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Mellino v. Charles Kampinski Co.8/18/2005
{ } A jury awarded appellee/cross-appellant, Christopher Mellino ("Mellino"), $620,882 on his breach of an oral employment agreement claim against his former law firm, appellant/cross-appellee Charles Kampinski Co., L.P.A. (the "law firm"). The law firm appeals and Mellino cross-appeals. Finding merit to Mellino's first cross-assignment of error, we reverse and remand the matter to the trial court for a new trial.
I. THE RELATIONSHIP
{ } Mellino was an attorney at the law firm for 17 years. In those 17 years, the law firm mainly consisted of Mellino and Charles Kampinski ("Kampinski") and the law practice primarily focused on representing plaintiffs in their respective medical malpractice claims. When Mellino started at the law firm, he was paid wages equal to one percent of the attorneys' fees received by the firm. Each year he continued to work at the law firm Mellino received an additional one percent of the attorneys' fees received by the firm. By way of example, in his 17th year at the law firm, Mellino received 17% of the attorneys' fees the law firm received.
{ } Over the 17 years, the relationship between Kampinski and Mellino morphed from a clear employer-employee relationship into something more opaque. Although the law firm was registered with the Secretary of State as a corporation listing Kampinski as the sole owner and shareholder, the name of the law firm was changed in 1996 to "Kampinski & Mellino Co., L.P.A." (the letterhead and name on the office door was also changed) and the two men called each other "partner."
{ } Kampinski, the self-proclaimed "trial guy," began to spend more time physically out of the office and away from the law firm for weeks, sometimes months, out of the year and entrusted Mellino with the responsibilities of working up the cases, assisting the clients with discovery, and drafting motions and briefs prior to trial. Although Kampinski checked up on the law firm at numerous times throughout the day while he was away, Mellino appeared to be in charge handling the day-to-day operations of the law firm. Mellino testified that he hired and fired employees on behalf of the law firm, he signed contingent fee contracts with clients on behalf of the law firm, and had the authority to sign checks on behalf of the law firm.
{ } A line of credit with National City Bank, which Mellino signed, was taken out by the "partnership" of Kampinski & Mellino Co., L.P.A. for the purpose of paying the litigation expenses for the cases at the beginning of the year. Although Mellino was paid as an employee by virtue of the law firm issuing a W-2 Form to Mellino, Mellino's wages were computed on a percentage of the net revenue of the law firm. Mellino's wages constituted 17% of the attorneys' fees received by the law firm less 17% of estimated expenses for the law firm. For example, Mellino was responsible for 17% of the estimated expenses of the law firm including rent, utilities, telephone bills, and the salary of the third attorney. Although Mellino did not write a check to the law firm for his share of the expenses, it was directly deducted from his paycheck.
{ } In November 2001, Mellino left the law firm and established The Mellino Law Firm, LLC. Mellino testified that he chose to leave because he felt Kampinski took a case away from him that he was prepared to try and he had learned of sexual harassment allegations made by the law firm receptionist against Kampinski. After Mellino gave his notice that he was leaving the law firm and did not wrap up his workload to Kampinski's satisfaction, Kampinski changed the locks on the office door and changed the law firm's name back to "Charles Kampinski Co., L.
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