On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6494-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Coburn and Grall.
Following a jury verdict in favor of plaintiff on his claim for overtime pay required by New Jersey's minimum wage law (MWL), N.J.S.A. 34:11-56a to -56a30, the judge denied plaintiff's motion for a new trial on damages or, in the alternative, additur and awarded plaintiff costs and counsel fees pursuant to N.J.S.A. 34:11-56a25. Defendant appeals seeking a reduction of plaintiff's award for costs and counsel fees.*fn1 Plaintiff cross-appeals from the denial of his motion for either a new trial or additur. We affirm.
Plaintiff Leonardo Enamorado was employed by defendant College Towers Apartments, Inc. as a superintendent of the apartment complex. He commenced this civil action alleging a violation of MWL and violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Both counts alleging CEPA violations were dismissed, one on motion for summary judgment and one before the case was submitted to the jury.
On September 8, 2003, plaintiff signed an agreement accepting employment as the superintendent of defendant's 320 unit apartment complex. He agreed to reside in an apartment in the complex. He was expected to work thirty-five hours per week during five work days, but his duties included being available overnight and on weekends for service calls.
Defendant, through the testimony of its agent, acknowledged that there were weeks during which plaintiff worked more than forty-hours. By the time of trial, defendant did not challenge plaintiff's entitlement to overtime pay for all hours of work beyond forty hours in any single week. See N.J.S.A. 34:11-56a4.
The central disputes at trial were the number of overtime hours plaintiff worked and whether the demands placed upon him during his hours "on-call" were so restrictive as to be treated as hours during which he ought to have been paid as if engaged to wait for a call. See N.J.A.C. 12:56-5.6. Plaintiff and defendant both agreed that "on-call" logs reflecting service calls and time spent in response to those calls were not complete. They presented conflicting testimony about the actual time spent working in response to after-hour calls and the nature of the restrictions defendant placed on plaintiff's activities during "on-call" hours. Defendant's agent reviewed past records submitted by superintendents and, on that basis, testified that they generally worked fewer than forty hours per week. Plaintiff testified that he typically worked two or three hours per day in response to after-hour calls.
When plaintiff accepted the job he was one of two superintendents, and the responsibility for "on-call" hours was divided between them. Plaintiff's co-worker resigned on June 6, 2004, and between that date and his termination on August 23, 2004, plaintiff was responsible for all "on-call" duty. According to defendant's agent, plaintiff did not respond to all of the calls and sought a salary increase of $200 per week. At trial, plaintiff sought a total of $66,375, which he calculated on the basis of time-and-one-half pay for fifteen hours per weekday and twenty hours per day for weekend days.
The jury found that defendant failed to pay overtime as required by the MLW and awarded plaintiff $2765.62. On the basis of the evidence, the jury determined that defendant violated the MLW and awarded damages of $2765.62.
Recognizing that a plaintiff is entitled to a new trial on damages or additur only when it is clear that the verdict is a miscarriage of justice shocking to the judicial conscience, the judge denied plaintiff's motion. See Rendine v. Pantzer, 141 N.J. 292, 312-13 (1995). As Judge Velazquez explained: the jury's determination that defendant violated the MWL but caused plaintiff minimal damage was consistent with the evidence presented. In the judge's view, the jury found it did not believe plaintiff's testimony about restrictive conditions associated with on-call duty entitling him to compensation as if he were "engaged to wait." Although the manner in which the jury calculated actual overtime hours was not clear to the judge, he concluded that the jurors resolved questions of credibility in favor of defendant's witness who was, in the judge's view, "testifying quite candidly and credibly." Given the nature and quality of the evidence, the judge determined that there was nothing "shocking" about the damage award.
As authorized by N.J.S.A. 34:11-56a25, plaintiff moved for reasonable attorney fees and costs. The judge awarded plaintiff $970 for costs and an attorney fee of $20,437.50. Judge Velazquez reviewed the affidavit of services submitted by plaintiff's attorney, considered defendant's objections to some of the hours and work done on plaintiff's CEPA claims, which were dismissed, but concluded that the gravamen of the various counts of the complaint was the violation of the MWL on which plaintiff prevailed. The judge found the hourly-rate charged by plaintiff's attorney was "more than reasonable considering ...