Terex Trailer Corp. v. McIlwain

579 So. 2d 237, 1991 WL 65359
CourtDistrict Court of Appeal of Florida
DecidedApril 29, 1991
Docket90-2969
StatusPublished
Cited by12 cases

This text of 579 So. 2d 237 (Terex Trailer Corp. v. McIlwain) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terex Trailer Corp. v. McIlwain, 579 So. 2d 237, 1991 WL 65359 (Fla. Ct. App. 1991).

Opinion

579 So.2d 237 (1991)

TEREX TRAILER Corporation, a Delaware Corporation; and K-H Corporation, a Delaware Corporation, Appellants,
v.
Arnold P. McILWAIN, Appellee.

No. 90-2969.

District Court of Appeal of Florida, First District.

April 29, 1991.

*239 C. Harris Dittmar and Charles P. Pillans of Bedell, Dittmar, DeVault & Pillans, Jacksonville, for appellants.

William G. Cooper of Coker, Myers, Schickel, Cooper & Sorenson, P.A., Jacksonville, for appellee.

JOANOS, Judge.

Terex Trailer Corporation and K-H Corporation (appellants) appeal an order of the trial court granting partial summary judgment in favor of Arnold P. McIlwain in his action to enforce the provisions of an employment contract. The primary issues in this appeal are: (1) the jurisdiction of this court to review the order granting partial summary judgment, (2) the jurisdiction of the circuit court to decide Count I of McIlwain's amended complaint, and (3) the propriety of the circuit court's award of specific performance. We affirm.

The employment contract which is the subject of this appeal indicates that McIlwain was employed as Executive Vice President of Maritime Operations of Fruehauf Corporation (now K-H), to serve as president and chief executive officer of Jacksonville Shipyards, Inc. Under the general provisions of the contract, in the event of a change of control of the company and McIlwain's termination other than for cause, McIlwain would be entitled to substantial benefits and compensation as set forth in paragraph 4(iv) of the contract.

The employment contract further provided that if McIlwain were terminated for cause, he could contest the termination by filing a notice of dispute within thirty days of receipt of the notice of termination, and by pursuing the dispute with reasonable diligence and in good faith. With a diligent, good faith termination dispute, the date of termination would be extended until the date the dispute was finally determined. Under the contract, during the pendency of a dispute, McIlwain would continue to receive "full compensation in effect when the notice giving rise to the dispute was given (including but not limited to, base salary and installments under any bonus or incentive compensation plan) and continue ... as a participant in all compensation, benefit and insurance plans" in which he was participating when the notice giving rise to the dispute was given, until the dispute was resolved. Upon a final determination that McIlwain's termination was for cause, the contract terms required him to "remit to the company the amount of any cash payments and the value of any non-cash benefits paid pursuant to this Subsection to which [he] would not otherwise have been entitled." The dispute resolution provision of the contract states:

Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Detroit, Michigan in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction; provided, however, that you shall be entitled to specific performance of your right to be paid until the Date of Termination during the pendency of any dispute or controversy arising under or in connection with this Agreement. The Company acknowledges that, because payment in accordance with such right to be paid may constitute your sole means of support, money damages paid at a later date as the result of arbitration hereunder will not constitute an adequate remedy for failure to make such payment. (Emphasis supplied.)

In 1989, Terex Trailer bought Jacksonville Shipyards from K-H, and assumed the obligations under the employment contract. On December 7, 1989, Terex Trailer notified McIlwain that he was being terminated for cause. On December 29, 1989, McIlwain gave notice that a dispute existed concerning his termination. McIlwain's initial complaint, filed January 22, 1990, sought specific performance of the contract provision calling for payment of his compensation after a disputed termination, and a mandatory injunction to enforce payment of compensation and benefits until resolution of the employment dispute. Appellants responded with affirmative defenses and a counterclaim.

*240 Subsequently, McIlwain filed an amended four-count complaint by stipulation of the parties. The amended complaint again sought specific performance to compel appellants to pay McIlwain his full compensation in effect at the time of notice of termination, a mandatory injunction to require appellants to continue payment of full compensation and other benefits during pendency of the employment dispute, specific performance of the parachute provisions of the contract, and damages for breach of those provisions. Appellants then responded with an answer, affirmative defenses, and counterclaim.

Thereafter, McIlwain filed a motion for partial summary judgment as to Counts I and II of the amended complaint. The motion alleged that, under the provisions of paragraph 3(d) of the contract, appellants were obligated to continue to pay McIlwain his full compensation during the pendency of the dispute. The motion further alleged that, as of November 27, 1989, when notice of termination was given, appellants ceased paying McIlwain his full compensation and benefits. Paragraph eight of the motion stated that since the defendants had not raised affirmative defenses which would legally defeat McIlwain's claim as set forth in Counts I and II of the amended complaint, he was entitled to the relief sought.

On September 4, 1990, the trial court entered the order granting partial summary judgment which is challenged in this appeal. As set forth in the order, the trial court found that McIlwain had pursued resolution of the dispute with reasonable diligence, and that defendants (appellants herein) had waived the arbitration provision for resolution of the termination dispute, which waiver was admitted in their answer to the amended complaint. The trial court rejected appellants' contentions that the existence of their affirmative defenses in the absence of affidavits contradicting them would preclude the entry of summary judgment, finding that appellants' affirmative defenses were inapplicable to the action for specific performance in Count I, in that such defenses went to the propriety of McIlwain's termination, and not to his entitlement to compensation during the pendency of the dispute. Accordingly, the trial court decreed specific performance of the termination dispute provision of the employment contract, requiring Terex Trailer and K-H to perform in accordance with the contract by continuing to pay McIlwain his full compensation from the date the notice giving rise to the dispute was given, including base salary and installments under any bonus or incentive compensation plan, and continuing McIlwain as a participant in all compensation, benefit, and insurance plans, until the dispute concerning his termination was finally resolved. The trial court further directed appellants to pay McIlwain all such past due base salary and other compensation benefits due as of and since December 7, 1989.

First, we consider and reject McIlwain's contention that this court lacks jurisdiction, or should decline to exercise jurisdiction, to review this case. The parameters of appellate jurisdiction to review non-final orders are set forth in Florida Rules of Appellate Procedure 9.130(a)(3) which provides in pertinent part:

(3) Review of non-final orders of lower tribunals is limited to those which:
.....

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Bluebook (online)
579 So. 2d 237, 1991 WL 65359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terex-trailer-corp-v-mcilwain-fladistctapp-1991.