28 Fla. L. Weekly Supp. 371a
Online Reference: FLWSUPP 2805ISLA
Attorney’s fees — Prevailing party — Unpaid wages — Appeals — Absence of transcript or record — Affirmance of lower court ruling — Fact that trial court found that plaintiff who sued for unpaid wages was not employee of defendant does not preclude award of attorney’s fees in prevailing defendant’s favor under section 448.08 — Proposal for settlement — No merit to arguments that nominal offer of settlement was made in bad faith and was ambiguous — Trial court’s determination as to amount of attorney’s fees cannot be disturbed in absence of transcript of hearing on issue
CARLOS ALBERTO ISLA, Appellant, v. AMAYA LATHING & PLASTERING, LLC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2019-16-AP. L.T. Case No. 2017-14293-CC-05. July 14, 2020. An Appeal from the County Court in and for Miami-Dade County, Alexander S. Bokor, Judge. Counsel: Anthony M. Georges-Pierre, Remer & Georges-Pierre, PLLC, for Appellant. Andrew T. Trailor, Andrew T. Trailor, P.A., for Appellee.
(Before TRAWICK, WALSH and SANTOVENIA, JJ.)
(TRAWICK, J.) Appellant brings this appeal contesting the award of attorney’s fees by the trial court to Appellee. In support of this argument, Appellant raises three issues: first, that the award of attorney’s fees pursuant to Florida Statutes §448.08 was improper given the trial court’s finding that Appellant was not an employee; second, that the Appellee’s offer of judgment was made in bad faith and was ambiguous, and therefore an award of attorney’s fees could not be premised on the offer’s rejection; and finally, that the award of fees was excessive. We find that each of these arguments is unsupported by applicable law and the record before this Court.
Appellant brought a claim against Appellee for breach of an oral construction employment contract, alleging that Appellant was an employee of Appellee and entitled to accrued wages. Appellant later amended the complaint alleging that his company, Kat Karlos, Inc., (Kat Karlos) entered into an oral construction contract with Appellee. He averred that Appellee breached this contract, and that as an employee of Kat Karlos, he was entitled to accrued wages from Appellee either as a third-party beneficiary to the contract or as the “alter ego” of Kat Karlos.
Appellant failed to provide a record containing applicable documents or transcripts of the hearings before the trial court on the issues raised in this appeal. Without such records or transcripts, the Court is unable to determine if the trial court may have erred. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). The decision of the trial court comes before this Court cloaked with the presumption of correctness, and the burden is on Appellee to rebut that presumption by pointing to irregularities in the record. Smith v. Orhama, Inc., 907 So. 2d 594 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1748a]; Ahmed v. Travelers Indem. Co., 516 So. 2d 40, 40 (Fla. 3d DCA 1987). Without a record, and absent fundamental error, the trial court must be affirmed. Id.
Among the documents that Appellant failed to include in the record on appeal was the final summary judgment. Although we are under no obligation to do so, the Court has sua sponte taken judicial notice of the final summary judgment contained in the records of the Clerk of Court. In making its ruling, the trial court found that as a matter of law Appellant was not an employee. The court further found that Appellant was not a third-party beneficiary of the construction contract between Appellee and Kat Karlos. Finally, the court rejected Appellant’s alter ego theory. As a result of these findings, the court found that summary judgment in favor of Appellee was proper and that Appellee was entitled to attorney’s fees.
Appellant maintains that there is an incongruity in the trial court’s findings. How on the one hand could he not be an employee, and yet have fees awarded in favor of Appellee under §448.08 as if Appellee was an employer? This question can be answered by a review of the plain language of the statute itself:
§448.08 – Attorney’s fees for successful litigants in actions for unpaid wages.
The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.
Appellant brought an action for accrued wages. His claim was premised on several theories based on an employer-employee relationship. Appellant’s claim was found to be without merit and Appellee was the prevailing party. Thus, the statutory entitlement to fees under §448.08 have been met. The fact that the trial court found that Appellant was not an employee does not change this conclusion. See Lochrain Engineering v. Willingham Real Growth Investment Fund, Ltd., 563 So. 2d 79 (Fla. 5th DCA 1990) (“As to any particular theory of recovery on which plaintiff would be entitled to attorney fees if plaintiff prevailed, defendant should be entitled to attorney fees if defendant prevailed.”)
Appellant also contends that Appellee is not entitled to attorney’s fees due to his rejection of Appellee’s offer of settlement. Appellant asserts that Appellee’s offer of ten dollars was made in bad faith. He also argues that the offer was ambiguous, claiming that the offer lacked non-monetary conditions “such as the time and form of payment, release of other claims, confidentiality, non-disparagement, etc.” Appellant’s arguments are meritless. While the Appellee’s offer was nominal, such offers may be appropriate where, as here, “the offeror has a reasonable basis to believe that exposure to liability is minimal.” Zachem v. Paradigm Properties Management Team, Inc., 867 So. 2d 1263, 1263 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D669b]. Given the trial court’s conclusion in entering summary judgment in favor of Appellee, it appears that Appellee’s belief was well taken. As to Appellant’s contention that Appellee’s offer of settlement was ambiguous, Appellant seeks to create an ambiguity where no ambiguity exists. Appellee’s offer conformed to the requirements of Florida Statute §768.79(2):
An offer must:
(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.
Appellee’s offer contained each of the required terms. Thus, Appellant’s arguments regarding the sufficiency of Appellee’s offer of settlement are baseless.
Appellant’s final argument is that the trial court’s award of attorney’s fees was excessive. However, as indicated earlier, Appellant failed to provide a transcript of the hearing before the trial court on this issue. The Court’s review has been limited to the trial court’s final judgment awarding fees and costs. In it, the trial court noted that it had made detailed findings on the record. Since this Court does not have the benefit of that record, Appellant cannot overcome the presumption of correctness attendant to the trial court’s decision. As a result, the trial court’s determination as to the amount of attorney’s fees will not be disturbed.
The decision of the trial court is hereby AFFIRMED. Appellee’s Motion for the Award of Appellate Attorney’s Fees pursuant to Florida Rule of Appellate Procedure 9.400 is hereby GRANTED. This matter is REMANDED for a determination of the amount of a reasonable fee. (WALSH and SANTOVENIA, JJ., concur.)
