Lester v. Kahn-McKnight Co.

District Court of Appeal of Florida

Lester v. Kahn-McKnight Co.

521 So. 2d 312, 13 Fla. L. Weekly 621, 1988 Fla. App. LEXIS 860, 1988 WL 18598

CourtDistrict Court of Appeal of Florida

DecidedMarch 8, 1988

DocketNo. 87-1423

StatusPublished

Cited by2 cases

This text of 521 So. 2d 312 (Lester v. Kahn-McKnight Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lester v. Kahn-McKnight Co., 521 So. 2d 312, 13 Fla. L. Weekly 621, 1988 Fla. App. LEXIS 860, 1988 WL 18598 (Fla. Ct. App. 1988).

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Opinion

SCHWARTZ, Chief Judge.

Early in 1980, the appellant Lester was employed as a real estate salesman by the appellee Kahn-McKnight. He was given a $1,000 monthly draw “against commissions.” Six months later, having earned no commissions, Lester left Kahn-McKnight. He signed an agreement promising to repay the $6,000 he had received in draws. In the instant action, Kahn-McKnight sued and won a summary judgment for the $6,000. Lester appeals.

In the absence of a specific undertaking to repay the amount of a draw upon commissions — which did not exist here — the draw is considered as a plain and simple [313]*313salary which, except as a set-off against earnings, the employee has no obligation to return. Tannen v. Equitable Life Ins. Co., 303 So.2d 352 (Fla. 3d DCA 1974); see also Placet, Inc. v. Ashton, 368 So.2d 404, 409-10 (Fla. 3d DCA 1979) (promise to pay draw against commissions in future requires payment of amount of draw even if commission is unearned), cert. denied, 378 So.2d 343, 347 (Fla.1979). It follows that Lester’s post-employment written promise was supported by no consideration and was therefore unenforceable as a matter of law.

On this basis, the judgment below is reversed with directions to enter one in Lester’s favor.

Reversed.

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SCHWARTZ, Chief Judge.

Early in 1980, the appellant Lester was employed as a real estate salesman by the appellee Kahn-McKnight. He was given a $1,000 monthly draw “against commissions.” Six months later, having earned no commissions, Lester left Kahn-McKnight. He signed an agreement promising to repay the $6,000 he had received in draws. In the instant action, Kahn-McKnight sued and won a summary judgment for the $6,000. Lester appeals.

In the absence of a specific undertaking to repay the amount of a draw upon commissions — which did not exist here — the draw is considered as a plain and simple [313]*313salary which, except as a set-off against earnings, the employee has no obligation to return. Tannen v. Equitable Life Ins. Co., 303 So.2d 352 (Fla. 3d DCA 1974); see also Placet, Inc. v. Ashton, 368 So.2d 404, 409-10 (Fla. 3d DCA 1979) (promise to pay draw against commissions in future requires payment of amount of draw even if commission is unearned), cert. denied, 378 So.2d 343, 347 (Fla.1979). It follows that Lester’s post-employment written promise was supported by no consideration and was therefore unenforceable as a matter of law.

On this basis, the judgment below is reversed with directions to enter one in Lester’s favor.

Reversed.

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Bluebook (online)

521 So. 2d 312, 13 Fla. L. Weekly 621, 1988 Fla. App. LEXIS 860, 1988 WL 18598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lester-v-kahn-mcknight-co-fladistctapp-1988.

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