Zoll & Branch, P.C. v. Asay, 940568

• Court: Supreme Court of Utah
• Citation: 932 P.2d 592
• Decision Date: 07 February 1997
• Docket Number: No. 940568,940568
• Parties: 3 Wage & Hour Cas.2d (BNA) 1355, 310 Utah Adv. Rep. 9 ZOLL & BRANCH, P.C., Plaintiff, Counterclaim Defendant, and Respondent, v. Alan ASAY, Defendant, Counter-Claimant, and Petitioner.

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932 P.2d 592 3 Wage & Hour Cas.2d (BNA) 1355, 310 Utah Adv. Rep. 9 ZOLL & BRANCH, P.C., Plaintiff, Counterclaim Defendant, and Respondent,
v.
Alan ASAY, Defendant, Counter-Claimant, and Petitioner. No. 940568. Supreme Court of Utah. Feb. 7, 1997.

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B. Ray Zoll, Peter de Jonge, Salt Lake City, for Plaintiff, Counterclaim Defendant, and Respondent.

Michael N. Zundel, Kent W. Hansen, Salt Lake City, for Defendant, Counter-Claimant, and Petitioner.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HOWE, Justice:

We granted certiorari to review a decision of the court of appeals made pursuant to rule 31, Utah Rules of Appellate Procedure, which allows an expedited decision without a written opinion. Plaintiff law firm sued defendant for slander, conversion, and fraud; defendant counterclaimed for wages that he alleged plaintiff wrongfully withheld when he voluntarily quit his employment with plaintiff. We are here concerned only with the counterclaim.

The trial court awarded defendant wages of $1,500, together with a penalty of $6,000, pursuant to Utah Code Ann. § 34-28-5(1), plus interest, attorney fees of $12,000, and costs. Plaintiff appealed, and we transferred the case to the court of appeals. After a rule 31 hearing, that court concluded that defendant was not entitled to the penalty and remanded the case to the trial court for a reduction in the judgment of that amount. The court of appeals also denied defendant's request for attorney fees on appeal.

We granted defendant's petition for certiorari and assumed jurisdiction under Utah Code Ann. § 78-2-2(3)(a) to address two narrow questions:

(1) Did the court of appeals err when it concluded that section 34-28-5(1) (1969), ¹ part of the Utah Payment of Wages Act (the Act), did not entitle defendant to a civil penalty?

(2) Did the court of appeals err when it denied defendant's request for attorney fees on appeal?

The interpretation of statutes poses a question of law, which this court reviews for correctness and without deference to the lower court's conclusions. Bonham v. Morgan, 788 P.2d 497, 499 (Utah 1989). This standard applies whether we review conclusions made by the trial court or the court of appeals. State v. Hodson, 907 P.2d 1155 (Utah 1995).

CIVIL PENALTY UNDER SECTION 34-28-5(1)

This court has not previously had occasion to interpret section 34-28-5(1) of the Act. We therefore "note the directive that we construe statutes liberally with a view to effect[ing] their objects and to promot[ing] justice. Utah Code Ann. § 68-3-2. Upon a question of first impression such as this, it is our duty to accord that section effect." Brickyard Homeowners' Ass'n Management Comm. v. Gibbons Realty Co., 668 P.2d 535, 538 (Utah 1983) (citation omitted).

The statute in question provides:

34-28-5. Separation from payroll--Resignation--Suspension because of industrial dispute.

(1) Whenever an employer separates an employee from his payroll, the unpaid wages of such employee shall become due immediately, and the employer shall pay such wages to the employee within 24 hours of the time of separation at the specified place of payment.

In case of failure to pay wages due an employee within 24 hours of a demand therefor, the wages of such employee shall continue from the date of separation until paid, but in no event to exceed 60 days, at the same rate which the employee received at the time of separation. The employee may recover the penalty thus accruing to him in a civil action. This action must be commenced within 60 days from the date of separation. Any employee who has not made a demand for payment shall not be entitled to any such penalty under this subsection.

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(2) Whenever an employee (not having a written contract for a definite period) quits or resigns his employment, the wages earned shall become due and payable not later than 72 hours thereafter, unless such employee shall have given 72 hours' previous notice of his intention to quit, in which latter case such employee shall receive his wages at the specified place of payment at the time of quitting.

(3) In the event of the suspension of work as the result of an industrial dispute, the wages earned and unpaid at the time of this suspension shall become due and payable at the next regular payday, as provided in Section 34-28-3, including without abatement or reduction all amounts due all persons whose work has been suspended as a result of such industrial dispute, together with any deposit or other guaranty held by the employer for the faithful performance of the duties of the employment.

Utah Code Ann. § 34-38-5 (1969) (emphasis added). The Act "regulates Utah employers' payment of wages to their employees." Smith v. Batchelor, 832 P.2d 467, 469 (Utah 1992). ² It "imposes duties on the employer pertaining to notice and record keeping and the timely and regular payment of wages." Action Elec. Co. v. Industrial Comm'n, 636 P.2d 474, 477 (Utah 1981). ³

Defendant contends that the second paragraph of section 34-28-5(1) ("the penalty clause") applies not only when the employer terminates or discharges an employee but also when an employee such as he quits voluntarily (subsection (2)) or when employees go on strike (subsection (3)). We disagree. It is clear that the penalty can be imposed only when there has been a separation. The word separate is not defined in the Act, so we look to...