Ward v. Dennis Oil Co.

560 S.W.3d 38
CourtMissouri Court of Appeals
DecidedSeptember 11, 2018
DocketNo. SD 35159
StatusPublished
Cited by2 cases

This text of 560 S.W.3d 38 (Ward v. Dennis Oil Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Dennis Oil Co., 560 S.W.3d 38 (Mo. Ct. App. 2018).

Opinion

DON E. BURRELL, P.J.

Larry Ward ("Employee") appeals a judgment in favor of Dennis Oil Company ("Employer") on his claim for unpaid commissions.1 Finding no merit in any of Employee's claims of reversible error, we affirm.

The Evidence

Our standard of review requires us to view the evidence in the light most favorable to the judgment and ignore all contrary evidence and inferences. Moore v. Quirk , 81 S.W.3d 717, 719 (Mo. App. S.D. 2002). Our following summary of the evidence relevant to Employee's points on appeal is in accord with that standard.

*40Employee began working as a salesman for Employer in January 2010 on a 90-day trial basis. The terms of Employee's pay during his trial period were as follows: (1) $550.00 per week in salary; (2) 8% commissions on profit from new sales; (3) 5% commissions on profits from existing sales; and (3) a company truck and phone. We will refer to Employee's trial-period wages as "base salary plus commissions."2 Employee does not dispute the amount or calculation of his compensation during the trial period.

During the trial period, Employee signed a Non-Compete Agreement that indicated he "shall in all respects be an EMPLOYEE AT WILL. " Employee also signed a "PERSONNEL HANDBOOK RECEIPT" acknowledging that he understood he was an "employee at will[.]"

Effective June 1, 2010, after the trial period had expired, Employer unilaterally modified the terms of Employee's compensation such that Employee would no longer receive a base salary plus commissions. Instead, Employee would receive a "draw against commissions" that had the following terms: (1) a guaranteed draw of $2,333.33 per month against Employee's commissions to be earned; (2) commissions of 5% on profits earned by Employer on existing customer accounts; and (3) commissions of 8% on profits earned by Employer on newly-acquired customer accounts. At the same time the new compensation structure took effect, Employee received additional sales territory and accounts from Employer, and he was added to Employer's 401(k) program.

Employer's manager explained a "draw against commissions" as follows.

Well, you -- we paid a salary or a draw to him on a weekly basis. At the end of the month, we calculated profits, and then we took at that time as a percentage that pertained to that account, and then we came up with a number. And if you made more commission, then you got a commission check. If you made less than what you had already drawn, we didn't go back and take any money back, but we issued a note to [Employee], you know, saying there was zero dollars earned.

All of Employer's sales representatives were paid in this fashion - a draw against commissions - and no sales representatives received a base salary plus commissions. The unilateral modification of Employee's salary was memorialized in a writing prepared by Employer dated May 7, 2010.

Employee testified that he was aware of the pay change right away and that he received a paystub through the mail every week that was consistent with a proportional amount of just his monthly draw without any additional compensation. After the new pay structure went into effect, Employee did not make enough sales to earn more in commissions than the guaranteed draw. As a result, every paycheck he received added up to $2,333.33 per month. Employee worked for Employer approximately two more years under the new pay structure until he was terminated in March 2012 for "lack of sales[.]"

Employee claimed at trial that he was owed unpaid commissions in the amount of $15,008.34. He calculated that amount by adding up all of the commissions he had "earned" from May 2010 until the time of his termination, using commission figures *41set forth in sales commission reports attached to monthly emails between Employer's owner and manager starting in June 2010 and ending in February 2012. The amounts represented Employee's eight percent monthly commissions from new customer sales, plus his five percent monthly commissions from sales to existing customers. The sales commission reports then compared that number to Employee's $2,333.33 monthly draw. In each month, the sales commission reports state "[n]o commission due."

The trial court issued its "FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT " ("the judgment") that found "[i]t is undisputed that in May of 2010, [Employer] unilaterally modified the terms and conditions of [Employee]'s employment such that beginning June 1, 2010: 1) [Employee] received a guaranteed draw against his commissions earned in the amount of $2,333.33 per month[.] ... If [Employee]'s commissions earned on profits realized did not exceed $2,333.33, [Employee] did not receive payment in excess of the $2,333.33 per month draw." The judgment also found that Employee was an at-will employee such that "the terms and conditions of his employment [were] subject to change by [Employer] at any time, absent promises by [Employer] not to change them." The judgment concluded that Employee's at-will employment status meant that his claim for unpaid commissions had to fail. This appeal timely followed the entry of the judgment.

Analysis

The case was tried to the court without a jury. We will reverse the judgment only if no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). For ease of analysis, we begin with Employee's fourth point.

Point 4

Point 4 claims that the judgment is against the weight of the evidence because Employee did not agree to a change in his compensation "from a base pay plus commissions to a 'guaranteed draw against commissions,' " and "guaranteed draw" was never defined or explained to Employee.

Appellate courts should be cautious in exercising their power to set aside a judgment on the ground that it is against the weight of the evidence. Ivie v. Smith , 439 S.W.3d 189, 205 (Mo. banc 2014). "Weight of the evidence" refers to the persuasive value of evidence, not the quantity of the evidence, and such a claim "presupposes that there is sufficient evidence to support the judgment." Id. at 206.

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Cite This Page — Counsel Stack

Bluebook (online)
560 S.W.3d 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-dennis-oil-co-moctapp-2018.