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Culpepper Enterprises Inc. v. Parker

Court of Appeals of Mississippi

August 7, 2018

CULPEPPER ENTERPRISES INC., KATHY CULPEPPER, AND BRANNON WHITE APPELLANTS
v.
JOSEPH R. PARKER AND CHERI C. CLANCY APPELLEES

          DATE OF JUDGMENT: 09/14/2016

          COVINGTON COUNTY CIRCUIT COURT HON. EDDIE H. BOWEN, JUDGE

          ATTORNEY FOR APPELLANTS: S. WAYNE EASTERLING ATTORNEYS

          FOR APPELLEES: CORY NATHAN FERRAEZ SAMUEL STEVEN MCHARD

          BEFORE GRIFFIS, P.J., CARLTON, WILSON, AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. This appeal arises out of a breach of contract action for unpaid salaries. On June 22, 2016, Joseph R. Parker and Cheri C. Clancy filed a complaint against their former employer, Culpepper Enterprises Inc. alleging breach of oral contract for unpaid wages;[1] negligent and intentional infliction of emotional distress; and their need for emergency, declaratory and injunctive relief. The complaint named Culpepper Enterprises' chief executive officer, Kathy Culpepper, and chief operating officer, Brannon White, as individual defendants.

         ¶2. In their first amended complaint filed July 6, 2016, Parker and Clancy alleged that the Culpepper defendants[2] failed to compensate them for numerous pay periods "beginning in the middle of 2015." They also added a claim for damages under the Fair Labor Standards Act (FLSA). The Culpepper defendants filed their answer on July 21, 2016, raising the one-year statute of limitations found in Mississippi Code Annotated section 15-1-29 (Rev. 2015)[3]as an affirmative defense.

         ¶3. On August 30, 2016, Parker and Clancy filed a second amended complaint without the trial court's leave, seeking unpaid salaries for 2013, 2014, and 2015. They filed a third amended complaint without leave of court on September 1, 2016, alleging damages for quantum meruit, breach of implied contract, and unjust enrichment. On September 6, 2016, the Culpepper defendants filed a motion to strike the second and third amended complaints. The Culpepper defendants also filed a motion to dismiss any claim for unpaid damages that accrued before June 22, 2015, based on the one-year statute of limitations. The court struck the second and third amended complaints, and ruled that Parker and Clancy's proof would be limited to damages accruing after June 22, 2015. The court found that due to this ruling, the Culpepper defendants' motion to dismiss any claim before June 22, 2015 was moot.

         ¶4. Despite the Culpepper defendants' motion for a continuance, the trial was held September 6, 2016. Following trial, the jury awarded Parker and Clancy unpaid salaries in the respective amounts of $48, 000 and $40, 960, against Culpepper Enterprises, which were consistent with Parker and Clancy's exhibits showing the total unpaid salaries. The jury also awarded Parker and Clancy $25, 000 each for emotional distress and mental anguish against all three defendants.

         ¶5. On appeal, the Culpepper defendants argue (1) the trial court erred in denying its motion for a directed verdict because Parker's and Clancy's oral contracts for employment violate the statute of frauds, and the one-year statute of limitations precludes recovery for damages prior to June 22, 2015; (2) the trial court erred in denying its motion for a continuance; (3) the trial court erroneously allowed testimony concerning damages prior to June 22, 2015; (4) there is insufficient evidence to support an award of damages for emotional distress; and (5) the evidence failed to create a jury question as to Kathy and White's liability.

         FACTS AND PROCEDURAL HISTORY

         ¶6. Culpepper Enterprises was formed in 1988 by William Culpepper (Kathy's husband and White's stepfather). Following William's death in 2007, Kathy became Culpepper Enterprises' chief executive officer. White became Culpepper Enterprises' chief operating officer in September 2015, after he stopped working as a private contractor for the federal government and moved to Collins, Mississippi.

         ¶7. From 1989 to 2012, Culpepper Enterprises maintained two lines of business. Its primary line involved fulfilling Mississippi Department of Transportation (MDOT) contracts to mow grass along interstate right-of-ways. Its secondary line, discontinued in 2012, involved mowing along pipeline and power lines. The Culpepper defendants contend that when their sole focus became mowing grass for the MDOT, its business activities became strictly seasonal. The Culpepper defendants claim that as a result, they informed Parker and Clancy that during winter months, they would be paid only when additional work became available.

         ¶8. Parker and Clancy quit working for Culpepper Enterprises on June 17, 2016.

         Complaints

         ¶9. On June 22, 2016, Parker and Clancy filed a complaint in the Jones County Circuit Court, alleging that "beginning in the middle of 2015," the Culpepper defendants failed to compensate them for numerous pay periods pursuant to their oral employment contracts. The complaint alleged that Parker and Clancy entered into oral contracts with Culpepper Enterprises, whereby Parker was to receive an annual salary of $52, 000 with $200 per diem each week, and Clancy was to receive an annual salary of $66, 560 with $200 per diem each week. Parker sought $42, 000 in unpaid salary, and Clancy sought $53, 160. They also sought damages for emotional distress, attorney's fees, and a temporary restraining order and temporary injunction requiring the MDOT to withhold all funds it owed Culpepper Enterprises.

         ¶10. On June 29, 2016, the Jones County Circuit Court issued a temporary restraining order requiring that the MDOT withhold $100, 000 in funds owed to Culpepper. The court later vacated the temporary restraining order and transferred Parker and Clancy's case to the Covington County Circuit Court.

         ¶11. On July 6, 2016, Parker and Clancy filed an amended complaint for damages and injunctive relief that additionally alleged FLSA violations. The amended complaint restated that the Culpepper defendants began failing to pay salaries "in the middle of 2015." On July 21, 2016, the Culpepper defendants filed their answer, pleading the one-year statute of limitations and the statute of frauds, and denying that FLSA applied to the case.

         ¶12. On August 30, 2016, Parker and Clancy filed a second amended complaint without leave of court, seeking unpaid salaries for 2013, 2014, and 2015. Parker increased his demand for unpaid salary to $94, 000, and Clancy increased hers to $145, 706. On September 6, 2016, Parker and Clancy filed a third amended complaint without leave of court, seeking damages based on quantum merit, breach of implied contract, and unjust enrichment. In response, the Culpepper defendants filed a motion to strike Parker and Clancy's second and third amended complaints, and a motion dismiss any evidence of unpaid salaries barred by the one-year statute of limitations.

         ¶13. On September 6, 2016, at a motion hearing immediately before trial, the trial judge struck Parker and Clancy's second and third amended complaints, and ruled that pursuant to the one-year statute of limitations, Parker and Clancy's proof would be limited to damages that accrued after June 22, 2015, one year before they filed the original complaint. The court overruled as moot the Culpepper defendants' motion to dismiss based on the one-year statute of limitations.

         Motion for Continuance

         ¶14. Eight days before trial, on August 29, 2016, Kathy filed a motion for a continuance asserting that she was medically unable to participate in the trial due to a stroke. Her motion was accompanied by an unsworn certificate from a Merit Health medical director, stating that Kathy was admitted to Merit's Senior Care Unit on August 12, 2016, and was discharged on August 21, 2016, with recommended outpatient mental-health services. The medical director recommended that Kathy be given at least ninety days to "more fully recuperate from her recent hospitalization." Kathy's motion also requested a continuance on the grounds that Parker and Clancy had not responded to outstanding discovery, and had yet to be deposed because they cancelled their depositions.

         ¶15. On the morning of trial, September 6, 2016, the trial judge heard arguments on the motion for a continuance. Although the Culpepper defendants' written motion contended that there was outstanding discovery, the Culpepper defendants did not address this issue during the hearing. The trial court denied the motion for continuance, noting that the medical director's recommendation did not explain why Kathy was hospitalized, provide a diagnosis or prognosis for Kathy's condition, or state whether Kathy's ability to testify had been affected.

         Trial

         ¶16. During trial, White testified that when Culpepper Enterprises discontinued its secondary line of business in 2012 and chose to focus on mowing grass for the MDOT, its business activities became strictly seasonal. White claimed that, as a result, Parker and Clancy were informed that during winter months they would be paid only when additional work became available. He stated that during cold-weather months, Parker and Clancy were accordingly paid when authorized to do additional work, such as servicing tractors.

         ¶17. Kathy testified as an adverse witness that she performed Culpepper Enterprises' payroll duties during 2014 and 2015, and that she timely paid all of their salaries. Kathy further stated that she properly submitted all of Parker and Clancy's withheld taxes, Social Security, and Medicare. She denied entering into oral employment contracts with Parker and Clancy for annual salaries.

         ¶18. Clancy testified that in 2008, she orally agreed with Culpepper Enterprises to receive an annual salary of $66, 560, with either a one- or two-week pay period. She stated that she and Parker were never told that their pay would be altered in any way. Clancy testified that she worked year-round, including winter months. Clancy testified that sometime in 2015, Culpepper Enterprises failed to pay her and Parker for salaries they were owed, and that Kathy responded she would "take care of it." Clancy said at a later date during that year-sometime during late November or early December-she and Parker sat down with Kathy and asked for the salaries they had yet to receive. Clancy stated that she agreed to wait until January to be paid. She testified that for pay periods when she actually received checks, the checks did not list the correct pay-period dates. Instead, Kathy would hand her a check, and say, "I'm going to give you two checks for the next three or four weeks." Clancy further testified that upon going to the Social Security Administration office, she learned that no funds had been paid into her social security account during 2014 and 2015.

         ¶19. Parker testified that he started working at Culpepper Enterprises in the spring of 1991. He stated that in 2009, he and Culpepper Enterprises orally agreed that he would receive an annual salary of $51, 000 and would be paid every two weeks. Parker asserted that his 2009 agreement with Culpepper Enterprises had never changed. He said that despite several conversations with Kathy and White, Culpepper Enterprises failed to pay him his agreed upon salary during 2014 and 2015.

         ¶20. Nell Hopkins testified that she worked as Culpepper Enterprises' bookkeeper and payroll clerk from September 2007 to December 2013. Hopkins said that she personally witnessed Parker and Clancy work year-round, even during winter months, and that she was never instructed to alter Parker's or Clancy's pay in any way. She testified that while working for Culpepper Enterprises, she observed Kathy ask Parker and Clancy not to cash their paychecks until Culpepper Enterprises had enough funds to cover the checks. Hopkins stated that on occasion, Kathy held Parker's and Clancy's paychecks until she chose to sign them. Hopkins further testified that although Culpepper Enterprises withheld taxes and Medicare from Parker's and Clancy's paychecks, Kathy instructed her not to submit the withholdings to the government. Additionally, Hopkins testified that Culpepper Enterprises continued to withhold life-insurance payments from Parker's and Clancy's checks after their insurance was cancelled in 2012. Hopkins said Kathy received life-insurance reimbursement checks but never gave them to Parker or Clancy.

         ¶21. Lisa Boykin, an accountant, testified as an expert for Parker and Clancy. She stated that prior to trial, she reviewed Parker's and Clancy's 2010-2015 W-2 statements, paycheck stubs, personal bank statements, 2015-2016 pay summaries, and July 2016 Social Security Administration Statements. She further stated that the documents she reviewed included: 2010-2016 banks statements relating to Parker's and Clancy's payrolls, 2010-2016 debit transactions of paychecks cleared for payment to Parker and Clancy, employee paycheck stubs, and operating expenses for transactions dated 2015-2016. In exhibits admitted into evidence as P15 and P16, Boykin opined that Parker's 2014-2016 gross missing payroll amounted to $48, 000, and Clancy's equaled $40, 960. Boykin's opinions as to Parker's gross-missing payroll, admitted as Parker and Clancy's exhibit P15, are as follows:

2014

1/25/14 to 2/07/14

$ 2, 000

2/08/14 to 2/14/14

$ 2, 000

7/19/14 to 8/01/14

$ 2, 000

2014 TOTAL OWED

$ 6, 000

2015

1/10/15 to 1/23/15

$ 2, 000

1/24/15 to 2/06/15

$ 2, 000

2/07/15 to 2/20/15

$ 2, 000

2/21/15 to 2/20/15

$ 2, 000

3/07/15 to 3/20/15

$ 2, 000

3/21/15 to 4/03/15

$ 2, 000

4/04/15 to 4/17/15

$ 2, 000

7/25/15 to 8/07/15

$ 2, 000

8/08/15 to 8/21/15

$ 2, 000

8/22/15 to 9/04/15

$ 2, 000

9/05/15 to 9/18/15

$ 2, 000

9/19/15 to 10/02/15

$ 2, 000

10/03/15 to 10/16/15

$ 2, 000

10/17/15 to 10/30/15

$ 2, 000

2015 TOTAL OWED

$ 28, 000


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