Bill Rivers Trailers, Inc. v. Miller

• Citation: 489 So.2d 1139,11 Fla. L. Weekly 1382
• Decision Date: 09 April 1986
• Docket Number: No. BG-315,BG-315
• Parties: 11 Fla. L. Weekly 1382, 11 Fla. L. Weekly 825 BILL RIVERS TRAILERS, INC., and Bill Rivers Corp., Appellant, v. Robert J. MILLER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1139

489 So.2d 1139

11 Fla. L. Weekly 1382, 11 Fla. L. Weekly 825

BILL RIVERS TRAILERS, INC., and Bill Rivers Corp., Appellant, v. Robert J. MILLER, Appellee.

No. BG-315.

District Court of Appeal of Florida First District.

April 9, 1986.

On Motion for Rehearing and in

Response to Amicus Curiae Brief

June 20, 1986.

Douglass E. Myers, Jr., of Smith & Myers, Jacksonville, for appellant.

Dennis Lanahan, Jacksonville, for appellee.

PER CURIAM.

Bill Rivers Trailers, Inc. (BRT) and Bill Rivers Corporation (BRC) appeal from a final judgment which awarded attorney's fees and costs to Robert J. Miller (Miller), plaintiff in the trial court. Appellants BRT and BRC present four points for our review: (1) whether the trial court erred in awarding attorney's fees to Miller pursuant to Section 448.08, Florida Statutes; (2) whether the trial court erred in not awarding statutory attorney's fees to BRT on Count I; (3) whether the trial court erred in finding that Section 448.08 attorney's fees may be awarded for the time of a legal assistant; and (4) whether the trial court erred in awarding Section 448.08 attorney's fees for time expended in establishing entitlement to attorney's fees. We affirm in part and reverse in part, and remand the cause for further proceedings.

In 1981 Miller was president and minority stockholder of Intermodal Equipment Manufacturing, Inc. Intermodal was in financial difficulty at that time. In order to resolve these financial problems, the stockholders sold Intermodal's assets to BRC. BRC then formed BRT as a subsidiary of BRC. On December 18, 1981, Miller and W.C. Rivers, Jr. (Rivers), president of BRC, executed an employment agreement whereby Miller was hired to work for BRT as president and general manager at a base salary of $2,500 per month. Paragraph nine of the agreement made provision for a bonus incentive or commission to Miller "in accordance with the terms and provisions of a separate agreement entered into between the parties which will be attached hereto ... and made a part hereof." Miller and Rivers never agreed on the amount of the commission.

On May 25, 1982, Miller submitted a compensation plan designed to be retroactive to December 18, 1981, which provided for commissions at the rate of 2% of net sales, or 25% of gross profit, these commissions to be "... payable on revenue for new trailers and equipment, remak programs or any retrofit producing programs, sold by Miller." The week following submission of his commission plan, Miller's employment was terminated.

On October 8, 1982, Miller filed a two-count complaint seeking (1) commissions for sale of trailers on behalf of BRT and BRC, and (2) damages in the amount of $1 million for damage to his standing in the business community. The initial complaint was dismissed on December 10, 1982; an amended complaint was dismissed on May 3, 1983; and after submission of the second amended complaint BRC was dismissed as a party. On July 18, 1983, BRT filed a counterclaim alleging that Miller failed to pay a capital contribution of $20,000, and "failed and refused to implement company policies." Miller then filed a motion for leave to amend Count II of the second amended complaint, and motion to dismiss the counterclaim. On August 17, 1983, Count II of the third amended complaint was dismissed with prejudice, as "insufficient to state a cause of action." The dismissal was reversed by this court in Miller v. Bill Rivers Trailers, Inc., 450 So.2d 334 (Fla. 1st DCA 1984), with the explanation that although Miller's complaint did not allege a specific amount or method of determining the appropriate commission, relief in the form of a motion for a more definite statement could be obtained, pursuant to Florida Rule of Civil Procedure 1.140(e).

Between August 1, 1984, and October 16, 1984, the parties filed numerous motions and pleadings, culminating on October 16 with Miller's motion to amend the third amended complaint to include a prayer for attorney's fees pursuant to Section 448.08, Florida Statutes. On October 17, 1984, the trial court granted Miller's motion and the fourth amended complaint was filed. In addition to the parties' respective pleadings, Miller filed several requests for production of documents. Each request was met by an objection, with a supporting memorandum. Concomitantly, each objection was opposed with a motion to compel, with a supporting memorandum.

Also in October 1984, the parties agreed to submit the question of commissions allegedly due Miller to a 3-member arbitration panel, composed of persons active in the business of trailer sales in the Jacksonville area. On October 19, 1984, the parties, through respective counsel, executed an arbitration agreement which set forth arbitration guidelines, and provided that in the event of an award--the court should decide "the interest, costs and attorney's fees to be assessed, if any."

The arbitration hearing was held on November 27, 1984. The arbitrators determined no commission was due pursuant to Count I of the complaint, but determined that a commission was due on the Count II claim for commission on the sale of refrigerated trailers. The arbitrators' determination was unanimous.

On February 1, 1985, Miller filed motions with supporting affidavits, for an award of attorney's fees and costs. On February 11, 1985, BRT and BRC filed their motion for attorney's fees and costs as "the prevailing party as to Count I of the Complaint." Numerous memoranda were submitted on the attorney's fee issue. At the hearings, counsel for BRT and BRC argued, among other things, that a fee award should not include time spent on the case by a legal assistant and that time spent in preparation of Count I should not be included in the award.

On April 10, 1985, the trial court entered final judgment finding that (1) Miller was entitled to an award of attorney's fees and costs as the prevailing party as to Count II; (2) BRT was not a prevailing party as to Count I and not entitled to recover attorney's fees or costs; (3) the work performed by the legal assistant was necessary to the litigation, was substantive rather than clerical in nature, and was recoverable by Miller as part of and in addition to the attorney's fees awarded; and (5) Miller was entitled to recover fees for the time expended by his attorney and the legal assistant subsequent to arbitration in litigating entitlement to and the amount of fees and costs to be awarded.

On the independent contractor issue, BRT and BRC contend that Miller's relationship with BRC with regard to the Count II claim for commission on the sale of thirty-one refrigerated trucks was that of an independent contractor and not that of an employee. "[A]t common law, the four elements considered in making a determination of whether a master and servant relationship exists are (1) the selection and engagement of the servant, (2) the payment of wages, (3) the power of dismissal, and (4) the control of the servant's conduct." Pearson v. Harris, 449 So.2d 339, 342 (Fla. 1st DCA 1984). Ultimately, a determination that an individual is or is not an independent contractor "turns on the power to control." Pearson, quoting Brewer v. Cueto, 379 So.2d 1322, 1323 (Fla. 1st DCA 1980), cert. denied 388 So.2d 1111 (Fla.1980).

After a careful review of the record and consideration of the elements involved in determining independent contractor or employee status, we conclude that there was no error in the determination that Miller was not an independent contractor. First, it is undisputed that Miller was employed by BRT when he arranged the sale of thirty-one refrigerated trailers owned by BRC. As to the second element, payment of wages--or in this case, commissions--Miller recovered $28,000 as commission on the sale through the arbitration process. As to the third element, power of dismissal--Miller was fired by BRT, a subsidiary of BRC, and his termination by the first entity effectively terminated his business association with the second entity. In Cantor v. Cochran, 184 So.2d 173, 174 (Fla.1966), the supreme court said "the most telling factor establishing control" is the power to fire without the risk of a suit for breach of contract." As to the fourth element, control of the servant's conduct--the record indicates that Miller was required to submit expense reports to BRC and that BRC had the right to control the manner of the sale, although Miller was left free to structure the sale without significant interference from BRC management.

We also find the trial court properly applied the criteria set forth in Florida Bar Code of Professional Responsibility, DR 2-106(B), to decide the attorney's fee award in this case. Implicit in the attorney's fee awarded is the trial court's determination that the prosecution and investigation of Counts I and II of the complaint were so intertwined that the two could not be divided for billing purposes. Our perusal of the record leads us to the same conclusion, and we find no error in the trial court's award. Absent an abuse of discretion, an award of attorney's fees will not be disturbed on appeal. Lucas v. Evans, 453 So.2d 141 (Fla. 1st DCA 1984).

With regard to point two, we find the trial court's determination that BRT was not the prevailing party as to Count I is in keeping with case law to the effect that a plaintiff who obtains an affirmative judgment on one count in a multicount complaint is the prevailing party. Hendry Tractor Company v. Fernandez, 432 So.2d 1315 (Fla.1983). Under this standard, BRT was not a prevailing party as to Count I, and was not entitled to attorney's fees under Section 448.08, Florida Statutes.

With respect to the third point stated by appellant, supra, we conclude that the trial court erred in awarding "attorney's fees" for the time of a legal assistant employed by Miller's attorney. The statute provides that in an action for unpaid wages:

The court may award ... costs of the...