IN THE SUPREME COURT OF THE STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC PARAVANT, INC., 5 DCA CASE NO. 5D a Florida Corporation and PARAVANT COMPUTER SYSTEMS, INC. A Florida Corporation, Petitioners; v. WILLIAM LANGFORD Respondent. / RESPONDENT WILLIAM LANGFORD S BRIEF ON JURISDICTION EDWARD C. TIETIG, ESQUIRE FLORIDA Bar No P.O. Box Malabar, Fl FAX NANCY ALLEN WEGENER, ESQUIRE MISSISSIPPI BAR No Admitted Pro Hac Vice 1703 Thousand Oaks Circle Austin, TX 78746

2 TABLE OF CONTENTS Table of Contents...ii Table of Citations...iii Statement of the Case...1 Statement of the Facts...1 Summary of the Argument... 2 Argument...3 Conclusion...6 Certificate of Service Certificate of Compliance ii

3 TABLE OF CITATIONS CASES Community Design Corp. V. Antonnel 459 So.2d 343 (Fla. 3d DCA , 5 Diaz v. Santafe Healthcare, Inc. 642 So 2d 765, 766 (Fla. 1 st DCA 1994)...3 Hingson v. MMI of Fla., Inc., 8 So.3d 398 (Fla. 2d DCA 2009)...3 Tampa Bay Publications, Inc. V. Watkins 549 So.2d Trytek v. Gale Industries, 3 So.2d 1194 (Fla. 2009)...2, 4, 5, 6 STATUTES Florida Statute , 2, 3, 4, 5, 6 Florida Statute , 5, 6 iii

4 STATEMENT OF THE CASE The Plaintiff/Respondent, William Langford (Langford) prevailed on both liability and damages in the trial court on his claim of breach of express employment contract for commissions on sales under Florida Statute The trial court exercised its discretion and denied attorney s fees for Langford because of the small recovery. Langford filed appeals for damages, on the grounds of the bifurcation of the trial and the faulty jury instructions, 5 DCA Case No. 5D , and on the denial of attorneys fees, 5 DCA Case No. 5D The Defendants/Petitioners Paravant, Inc. and Paravant Computer Systems, Inc., (Paravant) did not appeal the judgment of liability. The cases were consolidated and the fifth district court of appeal affirmed the damages award and reversed the award of attorneys fees. The appellate court reversed the trial court s decision on attorneys fees and denied Paravant s Motion For A Rehearing. Paravant filed a Petition For Review of the award of attorneys fees before this Court. Langford had previously filed a Petition to Invoke Jurisdiction in Case No. 5 D , which is pending. STATEMENT OF THE FACTS Langford brought suit against his former employer Paravant for breach of express employment contract for commissions on sales of a Paravant product under 2

5 Florida Statute Over Langford s objections, the trial on liability and damages was bifurcated and the jury reaching a decision on liability had no knowledge of the amount of sales or the amount of damages they were awarding, resulting in an award of damages far lower than Langford s demand. The bifurcation and the disputed jury instruction were the basis for Langford s appeal of the damages and these issues are intricately involved in the award of attorneys fees. The record has no evidence of Paravant s making any offer of settlement to Langford and certainly not one of $225,000 as claimed by Paravant. SUMMARY OF THE ARGUMENT The issue in this case is whether or not a case decided under Florida Statute applies to cases under Florida Statutes Section governs the award of attorneys fees for a construction lien and the award to the prevailing party is mandatory. In Trytek v. Gale Industries, 3 So.3d 1194 (Fla. 2009), the appellate court held that a trial court has the discretion to determine that neither party is the prevailing party. In Trytek, each party had prevailed on certain issues. The present case concerned an award of attorneys fees under , which governs cases for wages and/or commissions. The award of attorneys fees to the prevailing party is discretionary in order to ameliorate the disparate financial positions of an employer and a wage earner. Trial courts have always had the 3

6 discretion to award or deny attorneys fees under Trytek granted trial courts some discretion to determine if there was a prevailing party. ARGUMENT The fifth district court of appeal reversed the denial of attorneys fees by the trial court. The appellate court considered and addressed the legislative purpose in adopting this statute. The court cited Hingson v. MMI of Fla., Inc., 8 So.3d 398, 401 (Fla.2d DCA 2009), quoting as follows: The policy behind section is to provide a means to equalize the disparate positions of employees in attempting to collect for the fruits of their labors. Tampa Bay Publ ns.inc. v. Watkins, 549 So.2d 745, 747 (Fla. 2d DCA 1989). The fact that Hingson did not recover all the commissions she sought does not alter her status as prevailing party under section 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. Prior cases have also stated that the purpose of Diaz v. Santafe Healthcare, Inc. 642 So.2d 765, 766 (Fla. 1 st DCA 1994) (citations omitted) also stated the statute s purpose: At least one apparent purpose of , Florida Statutes, is to encourage attorneys to represent indigent persons in disputes for unpaid wages. 4

7 Tampa Bay Publications, Inc. v. Watkins, 549 So.2d at 747 discussed the policy behind the statute in depth: Additionally, we note there are certain legislative policy considerations embodied within In actions for unpaid wages, the legislature has specifically provided a means to equalize the disparate positions of employees in attempting to collect for the fruits of their labors. As in personal injury lawsuits, plaintiffs in actions for unpaid wages often do not have the financial means to obtain counsel on an hourly basis. If plaintiff s counsel were only limited to a contingent recovery rather than a reasonable court awarded fee under , attorney s would be discouraged from assuming stewardship of cases to recover unpaid wages unless substantial amounts of money were involved. Therefore, acts as a method by which to equalize otherwise disparate financial abilities of employees to retain counsel. By enacting , the legislature obviously intended to avoid the inequities which would result if an employee were required to pay one s own attorney s fees in actions for unpaid wages. (Citing Doyal v. School Board, 415 So.2d at 793. These cases are on point. Langford is a retired military officer pursuing a case against Paravant (later acquired by DRS), a multi-billion-dollar corporation with unlimited resources. No case under has denied attorneys fees to an employee who was awarded wages or commissions. No case under has denied attorneys fees because the amount recovered was small. Langford argued this point extensively in his Initial Brief in case No. 5D

8 The Opinion also cited Community Design Corp. v. Antonell, 459 So.2d 343, 346 (Fla. 3d DCA 1984), review denied, 469 So.2d 748 (Fla. 1985) in which the court held: Addressing CDC s second theory, we hold that a party prevails within the meaning of section when there is an affirmative judgment rendered, even if it is for less than the amount claimed and recovery is not had on all counts. Ct. Hub Cap Heaven, Inc. v. Goodman, 431 So.2d 323 (Fla. 3d DCA 1983): American Insulation of Fort Walton Beach. Inc. v. Pruitt, 378 So.2d 839 (Fla. 1 st DCA 1979); Peter Marich & Associates, Inc. v. Powell, 365 So. 2d 757 (Fla. 2d DCA 1978). (These cases reached the same holding in interpreting a similar provision of the Florida Statutes ). While Community Design Corp. mentioned for its agreement, the decision did not hold that a subsequent case under would controlled cases. Paravant states twice in its Petition that Langford rejected much larger settlement offers but Paravant failed to produce and the record fails to contain any such offers. Paravant has no documentation or evidence for its claim of a $225,000 offer made to Langford. No such offer was ever made. Paravant s Brief on Jurisdiction, page 1 and page 4. Paravant also argues that Trytek * changed the law and gave trial courts more discretion in determining who is the prevailing party in a statutory attorneys fee case. Paravant s Brief on Jurisdiction, page 2. Trytek did not change the law for 6

9 cases because the trial court had always had the discretion whether or not to award attorneys fees. Under , the award of attorneys fees is mandatory. Trytek held that a trial court could determine that neither party was the prevailing party when each party had prevailed on a significant issue. The building contractor prevailed on his lien and the homeowners prevailed on the setoff for repair of the damage done by the contractor. Trytek also held that the significant issues test and not the net judgment rule applied: The significant issues test of Prosperi applies to determine the issue of prevailing party.we thus quash the decision of the Fifth District and direct that this case be remanded to the trial court to reconsider the issue of attorneys fees consistent with this opinion. Id. at None of the seven subsequent Florida cases citing Trytek were cases. Trytek does not apply to this case because the two cases are governed by different statutes and contrasted by mandatory and discretionary awards of attorneys fees. Even if Trytek were controlling for cases, there is no conflict in the decision to invoke the discretionary jurisdiction of this Court. CONCLUSION Trytek is not precedential authority because and are different statutes with different standards for awarding attorneys fees. The Plaintiff/Respondent, William Langford requests that this Court deny the 7

10 Petition For Review Of A Decision of the Fifth District Court of Appeal which awarded attorneys fees to Langford. Nancy Allen Wegener, Esquire Mississippi Bar No Admitted to Florida Bar Pro Hac Vice 1703 Thousand Oaks Circle Austin, Tx (512) Edward C. Tietig, Esquire Fla Bar No P.O. Box Malabar, Fl (321) Fax (321)

11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail this day of December, 2010 to: Stephen T. Ball, Esquire, Holland & Knight, P.O. Box 1526, Orlando, Florida and Larry Klein, Esquire, Holland & Knight, 222 Lakeview Avenue, Suite 1000, West Palm Beach, Fl Edward C. Tietig, Esquire Fla Bar No P.O. Box Malabar, Fl (321) Fax (321) CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS I hereby certify that this Brief is being submitted in Times New Roman 14-point font, in compliance with the requirements of FRAP 9.210(a)(2). Edward C. Tietig, Esquire Fla Bar No P.O. Box Malabar, Fl (321) Fax (321)