author: PITMAN, J.

text:
    John David KNIGHT, Plaintiff-Appellant v. Barney TUCKER and Donald, Tucker, Betts, Fuller & Knight, A.P.A.C., Defendants-Appellees
    No. 50,993-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016
    Rehearing Denied 01/05/2017

      PHELPS DUNBAR, LLP By: H. Alston Johnson, III Thomas H. Kiggans, Counsel for Appellant
    DONALD L. KNEIPP, Counsel for Ap-pellees
    Before DREW, PITMAN & GARRETT, JJ.
   PITMAN, J.

I,Plaintiff John David Knight sued Defendants Barney Tucker (individually) and Donald, Tucker, Betts, Fuller & Knight, A.P.A.C., under La. R.S. 23:631, et seq., seeking unpaid wages, 90 days’ penalty wages and attorney fees, and also overtime compensation and liquidated damages under the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Plaintiff also sought damages for reimbursement of business expenses. The trial court granted Plaintiff relief as to unpaid wages, but denied his claim in all other respects and rendered judgment in favor of Defendants finding that Plaintiff was not an “employee” under La. R.S. 23:631, et seq., or the FLSA, and, thus, was not entitled to any other relief. For the following reasons, we affirm in part, reverse in part the judgment of the trial court and remand.

FACTS

In 2002, Plaintiff, a certified public accountant and sole practitioner in Rayville, Louisiana, was approached by Barney Tucker to begin a working relationship with him at Tucker’s corporation, Donald, Tucker and Betts, A.P.A.C. (“the Corporation”). Tucker suggested to Plaintiff that they form a limited liability corporation (“LLC”), which would be owned 80 percent by the Corporation and 20 percent by Plaintiff. According to their agreement, Plaintiff was to receive an annual salary of $75,000 to be paid in 25 installments, i.e., $3,000 twice a month, with an additional $3,000 due at the end of the year. Plaintiff negotiated that he would be allowed three |2weeks of vacation per year. The parties never signed a written contract formalizing the agreement. In fact, in 2002, they agreed to enter into a partnership with Plaintiffs participation deemed to be at 1 percent and the Corporation’s participation at 99 percent until Plaintiffs issues related to his former business could be resolved.

Thereafter, Tucker applied for a permit with the Louisiana Board of CPAs in 2002 for an LLC named Donald, Tucker, Betts & Knight, LLC, and federal tax returns were filed under that name; however, Plaintiff claims that this LLC was never formed with the Louisiana Secretary of State. Based on this fact, Plaintiff describes the relationship between the parties as a partnership, although the exact relationship between the parties can only be described as unclear. Plaintiff did receive a K-l tax form from 2002 until 2004, indicating that he was considered a partner.

In 2005, after Tucker had the name of the Firm changed to Donald, Tucker, Betts, Fuller & Knight, A.P.A.C, Plaintiff and the other CPAs in the Firm received W-2 forms for tax purposes. Defendants withheld income, Social Security and Medicare taxes from every paycheck. Plaintiff was listed as an employee in the Firm’s Personnel Manual, and he signed a form indicating he had received the handbook.

For various reasons, there were cash flow problems at the Firm. Plaintiff asserts that those problems already existed when he joined the Firm in 2002. Defendants argue that, despite the fact that Plaintiff claimed to understand office practices, he did not follow the Firm’s policies regarding handling of client materials, maintaining records of time spent on client Lwork or timely billing clients. As a result of Plaintiffs refusal/inability to submit appropriate time and billing records, the Firm began to experience a cash flow shortage. Due to this shortage, although staff employees continued to receive compensation on a timely basis, the three officers, Tucker, Fuller and Knight, sometimes went for extended periods of time without receiving compensation.

On January 23, 2012, Plaintiff gathered his client files and removed them from the Firm’s office in the middle of the night. He left a letter of resignation on Tucker’s desk.

On January 30, 2012, Plaintiff made a demand for his unpaid salary and business expenses that had not been reimbursed. In February 2012, he made the same demand and included a demand for unused vacation time; however, Defendants refused to pay the wages upon demand. For these reasons, Plaintiff filed this suit in May 2012, claiming damages under La. R.S. 23:631, et seq., and the FLSA. He alleged the facts recited above and also claimed that, although the LLC was never formed, the most recent tax returns show him as a 20 percent owner of the Firm, which he asserts is not in accordance with his original agreement with Tucker. He also claimed that, as an employee of the Firm, not only was he entitled to the salary mentioned above, he was also entitled to reimbursement of business expenses, vacation time and other benefits provided by the Firm’s Personnel Manual. He contended that, in spite of his alleged ownership in the Firm, the entity seldom abided by the formalities of an LLC or a corporation, such as holding meetings and electing officers and directors. He claimed that he never received a 20 percent portion of the business profits and was never treated as an owner of the business.

14PIaintiff further claimed that he was owed approximately $49,500 in unpaid wages from the Firm. He also alleged that he had wages due in the form of accrued and unused vacation time equal to at least $9,000 throughout his employment with the Firm, which, according to the Firm’s vacation policy, was not due and payable if his position with the company was terminated. The Personnel Manual states that an employee must use, or else forfeit, accrued unused vacation. Further, Plaintiff alleged that he incurred $12,067.08 in un-reimbursed expenses and $8,957.13 in out-of-pocket expenses, which were directly related to his work with the Firm.

A trial was held, at which the foregoing facts were adduced. The trial court issued a judgment in favor of Plaintiff for unpaid wages in the amount of $49,500, and denied the remainder of the relief sought. In its reasons for judgment, the trial court stated that the threshold issue to be determined in this case was whether Plaintiff was an employee under La. R.S. 23:631, et seq. It stated the crux of the issue in determining whether a worker is an employee for purposes of the statutes is the degree of control that the contract affords the purported employer over the individual. It also stated that it is not the actual supervision or control which is actually exercised by the employer that is significant, but whether, from the nature of the relationship, the right to do so exists.

The trial court noted that Defendants had shown that Plaintiff had freedom of movement. He brought his client files with him when he joined the Firm, worked on clients of his own choosing, traveled as he so desired, decided the rate to bill his clients and when to bill them and worked with no supervision.

IfiAlso in its reasons for judgment, the trial court stated that, based on the evidence presented at trial, Plaintiff was not an employee or treated as an employee during his time with the Firm and, thus, was not entitled to all the relief he sought under the statutes. It also found that, despite not being an employee, Plaintiff should be compensated for work he performed for the Firm, specifically in the amount of $49,500. Although it decided to compensate Plaintiff for the $49,500 in unpaid wages, it denied him penalty wages on the basis that, as a nonemployee, he is not owed penalty wages and attorney fees. Further, it stated that Defendants had good cause for not remitting the amount Plaintiff claimed was due since Plaintiff left the Firm with all of the files upon which he routinely performed work, leaving Defendants unable to bill for work performed during Plaintiffs relationship with the firm.

The trial court also denied Plaintiffs request for 72 hours of accrued unused vacation time and overtime pay from May 2010 until his resignation based on the fact that it determined he was not considered an employee under the Revised Statutes. Further, it denied Plaintiffs request for unpaid expenses because his submitted requests lacked' supporting documentation since his expense reimbursement file could not be located following his departure from the Firm. The submissions were also deemed untimely since they were beyond a year old. The expenses included mileage, lodging and travel during the time that he provided services to clients, but Plaintiff took many of these clients’ files when he resigned, leaving the expenses unrecoverable for the firm. For those reasons the other requests for damages were also denied. It made no findings concerning Plaintiffs status as an employee under the FLSA.

| (-¡Plaintiff filed a motion for new trial and motion to tax costs. A hearing was held, after which the trial court granted the motion for new trial in part and awarded Plaintiff prejudgment interest on the amount awarded at trial and denied it in all other respects. The trial court awarded Plaintiff costs against Defendants of $4,439.29, but denied his requests for costs of three depositions totaling $865.

Plaintiff appeals the judgment of the trial court, pointing out that the issue of attorney fees was reserved at trial in the event that this court should reverse on that issue; therefore, it has requested that the matter be remanded for further evidence in this regal'd if the judgment on appeal favors the award of attorney fees.

DISCUSSION

Employee Status wider the Federal Law

Plaintiff contends that the trial court erred in finding that he was not an “employee” as defined by the FLSA. “Employee” is defined at 29 U.S.C. § 203(e)(1) as “any individual employed by an employer.” Claims for unpaid overtime under the FLSA are within the concurrent jurisdiction of the state courts, 29 U.S.C. § 216(b).

Plaintiff argues that the definition of “employee” under the federal law and jurisprudence is very broad and covers many individuals who may not qualify as employees under traditional principles of agency law based on the common-law “control test.” He argues that, in the cases he cited, both the federal courts and the U.S. Department of Labor have specifically rejected the “control test” utilized by the trial court in this case. He contends that the proper test for the trial court to have applied was the “economic realities” test, which focuses on whether, as a matter of economic reality, the 17worker is economically dependent upon the alleged employer or is, instead, in business for himself. He claims that the ultimate determination is based on whether the worker is actually in business for him or herself and, thus, is an independent contractor, or whether he or she is economically dependent on the employer and, thus, is an employee.

Plaintiff also argues that he is entitled to overtime compensation under 29 U.S.C. § 207 because Defendants failed to pay him “on a salary basis.” He claims an employer must prove both a duties and salary test in order to satisfy an exemption from the overtime requirements of the FLSA. Although, generally, accountants meet the duties test to fall within the professional exemption, because Defendants often withheld his salary for months at a time, they failed to meet the salary test necessary for denying his overtime compensation. He contends that he is also entitled to an equal amount as liquidated damages under 29 U.S.C. § 216(b) and an award of attorney fees, in an amount to be determined by the trial court on remand.

Defendants argue that the work relationship that existed between the parties was not an employment situation as contemplated under Louisiana’s employment statutes, but, instead, Plaintiff was compensated as an officer of the Firm, like Tucker and Fuller, and unlike the staff employees. They claim Plaintiff was an officer and shareholder in the firm and was not viewed or treated as an employee. He required no supervision or control over his work, was not subject to discontinuance at the will of Defendants and was solely responsible for the billing of the clients he serviced. They argue that the trial court correctly found that Plaintiff was not an employee under the FLSA and, thus, was not entitled to the relief he sought. For these reasons, |8Pefendants contend that the trial court’s decision should be upheld by this court.

Federal Law-The Fair Labor Standards Act

Employee is defined in the FLSA as any individual employed by an employer. The overtime provision, 29 U.S.C. § 207(a), states in pertinent part:

(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

Exemptions are found in 29 U.S.C. § 213, which states in pertinent part:

(a) Minimum wage and maximum hour requirements
The provisions of section 206 (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 of this title shall not apply with respect to—
(1) any employee employed in a bona fide executive, administrative, or professional capacity ... shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because' of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities [.]

29 U.S.C. § 216(b), provides for damages in the event the employer violates the sections of the law related to unpaid wages, overtime, liquidated damages, attorney fees and costs and states in pertinent part as follows:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. ... The court in such action shall, in addition to any judgment ^awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action. ...

In Scantland v. Jeffry Knight, Inc., 721 F.3d 1308 (11th Cir. 2013), the court stated that a determination of employment status under the FLSA is a question of law reviewed de novo. Citing, Antenor v. D & S Farms, 88 F.3d 925 (11th Cir. 1996).

In Hopkins v. Cornerstone Am., 545 F.3d 338 (5th Cir. 2008), the court stated as follows:

The definition of employee under the FLSA is particularly broad. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (noting that the FLSA “stretches the meaning of ‘employee’ to cover some parties who might not qualify as such under a strict application of traditional agency law principles”). To determine if a worker qualifies as an employee, we focus on whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself. Herman v. Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 299, 303 (5th Cir. 1998). To aid us in this inquiry, we consider five non-exhaustive factors: (1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker’s opportunity for profit or loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship. Id. No single factor is determinative. Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1043-44 (5th Cir.1987). Rather, each factor is a tool used to gauge the economic dependence of the alleged employee, and each must be applied with this ultimate concept in mind. Id.

Applying the economic realities test to the factual situation at bar, it appears Plaintiff was an employee of the firm. Plaintiff was not operating a separate accounting business during the ten years he worked as a CPA for the Firm; he worked only for the Firm, and Tucker determined when he would be paid. His sole source of income from 2002 until his resignation in 2012 was his $75,000 salary, plus occasional small Christmas bonuses given by Defendants to all employees. All of his work was billed to Defendants’ | ^clients on Defendants’ invoices. Defendants’ work requirements and personnel policies, which prohibited employees from performing any outside work, including “any accounting, auditing, management advisory services, tax, or other work of any type for compensation” without written permission from Defendants, applied to him, as they did to all other employees. Mandatory work hours were set that required him to work 40 hours per week during nontax season, and 54 hours per week from January 1 to April 15 of each year.

Plaintiff was required to keep track of his hours on time sheets, which reflect that he was a full-time employee. He was economically dependent upon Defendants for his salary payments and was not operating as an independent business. He was considered an employee for tax purposes since Defendants issued him a W-2 form instead of a 1099, which is the required form for independent contractors. Defendants withheld taxes and made other employee-required withholdings from each of his paychecks. For the foregoing reasons, we find that Plaintiff is considered an “employee;” and, therefore, this assignment of error has merit.

A finding that Plaintiff is an employee of the firm necessitates a discussion of the specific relief sought at trial. Because he was awarded unpaid wages in the amount of $49,500 and, eventually, prejudgment interest, Plaintiff claimed that he was also entitled to damages under 29 U.S.C. § 216(b), for overtime, liquidated damages, attorney fees and costs. The issue of entitlement to overtime will be discussed in the context of the federal law.

In Martin v. Malcom Pirnie, Inc., 949 F.2d 611 (2d Cir. 1991), the court stated that, in order to attain “bona fide executive” status, an employee |umust meet both a salary basis and a duties test. The court also stated as follows:

Initially, we note that because the FLSA is a remedial act, its exemptions, such as the “bona fide executive” exemption claimed in this case, are to be narrowly construed. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Mitchell v. Lublin, McGaughty & Assoc., 358 U.S. 207, 211, 79 S.Ct. 260, 263, 3 L.Ed.2d 243 (1959). Indeed, an employer bears the burden of proving that its employees fall within an exempted category of the Act. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Arnold, 361 U.S. at 392, 80 S.Ct. at 452 [456]; Donovan v. Carls Drug Co., Inc., 703 F.2d 650, 652 (2d Cir.1983).

In Martin, supra, the court held that employees who were subjected to pay deductions on the basis of part-day absences could not, under strict regulatory definition, be considered “salaried” for purposes of the “bona fide executive” exemption to overtime requirements of the FLSA, and that the employer failed to establish it came within the regulatory “window of correction” that would permit it to treat employees as salaried despite its one-time or unintentional failure to adhere to regulatory requirements.

In the case at bar, Plaintiff argues that several sections of the Code of Federal Regulations are pertinent to the inquiry posed by his request for payment of overtime.

29 C.F.R. § 541.600(a) states as follows:

To qualify as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, an employee must be compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities. Administrative and professional employees may also be paid on a fee basis, as defined in § 541.605.

|1⅞29 C.F.R. § 541.602 states:

(a) General rule. An employee will be considered to be paid on a “salary basis” within the meaning of these regulations if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided in paragraph (b) of this section, an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. Exempt employees need not be paid for any workweek in which they perform no work. An employee is not paid on a salary basis if deductions from the employee’s predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available.

Because Plaintiffs salary payments were withheld for months at a time due to the Firms’ cash flow problems, he argues that he was not paid on a salary basis as a result of deductions caused by the operad ing requirements of the business. Although at first blush, this argument seemed persuasive, we note that the Martin, supra, case is not entirely apposite with the case at bar. In Martin, deductions were made from accountants’ salaries for half-day absences from work. In the case at bar, Plaintiff was always entitled to seek payment for his full salary. The firm did not make deductions from his paycheck as a result of the operating requirements of the business. Although he was not paid in a timely fashion due to the lack of cash flow, he was still entitled to the full amount of compensation, i.e., $3,000 twice a month, his agreed-upon salary; and, in fact, he has recovered $49,500 in this litigation.

11sBased on the foregoing, although Plaintiff can be classified as an employee, he also qualifies as a professional under the duties and salary test. Therefore, we find that he is not entitled to recover payment for overtime.

In regard to Plaintiffs assertion that he is entitled to liquidated damages under 29 U.S.C. § 216(b), we reiterate that the statute provides that, “Any employer who violates the provision of section 206 or section 207 of the title shall be liable to the employee. .. in the amount of their unpaid minimum wages, or their unpaid overtime compensation ... and in an additional equal amount as liquidated damages.” That is, if an award is made to the employee for violations of section 206 or 207, then an additional amount can be awarded as liquidated damages.

In this case, we found that Plaintiff was not entitled to payment for overtime since he is a professional. For that reason, he is not entitled to liquidated damages, which are awarded only if the employer has failed to pay overtime.

Employee Status under Louisiana Law

Plaintiff argues that the trial court erred in determining he was not an “employee” under Louisiana law, specifically, La. R.S. 23:681, et seq., and states that the trial court was clearly wrong in determining that he was an independent contractor rather than an employee. For this reason, he contends that he is entitled to payment for accrued, but unused, vacation, as well as liquidated damages and attorney fees.

Defendants’ argument with regard to employee status under Louisiana law is the same as its federal law claim, and it asserts that the trial court correctly denied Plaintiff relief with regard to accrued, but unused, vacation, liquidated damages and attorney fees.

11 ¿Louisiana law provides no definition of employee in the pertinent section of the law. In fact, La. R.S. 23:631 states only that, upon discharge of “any laborer or other employee of any kind whatever,” it shall be the duty of the person employing the employee to pay the amount due under the terms of employment.

In White v. Frederick, 44,563 (La.App. 2 Cir. 8/19/09), 17 So.3d 1016, writ denied, 09-2059 (La. 11/25/09), 22 So.3d 168, this court stated that the distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis. Although the White case is a liability case, rather than an employment or labor relations case, this court discussed how a distinction is made between an “employee” and an “independent contractor.” In doing so, this court cited Hickman v. S. Pac. Transp. Co., 262 La. 102, 262 So.2d 385 (1972), stating that the following factors were relevant in determining whether the relationship of principal and independent contractor exists: (1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ nonexclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

In determining that Plaintiff was an employee of the Firm and not an independent contractor, we are influenced by several factors, the first of |1Rwhich is the very ambiguous relationship Plaintiff had with the Firm from the beginning in 2002. At that point, it appeared the parties had formed a partnership between Plaintiff and the corporation that was Donald, Tucker, and Betts; and, in fact, Plaintiff received a K-l tax form for the first few years he worked for the Firm. In 2005, Tucker allegedly formed a corporation entitled Donald, Tucker, Betts, Fuller & Knight; and, thereafter, all personnel received employee W-2 tax forms showing deductions for Social Security and Medicare.

Tucker’s testimony was that Plaintiff was a 20 percent owner of the corporation, yet Plaintiff never received any shares of stock indicating his ownership, no meetings were held, he never voted on any issues pertinent to the corporation and he never received 20 percent of any distributions from the corporation.

Although Plaintiffs name was in the Firm’s title, this alone does not exclude him from being considered an employee. He is clearly not an independent contractor, because contractors are hired to work for an indefinite period of time or to do piecemeal work. The appropriate tax form for an independent contractor is a 1099, not a W-2. These factors do not apply to Plaintiff. The only conclusion that can be reached from the facts is that Plaintiff was an employee of the Firm, and, as such, is entitled to certain benefits due to persons so classified under Louisiana law.

Plaintiff has claimed that he is entitled to payment for accrued, but unused, vacation time. He argues that the final paycheck he received during his employment reflected that he had 120 hours of accrued vacation as of November 16, 2011, two months prior to his resignation. Between that date | ifiand January 23, 2012, when he resigned, he took six days of vacation. For that reason, he asserts that he had nine days of accrued vacation left when he resigned. He claims that, at a daily rate of $288.46, he is entitled to $2,596.16. He also argues that the Firm’s policy that unused accrued vacation time is lost violates Louisiana law, La. R.S. 23:631, and that he should be compensated for that reason.

Defendants argue that, because Plaintiff is not an employee, he is not entitled to reimbursement for accrued vacation. Further, they contend that Plaintiff never submitted requests for vacation time to the Firm, that he took vacation at his discretion and did not notify the Firm’s accountant as to what time during a pay period was vacation and did not indicate his accrued vacation time in the Firm’s time records. They argue that company policy states any accrued vacation time that is not used is lost.

Regarding an employee’s right to pay for unused vacation, La. R.S. 23:631(D) states:

D. (1) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

In Wyatt v. Avoyelles Par. Sch. Bd., 01-3180 (La. 12/4/02), 831 So.2d 906, the Louisiana Supreme Court examined these labor law statutes and found that they are designed to compel prompt payment of wages when an |17employee is discharged or resigns. It stated that they are penal in nature and must, therefore, be strictly construed and yield to equitable defenses, citing Boudreaux v. Hamilton Med. Grp., Inc., 94-0879 (La. 10/17/94), 644 So.2d 619. At issue in Wyatt, was La. R.S. 23:634, which prohibits an employer from requiring an employee to sign a contract forfeiting wages upon termination of the agreement and which states that, “in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.” The court stated:

The Board violated La. R.S. 23:631 if it failed to pay plaintiffs upon their retirement “the amount then due under the terms of employment....” Pursuant to La. R.S. 23:631(D), vacation pay is “an amount then due” if, according to the employer’s stated vacation policy, the employee is eligible for and has accrued the right to take vacation time with pay and the employee has not taken or been compensated for the vacation time as of the date of his resignation. Subsection (D) cannot be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy. Similarly, La. R.S. 23:634 prohibits an employment contract which requires the forfeiture of “wages” upon resignation or discharge, (citation omitted). Accrued vacation time is “wages.” (citation omitted.) Thus, the Board’s “use it or lose it” policy violates La. R.S. 23:634 if it requires the forfeiture of accrued vacation time upon resignation or discharge.

Based on the statute, vacation pay is an amount then due if, “according to the employer’s stated vacation policy,” the employee is eligible for and has accrued the right to take vacation time with pay and the employee has not taken or been compensated for the vacation time as of the date of his resignation. Accrued vacation time is “wages”; and, if the Firm’s “use it or lose it” policy violates the law, it cannot be used to cause Plaintiffs forfeiture of wages upon resignation. In the case at bar, Plaintiff had negotiated with Tucker a paid vacation of three weeks per year. It is unclear when Plaintiff earned that vacation leave and whether it was | ^automatically available for him to use at the beginning of every January, or if he became entitled to the three weeks on his anniversary date of February 2. There was also some question about how many days of vacation leave Plaintiff had taken prior to his resignation, and whether or not those days had been taken at the time of his resignation from the firm.

Since these statutes are penal in nature and must, therefore, be strictly construed and yield to equitable defenses, we reverse the trial court’s ruling and find that Plaintiff is entitled to reimbursement for accrued, but unused, vacation time and remand for further proceedings consistent with this opinion.

Employer’s Good Faith

Plaintiff assigns as error that the trial court erred in finding that Defendants had a good-faith basis for not paying him his earned wages since their testimony was that they failed to pay him solely because of the Firm’s cash flow problems. He claims that the trial court articulated different reasons for its finding, including that he took some client files with him when he resigned his employment, which were never raised by Defendants. He argues that even Defendants admitted that he had worked on those files and only he could timely complete the necessary work for those clients. For these reasons, he contends that he should be awarded penalty wages and attorney fees under La. R.S. 23:632.

Defendants argue that the trial court correctly denied penalty wages and attorney fees since Plaintiff was a partner, not an employee, of the Firm and was not entitled to either form of relief.

119La. R.S. 23:632, which concerns liability of an employer for failure to pay wages and attorney fees, and the good-faith exception are provided as follows:

A.Except as provided for in Subsection B of this Section, 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.
B. When the court finds that an employer’s dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. If the court determines that the employer’s failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section.
C. 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.

Although Plaintiff has argued that he is entitled to damages for 90 days’ wages at his daily rate as a penalty against Defendants for failure to pay his salary, La. R.S. 23:632(B) provides that, when the court finds that an employer’s dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed.

The trial court denied Plaintiff penalty wages on the basis that he was not an employee; however, in reviewing the record, we conclude that [ ¡^Defendants were in good faith in opposing Plaintiffs suit on the basis that Plaintiff was either a partner or a professional, and not an employee, and was not entitled to that relief. We, therefore, affirm the trial court’s denial of Plaintiffs request for penalty wages.

Despite Plaintiffs failure to prevail on the issue of penalty wages, a different result is reached with regard to his request for attorney fees pursuant to La. R.S. 23:632(C), which provides for a mandatory award of attorney fees in a “well-founded” suit.

In Wyatt, supra, the court stated that La. R.S. 23:632 provides that reasonable attorney fees shall be allowed, which shall be taxed as a cost to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever is filed. The Wyatt court found that plaintiffs had presented a well-founded suit for unpaid wages accrued pursuant to the Board’s “use it or lose it” policy.

In the case sub judice, Plaintiffs suit is “well-founded” in that he has already recovered on his claim for unpaid wages and, in this appeal, is successful in his claim for vacation pay, if not overtime or penalty wages. We find, therefore, that he is entitled to an award for attorney fees. As previously agreed to by the parties and the trial court, this issue is remanded for further consideration consistent with this opinion.

Unreimbursed Expenses

Plaintiff argues that the trial court erred in denying his request for unreim-bursed business expenses totaling $20,559.21. He contends that he met the burden of proof necessary for the reimbursement and that many of these expenses were mileage reimbursements, which were properly listed on his daily timesheets and billed to Defendants’ clients. The Firm’s policy |21 entitled him to reimbursement for these expenses, and he submitted receipts and other documentation to support the expenses for which he sought reimbursement. He claims Louisiana law allows him ten years within which to seek such reimbursement.

Defendants argue that Plaintiff is not entitled to reimbursement of his expenses since he did not submit all of them in a timely fashion. The Firm’s policy specifies that requests for reimbursement “should” be submitted promptly.

In its reasons for judgment, the trial court denied Plaintiff’s claim for reimbursement of expenses and stated as follows:

Knight claimed that he has unpaid expenses, presented in the form of a spreadsheet that was prepared by his son over the course of two years. Notably, Knight’s expense reimbursement file was in the office prior to his departure, but could not be located following his departure. Despite his allegations that he submitted his requests for reimbursement, the requests, when submitted, lacked supporting documentation. Further, the submissions were untimely, having been accumulated for a year and sometimes more. The Court found it concerning that the majority of the requests for reimbursement were not submitted until after Knight’s departure, including mileage, lodging and travel during time that he provided services to clients. Many of the clients’ files went with Knight, leaving the expenses nonrecoverable for the firm. For those reasons, Knight’s claim for expense reimbursement is denied.

The standard of review in regard to this issue is manifest error. It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La. 1989).

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id.

We find that the trial court’s decision denying Plaintiffs request for reimbursement of expenses is not manifestly erroneous. Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court denying Plaintiff John David Knight’s request for overtime, penalty wages and liquidated damages is affirmed. The judgment of the trial court denying Plaintiffs employee status; denying payment for accrued, but unused vacation leave; and denying attorney fees is hereby reversed; the matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of appeal are assessed equally to Plaintiff John David Knight and to Defendants Barney Tucker and Donald, Tucker, Betts, Fuller & Knight, A.P.A.C.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, PITMAN & GARRETT, JJ.

Rehearing denied.

      . It is important to note from the outset that the legal relationship between the parties is disputed from the very beginning, and it is unclear whether the parties are in a partnership, an LLC, or an A.P.A.C. Several steps were taken at various times during Plaintiff’s working relationship with the firm to change the designation. For the sake of simplicity, for actions taken after 2005, Donald, Tucker, Betts, Fuller & Knight, A.P.A.C., will simply be referred to as "the Firm.”

      . In his brief, Plaintiff claims Donald, Tucker, Betts, Fuller &, Knight, APAC, is an accounting firm, previously formed as a partnership, but changed in 2005 to a corporation. He claims that, after his hire by Tucker, his relationship with the firm was "indefinite.”


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    SUCCESSION OF Henry Earl DAWSON
    No. 51,005-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 16, 2016.

      LAW OFFICES OF MASON L. OS-WALT, By: Mason L. Oswalt, Counsel for Appellants
    HAYES, HARKEY, SMITH & CAS-CIO, By: Thomas M. Hayes, III, Counsel for Appellees
    Before BROWN, WILLIAMS and PITMAN, JJ.
   WILLIAMS, J.

| iThe plaintiffs, James W. Dawson, James W. Dawson, Jr., Lawrence Dawson, Vicki D. Kelly, Charles Dawson, Donna D. Edwards, Patricia D. Gregory, Wilma D. Blackard, Virginia Sellers and Earl Stutts, appeal a partial summary judgment in favor of the defendant, George Dawson. The trial court found that the extrinsic evidence clarified the date of the will and that the attestation clause substantially complied with the statutory requirements. For the following reasons, we affirm.

FACTS

In July 2014, the decedent, Henry Dawson, died in Morehouse Parish. The decedent was never married and did not have any children. Decedent was survived by his brothers, nieces and nephews. Later that month, George Dawson, a nephew of the decedent, filed a petition to probate the last will of decedent, alleging that he was decedent’s sole heir. The petition further alleged that decedent had executed his will on February 28, 2013, in the presence of a notary public and two witnesses, awarding his entire estate to George Dawson, who sought to be appointed independent administrator of the estate without bond. In December 2014, a judgment of possession was rendered placing George Dawson into possession of decedent’s entire estate, which was valued at $2,774,600.

In August 2015, the plaintiffs, James W. Dawson, James W. Dawson, Jr., Lawrence Dawson, Vicki D. Kelly, Charles Dawson, Donna D. Edwards, Patricia D. Gregory, Wilma D. Blackard, Virginia Sellers and Earl Stutts, filed a petition to reopen the succession, vacate the judgment of possession and nullify the will. The petition alleged that the testament was a nullity because the first page was dated “February 28, 2103,” a date that has not 12occurred, and the attestation clause did not comply with the statutory requirements. The plaintiffs further alleged that the decedent lacked testamentary capacity when he executed the will. After discovery, the defendant, George Dawson, filed a motion for partial summary judgment on the issue of whether the will was in valid form, asserting that the date on the first page was a typographical error clarified by the date on the second page and the attorney’s affidavit.

After a hearing, the trial court issued oral reasons for judgment finding that the date on the first page of the will created an ambiguity which could be resolved by extrinsic evidence, including the affidavit of the attorney stating that the numbers of the date on the first page were transposed in error and that decedent had signed the will on February 28, 2013, as stated in the attestation clause. The court further found that the will’s attestation clause was substantially similar to the statutory language. The district court rendered judgment granting defendant’s motion for partial summary judgment on the issue of sufficiency of the form of the will and designating the judgment as final under LSA-C.C.P. art. 1915(B). Plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting partial summary judgment in favor of the defendant. Plaintiffs argue that the will is invalid because the first page is dated “February 28, 2103,” a future date that has not occurred, and does not comply with the statutory requirements for the form of a notarial testament.

The notarial testament shall be prepared in writing and dated. If the testator is able to read and sign his name, then in the presence of a notary |sand two competent witnesses, the testator shall declare that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page. LSA-C.C. art. 1577(1). In the presence of the testator and each other, the notary and the witnesses shall sign a declaration substantially similar to the following: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names” on a specified date. LSA-C.C. art. 1577(2). This article requires that the testament be dated, but intentionally does not specify where the date must appear. Article 1577, revision comment (g). The statutory formalities for execution of a testament must be observed or the testament is absolutely null. LSA-C.C. art. 1573. There is a presumption in favor of the validity of testaments and evidence of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. Succession of Holbrook, 2013-1181 (La. 1/28/14), 144 So.3d 845.

If the will is dated, then extrinsic evidence may be considered to resolve ambiguity regarding the date written in the testament. Succession of Holloway, 531 So.2d 431 (La. 1988). If the will bears two different dates, it is not stricken with invalidity. Rather, extrinsic evidence may be introduced to prove which date is the correct date. Succession of Songne, 94-1198 (La. App. 3rd Cir. 11/2/95), 664 So.2d 556, writ denied, 95-2877 (La. 2/2/96), 666 So.2d 1101.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La. 10/2/09), 18 So.3d 122. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and any affidavits show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

In the present case, plaintiffs argue in brief that because the testator read the will before he signed the page containing the future date of February 28, 2103, the district court should not have considered other evidence or the date of the attestation clause in determining the validity of the will. However, we find that the factual situation in this case is similar to that of Songne, supra, which involved a will dated November 6, 1991 on the first page and November 6, 1992 on the second page. In that case, the attorney who drafted the will and his assistants testified that Songne had signed his will in their presence on November 6, 1992, and that the first page was dated incorrectly due to a clerical error. The court considered this evidence and found that the will was validly executed.

Here, attorney Yeldell attested by his affidavit and deposition that in typing the will, he had mistakenly ti-ansposed the numbers of the year 2013 on the first page, which was dated incorrectly as “2103” as the result of a typographical eiror. Yeldell further testified that he personally witnessed the testator execute the will on February 28, 2013, the date stated in the attestation clause. Plaintiffs did not contradict attorney Yeldell’s affidavit regarding the correct date of the will. Based upon the applicable law, we cannot say the district court erred in considering this extrinsic evidence in determining that the will was dated as required by Article 1577. Thus, this assignment of error lacks merit.

|sThe plaintiffs contend the district court erred in finding that the form of the attestation clause complies with the statutory requirements. They argue that the testament is null because the attestation clause is defective.

In order for a notarial testament to be valid as to form, (1) the testator must declare in the presence of a notary and two witnesses that the instrument is his testament, (2) the testator must sign his name at the end of the testament and on each separate page, and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of Article 1577 have been followed. Succession of Smith, 49,118 (La.App. 2 Cir. 8/13/14), 146 So.3d 917.

For a valid notarial will, there must be an attestation clause, or clause of declaration. However, its form is not sacrosanct. Succession of Smith, supra. The attestation clause may use the form suggested in the statute, or use language substantially similar thereto. The attestation clause is designed to demonstrate that the facts and circumstances of the execution of the instrument conform to the statutory requirements. Courts liberally construe and apply the provisions of Article 1577, maintaining the validity of the will if at all possible, as long as the will is in substantial compliance with the statute. Succession of Holbrook, supra.

In the present case, the declaration on page two of the will states: “Signed and declared by Henry Earl Dawson, above named in our presence, on each of its pages, and declared by the Testator in our presence to be his last will and testament, and in the presence of the Testator and of each other, we, the undersigned Notary Public and witnesses, have hereunto subscribed our names this 28th day of February, 2013.” The plaintiffs argue that the 1 ^attestation clause is defective because there is no declaration that the testator signed the will at its end.

The attestation clause confirms that the testator declared that the instrument was his will and signed in the presence of the witnesses and notary on the stated date. Although the attestation clause of the will is not identical to the statutory declaration that the testator signed the will “at the end,” the will itself demonstrates that the testator signed at the bottom of page one after the provision bequeathing all property to the defendant and signed at the end of page two. The authority cited by plaintiffs does not support their argument that the will, which is clearly signed by the testator at the end and on each separate page, is invalid because the attestation clause does not state that obvious fact.

After reviewing the evidence contained in the record, we conclude that the language of the will’s attestation clause substantially complies with the requirements of Article 1577(2). Thus, the district court did not err in granting partial summary judgment in favor of the defendant. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s partial summary judgment is affirmed and this matter is remanded for further proceedings. Costs of this appeal are assessed to the appellants, James W. Dawson, James W. Dawson, Jr., Lawrence Dawson, Vicki D. Kelly, Charles Dawson, Donna D. Edwards, Patricia D. Gregory, Wilma D. Blackard, Virginia Sellers and Earl Stutts.

AFFIRMED.


author: GARRETT, J.

text:
    WALTER MORTGAGE COMPANY, LLC, Plaintiff-Appellant v. Oscar TURNER, Bessie Mae Law Turner and Rodrick G. Turner, Defendants-Appellees
    No. 51,007-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016

      CASHE COUDRAIN & SANDAGE, By: Andre G. Coudrain, Jamie P. Gomez, Counsel for Appellant, Green Tree Servicing, LLC, Successor by Merger with Walter Mortgage Co., LLC
    JOSEPH A. CANNATELLA, JR., Counsel for Appellee, Rodrick G. Turner
    PETTIETTE, ARMAND, DUNKEL-MAN, WOODLEY, BYRD <& CROMWELL, By: Joseph S. Woodley, Counsel for Appellee, Steve Prator, Sheriff of Cad-do Parish
    Before MOORE, GARRETT, and STONE, JJ.
   GARRETT, J.

h The plaintiff, Green Tree Servicing, LLC (“Green Tree”), the successor by merger of Walter Mortgage Company, LLC (‘Walter”), appeals from a trial court judgment annulling, vacating, and setting aside a sheriffs sale deed. For the following reasons, we reverse and vacate the trial court judgment.

FACTS

In order to understand the progression of this convoluted case, an explanation of the confusing chain of events leading to the judgment annulling the sheriffs sale is necessary. In December 2011, Walter filed a petition for executory process, naming as defendants Oscar Turner, Bettie Mae Law Turner, and their son, Rodrick G. Turner. Walter alleged that it was the holder of a promissory note executed by the defendants in 2003, payable in monthly installments, and secured by a mortgage on immovable property, which appears to be the defendants’ house. The mortgage contained a confession of judgment. Walter claimed that the defendants failed to make the payment due on November 5, 2008, or any payments since that time, and that they owed the balance due on the note, $94,083.29, together with attorney fees. Walter requested that a writ of seizure and sale be issued directing the Caddo Parish Sheriff to seize, advertise, and, sell the property without benefit of appraisement. Judge Leon Emanuel signed an order directing that a writ of seizure and sale issue to the sheriff, commanding the seizure and sale of the property. The writ of seizure and sale was duly issued on December 15, 2011. A sheriffs sale was apparently |2scheduled. For reasons unexplained in this record, it was postponed. On January 17, 2014, Green Tree filed an amended petition alleging it was the successor by merger with Walter. It also substituted as defendants the unopened successions of Oscar Turner and Bettie Mae Law Turner, and maintained Rodrick Turner as a defendant. Green Tree alleged that the balance due on the note had increased to $104,477.54. Green Tree also fíled a motion for the appointment of attorneys to represent the unopened successions. That motion was granted and the attorneys appointed for the unopened successions later filed reports into the suit record detailing unsuccessful attempts to make any contact.

Attached to the amended petition was another order for a writ of seizure and sale, to be directed to the sheriff. The order was not signed and bears the handwritten notation “(Unsigned—premature— MAP—2/26/14).” The initials are those of Judge Michael A. Pitman, who later rendered the judgment which is the subject of this appeal.

On May 19, 2014, at Green Tree’s request, an attorney was appointed for Rodrick Turner. That attorney filed a general denial answer on Turner’s behalf, but there is no report in the record detailing attempts to contact him. The sheriffs sale was eventually held on November 26, 2014, and the property was adjudicated to Green Tree.

On April 24, 2015, the Caddo Parish Sheriff filed in the executory process suit record a pleading entitled “Motion for Instructions.” The motion explained that, in accordance with the writ of seizure and sale issued I,qpn December 15, 2011, a sheriffs sale was conducted on November 26, 2014, and the property was adjudicated to Green Tree. A procés verbal was filed on December 29, 2014. On March 16, 2015, Green Tree obtained a writ of possession from the court ordering the sheriff to place it in possession of the property and to eject all occupants from the premises. While the sheriffs office was preparing to execute this writ, it was contacted over the telephone by an attorney purporting to represent one or more of the defendants. The attorney claimed that the sheriffs sale was not lawfully conducted and the writ of possession should not be executed. Green Tree requested that the sheriff proceed with the writ. Caught in the middle, the sheriff filed the Motion for Instructions, noting that it had no interest in the proceedings other than the proper discharge of the duties of the office. The sheriffs motion sought the following relief:

WHEREFORE, the Sheriff prays that the plaintiff and defendants be served with this motion and directed to show cause why the court should not enter instructions either recalling the writ of possession or directing the Sheriff of Caddo Parish to execute it, and that after due proceedings had the court give further instructions to the Sheriff as to whether he should execute the writ of possession or whether it will be recalled.

A rule to show cause on the sheriffs motion, directed to Green Tree, the two unopened successions, and Turner, was set for June 29, 2015.

Green Tree filed a response to the sheriffs motion, requesting that the sheriff be ordered to execute the writ of possession. Green Tree maintained that the sheriffs sale was valid based on the original writ of seizure and sale issued in December 2011, Green Tree urged that the unsigned writ of seizure and sale connected with the amended petition was a procedural Rdefect and any objection to it was waived because the defendants failed to raise an objection prior to the sale by filing a suit for injunction or a suspensive appeal, as required by law.

On June 19, 2015, the attorney retained by Turner filed a motion to enroll and a “response” to the sheriffs motion. In the response, Turner argued that the sheriffs sale was not lawfully conducted because the amended petition was not approved by the trial court. Turner claimed that the amended petition was denied as premature by the trial court because no documents were attached to show that Green Tree was the successor by merger to Walter. Turner urged that this was a due process issue and not procedural only. He claimed that the failure to obtain judicial approval for the filing of the amended petition was fatal to the proceedings. Turner maintained that the sheriffs sale was not conducted based upon the December 2011 writ of seizure and sale because the parties had changed. Turner argued that he was not required to raise the issue of nullity prior to the sale. He cited Tapp v. Guar. Fin. Co., 158 So.2d 228 (La. App. 1st Cir. 1963), writs refused, 245 La. 640, 641, 160 So.2d 228 (1964), a case which has been legislatively overruled, in support of his argument that nullity of the sale could be asserted as late as on appeal.

|r,In response to Turner’s brief, Green Tree argued that the sole question before the court was whether the sheriff could execute the writ of possession. Green Tree maintained that it was procedurally improper for the court to decide whether the sale should be declared null where Turner had not filed a petition for injunction or a suspensive appeal properly raising the issue. Green Tree claimed that, because Turner failed to raise, prior to the sale, the procedural issue of whether there was sufficient authentic evidence to support Green Tree’s substitution as plaintiff, the objection was waived. Green Tree also pointed out that it was unclear why the trial court refused to sign the second order for a writ of seizure and sale. It claimed that Turner’s assertion that the court refused to sign because of a lack of authentic evidence was speculation. Without waiving its objection to Turner’s attempt to obtain a ruling annulling the sale, Green Tree argued that the sale was proper and Turner’s allegations of nullity were untimely.

The hearing held on June 29, 2015, consisted of oral arguments by counsel. The sheriff maintained that it executed on the original writ of seizure and sale issued in December 2011, which was still extant. The sheriff also claimed that notice was properly given to Turner, who was served on January 26, 2012, by domiciliary service, with the 2011 writ of seizure and sale.

At the argument, Turner raised additional complaints about the seizure and sale which were not contained in the response filed with the court. He strenuously maintained that substantive due process issues existed. Turner’s counsel argued that his client was blind and never got notice of the amended petition. Turner contended that the seizure and sale was not based on the writ of seizure signed by the court in 2011, but on the unsigned order [ (¡connected with the amended petition filed in 2014. Because the second order was not signed, Turner argued that the sheriffs sale was an absolute nullity. According to Turner, the original writ of seizure and sale was no longer valid. Turner also urged that no attorney should have been appointed for him because he is not deceased, an absentee, or a nonresident.

Responding to Turner’s arguments, Green Tree contended that, under La. C.C.P. art. 1151, judicial approval of the amended petition was not necessary. In response to Turner’s argument that Green Tree had not provided evidence that it was the successor by merger to Walter, Green Tree, without any objection, filed the act of merger into evidence. Green Tree maintained that the first writ of seizure and sale, issued in 2011, was still effective and the fact that the order attached to the amended petition was not signed by the court did not affect the validity of the sale.

After argument, Turner’s attorney was granted 15 days to file a post-motion brief and responses were to be filed 15 days after that. In a document termed a “supplemental response,” Turner urged that the original notice for the writ of seizure and sale was directed to different parties from those in the amended petitions. Turner stated that he did not receive notice of the second writ of seizure and sale. He reiterated his argument that the appointment of an attorney to represent him was improper because he was not a nonresident, absentee, or deceased.

Green Tree filed a reply to the “supplemental response,” again arguing that the case was not in the proper procedural posture to invalidate the sheriffs sale because Turner did not file an injunction, a suspensive appeal, or a direct action to annul. Green Tree also maintained that the seizure and sale was proper under the original writ signed in 2011, and that 17Turner’s due process rights were not violated. Green Tree maintained that the appointment of an attorney to represent Turner was proper and that Turner’s argument that he did not receive notice of the seizure from the attorney appointed to represent him does not impact the validity of the sheriffs sale according to La. C.C.P. art. 5098.

On September 9, 2015, an oral ruling was rendered in open court in favor of Turner. The court noted that it did not sign the new order for issuance of a writ of seizure and sale because Green Tree had requested the appointment of attorneys to represent the unopened successions. Therefore, the court deemed the writ to be premature. Based upon its reasoning that Green Tree proceeded with the sheriffs sale without a signed order, the trial court annulled and vacated the sheriffs sale. On September 9, 2015, the trial court signed a judgment in favor of the unopened successions and Turner, against Green Tree, annulling, vacating, and setting aside the sheriffs sale deed resulting from the sheriffs sale on November 26, 2014.

Green Tree filed an application for supervisory writs which was later treated as an order of appeal, and now the matter is before us.

On appeal, Green Tree asserts that the trial court erred in annulling, vacating, and setting aside the sheriffs sale. From a procedural standpoint, it asserts that the sole issue posed before the court below was whether the sheriff possessed the authority to execute on the writ of possession. Green Tree urges that Turner has not properly or legally raised any objections to the seizure and sale by seeking an injunction prior to the sale, taking a Issuspensive appeal from the order of sale, or filing an ordinary suit to annul the sale on the basis of a substantive defect. From a substantive standpoint, Green Tree also maintains that the trial court erred in failing to find that the property remained seized from the writ of seizure and sale signed in December 2011. Green Tree urges that the trial court erred in failing to instruct the sheriff to place it in possession of the property.

WHETHER TURNER’S OBJECTIONS TO THE EXECUTORY PROCESS PROCEEDINGS WERE PROPERLY BEFORE THE COURT

Green Tree argues that Turner did not properly raise its objections to the seizure and sale. It urges that Turner was required by our law to raise any objections by seeking an injunction prior to the sale, taking a suspensive appeal from the order of sale, or filing an ordinary suit to annul the sale on the basis of a substantive defect. Because Turner failed to properly raise objections to executory process, Green Tree contends that the trial court erred in annulling the sheriffs sale. These arguments have merit.

Legal Principles

Three different modes of procedure are used in civil matters in the trial courts of this state: ordinary, summary, and execu-tory. The articles in Book II of the Louisiana Code of Civil Procedure govern ordinary proceedings, which are to be used in the district courts in all cases, except as otherwise provided by law. Summary and executory proceedings are regulated by the provisions of Book V. See La. C.C.P. art. 851. The present matter involves an executory proceeding.

An executory proceeding in Louisiana is an in rem action derived from the civil law; it provides a simple, expeditious, and inexpensive procedure by which creditors may seize and sell property upon which they 19enjoy a mortgage or privilege. Executory process is regarded as a harsh remedy, requiring for its use a strict compliance by the creditor with the letter of the law. First Guar. Bank, Hammond, La. v. Baton Rouge Petroleum Ctr., Inc., 529 So.2d 834 (La. 1987). See also Moore v. Louisiana Bank & Trust Co., 528 So.2d 606 (La. App. 2d Cir. 1988), writ denied, 531 So.2d 269 (La. 1988).

Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law. La. C.C.P. art. 2631. A person seeking to enforce a mortgage or privilege on property in an execu-tory proceeding shall file a petition therefor, praying for the seizure and sale of the property affected by the mortgage or privilege. See La. C.C.P. art. 2634. La. C.C.P. arts. 2635 through 2637 outline the evidence which must be presented.

If the plaintiff is entitled thereto, the court shall order the issuance of a writ of seizure and sale commanding the sheriff to seize and sell the property affected by the mortgage or privilege, as prayed for and according to law. La. C.C.P. art. 2638. Citation is not necessary in an executory proceeding. La. C.C.P. art. 2640.

Under the statutory scheme for ex-ecutory proceedings, the sheriff is only required to serve upon a defendant the written notice of the seizure of the subject property after the order has been signed. See La. C.C.P. art. 2721. The only other notice required is the legal advertisement of the sheriffs sale. Henderson v. Kingpin Dev. Co., 2001-2115 (La.App. 1 Cir. 8/6/03), 859 So.2d 122. As stated in Michael H. Rubin & E. Keith Carter, Notice of Seizure in Mortgage Foreclosures and Tax Sale Proceedings: The Ramifications of Mennonite, 48 La. L. Rev. 535, 542-543 (1988):

Immediately upon the filing of the suit, the judge reviews the petition for execu-tory proceeding along with the attached documents and affidavits. If all is in order, the judge orders that a writ of seizure and sale be issued. Citation and service of process, are not necessary in an executory [proceeding]. The sheriff constructively seizes the property by recording the writ in the public records. If the mortgagor has waived the right to receive a demand for payment, the only notice he receives is of the seizure itself, after the in rem judgment has been rendered and the property constructively seized.

The execution of a writ of seizure and sale is governed by La. C.C.P. arts. 2721-2725. The sheriff shall seize the property affected by the mortgage, security agreement, or privilege immediately upon receiving the writ of seizure and sale. The sheriff shall serve upon the defendant a written notice of the seizure of the property. Such notice of seizure shall be accomplished by personal service or domiciliary service. The notice of seizure shall reproduce in full the provisions of Article 2642 and include information concerning the availability of housing counseling services, as well as the time, date, and place of the sheriffs sale, in accordance with the form provided in La. R.S. 13:3852(B). See La. C.C.P. art. 2721. The sheriff shall not be required to serve any further notice of rescheduled sale dates provided he has not returned the writ to the clerk of court. La. R.S. 13:3852(C). See also Chase Manhattan Mortg. Corp. v. Lassiter, 04-484 (La. App. 5th Cir. 11/30/04), 889 So.2d 1155.

The Louisiana Code of Civil Procedure specifically provides the procedure for raising defenses and procedural objections to an executory proceeding. La. C.C.P. art. 2642 states in pertinent part:

A, Defenses and procedural objections to an executory proceeding may be asserted either through an injunction _Jjjproceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.

The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or is legally unenforceable, or if the procedure required by law for an executory proceeding has not been followed. La. C.C.P. art. 2751. The petition for injunction shall be filed in the court where the executory proceeding is pending, either in the executory proceeding or in a separate suit. La. C.C.P. art. 2752.

Injunction proceedings and suspen-sive appeals from the order directing the issuance of the writ of seizure and sale are aimed at stopping the executory proceeding before the property is sold. When the creditor improperly causes the debtor’s property to be sold, the debtor may, under certain circumstances, have the sale annulled, even though he has failed to prevent it by injunction or suspensive appeal. If the creditor is the adjudicatee at the sale, the debtor may attack that sale based solely on substantive defects in the execu-tory proceeding, such as fraud, lack of notice, or ül practices by the creditor. See Brown v. Everding, 357 So.2d 1243 (La. App. 2d Cir. 1978); Taurus Leasing Corp. v. Chalaire, 400 So.2d 303 (La. App. 4th Cir. 1981), writ denied, 406 So.2d 604 (La. 1981); Gulf Coast Bank & Trust Co. v. Warren, 2012-1570 (La. App. 4th Cir. 9/18/13), 125 So.3d 1211; Plumbing Supply House, Inc. v. Century Nat’l Bank, 440 So.2d 173 (La. App. 4th Cir. 1983), writs denied, 444 So.2d 1226 (La. 1984); Wells Fargo Bank, N.A. v. Thompson, 14-3 (La. App. 5th Cir. 5/21/14), 142 So.3d 182; Chase Home Fin., LLC v. Vance, 15-115 (La. L App. 5th Cir. 10/14/15), 177 So.3d 136, writ denied, 2015-2180 (La. 2/5/16), 186 So.3d 1166. See also Reed v. Meaux, 292 So.2d 557 (La. 1973); Paciera v. Augustine, 518 So.2d 1164 (La. App. 5th Cir. 1988), writ denied, 522 So.2d 1095 (La. 1988).

Objections as to the lack of authentic evidence or as to minor defects of form or procedure may not be used as grounds for an action to annul a judicial sale of immovable property after recordation of the sheriffs sale or procés verbal in accordance with executory process. La. R.S. 13:4112; Hibernia Nat’l Bank v. Lankster, 578 So.2d 535 (La. App. 4th Cir.1991); Deutsche Bank Nat’l Trust Co. v. Carter, 10-663 (La. App. 5th Cir. 1/25/11), 59 So.3d 1282, writ denied, 2011-0392 (La. 4/8/11), 61 So.3d 691.

Without evidence of substantive defects in the executory proceedings to nullify a completed seizure and sale, the debtor has no cause of action for damages from a lawful seizure and sale. Gulf Coast Bank & Trust Co. v. Warren, supra. The debtor may not annul the sale if the property is in the hands of an innocent third person. First Guar. Bank, Hammond, La. v. Baton Rouge Petroleum Ctr., Inc., supra.

Our courts have stated that any attempt to nullify a sheriffs sale authorized by executory process must be brought in a direct action, which is an ordinary proceeding. Deutsche Bank Nat’l Trust Co. v. Carter, supra, citing Reed v. Meaux, supra; Tidwell v. Goston, 371 So.2d 299 (La. App. 2d Cir. 1979). A direct action means “that the party praying for the nullity of a judgment, before the court which has rendered same, must bring his action by means of a petition; and the adverse party must be cited to appear, as in ordinary suits.” Deutsche Bank Nat’l Trust Co. v. Carter, supra. Ordinary proceedings contemplate the filing of a petition setting out all causes of action out of, and the material facts of, the transaction or occurrence that is the subject matter of the litigation. See La. C.C.P. art. 891. A motion filed in the same action as the suit for executory process filed by the creditor has been held not to be a petition filed in a direct action; the claim to have a seizure and sale declared a nullity was vacated. See Deutsche Bank Nat’l Trust Co. v. Carter, supra.

Discussion

The law is clear that there are three methods of raising objections or defenses to an executory proceeding. Turner did not raise any objection to executory process prior to the sale, either by instituting an injunction proceeding or bringing a suspensive appeal from the order directing the issuance of the writ of seizure and sale. Under these circumstances, Turner was limited to filing a direct action by ordinary process, seeking to have the sale annulled based upon substantive defects. Turner has only filed “responses” to a sheriffs motion for instructions. As in Deutsche Bank Nat’l Trust Co. v. Carter, supra, this was not legally sufficient to properly present any substantive defects to the trial court.

114The wisdom of requiring that substantive defects be asserted by filing a direct action in an ordinary proceeding is amply demonstrated by the progression of this matter through the lower court. This controversy began with a telephone call and then progressed with a scattershot of arguments made in briefs and oral arguments. This is not how disputes are to be raised and resolved. Filing a direct action in an ordinary proceeding requires Turner to set forth succinctly, in a petition, all of his grounds for seeking to annul the sheriffs sale. After proper service and citation, Green Tree would then have an opportunity to answer and defend against those claims. In this matter, Turner has basically presented a constantly moving target which was never contained in a lawsuit. His claims have changed, evolved, and expanded with each response, and even on appeal.

As explained above, Turner’s initial response to the sheriffs motion argued that Green Tree did not have the approval of the trial court to amend the executory process proceeding and had failed to show that it was the successor by merger to Walter. We note that under La. C.C.P. art. 1151, in ordinary proceedings, a petition may be amended at any time before the answer is served. In executory process proceedings, answers are not contemplated under the statutory scheme. Even if La. C.C.P. art. 1151 were applicable here, approval of the court would not be necessary to amend the petition. Further, at the hearing on the sheriffs motion, Green Tree presented evidence of the merger with Walter, thus answering any objection in that regard.

|15When the parties appeared before the court on the sheriffs motion, Turner verbally raised new substantive due process issues not included in his initial response. He urged that he was blind, that he did not get notice of the amended petition, and that no attorney should have been appointed to represent him because he is not a nonresident, absentee, or deceased.

In his brief on appeal, Turner now argues for the first time that the seizure and sale were obtained by “ill practices” because Oscar and Bettie Mae Law Turner did not get notice of the first writ of seizure and sale since they were deceased at that time and no attorney had been appointed to represent them. Turner also argues that, under the law in effect in 2012, service of notice of the writ of seizure and sale through domiciliary service upon him was insufficient.

The trial court, and now this court, were faced with changing contentions regarding the validity of the seizure and sale. The trial court erred in annulling the seizure and sale under these circumstances because the case has never been in the proper procedural posture for such a ruling. Simply put, Turner has failed to properly present his claims to the trial court. The filings in the record are legally insufficient to raise the various claims asserted by Turner as the case has progressed.

Although Green Tree participated in the hearing on the sheriffs motion for instructions, it has steadfastly maintained that it was not conceding that Turner’s claims were properly raised, and reserved all its rights. Every response or brief filed by Green Tree, both below and before this court, has consistently maintained that Turner has not properly raised his annulment arguments. Thus, we are not persuaded by Turner’s argument on 11flappeal that the pleadings were somehow expanded by the implied consent of the parties.

In the present case, because Turner failed to raise defenses or procedural objections to the executory proceeding by filing an injunction proceeding or bringing a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both, he was limited to an ordinary proceeding to assert substantive errors. As in Deutsche Bank Nat’l Trust Co. v. Carter, supra, motions or responses filed in the executory proceeding itself are procedurally insufficient to raise such claims. Due to the fact that Turner’s claims were not properly raised, the trial court erred in annulling the seizure and sale. Accordingly, we reverse and vacate that judgment. We pretermit consideration of Green Tree’s arguments that the trial court erred in fading to find that the property remained seized under the December 2011 writ of seizure and sale and whether the trial court erred in failing to place Green Tree in possession of the property.

CONCLUSION

For the reasons stated above, we reverse and vacate the trial court judgment in favor of Turner and his parents’ unopened successions, annulling, vacating, and setting aside the sheriffs sale deed in this matter. Costs in this court are assessed to the defendant, Rodrick G. Turner.

REVERSED; JUDGMENT VACATED.

      . Although the cover of the record lists the second defendant as Bessie Mae Law Turner, the pleadings consistently refer to her as Bettie Mae Law Turner.

      . One of the attorney reports contains a copy of a notice of seizure and sale issued on March 21, 2014, by the Caddo Parish Sheriff to the unopened succession of Bettie Mae Law Turner, stating that the property was being seized under the original writ of seizure and sale issued by the court on December 15, 2011. The notice listed Green Tree as the plaintiff and the unopened successions and Rodrick Turner as the defendants. A sale was scheduled for June 11, 2014.

      . This document, along with many others mentioned in briefs, are not contained in the record.

      . Tapp did not hold that the nullity of execu-tory proceedings could be raised for the first time on appeal. Tapp involved four separate lawsuits, one of which was an ordinary suit by the debtor alleging nullity. Turner’s attorney misread the following language from Tapp:

      It appears from the record that the plaintiff herein, Oliver C. Tapp, did not consult an attorney prior to the instant suit and took absolutely no action in any of the previous proceedings. The nullity of the foreclosure proceedings under executory process is complained of here for the first time.
      This refers to the suit filed by Tapp in the district court claiming that the seizure and sale was a nullity. Tapp did not raise the issue for the first time on appeal. If anything, Tapp instructs that an ordinary suit is necessary to assert nullity.

      . At the hearing in June, however, the trial court stated that it could not remember why the order was deemed to be premature and not signed.

      . We note that neither of the unopened successions participated in the proceedings leading up to the ruling and counsel for Rodrick Turner does not represent the unopened successions.

      . Under Reed v. Meaux, supra, the supreme court allowed direct actions to annul executo-ry proceedings which were based upon fundamental defects as opposed to minor defects of form or procedure. In 1975, the legislature added La. R.S. 13:4112, prohibiting actions to annul completed judicial sales of immovable property by executory process by reason of any objection to form or procedure or lack of authentic evidence in the executory proceeding. First Guar. Bank, Hammond, La. v. Baton Rouge Petroleum Ctr., Inc., supra.

      . See and compare Acme Mortg. Co. v. Cross, 464 So.2d 945 (La. App. 4th Cir. 1985), in which the debtor filed for an injunction to stop a seizure and sale, the injunction was denied, and the debtor appealed devolutively. The property was sold while the appeal was pending and the fourth circuit dismissed the appeal as moot.

      . La. C.C.P. art. 2637(D) provides that authentic evidence of a merger is not required, It may be proved by a verified petition or supplemental petition, or by an affidavit or affidavits submitted by an appropriate officer of the successor entity.