*1 587 P.2d 255

William R. and Rush CUMMINGS

Hughes, Appellants

Cross-Appellees, TRADE

AVIATION SPECIALTIES

CORPORATION, Appellee and

Cross-Appellant.

No. 1 CA-CIV 3721. Arizona, Appeals

Court of 1,

Division

Department A.

Sept. 1978.

Rehearing Denied Oct.

Review Denied Nov. Phoenix, Jr.,

George Sterling, M. for ap- pellants. Ulrich, &

Lewis Roca Paul G. Richard Cohen, Phoenix, appellee. S. OPINION HAIRE, Presiding Judge. Appellants, Cummings Hughes, have appealed from the trial court’s refusal damages award them treble judgment fees in a they obtained employer. judg- their former This ment was for additional completion claimed due of their with that employer. er, appellee Specialties Aviation Trade Cor- poration, has cross-appealed from the same judgment, contending that awarding any compensa- erred in additional appellants. tion to the Considering question first raised in provides A.R.S. follows: *2 537 the by employee only question Action to recov- of damages, 23-355. treble and “§ recovery er of wages; amount did not a include consideration of the attor- ney’s However, fees of aspect the statute. pro- an violation the employer, If in of appellants have urged, here and there is chapter, shall fail to pay visions of this nothing in wording the any employee, employee due such statute which wages justify, awarding in would treatment of may recover a civil action an the attorney’s of employer fees on a basis employer or former an amount different from unpaid damages the that accorded to the which is treble amount of the treble issue.1 wages, together with costs and reasona- We judge therefore hold that the trial did fees be not err in attorneys’ holding ble to allowed the that the damages treble court on the basis of time and effort and attorney’s provisions fees of § 23-355 expended by in of counsel behalf the do not apply to situations in which the plaintiff-employee.” employer acts both reasonably good and in in dispute relating faith to the determina- statute, Appellants contend that under this tion of the compensation amount of due to the has to judge deny trial no discretion employee. an We have the reviewed record damages treble fees once he and note fully that the supports determined, as in this that has the the trial finding court’s as to the reasona- employer has failed to all bleness and good employer faith upon completion due sums litigation. this appellee- ment contract. response, employer uphold seeks to the trial court’s turnWe now to employer’s cross-ap- damages refusal award treble and attor- peal. stated, As we have previously fees, ney’s contending penal provi- that the employer contends that judge trial inapplicable are sions when the § awarding erred in appellants any addi- judge employer determines compensation.2 tional This contention in- reasonably has acted faith proper volves the interpretation of written tendering it believed to contracts between the parties, wherein the be due. appellants were employed flight as crew

At the time members in parties’ briefs were connection with- undertaking argument by the employer spray filed and oral was held in this large acreages of spruce appellate no Arizona court had budworm spo infested forest lands Thereafter, May Quebec.3 ken on this Province issue. It was contemplated 1978, Department B of this Court issued services required its be would ren- East, opinion Apache Wiegand, Inc. period dered within maximum of two holding 119 Ariz. P.2d months. Under the terms of the written contracts, damages provided by penalty employer agreed treble 23- to compen- § appellants there sate should not awarded when the gallonage of reasonable, good wage dispute Also, insecticide they sprayed. faith be which there provision employer employee. tween the was a for payment guar- For of a opinion, prorated the reasons stated in that we hold anteed minimum month or denying parties’ dispute that the trial did err in thereof. The as to damages ap treble their contract stems pellants in case. We are a disagreement aware that from as to the interrelation- holding in Apache ship provisions. the strict East involved these two compensation 12-341.01, awarding authorizing 3. Individual A.R.S. contracts were entered into with party appellant, only differing fees to the successful in all each pensation rate of com- subsequent litigation, paid. was enacted contract to be Insofar as concerns the litigation here involved. the trial court cross-appeal, issues involved in this we will identical, treat individual contracts as since judgment portion of court’s That due, controversy there no as to the amounts appellant Cummings additional which awarded compensation questioned by proper interpretation once the issue as to the his work as a mechanic is not the contract is resolved. cross-appeal. in its gallonage less pertinent sprayed June contract guar- semi-monthly the one minimum in Article II A thereof: are found payment anteed had been received them for the first half of June. The em- II “ARTICLE ployer differently, interpreted EMPLOYER RESPONSIBILITY contending gallonage the amount of *3 sprayed particular in a month was immate- per- his services compensation for A. As rial, final must compensation and that the Em- Employer, formed behalf sprayed the total upon gallonage be based reimburse the Crew agrees to ployer job, monthly for the less all minimum entire as follows: Member payments job. the entire Without set- for per gallon sprayed. 1. cents $.0367 ting specific specific the forth the forth expenses from 2. enroute $75.00 involved, computations say suffice it to Mesa, site. the contract base Arizona to computation this latter method of would expenses the from 3. enroute $75.00 substantially have resulted in lesser Mesa, Arizona base site contract compensation of final due to the amounted the contract. upon completion of appellants. will to the Crew The Employer appellants Although appel- both the guarantee Member minimum on the position lee take the pro-rated por- per or month $2500.00 ambiguous, agree we with is not commencing and terminat- thereof tion the con- judge’s the trial determination that specified under Article ing on the dates parol evi- ambiguous tract was and that A.” Section as its inter- dence was admissible an aid to to the background as factual Some pretation.4 ambiguity This arises from the is parties’ dispute nature the specific guarantee subpara- fact that while the oper spraying The point. at this pertinent graph monthly peri- time A-4 is stated in question) (the year ation for od, period specified in sub- there is no time Be May and June. volved the months computing A-l as a basis the paragraph for the fact that the poor weather cause Thus, gal- gallonage compensation. if the as as ex early matured had not budworm lonage compensation computed on a May occurred in which spraying the pected, so as to with the monthly basis coincide minimal, compensation therefore was II, period specified time in Article then compensation pro upon gallonage based employees’ interpretation is correct. II A-l of Article subparagraph vision of hand, gallonage compen- On the if the substantially less have been would per basis, computed job sation is on a with- spec as for that month guarantee minimum guarantee out reference to the “minimum employees A-4. subparagraph ified provision, then the month” monthly guarantee paid were the minimum employer’s computation While is correct. installments dur semi-monthly May in employer argues monthly guar- that the greater portion By month. far ing that antee A-4 subparagraph June, com spraying interpreted providing occurred should as merely gallonage for spray total against based for “advances” the ultimate pensation far exceeded compensation computed would have at the end of that month Af sprayed, that month. job gallons minimum for based the total guaranteed contrary job shortly arguably after the such completion of ter guarantee” language June, appellant-employees “minimum middle A-4, contrary to evi- and also they subparagraph were entitled position that took the dence introduced the month of June compensation for testimony dam- as a defense to the treble parol was admitted in this reasonableness Much issue, testimony ages parol was Although much of the court. parol testimony not limited. to the so was limited some employer’s faith and establishment of the indicates an intention payments did not err in resolving pursuant made A-4 were subparagraph the ambiguity in favor of appellants, we advances, merely monthly but true have taken into consideration the rule of guarantee payments intended an alter- any ambiguity construction that ain con- nate basis in event that tract should strongly be construed most gallonage compensation computed at drafter, who in this case was job equal conclusion of the did employer. g., E. Harford v. National monthly guarantee total of the payments. Co., Casualty Life & Insurance 81 Ariz. (1956). 299 P.2d 635 parties parol Both introduced seeking respective positions to bolster their The judgment is affirmed. in the trial court. Evidence was introduced concerning previous be- year’s contract FROEB, J., C. Division concurs. the parties tween and the manner in which *4 NELSON, Judge, concurring in part, dis- paid was thereunder. How- in senting part. ever, this evidence was little of or no value Although I concur in the majority’s hold establishing in proper interpretation of ings regarding good aspect faith of this provisions question, in inasmuch as the wage dispute (see East, Apache Inc. Wie compensation paid in 1973 would have been supra) gand, and the of the the same under either construction now contracts, employment I must dissent from urged by parties. Much of the testimo- portion that of the decision that refuses to ny by appellant- which was introduced differentiate of the statute employees relating allegedly to “normal” or 23-355, (A.R.S. supra) providing § for costs “customary” compensation provisions in reasonable fees from the aspects industry the aviation was portion allowing a recovery of “treble dam questionable materiality because of foun- ages” based wages amount of Likewise, dational deficiencies. unpaid. by employer concerning introduced provisions underlying of its contracts with I would hold that an award of attorney’s Government, obviously the Canadian while fees mandatory is whenever an is employer subjec- relevant as to what ultimately in successful to pay “failure tively by provisions in ques- wages” intended claim filed under A.R.S. 23-355. § tion,5 marginal, any relevance, was result, if in Without such a whole resolving ambiguity, frustrated, because there was the statute is as it will inbe this showing no employees had knowl- ease.

edge of the of these contracts wage judgments total amount of the prior with the Canadian Government to en- case, $2,695.98. in this employees, for both question. tering into the contract in time, point To this this case has involved evidence, hearing all includ- pleadings, vigorous pre-trial After counsel in mo- ing probative work, substantial evidence not men- discovery tions and two-day court decision, trial, motions, in this re- post-trial tioned complete and a civil appel- ambiguity solved the favor cross-appeal, including oral ar- lant-employees. While from our review of gument. An affidavit of record in this case appears it the cold record us recites expenditure of a total of 69 hours, preponderance most, all, of the evidence was in favor including but post-trial interpretation urged by motions, memorandum and and not includ- er, ing say any spent we cannot there was no evi- appeal. the time on this support dence to the result reached the The affidavit suggests further a rate of $50 hour, In judge. arriving certainly at our conclusion reasonable rate this 5. This evidence was employer material determination of the faith of the concern- damages issue. ing treble 540 ., together “. . with costs and rea- age. Thus we have

day and $3,450.00 action. the trial of this attorneys’ fees to be allowed fee sonable $3,500 $2,500 to you add another When the court on the basis of time and effort processing sum for the in behalf of the expended by counsel sums recov- compare it with the total added) (Emphasis plaintiff-employee." ($2,695.98), appellants are more ered to allow the attor- directing In the court $4,000 successfully the red after ney’s computed fees to be actual claim pay wages” a “failure to prosecuting (A.R.S. time and effort on the one hand 23-355, a re- supra. Such under A.R.S. § 23-355) only in an amount to miti- § contemplated by sult cannot have been gate the on the other actual cost hand “remedial” stat- legislature enacting (A.R.S. 12-341.01), appears it to me that ute. is a intent to force strong legislative there liberally construed should be This statute wage the full cost of provided by the remedy “to advance the including the actual litigation, Wash.App. 1 Impero, act”. Brandt v. incurred, plaintiff employee when the (1969). Apache also: P.2d 199 See “just If is a claimant”. this is not the East, Acevedo v. Wiegand, supra; Inc. v. possible wage will for the average it Opportunities Industrialization Phoenix Center, statutory P.2d 1322 earner to avail himself of this Ariz.App. East, Apache (1976). While I concurred when the refusal remedy pay wages damage portion of supra, since the treble obviously arbitrary every and malicious. *5 discretionary and is clearly the statute is losing he runs the risk of more awarding penalty, I believe invoked as gains (as he when even he “wins” penal- attorney’s fees is not of costs and here), in direct contravention of the intent employer but to enable ize the legislature provide him remedy. to avail himself of the forum. There is sufficient discretion in the “tre- 12-341.01, as indicated While A.R.S. § damage” provision ble to cover the issue of was enact (see supra) Note majority tlie good or bad faith. To extend that discre- may not litigation to this subsequent ed attorney’s to the allowance of tion fees is to even now litigation apply type to this totally emasculate the of this reme- A), 12-341.01, its subsection (see A.R.S. § dial statute. construing language is useful nonetheless subject mat portion same judg- earlier on the I would reverse that statute ter, gener though specific. more See even ment refused award in and Shirley Superior v. Court ally: addition, as directed the statute. 510, 513 P.2d Apache, 109 Ariz. County of request an I would itemization of counsel’s 917, 94 (1973), denied 415 U.S. cert. spent time and award (1974); Arizona 39 L.Ed.2d S.Ct. fees in this Court in accordance with the Nelson, 105 Highway Commission State statute. (1969). In subsection P.2d 509 Ariz. 12-341.01, legisla supra, the B of A.R.S. § provides:

ture reasonable

“B. The award of the bur- mitigate

fees should be made just litigation for expense

den relate to equal or

claimant. It need actually paid or con- attorney’s fees

tracted.” with that language

Contrast this (gen- dealing with costs

of A.R.S. § 12-341 et discretionary, A.R.S.

erally §§

seq.) attorney’s fees: