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Fowler v. Town of Seabrook12/21/2000
ing[,] we first examine the language found in the statute, and where possible, we ascribe the plain and ordinary meanings to words used. Furthermore, when examining statutory language, we construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result. Appeal of Van Lunen, 144 N.H. ___, ___, 750 A.2d 737, 740 (2000) (quotation, brackets, and citation omitted).
The court ruled that, because the town diverted money from the plaintiff's weekly paycheck, RSA 275:48 applied. While the town quibbles with the use of the word "divert," it concedes that it deducted money from the plaintiff's regular weekly paycheck. Thus, we agree with the trial court that RSA 275:48, which governs such deductions, applies.
We reject the town's argument that RSA 275:48 should not apply here because its application results in a double payment to the plaintiff. The town argues that if it is not permitted to deduct the amount it paid the plaintiff while he was on leave, the plaintiff would then be paid twice for his leave: once through his accrued sick leave benefits and again by workers' compensation. Even if we assume this is true, there is no such equitable exception to RSA 275:48's requirements. The town is not permitted to engage in this sort of "self-help" to recover the money it believes the plaintiff owes it. We express no opinion as to whether other remedies exist that the town may pursue.
We also reject the town's argument that because sick leave benefits are "wages," and because it "replenished" the plaintiff's sick leave account with the withheld funds, there was no withholding. RSA 275:43, I, does not permit an employer to pay an employee less than his regular wage for work performed in a given week and make up the difference by enhancing a benefit, such as sick leave or vacation pay. See RSA 275:43, I (a)-(d).
The town next argues that the court erred when it awarded the plaintiff his attorney's fees. We agree and reverse this portion of the court's decision.
RSA chapter 275 permits a court to award reasonable attorney's fees to a plaintiff only as part of a judgment in the plaintiff's favor. See RSA 275:53, III (1999) ("The court . . . may, in addition to any judgment awarded to the plaintiff . . . allow costs of the action, and reasonable attorney's fees"); Ives v. Manchester Subaru, Inc., 126 N.H. 796, 804, 498 A.2d 297, 303 (1985) (court must award fees when it finds a wage claim meritorious, unless it finds particular facts that would render such an award inequitable). Neither the DOL nor the trial court has yet found the plaintiff's wage claim meritorious. The DOL found the claim unmeritorious, and the trial court never reached the claim's merits. Under these circumstances, the trial court's fee award was, at best, premature.
Affirmed in part; reversed in part.
BRODERICK and NADEAU, JJ., concurred; HORTON, J., retired, and GROFF, J., superior court justice, specially assigned under RSA 490:3, concurred.
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