Proposed Final Judgment Submitted

27 Jul 2017

Proposed Final Judgment Submitted

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The below final judgment was submitted after a recent trial. The below Order has not been grated by the Court, it is a proposed Order which may or may not later be granted.  Should this be granted, Plaintiff will file another motion like this one to obtain fees.

PROPOSED FINAL JUDGMENT

THIS MATTER came before the Court on July 18, 2016 via a bench trial. Plaintiff sued Defendant for unpaid commissions. After conducting the trial, weighing the evidence, evaluating the credibility and demeanor of the witnesses and testimony, reviewing the exhibits, and hearing argument from counsel, the Court finds by a preponderance of the evidence that Defendant did not pay Plaintiff all sums due under written commission agreements. The Court also finds that Defendant did not prove any of its affirmative defenses. Accordingly, IT IS ORDERED AND ADJUDGED:

FINDINGS OF FACT

1. Plaintiff, Deverson Ronald, seeks unpaid commissions from his prior employer, SUPERBILL4, Inc. per two written agreements. The first is dated November 5, 2012 (referred to herein as the “Lead Technician Agreement”). See Plaintiff’s Trial Exhibit 1.[1]

2. Prior to the entry of the Lead Technician Agreement, Plaintiff worked as an hourly employee for Defendant. See Exhibit 53. In conjunction with the execution of the Lead Technician Agreement, Defendant ceased paying Plaintiff hourly and instead put him on a commission salary. See Id. At the same time, Plaintiff was promoted. Id. (at the end of 2012 “the lead technicians were promoted to crew chief and commission with hopefully more concern about the total performance of the company.”). At the end of his employment and for a very short period of time, Defendant demoted Plaintiff and changed his compensation back to an hourly employee. Id. (“He was written up numerous times and in April of 2014 we demoted Deverson back to a lead technician with hourly compensation” . . . “After his demotion Deverson was making $12 per hour”).

3. The Lead Technician Agreement provided for a commission structure which can generally be described as the following: 30% for “direct work” (carpet cleaning, etc.), 15% for “add-ons/up sales” for direct work and 25% for water, fire, mold, bio-hazard, crime scene. See Exhibit 1. After the application of the above percentages, certain deductions were taken. Id.

4. Per the Lead Technician Agreement, Plaintiff’s duties required filing paperwork, customer service, managing the use of operating supplies, ensuring National Account paperwork is completed and deadlines are met, monitoring jobs daily, handling “all communication with [the] customer and insurance adjuster[s]”, and other work relative to remediating floods, mold and other disasters. Id. Plaintiff was docked 1% of his commission or $100 for incomplete paperwork, missing quality of work or customer service issues. Id. Plaintiff’s work as Lead Technician involved training. Id. Various expenses were at Plaintiff’s personal expense, such as travel time, food, fuel and lodging associated with jobs. Id. If the job had to be re-serviced, such as lack of customer satisfaction, Plaintiff would have to cover those costs. Id.

5. On January 9, 2013, an addendum to the Lead Technician Agreement was executed (hereinafter referred to as the “Addendum”). See Exhibit 2. The Addendum modified the deductions for the cost of operating supplies. Id. Instead of deducting the costs of those supplies (such as tape, filters, towels and bags), a basic percentage deducted for jobs such as fire, mold and water (5%, 6% and 4%). Id. Thus, the commissions earned were changed to the following: 30% for “direct work” (carpet cleaning, etc.), 15% for “add-ons/up sales” for direct work, 21% for water, 20% for fire, 19% for mold and 25% for bio-hazard and crime scene.

6. Defendant attempted to modify the commission agreement again on March 19, 2014. Exhibit 61. However, the parties agreed via a stipulation between counsel at trial that this amendment is moot as the jobs performed by Plaintiff began before the attempted modification. Moreover, Plaintiff did not assent to this attempted modification.

7. At trial, Plaintiff introduced substantial proof of the work he performed for Defendant, the jobs he worked on and the customers he serviced. This included many invoices, job records, handwritten documents, and a spreadsheet summarizing his unpaid commissions in the amount of $23,271.23. See Exhibit’s 3-49. He also testified about the jobs and work he performed for Defendant and its customers.

8. Defendant’s witnesses testified that Defendant had to wait until it was paid by its customers before it could pay Plaintiff his commissions; this stipulation was also expressly written into the Lead Technician Agreement. See Exhibit 1 (Lead Technicians “are paid on cash collected when the job is paid in full, however the timing of commission payout is TOTALLY at the discretion of the company”, emphasis in original). However, Defendant failed to introduce any evidence as to when it was paid by its customers for any of the jobs in dispute. It failed to introduce any evidence to prove the date when Plaintiff should have first been paid commissions for any of the jobs in dispute.

9. After it realized Plaintiff was due a significant amount under the commission agreements, and to increase its own profits, Defendant refused to pay Plaintiff the commission percentages it previously promised in the Lead Technician Agreement and Addendum.

10. Plaintiff complained on many occasions that he was not being paid proper commissions by Defendant. He also asked for proof of Defendant’s claimed deductions from his commissions due. Defendant offered no documentary evidence at trial to prove any of its claimed deductions, and introduced no documentary evidence of its own.

ANALYSIS

11. Defendant and Plaintiff agreed that he would perform work and be compensated per two written commission agreements (one which was simply an addendum to the other, thus they could fairly be characterized as one agreement which was amended). After the work had been performed under those commission agreements, Defendant attempted to verbally and retroactively change the amounts due Plaintiff to increase its own profits.

12. When the compensation agreements are compared to the documents introduced at trial and testimony received, Plaintiff proved his damages by a preponderance of the evidence. Those damages, which are calculated precisely in Exhibit 3, equal at least $23,271.23.

13. Defendant did not prove any of the deductions it claimed should be deducted from amounts owed Plaintiff. It introduced no documentary evidence of any deductions, although testimony at trial indicated it had such documents within its possession or control.

14. Defendant also failed to prove by a preponderance of the evidence its statute of limitations affirmative defense. In Broward Builders Exch., Inc. v. Goehring, 231 So.2d 513, 514 (Fla. 1970) the supreme court stated that the term “wages” typically refers to “`compensation for services by the day or week.'” The Court in Gohring noted that wages per section 95.11(4)(c) are often defined in the context of compensation for services pay given for labor at “short, stated intervals as distinguished from salaries or fees.” Id. The court went on to note that there are special problems in preserving evidence with respect to hourly wage claims, problems which do not generally exist in salary actions, making the distinction a logical one. Id. at 515. Two cases from the First District have cited Goehring in the context of actions for unpaid commissions and found that such actions are not wages as contemplated by section 95.11(4)(c). See Richey v. Modular Designs, Inc., 879 So. 2d 665, 666 (Fla. 1st DCA 2004) (claims for unpaid commission are subject to a four-year statute of limitations); Moneyhun v. Vital Indus., Inc., 611 So. 2d 1316, 1321 (Fla. 1st DCA 1993) (finding a suit by a sales manager/consultant for unpaid compensation based on a percentage of sales is not an action for wages under section 95.11(4)(c) because the term ‘wages’ typically refers to “`compensation for services by the day or week’” for purposes of the statute of limitations).[2]

15. In the instant case, the compensation agreement between Plaintiff and Defendant was that of a commissioned employee. See Exhibits 1 and 2. Thus, it is not barred by a 2-year statute of limitations under the First District’s decisions in Richey and Moneyhun.

16. Additionally, Plaintiff did not work for Defendant in “short, stated intervals;” he worked for it over at least a 4-year period. He received a promotion when he entered into the Lead Technician Agreement and went from an hourly position to strictly commissions. The work he did was not simple manual labor and he was not paid hourly as a Lead Technician. He was required to perform many types of services such as customer interactions, dealing with insurance adjusters, filing paperwork, managing supplies and account deadlines are satisfied. Plaintiff has both a college education and specialized training. Plaintiff had unreimbursed expenses for jobs that had to be re-serviced and other unreimbursed expenses relative to his work. There is nothing in the commission agreements that indicates Plaintiff should be barred by the 2 year limitations period per section 95.11(4)(c).

17. Finally, Defendant did not bear its burden to prove when its alleged statute of limitations defense should begin running for each of the jobs at issue; it failed to prove the limitations ran before Plaintiff filed this lawsuit for any of the jobs. Defendant and its employees testified at trial that the commissions could be paid at any time, and claimed it had to receive payment itself from the customer before it paid Plaintiff. See also Exhibit 1. However, Defendant introduced no evidence as to when it received payment from its customers for each job at issue in this lawsuit. As referenced in Joseph v. Okeelanta Corp., 656 So.2d 1316, 1319 (Fla. 4th DCA 1995), the statute of limitations does not simply run from the last date of the employee’s service:

We find merit, however, in appellants’ argument that the trial court erroneously determined that the applicable limitations period began to run on the date of termination of each employee’s service. Although appellants’ entitlement to the wage guarantee may have arisen as of the dates of their respective terminations, the critical date upon which the running of the statute of limitations commenced was the date on which the contractual breach occurred. Thus, we agree with appellants that their claims against appellees did not ripen until appellees failed to honor their obligations under the wage guarantee provision.

(citations omitted). Here, even if the limitations period was 2 years, it would not begin run until at least Defendant was paid for each commissioned job. Defendant had the burden to prove this timing as to each job at issue in this case, but did not. See also Leon County v. Smith, 397 So.2d 362, 364 (Fla. 1st DCA 1981) (affirming a trial court’s ruling that the defendant failed to prove the statute of limitations defense and that defendant did “not demonstrate[] that the cause of action accrued earlier so as to give rise to the statute of limitations.”)

18. Regarding attorney’s fees and costs, Florida Stat. Sec. 448.08 authorizes an award to the prevailing party the costs of the action and a reasonable attorney’s fee. “Unpaid commissions are considered wages for purposes of section 448.08.” Langford v. Paravant, Inc., 48 So. 3d 75, 77 (Fla. 5th DCA 2010). Plaintiff is due attorney’s fees even if he recovers less than the amount claimed in the attached. See Higson v. MMI of Fla. Inc., 8 So. 3d 398, 401 (Fla. 2nd DCA 2009) (“Although she recovered less than the amount that she claimed, she established, and the trial court found, that the Employers breached the employment agreement and that she was entitled to damages and her statutorily authorized attorney’s fees as a result of that breach.”). Here, the Court finds that an award of attorney’s fees and costs are proper in favor of Plaintiff pursuant to section 448.08.

AWARD

19. IT IS HEREBY ORDERED AND ADJUDGED that judgment is entered in favor of Plaintiff, Deverson Ronald, and against Defendant, SUPERBILL4, Inc. in the sum of $23,271.23 which shall bear interest at the rate prescribed by Florida Statute § 55.03 from the date of entry of this judgment, for which sum let execution issue. Moreover, the Court finds that Plaintiff is entitled to an award of attorney’s fees and costs per Fla. Stat. Section 448.08. Plaintiff is also entitled to taxable costs as the prevailing party in this lawsuit. The Court expressly reserves jurisdiction to determine the amount of the attorneys’ fees and costs due Plaintiff, to award the same, and to determine any and all other issues regarding attorney’s fees and costs due Plaintiff in this case from anyone (including but not limited to entitlement to Plaintiff’s for fees and costs via any other statutory and common law authority).

20. IT IS HEREBY FURTHER ORDERED AND ADJUDGED that SUPERBILL4, Inc., as judgment debtor, through its owners and/or managers complete under oath Florida Rule of Civil Procedure Form 1.977 (Fact Information Sheet), including all required attachments, and serve it on the Plaintiff’s attorney at the address provided herein, within 30 days from the date of this judgment, unless this judgment is satisfied or post-judgment discovery is stayed, and deliver the same to counsel for the Plaintiff. This Court expressly reserves jurisdiction to enter further orders that are proper to compel the judgment debtor and/or its officers/managers to complete Form 1.977, including all required attachments, and serve it on the Plaintiff’s attorney and to consider an additional award of attorneys’ fees and costs necessary for the collection of this Final Judgment.

DONE AND ORDERED in chambers at Gainesville, Alachua County, Florida on this ______ day of _________, 2017.

  1. From here on, all the Plaintiff’s Trial Exhibits will simply be referenced at an “Exhibit.”
  2. This is the conclusion reached in other Districts as well, not just the First District. See Iamaio v. Kite, 531 So. 2d 400, 401 (Fla. 2d DCA 1988) (compensation in the form of commission does not fall within the category of wages in the context of Fla. Stat. 95.11(4)(c)); Newmeyer v. Se. Mortg. Co., 581 So. 2d 963, 964 (Fla. 3d DCA 1991) (holding a regional manager’s breach of contract action for the recovery of incentive compensation is not governed by section 95.11(4)(c)); Barnes Surgical Specialties, Inc. v. Bradshaw, 549 So. 2d 1189, 1191 (Fla. 2d DCA 1989) (concluding that a salesman’s suit for unpaid commissions does not fall within the category of wages for purposes of section 95.11(4)(c))
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Massey & Duffy has existed since October, 2003. We focus exclusively on civil litigation, including wrongful death, overtime cases, car and trucking accidents, insurance claims, breach of contract, general employment law, and serious personal injury lawsuits.