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Langham: The End of a Relationship

By David Langham

Tuesday, April 9, 2019 | 496 | 0 | min read

The more intense the relationship, the more intense perhaps its dissolution.

Judge David Langham

Judge David Langham

I have been fortunate to never practice family law, but I have heard many stories from attorneys and judges. There is an intensity sometimes exhibited in the dissolution of a marriage; emotions are deep and they manifest in the way people treat one another. I have heard attorneys lament that the same intensity is displayed in litigation surrounding the dissolution of professional partnerships, also. 

But, the seemingly simple dissolution of the employment relationship may become intense and litigious. This was illustrated recently in Reasonable Fee May Be No Fee. Litigation arose from an employer's decision to withhold an employee's final paycheck to reimburse itself for some of the equipment the employee had allegedly broken. 

In February 2019, the Louisiana 5th Circuit Court of Appeal rendered Bernal v. Crecsent Foundations. The defendants asked the court to reverse a trial court judgment ordering it to pay a former employee $43,000. The case has some interesting legal issues, but the facts also evidence regrettable behavior in the termination of an employment relationship. 

The plaintiff alleged a work accident in March 2015. In April 2015, he said, he presented at the employer to pick up his tools and trailer. He found the trailer damaged, and was told by a manager that employees had damaged it by overloading it. While loading his other tools, the owner of the defendant "threatened to have plaintiff arrested for theft and trespassing unless he removed the tools from his truck." The plaintiff also "alleged that Austin (defendant) also verbally threatened him for retaining an attorney and filing a workers’ compensation claim." 

Plaintiff de-escalated the situation, "unloaded his truck and left without his tools and trailer." In the lawsuit that was later filed, he alleged that he thereafter made attempts to retrieve his property, without success.

The plaintiff filed suit and sought damages. A hearing was scheduled, with a pretrial conference to occur in July 2017. Plaintiff and defendant were ordered "to submit a pre-trial order prior to the conference." The defendant did not submit the pretrial. 

Plaintiff explained in his pretrial that after he filed the lawsuit, "defendants allowed him to retrieve his property on Nov. 15, 2015." However, that included only his tools. The defendant by then had allegedly “cut up the plaintiff’s damaged trailer for scrap and disposed of it.”

Furthermore, plaintiff "alleged that most of his tools were damaged and unusable because they were left outside, unprotected and exposed to the weather." Additionally, plaintiff alleged the defendant had filed "criminal charges against him for fraud and theft in August 2015, leading to his arrest and an overnight incarceration." 

Neither the defendant or counsel appeared for trial, and that morning "numerous attempts were made to contact defense counsel." Plaintiff's counsel expressed surprise that defense counsel did not appear and explained the circumstances to the judge.

Plaintiff alleged the parties had reached a settlement for $17,500 and had agreed they "would all appear on the morning of trial to sign a consent judgment." Plaintiff's counsel said the agreement was contingent upon the meeting to sign the judgment, and that parties had not yet resolved when the settlement funds would be paid. 

The judge "determined the parties had not confected (sic) a settlement agreement" and the case was instead tried. Plaintiff prevailed (remember, the defense was not there) and was awarded $47,500 including the value of the tools, the trailer, attorney fees defending the "fraudulent criminal charges," and compensation for "the two days of incarceration."

That judgment led to the review by the Circuit Court. 

The first point of legal interest was defendant's assertion that there was a settlement. The appellate court concluded "the record does not contain evidence of a writing that would constitute a settlement agreement." Therefore, it was not inappropriate for the trial judge to proceed with trial. 

The defendant complained that trial proceeded without defense counsel present. The court explained that there were explanations provided by defense counsel including schedule conflicts, a "family medical emergency" affecting an attorney in counsel's office, and documentation provided to the trial court after trial. But, the court noted "the record does not contain this information," because the defendant "did not introduce any evidence into the record explaining why defendants and their counsel failed to appear in court for trial." 

There are lessons in Bernal. Foremost, as also illustrated in Reasonable Fee, the end of an employment relationship may be acrimonious. And, actions taken during that dissolution can result in damage and litigation. In this instance, the litigation was expensive for the employer. The employee, however, spent 24 hours in jail on "fraudulent criminal charges."

In the end, a more amicable separation might have been advantageous for all involved. Does the employer wonder how much less expensive it would have been to allow plaintiff to load and take his tools that day?

The appellate opinion includes discussion of "retaliation" for filing a workers' compensation claim. There is little detail provided on this. In Florida, section 440.205 specifically precludes certain employer reaction to the filing of a claim:

"Coercion of employees. — No employer shall discharge, threaten to discharge, intimidate or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law."

Would that statute preclude the alleged actions of the employer in Bernal? Some would likely argue that the retention of plaintiff's property, and the threat and filing of criminal charges, might well be seen as both intimidating and coercive.

It is noteworthy that such claims in Florida are within the jurisdiction of the Circuit Court, not the Office of Judges of Compensation Claims. Thus, whether the actions met such standard would likely be for a jury to decide. 

Finally, a critical point of Bernal is that trials are the opportunity to present evidence and arguments. A lawyer should never assume that a trial is canceled or that a matter has been resolved. When a matter is settled, there should be a memorialization of that agreement, a contract. Certainly, it is possible to enter into verbal contracts, but in the world of litigation a written memorialization is always a comfort. And, for there to be a settlement, there must be agreement on the critical terms.

Agreements that are contingent on some action or event (meeting at the court) may not be final and therefore not enforceable. 

Attorneys would be well advised to assure final resolution before presuming there is no need to present as noticed for trial. Whenever an attorney cannot be present for a noticed event, it is best to make a record of that inability in writing. Filing a motion for continuance is an ideal method for informing the judge of conflict or difficulties.

Afterward, if that is the first opportunity, filing a motion for reconsideration with the evidence (an affidavit) of circumstances (medical emergency) attached may be wise. Each is also an excellent document to include in the appellate record if that need thereafter arises. It is each party's obligation to assure that the appellate record is complete regarding its respective issues and arguments. 

The lessons of Bernal are numerous. Never assume it is OK to not appear for hearing unless advised by the tribunal of cancellation. Never threaten people for exercising their rights. When a breakup becomes reality, move through it with as little emotion as possible. Let them take their possessions. Part company. Be done with the moment and sort out the details as necessary in court.

The employer here learned many lessons, and from most perspectives they were expensive.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.


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