Opinion
KNLCV166028382
08-23-2018
Jeffrey A. BIBEE v. WERTH, INC.
UNPUBLISHED OPINION
Cosgrove, J.
I. Plaintiff’s Motion for Attorneys Fees and Costs
The plaintiff, Jeffrey Bibee, through his counsel seeks an award of attorneys fees and costs pursuant to statute in the amount of $97,487 in attorneys fees and costs of $2,438.63. The plaintiff also seeks interest based upon an offer of compromise filed earlier in this action. The defendant argues that an award of attorneys fees in the amount requested would be inequitable to the defendant and further that the claim for an award of interest is premature.
The Trial
The plaintiff sued in three counts: a breach of contract claim, a breach of the covenant of good faith and fair dealing and a statutory claim for the failure to pay wages pursuant to Connecticut General Statutes (C.G.S.) § 31-72. The first and second counts were claims based upon a contract-bonus (longevity pay) agreement of employment between the plaintiff and the defendant. The plaintiff maintained he was entitled to the longevity payment of $150,000 based upon the defendant’s wrongful termination of his employment. The longevity payment was to be earned after 15 years of employment with the defendant. The plaintiff was terminated by defendant after more than 10 years of employment. In the third count the plaintiff claimed that the defendant had violated C.G.S. § 31-72 in failing to pay him an $8,550 commission due on a sale of machinery to GM and the defendant’s failure to pay the longevity bonus.
The jury returned a verdict of $107,500 on the first count. The jury also determined that the plaintiff had proven that the defendant had breached the Implied Covenant of Good Faith and Dealing relating to the longevity payment. With regard to the third count, the jury determined that the defendant had failed to pay wages pursuant to C.G.S. § 31-72 and that the defendant failed to prove by the fair preponderance of the evidence that it had a good faith belief that "the underpayment of wages was in compliance with the law." The jury applied the statutory remedy of doubling the GM commission from $8,550 to $17,100. The jury rejected the plaintiff’s claim that he was entitled to a doubling of the longevity payment pursuant to statute.
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Attorneys Fees
C.G.S. § 31-72 provides: "When any employer fails to pay an employee wages ... such employee ... shall recover, in a civil action (1) twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, or if the employer establishes that the employer had a good faith belief that the underpayment of wages was in compliance with law, the full amount of such wages or compensation, with costs and such reasonable attorneys fees as may be allowed by the court ." (Italics added .)
"Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. A court has few duties of a more delicate nature than that of fixing counsel fees." Bobinski v. Kalinowski, 107 Conn.App. 622, 628, 946 A.2d 283, cert. denied, 289 Conn. 919, 958 A.2d 150 (2008). "Sound discretion, by definition, means a discretion that is not exercised arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law ..." Costanzo v. Mulshine, 94 Conn.App. 655, 662, 893 A.2d 905, cert. denied, 279 Conn. 911, 902 A.2d 1070 (2006).
The plaintiff’s attorney has submitted in support of this motion a copy of his fee agreement with Mr. Bibee, a ledger of the hours and costs incurred and an affidavit regarding his professional experience and providing a foundation for the court to consider the ledger of hours worked.
"[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate ... The courts may then adjust this lodestar calculation by other factors ... For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Johnson factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases." (Citation omitted; internal quotation marks omitted.) Noel v. Ribbits, LLC, 132 Conn.App. 531, 535 n.6 (2011). The court can also apply its own knowledge and experience in determining the reasonableness of the fees requested. See Smith v. Snyder, 267 Conn. 456, 480 (2004).
Customary Fee for Similar Work; Whether the Fee was Fixed or Contingent
The fifth and sixth factors of the lodestar analysis are considered together. The plaintiff has submitted his retainer agreement for review by the court. The fee agreement is for a contingent fee of 33 1/3 percent of "any recovery" the firm obtained for the client. The fee arrangement also contemplated the award of legal fees and costs by the court. "If such an award (attorneys fees) is made, you agree to pay the following at my (the attorney’s) option: (1) The fee award paid by settlement or court order shall be paid entirely to the Busca Law Firm, LLC, and you hereby waive all rights to any part of such fee, in which case I waive all right to the contingency percentage stated above and your sole obligation will be the attorneys fee awarded by settlement or court order; or (2) the attorneys fees will be included in calculation of the total award and the contingent fee described above will be calculated on the basis of this total award, off set by any hourly fees paid by you, if any."
The court finds this fee agreement for an employment or labor dispute to be customary in this area and appropriate based upon the uncertainties of litigating an employment case.
The Novelty and Difficulty, the Skill Requisite to Perform and the Experience, and Reputation of the Attorney
The second, third and ninth factors all require a discussion related to the plaintiff’s attorney. The plaintiff’s attorney has extensive experience in the labor and employment field that he has built up over the course of his legal career. His employment as an arbitrator demonstrates to the court a recognition of his experience and competence in this area. The issues presented by this case, the interpretation of the employment agreements, the determination or refutation of good cause for determination all presented unique questions of law and evidence. The court considers these factors a positive influence on the award of attorneys fees.
The defendant has not objected to the plaintiff’s claims related to the costs incurred or to Attorney Busca’s hourly rates. Attorney Busca’s reputation and experience were not put in question.
Time and Labor, Amount Involved and Results Obtained
The court’s analysis of the first and eighth factors of the lodestar analysis are intertwined. The plaintiff asserts that all the issues in this case were intertwined and that the plaintiff prevailed on all counts. The defendant argues that the proof required for the commission claim and the longevity payment claim were dissimilar and that the plaintiff did not prevail on his statutory claim for the doubling of the longevity payment. It requests that the amount of legal fees to be awarded be reduced based upon the consideration of these factors.
The court has reviewed the time records submitted by plaintiff’s counsel. There is no clear delineation between time spent in preparing the case on a count by count basis. The issues presented by the first and second counts of the complaint involved the consideration of the employment history between the plaintiff and the defendant, evaluation of contract language relating the plaintiff’s entitlement to the longevity payment in full or in part, whether there was cause for the plaintiff’s termination and the amount if any of the longevity bonus. The third count articulated a statutory claim under C.G.S. § 31-72 for both the payment of the longevity payment and an $8,550 commission on a sale of machinery to GM that was in dispute.
The court agrees that the claim for the payment of the GM Commission did not involve as many disputed facts as with the claim for the longevity payment. The dispute about the GM commission was owed focused on when GM accepted the machinery. There was no dispute that the plaintiff obtained the order and the machinery had been delivered while the plaintiff was employed by the defendant. There was a dispute about when GM accepted the machinery and when the commission became payable. By its verdict the jury determined that the commission was earned, owed and had not been paid.
The jury rejected the plaintiff’s claim for a statutory doubling of the longevity payment. The longevity payment was a far larger statutory claim than that for the GM commission.
While the plaintiff prevailed on all three counts of his complaint, the measurement of damages was not equal to what he requested. The court does not agree that the plaintiff has achieved a completely favorable result.
Giving consideration to the factors regarding the time and labor involved and the amount involved and the results obtained, the court would diminish the amount of attorneys fees awarded.
The court has considered the other factors articulated in a lodestar analysis and finds that would not cause the court to support or diminish the requested award of attorneys fees in this case.
The defendant also argues that the court should consider whether the award of attorneys fees would result in "a substantial unfairness to the defendant." In Sorrentino v. All Seasons Services, Inc., 245 Conn. 756 (1998) the supreme court instructed the trial courts "not to depart from a reasonable fee agreement in the absence of a persuasive demonstration that enforcing the agreement would result in substantial unfairness to the defendant." Id. at 776. The court is not persuaded that awarding attorneys fees in this case would amount to a substantial unfairness to the defendant. The defendant argued through the length of this litigation that the plaintiff was not entitled to any of his longevity payment nor a commission on the sale of equipment to GM.
The jury has determined that the defendant did not have a good faith basis for withholding the payment and earned commission. The statutes authorize the award of attorneys fees and costs to deter employers from utilizing their economic advantage in disputes with their employees. Further, the authorization of an award of attorneys fees encourages lawyers to pursue these disputes on behalf of their client when it would otherwise be uneconomical to do so.
Considering all these factors the court awards the plaintiff $60,000.00 in attorneys fees and $2,428.63 in costs.
II. Award of Statutory Interest
The plaintiff claims he is entitled to interest on his jury verdict and the award of legal fees pursuant to C.G.S. § § 37-3a and 52-192a. The defendant opposes this motion.
The court, while not foreclosing further argument, is not inclined to award interest pursuant to C.G.S. § 37-3a. The court is inclined to award interest pursuant to the claim under C.G.S. § 52-192a. The plaintiff filed an offer of compromise of the claims raised in the law suit for the sum of $127,284. The jury verdict and this court’s award of attorneys fees now total a recovery in excess of the offer of compromise. The court will allow all parties two weeks, to August 31, 2018, to file their calculations as to the award of interest based upon the successful offer of compromise.