Matter of Moriarty, Bankruptcy No. 81-2220.

• Decision Date: 25 January 1983
• Docket Number: Bankruptcy No. 81-2220.
• Parties: In the Matter of Michael S. & Ellen C. MORIARTY, Debtors.
• Court: United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Middle District of Florida

27 B.R. 73 (1983)

In the Matter of Michael S. & Ellen C. MORIARTY, Debtors.

Bankruptcy No. 81-2220.

United States Bankruptcy Court, M.D. Florida, Tampa Division.

January 25, 1983.

Darryl C. Casanueva, Port Charlotte, Fla., for debtors.

Diane L. Jensen, Fort Myers, Fla., trustee.

FINAL ORDER ON TRUSTEE'S OBJECTION TO LISTED EXEMPT PROPERTY

ALEXANDER L. PASKAY, Chief Judge.

THIS CAUSE came on for hearing upon the Trustee's Objection to Listed Exempt Property, filed by Diane L. Jensen, Trustee in Bankruptcy in the above-captioned Chapter 7 case. The Trustee objects to the exemptions listed by the Debtors as being in excess of the statutory exemption allowance of $1,000. Specifically, the Trustee objects to the exemption of personal property valued at $1,000 plus real estate commissions in the amount of $650, which are earned, but unpaid at the time of filing the Petition for Relief. The Trustee contends that the real estate commissions do not constitute wages and are not covered by the exemption provision of Fla.Stat. § 222.11.

By previous Order of this Court, finding that the matter was not subject to summary disposition, an evidentiary hearing was held. From the evidence adduced at that hearing, the Court finds and concludes as follows:

Michael S. Moriarty, the Debtor, is a licensed real estate agent working with Petchy realty. His compensation was based solely on commissions and was not dependent on the hours worked. Petchy Realty exercised no control over the progress of the Debtor's work except as to the final results. No withholding or social security tax was deducted from the Debtor's commission checks, nor were unemployment taxes paid by Petchy Realty on his earnings. The Debtor provided his own transportation while on the job, but received no reimbursement.

The sole issue for determination is whether the Debtor's compensation constitutes wages which are exempt by virtue of Fla.Stat. § 222.11, or whether it must be classified as compensation to an independent contractor and, therefore, not exempt as wages. Florida Statutes § 222.11 exempts monies due to any person who is a head of household for labor or services rendered by that person. The Statute, however, cannot be construed to cover those instances in which an independent contractor seeks exemption of monies due to him. Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931). See also, 13 Fla.Jur.2d Creditors' Rights and Remedies, § 11 (1982).

The Supreme Court of Florida in ...