December 28, 2007
LEONARDO ENAMORADO, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
COLLEGE TOWERS APARTMENTS, INC., DEFENDANT-APPELLANT/CROSS-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 counsel's extensive work and expertise in this area." In addition, the judge determined that "no hours were excessive, redundant, or otherwise unnecessary."
On appeal defendant argues:
I. THE PLAINTIFF WAS NOT ENTITLE TO THE FULL AMOUNT OF COSTS AND FEES AWARDED.*fn2
On cross appeal, plaintiff argues:
I. DEFENSE COUNSEL'S OPENING AND CLOSING STATEMENTS WERE SO OUTRAGEOUSLY PREJUDICIAL THAT THEY CONSTITUTE A MISCARRIAGE OF JUSTICE AND A NEW TRIAL AS TO DAMAGES SHOULD BE GRANTED.
A. IT WAS PLAIN ERROR FOR DEFENDANT'S COUNSEL TO INVADE THE ATTORNEY/CLIENT RELATIONSHIP AND TO OFFER HIS PERSONAL BELIEFS ABOUT THAT ATTORNEY/CLIENT RELATIONSHIP AND ABOUT PLAINTIFF'S FAMILY AND FRIENDS IN HIS OPENING STATEMENT.
B. IT WAS PLAIN ERROR FOR DEFENDANT TO REQUEST IN ITS SUMMATION THAT THE JURY AWARD[ED] PLAINTIFF $200 PER WEEK BECAUSE THE GOVERNING STATUTE, N.J.S.A. 34:11-56a25, BARS THIS DEFENSE TO STATUTORY WAGES.
II. IT WAS PLAIN ERROR FOR THE COURT TO PERMIT HIGHLY PREJUDICIAL INADMISSIBLE HEARSAY TESTIMONY CONCERNING WORK HOURS THAT SIGNIFICANTLY PREJUDICED THE JURY VERDICT.
III. THE AMOUNT OF DAMAGES WAS SHOCKINGLY LOW, CONSTITUTED A MISCARRIAGE OF JUSTICE, AND A NEW TRIAL AS TO DAMAGES SHOULD BE GRANTED.
IV. THERE WAS NO CLEAR ABUSE OF DISCRETION IN THE TRIAL COURTS AWARD OF SUCH MODEST ATTORNEY FEES AND COSTS.
A. THE NEW JERSEY COURTS HAVE REPEATEDLY HELD THAT ATTORNEYS FEES AWARD NEED NOT BE PROPORTIONAL TO THE VERDICT.
B. THE WAGE AND HOURS LAW, N.J.S.A. 34:11-56A.25, PROVIDES FOR COSTS AS WELL AS RESONABLE ATTORNEYS FEES.
C. THE LODESTAR ANALYSIS IS NOT PROPER BECAUSE PLAINTIFF'S COUNSEL HAD ALREADY DEDUCTED TIME SPENT ON UNSUCCESSFUL CLAIMS IN HER FEE APPLICATION.
No argument raised has sufficient merit to warrant discussion beyond the brief comments that follow. R. 2:11-3(e)(1)(E).
Where, as here, an award of costs and fees is authorized by statute, the amount to be awarded is committed to the sound discretion of the trial court and disturbed on appeal only on the rare occasions when there is "a clear abuse of discretion." Rendine, supra, 141 N.J. at 317 (articulating the Court's goal of establishing standards for award of statutory fees developed in light of the Legislature's objectives in providing the remedy and "sharply discouraging collateral litigation" about fees). Defendant presents no argument that convinces us that there was any abuse of discretion in this case.
We are constrained to note that defendant has provided a brief that does not present the question in accordance with the Court Rules governing appellate practice. Rule 2:6-2(a)(4) requires "[a] concise statement of facts material to the issues on appeal supported by reference to the appendix and transcript." The brief submitted does not include a factual statement that approaches compliance with this mandate. Specific charges to which defendant objects are referenced only in the argument section of the brief.
Although defendant correctly notes that "costs of taking depositions" are generally excluded from an award, N.J.S.A. 22A:2-8, defendant opposes a charge for a deposition transcript. Defendant has not provided that transcript or presented any argument as to why this cost is not allowable in this case. See Buccinna v. Micheletti, 311 N.J. Super. 557, 564-65 (App. Div. 1998) (discussing the general rule concerning costs of depositions and exceptions); Finch, Pruyn & Co., Inc. v, Martinelli, 108 N.J. Super. 156 (Ch. Div. 1969) (permitting the expense of depositions to be taxed as costs in litigation involving a claim of fraud).
Defendant's claim that the fee is disproportionate to the damage award ignores the reality of this case. Proof of the violations of the MWL was straightforward. Largely due to defendant's failure to insist upon adequate records of "on-call" hours worked, proof of the amount defendant owed plaintiff was difficult. Although the jury concluded that plaintiff could not establish the full amount of the demand, the fees and costs incurred were not disproportionate to the amount of the claim at stake and plaintiff's attorney, who took the case under a contingency fee arrangement and was not awarded a fee enhancement on the basis that this case involved the vindication of statutory rights of workers. Rendine, supra, 141 N.J. at 343-44.
We reject plaintiff's claims of plain error. After reviewing defense counsel's opening and closing arguments and the evidence presented at trial, we are convinced that there was no impropriety capable of affecting the outcome of this trial.
R. 2:10-2. We see no error in the admission of testimony based on defendant's agent's review of records of service calls placed during the "on-call" hours. This is not a case in which the witness's personal knowledge was based on inadmissible hearsay; the witness testified about information learned from review of records kept in the course of business. Cf. Neno v. Clinton, 167 N.J. 573, 585-86 (2001) (concluding that a police officer could not express an opinion on fault based on statements provided by eyewitnesses to the accident). To the extent that plaintiff now contends that his attorney did not have an opportunity to review or cross-examine the agent about the records used, we simply note that plaintiff did not ask to see the records during the trial.
Finally, there is no basis for us to disturb Judge Velazquez's determination that plaintiff was not entitled to either a new trial on damages or additur. "[T]rial courts should not interfere with jury-damage awards unless so disproportionate to the injury as to shock the conscience . . . ." Rendine, supra, 141 N.J. at 312; see Baxter v. Fairmont Food Co., 74 N.J. 588, 596-97 (1977). As Judge Velazquez found, the evidence was conflicting and the quantum of danger was largely dependent upon the resolution of questions of credibility. Judge Velazquez, who had an opportunity to see and observe the witnesses, was not shocked by the award and did not consider the amount inadequate given the evidence. "His determination as well as that of the jury, are entitled to considerable appellate deference." Rendine, supra, 141 N.J. at 313 (quoting this court's decision in Rendine v. Panzer, 276 N.J. Super. 398, 440-41 (App. Div. 1994)).