VERNON A. VALENTINO, M.D.
HEART AND VASCULAR ASSOCIATES OF ACADIANA, P.C.
FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 2015-6019 HONORABLE MARILYN CARR CASTLE,
K. Breaud Thimothy W. Basden Breaud & Meyers COUNSEL FOR
PLAINTIFF/APPELLANT: Vernon A. Valentino, M.D.
Camille Bienvenu Poché, Karen T. Bordelon, Babineaux,
Poché, Anthony & Slavich, L.L.C., COUNSEL FOR
DEFENDANT/APPELLEE: Heart and Vascular Associates of
Horn, Jr., Ohashi & Horn, LLP COUNSEL FOR
DEFENDANT/APPELLEE: Heart and Vascular Associates of
composed of Shannon J. Gremillion, John E. Conery, and David
E. Chatelain, [*] Judges.
E. CONERY JUDGE.
Vernon A. Valentino (Dr. Valentino) appeals a partial
judgment in his favor based on an employment contract against
Heart and Vascular Associates of Acadiana, P.C. (HAVAA)
wherein the trial court awarded him $30, 856.91, which
included $22, 405.26 as a bonus for 2014 and $8, 451.65 for
reimbursement of expenses incurred in 2015, plus judicial
interest from December 3, 2015. The trial court denied Dr.
Valentino's claim for $132, 727.22 in past due wages as
well as penalty wages pursuant to La.R.S. 23:631-632. The
trial court awarded Dr. Valentino, $15, 553.29 in attorney
fees and litigation expenses, but denied the remaining
portion of the $42, 332.28 of attorney fees and litigation
expenses requested by Dr. Valentino. In his appeal, Dr.
Valentino seeks full past due wage reimbursement based on his
employment contract with HAVAA, penalty wages, the full
amount of attorney fees and litigation expenses for trial,
and additional attorney fees for work done on appeal. HAVAA
did not appeal the dismissal of its reconventional demand or
answer the appeal as to any portion of the trial court's
judgment in favor of Dr. Valentino. For the following
reasons, we reverse in part, affirm in part, and render.
AND PROCEDURAL BACKGROUND
Valentino is board certified both as a cardiologist and an
interventional cardiologist. He has practiced medicine in the
Lafayette, Louisiana area since 1991. Until 2014, Dr.
Valentino was a partner in the Lafayette Heart Clinic (LHC)
along with Dr. David Baker, the senior physician of the
group, and Dr. Chris Mallavarapu. Dr. Brent Rochon was an
employee of LHC. In 2013, Dr. Baker announced his retirement,
and Dr. Mallavarapu moved his practice to upstate New York.
These actions left Dr. Valentino as the only remaining
partner in LHC, with Dr. Rochon as the only employee.
Kevin Courville is also an interventional cardiologist
practicing in Lafayette, Louisiana, who was also a former
partner in LHC. Dr. Courville left LHC in 2012 to form HAVAA
and become one hundred percent owner. Due to the breakup at
the end of 2013 of the partners in LHC, Dr. Valentino and Dr.
Courville began discussions about Dr. Valentino joining HAVAA
as a "profits-partner" with the goal of both
physicians to eventually create what was termed as a
"super-group" of cardiologists in Lafayette.
Despite the lack of a specific agreement between the two
former partners, Dr. Valentino brought his book of patients
and staff to HAVAA and began a fulltime practice with HAVAA
on January 13, 2014. Dr. Rochon also joined HAVAA in January
2014, but as he had only been an employee of LHC, his status
was unclear from the beginning of his association with HAVAA.
was no formal or written agreement in place when Dr.
Valentino began practicing at HAVAA on January 13, 2014.
However, Dr. Courville allegedly told Dr. Valentino that his
attorney in Dallas, Mr. Jeff Horn, was working on a contract
to formalize an equal partnership agreement in HAVAA, with an
eye toward forming the contemplated "super group"
of cardiologists. The two doctors also verbally agreed that
Dr. Valentino would take a $40, 000.00 draw each month, the
same amount as his previous draw at LHC. In anticipation of
the promised partnership, Dr. Valentino loaned HAVAA $30,
000.00 in March 2014 to assist with startup expenses and
allegedly agreed to defer his draw for a short time until his
billings through HAVAA could be realized.
his alleged assurances to Dr. Valentino that the partnership
agreement was in the works, Dr. Courville's testimony at
trial indicates that from the beginning, he did not instruct
his attorney to prepare a partnership agreement that would
make Dr. Valentino a partner in HAVAA. He admitted that
instructions to Mr. Horn were to draft a physician's
employment agreement (PEA), making Dr. Valentino a HAVAA
employee, not an equal partner. Indeed, in the answer to Dr.
Valentino's lawsuit, HAVAA admitted that Dr. Valentino
was an employee.
partnership agreement was forthcoming, Dr. Valentino
requested the financial records for the term of his practice
with HAVAA beginning January 13, 2014. Dr. Courville refused
his request and indicated he would not divulge any financial
information until the PEA was signed by Dr. Valentino. Dr.
Valentino was first presented with the PEA in March 2014. Dr.
Valentino signed the PEA in April 2014, with an effective
date of January 1, 2014, and became an employee of HAVAA.
Still, Dr. Valentino was never shown the requested financial
guaranteed Dr. Valentino a salary of $480, 000.00 a year. He
received his first check on May 5, 2014, for the two-week pay
period following his signing of the PEA. Dr. Valentino
immediately began seeking his past due wages retroactive to
January 13, 2014 through April 18, 2014. Dr. Valentino
admittedly began work with HAVAA on January 13, 2014. Though
the PEA became effective on January 1, 2014, and does cover
Dr. Valentino's entire tenure with HAVAA, he is only
claiming past due wages from January 13, 2014. The PEA also
provided that any bonus paid to Dr. Valentino was at the sole
discretion of HAVAA, which is in direct conflict with their
earlier verbal agreement. Dr. Valentino had no part in
determining the bonus or access to the financial basis for
determining a bonus under the terms of the PEA.
was the only agreement written and signed between Dr.
Valentino and HAVAA. It contained an "Entire
Agreement" clause which provided that the PEA,
"supersedes and merges all prior agreements and
discussions between Physician and Employer."
mid-2014, a meeting was held between Dr. Courville, Dr.
Valentino, and Dr. Rochon to discuss the status of HAVAA.
Once again, Dr. Valentino and Dr. Courville discussed the
issue of Dr. Valentino's past due wages which totaled
over $140, 000.00 for January 13, 2014 through April 18,
2014. The details of the meeting will be thoroughly discussed
in a subsequent portion of this opinion.
16, 2014, Dr. Valentino again requested by email that HAVAA
pay his past due wages and again sought to be permitted to
review the financial records of HAVAA for the second quarter
of 2014. His request was again denied. On October 7, 2014,
Dr. Valentino made another request by email seeking his past
due wages, repayment of his $30, 000.00 loan made to HAVAA,
the cost of supplies provided to the business, and a further
request for HAVAA's financial records. Dr. Courville
failed to respond to Dr. Valentino's October 7, 2014
Valentino resigned from HAVAA on July 27, 2015, via a letter
of resignation delivered to Dr. Courville. In his resignation
letter, Dr. Valentino made yet another demand for his past
due wages. Dr. Valentino testified at trial that he never
received a written response to his demands, only that Dr.
Courville stated that he would speak with his attorney about
the issue. No further response was forthcoming from Dr.
Courville or his attorney.
response to his demand for past due wages and other expenses
allegedly owed was received from Dr. Courville, Dr. Valentino
engaged counsel, who made a formal written demand on his
behalf to HAVAA for his past due wages from January 13, 2014
through April 18, 2014, along with other expenses and
benefits which are not included in Dr. Valentino's claim
on appeal. HAVAA failed to respond to Dr. Valentino's
attorney's demand letter. On December 3, 2015, Dr.
Valentino filed this petition entitled, "PETITION FOR
UNPAID WAGES, BENEFITS, AND REIMBURSABLE EXPENSES AND FOR
PENALTY WAGES AND ATTORNEY FEES[.]"
answered Dr. Valentino's petition and admitted that Dr.
Valentino began his employment at HAVAA on January 13, 2014,
and was first paid wages on May 5, 2014. HAVAA also admitted
that HAVAA had received a demand for past due wages from Dr.
Valentino as well as his counsel's formal demand for the
past due wages dated September 24, 2015. HAVAA responded to
the petition with a number of defenses. For the first time,
in its reconventional demand, HAVAA claimed that Dr.
Valentino had breached the terms of the PEA by working at
Abbeville General Hospital while he was an employee of HAVAA.
summary proceeding allowed in a wage dispute pursuant to
La.R.S. 23:631 began on March 18, 2016. After testimony
began, the trial court determined the case could not be
completely resolved in a summary proceeding and reset the
case for trial on the merits as an expedited ordinary
proceeding on June 22, 2016. At the beginning of the trial,
the trial court without objection ordered that all testimony
and evidence introduced at the March 18, 2016 trial would be
considered a part of the trial record. Both Dr. Valentino and
Dr. Courville testified live at the trial on the merits.
close of trial, the matter was taken under advisement by the
trial court, who then issued written reasons in a ruling
dated July 7, 2016. A judgment in accordance with the trial
court's ruling was signed by the trial court on August
30, 2016. Dr. Valentino timely filed this appeal of the trial
court's denial of his full past due wages, penalty wages,
and failure to award the full amount of attorney fees and
litigation expenses, and requested additional attorney fees
for work done on appeal. HAVAA did not answer the appeal or
file a separate appeal of the denial of its reconventional
Valentino asserts the following assignments of error on
1. The trial court erred in failing to award Dr. Valentino
the wages owed to him by HAVAA under the Physician Employment
Agreement for the work actually performed between January 13,
2014 and April 18, 2014.
2. The trial court erred in finding that Dr. Valentino agreed
to work for free between January 13, 2014 and April 18, 2014.
3. The trial court erred in denying Dr. Valentino's claim
for penalty wages under La. R.S. 23:632.
4. The trial court erred in refusing to award Dr. Valentino
all of the attorney fees and litigation expenses which he
incurred in the litigation of his claim for unpaid wages.
Hayes Fund for First United Methodist Church of Welsh,
LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8
(La. 12/8/15), 193 So.3d 1110, 1115-16, the supreme court
reiterated the duty of appellate courts in a manifest error
review and stated in pertinent part:
In all civil cases, the appropriate standard for appellate
review of factual determinations is the manifest
error-clearly wrong standard, which precludes the setting
aside of a trial court's finding of fact unless that
finding is clearly wrong in light of the record reviewed in
its entirety. Cenac v. Public Access Water Rights Ass
'n, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006,
1023. Thus, a reviewing court may not merely decide if it
would have found the facts of the case differently. Hall
v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874
So.2d 90, 98. Rather in reversing a trial court's factual
conclusions with regard to causation, the appellate court
must satisfy a two-step process based on the record as a
whole: there must be no reasonable factual basis for the
trial court's conclusion, and the finding must be clearly
wrong. Stobart v. State through Dept. of Transp. and
Development, 617 So.2d 880, 882 (La.1993).
This test requires a reviewing court to do more than simply
review the record for some evidence, which supports or
controverts the trial court's findings. The court must
review the entire record to determine whether the trial
court's finding was clearly wrong or manifestly
erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8
(La. 2/25/03), 841 So.2d 749, 753-54. The issue to be
resolved on review is not whether the judge or jury was right
or wrong, but whether the judge's or jury's
factfinding conclusion was a reasonable one. Rosell v.
ESCO, 549 So.2d 840, 844 (La.1989); Canter v.
Koehring Co., 283 So.2d 716, 724 (La.1973).
of law, however, are reviewed de novo. Foti v. Holliday,
09-93 (La. 10/30/09), 27 So.3d 813.
Accordingly, when reviewing an issue of law, we "render[
] judgment based on the record without deference to the legal
conclusions of the lower courts." Id. at 817
of Errors One and Two - The Physician Employment
Agreement-Past Wages From January 13, 2014 -April 18,
Valentino filed suit for payment of his past due wages
pursuant to La.R.S. 23:631 which states, in pertinent part:
A. (1)(b) Upon the 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, on or before
the next regular payday for the pay cycle during which the
employee was working at the time of separation or no later
than fifteen days following the date of resignation,
whichever occurs first.
B. In the event of a dispute as to the amount due under this
Section, the employer shall pay the undisputed portion of the
amount due as provided for in Subsection A of this Section.
The employee shall have the right to file an action to
enforce such a wage claim and proceed pursuant to Code of
Civil Procedure Article 2592.
argues that Dr. Valentino was not entitled to payment of past
wages under the terms of the PEA for the period from January
13, 2014 to April 18, 2014, because he verbally agreed to
waive these initial past wages in discussions with Dr.
Courville when it was contemplated that a partnership between
the two physicians and the eventual formation of a
"super group" of cardiologists was the goal.
trial court in its ruling found that despite the express
terms of the written PEA, "the weight of the evidence
establishes that the compensation for the initial period when
no draws or salary were received was to be based upon the
profitability of the physician and compensated in the form of
bonuses[.]" The trial court calculated the amount for
bonuses in 2014 to be $22, 405.26 plus $8, 451.65 for
unreimbursed expenses. The trial court gave no explanation
for the calculation and awarded those sums to Dr. Valentino,
plus interest. No appeal ...