Verchick v. Hecht Investments, Ltd.

• Decision Date: 05 April 2006
• Docket Number: No. 3D05-918.,No. 3D05-916.,3D05-918.,3D05-916.
• Citation: 924 So.2d 944
• Parties: Peter Andrew VERCHICK, et al., Appellants, v. HECHT INVESTMENTS, LTD., et al., Appellees.
• Court: Florida District Court of Appeals

924 So.2d 944

Peter Andrew VERCHICK, et al., Appellants, v. HECHT INVESTMENTS, LTD., et al., Appellees.

No. 3D05-918.

No. 3D05-916.

District Court of Appeal of Florida, Third District.

April 5, 2006.

Downs Brill Whitehead & Sage and David W. Brill and Joseph J. Rinaldi, Coral Gables; Ralph O. Anderson, Fort Lauderdale, for appellants.

Catri, Holton, Kessler & Kessler and Wesley L. Catri, Fort Lauderdale, and Raymond Holton, for appellees.

Before WELLS, CORTIÑAS, and ROTHENBERG JJ.

CORTIÑAS, Judge.

The appellants, Peter Verchick ("Verchick"), Phillip Bocelli ("Bocelli"), and his wife, Kathleen Bocelli, appeal from orders granting final summary judgments in favor of the appellees, Hecht Investments, Ltd. ("Hecht Ltd.") and Hecht Investments, Inc. ("Hecht Inc."), collectively referred to as the "Hecht entities."

On December 14, 1999, while working at the Naples-Fort Myers Greyhound Track ("Track"), Verchick and Bocelli were shot by a patron who was playing poker and who had been drinking alcoholic beverages from the bar at the Track. Verchick and Bocelli sued Hecht Ltd., Hecht Inc., Southwest Florida Enterprises, Inc. ("Southwest"), and Bonita-Fort Myers Corporation,¹ alleging in their complaints that (1) Hecht Ltd., Hecht Inc., and/or the other defendants owned and operated the Track, (2) the defendants had a duty to exercise reasonable care to provide reasonable safety and security for their patrons, customers, and employees, and (3) the defendants negligently breached the duty that they owed to Verchick and Bocelli.

Hecht Ltd. and Hecht Inc. denied the material allegations, and each entity moved for summary judgment on the ground that Verchick and Bocelli were not employed by them and, as such, owed no duty to Verchick or Bocelli. In support of their motions for summary judgment, Hecht Ltd. and Hecht Inc. filed the sworn affidavits of Leon Reitnauer ("Reitnauer"), the vice-president of the defendant entities. Hecht Ltd. also filed Reitnauer's deposition. In response, Verchick and Bocelli submitted their affidavits. The trial court granted final summary judgments, without prejudice, in favor of the Hecht entities. We affirm.

We review the trial court's entry of summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Summary judgment is proper if the court determines that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. Id. at 130. When considering a motion for summary judgment, the court must draw every possible inference in favor of the nonmoving party. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

Verchick and Bocelli contend that genuine issues of material fact exist regarding Hecht Ltd.'s and Hecht Inc.'s employer/employee relationship with Verchick and Bocelli. Verchick and Bocelli rely on the W-2 tax forms issued to them identifying Hecht Ltd. as their employer, as well as the payroll checks that they received, which were written by Hecht Ltd. and drawn on its bank account. See Southern Railway Co. v. Wood, 198 So.2d 834 (Fla. 1st DCA 1967)(holding that W-2 tax forms, payroll checks, and other evidence, were sufficient to sustain the jury's finding that the defendant was the plaintiff's employer); Villanueva v. Astroworld, Inc., 866 S.W.2d 690 (Tex.App.1993)(holding that W-2 tax forms raised a question of material fact as to whether the defendant was the plaintiff's employer).

However, under the facts of this case, the existence of W-2 tax forms does not create a disputed issue of fact concerning the existence of an employer-employee relationship between the plaintiffs and the Hecht entities. It is well-established that the main test in determining the existence of an employer-employee relationship is whether the employer has direction and control over the employee. Patton Seafood Co. v. Glisson, 38 So.2d 839 (Fla. 1949); Berrier v. Associated Indem. Co., 142 Fla. 351, 196 So. 188 (Fla.1940); Gidney Auto Sales v. Cutchins, 97 So.2d 145 (Fla. 3d DCA 1957). Since Hecht Ltd. and Hecht Inc. are the parties that moved for summary judgment, they bear the burden of proving that no genuine issues of material fact exist as to whether they employed Verchick and/or Bocelli. See Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)(holding that the party moving for summary judgment must prove the non-existence of genuine issues of material fact). Hecht Ltd. and Hecht Inc. must establish that the W-2 tax forms and payment of wages were insufficient to confer employer status upon them. They must also establish that they did not have direction and control over Verchick's and Bocelli's employment.

Although Verchick and Bocelli presented evidence of the W-2 tax forms and payroll checks, Hecht Ltd. and Hecht Inc. presented uncontroverted evidence establishing that Hecht Ltd. functioned as a payroll processor for Southwest. Hecht Ltd. and Hecht Inc. also presented evidence that Hecht Inc. was merely the general partner of Hecht Ltd. For example, Hecht Ltd. and Hecht Inc. presented Reitnauer's deposition and affidavits. Reitnauer consistently stated that Southwest owned and operated the business at the Track, and was the entity that hired,...