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Commission Fight Goes to Trial

Deborah Elkins//December 5, 2016

Commission Fight Goes to Trial

Deborah Elkins//December 5, 2016

A Charlottesville Circuit Court iden­tifies multiple outstanding issues of ma­terial fact in this dispute over whether, under an oral contract, plaintiff contin­ued to be entitled to commissions after a change in his job with defendant; the court denies defendant’s motion for summary judgment in the case.

While it is true there is no dispute about certain basic facts (e.g., the par­ties agree there was no written contract but there was an oral contract regard­ing commissions), virtually all other as­pects of that agreement, as well as cer­tain other facts bearing on this claim, are in dispute.

It is clearly disputed what the terms of such initial agreement were. Was it based on accounts obtained or procured, or accounts managed or serviced? If it was based on accounts procured, could or did defendant change or attempt to change such unilaterally? When plain­tiff was removed or “demoted,” was it a valid action by the board? Did plaintiff ’s acceptance of pay in his new position in­dicate his acceptance of all of the terms of the purported new contract? Did the terms of the new position really pre­clude his entitlement to commissions from his then-existing accounts? Specif­ically, what was communicated between the parties regarding these matters?

All of these are factual inquiries, or mixed questions of law and fact, that need to be resolved and established by evidence. That being the case, summary judgment, in my view, is just not appro­priate.

Requests for admission

Defendant puts forth several respons­es to requests for admissions as support for its assertion that there are no issues of disputed fact. However, they are re­plete with denials of the very facts de­fendant says are not in dispute.

Defendant claims that Exhibits 3-5 also show that under the oral agreement sales employees need to be actually en­gaged in servicing accounts to qualify for commissions. Defendant may be able to prove that, but those exhibits do not, in the court’s view, establish such as a matter of undisputed fact. Those exhib­its at this stage are allegations. They are emails, and not even from or to the plaintiff, and are not signed by anyone; while they may be offered as proof of defendant’s assertions, they do not in and of themselves resolve the factual question.

Just because defendant may ulti­mately be able to prove something does not mean that it does not have to fur­nish such proof in order to prevail. The existence (or not) of the express or im­plied contracts and their terms, and the nature and terms of plaintiff ’s contin­ued employment, are factual questions to be decided by the jury. And the legal question of the effect of the position he continued in on his ability to receive, and his entitlement to, commissions is at least partially dependent on these factual issues.

Similarly, whether there was a “no­vation” based on acceptance of a “new position” with certain conditions which extinguished the prior oral agreement is also a factual question, or at least a legal question based on factual findings relating to his duties as Director of En­gineering, which I believe the record thus far is insufficient to determine, and plaintiff is entitled to present evi­dence countering defendant’s assertion on this point.

Because I believe that granting sum­mary judgment would improperly and prematurely preclude the presentation of evidence on factual issues underlying both plaintiff ’s and defendant’s claims, I will deny the motion.

Friend v. Stu-Comm Inc. (Moore) No. CL 13-158, Oct. 10, 2016; Charlottesville Cir.Ct.; Scott A. Simmons, Joan C. McK­enna for the parties. VLW 016-8-125, 5 pp.

VLW 016-8-125

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