Appealed from the Twenty-Second Judicial District Court In
and for the Parish of St. Tammany State of Louisiana Suit
Number 2016-13028 Honorable Peter J. Garcia, Presiding
Michael Rhymes Counsel for Plaintiff/Appellant Monroe, LA Bob
L. LeBoeuf Counsel for Defendant/Appellee Susanne Cambre
Ocean Canyon Properties, Inc. Metairie, LA
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
Bob Haber, appeals from a trial court judgment granting
summary judgment in favor of defendant, Ocean Canyon
Properties, Inc. (Ocean Canyon). For the reasons that follow,
we reverse and render.
AND PROCEDURAL HISTORY
was hired by Ocean Canyon in August 2014 to work as its
Operations Manager in Abita Springs. Haber began working for
Ocean Canyon on August 27, 2014, with an annual salary of
$35, 000.00, or $134.62/day. However, on September 1, 2014,
Ocean Canyon terminated Haber's employment. On the same
date, Haber informed representatives of Ocean Canyon, Jim
Wofford and Renea Daley, that his final paycheck should be
mailed to his home.
on November 6, 2014, counsel for Haber mailed a letter to
Ocean Canyon, which was received on November 10, 2014,
stating that at the time of Haber's termination on
September 1, 2014, he was owed approximately $2, 000.00 in
wages, which Ocean Canyon had failed to pay. As such, counsel
made a demand for the unpaid wages, as well as for ninety
days penalty wages. In response to the demand, on November
13, 2014, Ocean Canyon tendered two checks to Haber: a check
in the amount of $1, 128.80 for past due wages and a
settlement check in the amount of $1, 038.46 for four days
penalty wages and attorney fees. Haber thereafter negotiated
the check for past due wages.
22, 2016, Haber filed a petition for damages, naming Ocean
Canyon as defendant, asserting that he had instructed Ocean
Canyon to mail his final paycheck to his home, and
thereafter, his attorney had made written demand in November
2014 for payment of wages due and owing, plus ninety days
penalty wages. Haber asserted that while Ocean Canyon had
subsequently paid the past due wages, it had not made an
unconditional tender of the ninety days penalty wages and
reasonable attorney fees. Accordingly, Haber requested
judgment in his favor in an amount equal to ninety days
penalty wages plus reasonable attorney fees.
Canyon answered Haber's petition and thereafter filed a
motion for summary judgment, asserting that there is no
genuine issue as to material fact that Haber made his first
demand for past due wages on November 10, 2014, and Ocean
Canyon tendered past due wages on November 13, 2014. As such,
Ocean Canyon asserted that Haber is only entitled to recover
penalty wages for four days.
also filed a motion for summary judgment, asserting that his
notification to representatives of Ocean Canyon that he
wanted his final paycheck to be mailed to his home
constituted a demand for payment within the meaning of La.
R.S. 23:632, entitling him to ninety days penalty wags and
reasonable attorney fees.
a hearing on both motions, the trial court granted Ocean
Canyon's motion, finding Ocean Canyon liable to Haber for
$538.48 in penalty wages, denied Haber's claim for
attorney's fees; denied Haber's motion for summary
judgment; and dismissed the matter in its entirety, with
prejudice. Haber now appeals from the trial court's
judgment, asserting that the trial court erred in: awarding
only a portion of the penalty wages claimed, denying attorney
fees for the prosecution of the wage claim, and denying his
motion for summary judgment and dismissing his suit.