Mr. Charles Van Der Wiele worked for David Foley, Inc. from August 2, 2007 through October 2007. Mr. Van Der Wiele worked on a salary and commission basis. On October 2007, Mr. Van Der Wiele’s employment ended, but Mr.David Foley refused to pay Mr. Van Der Wiele his owed wages in the form of commissions. Mr. David Foley refused to pay despite many many attempts by Mr. Van Der Wiele to resolve the case in amicable terms. Mr. Van Der Wiele had no choice but to sue David Foley, Inc. for his commissions.
On September 2009, Mr. Van Der Wiele prevailed in a Jury trial and was awarded all his commissions owed. Despite a unanimous verdict, Mr. Foley still refused to pay Mr. Van Der Wiele what he was owed and thereafter appealed.
We are currently awaiting oral arguments.
Below is the answer brief we filed on behalf of Mr. Van Der Wiele. The facts contained in the brief are directly from the trial transcripts and Court records. In our opinion, it depicts a stubborn employer who is hellbound to deprive his employees of his earned commissions. The Jury of his peers already ordered him to pay. Hopefully, the Appellate Court will agree and Mr. Van Der Wiele can finally receive justice.
Appellee’s Answer Brief:
In this brief, Mr. Charles Van Der Wiele will also be referred to as Appellee or Plaintiff, as applicable. David Foley, Inc. will also be referred to as Appellant or Defendant, as applicable.
Citations to the record on appeal will be made by the letter “R”, and the appropriate Volume, “Vol.” and the appropriate page or pages as “Pg.” or “Pgs.” and the appropriate line number as “L”.
STATEMENT OF THE CASE
Appellee adopts Appellee’s Statement of the Case with the following two Caveat: While the Court did dismiss Count I, it did so with stipulation by the parties. In effect, the Court, merged Counts I and II because, in part, they were seeking the same damages. This is fully set forth in Part V of this Answer Brief.
SUMMARY OF THE ARGUMENTS
Motion for Directed Verdict:
The Trial Judge’s rulings to deny Appellant’s request for a directed verdict must be affirmed. The Jury was properly instructed and had all the evidence necessary to determine the damages that were awarded for Appellant’s breach of contract.
1. The written document was a contract because it was negotiated for, executed, and then performed upon. After the contract was executed, there was no future condition that needed to be met in order for there to be a contract.
2. The contract was not missing any essential terms. The contract specifies that a 5% commission would be earned by Mr. Van Der Wiele upon closing a job. An actual example was put into the contract which explained to Mr. Van Der Wiele and to Mr. Foley exactly how Mr. Van Der Wiele’s commission would be calculated.
3. Clearly, there was a meeting of the minds between the parties, because the contract was drafted by Appellant, was negotiated by the two parties for over an hour and a half, and then it was executed by both parties, and then, it was even performed by both parties.
Motion for New Trial:
The Trial Court correctly denied Appellant’s request for a new trial. The Jury Instructions and Verdict form were legally accurate and more than legally sufficient to advise the Jury. Moreover, Appellant failed to object to many of the issues it now has with the Verdict Form and with the Jury Instructions.
Motion for Attorney Fees:
Attorney fees are warranted to a prevailing party in an unpaid wage claim under Florida Statute 448.08. Even if Appellee did not specifically request attorney fees under one of the Counts, the Court in effect merged the applicable Counts, the parties stipulated to attorney fees being an issue in the joint pre-trial statement and at trial and Appellant had ample knowledge that Appellee was seeking fees. As the prevailing party, Appellee is statutorily entitled to attorney fees.
STATEMENTS OF FACTS
Mr. Charles Van Der Wiele began work for David Foley, Inc. in August, 2007. (R. Vol. 4, Pg. 36, L12-13.) Mr. Van Der Wiele’s duties were that of an “estimator.” (R. Vol. 4, Pg. 40, L1-8.) Mr. Van Der Wiele met with clients, estimated the potential job, and entered into an agreeable contract between David Foley, Inc. and the clients. (R. Vol. 4 Pg. 40, L. 1-8.) Mr. Van Der Wiele worked for David Foley, Inc. from August 1, 2009 through October 2, 2009. (R. Vol. 4, Pg. 81, L21-22.) During that time period, Mr. Van Der Wiele estimated, designed and discussed upcoming projects with three clients, Mrs. Arnette, Mr. and Mrs. Purtell and Mr. and Mrs. Santiago. (R. Vol. 4, Pg. 40, L13-19.) Specifically, Mr. Van Der Wiele helped the clients design and discuss room by room what the client wanted to do, came up with suggestions, saw what amount of room the clients had or how much space they needed, what they had in mind for kitchens, redesigned cabinets and/or remodeled existing cabinets. (R. Vol. 4, Pg. 41, L6-15.) David Foley, Inc. stated he was aware that Mr. Van Der Wiele held no other licenses that are required for different aspects of construction work: “contract[ing],electrical, mechanical, HVAC, some of the others” and was not a licensed contractor who could oversee jobs. (R. Vol. 4, Pg. 80, L14-16.)
Mr. Van Der Wiele’s base salary at David Foley, Inc. was $500.00 per week. (R. Vol. 4 Pg. 42, L21.) Mr. Van Der Wiele and David Foley, Inc. discussed among them, however, that Mr. Van Der Wiele had made $1000.00 per week with his previous employer and had a desire in his new position to match that salary. (R. Vol. 4, Pg. 86, L4-6.) In order for that to happen, Mr. Van Der Wiele and David Foley, Inc. needed to arrive at a way for Mr. Van Der Wiele to start with his base salary of $500.00 per week and to find a scenario wherein Mr. Van Der Wiele would receive a commission for his services. (R. Vol. 4 Pg. 86, L10-16.) David Foley, Inc. researched the subject of commissions from different sources: the National Association of Homebuilders and other contractors, both local and nationwide. (R. Vol. 4, Pg. 86, L16-19.) The commission was intended to be wages over and above Van Der Wiele’s weekly flat salary in order to match what he was making with his former employer (R. Vol. 4, Pg. 110, L1-6) and to motivate Mr. Van Der Wiele to sell more for David Foley, Inc. “as an incentive.” (R. Vol. 4, Pg. 83, L19-20; R. Vol. 4, Pg. 85, L5.) David Foley, Inc. testified, “We had to come up with a scenario where he could feasibly make [$1,000 per week].” (R. Vol. 4, Pg. 86, L6-9.) David Foley, Inc. informed Mr. Van Der Wiele, “[t]he industry standard is between four to seven percent (4-7%). (R. Vol. 4, Pg. 43, L14-16.) David Foley, Inc. and Mr. Van Der Wiele negotiated the commission, and Mr. Foley then stated “I had more in mind the figure of 5%.” (R. Vol. 4, Pg. 43, L18-19.) Mr. Van Der Wiele and David Foley, Inc. mutually agreed upon a figure of a 5% commission to be paid to Mr. Van Der Wiele for all the jobs he signed up. (R. Vol. 4, Pg. 43, L23-25.)
It was Mr. Van Der Wiele’s job to “seal the deal” with the clients. (R. Vol. 4, Pg. 44, L2-4.) Mr. Van Der Wiele was given the leads and he called clients Purtell and Arnette to discuss various aspects of the job regarding what they wanted to do, “they wanted to do something in the bedroom, in the kitchen, in the bathrooms, [I asked the client to] give me some ideas.” (R. Vol. 4, Pg. 44, L6-16.) Afterwards, Mr. Van Der Wiele would return to the office, work on the ideas and meet with the clients. (R. Vol. 4 Pg. 44, L17-18.) Mr. Van Der Wiele would meet with the clients many times. (R. Vol. 4, Pg. 44, L17-20.)
The contract (R. Vol. 6, Exhibit 1.) between Mr. Van Der Wiele and David Foley, Inc. showed at the top figures of a 4 to 7% rate of commission with parentheses around a figure of 5% that was added by David Foley, Inc. (R. Vol. 4, Pg. 45, L17-23; R. Vol. 4, Pg. 47, L3-6, also see: R. Vol. 6, Exhibit 1.) Both Mr. Van Der Wiele and David Foley, Inc. initialed and exercised the contract, using the Arnette job as an example. (R. Vol. 4, Pg. 46, L1-6.) The 5% commission rate was based on the gross amount of the contract, $196,000.00. (R. Vol. 4, Pg. 47, L9-11.) David Foley, Inc. stated the 5% commission rate at the time the contract was drafted would have been for anyone in an estimator’s position and admitted that at the time the contract was signed, Mr. Van Der Wiele was in that position. (R. Vol. 4, Pg. 93, L11-18.) David Foley, Inc. admitted that it was not his practice to sign, date, and initial versions of the document drawn up and executed between Mr. Van Der Wiele and David Foley, Inc., and stated: “This was unusual. This was an anomaly.” (R. Vol. 4, Pg. 94, L15-18.) David Foley, Inc. stated, ” we spent about an hour and a half working [through the worksheet] (R. Vol. 4, Pg. 94, L18-22.) David Foley, Inc. then stated, “I have no problem whatsoever initialing, dating ” the worksheet. (R. Vol. 4, Pg. 94, L24-25.)
The words, “Contingent upon mutual acceptance” were written by David Foley, Inc. on the contract. (R. Vol. 4 Pg. 110, L13-16.) David Foley, Inc. admits writing the phrase before the contract was signed. (R. Vol. 4, Pg. 110, L16-22.) David Foley, Inc. informed Mr. Van Der Wiele that at the time the contract was being drafted, “if we both agree, we should initial here.” (R. Vol. 4, Pg. 48, L1-2.) Both parties agreed, and so inscribed their signatures on the contract. (R. Vol. 4, Pg. 48, L3-4.) David Foley, Inc., when asked if his signature was on the document, replied, “Yes” and agreed that he dated the document. (R. Vol. 4, Pg. 90, L1-2.) “I had completed that document and that’s when I wrote on the sidebar of it, [and] issued a copy to Mr. Van Der Wiele.” (R. Vol. 4, Pg. 110, L19-22.) “And that was the acceptance.” (R. Vol. 4, Pg 48, L4.) The date of execution of the contract, written by David Foley, Inc., was, “8-8-07.” (R. Vol. 4, Pg. 48, L5-7.) David Foley, Inc. drafted and signed the contract and Mr. Van Der Wiele, too, inscribed his initials, signaling his agreement with the contract’s terms. (R. Vol. 4, Pg. 48, L8.) The negotiation concerning the rate was finished at the time Mr. Van Der Wiele and David Foley, Inc. entered into the agreement. (R. Vol. 4, Pg. 70-71, L19-4.) “If it was still in discussion, we wouldn’t have initialed [the contract].” (R. Vol. 4, Pg. 71, L3-4.)
David Foley, Inc.’s son-in-law was the project manager for jobs Mr. Van Der Wiele worked on as an estimator. (R. Vol. 4, Pg. 81, L11-15.) Each job entailed calendaring events of the project to be performed by subcontractors, but Mr. Van Der Wiele was not responsible for calendaring; rather, the project manager was in charge of the jobs and thus responsible for their timeline. (R. Vol. 4, Pg. 60, L1-7.) Mr. Van Der Wiele was not to go to jobs and create a conflict of interest with the project manager by “telling the subcontractors what to do” or create other conflicts of interest. (R. Vol. 4, Pg. 65, L12-17.)
By the time Mr. Van Der Wiele left his job with David Foley, Inc., the Arnett, Purtell and Santiago jobs had completed contracts and the construction work on their projects was started. (R. Vol. 4, Pg. 40, L24-25.) As an estimator, Mr. Van Der Wiele’s work was completed. (R. Vol. 4, Pg. 41, L19-20.)
Mr. Van Der Wiele never received his promised 5% commission. (R. Vol. 4, Pg. 51, L1-8.) In spite of the terms of their contract, the first time Mr. Van Der Wiele was paid a portion of his commission he was told at the time of receiving his check that his rate of commission was reduced to 4%. (R. Vol. 4 Pg. 51, L11-14, emphasis added.)
Mr. Van Der Wiele objected to David Foley, Inc.’s decision to pay a commission of only 4% on the Santiago project stating that it was a breach of contract. (R. Vol. 4, Pg. 51, L21-24.) David Foley, Inc. stated to Mr. Van Der Wiele that “because his typing skills didn’t meet expectations” and Mr. Van Der Wiele had received help from the office with some computer skills, “that was the reason for lowering it to 4%.” (R. Vol. 4, Pg. 52, L10-22.) Mr. Van Der Wiele appealed to David Foley, Inc. to pay him the commission he had earned (R. Vol. 4, Pg. 52 L5; Pg. 53 L10) and explaining that while he “could type a little bit…[his] strong points were dealing with the customer, the design of the job and the estimating of the job.” (R. Vol. 4, Pg. 53, L1-3.) Moreover, Mr. Van Der Wiele was never told in the beginning that being familiar with [computer programs] was part of his job duties. (R. Vol. 4, Pg. 53, L4-7.) Further, those skills did not affect his duties as related to being an estimator. (R. Vol. 4, Pg. 53, L8-10.)
Mr. Van Der Wiele was called into David Foley, Inc.’s office on October 2, 2009. (R. Vol. 4, Pg. 57, L5.) David Foley, Inc. told him, “This isn’t working out.” (R. Vol. 4 Pg. 57, L6.) On the date of Mr. Van Der Wiele’s termination, estimating and contracts entered into in the Arnette, Purtell and Santiago jobs were completed. (R. Vol. 4, Pg. 57, L22-23.) At the time of his termination, Mr. Van Der Wiele was owed “about $17,500.00” in commissions from David Foley, Inc. (R. Vol. 5, Pg. 53, L13.) The Santiago job came in at $18,650.00. (R. Vol. 6, No. 2.) The Arnette job came in at $169,400.00. (R. Vol. 6, No. 2.) The Purtell job came in at $162,850.00. (R. Vol. 6, No. 2.) By adding the three contract prices above, the total for the three jobs Mr. Van Der Wiele obtained for the company by “sealing the deal” (R. at 44, L2-4) was $350,900.00. As such, minus the $383.00 he received for the Santiago job, Van Der Wiele is owed at total of $17,162.00. (R. Vol. 5, Pg. 274, L21-23.)
I. Why There Was A Contract and Why The Court Did Not Abuse Its Discretion In Not Granting a Directed Verdict.
David Foley, Inc. states three reasons for trying to invalidate the parties’ valid contract:
1. Because Appellant claims the contract contemplates a future agreement.
Clearly, an agreement to agree at a future date is not a contract. Appellant goes to great lengths to cite case law to support its untenable factual position. However, Appellant fails to cite to even one fact on the record which is applicable to the law it cites. Instead, Appellant picks cases and cites and restates law that is inapplicable to this case. Looking at the facts, however, it is evident that the parties had agreed to enter into a contract.
Indeed, both Mr. Van Der Wiele and David Foley, Inc. initialed and exercised the contract, using the Arnette job as an example. (R. Vol. 4, Pg. 46, L1-6.) The 5% commission rate that Mr. Van Der Wiele could earn was based on the gross amount of the contract: $196,000.00. (R. Vol. 4, Pg. 47, L9-11.) Both parties agreed, and so inscribed their signatures on the contract. (R. Vol. 4, Pg. 48, L3-4.) “And that was the acceptance.” (R. Vol. 4, Pg. 48, L4.)
Appellant appears to take the position that if a contract says, “contingent upon mutual acceptance” and then the contract is signed, it is still not a valid contract because in effect the two are somehow entering into a contract to enter into a contract in the future. Such a position is absurd! The Trial Court hit the nail precisely on the head’ when it asked an almost rhetorical question of Appellant during Appellant’s motion for directed verdict at the time of trial: “Could the Jury, not would the Jury, find that the ‘contingent upon acceptance’ language was in existence before the initialing, and said initialing was the acceptance of the contract?” (R. Vol. 4, Pg. 130, L19-23, emphasis added.) Appellant refused to answer the question directly, and instead of answering the Court’s questions, gave its opinion as to what the evidence showed. Once again, Appellant is asking this Court to do the same thing: that is, to have the Court weigh the evidence and find its own facts because it does not like the facts of the record or the facts determined by the Jury.
Furthermore, for the record, the cases cited by Appellant are grossly misapplied as to the issues of this case; for example, Appellant wholly misapplies Goff v. Indian Estates, Inc., 178 So.2d 910 (Fla. 2d DCA 1965.) In Goff, only one person executed the agreement. So of course, it is reasonable to conclude that if only one person signs the agreement, then there is no contract. In the instant case, however, what occurred between David Foley, Inc. and Mr. Van Der Wiele is exactly the opposite: both, Mr. Van Der Wiele and David Foley, Inc. signed the agreement.
Next, Appellant cites to John Alden Life Ins. Co. v. Benefits Management Association., Inc., 675 So.2d 188 (Fla. 3rd DCA 1996), which proposes that a bonus to be negotiated in the future was unenforceable. However, again, Appellant fails to advice us that John Alden Life Ins. Co. was about the following provision in the parties’ contract: “a separate bonus payment will be negotiated.” Id. at 189. In the instant case we are not dealing with a separate bonus payment to be negotiated; we have no such facts or implications in our case. The bonus in the instant case was an integral portion of the contract drafted and signed by David Foley, Inc. and signed by Mr. Van Der Wiele. Further, it is insightful that John Alden Life Ins. Co. cites to a case it distinguished itself from, Community Design Corp. v. Antonell, 459 So.2d 343, 345 (Fla. 3rd DCA 1984.) The Court in Community Design Corp found “a bonus agreement enforceable where the performance of a task is done.” Id. at 189.
In the instant case, not only do we have in place a valid contract specifying what the bonus amount is, what the bonus amount is for, and how it will be earned, we also have actual performance by both of the parties. When David Foley, Inc. paid Mr. Van der Wiele a 4% commission for a draw on the Santiago job, he was acknowledging performance on the part of Mr. Van der Wiele; and by paying him, David Foley, Inc. was partially performing his part of the contractual obligation between them. We even have Mr. Van Der Wiele complaining that his commission was reduced by 1% and that such reduction violated the contract. (R. Vol. 4, Pg. 51, L21-24.) David Foley, Inc. tried to justify itself by claiming that it wasn’t going to pay the full commission “because [Mr. Van Der Wiele’s] typing skills didn’t meet expectations” and because Mr. Van Der Wiele had received help from people in the office with some computer skills, “that was the reason for lowering [the decided-upon commission] to 4%.” (R. Vol. 4, Pg. 52, L10-22.) Plainly, Appellant paid a commission on a draw toward the gross amount of the Santiago project, but instead of paying 5% commission, it paid a 4% commission. Not only did Appellant pay Mr. Van Der Wiele a commission, just as he was contractually obligated to do, he made the arbitrary decision to lower by 1% the 5% commission agreed upon when the contract was drafted and executed, unilaterally deciding that Mr. Van Der Wiele should perform better! Thus, Appellant himself not only acknowledged that a contract existed, but made the decision to dishonor the very contract that, according to Appellant, did not even exist!
Appellant then cites to May v. Sessums & Mason, P.A., 700 So.2d 22 (Fla. 2nd DCA 1997.) The May case, as applied to the facts of the instant case, are so far out in left field that said application almost doesn’t merit a response. Briefly, May constituted an attorney fee dispute in a crafty, high-end sophisticated contract where an attorney basically sought a results-oriented contingency fee agreement in a marriage dissolution case. Without either party agreeing as to what the contingency fee was to be within the constraints of what the Florida Bar permits, the Court in May determined that there was no meeting of the minds because of the context of the situation and because the document in question in the case stated, “additional attorney’s fees to be determined at the conclusion of the [case].” Id. at 26. Again, in the instant case, we have an understanding between the parties regarding what the payment will be; we have agreement as all parties executed the agreement; we even have performance by both parties pursuant to the contract. Interestingly, the May Court states the black letter law concept that ambiguous terms of a contract are construed against the drafters. Id. at 25. In the instant case, Appellant fully recognizes and admits that he drafted the agreement and, subsequently, the agreement was entered into by the parties.
Next, Appellant cites to Spanish Broadcasting System of Florida, Inc. v. Alfonzo, 689 So.2d 1092 (Fla. 3rd DCA 1997.) Again, identically as in Goff, Appellant fails to inform the Court that the Spanish Broadcasting System is a case where only one party signed the handwritten notes.
And to wrap up its argument, Appellant cites to Mitchell and Mitchell Realty Inc. v. DiMare, 936 So.2d 1178 (Fla. 5th DCA 2006). If Mays was in left field, Mitchell is not even in the ball park. Mitchell involves a case regarding a right of first refusal on a property purchase. The commission in Mitchell was contingent if “DiMare’s right of first refusal was rejected. That never occurred.” Id. at 1180. In the instant case, not only was there no rejection of a condition, no such condition existed. As such, DiMare bears no resemblance whatsoever to our case.
2. Because Appellant claims essential terms that Mr. Van der Wiele is seeking to enforce are not in the document and that there is lack of consideration.
Consistent with its modus operandi, Appellant follows the same set of tactics it uses above. Appellant sites to black letter law that is not applicable to the facts of this case. Basically, Appellant is arguing that in the instant case what we have is simply “a potential discretionary bonus plan.” (See Appellant’s Brief, Pg. 19.) Although this time Appellant cites to several facts from the record, it covertly points to a few diversionary trees without revealing the forest. Additionally, as will be demonstrated subsequently, Appellant once again is trying to become its own ‘finder of fact’ by exclusively citing the favorable testimony and failing to address the testimony which directly contradicts the facts cited by Appellant. What happened to evaluating facts in favor of the non-movant?
Beginning with Appellant’s first “factual” paragraph at Pg. 20 of its Brief, Appellant argues that the contract among the parties is not enforceable because there is no obligation under the contract on the part of Mr. Van der Wiele. Appellant argues that “[Mr. Van Der Wiele] was already paid $500.00 per week for his services” and thus, supposedly he has no contractual obligations. However, both parties explained that the promised 5% commission was an incentive for Mr. Van Der Wiele to close on contracts and to approximate the $1,000.00 per week Mr. Van Der Wiele had earned at his previous place of employment. The suggested incentive, of course, is not a humanitarian gesture on the part of Appellant; instead, it is a darn good idea for the employer to offer his employee a way to bring in more business so that the employer himself can earn 95% of the revenues. It doesn’t take a mathematician to realize that if Mr. Van Der Wiele closes on a contract and gets his 5% incentive (which, incidentally, is the industry standard unearthed by Appellant himself), then David Foley, Inc. makes 95% of the revenue.
Moreover, the Florida Supreme Court in Underwood v. Underwood, 64 So.2d 281, 288 (Fla. 1953) stated:
“In the construction of written contract it is the duty of the court, as near as may be, to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed. Indeed, the great object, and practically the only foundation, of rules for the construction of contracts, is to arrive at the intention of the parties. This is a most conspicuous and far-reaching rule, and involves the nature of the instrument, the condition of the parties, and the objects which they had in view; and, when the intent is thus ascertained, it is the be effectuated, unless forbidden by law.”
See also: Florida Power Corporation v. City of Tallahassee, 154 Fla. 638 (1944).
Next, Appellant argues that the commissions were not earned because the jobs were not completed. The record overwhelmingly reveals that Mr. Van Der Wiele was an estimator as described by Mr. Foley and Mr. Van Der Wiele did not hold a contractor’s license to oversee the construction part of the project. Instead, as the facts state, Mr. Van Der Wiele earned his commission when the contract was executed by the client. At the point of the execution of the contract with the client, Mr. Van Der Wiele’s job entitling him to a commission, was completed . It is important to understand that the estimating part of the job is very detailed oriented and requires a lot of work. It includes meeting with clients many times, estimating the job and entering into an agreeable contract between David Foley, Inc. and the clients. It includes designing and discussing upcoming projects with the clients and actually helping the clients design and discuss room by room what each client wanted to do, coming up with suggestions, ascertaining what amount of the room the clients needed or how much space they needed, what they had in mind for kitchens, redesigning cabinets, or remodeling existing cabinets, etc. Indeed, not only did Mr. Van Der Wiele have to sell a project, he designed and made suggestions to the clients to sell more on the total final project. Just like any good salesman who gets paid commissions upon a sale, Mr. Van Der Wiele expected to be paid the agreed upon commissions he put his time into and rightfully earned. Indeed, Mr. Van Der Wiele earned his commission once the clients entered into the contract.
Next, Appellant purports that there can be no contract because the parties could not agree on some of the duties of what Mr. Van Der Wiele had to do. Indeed, the Jury did hear conflicting testimony regarding this issue and the Jury resolved the issue by determining who was telling the truth. Each party in the instant case knew very well what their duties were because Mr. Van Der Wiele was already beginning to perform those duties prior to entering into the commission contract.
The Appellant next seems to make the legally unfounded argument that because the commission contract occurred six calendar days after Mr. Van Der Wiele started working for David Foley, Inc., there could not be a contract because there was a lack of offer and no consideration at all. On the contrary, the offer couldn’t be clearer: “I will pay you 5% commission on the projects closed.” (R. Vol. 4, Pg. 50, L24-25; Vol. 4, Pg. 51, L1-5.) The contract between the parties even provides a detailed example as to how the commissions would be paid. The commission contract drawn up by David Foley, Inc. used the example of a $196,000.00 project closing and it specifically shows how much Mr. Van Der Wiele would get paid: 5% on the gross amount of a project based on $196,000.00. And what would Mr. Van der Wiele do for David Foley, Inc. in return? Of course, Mr. Van Der Wiele would be motivated to work aggressively to close the projects, and sell more towards the project, which, in return makes a lot of money for David Foley, Inc.
3. Appellant alleges that there was no meeting of the minds
Appellant then argues that because the document at the center of the instant case uses the potential of the Arnette job having a value of $196,000.00 (R. Vol. 6, Exhibit No. 1), it cannot be a contract because the contract that Ms. Arnette signed was for $169,400.00. (R. Vol. 6, Defendant’s Exhibit 9) and the gross amount collected on the Arnette job was $194,560.00 (R. Vol.. 6, Plaintiff’s Exhibit 2.) Logically, however, quite the opposite is indicated. An example of a potential future sale was used exactly because it is an example of what the commissions were to be for all sales: 5% of the gross amount of the project. The essential figure here is 5%. This is the value that was supposed to have remained unchanged. This was the value that was negotiated by Mr. Van Der Wiele and David Foley, Inc. were Mr. Foley went over his bottom line and showed Mr. Van Der Wiele how he could earn and surpass the $1,000 per week Mr. Van Der Wiele was seeking. The variable is, of course, the value of the job. The value of the job is not an essential term as Appellant purports, because the value is always changing from job to job. An example that indicates this principal is when we look at what occurs with car salesmen in the real world. Just as a car salesperson may earn a flat salary plus a commission on each car sale, the salesperson is not going to know what the actual commission will be on a car sale until he or she knows the value of the car that the client wants to buy. Calling the value of the car an essential term of the contract between car salesperson and dealer is an argument that is devoid of logic and common sense.
Next, Appellant has the audacity to argue in its Brief that because the three clients for whom Mr. Van Der Wiele closed deals and inked contracts had contacted David Foley, Inc. prior to Mr. Van Der Wiele beginning work there, he is consequently not entitled to his commissions. Of course, this argument fails to contain a scintilla of legal foundation at its very core. So let us use our common sense. Reverting to our car salesperson example, if a potential client were to contact the car dealership, leave their contact information, and asked to be called back, and then if a car salesperson who just got hired by the dealership calls them back, invites them to the dealership and sells them a car, it would be Appellant’s position that this car salesperson does not get a commission because the salesperson did not bring in the initial lead. In the world of sales, the motto is, “It’s not a deal until you sign on the dotted line,” and getting the customer’s signature is what triggers the earning of a commission. In the instant case, Mr. Van Der Wiele, with hard work and skill, materialized three actual and complete contract sales that earned over $350,000.00 in revenue for David Foley, Inc. Because a lead is just a lead, and because the contract between the parties calls for a commission being earned upon the sale of a project, Appellant’s argument is grossly flawed.
Next, Appellant argues that because the contract does not define in words what the payment is based on, said contract is not valid. Both parties testified to what the figure “196” meant to them and the meaning is clearer than any words could be. It was dealing with an actual example that both parties knew about and testified to — the Arnette job. Some people of a certain profession better understand words; others understand figures and numbers. Both of these men knew what they were talking about with each other. The figures and numbers on that paper are their language. They talked, discussed and negotiated for an hour and a half before signing.
Without reasonable doubt, both of these men had a meeting of the minds; each understood the services to be offered, each understood what must occur in order to accept the offer, and each understood the consideration for the offer, including the exact dollar amount of what the commission would be upon a sale.
A critical fact of the instant case, one acknowledged by both David Foley, Inc. and Mr. Van Der Wiele is that there was even performance under the contract from both parties as evidenced by the 4% commission Mr. Van Der Wiele was paid on the first draw of the Santiago contract. This is undisputed and provides solid evidence of actual performance under the commission called for by the contract. Appellant only cursorily addresses this point, naturally, since the actual performance really makes the legal arguments advanced by Appellant void. Appellant is in effect arguing, ‘You see, there is no contract because only 4% was paid and not 5%.’ But once again, Appellant convenient ignores the testimony that Mr. Van Der Wiele went to Mr. Foley and complained that Mr. Foley was violating the terms of the commission contract. (R. Vol. 4, Pg. 51, L21-24.) It ignores the testimony where David Foley, Inc. unilaterally decided to lower the promised 5% commission to 4% because of alleged “performance issues” on the part of Mr. Van Der Wiele (which were, in actuality, never substantiated as factual). It ignores the testimony that Mr. Van Der Wiele went to Mr. Foley to resign because David Foley, Inc. would not honor their agreement fully. Instead, Appellant decides once again to wear its “Trier of Fact” hat, weighing the evidence by ignoring all unfavorable facts and arriving at the conclusion that there was no contract between Mr. Van Der Wiele and David Foley, Inc. due to the fact that Mr. Foley unilaterally decided to violate the contract by reducing the commission.
Let us use our common sense once again, reverting back to our example of a car salesperson. Said salesperson has a 2% commission contract on the sale of a car. All during the week prior, our salesperson sells cars in compliance with his job duties, expecting to be paid the contractually obligated 2% commission. The commission is actually paid one month later. However, our salesperson finds that his commission was reduced to 1%, not the 2% as promised to him in his contract with the car dealership. Our salesperson complains to his sales manager who says, “Well, we decided to lower your commission because you were also supposed to clean the bathrooms, and the bathrooms are all dirty. And besides, I don’t like the way you clean.” The salesperson then resigns from the dealership because the dealership did not honor their mutually agreed-upon contract. Appellant, applying its argument, would have you deprive our salesperson of his rightfully-earned 2% commission because the fact that the dealership only paid 1% commission is conclusive evidence that no agreement existed to begin with. But Appellant even takes the argument a leap further: Appellant doesn’t even concede that the salesperson would be owed 1%. Appellant is in fact arguing that because the dealership only paid the salesperson a commission of 1% instead of the promised 2%, the prior contract is null and void, even if it is in writing, because the conflicting testimony between 1% and 2% shows that there is no meeting of the minds. As a result, our car salesperson gets nothing for the commissions which were rightfully earned by selling the dealership’s cars. Such an unjust and deceitful proposition would chill not only our entire jurisprudence system, but the whole of our society, because under Appellant’s reasoning, a party could enter into a written contract and use its own breach of the contract as conclusive evidence that there was no contract to begin with! And this is precisely the argument that Appellant, in its flawed reasoning, attempts to use to sway the reasoning of this Court.
Finally, and perhaps most importantly, any potential conflict of testimony that Appellant attempts to contort into an example of a failure of the two parties to reach a meeting of the minds when their contract was drawn and executed in this instant case was fully resolved by the Jury when it entered the exact amount owed of $17, 172.15 in damages. That figure is exactly 5% of the gross amount of the revenue generated on behalf David Foley, Inc. by Mr. Van der Wiele, as specified by the conditions of the contract between the two and is, further, the most sensible amount and consistent with the testimony of all parties in this case.
Regarding Appellant’s proffered sole legal basis for its arguments within this section, Appellant cites to Sun Bank of Tampa Bay v. Bryan, (527 So. 2d 290 (Fla. 2nd DCA 1988.) If Mays was out in left field, and Mitchell was out of the ball park, Sun Bank has landed in a different country as it relates to the facts of this case! Sun Bank is a complicated wills and estates case with a detailed analysis of how each of the parties performed under the estate agreement. The Court found that there was no contract because, “the delivery of the agreement was expressly conditioned until further approval from a personal representative.” Id. 293. Such is not the case here. As explained prior, there was no condition that needed to be defined when the contract was entered into.
II. Appellant Request a New Trial Because Appellant Dislikes the
A motion for new trial is directed to the sound, broad discretion of the trial judge and his ruling thereon should not be disturbed absent a clear showing of abuse. If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion. Ford Motors Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981). It is the duty of the trial court to grant a new trial where either the verdict is against the manifest weight of the evidence, the jury has been deceived as to the force and credibility of the evidence, or the jury has been influenced by considerations outside the record. However, a trial court must not permit itself to become a seventh juror. Papcun v. Piggy Bag Discount Souvenirs, Food and Gas Corp., 472 So. 2d 880 (Fla 5th DCA 1985).
As its first argument in support of its position for a request for a new trial, Appellant states that the Court did not agree with the Jury verdict and refers us to (R. Vol. 1, Pg. 16-19). A reading of those three pages will actually demonstrate the opposite conclusion. While undersigned counsel is tempted to include verbatim what the Court actually stated, such delineation may be superfluous. As such, undersigned counsel calls attention to the following statements made by the Court in those pages:
“I don’t think the [Jury] got it right. (R. Vol. 1, Pg. 16, L2.) But they do have the facts and the law to support their decision (R. Vol. 1 Pg. 16, L20-22.)
” [My opinion] is totally irrelevant, totally irrelevant. It’s also based upon my memory of what happened months ago, and it is not a ruling, because the Jury made those findings.” (R. Vol. 1, Pg. 17, L15-18.)
“I would not have weighed the facts the way they did, but I believe it was within, within the evidence presented to rule the way they did. And for that basis, I believe their decision is supported by the law, and the post-trial motions are denied.” (R. Vol. 1, Pg. 17-18, L22-1.)
After Appellant’s misguided attempt to guide this Court into believing that somehow the Trial Judge believed there was error of some kind, Appellant concludes and reiterates the arguments raised in Part I of its Brief without providing any factual basis or any further law. As such, herein we reincorporate our response to this argument in Part I above.
III. Appellant Requests a New Trial Based on an Alleged Abuse of Discretion by the Court in Adding New Instructions to the Existing Jury Instructions
Appellant argues that it should get a new trial because “several” of Appellant’s requests were denied and complains that the Trial Court erred by “granting a jury instruction requested by the [Appellee.]” (Appellant’s Brief, Pg. 26, ¶2.) In actuality, the Court accepted many inclusions to the Jury Instructions requested by Appellant and many of Appellee’s requests (and vice versa).
Trial courts are generally accorded broad discretion in formulating jury instructions. See Westerheide v. State, 767 So. 2d 637, 656 (Fla. 5th DCA 2000), rev. granted, (Fla. 2001) (citing Ryeka v. Halifax Hosp. Dist. , 657 So. 2d 967 (Fla. 5th DCA 1995). The standard of review to be applied to a decision to give or withhold a jury instruction is an abuse of discretion. See id. (citing Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968 (Fla. 4th DCA 1999)). The trial court’s decision to give a particular instruction will not be reversed “unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.” Faber, 745 So. 2d. at 974 (citing Reyka, 657 So. 2d at 967). Furthermore, if the jury instructions as a whole fairly state the applicable law, failure to give a particular instruction does not constitute error. See Westerheide, 767 So. 2d at 656 (citing CSX Transp., v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991)).
First, Appellant states in its Brief that it requested and was denied the inclusion of the language in the following jury instruction: “If there is a condition precedent to the formation of a contract, the contract does not exist until the condition occurs.” (Appellant Brief, Pg. 27, ¶1.) In support of its position, once again, Appellant misuses Mitchell. As we know, Mitchell was a totally different factual scenario where the contract hinged on whether the right of first refusal was executed in a complex real estate transaction.
In the instant case, there is no condition precedent that needed to occur after the execution of the contract. Simply, the wording of the contract said the contract is valid only when it is accepted. And both Appellant and Appellee, as the Jury determined, accepted the contract with their signatures. Additionally, the Court got it right as evidenced by the discussion the Court had with Appellant at the charging conference:
The Court: Why do we need that? And the only condition precedent is was it agreed to? You already have that. Is there any other condition precedent that you are arguing has not been met?
Appellant: No. That’s it.
The Court: Right, and you cover that in 2 , right?
(R. Vol. 5 Pg. 242, L3-12)
Then the Court explained as follows:
The Court: Okay. The only clear form of condition precedent which has any evidence to support it is that it was never agreed to, just covered by more specifically by 2, or that the terms were not sufficiently definite for there to be a contract, which is also more specifically covered. Putting that precedent language in there is confusing, misleading, doesn’t add anything, and is already better covered in Paragraph 7 .
(R. Vol. 5, Pg. 243, L4-13),
Immediately after Appellant misuses the Mitchell case in its Brief, it once again tries to create the illusion that the Trial Court agrees with Appellant’s position. Appellant claims in its brief that “the Court even disagreed with the Jury’s determination of the meeting of conditions precedent, which illustrates that the condition precedent instruction should have been given.” (Appellant’s Brief, Pg. 27, ¶ 1.) However, what the Court actually stated was: “I don’t necessarily agree with the Jury’s determinations.” (R. Vol. 1, Pg. 81, L7.) And the Court went further to reiterate, “I think the Jury and the evidence presented clearly answered [that we have a contract] for us.” (R. Vol. 1, Pg. 81-82, L25-1.)
Appellant next complains that it requested the Court to add the Black’s Law Dictionary’s definition of the word “contingent.” Appellant appears to be arguing that the legal definition should have been given to the Jury in their instructions because the written contract entered into by the parties contained Mr. Foley’s use of the words “contingent upon mutual agreement.” Neither Mr. Foley nor Mr. Van Der Wiele were or have ever been attorneys; in any event, what is important to the instant case is the understanding on the part of each party of their agreement, not a legal definition taken from Black’s Law Dictionary. As the Trial Court wisely pointed out, what the jury needed to know and understand was that between both parties there was “a mutual acceptance or mutual agreement of the parties to the terms [of their contract.]” (R. Vol. 5, Pg. 293, L10-11.) Without a specific objection by Appellant, this is what actually occurred:
The Court: Are you still asking for [the contingency] language, or was that part of the offer and acceptance that we got rid off?
Appellant: I would still like it.
Appellee: I’ll object to that, Judge.
The Court: Where does the word contingent appear in the instructions?
Appellant: It appears in the document that they are putting as a contract.
The Court: Okay, so that’s your basis for it?
The Court: All right. I am going to sustain Plaintiff’s objection to that being given. I don’t think it is appropriate or necessary.
(R. Vol. 5, Pg. 239-240, L21-12.)
At the end of the charging conference, Appellant objected as follows:
Appellant: [Appellant] renews its objections specifically to the instructions on the condition precedent being taken out and the instruction on intrinsic evidence being put in.
(R. Vol. 5, Pg. 259-260, L24-3.)
After the Court read the verdict form, Appellant objected to a typographical error:
Appellant: I think No. 2, that should be “what.” (R. Vol. 5, Pg. 301, L6-7.)
At Appellant’s request, the Court brought back the Jury, and re-read the corrected verdict form. The Court asked both Appellant’s and Appellee’s counsel if there were any objections and neither raised any further objections. Since no further objections were raised, the Court then sent the Verdict Form to the Jury. (R. Vol. 5, Pg.302-06.)
Finally, Appellant in its Brief makes the audacious claim that when the Court read, ” When a written contract does not explicitly detail” (R. Vol. 5., Pg. 293, L23-24), the inclusion of the words “written contract” somehow allegedly instructed the Jury that there was, indeed, a written contract and as a result, the Jury was prejudiced toward determining that finding. This issue never came up at the charging conference or at any time during the trial, and as such, it was waived. The Courts have held that in a civil action, “To properly preserve error for appellate review on the giving of an instruction requested by the opposing party, it is necessary that a distinct and specific objection be made. A general objection is not sufficient.” Coleman v. Allen, 320 So.2d 864 (Fla. 1st DCA, 1975); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (Fla. 3rd DCA, 1970.) “The objection may not be made for the first time on appeal.” Lollie v. General Motors Corp., 407 So.2d 613 (Fla. 1st DCA, 1981.) Thus, in the face of no objection or only a general objection to instructions requested by the opposing party, the Trial Court in the instant case was not given the opportunity to rule on a specific point of law since Appellant made no objection on which the Court could rule, and, as a result, Appellant had no issue created or preserved for an Appellate Court review. Moreover, the argument borders on frivolousness, even if it would have been properly objected to.
Indeed, despite Appellant’s contentions, the Trial Court did not err. The Jury instructions were accurate, balance and fair.
IV. On the issue alleged that (A) The Verdict Form did not Conform with the Jury Instructions, and (B) The Handwritten Change on the Verdict Form Allegedly Prejudiced Appellee.
Appellant professes in Part IV of its Brief that the Jury Instructions from the Trial Court did not conform with the Verdict Form that the Jury was later provided, and due to the disparate wording in the jury instructions and the Verdict Form it should get a new trial. Appellant boldly states in its Brief, “The Jury was instructed that the Plaintiff had to show there was a mutual acceptance or a mutual agreement of the parties to the terms. However, the Court denied Defendant’s request for a question on the verdict form regarding the issue of mutual acceptance or agreement” (Appellant’s Brief, Pg. 29, ¶2.)
Appellant’s lament is of the same type that it raised in Part III of its Brief. Again, Appellant insinuates that it objected to the Trial Court regarding the wording of the jury form. Further, Appellant maintains that because of the failure of the Trial Court to sustain those objections, the Verdict Form did not conform to the instructions the jury received. (Appellant’s Brief, Pg. 29, ¶2.) The first of the problems that Appellant faces in establishing a legal foundation for its argument is that no such objections were made, not during the charging conference, nor anytime thereafter!
In K-Mart Corporation v. Collins, 707 So. 2d 753, (Fla. 2nd DCA, 1998), the Court stated “In the absence of fundamental error or a timely objection in the trial court, any issue with regard to a verdict form is waived and cannot form the basis for a new trial.” Id. at 774. Further, the Appellate Court, citing Robbins v. Graham, 404 So.2d 769 (Fla. 4th DCA, 1981) held that, “[c]ounsel waived the issue regarding [the] verdict form by failing to timely object in Trial Court.” Id. at 775. Finally, the Appellate Court, citing Tidwell v. Toca, 362 So. 2d 85, 86 (Fla. 3rd DCA, 1978), held that, “A party may not complain of a verdict form to which it does not object.” Id. at 775.
As such, Appellant’s argument, being devoid of any legal basis, cannot stand. In the instant case, just as in K-Mart, counsel waived its issue regarding the verdict form by failing to timely and specifically object to it in Trial Court. Appellant’s request for the Trial Court to use its specific wording on the verdict form, and the Court’s final use of wording on the form not identically matching Appellant’s request does not in any way establish that Appellant objected to the form. Rather, as prior established, and as in K-Mart, the jury form was agreed to by the counsel for both parties. In the instant case, as in K-Mart, not only was there no fundamental error on the part of The Court’s final use of wording on the verdict form; there was no timely objection by Appellant at all! As such, Appellant’s argument that it deserves a new trial based on its complaint of disparity between jury instruction wording and wording on the jury form must utterly fail as a matter of law.
In a repetitive fashion, Appellant once again misstates: “The Trial Court even disagreed with the jury’s determinations of the meeting of the conditions precedent, which further illustrates that the verdict form did not properly instruct the jury.” (Appellant’s Brief, Pg 32, ¶3.) First, as established in Part II of Appellee’s Answer, such a statement was never uttered by the Trial Court: not during the trial, nor at any time subsequent to the trial. Appellant’s misconstruction of the Court’s statement borders on outright mendacity. Again, as quoted directly in Part III above, the Judge simply stated that while he may have weighed the facts differently, the Jury had the law and the evidence to find for Mr. Van Der Wiele and to award him his damages.
Appellant’s second charge, that a handwritten notation of Appellee’s first name above his typed last name on Question 4 of the Verdict Form prejudiced the jury to the point that they were influentially guided to find a verdict for Appellee, can only be labeled as yet another ill-conceived attempt on the part of Appellant to create an issue out of thin air.
The utter flippancy of Appellant’s position can only be fully appreciated by examining the actual Verdict Form given to the Jury. The Verdict Form is comprised by two pages, written in the manner and standard of each Verdict Form used in civil trials. The form consists of four questions wherein the foreperson of the jury makes their mark indicating either “yes” or “no” in answer to the question and then signs their name indicating acquiescence with the verdict rendered. Above the word, “Plaintiff” on Question 4, the name “Charles” is inscribed. The name appears due to an omission on the part of Appellant’s own office that typed the form and forwarded the form to the court, mistakenly leaving out Appellee’s first name in that question.
On the next page, is a partial scan of the Verdict Form with the content that Appellant complains about:
(R. Vol. 2, Pg. 222-223.)
An examination of Volume 2, Pg. 222-223, the Verdict Form, would reveal that Pg. 1 of the form contains Questions 1 and 2 that, identical to Question 3 as seen above, are without any marks or editing at all, outside of those made by the Jury Foreperson who inscribed an “X” indicating the Jury’s answer to each question. Pg. 2. Question 4 of the Verdict Form, as Appellant describes in her brief, was indeed corrected by the Judge presiding over the Trial Court. Said editing consists of the Court’s addition of Mr. Van Der Wiele’s given name, Charles, written in immediately above his surname, Van Der Wiele. Other than that single, solitary edit, no handwritten names or editing of the Verdict Form of any kind are to be found on the entire two-page document. As mentioned earlier, the only other handwritten marks or words on that form are those written in by either the Jury Foreperson or, later, by the Clerk of Courts.
It is ironic to note that the addition of Mr. Van Der Wiele’s given name on the Verdict Form came about due to an error made on the part of Appellant’s own office, having been given the responsibility to draft the Verdict Form for use at the trial at Appellant’s own behest. The Court, sustaining Appellee’s objection to the omission of Mr. Van der Wiele’s first name, made a decision in the interest of fairness to properly identify Mr. Van Der Wiele in the same manner as the Appellant, David Foley, Inc., was identified.
Finally, and perhaps most important in terms of the instant case, it is not reasonable to deem the Court’s simple, one word addition correcting a parties name on a Verdict Form as a fundamental error on the part of the Trial Court so egregious that, at risk of tumbling the columns of the Halls of Justice, Appellant should be allowed to overturn established case law and be granted a new trial. The holding of the Appellate Court in K-Mart, relying on decisions made by the Appellate Courts in Robbins and Tidwell, takes Appellant’s argument far away from reality. Id. at 775. As in K-Mart, Appellant herself failed to make one single objection regarding the Court’s simple editing of the form:
This is what transpired at trial:
The Court: Okay. I added that in the one place in the verdict form. Plaintiff, those instructions and verdict form ready to go back to the jury?
Appellee: Yes, Judge.
The Court: The Defense?
Appellant: Yes, although I prefer we print out the form again.
The Court: The problem is your office is typing it. And I don’t really have access to get it done. So we’ll send it back this way.
Appellant’s agreement that the Verdict Form met her approval is indicated by its use of the word, “yes.” Although Appellant voiced a preference regarding re- printing the form, its “yes” is not an objection. Rather, that “yes” meant that Appellant could and did accept the Verdict Form containing the Court’s simple but fair editing that the Court deemed necessary to correct Appellant’s office’s own mistake.
V. Mr. Van Der Wiele Is Entitled To His Reasonable Attorney Fees
As will be shown, Mr. Van der Wiele is entitled to attorney fees because of three reasons, each of which alone, entitle Appellee to his attorney fees pursuant to F.S. 448.08.
1. The parties stipulated that Count I and Count II would in effect be merged and that the damages awarded are under F.S. 448, and that if Appellant pled attorney fees under F.S. 448, then Appellee is entitled to fees.
2. Even if Appellee did not request fees in its pleadings, Appellee is entitled to fees under the exception announced in Stockman v. George Downs, 573 So.2d 835 (Fla. 1991) where it permitted attorney fees, even if not pled, if a party had some kind of notice during the litigation that Appellee was seeking fees. Appellant’s actions and inactions clearly show it had full knowledge that Mr. Van Der Wiele was seeking fees.
3. Because fees do not need to be specifically pled under the standard announced by the Supreme Court in Caulfield v. Cantele, 837 So.2d 371 (Fla. 2002), Appellee pled sufficient to provide notice to Appellant that it was seeking fees, even from the Amended Complaint alone.
1. The parties stipulated that Count I and Count II would in effect be merged and that the damages awarded are under F.S. 448, and that if Appellant pled attorney fees under 448, then Appellee is entitled to fees.
Appellant argued that Count I and Count II were one in the same:
[Appellant]: Both Count I and Count II refer back to 6, paragraph 6, in the complaints that rely on a written contract for commissions. So that’s why I , my position is that they are both incorporated into one.
(R. Vol. 4, Pg. 184. L15-19.)
The Court wrestled with the idea that Count I and Count II are one in the same. (R. Vol. 4, Pg. 181; R. Vol. 5. Pg. 218.) Ultimately, the Court did not dismiss Count I on its merits, but rather, in effect, merged the counts via stipulation by the parties. Indeed, after many discussions on the issue of Count I being a separate cause of action, the following transpired:
[Appellant]: In this case, [as it concerns Count I and Count II] they are seeking the same damages.
(R. Vol. 5 Pg. 209L12-13).
[Appellee]: Now, whether Counsel has issue with us seeking the same set of damages based on two different causes, I don’t believe that’s a foreign idea?
(R. Vol. 5 Pg.210L5-8)
The Court then decided, stating as follows:
The Court: Count II, breach of contract, its wages arguably, therefore, if you prevail, you can get attorney fees.
(R. Vol. 5, Pg. 213, L7-9.)
The Court: Ultimately my determination is going to be that there is not a separate 448 claim in this case, that it is a breach of contract claim alleged and that the commission would be wages and attorney fees could be awarded.
(R. Vol. 5, Pg. 213-14, L23-2.)
Then, the parties, in effect, stipulated to merge count I and II. During the trial, the following occurred:
The Court: The breach of contract count is an action for unpaid wages, prevailing party may be entitled to costs and attorney fees. So, to the extent well, let me make it clear.
In regards to the independent count for claim under F.S. 448, the motion for directed verdict is granted. No direct claim under 448 has been alleged or proven.
So the Jury is only going to hear about the breach of contract Count. And so the question is going to be, is there a stipulation that if they award any damages, those damages would be categorized as wages, or do we need to have the Jury, in a special interrogatory question, make the determination?
[Appellant]: There is not a dispute. I think we are in agreement that commissions are wages, and under 448 if you requested attorney’s fees, then the prevailing party can get attorney fees.
The Court: So if, like, there is a stipulation, the Jury does not need to be concerned about that.
[Appellant]: I think it will only confuse the Jury.
The Court: [∴] My recommendation is to leave it alone, with the stipulation between the parties that if they do, in fact, award damages, those damages would be unpaid wages, and it is an unpaid wages claim.
(R. Vol. 5, Pg. 216, L6; Pg. 217, L4; Pg. 217, L12-16; emphasis added.)
The Court further added:
The Court: Like I said, I granted directed verdict on the — Count I was the 448 claim, right? So you are left with breach of contract. Quite frankly, I think it is the same thing.
(R. Vol. 5, Pg. 219, L6-9.)
Indeed, the Court viewed Count I and Count II to be the same. The parties both asserted and stipulated that the same damages applied, and now Appellant is claiming that because Count I was dismissed, it is no longer entitled to attorney fees. Because of arguments and stipulations at trial, Appellee is entitled to attorney fees as the prevailing party.
2. Even if Appellee did not request fees in its pleadings, Appellee is entitled to fees under the exception to the rule articulated in Stockman v. George Downs, 573 So.2d 835 (Fla. 1991).
In Stockman, the Supreme Court of Florida ruled that attorney fees must be pled except “Where a party has notice that an opponent claims entitlement to attorney fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney fees.” Id. at 838, emphasis added. Indeed it couldn’t be clearer from the record that Appellant had notice that Appellee was seeking attorney fees.
First, the Complaint and Amended Complaint pled, as to all counts, that: “Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable attorney fee.” (R. Vol. 1, Pg. 143, ¶7; R. Vol. 1, Pg. 194, ¶7.) In Count I, Claim for Unpaid Wages, in both Complaint and Amended Complaint, Appellee pled “Pursuant to F.S. 448.08, Plaintiff is entitled to fees and pled attorney fees as to the unpaid wage claim.” (R. Vol. 1, Pg. 143, ¶17; R. Vol. 1, Pg. 194, ¶14.) In both the Complaint and the Amended Complaint, in Count II, the Appellee pled “[Defendant] failed to pay his wages and commissions owed” and requested “for all damages to which he may be entitled, including but not limited to costs, and all compensatory damages owed.” (R. Vol. 1, Pg. 144, ¶21 and Wherefore Clause; R. Vol. 1, Pg. 195, ¶18 and Wherefore Clause.)
Next, Appellant files an Answer in both the Answer to the Complaint and Answer to the Amended Complaint where Appellant states: “Pursuant to Section 448.08, Florida Statutes, the prevailing party may recover its reasonable attorney fees and costs” (R. Vol. 1, Pg. 150, Third Affirmative Defense ; R. Vol. 2, Pg. 202, Fourth Affirmative Defense.)
Next, the parties stipulate to try at trial three issues in the pre-trial stipulation which was entered into jointly by both parties. Specifically, both Appellant and Appellee stipulated that the issues at trial will be “[¤] Whether the prevailing party can recover attorney’s fees and costs under F.S. 448.08 against the non-prevailing party.” (R. Vol. 2, Pg 206, Issues at Trial, #3.)
The Supreme Court of Florida in Stockman specifically recognized the pre-trial stipulation as a recognized exception to the pleading-attorney-fee rule. Citing Brown v. Gardens by the Sea S. Condo Ass’n, 424 So.2d 181 (Fla. 4th DCA 1983), the Supreme Court of Florida in Stockman quoted “failure to raise entitlement to attorney fees until after judgment [is] not fatal to [a] claim where [the] issue of attorney fees was raised at pretrial conference and plaintiff’s pretrial statement listed defendant&r
Attorney: Maurice Arcadier
Status: On Appeal
Date Filed: October 2009
Our Melbourne office is centrally located in Brevard County, enabling our lawyers to serve clients throughout “the Space Coast”, including Cocoa Beach, Palm Bay and Vero Beach.