Gucci 1 Field Services, LLC Versus Glenn Reeves C/W Gucci 1 Field Services, LLC Versus George Carlile C/W Gucci 1 Field Services, LLC Versus Scott Bellow C/W Gucci 1 Field Services, LLC Versus Sean Green ( 2023 )

GUCCI 1 FIELD SERVICES, LLC NO. 23-CA-73
C/W
VERSUS 23-CA-74
C/W
GLENN REEVES 23-CA-75
C/W
C/W 23-CA-76
GUCCI 1 FIELD SERVICES, LLC FIFTH CIRCUIT
VERSUS COURT OF APPEAL
GEORGE CARLILE STATE OF LOUISIANA
C/W
GUCCI 1 FIELD SERVICES, LLC
VERSUS
SCOTT BELLOW
C/W
GUCCI 1 FIELD SERVICES, LLC
VERSUS
SEAN GREEN
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 808-876 C/W 810-426 C/W 810-428 C/W 810-429, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
November 08, 2023
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
John J. Molaison, Jr., and Scott U. Schlegel
AFFIRMED
FHW
JJM
SUS
COUNSEL FOR PLAINTIFF/APPELLEE,
GUCCI 1 FIELD SERVICES, LLC
R. A. Osborn, Jr.
COUNSEL FOR DEFENDANT/APPELLANT,
GLENN REEVES, GEORGE CARLILE, SCOTT BELLOW, AND SEAN
GREEN
Gerald D. Wasserman
WICKER, J.
In these consolidated cases, defendants seek review of the trial court’s
November 22, 2022 judgment ordering them to repay their former employer for
payroll advances. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
In August and September of 2020, plaintiff, Gucci Field Services, L.L.C.
(“Gucci”), filed separate lawsuits against four former employees, Glenn Reeves,
George Carlile, Scott Bellow, and Sean Green (collectively “defendants”), alleging
that they received payroll advances from October of 2018 to January of 2019, and
they agreed to repay them but failed to do so.
Each defendant filed an answer, denying Gucci’s claims. Defendants
acknowledge that Gucci continued to pay their salaries from October 2018 to
January 2019, during a period in which Gucci had lost most of its job contracts, but
they assert that these funds were never intended to be loans or advances. Rather,
they were “wages,” which they earned by performing various jobs. Defendants
agree that they signed agreements to repay the money, but they claim they did so
only under duress, because Gucci would not give them their paychecks if they did
not sign the agreements. The trial court signed an order consolidating these four
lawsuits on February 26, 2021.
On November 7, 2022, this matter came before the court for a bench trial.
At trial, Denise Guccione testified on behalf of Gucci. She stated that her husband,
Roger Guccione, who is now deceased, formed Gucci during their marriage, and
she handled all of the administrative matters. She asserted that in 2018, one of
their major clients, referred to as “Galata,” had budget issues and stopped
contracting with Gucci and others to perform work at their plant. According to
Mrs. Guccione, Mr. Guccione believed at the time that they would be back in
operation in about two weeks. Mrs. Guccione testified that they held a meeting
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with Gucci’s employees on October 19, 2018, and told them Gucci would pay their
regular salaries until they resumed working with Galata, but they would have to
pay the money advanced back over time. After the meeting, Mrs. Guccione sent
the employees a letter setting forth their agreement.
Shortly after the meeting, on October 25, 2018, George Carlile and Sean
Green signed the agreement to repay Gucci for the advanced hours. Glenn Reeves
and Scott Bellow signed the agreement on January 3, 2019, and George Carlile
signed the agreement a second time on this date. Mrs. Guccione testified that some
of the money was paid back to Gucci via payroll deductions, but each defendant
left Gucci while still owing additional amounts. Mrs. Guccione testified that the
outstanding balances were $9,344 for Sean Green, $11,644 for Glenn Reeves,
$6,433.50 for George Carlile, and $5,429 for Scott Bellow.
On cross-examination, Mrs. Guccione testified that after Mr. Guccione died,
the COVID-19 pandemic “closed” their business. She filed an affidavit to dissolve
Gucci on August 8, 2022, based on advice from her accountant. When asked if she
was trying to represent a company that no longer existed at trial, Mrs. Guccione
replied that Gucci existed because there was still a checking account and “legal
stuff with the taxes and such.”
Mrs. Guccione further testified that while Gucci was not performing work
for Galata, defendants came to the office but did not work. There were no
particular jobs to assign them, so she would tell them to go home or they would
just sit in the back of the office and “chit-chat.” Mrs. Guccione testified that Gucci
continued to pay its employees, because they thought the business was going to
start up again and Gucci did not want to lose them.
Nicholas Aguilar, a former employee of Gucci, testified that when Galata
temporarily stopped working with Gucci in October of 2018, Gucci continued to
pay them through a salary continuation plan. He stated that he completely
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understood that he had to pay the money back and signed documents indicating he
agreed to do so. Mr. Aguilar testified that he paid the entire amount back to Gucci.
After Gucci finished presenting its case, defendants moved for a directed
verdict, arguing that Gucci could not proceed with the case because it had been
dissolved. The trial court denied the motion.
Glenn Reeves testified that he worked for Gucci from 2010 until March of
2019, and he had worked with Mr. Guccione prior to that time. He indicated that
Galata was one of Gucci’s biggest customers. In 2018, toward the end of the year,
Galata’s budget was running low so all of the contractors had to leave the facility.
He stated that something similar happened in 2015 when they were working at a
different facility and had to leave because of budget issues. Mr. Reeves indicated
that in both 2015 and 2018, Gucci wanted to retain its employees, so it continued
to pay them. He stated that Mr. Guccione wanted to preserve Gucci’s relationship
with Galata, and that Mr. Reeves and the other employees were key to preserving
that relationship. Mr. Reeves stated that from October 2018 to January 2019, he
and the other employees worked every day and earned their salaries, even though
their work was not billed to a customer. They did various jobs such as servicing
Gucci’s machines, cranes, and lifts, building trailers, cutting grass and trees, and
servicing the Gucciones’ hunting camps. He stated that they performed any work
Mr. Guccione asked them to do.
Mr. Reeves testified that on January 3, 2019, they were forced to sign
documents indicating they would repay the money, because they would not receive
their paychecks that day if they did not. Mr. Reeves stated that Mrs. Guccione did
not participate in the discussions regarding payments; rather, they dealt strictly
with Mr. Guccione, who indicated that neither he nor the other defendants would
have to repay Gucci. Mr. Reeves testified that on the documents they signed,
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“hours worked” were hours that were billed to a client, and “advanced hours” were
hours worked but not billed to a client.
Michael Taylor testified that he worked for Gucci from 2012 to 2017, and he
worked with Mr. Reeves and Mr. Guccione every day. He stated that in 2015,
work became slow and some people were laid off. Mr. Taylor stated that although
they were not physically at a plant for a job, they would go to “the shop” or “make
customer calls, talk to people, pick up supplies” every day for four to five months.
Mr. Taylor stated that they were paid during that time in 2015, because Mr.
Guccione wanted to retain them.
Scott Bellow testified that he started working for Gucci in the beginning of
2018. He stated that on January 3, 2019, he signed the document indicating he
would pay back the “advanced hours,” because he would not get paid that day if he
did not sign it. According to Mr. Bellow, Mr. Guccione told them to sign the
papers just to appease Mrs. Guccione, but not to worry about it. He stated that he
was in the process of getting another job but decided to stay after Mr. Guccione
told him to ask the other employees what had happened in 2015. Mr. Bellow
indicated that Gucci needed them to stay and be available when Galata called to
start work again, because he, Mr. Reeves, Mr. Carlile, and Mr. Green were the
crew Galata wanted. He stated that during the time they did not work at Galata, he
earned his salary by performing other work for Gucci. He stated that they were
“on call” and would never hesitate when Mr. Guccione called them, day or night.
George Carlile testified that he began working for Gucci in 2010. In 2015,
work was slow and they were not working at a plant, but they did work around the
shop and were paid, as Mr. Guccione had assured them they would be. In 2018,
the same situation occurred. Mr. Carlile stated that he only signed the document
indicating he would repay the money because he would not receive his paycheck if
he did not. After he signed the document, Mr. Guccione told him as a boss and a
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friend that signing it was just to make Mrs. Guccione happy and not to worry about
it. During this time, he would go to the shop every day and cut grass or work on
trailers. He also worked at the Gucciones’ fishing camp in Lafitte, cut down trees
at their house, and put up fence posts and cut grass at their deer camp. He stated
that they performed this work, because they were on Gucci’s payroll, and Mr.
Guccione told them what they needed to do each day. He stated that he always had
discussions pertaining to work and pay with Mr. Guccione, not Mrs. Guccione.
Sean Green testified that he worked for Gucci from 2010 through 2018. He
stated that he signed the document agreeing to repay the money, because he had a
family to take care of and would not get paid if he did not sign it. Mr. Guccione
told him to sign the paper because Mrs. Guccione “is on us about the money.” He
performed work daily during this time doing anything Mr. Guccione told them to
do, including cutting grass and working at the fishing camp and he earned the
money he received from Gucci.
At the conclusion of trial, the trial court took the matter under advisement.
Thereafter, on November 22, 2022, the trial court rendered a judgment in favor of
Gucci and against Mr. Reeves for $11,644, against Mr. Carlile for $6,433.50,
against Mr. Bellow for $5,429, and against Mr. Green for $9,344, plus interest and
costs. In its reasons for judgment, the trial court pointed out that all of the
defendants signed agreements to repay the money, and there was no testimony that
anyone complained to Mr. Guccione when Gucci started taking repayment
deductions from their paychecks. The court also found that defendants did not
show they signed the agreements under duress. Defendants appeal.
LAW AND DISCUSSION
On appeal, defendants argue that the November 22, 2022 judgment should
be reversed, because the trial court erred by finding that defendants accepted
advance-on-payroll loans, rather than wages, from October 2018 to January 2019.
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Defendants contend that while they were not able to work at the Galata plant, they
performed other various jobs at Mr. Guccione’s request and earned the wages they
received. They assert that they knew Galata would not rehire Gucci without them,
and they remained loyal to Gucci and did not seek other employment. In return,
they contend Mr. Guccione assured them they would not have to repay Gucci for
the money they received.
In 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. Palmisano v. Ohler, 16-160 (La. App. 5
Cir. 12/7/16), 204 So. 3d 1134, 1137; Stobart v. State through Dept. Transp. and
Dev., 617 So.2d 880, 882 (La. 1993). Where factual findings are based on
determinations regarding the credibility of witnesses, great deference is afforded to
those factual findings under the manifest error standard. Rosell v. ESCO, 549 So.2d
840 (La. 1989).
A party who seeks to demand performance of an obligation is required to
prove its existence by a preponderance of the evidence. La. C.C. art. 1831;
Artificial Lift, Inc. v. Production Specialties, Inc., 626 So.2d 859 (La. App. 3 Cir.
1993), writ denied, 634 So.2d 394 (La. 1994). Once the plaintiff meets the initial
burden of establishing the existence of an obligation, the burden shifts to the
defendant to come forth with sufficient evidence to rebut or cast doubt upon the
plaintiff's claim. Byles v. Bank of Coushatta, 50,120 (La. App. 2 Cir. 11/25/15),
184 So.3d 789, 792, writ denied, 16-0254 (La. 4/4/16), 190 So.3d 1208.
In the present case, Gucci met its initial burden of establishing that
defendants were obligated to repay the money at issue. Mrs. Guccione testified
that when Gucci temporarily stopped working with Galata in October of 2018, she
and Mr. Guccione held a meeting with the employees and told them that Gucci
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would continue to pay their salaries, but they would have to repay the amounts
over time when Gucci was operational again. In support of its position, Gucci
submitted documents listing the employee’s actual hours worked, vacation hours
used, advanced hours, and deductions for insurance, which were signed by each
employee under the provision, “I AGREE TO REPAYMENT OF ADVANCED
HOURS/INSURANCE AS STATED.” These written agreements are contracts
between the parties indicating that defendants agreed to repay the funds received.
A written contract is the law between the parties, and the parties will be held
to full performance of the obligations flowing from their contract. Lantech
Construction Co. v. Speed, 08-811 (La. App. 5 Cir. 5/26/09), 15 So.3d 289, 293.
However, the law is clear that written contracts may be modified by oral contracts
and the conduct of the parties. Id.The party asserting that an obligation has been modified must prove by a
preponderance of the evidence facts or acts giving rise to the modification. La.
C.C. art. 1831; Driver Pipeline Co. v. Cadeville Gas Storage, LLC, 49,375 (La.
App. 2 Cir. 10/1/14), 150 So.3d 492, 501, writ denied, 14-2304 (La. 1/23/15), 159
So. 3d 1058. Modification of a written agreement can be presumed by silence,
inaction, or implication. Id. Whether there is an oral agreement that modified the
written contract is a question of fact. Id.Defendants contend that the written agreements they signed were modified
by verbal agreements with Mr. Guccione that they would not have to pay the
money back. They assert that a similar situation occurred in 2015, and they were
not required to pay the money back.
A trial court's determination of the existence or nonexistence of an oral
contract is a finding of fact governed by the manifest error or clearly erroneous
standard of review. Read v. Willwoods Community, 14-1475 (La. 3/17/15), 165
So.3d 883, 888. When evaluating the evidence needed to establish the existence of
7
an oral contract, the trial court is allowed to make credibility determinations. Steve
Owens Construction, Inc. v. Bordelon, 17-1320 (La. App. 1 Cir. 2/27/18), 243
So.3d 601, 604-605. Where there are two permissible views of the evidence, the
factfinder's choice between them cannot be manifestly erroneous or clearly wrong.
Schexnayder v. Exxon Pipeline Co., 01-1236 (La. App. 5 Cir. 3/13/02), 815 So.2d
156, 160. The issue to be resolved by a reviewing court is not whether the trier of
fact was right or wrong, but whether the factfinder's conclusion was reasonable.
Dutton v. O'Connell, 04-1287 (La. App. 5 Cir. 4/26/05), 901 So.2d 602, 605-06,
writ denied, 05-1605 (La. 1/9/06), 918 So. 2d 1049; Stobart, 617 So.2d at 883.
After considering the testimony and evidence, the trial court did not find that
the written agreements were modified by any oral agreement between the parties.
This determination was reasonable, based on the record before us, and thus, we
cannot say it was manifestly erroneous.
Defendants argue that the trial court erred by accepting the self-serving
testimony of Mrs. Guccione, who did not work in the field with defendants and
was not present when they made verbal agreements with Mr. Guccione. They
assert that the trial court should have accepted the testimony of a disinterested
former employee, Michael Taylor, regarding Gucci’s practice of continuing to pay
key employees during times when clients were not using their services in order to
retain their employees.
However, the trial court found that Mrs. Guccione was a credible and
impressive witness, and that she was honest, knowledgeable and direct. The court
also noted that her testimony was supported by written agreements signed by
defendants themselves. Further, Mr. Aguilar was a former employee of Gucci, just
like Mr. Taylor, and he testified that he understood he had to pay the salary
advances back and that he paid them back in their entirety.
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Although defendants claim Mrs. Guccione’s testimony was self-serving, the
trial court found defendants’ testimony to be self-serving and not credible. The
court further provided that there was no testimony that defendants objected when
repayment deductions were taken from their paychecks. The trial court had to
make credibility determinations and found Mrs. Guccione’s testimony to be more
credible than defendants’ testimony.
Defendants further argue that the trial court erred by failing to find that they
were entitled to wages for any of the work performed while they waited for Galata
to rehire Gucci.
An advance is an unconditional loan which carries with it the obligation to
repay. Boyd v. Gynecologic Associates of Jefferson Parish, Inc., 08-1263 (La.
App. 5 Cir. 5/26/09), 15 So.3d 268, 272. Wages are vested rights that are
equivalent to “the amount then due under the terms of employment.” Id.Reasonable evaluations of credibility and reasonable inferences of fact should not
be disturbed upon review, even if the appellate court may feel that its own
evaluations and inferences are as reasonable. Himel v. State ex rel. Dept. of Transp.
& Dev., 04-274 (La. App. 5 Cir. 10/12/04), 887 So.2d 131, 137-38, writ denied,
04-2802 (La. 3/18/05), 896 So. 2d 999; Rosell, 549 So.2d at 844.
The trial court made the reasonable determination that the funds at issue
were advances, not wages that were actually earned. The court found that the
descriptions of the jobs they performed for Gucci were more consistent with a
personal friend/employer relationship than with earning their salaries. The record
does not show that these findings were manifestly erroneous.
Defendants also contend that Gucci violated La. R.S. 23:634(A) when it
required them to sign a written agreement to repay the money they earned and
when Gucci began withholding money from their paychecks. La. R.S. 23:634(A)
prohibits an employer from requiring an employee to sign a contract forfeiting his
9
wages if they are discharged or resign prior to completion of the contract, and also
provides that employees shall be entitled to the wages actually earned up to the
time of their discharge or resignation. However, based on the trial court’s finding
that the funds at issue were advances, not wages, defendants did not show they
were required to sign contracts forfeiting wages in violation of La. R.S. 23:634(A).
Defendants also claim that they signed the agreements to repay the money
under duress, because they would not receive their paychecks if they did not sign
them. La. C.C. art. 1959 provides, in pertinent part:
Consent is vitiated when it has been obtained by duress
of such a nature as to cause a reasonable fear of unjust
and considerable injury to a party's person, property, or
reputation.
The trial court found that the circumstances under which defendants signed
the written agreements did not rise to the level of duress. We find no error in this
determination.
The next issue raised by defendants on appeal is whether the trial court erred
by finding that Gucci had a right of action to proceed with this litigation, when
Gucci had filed an affidavit to dissolve the company during these proceedings and
no longer existed at the time of trial. They also assert that the trial court erred by
applying La. R.S. 12:1-1405A(1) and (5) and B(5) and (6), which pertain to
corporations not limited liability companies, to the present case.
We agree that the trial court erroneously relied on La. R.S. 12:1-1405, which
addresses the effect of dissolution and specifies the actions a dissolved corporation
may take to wind up and liquidate its business and affairs. The applicable law in
this case is that pertaining to limited liability companies, as set forth in La. R.S.
12:1301, et seq. However, the law pertaining to limited liability companies
supports the same result in this particular case.
La. R.S. 12:1335.1(A) provides, in pertinent part:
10
In addition to all other methods of dissolution, if a limited
liability company is no longer doing business, owes no
debts, and owns no immovable property, it may be dissolved
by filing an affidavit with the secretary of state executed by
the members or by the organizer, if no membership interests
have been issued, attesting to such facts and requesting that
the limited liability company be dissolved.
Although no documents were presented to show that Gucci was dissolved by
affidavit, Mrs. Guccione testified that she filed an affidavit to dissolve Gucci on
August 8, 2022.
La. R.S. 12:1340(C) provides:
Upon the issuance of the certificate of dissolution, the
separate existence [of a limited liability company] shall
cease as of the effective date stated in the certificate,
except for the sole purpose of any action or suit
commenced theretofore by, or commenced timely
against, the limited liability company. (Emphasis added.)
In support of their position that Gucci did not have the right to pursue its
claims against them, defendants cite Pocket Billiards and Bar, L.L.C. v. Fast &
Affordable College Student Movers, Inc., 22-109 (La. App. 4 Cir. 8/10/22), 346
So.3d 399, in which the Fourth Circuit held that a limited liability company
dissolved by affidavit loses its right to pursue claims. However, a closer look at
the Pocket Billards decision reveals that it actually supports Gucci’s position.
In Pocket Billiards, 346 So.3d at 400-401, the plaintiff, Pocket Billiards and
Bar, L.L.C., hired the defendant moving company to move their pool tables, and
they alleged that the pool tables were damaged during the move. Defendant filed
an exception of no cause of action asserting that Pocket Billiards had “no right of
action, or no interest to institute the suit,” because Pocket Billiards had filed an
affidavit to dissolve the limited liability company prior to filing its lawsuit. The
trial court granted the exception of no cause of action and dismissed Pocket
Billiards’ claims. Id. at 401. On appeal, the Fourth Circuit reviewed the trial
court’s judgment as sustaining an exception of no right action, noting that the
11
exception specifically alleged that Pocket Billiards had no right of action and it is
the substance of the pleading, not the caption, that determines its effect. Id. The
appellate court affirmed the dismissal of Pocket Billiards claims, finding it had no
right of action, because it was voluntarily dissolved by affidavit prior to the filing
of the lawsuit. The Fourth Circuit found, “there is no public policy protecting the
claims of a limited liability company that chose to avail itself to the provisions of
La. R.S. 12:1335.1 prior to filing suit for damages incurred by the limited liability
company.” (Emphasis added.) Pocket Billiards, 346 So.3d at 405.
In the present case, Gucci was not dissolved prior to the filing of this
lawsuit. Gucci filed its four lawsuits against defendants in August and September
of 2020. According to Mrs. Guccione, Gucci filed its affidavit to dissolve the
limited liability company on August 8, 2022. Therefore, pursuant to La. R.S.
12:1340(C) and in accordance with the Fourth Circuit’s reasoning in Pocket
Billiards, supra, Gucci had a right of action to pursue its claims against defendants.
DECREE
For the reasons stated above, we affirm the trial court’s November 22, 2022
judgment in favor of Gucci and against defendants.
AFFIRMED
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 8, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-73
C/W 23-CA-74 & 23-CA-75 & 23-CA-76
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
R. A. OSBORN, JR. (APPELLEE) GERALD D. WASSERMAN (APPELLANT)
MAILED