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Taylor v. Kennedy
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 116
Docket:	Yor-99-68	
on Briefs:	June 29, 1999
Decided:	July  22, 1999




	[¶1]  Richard Kennedy, personal representative of the estate of
Clarence Kennedy, appeals from judgments entered, after remand, in the
Superior Court (York County, Cole, J.) awarding attorney fees to the plaintiffs
and awarding Elieca Taylor additional unpaid wages pursuant to 26 M.R.S.A.
§ 626 (Supp. 1998).  On appeal, Kennedy argues that the plaintiffs failed to
provide notice of their claim pursuant to the Probate Code, 18-A M.R.S.A.
§ 3-804 (1998), and that the court erred in its award of attorney fees and in
its calculation of wages due to Taylor for an additional four days work.  We
affirm but modify the award of unpaid wages as a result of a calculation error.
	[¶2]  The history of the case is stated in Taylor v. Kennedy, 1998 ME
234, 719 A.2d 525 (Taylor I).  In Taylor I, we remanded for, inter alia, re-
examination of the amount of plaintiffs' attorney fees and consideration of
Taylor's contention that she had worked an additional four days for which
compensation had not been awarded.  After a hearing, the trial court
awarded plaintiffs an additional $19,251 in attorney fees and $519.22 in
disbursements.  The court later issued an order determining that Taylor had
worked an additional four days for which she was entitled to compensation
of $537.60.  This calculation was based on 4/5 of Taylor's weekly wage of
$672.00.  Kennedy appealed from each of the orders.  The appeals were
consolidated for determination by this Court.  
	[¶3]  The record does not indicate that Kennedy raised the issue of
proper notice under the Probate Code either before the Superior Court or
before this Court in Taylor I.  Therefore, the issue is not preserved for this
appeal which is limited to the issues which Taylor I indicated should be
reviewed on remand.{1}    
	[¶4]  Pursuant to 26 M.R.S.A. § 626, a judgment in favor of the
employee must include costs of suit, including reasonable attorney fees.  We
review the determination of a reasonable fee for abuse of discretion. 
Raymond v. Lyden, 1999 ME 59, ¶ 10, 728 A.2d 124, 126-27.  No abuse of
discretion is demonstrated here.  
	[¶5]  At the original trial, Taylor testified that she worked a seven
day work week with hours that varied but with a flat weekly salary of $672. 
Considering that evidence, Taylor's daily rate of compensation for the four
additional days should be calculated at a rate of 4/7 of her weekly salary and
not 4/5 of her weekly salary.  As such, the additional unpaid wages for the
four days, upon which the treble damages calculation would be based, would
be $384.  This difference, from the original award, would reduce the total
award by $460.80.  The judgment will be modified accordingly.
	[¶6]  The other issues raised in this appeal do not merit discussion.  
	The entry is:
Judgment amended to subtract $460.80 from
the total award for unpaid wages plus treble
damages.  As modified, the judgment is

Attorney for plaintiffs: G. Charles Shumway, Esq. 257 Deering Avenue Portland, ME 04103 For defendant: Richard Kennedy P O Box 482 Russell, MA 01071
FOOTNOTES******************************** {1} . The notice argument appears without merit, in any event. Under the Probate Code, a creditor may preserve a claim against a decedent's estate by commencing a court proceeding against the decedent, while he was alive, or against the personal representative within the time limit for presenting a claim. 18-A M.R.S.A. § 3-804(1) & (2). Here, there is no question that the original action, commenced while Clarence Kennedy was alive, constituted such a preservation of claim.