Wheeler v. WHEELER, ERWIN & FOUNTAIN, PA

964 So. 2d 745, 2007 WL 2301268
CourtDistrict Court of Appeal of Florida
DecidedAugust 14, 2007
Docket1D06-2665, 1D06-4334
StatusPublished
Cited by15 cases

This text of 964 So. 2d 745 (Wheeler v. WHEELER, ERWIN & FOUNTAIN, PA) 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
Wheeler v. WHEELER, ERWIN & FOUNTAIN, PA, 964 So. 2d 745, 2007 WL 2301268 (Fla. Ct. App. 2007).

Opinion

964 So.2d 745 (2007)

R. Lamar WHEELER, Appellant,
v.
WHEELER, ERWIN & FOUNTAIN, P.A., a dissolved Florida professional corporation, and Erwin, Fountain & Jackson, P.A., a Florida professional association, Appellees.

Nos. 1D06-2665, 1D06-4334.

District Court of Appeal of Florida, First District.

August 14, 2007.
Rehearing Denied September 20, 2007.

*746 Earl M. Barker, Jr., of Slott, Barker & Nussbaum, Jacksonville, and Tyrie A. Boyer *747 of Boyer, Tanzler & Sussman, Jacksonville, for Appellant.

Michael J. Korn, and Tonya H. Walker of Korn & Zehmer, P.A., Jacksonville, for Appellees.

WEBSTER, J.

In these two consolidated appeals, appellant seeks review of two final judgments. Because we conclude that the trial court erred when it entered judgment against appellant on his claim seeking payment pursuant to a deferred compensation agreement, we reverse that portion of the first judgment and remand with directions that the trial court enter judgment for appellant on that claim. We also reverse the second judgment, and remand for further proceedings consistent with this opinion on the claims addressed in that judgment.

In 1988, appellant entered into agreements to make his two staff accountants equal shareholders in his public accounting practice, which became known as Wheeler, Erwin & Fountain, P.A. The three contemporaneously executed a Stock Restriction and Retirement Agreement, an Employment Agreement and a Deferred Compensation Agreement. The Stock Restriction and Retirement Agreement provided that, if a stockholder became disabled or died, the other stockholders were obliged to purchase the disabled or dead stockholder's stock. It further provided that, if a stockholder ceased his employment with the firm for any other reason, he was deemed to offer his stock for sale, giving the other stockholders the option either to purchase the stock or to dissolve the firm in accordance with the agreement's terms.

The Deferred Compensation Agreement provided in paragraph 1, entitled "Date of Retirement":

The Employer [appellee Wheeler, Erwin & Fountain, P.A.] agrees that the Employee may retire or withdraw from the employment of the Employer upon delivery to the Employer of written notice of the Employee's intention to retire or withdraw from the employment of the Employer, provided that such written notice shall be given at least ninety (90) days prior to the date of such actual retirement or withdrawal. The date of such actual retirement shall be specified in the written notice and shall hereinafter be referred to as the "Retirement Date."

The agreement further provided in paragraph 2 that, "[u]pon the close of business on the Retirement Date of the Employee, the Employer shall become obligated to pay to the Employee on account of his retirement each month an amount equal to one-sixtieth (1/60) of the Employee's Deferred Compensation Benefit . . . for a period of sixty (60) consecutive months." Paragraph 5 of the agreement provided that "[t]he value of the Deferred Compensation Benefit payable in the event of the retirement . . . of the Employee shall be an amount equal to twenty and 83/100 percent (20.83%) of the gross fees billed and collected by the Employer determined as of the close of the fiscal year immediately preceding . . . the Retirement Date. . . ."

In 1997, a fourth person was admitted as a stockholder, and further contracts were prepared. The Deferred Compensation Agreement was amended to change the percentages used to calculate the deferred compensation benefit, revised employment agreements were executed, and the new firm member acceded to the Stock Restriction and Retirement Agreement. The employment agreements included a nonsolicitation clause which provided, as an exception, that "the Employee may accept employment with, solicit the services *748 of, or seek remuneration from any clients or customers of the Employer where Employee was, as of the date of termination of employment, the billing manager of such client or customer. . . ."

Appellant subsequently delivered a letter to each of the other stockholders which stated:

In view of recent events I have decided that I will retire and withdraw from Wheeler, Erwin & Fountain effective 90 days from the date of this letter or, if you agree, as of October 31, 1999. I believe that recent events have rendered untenable any attempt for me to continue as a member of Wheeler, Erwin & Fountain, P.A. Since I founded the firm and introduced all of you to its practice, acknowledgment of the reality that I no longer can continue in the firm is a profound disappointment to me. I will continue my practice of accountancy in other offices.

The parties eventually agreed that appellant's last day would be November 2, 1999. The next day, appellant opened a new public accounting practice. A few weeks later, appellant received written notice of intent to dissolve Wheeler, Erwin & Fountain pursuant to the Stock Restriction and Retirement Agreement. Soon thereafter, the other three stockholders commenced practicing accounting as Erwin, Fountain & Jackson, P.A.

Appellant subsequently filed suit, alleging (among other things) that Wheeler, Erwin & Fountain, P.A., had breached the Deferred Compensation Agreement by failing to pay him according to its terms; and that Erwin, Fountain & Jackson, P.A., was liable for that breach on a number of theories. Erwin, Fountain & Jackson eventually moved to bifurcate the action; stay discovery as to the claims against it; and proceed to trial on the claim for breach of the Deferred Compensation Agreement only, because the claims against it required that appellant first obtain a judgment against Wheeler, Erwin & Fountain on the breach of contract claim. The trial court granted that motion.

A nonjury trial was held on the claim alleging breach of the Deferred Compensation Agreement. Over objection that the Deferred Compensation Agreement was unambiguous and, therefore, there was no reason to consider parol evidence, the trial court permitted the attorney who had drafted the Deferred Compensation Agreement and the Stock Restriction and Retirement Agreement to testify at length as to the parties' intent regarding those agreements. He testified that the Deferred Compensation Agreement provided for a deferred compensation benefit to be based on the overall value of the firm. The intent was to create a structure in which the value of the firm would be split between the Stock Restriction and Retirement Agreement and the Deferred Compensation Agreement. This provided a tax advantage. No money was actually being put aside to pay deferred compensation. The Deferred Compensation Agreement permitted a party either to "retire" or to "withdraw," with the latter term intended to permit a party the option of continuing the practice of public accounting elsewhere. However, the Stock Restriction and Retirement Agreement contemplated that, if a party elected to leave, the other stockholders would have the option of either remaining in business or dissolving the firm. According to the drafting attorney, the intent was that, if the remaining stockholders elected to dissolve the firm, the Deferred Compensation Agreement would become "moot" because the intent was that deferred compensation would be paid only if the firm elected to remain in business. However, the drafting attorney conceded that the Deferred Compensation *749

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Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 745, 2007 WL 2301268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-wheeler-erwin-fountain-pa-fladistctapp-2007.