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Healey v. The Haymond Law Firm, P.C.

Court of Appeals of Connecticut

June 27, 2017

ROBERT E. HEALEY
v.
THE HAYMOND LAWFIRM, P.C., ET AL.

          Argued January 31, 2017

         Appeal from Superior Court, judicial district of Hartford, Elgo, J.

          Leon M. Rosenblatt and Richard J. Padykula, for the appellant (named defendant).

          Andrew L. Houlding, for the appellee (plaintiff).

          Prescott, Mullins and Bear, Js.

          OPINION

          MULLINS, J.

         The defendant, The Haymond Law Firm, P.C., [1] appeals from the judgment of the trial court, rendered after a jury trial, awarding its former employee, the plaintiff, Robert E. Healey, damages for unpaid wages pursuant to General Statutes § 31-72.[2] On appeal, the defendant claims that the court erred by charging the jury on the amended version of § 31-72 because the amendment took effect after this action had commenced. Therefore, the defendant argues, the court was required to charge the jury on the repealed version of that statute that had been in effect at the time the alleged injuries occurred. The defendant also claims that the court's instruction on the amended version of the statute was a clear, obvious, and indisputable error that warrants reversal under the plain error doctrine.[3]

         We conclude that the defendant's claim is unreviewable because it induced the alleged instructional impropriety by affirmatively requesting that the court charge the jury on the amended version of § 31-72. We also conclude that plain error reversal is not warranted in this case. Accordingly, we affirm the judgment of the trial court.

         The following facts, which are not in dispute for the purposes of this appeal, and procedural history are relevant to the defendant's claim. The plaintiff worked for the defendant as a medical malpractice attorney for more than seventeen years. In 2011, the plaintiff informed John I. Haymond, the defendant's principal, that he wished to retire from practicing law full time. Consequently, the defendant and the plaintiff agreed that the plaintiff would continue to work for the defendant through 2012 on a part-time basis.

         In September, 2012, the defendant and the plaintiff reached another agreement that further reduced the plaintiff's workload and modified the plaintiff's compensation. In particular, the agreement provided that (1) the plaintiff would retain responsibility only for a small number of medical malpractice cases; (2) the defendant would pay the plaintiff 50 percent of the legal fees recovered in those cases; and (3) the defendant would pay the plaintiff 15 percent of any referral fees that the defendant received in cases that the plaintiff had referred to the law firm of Koskoff, Koskoff & Bieder, P.C. (Koskoff, Koskoff & Bieder).

         In March, 2013, the plaintiff settled two medical malpractice cases for which he had retained responsibility pursuant to the September, 2012 agreement. Subsequently, the plaintiff requested that the defendant pay him 50 percent of the legal fees it received in those settlements. The defendant refused to pay the plaintiff 50 percent of the recovered legal fees and, instead, paid him only approximately 15 percent of the fees.

         Around August, 2014, the plaintiff learned that one of the cases that he had referred to Koskoff, Koskoff & Bieder had been settled and that the defendant received a referral fee from Koskoff, Koskoff & Bieder for that case. The defendant never tendered any part of that referral fee to the plaintiff.

         Thereafter, the plaintiff brought the present action, seeking recovery of (1) his full 50 percent share of the legal fees recovered in the two medical malpractice cases that he had settled, and (2) 15 percent of the referral fee that the defendant received from the case settled by Koskoff, Koskoff & Bieder. Specifically, the plaintiff's complaint sought recovery principally[4] on the basis of a statutory claim for unpaid wages made pursuant to § 31-72 and a breach of contract claim.

         Regarding the statutory claim for unpaid wages, the governing statute, § 31-72, was amended while this action was pending. On June 19, 2013, when this action was initiated, the version of the statute that was in effect at that time provided in relevant part: ‘‘When any employer [unlawfully] fails to pay an employee wages . . . such employee . . . may recover, in a civil action, twice the full amount of such wages . . . .'' (Emphasis added.) General Statutes (Rev. to 2013) § 31-72. Our Supreme Court also had provided the following interpretive gloss relating to double damages under that version of § 31-72: ‘‘The statute provides for a discretionary award of double damages . . . to employees who are successful in actions against their employers for wages due. . . . Although § 31-72 does not set forth a standard by which to determine whether double damages should be awarded in particular cases, it is well established . . . that it is appropriate for a plaintiff to recover . . . double damages . . . only when the trial court has found that the defendant acted with bad faith, arbitrariness or unreasonableness.'' (Citation omitted; emphasis added; internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 724, 941 A.2d 309 (2008). Also, in cases in which a discretionary award of double damages was sought under that version of § 31-72, the burden of proving an employer's bad faith, arbitrariness, or unreasonableness was on the plaintiff. See Somers v. LeVasseur, 230 Conn. 560, 568, 645 A.2d 993 (1994) (‘‘the traditional principle [is] that in a civil case [t]he general burden of proof rests upon the plaintiff'' [internal quotation marks omitted]).

         In June, 2015, approximately two years after this action was commenced and four months before trial began, § 31-72 was amended by No. 15-86, § 2, of the 2015 Public Acts. The amended version took effect on October 1, 2015, several weeks before trial began. It provides in relevant part: ‘‘When any employer [unlawfully] fails to pay an employee wages . . . such employee . . . shall recover, in a civil action, (1) twice the full amount of such wages . . . or (2) 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 . . . with costs and such reasonable attorney's fees as may be allowed by the court. . . .'' (Emphasis added.) General Statutes § 31-72.

         On October 20, 2015, the plaintiff submitted a preliminary request to charge, proposing that the court instruct the jury using the language in the amended version of § 31-72. After quoting the relevant part of the amended version of § 31-72in his proposed instructions, the plaintiff requested the following specific instructions: (1) ‘‘If you do find in favor of the plaintiff-that is, that the defendant unlawfully withheld his pay-you must then determine whether the [defendant] had a ‘good faith belief that the underpayment of wages was in compliance with law.' It is the defendant's burden to prove to you that the defendant had such a good faith belief''; and (2) ‘‘If you find that the defendant failed to prove that it had such a good faith belief, then you must award the plaintiff twice the amount of unpaid wages . . . [and the plaintiff] is entitled to collect his attorney's fees.'' (Emphasis added.)

         On October 26, 2015, the plaintiff filed a memorandum of law supplementing his preliminary request to charge. In that memorandum, the plaintiff argued that the court should conclude that the amended version of § 31-72 applied retroactively and, therefore, use that version in its instructions. The defendant did not file any ...


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