94-2423 La.App. 4 Cir. 1/7/98, Barbe v. A.A. Harmon & Co.

• Citation: 705 So.2d 1210
• Parties: 94-2423 La.App. 4 Cir
• Decision Date: 07 January 1998
• Court: Court of Appeal of Louisiana (US)

Page 1210

705 So.2d 1210

94-2423 La.App. 4 Cir. 1/7/98, 1998-2 Trade

Cases P 72,298

Joseph L. BARBE, Jr. v. A.A. HARMON & COMPANY (A Corporation of Certified Public

Accountants), Terrell J. LeGlue, Glenn V. Weick, Mark R.

Munson, Vincent J. Giardina, Kenneth M. Perret, Ellis J.

Roussel, Jr. and David M. Bassemier.

Nos. 94-CA-2423, 94-CA-2424.

Court of Appeal of Louisiana,

Fourth Circuit.

Jan. 7, 1998.

Rehearing Denied Jan. 30, 1998.

Henry A. King, Timothy S. Madden, Nesser, King & LeBlanc, New Orleans, for Plaintiff/Appellee Joseph L. Barbe, Jr.

Stephen L. Williamson, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, and Kenneth P. Carter, New Orleans, for Defendants/Appellants A.A. Harmon & Co., Terrell J. LeGlue, Sandra A. LeBlanc LeGlue, Glenn V. Weick, Susan G. Weick, Mark R. Munson, Virginia C. Munson, Vincent J. Giardina, Donna L. Giardina, Kenneth M. Perret, Myra C. Perret, Ellis J. Roussel, Jr., Barbara M. Roussel, David M. Bassemier and Kathleen G. Bassemier.

Robert L. Marrero, Bowes & Marrero, L.L.P., Gretna, for Defendants/Appellants Cynthia L. Traina, Trustee for the Bankrupt Estate of Harmon & Company, CPAs, and Harmon & Company, CPAs.

Before KLEES, LOBRANO, PLOTKIN, WALTZER and MURRAY, JJ.

[94-2423 La.App. 4 Cir. 1] MURRAY, Judge.

This is a consolidated appeal of two judgments in favor of Joseph L. Barbe, Jr. The consolidated cases involve claims by Mr. Barbe against his former employer, A.A. Harmon & Co. (A Corporation of Certified Public Accountants), and its individual shareholders ¹ relating to his termination as an employee (Case # 89-26356, referred to hereafter as the termination suit), and against Harmon, the individual shareholders and their spouses ² related to the redemption of Mr. Barbe's stock in Harmon (Case # 90-3833, referred to hereafter as the stock redemption suit). Following a lengthy trial, the jury found that Harmon violated the laws against age discrimination, breached Mr. Barbe's employment contract and an implied covenant of good faith, and were guilty of unfair and deceptive trade practices; it awarded a lump sum of $616,000.00 to Mr. Barbe in the [94-2423 La.App. 4 Cir. 2] termination suit. The jury also found that the individual shareholders breached the stock redemption agreement with Mr. Barbe; it awarded $299,623.50 to Mr. Barbe in the stock redemption suit. The court entered judgment, dated December 2, 1993, in each case against Harmon and the individual shareholders in the amounts awarded by the jury.

On January 31, 1994, the court entered judgment denying defendants' motion to amend the judgment or alternatively for new trial, and granting plaintiff's motion to amend judgment or alternatively for judgment notwithstanding the verdict. In that judgment the court ordered that the judgments entered on December 2 were supplemented and amended as evidenced by amended judgments signed on January 31, 1994. The amended judgment in the stock redemption suit added the wives of the defendant-shareholders as judgment debtors, and provided for stipulated interest and attorney's fees and all costs. The amended judgment in the termination suit provided for stipulated interest and attorney's fees and all costs.

Harmon and the individual defendants appealed, assigning both factual and legal errors. They contend that the trial court erred by: improperly instructing the jury as to the claims in both the stock redemption and termination suits; adopting the jury verdicts, which were manifestly erroneous, in both cases; naming the individual defendants as judgment debtors in the termination suit; naming the defendant wives as judgment debtors in the stock redemption suit; naming the individual shareholders as judgment debtors in the termination suit; and failing to award judgment in favor of Harmon on its Reconventional Demand.

For the following reasons, we affirm in part and reverse in part, and remand.

[94-2423 La.App. 4 Cir. 3] FACTS :

John McGrath ³ hired Mr. Barbe in June 1961 to work for A.A. Harmon & Co., the predecessor partnership to defendant Harmon, as a staff accountant. Mr. Barbe became a partner in the firm in 1963 when he became a certified public accountant. The partnership was successful and grew. In 1979, in response to that growth and in order to capitalize on more favorable tax treatment and limit liability, the partners elected to change the business structure of their accounting practice to a corporation. Harmon began operating as A.A. Harmon & Co. (A Corporation of Certified Public Accountants), on April 1, 1980. At that time, the former partners (Mr. Barbe, John McGrath, Xavier Hartmann and Terrell LeGlue) executed employment contracts and agreements relating to stock redemption and deferred compensation. Mr. Barbe was elected president, and served in that capacity until September 5, 1989. During that period new shareholders were added. ⁴ Each new shareholder executed an employment contract, a Stock Redemption Agreement and a Deferred Compensation Agreement. ⁵

On August 18, 1989, the other defendant-shareholders hand-delivered to Mr. Barbe a letter advising him that they recognized a need for a major change in the organizational and economic structures of the firm. The letter advised that a special shareholders meeting was scheduled for September 5, 1989, and that, among other actions, the shareholders were prepared to vote to authorize the [94-2423 La.App. 4 Cir. 4] newly-elected board of directors to take "... whatever action necessary and appropriate ... to negotiate with Mr. Joseph L. Barbe, Jr., regarding his early retirement, disassociation from and/or termination of employment with the corporation." This letter advised Mr. Barbe that the defendant-shareholders wished to accomplish the changes outlined with as little turmoil as possible. In an effort to do so, they offered to Mr. Barbe the opportunity to retire effective November 1, 1989, upon the terms and conditions set forth in the letter. The defendant-shareholders also advised Mr. Barbe that his employment contract would not be renewed when it expired, even if he decided to reject the opportunity to retire. The letter provided that the offer to retire would expire at 5 p.m. on August 25, 1989.

Mr. Barbe rejected this proposal in writing and at the shareholders meeting on September 5, 1989. On September 11, 1989, Harmon formally notified him that his employment contract would not be renewed when it expired on October 31, 1989. Mr. Barbe, who was fifty-eight years old at the time of his termination, filed two separate lawsuits, one relating to his termination as an employee and another relating to the redemption of his Harmon stock. Harmon and the individual defendants answered, filing general denials in each suit. Harmon also reconvened in both lawsuits contending it was owed a minimum of $337,152.56 in liquidated damages stemming from Mr. Barbe's breach of a non-competition clause in his employment contract, and asserting that it was entitled to offset the amounts Mr. Barbe demanded under the stock redemption agreement.

[94-2423 La.App. 4 Cir. 5] DISCUSSION :

AGE DISCRIMINATION :

The jury found that Harmon committed "unlawful age discrimination" against Mr. Barbe. The defendants contend that Mr. Barbe was not an "employee" so to be covered by the Louisiana Age Discrimination in Employment Act, ("LADEA"), La.Rev.Stat. 23:971, et seq. and the Louisiana Human Rights Commission Act ("LHRCA"), La.Rev.Stat. 51:2233, the statutes applicable to Mr. Barbe's age discrimination claim. The defendants also contend that, even if Mr. Barbe were covered by the statutes, the instructions given the jury as to the age discrimination claim were erroneous and/or misleading, and that the evidence introduced at trial was not sufficient to support this claim.

We first address the defendants' argument that the instructions given the jury were misleading. Age Discrimination in Employment is governed by Part IV of Chapter 9 of Title 23 of the Louisiana Revised Statutes. Because the prohibition against age discrimination under the Louisiana Act is identical to that of the federal statute prohibiting discrimination on the basis of age (see, Lege v. N.F. McCall Crews, Inc., 625 So.2d 185 (La.App. 3d Cir.), writ denied, 627 So.2d 638 (1993), citing Belanger v. Keydril Co., 596 F.Supp. 823 (E.D.La.1984)), we have looked to federal case law for guidance with regard to the jury instructions in a claim of discrimination based on age. A plaintiff creates a rebuttable presumption of discrimination by establishing a prima facie case of age discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). In order to make a prima facie showing of age discrimination, a plaintiff must establish that: 1) he is between the ages of forty and seventy; 2) that he was qualified for the job at issue; and 3) that an employee outside the [94-2423 La.App. 4 Cir. 6] protected class was treated more favorably. La.Rev.Stat. 23:972(G); Deloach v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir.1990). Once a plaintiff has made a prima facie showing of discrimination, an employer may rebut that presumption by articulating some legitimate, non-discriminatory reason for its action. Id. If the employer meets its burden, the plaintiff may then establish discrimination by showing that the reason given by the employer is merely pretextual and that age was a determinative reason for the employer's action. Id. The ultimate question the jury must decide is whether the defendant terminated the plaintiff because of his or her age.

Harmon argues that the jury instructions given by the trial court were incomplete and inaccurate, and did not clearly instruct the jury as to the ultimate question to be answered. Although the court gave instructions on what was necessary to establish a prima facie case and the burden of proof, Harmon argues it added instructions on causation that did...