B-169526, MAY 22, 1970

B-169526: May 22, 1970

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ATTORNEY FEES- LEASE TERMINATION WHEN EMPLOYEE WAS THEREATENED WITH LITIGATION IF RENT AND DAMAGES WERE NOT PAID WITHIN 5 DAYS AFTER NOTICE OF TERMINATION OF LEASE IN CONNECTION WITH TRANSFER OF OFFICIAL STATION FROM MILWAUKEE. REIMBURSEMENT OF ATTORNEY'S FEE IS PROPER SINCE LEASE PROVIDED FOR PAYMENT OF ATTORNEY'S FEE IN EVENT OF LITIGATION AND UNDER CIRCUMSTANCES IT WAS REASONABLE FOR EMPLOYEE TO HIRE ATTORNEY TO OBTAIN SETTLEMENT OF MATTER AND FEE DID NOT EXCEED ONE-THIRD OF AMOUNT OF SETTLEMENT. C. ALCOCK: THIS IS IN REPLY TO YOUR RECENT LETTER. THAT A DISPUTE AROSE AS TO THE AMOUNT THAT WAS TO BE PAID TO THE LESSOR UPON TERMINATION. IF SUCH SUM WAS NOT PAID WITHIN 5 DAYS AFTER THE NOTICE.

B-169526, MAY 22, 1970

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--ATTORNEY FEES- LEASE TERMINATION WHEN EMPLOYEE WAS THEREATENED WITH LITIGATION IF RENT AND DAMAGES WERE NOT PAID WITHIN 5 DAYS AFTER NOTICE OF TERMINATION OF LEASE IN CONNECTION WITH TRANSFER OF OFFICIAL STATION FROM MILWAUKEE, WIS. TO DENVER, COLO; AND HIRED ATTORNEY TO SETTLE DISPUTE, REIMBURSEMENT OF ATTORNEY'S FEE IS PROPER SINCE LEASE PROVIDED FOR PAYMENT OF ATTORNEY'S FEE IN EVENT OF LITIGATION AND UNDER CIRCUMSTANCES IT WAS REASONABLE FOR EMPLOYEE TO HIRE ATTORNEY TO OBTAIN SETTLEMENT OF MATTER AND FEE DID NOT EXCEED ONE-THIRD OF AMOUNT OF SETTLEMENT. SEE ROSS V. SMIGELSKI, N.W. 2D 243.

TO MAJOR N. C. ALCOCK:

THIS IS IN REPLY TO YOUR RECENT LETTER, REFERENCE ACF, REQUESTING A DECISION AS TO WHETHER MR. BURT B. BROWER, AN EMPLOYEE OF YOUR AGENCY, MAY BE REIMBURSED A $50 ATTORNEY'S FEE PAID BY HIM INCIDENT TO A LEASE TERMINATION UPON TRANSFER OF STATION FROM MILWAUKEE, WISCONSIN, TO DENVER, COLORADO, EFFECTIVE OCTOBER 19, 1969.

THE RECORD INDICATES THAT AT THE TIME OF TRANSFER MR. BROWER OCCUPIED PREMISES UNDER A LEASE EXPIRING JULY 31, 1970, AND THAT A DISPUTE AROSE AS TO THE AMOUNT THAT WAS TO BE PAID TO THE LESSOR UPON TERMINATION. NOVEMBER 29, 1969, A DENVER ATTORNEY, ACTING ON BEHALF OF THE LESSOR, NOTIFIED MR. BROWER THAT LEGAL ACTION WOULD BE TAKEN TO COLLECT $530, REPRESENTING 2 MONTHS' RENT AND THE BALANCE OF A DAMAGE DEPOSIT OF $100, IF SUCH SUM WAS NOT PAID WITHIN 5 DAYS AFTER THE NOTICE. MR. BROWER ENGAGED AN ATTORNEY AND THE MATTER WAS SETTLED FOR $300 WHICH REPRESENTS RENT FROM OCTOBER 1 TO 17, 1969 ($119), FORFEITURE OF DAMAGE DEPOSIT ($100), AND TERMINATION OF LEASE SETTLEMENT ($81). MR. BROWER SEEKS REIMBURSEMENT OF $50, ATTORNEY'S FEE, IN ADDITION TO THE AMOUNT OF $181 PAID IN CONNECTION WITH THE LEASE TERMINATION SETTLEMENT. YOU DOUBT THE PROPRIETY OF REIMBURSING THE ATTORNEY'S FEE SINCE THE JOINT TRAVEL REGULATIONS, VOLUME 2, PARAGRAPH C 8353, DOES NOT LIST SUCH FEE AS AN ALLOWABLE EXPENSE IN CONNECTION WITH SETTLING AN UNEXPIRED LEASE.

THE LEASE CONTAINS A PROVISION REGARDING AMOUNTS PAYABLE IF THE LESSEE ABANDONS THE PREMISES WITHOUT AN EXPLANATION, BUT NONE REGARDING PAYMENTS IF THE LESSEE VACATES THE PREMISES WITH AN EXPLANATION. IN THE ABSENCE OF A LIQUIDATED DAMAGE PROVISION THE LESSEE WOULD BE LIABLE UNDER THE LAW OF THE STATE OF WISCONSIN WHERE THE PREMISES INVOLVED ARE LOCATED. UNDER SUCH LAW WHEN A TENANT VACATES THE LEASED PREMISES BEFORE THE END OF THE TERM, THE LANDLORD HAS A RIGHT TO ELECT TO ACCEPT THE SURRENDER AND TERMINATE THE LEASE OR TO ENTER AND TAKE POSSESSION FOR THE PURPOSE OF MITIGATING THE DAMAGES FOR WHICH THE TENANT IS LIABLE BECAUSE OF HIS BREACH OF THE LEASE. WHEN THE LANDLORD TAKES POSSESSION FOR THE PURPOSE OF MITIGATING THE DAMAGES, THE TENANT IS LIABLE FOR RENT DURING THE STIPULATED TERM UNTIL THE PREMISES ARE RENTED AGAIN PLUS THE REASONABLE EXPENSES OF PREPARING THE PREMISES FOR THE OCCUPANCY OF THE NEW TENANT. SEE ROSS V. SMIGELSKI, 166 N.W. 2D 243, 2D 185 (1969), AND CASES CITED THEREIN. ALSO, IN THAT CASE REASONABLE ATTORNEY'S FEES WERE ALLOWED TO THE EXTENT OF ONE-THIRD OF THE AMOUNT RECOVERED. IN THIS CASE THE LEASE PROVIDED FOR PAYMENT OF THE ATTORNEY'S FEES OF ONE-THIRD IN THE EVENT OF LITIGATION.

ASSUMING THE VACATED PREMISES WERE RENTED AGAIN EFFECTIVE NOVEMBER 1, 1969, IT APPEARS THAT THE TOTAL SETTLEMENT OF $181 REPRESENTS THE DAMAGES FOR WHICH THE TENANT IS LIABLE UNDER THE LAW OF THE STATE OF WISCONSIN. UNDER THE CIRCUMSTANCES RELATED WE BELIEVE IT WAS REASONABLE FOR THE EMPLOYEE TO HIRE AN ATTORNEY TO OBTAIN A SETTLEMENT OF THE MATTER. VIEW THEREOF AND SINCE THE FEE DID NOT EXCEED ONE THIRD OF THE AMOUNT OF THE SETTLEMENT WE WILL NOT OBJECT TO PAYMENT OF SUCH FEE.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.