Danel v. Knek 490 So. 2d 282

DOMENGEAUX, Judge.

Plaintiff-appellee, Harriet J. Danel, instituted this law suit against her former employer, defendant-appellant, KNEK, a domestic corporation, seeking judgment for unpaid wages in the sum of $989.85, interest on said amount, penalties and attorney’s fees. In due course there was judgment by default for $3,150.00 in penalties and $1,000.00 in attorney’s fees, with judicial interest from the date of judicial demand, and the judgment confirming this default was rendered and signed in open court on March 27, 1984.

Within the judicial delay of seven days required by Louisiana Code of Civil Procedure Article 1974, the defendant filed a motion seeking to have a new trial and/or the judgment set aside. After an eviden-tiary hearing the district judge overruled the defendant’s motion1 and the defendant has appealed.

A review of the record in this case and the appellant’s brief convinces us that the major crux of this appeal is based upon defenses which should have been raised at a trial on the merits. The appeal does not. raise as an issue any question of the plaintiff’s failure to prove a prima facie case.

At the outset we point out that the district judge correctly denied the appellant’s motion for new trial and/or nullification of judgment. The jurisprudence is replete with cases which hold that when one seeks to have a default judgment against him set aside, or following the default judgment a new trial, he must allege and prove that he had good reasons for his non-appearance and for his failure to appear and timely plead. Furthermore, should the district judge deny the defendant’s motions the appellate court may not disturb the ruling unless the defendant has shown to the trial judge a good excuse for his failure to appear and defend the suit. See DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951); Succession of Rock v. Allstate Life Insurance Co., 340 So.2d 1325 (La.1976), and Lamb v. Lamb, 416 So.2d 243 (La. App.3rd Cir.1982). This rule of law applies whether the motion for new trial or the motion to set aside the default judgment was based upon a defendant’s meritorious defense or the plaintiff’s fraud or ill practices in securing judgment. See DeFrances v. Gauthier, supra, and Steele v. Ruiz, 202 So.2d 376 (La.App. 4th Cir.1967).

Here, the defendant is a Louisiana corporation. Service of process was made upon Mrs. Dee Sylvester, a member of the Board of Directors, an Officer, and the Acting Manager of KNEK. She testified that she knew that she had fifteen days within which to respond to the plaintiff’s petition but failed to do so because “the workload [at the radio station] was so heavy because we were working so short-staffed within that February month, I did not pay as close attention to it as I should have ...” We do not feel that inattention to citation is a valid reason for appellant’s nonappearance and we therefore hold that the district judge correctly denied the defendant’s motion.

*284The appellant further contends that the award granted by the district court was improper because the court awarded penalties and attorney’s fees under La.R.S. 23:631 and 632 but did not make an award of the principal demand.

La.R.S. 23:631 provides in pertinent part:

“Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation.”

La.R.S. 23:632 provides that penalties and attorney’s fees may be assessed against an employer who does not comply with the provisions of La.R.S. 23:631.

In his written reasons for judgment, the district judge found that:

“Plaintiff’s duties consisted of selling broadcasting advertisement. On termination of her employment on September 19, 1983, she was owed wages by her employer which remained unpaid despite amicable demand. Thus, having failed to pay its employee within the time specified by LSA R.S. 23:631, the defendant became liable to the plaintiff under LSA R.S. 23:632, for 90 days wages at her daily rate of pay and for reasonable attorney’s fees which I fix at $1000.”

Having determined that the defendant failed to pay the plaintiff within the time specified by La.R.S. 23:631, it was within the district judge’s discretion to award penalties and attorney's fees. The statute does not require an award for the principal demand of past due wages before the penalty award can be granted, it simply requires that the employer fail to pay the wages within the three day time limit.

The appellant also asserts that the plaintiff was not entitled to an award of penalties in this suit for damages because they did not act arbitrarily in failing to pay because there was a bona fide dispute as to the wages due. This argument lacks merit because of the procedural posture in which this ease arrived before the trial court. This case came before the district court as a default. The defendant did not appear before the court to argue any defenses or mitigating circumstances for not having paid the past due wages. The district judge could not assume that the defendant had not paid the wages because of a good faith dispute over the amount of wages due and owing.

We will however modify the district judge’s award which granted interest on the penalties and attorney’s fees.

La.C.C.P. Art. 1921 provides: “The court shall award interest in the judgment as prayed for or as provided by law.” Under this codal article, “interest may be awarded only if prayed for or if provided by statute”. Byrd v. Guilbeaux, 442 So.2d 887 (La.App. 3rd Cir.1983). In the present case, La.R.S. 23:632 does not provide for statutory interest. Furthermore plaintiff’s petition prays for the amount of wages she alleged was due her, plus interest on that amount, plus penalties and attorney’s fees. The prayer does not request interest on the penalties and attorney’s fees, therefore based upon La.C.C.P. Art. 1921, an award of interest on the penalties and attorney’s fees was improper.

For the above and foregoing reasons the judgment of the district court insofar as it awarded interest on the penalties and attorney’s fees is reversed; the judgment of the district court is affirmed in all other respects at the appellant’s costs.

AFFIRMED IN PART, REVERSED IN PART.

KING, J., dissents and assigns written reasons.

KING, Judge,

dissenting.

I respectfully dissent.

The majority finds that the appeal does not raise as an issue any question of the plaintiff’s failure to prove a prima facie case. I disagree.

*285The defendant timely moved for a new trial and/or to have the default judgment set aside. The defendant’s motion alleged numerous grounds including the ground that the default judgment was contrary to the law and the evidence. The defendant complains on appeal about the denial of its motion for a new trial. The trial court was clearly wrong and manifestly in error in failing to grant a new trial on these grounds.

The default judgment was contrary to the evidence. The documentary evidence introduced by plaintiff, upon confirmation of the default judgment, showed that she was only paid on a commission basis which was contrary to her oral testimony that she was paid on a daily basis. The plaintiffs documentary evidence very clearly shows that plaintiff was only paid on a commission basis with a guaranteed monthly minimum gross pay. (See Plaintiff Exhibit 4) Plaintiff orally testified that she was paid at the rate of $35.00 per day which was clearly contradicted by her own documentary evidence. Certainly the default judgment for penalties, which was rendered on the basis of a daily wage, was contrary to the evidence presented by the plaintiff.

The judgment was also contrary to law. Where a party’s “wages” are placement commissions, which fluctuate monthly, penalties should be fixed at three months of plaintiff’s guaranteed minimum salary or draw. See Hess v. Pembo, 422 So.2d 503 (La.App. 4th Cir.1982). The trial court’s judgment fixing penalties, under the circumstances of this case, on the basis of a daily wage was contrary both to the law and the evidence.

As the majority correctly point out in their opinion the trial court’s rendition of interest on the penalties and attorney’s fees was also contrary to law as the statute (La.R.S. 23:632), does not provide for statutory interest on any award of penalties or attorney’s fees. However, rather than reversing the trial court judgment, as defendant sought by its motion for a new trial which was denied, the majority on appeal chose to amend the trial court judgment after acknowledging that the judgment rendered by the trial court was contrary to law. If the judgment which the trial court rendered was contrary to law a new trial should have been granted by the trial court and its refusal to do so on defendant’s timely motion was reversible error.

For the reasons set forth above I believe that the default judgment rendered in plaintiff’s favor was clearly contrary to the law and the evidence and that the trial court erred when it refused to grant a new trial on these grounds. I believe that the májority erred on appeal by partially amending the judgment complained of rather than setting it aside and remanding the matter to the trial court for a new trial on the grounds that the default judgment was contrary to the law and the evidence because of plaintiff’s failure to prove a prima facie case.

ON REHEARING

Before DOMENGEAUX and KING, JJ., and SWIFT, J. Pro Tern.*

The sole issue presented by this appeal is whether or not the trial court should have granted a timely motion for new trial after rendition of a default judgment in favor of the plaintiff and against the defendant.

Harriet J. Danel (hereinafter referred to as plaintiff) filed suit against her former employer, KNEK (hereinafter referred to as defendant), a Louisiana corporation, seeking judgment for unpaid wages in the sum of $989.85, legal interest on the amount owed, penalties, and attorney’s fees. Citation and service of process were made upon the defendant and, upon the defendant failing to timely plead, a preliminary default judgment was entered. The preliminary default judgment was confirmed in accordance with law and judgment was rendered by default in favor of *286plaintiff and against defendant for $3,150.00 in penalties, $1,000.00 in attorney’s fees, together with legal interest thereon from date of judicial demand, until paid, and all costs of the proceedings. A written judgment confirming the default judgment was rendered, read and signed in Open Court on March 27, 1984.

The defendant timely moved for a new trial and/or nullification of the default judgment. After an evidentiary hearing the district judge overruled the defendant’s motion and the defendant appealed.

On appeal we originally affirmed in part, reversed in part, and rendered judgment. Defendant timely filed a motion for rehearing which was granted. On rehearing one of the judges who originally heard this appeal was recused and a Judge Pro Tem-pore was appointed to sit in his place for the rehearing. On rehearing we now render judgment reversing the trial court’s denial of defendant’s motion for a new trial and remand the matter to the trial court for a new trial.

FACTS

The record consists of the testimony and exhibits of the plaintiff, given at the time of the confirmation of the default judgment, and the testimony and exhibits of the defendant’s employee, Dee Sylvester, given at the time of the hearing on the defendant’s motion for a new trial and/or nullification of the judgment. The evidence in the record reveals that plaintiff was employed by the defendant on August 8, 1983 as a sales person whose job was to sell broadcast advertising. She was employed on a monthly commission basis of fifty percent on the first $1,000.00 in monthly sales and fifteen percent on. all monthly sales over $1,000.00. She was additionally to be paid $100.00 per month cash as a gasoline allowance, payable one-half on the first and one-half on the fifteenth of each month, and was guaranteed a minimum gross pay of at least $700.00 per month, including the gasoline allowance.

Plaintiff’s employment with the defendant terminated on September 19, 1983. Shortly after termination of her employment plaintiff, both in person and through counsel, made written demand upon the defendant for payment of wages she claimed were due and owing. Receiving no response to these demands plaintiff instituted suit. Citation and service of process were made upon the defendant, through one of its registered agents. Defendant failed to timely file responsive pleadings and a preliminary default judgment was entered on March 19, 1984. Thereafter, on March 27, 1984, the preliminary default judgment was confirmed. A written judgment was rendered, read and signed in Open Court on March 27, 1984. On April 5, 1984, within the judicial delay of seven days required by LSA-C.C.P. Art. 1974, the defendant timely filed a motion for a new trial and/or nullification of the default judgment. An evidentiary hearing was held on the defendant’s motion on April 30, 1984 and the trial judge overruled the defendant’s motion for a new trial and/or nullification of the default judgment.1 The defendant timely appealed alleging as assignments of error that:

(1) The evidence introduced at the default hearing, consisting of the plaintiff’s testimony and exhibits, does not support the allegations of plaintiff’s petition;

(2) The documents offered by plaintiff contain serious contradictions and inaccuracies;

(3) Inaccurate, contradictory, incomplete and altered documents were introduced in support of the default judgment;

(4) The default judgment made no award of back wages in favor of plaintiff and against defendant and for this reason penalties and attorney’s fees were not justified;

*287(5) Defendant had a valid defense to plaintiffs demands and there was a serious and bona fide dispute between the parties.

In the original opinion rendered by this Court, we stated that just because defendant might have a defense to plaintiffs demands or there exists a serious and bona fide dispute between the parties is not a sufficient nor valid legal reason to set aside a default judgment and grant a new trial unless the defendant has shown a good excuse for his failure to appear and defend the suit. As Judge Domengeaux correctly pointed out in the original majority opinion herein, the defendant did not show a good or valid excuse for its failure to appear and defend the suit. We also stated in the original opinion rendered herein that this rule of law applies whether the motion for a new trial or the motion to set aside the default judgment was based upon a defendant’s meritorious defense or upon the plaintiffs fraud or ill practices in securing judgment citing De Frances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951), and Steele v. Ruiz, 202 So.2d 376 (La.App. 4th Cir.1967). However, this rule of law is limited to situations where the default judgment is based on the alleged defenses of fraud or ill practices which could have and should have been pleaded in the original suit. Steele v. Ruiz, supra, and cases cited therein at page 378.

In this suit the defendant’s motion for a new trial and/or nullification of judgment was based on the allegations that the evidence offered at the time of the confirmation of the default judgment was in direct contradiction with some of the allegations of the plaintiff’s petition, that there were serious contradictions and inaccuracies in the documents offered in evidence by the plaintiff, and that inaccurate, contradictory, incomplete, and altered documents were introduced by the plaintiff in support of the default judgment. Defendant, in its motion for a new trial and/or nullification of judgment filed in this suit, is alleging fraud and ill practices in the obtaining of the default judgment. This alleged fraud or ill practices could not have been pled in the original suit. Thus the rule of law set forth in our original opinion herein would not be applicable to the defendant’s claim of the plaintiff’s alleged fraud and ill practices in the obtaining of the default judgment.

The trial judge, in the written reasons for judgment requested by defendant and filed in the record, stated that defendant had failed to show that the default judgment was contrary to the law and the evidence, that it was obtained by fraud or ill practices, or that it denied the defendant any of its legal rights.

The documentary evidence introduced by plaintiff, upon confirmation of the default judgment, showed that she was only paid on a monthly commission basis which was contrary to her oral testimony that she was paid on a daily basis. The plaintiff’s documentary evidence very clearly shows that plaintiff was only paid on a monthly commission basis with a guaranteed monthly minimum gross pay. Plaintiff orally testified that she was paid at the rate of $35.00 per day which was clearly contradicted by her own documentary evidence.

The uncontradicted evidence in the record reveals that the documents introduced by the plaintiff at the time of the confirmation of the default judgment were inaccurate, incomplete, and had been altered. The photocopy of the synopsis of the plaintiff’s sales contracts, filed in evidence by the plaintiff at the time of the confirmation of the preliminary default judgment, has obviously been altered and is incomplete as can be seen by examining and comparing it to the original of that document which was introduced at the time of the hearing on the motion for a new trial. The uncontradicted testimony, can-celled checks, and other documents introduced at the time of the hearing on the motion for a new trial, concerning the amounts paid to the plaintiff, differs from the testimony of the plaintiff given at the *288time of the confirmation of the preliminary default judgment.

LSA-C.C. Art. 2004 provides that a final judgment obtained by fraud or ill practices may be annulled. We find that the uneontradicted evidence presented at the time of the hearing on the motion for a new trial, which directly contradicts that given by the plaintiff at the time of the confirmation of the preliminary default judgment, and the documentary evidence submitted by the plaintiff at the time of the confirmation of the preliminary default judgment, which is incomplete and which has been altered from the original, is sufficient to establish that the confirmation of the default judgment, rendered on March 27, 1984, might have been obtained by fraud or ill practices. A new trial may be granted in any case if there is good ground therefor. La.C.C.P. Art. 1973. We find these unexplained inconsistencies in the evidence are good grounds for the granting of a new trial in this matter and that the trial court abused its discretion and erred in not granting defendant’s motion for a new trial and/or nullification of the default judgment.

For the reasons given above, we now reverse and set aside the judgment of the trial court, rendered herein on March 27, 1984, and remand the matter to the trial court for a new trial.

All costs of these proceedings are taxed to the appellee.

REVERSED AND REMANDED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

Upon further reflection on the jurisprudence pertaining to the issue of when a court may set aside a default judgment by granting a motion for new trial or a nullification of the default judgment, I now conclude that a reversal and remand to the district court is not inappropriate. I therefore concur in the opinion rendered on rehearing.