George Uzelac & Associates, Inc. v. Guzik

663 N.E.2d 238, 1996 Ind. App. LEXIS 348, 1996 WL 149207

• Court: Indiana Court of Appeals
• Decided: March 29, 1996
• Docket: 64A03-9503-CV-78
• Status: Published

Opinions

OPINION

HOFFMAN, Judge.

Appellant-plaintiff George Uzelae & Asso-clates, Inc. appeals a negative judgment in favor of appellee-defendant Michael A. Guszik. The evidence relevant to the appeal is recited below.

George Uzelac & Associates, Inc., a property tax consulting firm, is operated by George Uzelac. The consulting firm analyzes the assessed valuation of commercial and industrial property to determine whether a client's property has been correctly assessed. If errors are discovered, the firm files appeals on behalf of the clients.

The firm employs sales representatives to acquire new clients. Guzik began work as a sales representative for the firm in July 1992. He signed an employment contract which included provisions for inter alia compensation on a commission basis, duties upon termination and non-competition. The compensation clause allowed employees to obtain advances on commissions, then make adjustments to the advanced amounts based upon the commissions actually earned once the firm provided an "accounting ... [of the] first calendar year commissions."

In February or March 1993, Guzik left employment with the firm. During the seven-month period of employment, Guzik obtained advances of approximately $8,800.00. The firm did not provide an accounting. The firm filed a complaint for return of the advances based on the contract.

Guzik filed a counterclaim which, according to the material in the record, was taken under advisement. The parties do not argue any error based upon the counterclaim.

After a trial without the intervention of a jury, the trial court determined that the contract did not provide for repayment of advances after terimination of employment. The court denied recovery to the firm. This appeal ensued.

The firm raises issues for review alleging errors in the admission of parol evidence. However, as restated, the dispositive issue is whether the trial court's finding that the contract does not provide for repayment of advances in the present case is clearly erroneous and contrary to law.

The firm is appealing from a negative judgment. When reviewing an appeal from a negative judgment, the cause will be reversed only if the judgment is contrary to law; that is, the evidence is without conflict and leads to but one conclusion which is contrary to that reached by the trial court. Calumet Nat. Bank v. Amer. Tel. & Tel., 647 N.E.2d 689, 690-691 (Ind.Ct.App.1995). In determining whether the decision is contrary to law, this Court will neither reweigh the evidence nor judge the credibility of witnesses. Matter of Paternity of K.M., 651 N.E.2d 271, 276 (Ind.Ct.App.1995).

Absent ambiguity, the terms of a contract will be given their plain and ordinary meaning. The terms of a contract are not considered ambiguous merely because controversy exists between the parties concerning the proper interpretation of terms. Where terms are clear and unambiguous, they are conclusive and this Court will not construe the contract or view extrinsic evidence, but will instead apply the contractual provisions. Ostrander v. Bd. of Directors, Porter, 650 N.E.2d 1192, 1196 (Ind.Ct.App.1995).

Here, as found by the trial court, the terms are unambiguous. The provision, which requires an employee to return excess advances not earned after an accounting is provided, does not make any provision for non-employees or former employees who have left employment with the firm. The portions of the contract regarding duties upon termination of employment do not refer to reimbursements.

In relevant part, the contract states:

"As compensation for services, Company shall pay employee a commission based upon fees resulting from the contracts and/or business from client obtained for Company through the primary sales efforts of employee for first year tax savings only. Employee will not be entitled to any commission or any other compensation resulting from any other income received by or on behalf of Company, including client property tax refunds for prior years and/or client property tax savings for future years, regardless if the client was obtained for Company through the primary sales efforts of employee. Said commissions will be in the amount of thirteen percent (18%) of said fees received by Company from time to time during the actual period employee is in the employ of Company from the clients obtained for Company through the sales efforts of employee. Employee shall receive an advance towards to [sic] commissions based upon the following formula: 85% of monthly commissions based upon the Company's tax staff projections of first year consultant fees which are adjusted semi-annually (June 20th-December 20th), to be commissions based on actual first year tax savings only consultant fees, less any advances of commissions paid to employee by Company. Said advances, however, shall be deducted from commissions ultimately due and shall be paid on a monthly basis. If employee, however, is advanced more monies than he earns for the calendar year, then employee shall reimburse same to Company within thirty (30) days after employee has been furnished an accounting by the Company of his first calendar year commissions...."

According to the firm, the provision is not complex and need not be construed because the terms are unambiguous. The firm contends that although no accounting was ever supplied by the firm, Guzik earned only $130.00 for his work from July 1992 through February 1993 because all other clients obtained by Guzik did not realize tax savings during the time of Guzik's employment. Under the contract provisions, sales representatives earned remuneration solely through commissions. The firm paid commissions when two conditions were met: 1) the client obtained by the sales representative actually realized tax savings and 2) the sales representative who obtained the client was still in the employ of the firm. Accordingly, if the firm did not quickly commence the process whereby clients realized a tax savings or when a lengthy process was required for a tax savings, the sales representatives were not entitled to commissions for years after acquiring the clients.¹ Thus, when Guzik left the employ of the firm, the potential commissions inured to the benefit of the firm.

Interestingly, the firm bases its request for return of approximately $1,000.00 per month in unearned commissions upon one phrase within the document. Then, the firm ignores its failure to comply with the terms of the provision requiring it to furnish an employee with an accounting. Further, the firm would have the term employee include an ex-employee by implication. As distilled, the firm desires the contract to be read as written only as to the portions of the provisions favorable to its position.

However, if the firm desires terms to be construed differently than written, the contract does require construction. Ambiguous contracts are construed against the drafter. See Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1132 (Ind.1995). The firm drafted the contract. Also, when examining a contract it is viewed as a whole, not each item in isolation. Riffle v. Knecht Excavating, Inc., 647 N.E.2d 334, 339 (Ind.Ct.App.1995). Thus, the firm's position that only the obligations it intended to impose upon Guzik are proper is not sustainable whether the contract is viewed as ambiguous or unambiguous.

The trial court did not err in finding the contract unambiguous and determining that the contract, as written, is silent as to whether former employees must repay advances. The firm's other issues, including allegations of error in admission of extrinsic evidence, are moot. The trial court did not rely on evidence outside of the contract.

The trial court's judgment is affirmed.

Affirmed.

CHEZEM, J., concurs. STATON, J., dissents with separate opinion.

1 . Commissions are paid only on first year tax savings when the first year tax savings are actually realized. However, they may not be realized until years after clients are obtained. This is so due to delays by the firm in initiating administrative and/or judicial proceedings for redetermination, and due to the lengthy process between initiation and final resolution.