WILLIAM VAN DUSEN, APPELLANT,
v.
SINGLE PLY INTERNATIONAL, INC. OF FLORIDA, APPELLEE
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The court held that disputed factual issues regarding earned commissions and authorized manual labor preclude summary judgment.
Plaintiff sued for unpaid commissions and salary based on an employment contract. Defendant claimed offsets and denied authorization for manual labor,…
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ORFINGER, Judge.
Plaintiff below appeals a summary final judgment entered in favor of defendant Single Ply International, Inc. of Florida (Single Ply). We reverse.
Van Dusen sued Single Ply on the basis of an employment contract, alleging that he was due commissions on roofing jobs which he had estimated for his employer, and that he was also due salary for performing manual labor at the employer’s request. Defendant claimed offsets against the commissions and denied that plaintiff had been authorized to perform manual labor. Defendant’s affidavits do not conclusively demonstrate the absence of any issue of material fact, and are disputed by plaintiff’s affidavits. Thus factual issues remain for trial. Moreover, we are not impressed with Single Ply’s assertion that when it terminated Van Dusen’s employment, as it apparently had a right to do under the employment contract, it was no longer obligated to pay Van Dusen the commissions he claims he earned prior to termination, just because the jobs for which the commissions were allegedly earned were not commenced until after his employment terminated.
Van Dusen’s motion for attorney’s fees under section 448.08, Florida Statutes (1987) is premature, because it has not yet been determined that he is the prevailing party in the litigation, although he has prevailed on appeal. See Publix Super Markets v. Cheesbro Roofing, Inc., 502 So. 2d 484 (Fla. 5th DCA 1987).
REVERSED and REMANDED for further proceedings.
COWART and GOSHORN, JJ., concur.
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Fleming v. Urdl's Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989)…exceed the combined contract balance and extras, the appellee will once again be the prevailing party. Our ruling makes all determinations concerning who is the prevailing party premature. See Van Dusen v. Single Ply International, Inc. of Florida, 545 So. 2d 960 (Fla. 5th DCA 1989). The parties are advised a prevailing party is also entitled to prejudgment interest. Ferrell v. Ashmore, 507 So. 2d 691 (Fla. 1st DCA 1987). REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES AND FOR FURTHER PROCEEDINGS CONSISTE…
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