METROPOLITAN DADE COUNTY, APPELLANT,
v.
NORBERT J. STEIN, APPELLEE
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In this employment law case, the court addressed whether a wrongfully discharged county employee was entitled to merit pay increases and attorney's fees as part of his back pay award. The court affirmed the merit increases but partially reversed the attorney's fees award, limiting it to fees incurred after the statutory authorization date.
The court held that the employee is entitled to merit pay increases because the county's own regulations provided for such increases and denying them would violate the employee's right of review. However, attorney's fees could only be awarded for the period after July 1, 1978, when statutory authorization first existed, not for work performed before that date.
[1] A wrongfully discharged employee is entitled to merit increases that would have been received absent the discharge, provided county regulations allow for such increases f…
[2] Attorney's fees are not recoverable in the absence of a contract or a specific statute authorizing their award.
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Join FLexlaw to unlock all legal intelligence“To now deny the employee the merit increases would put him in the position of no right of review, as permitted by the County's own regulations.”
Establishes that the county cannot arbitrarily deny merit increases when its own regulations provide for them and guarantee a right of review.
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Join FLexlaw to unlock all legal intelligenceNorbert Stein was a county employee wrongfully discharged. In a prior 1974 decision, the court had already found the discharge wrongful. The trial cou…
The full statement of facts, procedural history, and disposition for this case are member content.
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BARKDULL, Judge.
Subsequent to this court’s opinion in Metropolitan Dade County v. Stein, 296 So. 2d 643 (Fla. 3d DCA 1974), this matter recurred in the trial court for determination of the amount of back pay the wrongfully discharged employee was entitled to. The trial court, in addition to the normal pay and increases, awarded the usual and ordinary merit increases plus attorney’s fees for securing the back pay. The County appeals and urges error in granting the merit raises and attorney fees.
As to the merit increase, we affirm because the County regulations provide as follows:
“Administrative Order No. 7-19. Performance Evaluation.
“Employees whose overall evaluation is ‘unsatisfactory’ or ‘needs improvement’ will have their merit increase deferred. Deferrals of merit increases shall be for ‘specific periods’ of time, not to exceed six months; .
“Employees whose overall evaluation is ‘satisfactory’ or higher shall receive the annual merit increase for which they are eligible under the Pay Plan.
“The permanent employee, or conditional employee who has completed service equal to probation, who has received an overall evaluation of ‘unsatisfactory’ or ‘needs improvement’, may request an appeal within ten (10) calendar days after receipt of the evaluation by making a request in writing to the Personnel Division Director. “The Personnel Division Director will appoint a three person supervisory-level panel, none of whom shall be from the appealing party’s department, to act as an informal fact-finding committee.
To now deny the employee the merit increases would put him in the position of no right of review, as permitted by the County’s own regulations.
As to the attorney’s fees, they were not provided for by statute until July 1, 1978 [Section 448.08, Florida Statutes (Supp.1978); Ch. 78-327, General Laws of Florida 1978] and there were no contract provisions calling for attorney’s fees. Therefore, under the applicable authority [Kittel v. Kittel, 210 So. 2d 1 (Fla.1967); Campbell v. Maze, 339 So. 2d 202 (Fla.1976); Meyerson v. Cohen, 348 So. 2d 930 (Fla. 3d DCA 1977); Dade County v. Grossman, 354 So. 2d 131 (Fla. 3d DCA 1978)], there being no contract or statute applicable prior to July 1, 1978, no attorney’s fees should have been awarded for services rendered prior to this date. The trial judge recognized he could not award attorney’s fees without a statute or contract; however, he felt he could award same under his general equity powers. We find this to be error. Tamiami Abstract and Title Company v. Malanka, 185 So. 2d 493 (Fla. 2d DCA 1966); Schwartz v. Biscontini, 187 So. 2d 81 (Fla. 3d DCA 1966). However, it appears that the period of time for which the wrongfully discharged employee is recovering back wages extends from March 9, 1972 to June 20, 1979, a part of which is subsequent to July 1, 1978. The recovery of back wages being in the nature of a continuing claim, the wrongfully discharged employee would be entitled to attorney’s fees expended on his behalf in securing the back wages for the period subsequent to July 1, 1978. Therefore, we reverse the award of attorney’s fees as entered and remand the cause to the trial court with instructions to determine and award the amount of fees, if any, that were earned subsequent to July 1, 1978.
Affirmed in part; reversed in part with directions.
Cases With Similar Vibessemantic neighbors from the corpus
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Dade Cnty. v. PEÑA, 664 So. 2d 959 (Fla. 1995)…t of Appeal reversed the circuit court’s order and held that section 448.08 also applied to the administrative proceeding which resulted in Peña’s reinstatement. The district court relied on its earlier decision in Metropolitan Dade County v. Stein, 384 So. 2d 167 (Fla. 3d DCA 1980), but certified direct conflict with Werthman v. School Board, 599 So. 2d 220 (Fla. 5th DCA 1992), and Davis v. School Board, 646 So. 2d 766 (Fla. 1st DCA 1994), on this issue. This Court follows the “American Rule” that attorney’…
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Gulf Solar, Inc. v. Westfall, 447 So. 2d 363 (Fla. 2d DCA 1984)…s fees “on the basis the commissions are not wages.” There appear to be only two Florida cases which discuss section 448.08. They are Doyal v. School Board of Liberty County, 415 So. 2d 791 (Fla. 1st DCA 1982) and Metropolitan Dade County v. Stein, 384 So. 2d 167 (Fla. 3d DCA 1980). Neither case is relevant to the case sub judice, and neither offers a definition of “wages.” Westfall refers us to section 440.02(12), Florida Statutes (1981), and section 443.-036(31)(a), Florida Statutes (1981). Each section o…
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Coleman v. City OF Hialeah, 525 So. 2d 435 (Fla. 3d DCA 1988)…96 So. 2d 946 (Fla. 2d DCA 1986) (unpaid "compensation"); Doyal v. School Bd. of Liberty County, 415 So. 2d 791 (Fla. 1st DCA 1982) (school superintendent refused to sign salary warrants for school board employee); Metropolitan Dade County v. Stein, 384 So. 2d 167, 168 (Fla. 3d DCA 1980) (certiorari review of county manager’s dismissal of county employee; employee sought reinstatement and back pay). . Gulf Solar, Inc. v. Westfall, 447 So. 2d 363, 366-67 (Fla. 2d DCA 1984); Gulfstar Yacht Sales, Inc. v. Bisse…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kittel v. Anne B. Kittel, 210 So. 2d 1 (Fla. 1967)
- Allie William Campbell v. Maze, 339 So. 2d 202 (Fla. 1976)
- Dade Cnty. v. Honorable Rhea P. Grossman, 354 So. 2d 131 (Fla. 3d DCA 1978)
- Metro. Dade Cnty. v. Norbert J. Stein, 296 So. 2d 643 (Fla. 3d DCA 1974)
- Isadore Schwartz v. Biscontini, 187 So. 2d 81 (Fla. 3d DCA 1966)
- Sol W. Meyerson v. Cohen, 348 So. 2d 930 (Fla. 3d DCA 1977)
- The Am. Emp'rs Ins. Co. & Roderick E. Chandler, Jr. v. The Hanover Ins. Co., 185 So. 2d 493 (Fla. 4th DCA 1966)
- Tamiami Abstract & Title Co. v. Malanka, 185 So. 2d 493 (Fla. 2d DCA 1966)