Opinion
No. 93-1143.
October 5, 1993. Rehearing Denied November 9, 1993.
Appeal from the Circuit Court, Dade County, Harold Solomon, J.
Anthony Dieguez, Hialeah, for appellant.
Shorenstein Lewis and Marvin Lewis, Miami, for appellee.
Before BARKDULL, JORGENSON and LEVY, JJ.
It appears that recovery in the trial court was predicated upon appellant's failure to pay appellee, an independent agent, a commission. An independent corporate agent cannot be deemed the employee of appellant. The award of attorney's fees pursuant to Section 448.08, Fla. Stat. (1978) was error. Caldwell-Davis Const. Corp. v. Hoover, 461 So.2d 973 (Fla. 3d DCA 1984); Miller v. Perez, 524 So.2d 1084 (Fla. 4th DCA 1988). Also, there was no finding by the trial court which would support an award of attorney's fees pursuant to Section 57.105, Fla. Stat. (1990). Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla. 1982); Hirtreiter v. Donovan, 594 So.2d 342 (Fla. 2d DCA 1992).
Therefore, the order awarding fees, be and the same is hereby reversed with directions to the trial court to issue an order denying same.