ALEX WATKINS v. CAREY WICKER III AND CAPITELLI AND WICKER (2026)

Plaintiff, J. Alex Watkins, appeals the trial court judgment granting the motion for involuntary dismissal, and dismissing with prejudice all claims brought by Mr. Watkins against defendants, T. Carey Wicker, III, and the law firm of Capitelli and Wicker (“C & W”). In a consolidated appeal, Mr. Watkins appeals the trial court judgment granting a motion to tax costs filed by defendants. For reasons that follow, we affirm the judgment granting the motion for involuntary dismissal and dismissing Mr. Watkins claims with prejudice. We also affirm the judgment granting the motion to tax costs.

BACKGROUND

Mr. Watkins is an attorney who brought this lawsuit against his former law firm, C & W, and one of its partners, Mr. Wicker, for damages, declaratory judgment and accounting. He worked for C & W from 2003 to 2020, first as a law clerk for one year and then as a licensed attorney for the remainder of his time at the firm. Mr. Watkins worked with Mr. Wicker on civil matters, and Ralph Capitelli, Mr. Wicker's partner, handled criminal defense cases. In early 2010, Mr. Capitelli and Mr. Wicker amended their partnership agreement to one in which they would no longer share profits, but instead would individually keep the fees they each generated minus certain expenses.

In his original petition, filed on December 31, 2020, Mr. Watkins alleged that in 2010, following the amendment of the partnership agreement between Mr. Capitelli and Mr. Wicker, he and Mr. Wicker verbally agreed that Mr. Watkins would continue to be an employee of the firm and receive a base salary but would become a “non-equity partner” in the firm. Mr. Watkins alleged that part of the agreement was that his base salary would be credited against a non-discretionary bonus of one-third of the net profits generated by Mr. Wicker's civil practice with C & W. Mr. Wicker would retain two-thirds of the profits under this agreement. Mr. Watkins alleged that this alleged profit sharing agreement was reached during a conversation that took place when the two men were driving to lunch one day in 2010.

According to Mr. Watkins, this verbal agreement was reduced to writing in 2017 through a letter and several employment verification forms that were sent to financial institutions when Mr. Watkins was seeking financing for a home he and his wife sought to purchase. The letter and forms were prepared by Mr. Watkins and signed by Mr. Wicker. The wording of the letter and verification forms varied slightly but generally described Mr. Watkins as a partner with a one-third profit share but no ownership in the C & W partnership.

Mr. Watkins further alleged in his original petition that in 2020, following a disagreement between the two men, Mr. Wicker informed him that he would not receive any portion of several substantial fees received by Mr. Wicker in 2020 because Mr. Watkins did not have a written partnership agreement and was merely an employee whose bonuses were within the sole discretion of Mr. Wicker. Mr. Watkins alleged that after this conversation in December 2020, he discovered that he had not been paid a full one-third of other profits for one or more years after the 2010 alleged verbal agreement.

Mr. Watkins alleged that in accordance with the 2010 verbal agreement, he had been a partner or joint venture of C & W and/or Mr. Wicker and was entitled to one-third of the annual net profits generated by Mr. Wicker's practice. He alleged that Mr. Wicker breached a partnership agreement with him. Alternatively, he alleged a breach of an employment agreement with Mr. Wicker, and claimed he was due penalty wages in accordance with La. R.S. 23:631. He asked for damages and a declaratory judgment that he was a partner or joint venture, or alternatively an employee of C & W entitled to annual compensation equal to one-third of the net profits generated by the practice of Mr. Wicker. Mr. Watkins also asked for an accounting of the income and disbursements and for examination of all accounting records of C & W from 2010 through December 31, 2020, and for all general and equitable relief that the nature of his action allowed.

Defendants filed a dilatory exception of vagueness and a peremptory exception of prescription in response to the original petition. The exception of vagueness was overruled. The exception of prescription was based on the argument that Mr. Watkins’ claims for unpaid partnership compensation or profits and unpaid employee compensation or wages were limited under La. C.C. art. 3494 to three years from the time he filed suit.¹ The trial court granted the exception of prescription, and ordered Mr. Watkins to amend his petition in compliance with the time period set forth in La. R.S. 12:1502, regarding actions against persons who control business organizations, and La. C.C. art. 3495, which provides that prescription commences to run from the day payment is exigible.

Mr. Watkins then filed an amended petition for damages, declaratory judgment and accounting. In the amended petition, he limited his claim for bonus or commission payments to the three years preceding the date of the filing of his original petition. In his cause of action for accounting, he alleged he was entitled to an accounting of the income and disbursements of C & W from 2017 through the filing of his original petition.

Defendants filed a peremptory exception of no right of action in response to Mr. Watkins’ amended petition, arguing that the allegations in the petition were insufficient to establish that he has a legal right to an accounting. Mr. Watkins also filed a motion to compel responses for discovery. Defendants’ exception of no right of action and Mr. Watkins’ motion to compel were heard on the same date.

The trial court granted the exception of no right of action based on its finding that Mr. Watkins was not a partner in the C & W law firm. By separate judgment, the trial court granted Mr. Watkins’ motion to compel in part and ordered defendants to supplement their discovery responses with IRS Form K-1's issued by C & W to Mr. Wicker for the years 2018 through 2020 as well as records reflecting any amounts paid to or on behalf of Mr. Watkins for the years 2018 through 2020.

TRIAL TESTIMONY

Mr. Watkins testified that he was initially hired by C & W as a law clerk in 2003. He became an associate with the firm in 2004, and received a base salary of $60,000.00 per year in addition to benefits including health insurance and a retirement account. He worked closely with Mr. Wicker on civil cases, which were handled on a contingency fee basis. Between 2004 and 2010, his base salary remained the same but he would also occasionally receive a bonus after a large case settled.

He stated that, in 2010, Mr. Wicker and Mr. Capitelli amended their longstanding partnership agreement to provide that they would no longer share profits, but would, from that point forward, each keep his own profits and be responsible for the expenses of his individual practice. According to Mr. Watkins, he and Mr. Wicker were driving to lunch one day in 2010 as they often did. During that car ride, Mr. Watkins raised the idea of a profit sharing arrangement between the two of them whereby he would receive one-third of the net profits on the cases he worked on with Mr. Wicker. Mr. Wicker would receive the remaining two-thirds of the profits.

Mr. Watkins suggested that he would become a non-equity partner in the firm so that if his marriage ended in divorce, his then-wife could not claim an ownership interest in the firm. He would continue to be paid as an employee of the firm and receive a W-2 for his taxes instead of a K-1 that partners receive. Mr. Watkins testified that Mr. Wicker verbally agreed to those terms both on behalf of himself and on behalf of C & W. He described his work with Wicker as “a law firm within a law firm.”

When asked at trial if this alleged verbal profit sharing agreement with Mr. Wicker was ever reduced to writing, he responded affirmatively and referenced a letter and several income verification forms signed by Mr. Wicker in 2017 in support of Mr. Watkins’ attempts to secure financing for a home that he and his second wife sought to purchase. He admitted he did not have an ownership interest in C & W, but claimed that these 2017 documents confirm that he did have an interest in a profit share for cases he worked on with Mr. Wicker.

Mr. Watkins stated that, between 2010 and 2017, he believed that he was receiving “approximately” one-third of the net profits minus his base salary, which remained the same during his entire employment with the firm. He testified that “when we made a lot of money from some case, Carey would send a bonus payment.” He said he worked “almost” all of the cases Mr. Wicker had, and trusted him to determine his net profits for the year and pay Mr. Watkins one-third of that amount.

In response to being asked at trial, “Were these additional payments between 2010 and 2017 sort of intermittent throughout the year?,” Mr. Watkins testified, “Yes. On and off. There was no rhyme or reason to it.” When asked if he had any concerns about the additional payments being made to him in round number increments, he said he did not “because it was much easier for everyone to kind of do a round number.” He stated that he never asked for an accounting to determine his share of the net profits except when he did so for this litigation.

Mr. Watkins testified regarding a letter he faxed to Citibank on February 3, 2017. The letter was drafted by him and signed by Mr. Wicker. The letter stated, in pertinent part:

J. Alex Watkins became a partner in 2010 with an agreement to be paid one-third of profits and continuation to be paid as an employee. He does not have an ownership interest in the partnership. His bonus in 2016 mostly consisted of two large settlements, but these cases are not outliers for the cases we routinely handle. Thus, while the frequency and timing of this size of settlement is difficult to predict, we currently have several cases that would result in similar bonuses.

He testified that he brought the above letter to Mr. Wicker, explained that it was part of a mortgage application process, and that the letter was in response to a request by Citibank to explain the employment relationship between Mr. Watkins and Mr. Wicker. He stated that Mr. Wicker appeared to read the letter, and signed it without asking any questions about the contents.

On the same date, February 3, 2017, Mr. Watkins sent a “Request for Verification of Employment” form to Citibank, which he testified was completed by him and signed by Mr. Wicker. In this form, Mr. Watkins’ “Present Position” was stated as “Partner (Profit Share).” The form included his base pay and bonus payments received for the years 2014, 2015 and 2016. In the “Remarks” section was the following handwritten statement:

The 2016 bonus was from 2 large cases and we have several similarly large cases in work – Base salary has always been $60K. There was a Paychex error in 2016 ($5K short) and a bonus in 2015 of $15K erroneously put as base. Mr. Watkins is called a partner but is paid as employee with 1/3 profit share of partner – this was arranged in 2010.

Following Citibank's denial of Mr. Watkins’ mortgage application, he applied for a mortgage with Eustis Mortgage Corporation. In conjunction with this application, he submitted a “Request for Verification of Employment” form on February 23, 2017, which was completed by him and signed by Mr. Wicker. This form stated his “Present Position” as “Partner (Profit Share),” and stated his base salary and bonus payments for 2015, 2016 and year-to-date for 2017. The handwritten remarks on that form were as follows:

We handle large cases that settled in Jan. 2016 – had that one settled in Dec. 2015 it would even out more – 2 cases settled in 2016. His 5 year average is @ $300K/yr.

Following further requests by Eustis Mortgage for more information regarding his income, two more “Request for Verification of Employment” forms were submitted on March 1, 2017. Both were completed by Mr. Watkins and signed by Mr. Wicker. Both stated Mr. Watkins’ “Present Position” as “Partner (1/3 Profit Share Only, No Ownership Interest),” and one listed base salary and bonus payments for 2015, 2016 and year-to-date for 2017 and the other listed base salary and bonus payments for 2012, 2013 and 2014. The “Remarks” section on the first one included the following handwritten statement:

Original hire date is as a non-lawyer law clerk – hired as lawyer 10/15/04. One third profit share as partner – no ownership interest – profit share started 2010. Income fluctuation is typical for plaintiff's attorneys but averages out over seven years.

The handwritten remarks on the second form submitted on March 1, 2017, were as follows:

Forecast of income is higher than average year with cases ripe for settlement.

Mr. Watkins testified that he presented all four employment verification forms to Mr. Wicker for his signature and explained that these documents were needed for his mortgage application process. According to Mr. Watkins, Mr. Wicker appeared to read the documents before signing, and did not object to any of the contents. Mr. Watkins’ mortgage application was ultimately approved by Eustis Mortgage.

He testified that he relied on the above letter and income and employment verifications from 2017 as written confirmation of his alleged verbal 2010 profit sharing agreement with Mr. Wicker. Mr. Watkins’ testimony included several statements regarding bonuses he received periodically from Mr. Wicker in addition to his base salary. He stated his belief that he had been receiving one-third of the net profits from Mr. Wicker's practice since 2010. He also testified about certain cases in which he received bonus payments.

When questioned about the cause of his separation of employment from the law firm, Mr. Watkins stated that in December 2020, he and Mr. Wicker had a disagreement about Mr. Watkins’ attendance at a hearing. Because of considerations regarding the Covid pandemic, Mr. Watkins wanted to attend the hearing remotely, whereas Mr. Wicker insisted that he attend in person. In the heat of the argument, Mr. Watkins said Mr. Wicker told him he was fired, but then backed off of that statement while still urging him to attend the hearing in person.

Mr. Watkins left the office that day believing he had been fired, and sent Mr. Wicker an email the following day stating this belief. In the email, he insisted that he be paid one-third of the net profits for 2020 to close out his employment with the firm. Included in the email were the following two paragraphs:

I'll see you on Monday and we can discuss what else needs to be done to close out my employment with the firm, including payment of one third of the profits for this year. I have attached your acknowledgment of our agreement for your convenience.

If you did not mean to dismiss and wish me to continue working, then you should apologize for your abusive behavior, ensure there is a full bonus check for this year and one-half partnership plan waiting for me on Monday.

Mr. Watkins testified that he believed he was already entitled to a one-third profit share, but also wanted a 50/50 split from that date forward.

When Mr. Wicker asked him to what acknowledgment he was referring in his email, Mr. Watkins cited the above-quoted letter of February 3, 2017, to Citibank, which was signed by Mr. Wicker, and a copy of which Mr. Watkins had attached to his email. Mr. Wicker questioned Mr. Watkins’ assertion that they had a written agreement and the two men agreed to meet the following Monday. Mr. Watkins testified that at that meeting, Mr. Wicker told him he had 3 options: 1) leave the firm, start his own firm and have Mr. Wicker send him cases, 2) get a bonus payment, or 3) sue the firm. According to Mr. Watkins, the bonus payment of option #2 was initially offered as $200,000.00 and then increased to $400,000.00, but Mr. Watkins believed he was owed substantially more than that amount for cases settled in 2018, 2019 and 2020. Mr. Wicker held firm to his offer of a bonus payment of $400,000.00, so Mr. Watkins quit the firm. This lawsuit followed.

On cross-examination, Mr. Watkins reiterated his understanding that since 2010, he had been a non-equity partner of C & W, with an agreement with Mr. Wicker to be paid a non-discretionary one-third share of the net profits for cases worked on by him and Mr. Wicker. When asked if he knew how those profits were calculated, he replied, “I left it up to Carey. He had been a partner at Capitelli and Wicker for a long time and shared profits with Ralph Capitelli. I anticipated that that would be what we were doing.” He stated that he anticipated sharing profits with Mr. Wicker from the work they were doing together, and his understanding of the profit sharing agreement was that he would receive one-third of the gross profits less expenses. He said that between 2010 and 2017, he and Mr. Wicker only had one brief conversation about the alleged agreement. The one other conversation involved Mr. Watkins asking Mr. Wicker about a bonus payment, and Mr. Wicker telling him they had a bad year.

When asked about any other written agreement other than the one alleged to be contained in the mortgage application documents, Mr. Watkins answered, “I do not believe there are [sic] that says about one-third profits.” He was also asked about an email he sent to his divorce lawyer on February 28, 2012, when his first marriage was ending. That email stated:

I do not have any ownership or contractual interest in the cases I handle. The only benefit I derive from my cases is if, at the end of the year, the firm has made a profit, I am given a bonus determined by Carey Wicker.

In his trial testimony, he admitted that he did not tell his divorce lawyer that he had an agreement for non-discretionary bonuses or a one-third profit share with Mr. Wicker. He acknowledged that at that time, he was not fully candid with his soon-to-be ex-wife because he did not want her to try to claim an interest in the law firm.

Mr. Watkins also acknowledged that prior to applying to Citibank for a mortgage in 2017, he applied to Whitney Bank. In that application process, he did not tell Whitney that he had an agreement for a non-discretionary one-third profit share. When asked why he did not state in any of the 2017 documents referenced above that the bonuses he received were non-discretionary, he replied that he did not believe that was necessary.

When he was asked about a letter he signed in 2017 in which he said he gets paid a commission on cases he settled, Mr. Watkins’ testimony was that this statement was not 100% accurate, and that he was just trying to answer a question to a potential lender as to why his income fluctuated.

Mr. Watkins acknowledged that the determination of the amount of any bonus he received was made solely by Wicker. He testified:

He [Wicker] did have a lot of discretion in our agreement to use monies as he saw fit to better the firm. That would come out of the profits. So yes he had absolute authority. That is one of the reasons we set it up the way we did. Carey could run this firm the way he saw fit.

Mr. Watkins said that when he uses the term “firm,” he is referring to the “firm within a firm” that he alleges he had with Mr. Wicker.

On redirect examination, he was asked about the February 28, 2012 email to his divorce lawyer, in which he stated that he did not have a contractual interest in the cases he handled. His reply was that he had an interest in the profits from cases he worked on with Mr. Wicker because he had a profit sharing agreement, and that all attorneys of record have a statutory interest in cases they are handling.

The next witness was Carey Wicker, who was called by Mr. Watkins’ attorney. He testified that C & W has never had written employment contracts with any of its salaried employees, including Mr. Watkins. While employed by C & W, Mr. Watkins was always a salaried employee and also received health insurance and retirement benefits provided by the firm. He never received a K-1 tax form that partners receive, but always received a W-2 tax form instead. The terms of Mr. Watkins’ employment never changed during his time at the firm.

Mr. Wicker acknowledged his signature on the letter and employment verifications on which Mr. Watkins relies as proof of a profit-sharing agreement. He stated that he did not recall reading the documents that Mr. Watkins asked him to sign but assumes he did because he signed them. He said he was merely doing what Mr. Watkins asked him to do to help him obtain a mortgage.

Mr. Wicker testified that he and C & W have paid Mr. Watkins everything he is owed. Any bonus payments made to Mr. Watkins were at Mr. Wicker's sole discretion. He also testified that, after receiving Mr. Watkins’ email in December 2020 demanding further payment, he made clear to Mr. Watkins that his offer of a $400,000.00 bonus was conditioned on a release being executed by Mr. Watkins. Mr. Watkins was unwilling to do so.

Sarah Wheelock, Mr. Watkins’ ex-wife, was the next witness. They were married from 2001 to 2012. She testified that in 2011, while they were in the process of divorce, he told her that going forward he would be receiving one-third of the settlements received for cases he worked on with Mr. Wicker. He admitted to her that he and Mr. Wicker did not have a written contract at that time.

Ralph Capitelli, Mr. Wicker's partner in the C & W firm, testified that he and Mr. Wicker amended their partnership agreement in 2010 and the amended agreement is still in effect. After 2010, Mr. Wicker had full discretion over the handling of the profits made on his cases.

Paul Huner, the CPA for C & W and individually for Mr. Capitelli and Mr. Wicker for approximately twenty-five years, testified that Mr. Watkins never received a K-1 from C & W. Mr. Huner stated that he was aware that bonuses were paid to employees of the firm. When asked if he was aware of the process that Mr. Wicker or Mr. Capitelli used to determine bonuses paid to employees, he replied, “I just know it is discretionary based on what they want to give.” Mr. Huner stated that according to the tax and accounting documents he has prepared for C & W as the firm's CPA, Mr. Watkins was never considered a partner of C & W. Mr. Huner was never told that Mr. Wicker was sharing a fixed percentage of his income with Mr. Watkins.

Dennis Tizzard, an expert in the field of forensic accounting, testified by video deposition. He was retained to provide an opinion as to the financial losses allegedly suffered by Mr. Watkins for the years 2018, 2019 and 2020. Mr. Tizzard stated that those were the only years for which he was provided the relevant financial data. He described the information and documents he received to assist him in forming his opinion, and explained how he calculated the amount he found to be owed to Mr. Watkins from Mr. Wicker's practice for the above-stated three years. He testified that he calculated Mr. Watkins’ total losses for those three years to be “$1,736,000 rounded.”

Mr. Tizzard testified that the central assumption to all of his calculations was that Mr. Watkins was entitled to a non-discretionary one-third share of the net profits of Mr. Wicker's practice. He further testified that the only written documentation he saw of a profit sharing agreement between Mr. Watkins and Mr. Wicker was the above-referenced documents filed in support of Mr. Watkins’ mortgage application process in 2017. He did not see any signed agreement between the two men establishing a non-discretionary profit sharing agreement between them.

At the close of Mr. Watkins’ case at trial, defendants urged a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B). In opposition to the motion, Mr. Watkins’ attorney argued that Mr. Wicker's acknowledged signatures on the multiple employment verifications and letter submitted to financial institutions constituted acts under private signature duly acknowledged, which under La. C.C. art. 1836 are regarded as prima facie evidence of a true and genuine act of a party executing it and defendants should be judicially estopped from disclaiming the contents of those acts.

The trial court granted the motion for involuntary dismissal, rejecting Mr. Watkins’ claim that the letter and employment verification letters memorialized a verbal agreement between the two men that entitled Mr. Watkins to a one-third profit share of Mr. Wicker's practice. The court found that these documents did not serve as a written contract between these two parties.

The court considered Mr. Watkins’ argument that Mr. Wicker's signature on these documents constituted acts under private signature under La. C.C. art. 1836, and found that Mr. Wicker's signature on these documents did not show that he was agreeing to any terms of an agreement between him and Mr. Watkins. The court stated that she came to this determination after examining the credibility of the witnesses at trial, including Mr. Wicker and Mr. Watkins. The court also considered the circumstances under which the documents were signed, including that Mr. Watkins and Mr. Wicker were close acquaintances with trust in one another and “it makes sense to the Court that Mr. Wicker would sign these documents without fully considering the contents.”

Concluding that the employment verification forms and letter were signed by Mr. Wicker merely to help Mr. Watkins get a loan and not to confirm any terms of an alleged agreement, the Court held that there was no meeting of the minds between the two men as to the establishment of the non-discretionary profit sharing agreement alleged by Mr. Watkins. She stated her disbelief that two skilled attorneys would enter into such an agreement without reducing it to writing. Accordingly, the trial court granted the motion for involuntary dismissal and dismissed Mr. Watkins’ claims against defendants with prejudice. This appeal by Mr. Watkins followed.

STANDARD OF REVIEW

The standard of review for a trial court's granting of a motion for involuntary dismissal pursuant to La. C.C.P. 1672(B) was stated in Fla. Gas Transmission Co., LLC v. Texas Brine Co., LLC, 2018-0907 (La. App. 1 Cir. 8/29/19), 282 So.3d 256, as follows:

The trial court's grant of an involuntary dismissal is subject to the manifest error standard of review. Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 18-0631 (La. App. 1 Cir. 7/3/19), 281 So.3d 1, 3-4 (2019 WL 2865136); Broussard v. Voorhies, 06-2306 (La. App. 1 Cir. 9/19/07), 970 So.2d 1038, 1041, writ denied, 07-2052 (La. 12/14/07), 970 So.2d 535. To reverse, the reviewing court must find the trial court's finding has no reasonable factual basis and is clearly wrong. See Pontchartrain Natural Gas, 281 So. 3d at 3-4 (2019 WL 2865136); Broussard, 970 So.2d at 1042; see also Hayes Fund for First United Methodist Church of Welsh, LLC v. KerrMcGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110, 1116. The issue to be resolved on review is not whether the factfinder was right or wrong, but whether the factfinder's conclusion was a reasonable one. Hayes, 193 So.3d at 1116; Greene v. Succession of Alvarado, 15-1960 (La. App. 1 Cir. 12/27/16), 210 So.3d 321, 333.

Id., 2018-0907, pp. 4-5, 282 So.3d at 259.

ASSIGNMENTS OF ERROR

On appeal, Mr. Watkins asserts three assignments of error. In the first assignment of error, Mr. Watkins argues that the trial court erred in granting an involuntary dismissal pursuant to La. C.C.P. art. 1672(B), and dismissing his claim of a profit sharing compensation agreement where prima facie evidence was admitted at trial in the form of multiple acts under private signature signed by Mr. Wicker attesting to such an agreement. He also argued that the doctrine of equitable estoppel prevents defendants from now disclaiming what he alleges are written acknowledgments by Mr. Wicker of a profit sharing agreement.

La. C.C.P. art. 1672(B) states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

La. C.C. art. 1836 defines acts under private signature as follows, in pertinent part:

An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof.

An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private signature may be acknowledged also in any other manner authorized by law.

“A party invoking the doctrine of equitable estoppel must prove the facts upon which the estoppel is based and must establish all three elements of estoppel: 1) a representation by action or word; 2) justifiable reliance on the representation; and 3) a detrimental change in one's position because of the reliance.” Foret v. Serrano, 23-1034, p. 9 (La. App. 1 Cir. 4/30/24), 395 So.3d 876, 883.

We find that the 2017 mortgage documents offered by Mr. Watkins did not serve to memorialize in writing a non-discretionary profit sharing agreement between Mr. Watkins and Mr. Wicker that Mr. Watkins alleges was verbally agreed to by Mr. Wicker in 2010. These documents signed by Mr. Wicker were simply representations made by him to financial institutions on behalf of Mr. Watkins. Mr. Watkins did not offer any evidence other than the 2017 mortgage documents to support his claim of written confirmation of an alleged verbal contract. The evidence does not establish that there was ever a meeting of the minds between Mr. Watkins and Mr. Wicker to establish the profit sharing agreement alleged by Mr. Watkins.

As defendants noted in their appeal brief, if Mr. Watkins’ testimony is to be believed, an agreement potentially worth over a million dollars was decided between two sophisticated attorneys in a ten minute car ride with no written memorialization. The trial court evaluated the credibility of the witnesses and did not believe Mr. Watkins’ testimony that such a deal was verbally agreed to by Mr. Wicker. The trial court was faced with opposing testimony from Mr. Watkins and Mr. Wicker on the issue of whether the bonus payments that were regularly given to Mr. Watkins were discretionary as Mr. Wicker testified or non-discretionary as Mr. Watkins testified. The court obviously found Mr. Wicker to be the more credible witness, and rejected Mr. Watkins’ claim that the bonus payments were non-discretionary. We find the trial court's credibility determinations to be reasonable.

The evidence established that Mr. Watkins was only entitled to a base salary for his work with Mr. Wicker, but that he regularly received generous bonuses when cases were completed. But the record is clear that any bonuses given to Mr. Watkins were at the sole discretion of Mr. Wicker.

The testimony of Mr. Watkins further underscores the discretionary and inexact nature of the bonuses he was given by Mr. Wicker. He stated that the bonus payments were “on and off” through the year with “no rhyme or reason to it,” and that he “left it up to Carey [Wicker]” as to how profits were calculated. In the February 28, 2012 email to his divorce lawyer, he acknowledged that any bonuses he received were determined by Mr. Wicker. Mr. Watkins testified that he is owed bonuses for all of the cases in Mr. Wicker's practice, yet his testimony at trial was that he worked on “almost” all of Mr. Wicker's cases.

Mr. Watkins did not prove a breach of a partnership agreement with Mr. Wicker because he was not a partner. As for Mr. Watkins’ alternative claim of breach of an employment agreement, he did not prove his entitlement to penalty wages under La. R.S. 23:631. “To recover penalty wages, an employee must show that 1) wages were due and owing; 2) demand for payment was made at the place where the employee was customarily paid; and 3) the employer did not pay after demand within the time specified by La. R.S. 23:631.” Steak v. Hat World, Inc., 15-1108, p. 6 (La. App. 4 Cir. 5/4/16), 191 So.3d 712, 715, (first citing Becht v. Morgan Bldg. Spas, Inc., 02-2047, p. 4 (La. 4/23/03), 843 So.2d 1109, 1112; and then citing Beard v. Summit Institute for Pulmonary Medicine and Rehabilitation, Inc., 97-1784, p. 3 (La. 3/4/98), 707 So.2d 1233, 1236). Mr. Watkins did not prove that wages were due and owing to him. Similarly, he did not prove a claim under the doctrine of equitable estoppel. He did not prove a representation by Mr. Wicker that he was entitled to any compensation beyond his base salary.

We conclude that the trial court was not manifestly erroneous in granting the defendants’ motion for involuntary dismissal. This assignment of error is without merit.

In the second assignment of error, Mr. Watkins argues that the trial court erred in granting an involuntary dismissal pursuant to La. C.C.P. art. 1672(B), and dismissing his claim of unpaid wages where uncontroverted evidence was admitted at trial that $200,000.00 claimed in the defendants’ Answers and in defendants’ responses to Requests for Admission to have been paid to Mr. Watkins in 2020 was not actually paid. Included in defendants’ Answer to Mr. Watkins’ amended petition is the statement, “[i]n December of 2020, Petitioner was given a discretionary bonus in the amount of approximately $200,000.00 on or about December 2, 2020.”

Because we have concluded that any amounts paid or not paid to Mr. Watkins other than his base salary were within the sole discretion of Mr. Wicker, the $200,000.00 amount referenced in defendants’ Answer was not, in fact, owed to Mr. Watkins. This assignment of error is without merit.

In the third assignment of error, Mr. Watkins argues that the trial court erred in limiting his discovery of financial information on his possible underpayments to exclude the year 2017, which encompasses a portion of his three-year claim dating back from the filing of his original petition on December 31, 2020.

Because of our conclusion that the trial court did not err in finding that Mr. Watkins did not prove that he and Mr. Wicker had a profit sharing agreement or that he was entitled to non-discretionary bonus payments for cases worked on with Mr. Wicker, the issue of his possible underpayments for such bonuses is moot.² This assignment of error is without merit.

In a consolidated appeal, 2025-CA-0602, Mr. Watkins appealed the trial court judgment in favor of the defendants granting the motion to tax costs against Mr. Watkins for the case that is the subject of the underlying appeal in 2025-CA-0071. In their motion, defendants initially sought $36,966.32 in litigation costs, and attached affidavits and itemized bills to their memorandum in support thereof. Defendants subsequently filed a supplemental memorandum in support of their motion, and citing accounting errors, claimed a revised amount of total litigation costs of $43,460.32. The trial court granted the motion to tax costs to Mr. Watkins, and awarded defendants $21,730.16, or 50% of the amount claimed by defendants in the affidavits attached to their supplemental memorandum. Mr. Watkins filed a motion for new trial from the judgment awarding costs. The motion was denied.

On appeal, Mr. Watkins argues that the trial court erred in granting the defendants’ motion to tax costs and denying his subsequent motion for new trial when no competent evidence was introduced in support of defendants’ alleged costs. He also argues that neither of the affidavits filed in support of the motion contain information based on the affiants’ personal knowledge.

Defendants argue that their costs were fully supported by affidavits and itemized bills. According to defendants, the affidavits, which were executed by defendants’ attorneys, were based on their personal knowledge of the costs their firms incurred. They further argue that any conflicting information between the two sets of affidavits was due to accounting errors that were corrected and explained to Mr. Watkins and the trial court. Furthermore, defendants argue that the affidavits are in the record, and Mr. Watkins did not move to strike them during the summary proceeding. They also argue that whether or not the affidavits were admitted into evidence would not have changed the outcome of the case, and they cite a trial court's great discretion in awarding costs.

La. C.C.P. art. 1920 states:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

“A trial court is afforded great discretion in awarding costs, and such an award is generally only disturbed upon a showing that the court abused its discretion.” Barre-Williams v. Ware, 20-0665, p. 3 (La. App. 4 Cir. 4/28/21), 365 So.3d 760, 768 (citing Vela v. Plaquemines Parish Government, 00-2221 to 00-2224, p. 29 (La. App. 4 Cir. 3/13/02), 811 So.2d 1263, 1282).

The motion to tax costs was heard by the trial court on January 30, 2025. It is undisputed that the affidavits and itemized billing documents originally submitted in support of defendants’ motion to tax costs were not introduced into evidence at the January 30, 2025 hearing.³ The trial court awarded defendants $21,730.16, which represented 50% of their requested costs.

The trial court assigned the following reasons for its judgment awarding costs:

The Court finds that, pursuant to Article 1920 of the Louisiana Code of Civil Procedure, it has broad discretion in determining the value of costs to be taxed at trial. According to the relevant case law and Louisiana Revised Statute 13:4533, costs incurred for items actually used at trial are taxable against the non-prevailing party. In this case, the Defendants did not use much of the material they prepared for trial because the Court granted a Motion for Involuntary Dismissal after the Plaintiff's case was presented. However, the Court finds that, despite this, the Defendants were still required to prepare many materials as if they were going to present them in the event the Motion for Involuntary Dismissal was not granted. Since many of the Defendants’ experts and other witnesses were not called, the Court will reduce the Defendants’ requested costs by 50% to account for this. Therefore, the Court will award $21,730.16 in costs to the Defendants.

At the May 22, 2025 hearing on the motion for new trial from the judgment on the motion to tax costs, the trial court stated that at the January 30, 2025 hearing, she asked the defendants to submit a supplemental memorandum as to the amount of costs. Following the January 30, 2025 hearing, and as per the trial court's request, defendants submitted affidavits and a list of itemized costs with a supplemental memorandum. Although Mr. Watkins filed an opposition to the motion to tax costs, he did not file a motion to strike the affidavits and/or itemized bills that were attached to defendants’ supplemental memorandum. Although defendants acknowledge that the documents supporting their requested costs were never formally introduced into evidence, the trial court stated at the hearing on the motion for new trial that she reviewed the documents in great detail before arriving at her award of costs.

Considering the trial court's reasons for judgment and her great discretion in the award of costs, we find that under these circumstances, the trial court did not abuse her discretion in her award.

CONCLUSION

For the reasons stated above, the trial court judgment granting defendants’ motion for involuntary dismissal and dismissing Mr. Watkins’ claims against defendants with prejudice is affirmed. The trial court judgment granting defendants’ motion to tax costs and awarding $21,730.16 in costs to defendants is also affirmed.

AFFIRMED

FOOTNOTES

1.   La. C.C. art. 3494 states, in pertinent part:“The following actions are subject to a liberative prescription of three years: (1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board.”

2.   Even if this issue were not moot, Mr. Watkins’ argument would be without merit. December 31, 2017, was a Sunday. Because this was the only day in 2017 within three years of the filing of Mr. Watkins’ original petition, the trial court's limitation on his discovery request to not include any financial information of C & W for 2017 would not have been an abuse of the trial court's discretion.

3.   The transcript of the January 30, 2025 hearing was designated for the record on appeal but is not included in the record. However, we find remand for the record to be supplemented with this transcript unnecessary because the parties are in agreement that documents supporting defendants’ requested costs were not formally introduced into evidence at that hearing.

Judge Daniel L. Dysart