or revulsion in civilized society; (3) the acts were directed at, or intended to cause harm to, the plaintiff; (4) the plaintiff suffered severe emotional distress as a direct result of the acts of the defendant; and (5) such resulting emotional distress was foreseeable from the’ intentiohal acts' of the defendant. Rainer v. Wal-Mart Assocs. Inc., 119 So.3d 398, 403-04 (¶ 19) (Miss. Ct. App. 2013) (citing J.R. ex rel. R.R. v. Malley, 62 So.3d 902, 906-07 (¶ 15) (Miss. 2011)). The standard for an intentional-infliction-of-emotional-distress claim is whether the defendant’s behavior is malicious, intentional, willful, wanton, grossly careless, indifferent, or reckless. Little v. Collier, 759 So.2d 454, 457 (¶ 13) (Miss. Ct. App. 2000) (citing Morrison v. Means, 680 So.2d 803, 806 (Miss. 1996)).

¶ 9. Given that Jones asserts her intentional-infliction-of-emotional-distress claim arises out of the same acts as her defamation claim, and she asserts the City’s actions were malicious for purposes of her defamation claim, we find that Jones’s intentional-infliction-of-emotional-distress claim must be based on malicious conduct. Because the MTCA provides that a governmental entity is 'not liable for any conduct of its employees that constitutes malice, and Jones’s claim is based on purportedly malicious conduct, it is barred by the MTCA. See Idom v. Natchez-Adams Sch. Dist., 115 F.Supp.3d 792, 804 (S.D. Miss. 2015); see also City of Jackson v. Powell, 917 So.2d 59, 73 (¶ 50) (Miss. 2005). Thus, this issue is without merit.

¶ 10. Notwithstanding the City’s immunity, even if the City were not shielded from liability by the MTCA, Jones’s complaint still failed because she did not plead with any particularity the claims she asserted. Jones never stated the specific person or persons who purportedly defamed, slandered, or intentionally inflicted emotional distress upon her, nor did she state with any specificity when, where, or how the act took place. Such a complaint fails to meet the pleading requirements set out in Mississippi Rule of Civil Procedure 8 and, as this Court has noted before, must be dismissed for failure to state a claim upon which relief can be granted. See Chalk v. Bertholf, 980 So.2d 290, 298-99 (¶¶ 18-19) (Miss. Ct. App. 2007); M.R.C.P. 8.

CONCLUSION

¶ 11. We affirm the circuit court’s grant of summary judgment for the City.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE AND CARLTON, JJ.,'CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. FAIR AND WESTBROOKS, JJ., NOT PARTICIPATING.

      . Jones also asserts claims for menace and outrage. Menace and outrage are tantamount to intentional infliction of emotional distress. For outrage, see Buchanan v. Gulfport Police Dep't, 530 Fed.Appx. 307, 311-12 (5th Cir. 2013); for menace, see Guthrie v. J.C. Penney Co., 803 F.2d. 202, 210-11 (5th Cir. 1986). Thus, we address Jones’s menace and outrage claims in our discussion of her intentional-infliction-of-eniotional-distress claim.