Scott v. Fagan
| Decision Date | 24 July 1984 |
| Docket Number | 83-164,Nos. 83-163,s. 83-163 |
| Parties | John E. SCOTT, Jr., Appellant (Defendant), v. Robert F. FAGAN, Appellee (Plaintiff). Robert F. FAGAN, Appellant (Plaintiff), v. John E. SCOTT, Jr., Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Harry E. Leimback, Casper, for John E. Scott, Jr.
Curtis L. Harden, Casper, for Robert F. Fagan.
Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.
Robert F. Fagan brought this action against John E. Scott, Jr. to recover unpaid wages earned as a handyman in the repair and renovation of various rental properties owned by the defendant. In addition, Fagan claimed damages which had allegedly been incurred as a result of Scott's failure to contribute to Wyoming's unemployment fund and also sought to compel Scott to pay social security taxes on all earned wages. Finally, Fagan asked the court to award punitive damages and reasonable attorney's fees, because of defendant's willful and fraudulent conduct in failing to comply with state and federal employment security laws.
In defense of these claims Scott urged that Fagan worked not as an employee but as an independent contractor who had received full compensation for his services under various contracts. Scott counterclaimed Following a trial to the court, the district judge found Fagan to be an employee and awarded damages for lost unemployment benefits in the sum of $1,859. 1 However, the court was unable to determine whether any claimed wages remained unpaid, because of the confused state of the records and the substantial number of documented payments made by Scott to the plaintiff. The court awarded punitive damages of $500, but declined to compensate Fagan for attorney's fees or to direct the defendant to pay social security taxes. The court further determined that Fagan's award was subject to a set-off in the amount of $1,535 for unpaid rent plus $17 for gasoline erroneously charged to Scott's account. Both parties have appealed. We will reverse the award of punitive damages and affirm the judgment in all other respects.
for past-due rent, which liability the plaintiff conceded at trial.
Robert Fagan and his family rented housing from John Scott, who owns various rental properties in Casper, Wyoming. During the summer of 1981, Fagan approached Scott and offered to paint some of his property in exchange for past-due rent. Scott agreed and, upon the successful completion of that project, hired Fagan to repair and renovate the rental units and to maintain the trucks and other equipment. From August 17, 1981, to March 18, 1982, Scott compensated Fagan at the rate of $5 per hour. On March 19, 1982, Fagan's pay increased to $6 per hour and remained at that level until he terminated his employment on November 9, 1982.
Scott assigned work to Fagan on a daily basis, frequently visited Fagan on the job, and transported him from one project to another. Scott provided all materials, tools, and equipment and authorized charges by Fagan to Scott's accounts with equipment and building supplies dealers. Fagan worked exclusively for Scott, except for assisting friends with minor projects, and often expended more than 40 hours on the job each week.
In April, 1982, Scott purchased and paid for business cards, a business stamp, and invoice books, all purporting to represent Fagan as an independent contractor in the renovation and repair business. Thereafter, when Fagan wished to be paid his wages, Scott would make out an invoice for services performed on a contract at one of his rental addresses. He would then direct Fagan to acknowledge receipt of the specified sums by signing the invoice.
Early in November, 1982, Scott advised Fagan that no future earnings would be paid until Fagan settled his rent arrearages. When Fagan failed to receive his wages due on November 9, he left his job and applied for unemployment compensation. Since Scott had made no contributions to the state employment security fund, Fagan was denied unemployment benefits. This suit followed.
At trial Fagan produced his daily record books, indicating the number of hours worked and the compensation received from Scott. According to these records, Fagan worked hours for which he received no payment. Scott's evidence consisted of numerous canceled checks endorsed by Fagan and the receipted invoices. These documents, for the most part, do not correspond to the daily records kept by Fagan. Many of the checks bear the notation "Advance" or "Advance on [specified] Contract." Some checks indicate that they were issued to reimburse Fagan for expenses or to compensate him for a separate trash-hauling contract. As a result of this state of confusion, the trial judge could not determine with certainty that Fagan was entitled to back wages.
Scott appeals the court's award of damages for lost unemployment benefits and the award of punitive damages. Fagan cross-appeals the denial of unpaid wages
and attorney's fees. We will affirm the judgment with the exception of the award for punitive damages.
Appellant Scott presents the following issues for review:
Cross-appellant Fagan raises these questions:
"Whether the District Court had jurisdiction to make the initial determination that an employer/employee relationship existed in the context of unemployment compensation."
Scott urges this court to invoke the doctrine of primary jurisdiction and overturn the trial court's determination of the parties' employment relationship, on the ground that the State Employment Security Commission, not the district court, has exclusive original jurisdiction to decide employment-status questions in the context of unemployment compensation. 2 The United States Supreme Court described the appropriate application of the primary-jurisdiction doctrine in Far East Conference v. United States, 342 U.S. 570, 574-575, 72 S.Ct. 492, 494-495, 96 L.Ed. 576 (1952):
Thus, the rationale for the primary-jurisdiction rule rests in the desire for uniformity of regulation and the availability of a legislatively established body of experts. We approved of the doctrine and its rationale in Kearney Lake, Land & Reservoir Company v. Lake DeSmet Reservoir Company, Wyo., 487 P.2d 324 (1971), holding that the State Board of Control, rather than the district court, should initially determine the question of abandonment of water rights.
In the instant case, appellant attempts to invoke the doctrine of primary jurisdiction for the first time on appeal. We have said repeatedly that we will not consider an issue raised for the first time here unless it concerns the court's jurisdiction or addresses a fundamental right. Pine Creek Canal No. 1 v. Stadler, Wyo., 685 P.2d 13 (1984); ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981); City of Rock Springs v. Police Protection Association, Wyo., 610 P.2d 975 (1980). Since the primary-jurisdiction doctrine rests on the principle of consistent and knowledgeable decision-making and concerns not at all the court's subject-matter jurisdiction or power to hear the case, we decline to address this issue.
We note in passing, however, that courts have historically determined the existence of the employee-employer relationship and, therefore, possess sufficient experience and capability to rule on such matters.
" * * * The desirability of court abstention diminishes where the court faces factual issues of the sort that it considers routinely." United States v. Zweifel, 508 F.2d 1150, 1156 (10th Cir.1975), cert. denied 423 U.S. 829, 96 S.Ct. 47, 46 L.Ed.2d 46.
See also People v. Fremont Energy Corporation, Wyo., 651 P.2d 802 (1982).
"Whether the Unemployment Compensation Statutes require further determinations to establish an entitlement to benefits and did the District Court err in not making these determinations."
Section 27-3-311(a)(i), W.S.1977, of the Employment Security Law predicates an award of unemployment compensation upon a finding that an applicant who voluntarily left his work did so with good cause. That section provided at the time pertinent here:
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