REFCO, INC., APPELLANT,
v.
GUILLERMO SARMIENTO, APPELLEE
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Refco, Inc. appealed the trial court's dissolution of a garnishment order against Guillermo Sarmiento, a commodity brokerage account executive. The court affirmed, holding that Sarmiento's unpaid commissions qualified as exempt 'wages' under Florida law because he was an employee rather than an independent contractor.
The court held that Sarmiento's commissions were exempt wages under section 222.11, Florida Statutes, because he was an employee rather than an independent contractor, and therefore the garnishment order should be dissolved.
[1] Commissions earned by an account executive in a commodity brokerage firm can be considered "wages" under Florida Statutes section 222.11 when determining exemptions from…
[2] The determination of whether an individual is an employee or an independent contractor for purposes of wage garnishment exemptions is guided by tests developed from the R…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.”
The statutory basis for the wage exemption that Sarmiento relied upon under Florida law.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSarmiento worked as an account executive for Stotler & Co., a commodity brokerage firm in Miami. He earned commissions from his work taking orders for…
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PER CURIAM.
Refco, Inc. appeals from a final order of the trial court dissolving an order of garnishment against appellee Guillermo Sar-miento. We affirm.
The trial court, which entered the garnishment order initially, decided after a non-jury trial that the commissions earned by appellee as an account executive in a commodity brokerage firm were “wages” under section 222.11, Florida Statutes (1985). The statute states in relevant part:
No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.
Since appellee’s position as “head of a family residing in this state” is not disputed, the only issue remaining for our consideration is whether the unpaid commissions owed to appellee were due for his “personal labor or services;” that is to say, whether appellee was an employee or an independent contractor. Florida courts have consistently applied the tests developed by the Restatement (2d) of Agency (1958) and the common law in order to determine whether an individual is an employee or an independent contractor. Georgia-Pacific Corp. v. Charles, 479 So. 2d 140 (Fla. 5th DCA 1985); Ware v. Money-Plan International, Inc., 467 So. 2d 1072 (Fla. 2d DCA 1985). A plethora of cases exist which set those tests out at length. We will simply explain the factors relevant to our decision.
It is apodictic that the degree of control exercised by the company is a principal consideration in determining employment status. F & G Distributors, Inc. v. State, Department of Labor & Employment Security, 478 So. 2d 891 (Fla. 3d DCA 1985); United States Telephone Co. v. State, Department of Labor & Employment Security, 410 So. 2d 1002 (Fla. 3d DCA 1982). Appellee is employed in a highly regulated industry with strict compliance standards. As the company’s policies and procedures manual makes clear, 'all of appellee’s work was supervised to some extent. Thus, while appellee could solicit new accounts from his various contacts, he could not transact any business for these new clients until his supervisor gave the final approval. Appellee’s supervisor had to approve, initial and date all orders executed out of accounts over which appellee had discretionary trading authority. The supervisor’s approval was needed before appellee could execute an order from a “problem” account. The supervisor was responsible for the day to day supervision of all accounts supervised by the office.
Furthermore, appellee worked exclusively for Stotler & Co., in Miami, without any employment contract. The company furnished all equipment, work space, support personnel and seats on the various commodities exchanges. Stotler & Co. is a commodity brokerage firm. Appellee’s job was to take orders from clients for commodity futures contracts. Taxes were withheld from appellee’s earnings. Appel-lee’s supervisor, the district resident manager of the Miami office, said appellee was an “employee.” It is these factors which distinguish this case from In Re Moriarty, 27 B.R. 73 (Bankr.M.D.Fla.1983), an opinion upon which appellant heavily relies.
Finally, as appellant noted, the purpose of the exemption statutes is to prevent the debtor and his family from becoming a public charge or an object of charity and the statutes should be liberally construed in favor of the debtor. Sokolsky v. Kuhn, 405 So. 2d 975, 977 n. 1 (Fla.1981); Killian v. Lawson, 387 So. 2d 960 (Fla.1980); Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931). Courts should carefully scrutinize situations where, as here, a writ of garnishment is asserted against a family’s sole income.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vining v. Segal, 731 So. 2d 826 (Fla. 3d DCA 1999)…from garnishment hinges on whether the account monies represent Segal’s “earnings” for his “personal services or labor.” § 222.11(l)(a), Fla. Stat. (1997). See Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Refco, Inc. v. Sarmiento, 487 So. 2d 75 (Fla. 3d DCA 1986). Segal testified that the four accounts in question hold the proceeds from his dental practice. Segal operates two offices as a sole proprietorship. Segal uses these accounts to pay taxes, payroll, insurance, and expenses— both pe…
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Vining v. Martyn, 858 So. 2d 365 (Fla. 3d DCA 2003)…the funds do not qualify for the statutory exemption. See In re: Zamora, 187 B.R. 783 (Bankr.S.D.Fla.1995); Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Vining v. Segal, 731 So. 2d 826 (Fla. 3d DCA 1999); Refco, Inc. v. Sarmiento, 487 So. 2d 75 (Fla. 3d DCA 1986). Vining also argues that the oath was insufficient to support the opposition affidavit filed by Martyn’s counsel. In absence of a transcript, we have been unable to determine whether this argument was timely called to the trial c…
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In re Schlein v. Mills, 8 F.3d 745 (11th Cir. 1993)…e court’s statement that the defendant in Patten was an independent contractor to be dictum and not determinative of the issue. However, a more recent Florida Court of Appeals decision has read Patten to the contrary. In Refco, Inc. v. Sarmiento, 487 So. 2d 75 (Fla.Dist.Ct.App.1986), a creditor appealed from an order dissolving an order of garnishment relating to the commissions earned by the debtor as a commodities brokerage account executive. The debtor relied on the same Fla.Stat. § 222.11 that is in…
Authorities Cited
- Morehead v. The First Nat'l Bank of Lake City, 102 Fla. 522 (Fla. 1931)
- United States Tel. Co. v. State, 410 So. 2d 1002 (Fla. 3d DCA 1982)
- Killian v. Lawson, 387 So. 2d 960 (Fla. 1980)
- Sokolsky v. Kuhn, 405 So. 2d 975 (Fla. 1981)
- DeSoto Beach Improvement Co. v. Sias, 102 Fla. 603 (Fla. 1931)
- Patten Package Co. v. Houser, 102 Fla. 603 (Fla. 1931)
- Ware v. Money-Plan Int'l, Inc., 467 So. 2d 1072 (Fla. 2d DCA 1985)
- F & G Distribs., Inc. v. State, 478 So. 2d 891 (Fla. 3d DCA 1985)
- Georgia-Pacific Corp. v. Edmond Charles, 479 So. 2d 140 (Fla. 5th DCA 1985)