426 S.W.3d 743
Tenn.2013Background
- Cynthia L. Vukich-Daw sold time-share interests for Westgate under a 2003 independent-contractor agreement; she was licensed as a time-share salesperson by the Tennessee Real Estate Commission and was paid on commission.
- Westgate terminated the relationship in 2009; Vukich-Daw filed for unemployment benefits and received them from the Department of Labor, which initially concluded the "qualified real estate agent" exclusion did not apply.
- Appeals Tribunal found Westgate treated Vukich-Daw as an employee and awarded benefits; the Board of Review affirmed but additionally held time-share salespersons were not "licensed real estate agents," so the exclusion did not apply.
- Chancery Court reversed the Board, holding time-share salespersons are "licensed real estate agents" and that Vukich-Daw met the statutory criteria for the qualified real estate agent exclusion, making her ineligible for benefits.
- Court of Appeals reversed the chancery court; the Tennessee Supreme Court granted review, concluded as a matter of law that time-share salespersons are "licensed real estate agents," and reinstated the chancery court judgment.
Issues
| Issue | Plaintiff's Argument (Vukich-Daw) | Defendant's Argument (Westgate) | Held |
|---|---|---|---|
| Whether a time-share salesperson is a "licensed real estate agent" under Tenn. Code Ann. § 50-7-207(c)(11)(A) | Time-share licenses are limited and different from broker/affiliate licenses; thus time-share salespersons are not within the statutory term | Legislative history and statutory scheme treat time-share salespersons as a licensing category under the Real Estate Broker Act; they are "licensed real estate agents" | Time-share salespersons are "licensed real estate agents" for the exclusion (A) |
| Whether substantially all remuneration was commission-based under § 50-7-207(c)(11)(B) | N/A (undisputed) | N/A (undisputed) | Vukich-Daw was paid on commission; criterion (B) satisfied |
| Whether services were performed under a written contract excluding employee status for FUTA under § 50-7-207(c)(11)(C) | The written agreement is a sham if Westgate treated her as an employee (so tribunal findings should control) | The independent-contractor agreement and affidavit (1099, tax responsibility) satisfy the statutory contract requirement; if excluded, common-law/ABC tests are irrelevant | The written independent-contractor agreement satisfied (C); tribunal findings about employment status are irrelevant once exclusion applies |
| Effect of exclusion on unemployment eligibility | N/A | N/A | Because all three exclusion criteria were met, Vukich-Daw is a statutory non-employee and ineligible for unemployment benefits |
Key Cases Cited
- Wallace v. Sullivan, 561 S.W.2d 452 (Tenn. 1978) (Board of Review legal conclusions reviewed de novo)
- Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301 (Tenn. 2008) (primary rule: ascertain legislative intent when interpreting statutes)
- Casper v. State, 297 S.W.3d 676 (Tenn. 2009) (presumption legislature aware of existing law; look beyond text when ambiguous)
- Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010) (statutes on same subject should be construed together)