The opinion
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0106
FRANK VINE
VERSUS
TEACHERS RETIREMENT SYSTEM OF LOUISIANA
Judgment Rendered: DEC 7 9 2019
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. C607425
Honorable Todd Hernandez, Judge Presiding
Scott D. Wilson Counsel for Plaintiff/Appellant
John A. London, III Frank Vine
Baton Rouge, Louisiana
Matthew G. Tessier Counsel for Defendant/ Appellee
Roy A. Mongrue, Jr. Teachers' Retirement System of
Baton Rouge, Louisiana Louisiana
Mark D. Boyer Counsel for Defendant/ Appellee
Scott Nettles West Feliciana Parish School Board
Denham Springs, Louisiana
Robert Hammonds Counsel for Defendant/ Appellee
Wayne T. Stewart Pointe Coupee Parish School Board
Baton Rouge, Louisiana
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
MCCLENDON,. J.
Plaintiff herein, Frank Vine, appeals a judgment rendered in favor of Teachers'
Retirement System of Louisiana, the West Feliciana Parish School Board, and the Pointe
Coupee Parish School Board. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiff herein, Frank Vine, was a Certified School Psychologist from 1983
through 2018. Mr. Vine was employed by various school systems in regular full- time
positions for eleven years, from the summer of 1983 until the summer of 1994. During
this time, Mr. Vine' s employers remitted employee retirement withholdings and
employer retirement contributions ( collectively, " retirement contributions' to Teachers'
Retirement System of Louisiana (" TRSL") on Mr. Vine' s behalf. This full- time income
was reported by IRS Form W- 2.
In August of 1994, Mr. Vine resigned from his full- time position as a school
psychologist with the West Feliciana Parish School Board (" WFPSB'. Following this
resignation, Mr. Vine contracted with WFPSB, Pointe Coupee Parish School Board
PCPSB', and St. Helena Parish School Board (" SHPSB' to provide school counseling
services on a part-time basis. During this time from August 1994 — August 2006, no
retirement contributions were made to TRSL on Mr. Vine' s behalf. Mr. Vine' s part-time
income was reported on IRS Form 1099 (` 1099 earnings'.
Mr. Vine became a full- time employee of PCPSB in August of 2006. Mr. Vine
continued to work full- time for PCPSB until his retirement on January 22, 2014. PCPSB
made appropriate retirement contributions to TRSL on Mr. Vine' s behalf during this
time.
In December of 2009, while still working full- time for PCPSB, Mr. Vine contacted
TRSL to inquire about potentially purchasing additional years of " service credit"
pursuant to LSA- R. S. 11: 158. While speaking with Martha Rosa of TRSL, the
conversation turned to whether WFPSB, PCPSB, and SHPSB should have remitted
retirement contributions on Mr. Vine's behalf for his 1099 earnings when he worked
part- time. On the advice of Ms. Rosa, Mr. Vine collected records relative to the part-
time work in question.
2
Mr. Vine contacted Ms. Rosa again in March of 2010. Ms. Rosa directed him to
Venetia Pitts ( now Venetia Clark), who was then an Accounting Supervisor for TRSL. In
a March 11, 2010 email to Ms. Pitts, Mr. Vine wrote that Ms. Rosa " had suggested that
there was a possibility that the [ p] arishes that I contracted [ with] should have been
paying retirement assessments on me, as I was a vested TRSL member by that time;
however, she was not sure, and suggested I contact you." Ms. Pitts agreed to assist Mr.
Vine in contacting WFPSB, PCPSB, and SHPSB regarding the issue. She contacted
SHPSB first, on March 25, 2010. On October 22, 2010, Ms. Pitts confirmed to Mr. Vine
that SHPSB had submitted retirement contributions for his 1099 earnings to his
retirement account.
Mr. Vine contacted WFPSB in September of 2010. He spoke with Helen B. Davis,
who was then Supervisor of Finance and Management for WFPSB, and Karen Raby, who
was then payroll specialist for WFPSB. In a letter dated November 10, 2010, Ms. Davis
reported that WFPSB had researched Mr. Vine' s request ` that monies [ he] earned under
contract with [ WFPSB] be submitted to [ TRSL] as covered employment."' Attached
documents reflected that WFPSB had determined it should have made employer
retirement contributions in the amount of $ 19, 509. 74 and should have withheld
employee contributions in the amount of $ 10, 333. 80 for Mr. Vine' s part-time work for
WFPSB, for a total retirement contribution amount of $ 29, 843. 54. Ms. Davis requested
that Mr. Vine submit his share of the contributions " due for the years of covered
employment" to WFPSB, as Ms. Pitts had advised that WFPSB should collect Mr. Vine' s
contributions and submit them to TRSL together with WFPSB' s contributions. Mr. Vine
submitted his share of the retirement contributions to WFPSB as requested. In
December of 2010, WFPSB deposited $ 29, 843. 54 with TRSL for Mr. Vine' s 1099
earnings.
In December of 2010, Mr. Vine met with Linda D' Amico, then superintendent of
PCPSB, and Bobbie Jarreau, then bookkeeper of PCPSB. PCPSB began looking into Mr.
Vine' s concerns.
1 Ms. Davis also wrote that per Ms. Pitts, " wages do not have to be reported by [ WFPSB] for any year in
which [ Mr. Vine] did not earn at least $ 15, 000. 00 where a 1099 was issued," so WFPSB would not submit
contributions for fiscal years 1994/ 1995 and 1998/ 1999.
3
On January 3, 2011, Benjamin Foster, Accounting Manager of TRSL, informed
Mr. Vine that TRSL was going to ' reverse" the contribution payments that had been
made by SHPSB and WFPSB. Following this conversation, Mr. Foster sent an email
dated January 4, 2011 to Ms. Pitts and Dana Vicknair, Assistant Director of TRSL. In the
email, Mr. Foster wrote:
TRSL] initially communicated to Mr. Vine back in March 2010 that his
1099 earnings were reportable... Later in 2010, however, [ TRSL] became
aware that earnings derived solely as an independent contractor were not
reportable to TRSL. Based on this, [ TRSL] informed Mr. Vine that his
earnings were not TRSL eligible.
SHPSB] has reported their information to TRSL for Mr. Vine, [ WFPSB] just
reported and their data is being processed by Cost, and [ PCPSB] has not
reported but has indicated to us today that they would report if required
to do so.
On December 7, 2011, Mr. Vine instituted this lawsuit. On May 14, 2015, the trial
court denied a motion for summary judgment filed by WFPSB. On November 19, 2015,
the trial court denied Mr. Vine' s motion for partial summary judgment as to the proper
interpretation of Louisiana Administrative Code, Title 58, Part III, Chapter 2, § 201. On
August 23, 2106, the trial court denied TRSL' s exception of no cause of action, and also
denied exceptions of prescription filed by TRSL, WFPSB, and PCPSB.
A bench trial on the merits was held on April 3 and April 4, 2018. Rather than
hearing oral arguments, the trial court requested post -trial memorandums or
arguments. On June 28, 2018, the trial court issued written reasons for judgment,
rendering judgment in favor of TRSL, WFPSB, and PCPSB, which provide in pertinent
part:
At trial, the plaintiff had the burden of proving by a preponderance of the
evidence that at all times for which he claims the defendants were
obligated to make contributions to his retirement that he was an
employee of either a city or parish school board pursuant to the provisions
of LSA- R. S. 11: 701 et seq. After considering the totality of evidence
submitted at trial, the court concludes that the plaintiff failed to meet his
burden of proof on this essential element of his claim and for that reason,
the court orders that a Judgment issue herein in favor of the defendants
and against plaintiff.
A final judgment dismissing all of Mr. Vine' s claims against TRSL and WFPSB was
executed on August 16, 2018. From this judgment, Mr. Vine appeals, raising the
following assignments of error:
M
1. The trial court erred in failing to grant Mr. Vine' s motion for partial
summary judgment as to the defendants' liability and in failing
properly to interpret the applicable law, the Louisiana Administrative
Code, Title 58, Part III, Chapter 2, § 201, which required defendants
to make retirement contributions on Mr. Vine' s behalf even when he
was a " nonemployee contractor." Specifically, the trial court erred in
interpreting the law to require Mr. Vine to prove he was an employee
of either a city or parish school board pursuant to the provisions of
LSA- R. S. 11: 701, etseq., in order for the defendants to be obligated to
make contributions to his retirement.
2. Alternatively, the trial court erred in deciding that Mr. Vine failed to
establish that he was an employee pursuant to LSA- R. S. 11: 701, et
seq., or was not otherwise a member of TRSL and entitled to
contributions in light of LSA- R. S. 11: 162, TRSL Louisiana Teacher
Retirement Handbooks, and the Fishbein v. State ex rel. Louisiana
State Univ. Health Scis. Ctr., 2004- 2482 ( La. 4/ 12/ 05), 898 So. 2d
1260, 1262, decision, and all the relevant law regarding independent
contractor versus employee status.
FIRST ASSIGNMENT OF ERROR
Standard of Review
Mr. Vine alleges that the trial court erred in denying his motion for partial
summary judgment regarding the interpretation of Section 201. Appellate courts review
summary judgments de novo. Louisiana Horsemen' s Benev. & Protective Assn
1993, Inc. v. Fair Grounds Corp., 2002- 1928 ( La. 4/ 9/ 03), 845 So. 2d 1039, 1041.
Mr. Vine also asserts that the trial court erred by interpreting LSA- R. S. 11: 701 to
require WFPSB and PCPSB to make retirement contributions on Mr. Vine' s 1099
earnings only if Mr. Vine was an employee. Appellate courts review questions of law
which involve statutory interpretation de novo. Tanana v. Tanana, 2012- 1013
La.App. 1 Cir. 5/ 31/ 13), 140 So. 3d 738, 742. Accordingly, this Court's review of this
assignment of error is de novo. See Billeaudeau v. Opelousas Gen. Hosp. Auth.,
2016- 0846 ( La. 10/ 19/ 16), 218 So. 3d 513, 520.
ARRlicable Law
Louisiana Administrative Code Title 58, Part III, Chapter 2, § 201, entitled
Earnable Compensation Accounts" (" Section 201"), provides:
A. Earnable compensation shall not include compensation paid to an
active member or to an inactive member of Teachers' Retirement System
of Louisiana ( TRSL) if the compensation is paid by a secondary employer
and is reported to the Internal Revenue Service ( IRS) on a Form 1099, but
only if both the following occur.
9
1. The individual contract is for $ 1, 000 or less, and a Form 1099 is
issued.
2. The cumulative amount of the Form 1099 payments issued by a
single secondary employer to that member does not exceed $ 15, 000 in
a fiscal year.
B. If an individual contract is for more than $ 1, 000, then that entire
payment is earnable compensation subject to TRSL employer and
employee contributions.
C. If the cumulative amount of the Form 1099 payments issued by a
single secondary employer to that member exceeds $ 15, 000 in a fiscal
year, then all Form 1099 payments in excess of $ 15, 000 in that TRSL
fiscal year are earnable compensation subject to TRSL employer and
employee contributions.
NOTE: A secondary employer is one who does not report W- 2 earnings on
this member.
D. Earnable compensation shall include any and all compensation paid to
a retiree of this system by a TRSL- covered employer regardless of IRS
reporting.
AUTHORITY NOTE: Promulgated in accordance with R. S. 11: 701( 10).
HISTORICAL NOTE: Promulgated by the Department of Treasury, Board
of Trustees of the Teachers' Retirement System of Louisiana, LR 30: 273
February 2004).
Louisiana Revised Statute 11: 701( 10) defines " earnable compensation," and
provides as follows:
Earnable compensation" means the compensation earned by a member
during the full normal working time as a teacher. Earnable compensation
shall include any differential wage payment as defined by 26 U. S. C.
3401( h)( 2) that is made by an employer to any individual performing
qualified military service. Earnable compensation shall not include per
diem, post allowances, payment in kind, hazardous duty pay, or any other
allowance for expense authorized and incurred as an incident to
employment, nor payments in lieu of unused sick or annual leave, nor
retroactive salary increases unless such an increase was granted by
legislative Act or by a city or parish systemwide salary increase, nor
payment for discontinuation of contractual services, unless the payment is
made on a monthly basis. If a member is granted an official leave and he
makes contributions for the period of leave, earnable compensation shall
not include compensation paid for other employment which would not
have been possible without the leave. The board of trustees shall
determine whether or not any other payments are to be classified as
earnable compensation.
Louisiana Revised Statute 11: 701( 17) defines " member" as follows:
Member" means any teacher included in the membership of the system
as provided in Part II of this Chapter.
Louisiana Revised Statute 11: 701( 33)( a)( i) defines " teacher," in pertinent part,
as follows:
0
a) ' Teacher", except as provided in Subparagraph ( b) of this Paragraph,
shall mean any of the following:
i) Any employee of a city, parish, or other local school board, any parish,
city, or other local superintendent, or any assistant superintendent of
public schools.
Louisiana Revised Statute 11: 701( 11) defines " employer" as follows:
Employer" means the state of Louisiana, any city, parish, or other local
school board, the State Board of Elementary and Secondary Education,
any board created by Article VIII of the Constitution of Louisiana, or any
other agency of and within the state or a political subdivision by which a
teacher is paid.
Statutory Interpretation
Interpretation of any statute begins with the language of the statute itself.
David v. Our Lady of the Lake Hosp., Inc., 2002- 2675 ( La. 7/ 2/ 03), 849 So. 2d 38,
46. Laws on the same subject matter must be interpreted in reference to each other.
LSA- C. C. art. 13. " All laws pertaining to the same subject matter must be interpreted in
pari materia...." Acurio v. Acurio, 2016- 1395 ( La. 5/ 3/ 17), 224 So. 3d 935, 938. When
a statute is clear and unambiguous and its application does not lead to absurd
consequences, the provision is applied as written with no further interpretation made in
search of the Legislature' s intent. LSA- C. C. art. 9; LSA- R. S. 1: 4. In the event the
language of a statute is susceptible of different meanings, the interpretation must best
conform to the purpose of the law. LSA- C. C. art. 10.
Discussion
Mr. Vine contends that before Section 201 was enacted in 2004, LSA- R. S.
11: 701, et seq., required WFPSB and PCPSB to make retirement contributions on his
1099 earnings for 1994 to 2006. Mr. Vine argues that the definition of " earnable
compensation" set forth in LSA- R. S. 11: 701( 10) explicitly excludes " payment for
discontinuation of contractual services," but does not explicitly exclude " contractual
payments," and therefore contractual payments are included in earnable
compensation. 2 Thus, he maintains that his 1099 earnings, as payments made pursuant
to contracts, are " earnable compensation" on which retirement contributions were due.
2 In support of this point, Mr. Vine relies on Fishbein v. State ex rel. Louisiana State Univ. Health
Scis. Ctr., 2004- 2482 ( La. 4/ 12/ 05), 898 So. 2d 1260, 1272. In Fishbein, the Louisiana Supreme Court
wrote:
7
Mr. Vine further argues that after the enactment of Section 201 in 2004, WFPSB
and PCPSB were mandated to make retirement contributions on his 1099 earnings in
accordance with the earnable compensation formula contained in Section 201. Mr. Vine
asserts that the note in Section 201 identifying a " secondary employer" as " one who
does not report W- 2 earnings on [ the TRSL member]" effectively categorizes all
employer entities who do not report W- 2 earnings on a TRSL member as secondary
employers. Mr. Vine then asserts that because there is no reference to or definition of
the term " primary employer" in Section 201, there is no requirement that a primary
employer exist in order for there to be a secondary employer. Mr. Vine thus relies on
the " secondary employer" note in Section 201 to support his claim that he was a
member of TRSL during the relevant time period by asserting that Section 201 extends
the definition of " members" to include workers who have only independent contractor
relationships with the employer entities.3 In sum, Mr. Vine claims that he was a
member" of TRSL, that his 1099 earnings were " earnable compensation," and that
The second sentence of La. R. S. 11: 701( 10) that excludes several different types of pay
from the definition of earnable compensation does not explicitly exclude supplemental
salary. Further, like the court of appeal, we find it is not sufficiently analogous to any of
the items of pay expressly excluded from the definition to warrant its exclusion.... There is
no evidence that the legislature intended to exclude supplemental salary from the
definition. In fact ... the legislature' s failure to exclude supplemental salary from the
definition supports our conclusion that it is included as part of plaintiff's earnable
compensation.
TRSL argues that Fishbein addresses whether the supplemental salary paid to the plaintiff, who was
unquestionably an employee, was earnable compensation. Thus, TRSL contends that Fishbein is
distinguishable and inapplicable to the instant matter. We agree.
3 Mr. Vine contends that TRSL' s " Audit Alert" Publication, No. 1- 04, corroborates this position. The Audit
Alert provides:
In the past, whenever a TRSL member worked for any TRSL contributing agency, no
matter how he/ she was paid, that stipend/ salary amount should have been reported to
TRSL as earnable compensation, and employer and employee retirement contributions
had to be remitted.
On February 2, 2004, the TRSL Board of Trustees approved a new rule, worked out
between TRSL and agency business managers, which sets a minimum level of
compensation that must be paid to a TRSL member who is a nonemployee contractor
before the payment must be reported to TRSL.
Basically, if the payment is $ 1, 000 or less and a Form 1099 is issued, and the total
1099" payments to that individual for that fiscal year are less than $ 15, 000, then there
is no reporting/ contribution requirement to TRSL.
Mr. Vine argues that the Audit Alert references a " nonemployee contractor," evidencing that TRSL
recognized such a status. In response, TRSL argues that the Audit Alert frames this discussion with a
reference to TRSL members, who are necessarily employees.
The interpretation of a law involves, primarily, the search for the legislature' s intent. Certified
Capital Corp. v. Reis, 2003- 2525 ( La. App. 1 Cir. 10/ 29/ 04), 897 So. 2d 128, 130, writ denied, 2004-
2876 ( La. 1/ 28/ 05), 893 So. 2d 79. TRSL' s publication of the Audit Alert is not an expression of the
legislature' s intent and therefore, is not properly considered in our search for same.
WFPSB and PCPSB were his " secondary employers," entitling him to retirement
contributions on his 1099 earnings.
In opposition, TRSL, WFPSB, and PCPSB ( collectively, " Defendants") maintain
that the trial court correctly determined that under the governing statute, WFPSB and
PCPSB were not required to remit retirement benefits for Mr. Vine' s 1099 earnings
unless Mr. Vine was an employee of either a city, parish, or local school board at the
time.4 In making this argument, Defendants point out that Section 201 was
promulgated in accordance with LSA- R. S. 11: 701( 10). Defendants reason that
e] arnable compensation," as defined in LSA- R. S. 11: 701( 10), is "' compensation earned
by a member during the full normal working time as a teacher." Louisiana Revised
Statute 11: 701( 17) defines a " member" as " any teacher included in the membership of
the system as provided in Part II of this Chapter." Louisiana Revised Statute
z[
11: 701( 33)( a)( i) then defines a " teacher," in pertinent part, as ' a] ny employee of a
city, parish, or other local school board, any parish, city, or other local superintendent,
or any assistant superintendent of public schools." Thus, Defendants argue that the
language of LSA- R. S. 11: 701, et seq., clearly establishes that "'earnable compensation"
does not include compensation paid to non -employees. Therefore, Defendants maintain
that Mr. Vine was not entitled to retirement contributions on his 1099 earnings prior to
the enactment of Section 201 in 2004.
Defendants further assert that Mr. Vine was not entitled to retirement
contributions on his 1099 earnings after Section 201 was enacted in 2004. With respect
to the note in Section 201 stating that a secondary employer ' pis one who does not
report W- 2 earnings on this member," PCPSB argues that the term " secondary
employer" necessarily implies that there is a ' primary employer" that does issue a W- 2.
Defendants therefore contend that because Mr. Vine was not an employee of any city
or parish school board at the time when the 1099 earnings were received, Mr. Vine's
1099 earnings were not '"earnable compensation" on which retirement benefits must be
EM
4 Defendants' arguments were consistent. Therefore, for the sake of brevity, we discuss Defendants'
arguments on this issue collectively.
D
We agree. Louisiana Civil Code article 13 provides that laws on the same subject
matter must be interpreted in reference to each other. ' All laws pertaining to the same
subject matter must be interpreted in pari materia ...." Acurio, 224 So. 3d at 938.
Louisiana Revised Statutes 11: 701( 10) defines earnable compensation in terms of
compensation earned by members, while working as teachers. In the portion of LSA-
R. S. 11: 701( 33) applicable to Mr. Vine, a teacher is defined as an employee of a city,
parish, or local school board. The language of LSA- R. S. 11: 701 is clear and does not
lead to absurd consequences, and therefore, must be applied as written. LSA- C. C. art.
9; LSA- R. S. 1: 4. Further, the "'secondary employer" language in Section 201 is a note,
not a provision of Section 201, and must be read in the context of the language
preceding it which refers to payments made to a member of TRSL. Again, a member is
necessarily an employee. The language of Section 201 is therefore clearly in accord
with that of LSA- R. S. 11: 701, and does not conflict with or affect the interpretation of
LSA- R.S. 11: 701. 5 Thus, we conclude that the trial court correctly interpreted LSA- R. S.
11: 701, et seq., to require Mr. Vine to be an employee of WFPSB, PCPSB, or another
city, parish, or local school board, in order to be entitled to retirement contributions for
the 1099 earnings he received for part-time work. This assignment of error is without
merit.
SECOND ASSIGNMENT OF ERROR
Standard of Review
Mr. Vine argues that in the event this Court finds no merit in his first assignment
of error, the trial court erred in finding that Mr. Vine did not prove that he was an
employee of a city, parish, or local school board, or otherwise a member of TRSL
entitled to retirement contributions on his 1099 earnings for 1994 to 2006. The trial
5 With respect to Mr. Vine's arguments that Section 201, not LSA- R.S. 11: 701, is the controlling and
operative statute, we note that Section 201 is a provision of the Administrative Code, promulgated by the
Board of Trustees of TRSL, in accordance with LSA- R. S 11: 701( 10). Louisiana Revised Statute 11: 701( 10)
is a revised statute enacted by the legislature. It is well established that the Legislature may confer upon
administrative officers in the executive branch the power to prescribe administrative rules and
regulations, but " the regulations promulgated by the agency may not exceed the authorization delegated
by the Legislature." Arrant v. Wayne Acree PLS, Inc., 2015- 0905 ( La. 1/ 27/ 16), 187 So. 3d 417, 421,
quoting State v. Alfonso, 99- 1546 ( La. 11/ 23/ 99), 753 So. 2d 156, 162. Thus, although the last
sentence of LSA- R. S. 11: 701( 10) authorizes the Board of Trustees of TRSL to determine whether any
other payments are earnable compensation, Section 201 necessarily operates in relation to and subject to
LSA- R. S. 11: 701( 10).
10
court's determination was based on factual findings, which are subject to the manifest
error standard of review. Chauvin v. Chauvin, 2010- 1055 ( La. App. 1 Cir. 10/ 29/ 10),
49 So. 3d 565, 569. 6 An appellate court cannot set aside a trial court's findings of fact in
the absence of manifest error or unless those findings are clearly wrong. Rosell v.
ESCO, 549 So. 2d 840, 844 ( La. 1989).
Applicable Law
To determine whether the employee is an independent contractor or a mere
servant, the control exercised by the employer over the employee must be examined.
Hickman v. Southern Pacific Transport Co., 262 So. 2d 385, 391 ( 1972). The
Hickman court explained:
It is well understood by the courts of this State that the term independent
contractor connotes a freedom of action and choice with respect to the
undertaking in question and a legal responsibility on the part of the
contractor in case the agreement is not fulfilled in accordance with its
covenants. The relationship presupposes a contract between the parties,
the independent nature of the contractor' s business and the nonexclusive
means the contractor may employ in accomplishing the work. Moreover, it
should appear that the contract calls for specific piecework as a unit to be
done according to the independent contractor's own methods, without
being subject to the control and direction, in the performance of the
service, of his employer, except as to the result of the services to be
rendered. It must also appear that a specific price for the overall
undertaking is agreed upon; that its duration is for a specific time and not
subject to termination or discontinuance at the will of either side without a
corresponding liability for its breach.
262 So. 2d at 390- 91. It is not the actual supervision or control which is actually
exercised by the employer that is significant, but whether, from the nature of the
relationship, the right to do so exists. Hickman, 262 So. 2d at 391.
This Court has stated:
In Hickman, the Louisiana Supreme Court found the following factors
relevant in determining whether the relationship of principal and
independent contractor exists: ( 1) there is a valid contract between the
parties; ( 2)
the work being done is of an independent nature such that
the contractor may employ non- exclusive means in accomplishing it; ( 3)
the contract calls for specific piecework as a unit to be done according to
the independent contractor' s own methods, without being subject to the
control and direction of the principal, except as to the result of the
services to be rendered; ( 4) there is a specific price for the overall
6 A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.
Chauvin v. Chauvin, 2010- 1055 ( La. App. 1 Cir. 10/ 29/ 10), 49 So. 3d 565, 569. Where one or more legal
errors by the trial court interdict the fact-finding process, the manifest -error standard is no longer
applicable. Id. Having found that the trial court correctly interpreted and applied the governing statutes,
we have simultaneously determined that the trial court did not commit legal error. Thus, the manifest
error standard of review is applicable to this assignment of error.
11
undertaking agreed upon; and ( 5) the duration of the work is for a
specific time and not subject to termination or discontinuance at the will
of either side without a corresponding liability for its breach.
Cliburn v. Police Jury Assn of Louisiana, Inc., 1999- 2191 ( La. App. 1 Cir. 11/ 3/ 00),
770 So. 2d 899, 903.
Discussion
As noted above, this assignment of error challenges the trial court's factual
determination that Mr. Vine was not an employee of WFPSB and PCPSB during the
relevant time period, and is therefore subject to the manifest error standard of review.
Under the manifest error standard of review, a reviewing court may not merely decide if
it would have found the facts of the case differently. Hayes Fund for First United
Methodist Church of Welsh, LLC v. Kerr- McGee Rocky Mountain, LLC, 14- 2592
La. 12/ 8/ 15), 193 So. 3d 1110, 1115. Rather, to reverse a trial court' s factual
conclusion, the appellate court must satisfy a two- step process based on the record as
a whole: there must be no reasonable factual basis for the trial court's conclusion, and
the finding must be clearly wrong. Stobart v. State through Dept of
Transportation and Dev., 617 So. 2d 880, 882 ( La. 1993). Reasonable evaluations of
credibility and inferences of fact should not be disturbed, even if the appellate court
feels that its own evaluations and inferences are as reasonable. Hayes, 193 So. 3d at
1116.
At trial, Mr. Vine stipulated that he contracted with WFPSB, PCPSB, and SHPSB
for twelve years. Mr. Vine testified that WFPSB paid Mr. Vine hourly for his work, and
PCPSB paid Mr. Vine on a fee- based schedule. Mr. Vine also testified that he had begun
part-time work because he wanted greater flexibility and greater autonomy.
Several documents were introduced into evidence that reflected that Mr. Vine
had considered himself an independent contractor at the time he received the 1099
earnings at issue. In an August 10, 1995 resignation letter to WFPSB that was
introduced into evidence, Mr. Vine wrote, " this decision is based upon my personal goal
to offer my services in the capacity of a self-employed consultant to public and private
schools." On an ' Application for Certified Employment" Mr. Vine submitted to PCPSB,
dated August 3, 2006, Mr. Vine wrote, " I have [ twenty-three] years of total experience
12
in the public schools of Louisiana, with full- time and/ or contract employment in seven
parishes... I have been working in Pt. Coupee for 12 years, on a contract basis as a
school psychologist."
During Mr. Vine' s testimony at trial, the following exchange occurred:
Q. So, you indicated you submitted an invoice and it was paid in full, so
you were - - were you aware that there were no taxes or any other
amount, including retirement, taken from the amount that [ PCPSB] paid
you each month you submitted an invoice?
A. Yes.
Mr. Vine testified that his work was administratively, but not professionally,
supervised prior to August 2006. Mr. Vine was told which students to assess or counsel.
Mr. Vine had to coordinate his work with other school personnel, and was expected to
attend certain meetings. Mr. Vine had freedom to set the days of the week he would
work. He was expected to maintain that schedule once set. R. 467. Mr. Vine worked on
school grounds, and the tools he used were the school' s assets. Mr. Vine provided
written reports in requested formats. When questioned as to whether he was told how
to perform his work, he stated:
As far as how to do things, of course, as far as assessments, I had to
comply with all the Department of Ed regulations, and I also had to
comply with the wishes of my pupil appraisal co- workers, the supervisor of
special ed, and to some extent the school personnel in that when things
got done, what was the priority, what have you, was kind of a malleable
moving target sort of thing.
In general, the parameters were, I knew how to do counseling; however,
I was told specifics, such as I could not broach subjects such as
contraception or abortion with any students at the time.
I was also told that I had to maintain a set of records at the Family
Service Center which violated counseling ethics as best I understood
them, but they indicated that was mandatory, so I made additional copies
and did that.
During this time period, Mr. Vine filed Schedule C: Profit or Loss from Business,
and Schedule SE, Self -Employment Tax, with his tax returns.
In a letter dated December 12, 2013, regarding Mr. Vine' s application for
retirement benefits, TRSL stated that Mr. Vine' s file "'indicate[ d] you became divorced or
legally separated while a member of TRSL." As Mr. Vine was divorced in 2001, while
working part-time, Mr. Vine argues that this letter represents an admission on the part
of TRSL that Mr. Vine was a member of TRSL at that time.
13
Following trial on the merits in which all of the above evidence was considered,
the trial court found that Mr. Vine failed to meet his burden of proof by a
preponderance of the evidence. Having thoroughly reviewed the record in its entirety,
and bearing in mind our standard of review, we affirm the trial court's factual findings.
See Guillory v. Lee, 2009- 0075 ( La. 6/ 26/ 09), 16 So. 3d 1104, 1117 ("[ 0] n review, an
appellate court must be cautious not to re -weigh the evidence or to substitute its own
factual findings just because it would have decided the case differently.'. In light of
the facts as testified to by Mr. Vine and the evidence presented, we are unable to
conclude that the trial court lacked any reasonable basis for its decision that Mr. Vine
did not prove he was an employee under the jurisprudential factors set forth in
Hickman and Cliburn. Accordingly, this assignment of error is without merit.
We note Mr. Vine' s argument that because he had earned ten years of creditable
service in TRSL as an employee prior to the period he worked part-time for WFPSB and
PCPSB, he was a member of TRSL pursuant to LSA- R. S. 11: 162( C)( 1). Louisiana
Revised Statute 11: 162( C)( 1) requires membership for " a part- time, seasonal, or
temporary employee as defined in 26 CFR 31: 3121( b)( 7)- 2, or in any successor
regulation, who on July 1, 1991, or thereafter, has or earns ten or more years of
creditable service in his current system. 117, 8 As we have found that the trial court did not
While 26 CFR 31: 3121( b)( 7)- 2 sets forth definitions for part-time, seasonal, and temporary employees,
the term " employee" as used therein is defined in 26 CFR 31: 3121( d)- 1 by reference to common law
rules, which essentially consider the same factors as set forth in Hickman. Title 26, Chapter 1,
Subchapter C, Part 31, Subpart D- 1, provides in pertinent part:
c) Common law employees. ( 1) Every individual is an employee if under the usual
common law rules the relationship between him and the person for whom he performs
services is the legal relationship of employer and employee.
2) Generally such relationship exists when the person for whom services are performed
has the right to control and direct the individual who performs the services, not only as
to the result to be accomplished by the work but also as to the details and means by
which that result is accomplished. That is, an employee is subject to the will and control
of the employer not only as to what shall be done but how it shall be done. In this
connection, it is not necessary that the employer actually direct or control the manner in
which the services are performed; it is sufficient if he has the right to do so. The right to
discharge is also an important factor indicating that the person possessing that right is an
employer. Other factors characteristic of an employer, but not necessarily present in
every case, are the furnishing of tools and the furnishing of a place to work, to the
individual who performs the services. In general, if an individual is subject to the control
or direction of another merely as to the result to be accomplished by the work and not as
to the means and methods for accomplishing the result, he is an independent contractor.
An individual performing services as an independent contractor is not as to such services
an employee under the usual common law rules. Individuals such as physicians, lawyers,
dentists, veterinarians, construction contractors, public stenographers, and auctioneers,
engaged in the pursuit of an independent trade, business, or profession, in which they
offer their services to the public, are independent contractors and not employees.
14
commit manifest error in its determination that Mr. Vine failed to prove he was an
employee of WFPSB and PCPSB at all pertinent times, and LSA- R. S. 11: 162( C)( 1)
applies to employees, we find no merit in this argument.
PRESCRIPTION
TRSL, WFPSB, and PCPSB argue that the trial court erred in denying their
exceptions of prescription. As we are maintaining the judgment on the merits, we
pretermit discussion of this issue.
CONCLUSION
For the above and foregoing reasons, the August 16, 2018 judgment of the trial
court is affirmed. Costs of this appeal are assessed to Mr. Vine.
AFFIRMED.
3) Whether the relationship of employer and employee exists under the usual common
law rules will in doubtful cases be determined upon an examination of the particular facts
of each case.
8 Mr. Vine relies on the " Louisiana Teacher Retirement Handbook" (" Handbook") published by TRSL for
1994 through 2005, in further support of this argument. The Handbook consistently included a section on
what Mr. Vine refers to as the " 10 year rule," stating that a " person" with 10 or more years of TRSL
service credit, doing substitute or part-time work, may or must remain a member of TRSL, and then must
pay contributions to TRSL. Mr. Vine argues that the use of " person" rather than " employee" in the
Handbook reflects that the trial court erred in finding that Mr. Vine had to be an employee to be a
member of TRSL. As with the Audit Alert, however, TRSL's publication of the Louisiana Teacher
Retirement Handbook is not an expression of the legislature' s intent. Therefore, we do not consider it in
our analysis of this issue.
15