MARCUS & MILLICHAP INV. SERVICES v. Sekulovski
639 F.3d 301
| 7th Cir. | 2011Background
- Sekulovski operated as an independent contractor for REIS and its Chicago subsidiary (M&M Chicago) from 1999–2007, and used REIS resources while never signing a written agreement with M&M Chicago though an implied- in-fact contract and the Policy Manual were in play.
- Commissions were earned and allocated under a stepped scale; work allocations were recorded on booking statements, with M&M Chicago generally approving in writing.
- Sekulovski and a partner, Luttner, engaged in an alleged scheme to misrepresent work allocations in booking statements to increase their take, including possible kickbacks.
- Sekulovski resigned in 2007 but directed a title company to pay him commissions and affiliated with another broker, causing disputes over who rightfully owned the transactions and commissions.
- M&M Chicago and REIS sued Sekulovski in federal court for breach of contract, unjust enrichment, conversion, fraud, and tortious interference; Sekulovski counterclaimed for breach of contract, unjust enrichment, unlawful wages, and tortious interference.
- The district court granted judgment as a matter of law on the Wage Act claim in favor of M&M Chicago; a jury returned verdicts in M&M Chicago’s favor on all other counts; Sekulovski appealed the judgments and post-trial rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence and scope of contract incorporating the Policy Manual | Sekulovski lacked a signed agreement; contract implied by conduct | M&M Chicago and Sekulovski had an implied contract governed by the Policy Manual | Contract existed and Policy Manual governed interactions |
| Evidentiary rulings on bias evidence and cross-examination | Restrictive rulings denied credibility attack on Luttner | Rulings were within discretion under Rules 401, 403, 802 | No reversible error; rulings within discretion |
| Jury instructions on fraud damages and related evidence | Damages should reflect plaintiff's loss including hypothetical amounts to Luttner | Damages measured by overpayment actually caused by fraud; exclude hypothetical amounts | District court correctly instructed damages; no error warranting reversal |
| Wage Act classification of Sekulovski as employee or independent contractor | Wage Act protects employees; misclassification could extend wage rights | Sekulovski was an independent contractor under conjunctive test | Sekulovski correctly classified as independent contractor; error, if any, harmless given verdicts on wage claims |
Key Cases Cited
- Al's Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720 (7th Cir.2010) (implied contract by conduct; can govern relationship)
- United States v. Abel, 469 U.S. 45 (1984) (bias evidence admissible for impeachment; not talismanic)
- United States v. Salem, 578 F.3d 682 (7th Cir.2009) (bias as impeachment; trial court discretion)
- Crowe v. Bolduc, 334 F.3d 124 (1st Cir.2003) (cross-examination of bias limited under Rule 403)
- LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542 (7th Cir.2008) (damages in fraud based on plaintiff's loss)