Donna H. Vernon v. Time Energy Systems of the South-West N/K/A CAD Distributors, Inc.

  Opinion issued August 9, 2007  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-06-00009-CV

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DONNA H. VERNON, Appellant

V.

CAC DISTRIBUTORS, INC. f/k/a TIME ENERGY SYSTEMS SOUTHWEST, INC., Appellee

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On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2003-18698

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MEMORANDUM OPINION

Appellant, Donna H. Vernon, appeals from a judgment rendered in her favor against CAC Distributors, Inc. f/k/a Time Energy Systems Southwest, appellees, for claims under the Fair Labor Standards Act ("FLSA"). See 29 U.S.C.S. §§ 201, 216 (LexisNexis 2007). This appeal concerns only the trial court's rulings on attorney's fees and prejudgment interest; neither party challenges the amount awarded as compensation for unpaid overtime wages. In three issues, Vernon asserts that the trial court erred (1) by denying full recovery of reasonable and necessary attorney's fees; (2) by admitting into evidence the parties' settlement negotiations or, alternatively, by disallowing Vernon's settlement proposals as evidence while admitting into evidence CAC's settlement proposals; and (3) by denying prejudgment interest. We conclude that the trial court did not abuse its discretion by awarding attorney's fees in an amount less than that requested by Vernon's attorney; by admitting evidence in the bench trial about settlement negotiations for the limited purpose of determining the reasonableness of the number of hours worked by Vernon's attorney; or by denying prejudgment interest. We also conclude that Vernon has not shown how she was harmed by the exclusion of the documentary settlement evidence that she offered because Vernon's attorney testified to the same matters that were in the excluded documents. We affirm. Background From May to September 2001, Vernon worked for CAC as a non-exempt clerical employee earning $11.50 per hour. Vernon claimed that when she worked more than 40 hours per week, she was not fully compensated for some of the additional hours. Vernon filed suit against CAC pursuant to section 216 of the FLSA claiming she was owed $1,897.50 in overtime wages. See 29 U.S.C.S. § 216.  

In addition to her claim for overtime wages, Vernon sought attorney's fees. Vernon's counsel testified that he spent a total of 90 hours working on the case, that a reasonable rate for this type of work in the Houston community is $185 per hour, and that the "lodestar" amount determined from multiplying these two numbers was $16,650. Although it did not dispute that $185 per hour was a reasonable rate, CAC disputed the reasonableness of the number of hours worked by Vernon's attorney, asserting that Vernon's attorney behaved unreasonably in rejecting pretrial settlement offers by CAC that offered reasonable compensation to Vernon.   

The documents admitted into evidence identified as Defendant's Exhibits 97-101 and Plaintiff's Exhibit 8 show that CAC made repeated settlement offers to Vernon.   

• •In February 2004, within 10 months of the filing of the case, CAC offered Vernon a $3,000 settlement. Vernon's response was a demand of $10,510. Vernon's demand included a calculation that the attorney had to that date worked 30 hours on the case at an hourly rate of $185 per hour, equaling $5,550 in attorney's fees.



• •CAC countered three days later with a settlement offer of $5,000. Vernon responded with a demand of $8,000.

• •CAC countered about a week later with a final settlement offer of $5,500, with a deadline to accept set the next day, but it was not accepted.



• •About seven months later, on October 11, 2004, CAC again offered a settlement of $5,500 to Vernon, but it was not accepted.

   Vernon's attorney testified that, prior to August 5, 2003, he "guessed" 30 hours were spent conferring with his client, filing the petition, filing a set of interrogatories, filing requests for production and for disclosure, and responding to defendant's request for disclosure. Between that date and February 20, 2004, Vernon's attorney testified that he worked an additional four to five hours to turn over two documents in response to CAC's initial discovery request. The trial court admitted into evidence Vernon's exhibit that described work he performed from March 10, 2004 through trial. After a bench trial, the trial court rendered judgment in favor of Vernon for the full amount of overtime wages she was due, $1,897.50, plus an additional $1,897.50 in liquidated damages. The trial court's judgment awarded $5,550 for attorney's fees, one-third of the $16,650 that was requested at trial by Vernon's attorney.  

Although Vernon requested an award for prejudgment interest, the trial court's final judgment did not include an award for prejudgment interest. The failure to include prejudgment interest in the final judgment was the result of the trial court's order granting CAC's motion to modify the trial court's prior judgment that had included an award of $682 for prejudgment interest. See Tex. R. Civ. P. 329b(g). ⁽¹⁾  

Amount of Award of Attorney Fees

In her first issue, Vernon asserts that the trial court erred by awarding an amount less than was testified to by her attorney because (A) "Courts have generally allowed full recovery of attorney's fees in FLSA cases," (B) no expert testimony was presented in opposition to Vernon's attorney's testimony, and (C) the evidence is factually insufficient to support the trial court's finding of fact that 30 hours was reasonable and necessary.

The FLSA mandates that reasonable and necessary attorney's fees and court costs be awarded a prevailing plaintiff in an FLSA action. See 29 U.S.C.S. § 216(b) ("The court in such action, shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."); Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (citing Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 961 (5th Cir. 1993)). To calculate reasonable attorney's fees in a case under the Labor Code, the fact finder should multiply the number of hours worked by the attorney's hourly rate. Guity, 54 S.W.3d at 528 (citing Purcell, 999 F.2d at 961). Both the number of hours and the hourly rate must be reasonable. Id. The resulting figure is called the "lodestar" amount; this can be adjusted upwards or downwards to account for the factors identified by the Fifth Circuit in Johnson v. Georgia Highway Express. ⁽²⁾ Id. at 529 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)). The lodestar amount is calculated before application of the Johnson factors. Id. at 528-529.

A. General Recovery of Attorney's Fees  

Vernon asserts that the trial court was required to award the amount testified to by Vernon's attorney because "[c]ourts have generally allowed full recovery of attorney's fees in FLSA cases." ⁽³⁾ While Vernon cites several cases where the entirety of attorney's fees requested was awarded, CAC points to Cox v. Brookshire Grocery Co., where the Fifth Circuit affirmed a district court award of attorney's fees based upon a determination that only 80 of the 300 claimed hours of work were reasonable. 919 F.2d 354, 358 (5th Cir. 1990). As we note above, the standard that must be applied is the lodestar amount that is based on the reasonable number of hours worked multiplied by the reasonable hourly rate, with an adjustment upwards or downwards to account for the Johnson factors. See Purcell, 999 F.2d at 961.

B. Expert Testimony

Vernon also contends that the trial court was required to award the full amount of attorney's fees requested because CAC did not present contrary expert testimony. Although Vernon's attorney was the only witness who testified on the matter of attorney's fees and his testimony was not contradicted by an opposing expert, the trial court could have disregarded that testimony because the attorney was an interested witness on the matter of the amount of attorney's fees to be awarded by the trial court. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (citing Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942) ("It is the general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the [fact-finder].")). Moreover, CAC presented evidence contrary to Vernon's attorney's testimony that 90 hours of work were necessary to present the case by admitting documents that showed reasonable settlement offers that would have resulted in the need for fewer hours of work by the attorney, and thus, the evidence by Vernon's attorney was not uncontradicted or unimpeached. We note further that Vernon's attorney's testimony contained inconsistencies concerning the time he spent on the case and was not supported by written documentation for some of his claimed hours. ⁽⁴⁾ See id. ⁽⁵⁾ We are not persuaded by Vernon's contention that the trial court was required to award the full amount of attorney's fees requested by her attorney because CAC did not present contrary expert testimony. See id.

C. Factual Sufficiency of Evidence to Support Trial Court's Findings

Vernon contends that the trial court erred because it "did not make any findings of fact or conclusions of law as to why Plaintiff's requested attorney's fees were not reasonable and necessary." Vernon further contends that the district court's conclusion in its Findings of Fact and Conclusions of Law that "30 hours of work by Plaintiff's counsel were reasonable and necessary through trial and that $185.00/hour is a reasonable and necessary hourly rate for Plaintiff's counsel" was error because it was "not supported by the evidence and it was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See generally Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (cited by Vernon for standard of review for factual insufficiency claims).

1. No Findings of Fact and Conclusions of Law

Vernon provides no argument and cites to no authority indicating how the court erred in not including Findings of Fact or Conclusions of Law to explain "why" it determined that 30 hours of work by Plaintiff's counsel were reasonable and necessary through trial. The rules of appellate procedure require an appellant's brief to contain a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." See Tex. R. App. P. 38.1(h); Bradt v. West, 892 S.W.2d 56, 69 (Tex. App.--Houston [1st Dist.] 1994, writ denied) (holding that fact that brief contains authorities on conspiracy is not alone sufficient to comprise "argument" necessary to keep from waiving cause of action on appeal as both authorities and argument are required); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.--Dallas 2005, no pet.) (stating that "appellant's failure to present sufficient argument or authority to support an issue waives that issue on appeal."). This sub-issue is therefore waived. See Bradt, 892 S.W.2d at 69.

2. Finding not Supported by the Evidence

Vernon challenges the factual sufficiency of the evidence supporting the trial court's finding that "30 hours of work by Plaintiff's counsel were reasonable and necessary through trial and that $185.00/hour is a reasonable and necessary hourly rate for plaintiff's counsel." ⁽⁶⁾ When the appellate record contains a complete reporter's record, we review the trial court's findings of fact under the same standards for factual sufficiency that govern review of jury findings. ⁽⁷⁾ See Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.--Houston [1st Dist.] 1999, no pet.). As fact finder, the trial court is the sole judge of the credibility of witnesses in a bench trial. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981); Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.--Houston [1st Dist.] 1992, writ denied). An appellate court may not substitute its judgment for the trial court's assessment of witnesses' credibility in a bench trial. See In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). In determining factual sufficiency, this court weighs all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176; Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex. App.--Houston [1st Dist.] 1994, no writ).

Vernon's attorney's testimony was not uncontested, and the evidence could lead reasonable minds to form different conclusions regarding reasonableness. Cross-examination by CAC and evidence in the record indicates that Vernon rejected CAC's first three settlement offers made within a two-week period for $3,000, $5,000, and $5,500. Thirty hours at $185.00 per hour, a total fee of $5,550, corresponds with Vernon's attorney's estimate of time worked on the case before CAC's first offer of settlement, admitted for the purpose of drawing "a line, or a mark in the time line, at which point [CAC] believed any attorney's fees beyond that were unreasonable." By awarding attorney's fees in an amount incurred only prior to the settlement offers, the court implicitly found to be unreasonable any time worked on the case beyond the offers. Moreover, as previously noted, the trial court was within its discretion to find not credible Vernon's attorney's testimony concerning the number of hours he claimed to have worked. Vernon's attorney's testimony included what he called a guess, failed to include written documentation of some of the claimed hours, and contained inconsistencies. See In re W.E.R., 669 S.W.2d at 717. We cannot overturn the finding when sufficient evidence to cause reasonable minds to disagree exists, as it does here. The finding is not contrary to the great weight and preponderance of the evidence, and thus is factually sufficient. See Cain, 709 S.W.2d at 176.  

We hold that the trial court's finding of fact is supported by factually sufficient evidence. ⁽⁸⁾   We overrule Vernon's first issue.

Admission of Settlement Proposal Evidence

In her second issue, Vernon contends that the trial court erred by allowing settlement proposals into evidence over her objections that the documents were not admissible due to lack of relevancy and to their prohibition by Rule 408 of the Rules of Evidence.

A. Relevancy

Relevant evidence is defined by Rule 401 of the Texas Rules of Evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. CAC's evidence relating to settlement proposals was offered as evidence that the 90 hours spent on the case by Vernon's counsel was not reasonable. Specifically, CAC asserted that its settlement offers were more than generous, as they were above the "cap" of liquidated damages imposed by the FLSA. ⁽⁹⁾ 29 U.S.C.S. § 216(a). Vernon's counsel testified that he rejected the offers because they did not cover "all of her damages," apparently referring to his attorney's fees. Vernon's unpaid wages were $1,897.50. Within 10 months of the filing of the case, CAC offered first a $3,000 settlement, then, three days later, a $5,000 offer, and finally, eight days later, a $5,500 settlement. According to Vernon's attorney, at the point the first of those settlement offers was made, he had worked 30 hours at an hourly rate of $185 per hour for a total of $5,550 in attorney's fees. The trial court stated, "The only reason I allowed the settlement discussions in was, in my mind, [CAC's attorney] was trying to draw a line, or mark in the time line, at which point he believed any attorney's fees beyond that were reasonable." In this bench trial in which a party challenged the reasonableness of the number of hours worked on the case by an attorney, we cannot conclude that the trial court abused its discretion by finding relevant the settlement offers on the matter of whether the attorney's claim of the number of hours he worked to present the case through trial was reasonable. See Tex. R. Evid. 401. ⁽¹⁰⁾

B. Rule 408

Rule 408 states that an offer to settle or compromise a claim is not admissible to show liability, the validity of the claim, or the amount of the claim. Haney v. Purcell Co., 796 S.W.2d 782, 788 (Tex. App.--Houston [1st Dist.] 1990, writ denied). It does not require exclusion when the evidence is offered for another purpose. See Tex. R. Evid. 408. The evidence was offered for the "exclusive purpose," according to CAC, of aiding the court in determining the reasonableness of Vernon's attorney fees. We cannot conclude that the trial court abused its discretion by determining that Rule 408 does not prohibit the admission of the settlement negotiations on the limited matter of the reasonableness of the number of hours worked by the attorney. See id.

C. Conclusion

We hold that the trial court did not abuse its discretion by concluding that CAC's evidence of settlement negotiations was relevant to determining the amount of attorney fees that were reasonable and necessary. We further hold that the trial court did not abuse its discretion by determining that CAC's settlement evidence, because of the limited purpose for which it was offered, did not violate Rule 408. See Tex. R. Evid. 408. We overrule the portion of the second issue concerning the admission of CAC's evidence.

Exclusion of Vernon's Settlement Evidence

Within her second issue, Vernon alternatively contends that the trial court erred by refusing to admit her documentary evidence concerning negotiations. A trial court's decision whether to admit evidence is reviewed for abuse of discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (exclusion of evidence committed to discretion of trial court). "Generally, exclusion of evidence is not reversible error unless the complaining party demonstrates that the whole case turns on the particular evidence excluded." Melendez v. Exxon Corp., 998 S.W.2d 266, 274 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (citing Bean v. Baxter Healthcare Corp., 965 S.W.2d 656, 659 (Tex. App.--Houston [14th Dist.] 1998, no pet.); Shenandoah Assoc. v. J & K Properties, Inc., 741 S.W.2d 470, 490 (Tex. App.--Dallas 1987, writ denied)).

Vernon has not explained in her brief to this court how the trial court's failure to admit the documents that contained her settlement offers probably caused the rendition of an improper judgment. See Melendez, 998 S.W.2d at 274 (citing McCraw v. Maris, 828 S.W.2d 756, 757-58 (Tex. 1992)). The record shows that the trial court sustained CAC's objections on the grounds of relevancy to Vernon's Exhibits 9, 10, 11, and 12, and excluded those exhibits from evidence, but included the exhibits as part of the appellate record. The record also shows that Vernon's attorney testified without objection to the same facts that were included within the excluded exhibits. ⁽¹¹⁾ We hold that the trial court's exclusion of the complained of exhibits is not reversible error because Vernon's attorney testified without objection to the same facts, and because the case does not turn on the particular evidence that was excluded from the trial. See Melendez, 998 S.W.2d at 274.

We overrule Vernon's second issue.

Prejudgment Interest in FLSA Claims

In her third issue, Vernon asserts that the trial court erred by denying prejudgment interest. We review a trial court's decision to award or deny prejudgment interest for abuse of discretion. See Purcell Constr. Inc. v. Welch, 17 S.W.3d 398, 402 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (citing Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex. App.--Houston [14th Dist.]1997, no writ)).

The FLSA permits the recovery of liquidated damages in an amount equal to the owed overtime pay. See 29 U.S.C.S. § 216(a). Prejudgment interest is already included in an award for liquidated damages. See Reeves v. Int'l. Tel. & Tel. Corp., 705 F.2d 750, 751 (5th Cir. 1983) (citing Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 715-16, 65 S. Ct. 895, 906 (1945) (stating that in suit under section 216 of the FLSA, interest is not recoverable as part of judgment because liquidated damages compensate for delay in payment of sums due)). Here, the trial court's award includes liquidated damages in an amount equal to the owed overtime pay, thereby effectively including compensation for prejudgment interest. See id.

Vernon contends that, except for the Fifth Circuit, "all other federal courts of appeals that have entertained this issue have ruled that prejudgment interest is available in an FLSA action." ⁽¹²⁾ Vernon correctly cites several cases wherein prejudgment interest was awarded in an FLSA action. See Donovan v. Sovereign Sec., Ltd., 726 F.2d 55, 58 (2d Cir. 1984) ("it is ordinarily an abuse of discretion not to include prejudgment interest in a back-pay award under the FLSA."); Brock v. Richardson, 812 F.2d 121, 127 (3d Cir. 1987) ("a back pay award under the Fair Labor Standards Act should be presumed to carry both post-judgment and pre-judgment interest unless the equities in a particular case require otherwise."); Secretary of Labor v. Daylight Dairy Prods., Inc., 779 F.2d 784, 789-790 (1st Cir. 1985) ("The employees have been wrongfully deprived of the use of the money; the interest payment fully compensates them for the wrong . . . . The district court in this case did not err in awarding pre-judgment and post-judgment interest to the employees."); Herman v. Hogar Praderas de Amor, Inc., 130 F. Supp. 2d 257, 268 (D. Puerto Rico 2001) (awarding prejudgment interest). However, except for Herman, none of these cases have awards for both prejudgment interest and liquidated damages, and in Herman, the court granted prejudgment interest only on issues for which liquidated damages were not awarded. Herman, 130 F. Supp. 2d at 268. The authority relied on by Vernon does not support the conclusion that the trial court abused its discretion by refusing to award prejudgment interest. We hold that the trial court did not abuse its discretion by denying an award for prejudgment interest under these circumstances that show that the trial court awarded liquidated damages at an amount equal to the unpaid wages, in addition to the award for the unpaid wages. See Reeves, 705 F.2d at 751. We overrule Vernon's third issue.

Conclusion

We affirm.

Elsa Alcala

Justice

Panel consists of Justices Alcala, Hanks, and Price. ⁽¹³⁾

1. The remainder of the awards by the trial court concerning attorney's fees for an appeal to the Court of Appeals, a petition and appeal to the Texas Supreme Court, post-judgment interest, and costs of court have not been challenged on this appeal.

2. The Johnson factors include: (1) time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required; (4) the effect on other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the attorney's relationship with the client; and (12) awards in similar cases. Johnson v. Ga Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). If some of the factors are accounted for in the lodestar amount, they should not be considered when making adjustments. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir. 1993).

3. Vernon cites several examples where a court has awarded all requested attorney's fees. See Burnley v. Short, 730 F.2d 136 (4th Cir. 1984); Bonnette v. California Health and Welfare Agency, 704 F.2d 1465 (9th Cir. 1983); Hodgson v. Miller Brewing Co., 457 F.2d 221 (7th Cir. 1972); Soler v. G & U, Inc., 801 F. Supp. 1056 (S.D.N.Y. 1992).

4. For example, Vernon's attorney testified as follows:

(1) He testified that he had worked 90 hours to prepare the case through trial. When asked to produce time sheets, he provided Exhibit 200, which totals approximately 86.5 hours of work since March 10, 2004. When asked if the hours on the sheet would add up to approximately 90, he said "it may be more, it may be less. . . . I have taken out the amount of time that I spent on the reinstatement and the amount of time that I spent on the collective action."

(2) He said he did not have records with him regarding time spent on the case prior to March 10, 2004, but, "guessed" he spent 30 hours prior to August 5, 2003, conferring with his client, filing the petition, filing a set of interrogatories, filing requests for production and for disclosure, and responding to a request for disclosure. He added 4-5 hours between that date and March 10, 2004 for responding to discovery requests. Vernon's attorney had no time sheets with him to support his oral testimony regarding his guess of 30 hours.

5. Having determined that the trial court could have rejected Vernon's attorney's testimony under an assessment of credibility, we do not reach the alternative assertion whether the trial court could have properly taken judicial notice of the reasonable and customary attorney's fees in determining the lodestar amount.

6. The trial court labeled this statement a conclusion of law. However, reasonableness of attorney's fees is properly an issue for the fact-finder, and thus a finding of fact. See Guity v. C.C.I. Enter. Co., 54 S.W.3d 526, 528 (Tex. App.--Houston [1st Dist.] 2001, no pet.).

7. Though the reporter's record here does not include the entire trial, it is complete regarding the topic of attorney's fees, the sole issue we are called upon to review in the trial court's findings of fact and conclusions of law.

8. On appeal, appellant has not challenged the trial court's award by asserting that it abused its discretion in determining the award of attorney's fees. We note that the federal courts generally review the amount of an award for attorney's fees under section 216(b) of the FLSA for an abuse of discretion. Hedrick v. Hercules, Inc., 658 F.2d 1088, 1097 (5th Cir. 1981) (citing Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980) (stating that attorney's fees under section 216(b) of the FLSA "must be upheld unless a clear abuse of discretion is found"); Johnson

, 488 F.2d at 717 ("reasonableness of the award is to be judged by the abuse of discretion standard of review")). We note further that Vernon's counsel acknowledged at trial that the trial court must first determine the lodestar amount by taking "evidence of the number of hours and the hourly rate, which both must be reasonable." Vernon's trial counsel expressly represented to the trial court that he was not requesting that the court change the lodestar amount. However, Vernon's attorney testified about the Johnson factors "in the event the court may be inclined to do so one way or the other." Additionally, the record contains no findings of fact or conclusions of law concerning the Johnson factors.

9. "Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." 29 U.S.C.S. § 216(a).

10. Vernon also asserts that the settlement offers were not admissible under the FLSA because no Johnson factor calls for the use of settlement negotiations in adjusting the lodestar amount up or down. However, the court did not use the Johnson factors to change the lodestar amount. See Johnson, 488 F.2d at 717-19.

11.

Exhibit 9 states, "We might be able to settle this case." Vernon's attorney testified that on March 3 he left a message for CAC's attorney "on the voice mail concerning settlement." Exhibit 10 is a letter dated March 4, 2004 from CAC's attorney to Vernon's attorney stating, "All settlement offers previously conveyed by Defendant to Plaintiff in the captioned matter are hereby withdrawn and revoked." However, Vernon's attorney testified to this same fact by stating, "The following day, on March the 4th, you sent me correspondence, [CAC's attorney], indicating that all settlement offers by the defendant made up to that point in time had been withdrawn and revoked." Exhibit 11 is a letter from Vernon's attorney to CAC's attorney dated July 21, 2004 that states, "If the $5,500 settlement offer is not reinstated I see no opportunity for continuing the settlement dialogue." Vernon's attorney then said in the letter that he was willing to negotiate to an amount below $8,000. Vernon's attorney testified that "my colleague and I discussed settlement, and I attempted to settle the case." Vernon's attorney testified that "on July the 21st of 2004, I sent correspondence to Mr. Kimball as a follow-up to your phone conversation I had with him on that date. And I reminded him that in terms of settlement discussions as of March the 3rd, plaintiff was requesting $8,000, defendant $5,500[.]" Exhibit 12 is a letter from Vernon's attorney to CAC's attorney dated August 10, 2004 that states, "Plaintiff proposes a settlement by splitting the difference between her demand of $8,000.00 and the Defendant's offer of $5,500.00. If this settlement offer is not accepted and/or no response is made by Tuesday, August 17, 2004 this settlement will be withdrawn[.]" Vernon's attorney testified to the contents of Exhibit 12 by stating, "[O]n August the 10th of 2004, I sent a fax to the defendant offering to settle this case by splitting the difference between her demand of $8,000 and defendant's offer of $5,500." Vernon's attorney further testified, "I have asked the defendant to respond to the plaintiff's demand of $8,000 by August the 17th, 2004, and defendants have not responded[.]"

12.

In Knowlton v. Greenwood Independent School District, the court said, "[T]his circuit has created a distinction between claims under 29 U.S.C. §216 (action to recover unpaid minimum wages, unpaid overtime compensation and liquidated damages), and §217 (injunction). Prejudgment interest is not available for the former; it may be awarded for the latter." 957 F.2d 1172, 1183 (5th Cir. 1992).

13. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.