8 Conn. App. 254 | Conn. App. Ct. | 1986
This action arises out of the plaintiffs claim for sales commissions due from the defendant, his former employer. The defendant has appealed from the modified judgment of the trial court in favor of the plaintiff in the amount of $214,619.52. The plaintiff has also filed a cross appeal from the judgment. We find no error.
The trial court found the following facts. The plaintiff is the former national sales manager of the defendant corporation. He was hired by the defendant through its vice president for marketing, Peter Lanzer, on September 9, 1980, as national sales manager for the defendant’s computerized marker-making machine known as the AMI system which consisted of a computer, plotter, printer, disc, screen and software. That system uses a computer to lay out patterns for use in the apparel, automobile and aerospace industries. In the spring of 1981, the AMI system was modified and was then redesignated AM5. The marker-making system is used in conjunction with a cutting machine known as the Gerber Cutter.
The plaintiff had previously been employed by Hughes Aircraft as a regional sales manager for the AMI marker-maker before its purchase by the defendant. When the plaintiff was hired as the defendant’s national sales manager to work out of Atlanta, Georgia, the written contract of employment provided for an annual salary of $50,000 and a commission of 1 per
From September, 1980, through April 30,1981, this agreement remained in effect. The plaintiff served as the defendant’s national sales manager while living in Atlanta. However, the parties came to realize that the plaintiff would be better able to discharge his responsibilities if he lived closer to the defendant’s home office in South Windsor, Connecticut. The plaintiff and Lanzer, therefore, agreed that the plaintiff would move to Connecticut. The plaintiff, however, expressed concern about the cost of housing and the high rate of interest in selling his Atlanta home and in purchasing a replacement home which he had found in Glastonbury. As a result, as of May 1, 1981, the plaintiff’s compensation agreement with the defendant was modified to increase his commission on service contracts from one-eighth to one-quarter percent. Further, to defray moving and housing expenses, the plaintiff was to receive an override of 1 percent commission on the first $2,000,000 of AMI systems and upgrade sales, or $20,000, in the first year, and a similar override of 1 percent on sales of $1,000,000, or $10,000, annually thereafter. The plaintiff’s annual draw against anticipated commissions was also increased to $40,000.
At approximately the same time as this new compensation agreement was being negotiated, the plaintiff was discussing with Lanzer his employment as national sales manager for an additional machine made by the
After the sales meeting, Lanzer met with the plaintiff to discuss the success of the meeting. Lanzer then told the plaintiff: “Of course, Denis, that leaves only your compensation to be agreed.” The plaintiff laughingly responded: “Don’t worry, Peter, all you have to do is continue my one percent.” Lanzer responded: “Don’t be crazy, Denis. This would mean you would receive more money than Joe Gerber, Stan Leven or Bob Maerz [of management].” With that discussion, the matter then ended.
During the summer of 1981, Robert Maerz, who was a senior vice-president of marketing and operations for the defendant’s parent company, and a director of the defendant, saw figures on a computer printout which suggested that the plaintiff’s salary was a guaranteed $90,000. He called Lanzer to discuss the situation because that salary was significantly out of line with other compensation at the company. Lanzer, Maerz and H. Joseph Gerber, the chairman of the board of directors, met to discuss the situation. Lanzer explained to Maerz that the computer printout was incorrect. Maerz then directed Lanzer to establish a graduated scale providing for increased commissions based on increased sales.
Caron pressed Lanzer to formalize a compensation agreement with the plaintiff as the end of the 1981-82 fiscal year neared. On May 5, 1982, Lanzer met with the plaintiff and informed him that although the plaintiff claimed a commission of 1 percent on all sales, the defendant would pay no more than one-quarter percent. The plaintiff responded: “Well, if that is so, then it will have to be so.” The trial court found that the plaintiff accepted this modification of the commission rate as a resolution of the question for the future only. The defendant subsequently gave the plaintiff a check for $38,596.02. This sum was a net adjusted figure which included a commission payment of $37,471.49, computed at one-quarter percent of all sales of AM systems and upgrades and Gerber Cutters during the period of July 1, 1981, through April 30, 1982. This payment reflected sales of AM systems in the amount of $5,911,352, and cutter sales of $9,077,256.
The sole dispute between the parties at trial related to their disagreement as to the amount of commissions to which the plaintiff was entitled during the ten-month period from July 1, 1981 through April 30, 1982. The parties agree that the plaintiff has been properly paid from September, 1980, through June 30, 1981, and from May 1, 1982, until the time of his resignation in October, 1982. The amount disputed by the parties is the difference between the plaintiff’s demand of 1 per
The trial court concluded that the parties’ original compensation agreement, as modified by them prior to July 1,1981, for sales of AM systems and upgrades was never terminated in accordance with its provision for two months cancellation notice. Therefore, the plaintiff was entitled to receive a commission of 1 percent on all sales of AM systems and upgrades during the ten-month period in question. By that computation he was entitled to receive the amount of $59,113.52, representing 1 percent of total sales of $5,911,352. The court also ruled that since the Gerber Cutter was not an upgrade of the AM systems, it was not covered by the parties’ original contract. For that reason, the court found that there was no meeting of the minds regarding the plaintiff’s compensation for cutter sales until May 5, 1982, at which time the one-quarter percent commission rate for all products was agreed upon as a further amendment to the employment contract. The court, therefore, found that the plaintiff was entitled to a commission of one-quarter percent on cutter sales of $9,077,256, amounting to $22,693.14. The total due to the plaintiff from the defendant was found to be $81,806.66. Since he was previously paid $37,471.49 on or about May 5, 1982, the balance due him was $44,335.17.
Upon this amount due, the trial court awarded the plaintiff statutory interest of $12,030.01. Pursuant to General Statutes § 31-72,
Subsequent to the rendition of judgment and filing of the defendant’s appeal, the plaintiff moved, pursuant to General Statutes § 52-212a and Practice Book § 326 allowing such motion within four months of judgment, to open and modify the judgment to include an additional 12 percent interest, compounded annually, on the amount previously awarded for the period from the filing of the complaint on October 19,1982, to the judgment of April 30,1985, under the provisions of General Statutes § 52-192a.
The defendant’s first claim is that the court erred in finding that the plaintiff was entitled to a commission of 1 percent on sales of the AM systems and upgrades during the ten month period in issue. Conversely, the plaintiff’s first claim on his cross appeal
Each of these claims constitutes a patent attempt to retry the facts of this case. Absent a statutory warranty or specific contract language, the scope of contractual terms is a factual question subject to a limited scope of appellate review. Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 178, 508 A.2d 64 (1986). There was sufficient evidence for the court to conclude that the parties’ original contract relating to AM systems and upgrades remained in effect throughout the time period in issue before the court and that it was not modified, to comport with the defendant’s claimed one-quarter percent commission rate, until May 5, 1982. Specifically, the trial court was justified in its reliance on the fact that the defendant had accrued an expense of one percent commission on the sale of the AM systems for the ten-month period in question. The conduct of the parties regarding the terms of a contract is a useful and proper aid to its interpretation. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407-408, 365 A.2d 1086 (1976).
With respect to the plaintiff’s claim on his cross appeal, there was also enough evidence to support the court’s conclusion that the parties’ original contract did not extend to sales of the Gerber Cutter. The written contract of September 9,1980, between the parties provided in relevant part as follows: “Your responsibilities will include the orderly marketing of AM-1 Systems and assisting in GERBER cutter sales, as and when required. Your duties will include the building of an aggressive sales force to cover the U.S.A., Canada and Mexico (North American Continent). Your salary for these duties will be at the rate of $50,000 per annum, payable weekly; and you will receive a Commission of 1% of systems and upgrades.” (Emphasis added.) The
Similarly, the second claim of error of the defendant is an effort to change the legal conclusions which logically arise from the trial court’s findings of fact by distorting the clear meaning of the findings. The defendant asserts that because the plaintiff was informed after the July 10, 1981 sales meeting, that an extension of his 1 percent commission to the sale of cutters additional to the same commission for sales of AM systems would be excessive, he was on notice that the rate of 1 percent in his original contract had changed with respect to sales of the AM systems. That is a possible interpretation of the conversation between the plaintiff and Lanzer, but it is clearly not the reading of the trial court. The trial court was well within the reasonable bounds of its judicial discretion in concluding that the only notice then given to the plaintiff was that he could not expect to receive a commission of 1 percent on the cutters sold. The defendant, in this claim of error, simply fails to acknowledge the court’s separation of the parties’ agreement with respect to the AM systems and the Gerber Cutters.
The next two claims raised by the defendant are that the court erred in awarding double damages and reasonable attorney’s fees pursuant to General Statutes § 31-72. That statute provides for a discretionary award of double damages, with costs and reasonable attorney’s fees, to employees who are successful in actions against their employers for wages due. The defendant claims: (1) that the statute is unconstitutional because
First, we decline to consider the constitutionality of § 31-72. That issue was not raised in the trial court. We see no reason to part from our strong policy of not considering issues on appeal which were not raised at trial. Heiskell v. Heiskell, 6 Conn. App. 471, 506 A.2d 151 (1986).
With regard to the defendant’s second argument, the memorandum of decision clearly indicates that the basis for the award of double damages and attorney’s fees in this case was, to a great degree, the fact that the defendant had breached its employment contract with the plaintiff. The defendant acknowledges that the appropriate use of the court’s power to award double damages and counsel fees is where a finding of bad faith, arbitrariness or unreasonableness has been made, but argues that a mere finding that the defendant breached its employment contract is not sufficient. We conclude, however, that the court’s additional findings in this case do support the awards when read in conjunction with its express finding that the defendant breached the parties’ contract of employment. The court found that the defendant’s “position that it had unfettered discretion to adjust retroactively [the plaintiff’s] commission rate is untenable.” (Emphasis added.) The court further concluded that the defendant’s “conduct plainly demonstrates that [it] understood that the employment agreement was in effect during [the plaintiff’s] entire employment.” Additionally, the court noted that the defendant “concedes that for the ten-month period prior to May 1,1982 it never reached an agreement with [the plaintiff] to modify the 1% rate and because of that decided to change the rate unilater
The defendant also asserts that the court erred in awarding the plaintiff interest in addition to double damages. We disagree. The trial court awarded the plaintiff statutory interest on his actual lost wages of $44,335.17. At the statutory rates effective between May 1,1982, and judgment on April 30,1983, a period of three years, the court calculated the simple interest to total $12,031.01, and awarded this amount. The court then allowed the plaintiff an additional $44,335.17 as double damages pursuant to § 31-72. The court expressly refused to grant interest on the double damages since the enabling statute contains no provision for interest. In proper fashion the court basically compensated the plaintiff for his overdue commissions and, by awarding him statutory interest on this amount, compensated him for the delay in payment of his overdue wages. The additional award of double damages pursuant to § 31-72 was a punitive award; see remarks of Senator Nancy Johnson, Conn. Joint Standing Committee Hearings, Labor and Industrial Relations, Pt. 1, 1978 Sess., p. 154; and was appropriately granted in addition to the statutory interest allowed on the plaintiff’s basic recovery of his unpaid commissions.
Finally, the defendant claims that the court erred in awarding to the plaintiff by modification of judgment additional interest of $49,964.80 pursuant to General
The defendant argues that since attorney’s fees are not paid to the plaintiff, but to counsel, they should not be included in the comparison or measurement of recovery by the plaintiff against his offer of judgment for the purpose of § 52-192a. The defendant maintains that under the provisions of § 52-192a(b) “[t]he court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars [only]. ...” Furthermore, the defendant claims, since the attorney’s fees did not accrue until the time of the judgment, “an award of interest on such fees relating back to the date of the Complaint is outrageous” for the reason that by this punitive award the plaintiff will be receiving 12 percent interest, or $7674.52 per annum, on attorney’s fees before they are earned. Also, the defendant claims, such a result would be unjust and far in excess of the defendant’s right to counsel fees not in excess of $350 allowed the defendant under General Statutes § 52-195 in the converse situation where a defendant’s offer of judgment is not exceeded by the the plaintiff’s recovery. See Verrastro v. Sivertsen, 188 Conn. 213, 219, 448 A.2d 1344 (1982). We disagree with the defendant’s contentions.
Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 472 A.2d 316 (1984) (Gionfriddo IT), ancillary to Gionfriddo I, concerned the availability of statutory interest under § 52-192a (b) where the plaintiff’s offer of judgment in the amount of $750,000 had been rejected and he subsequently recovered compensatory and exemplary damages of $478,239 by jury verdicts on counts one and two, and an additional $706,524 as
The Supreme Court found otherwise, stating: “[The defendants] urge us to hold that, because treble damages are not compensatory, the parties could not agree to their payment and therefore such damages must be excluded from the comparison contemplated by an offer of judgment. In effect, the defendants invite us to create an implied exception to § 52-192a for cases in which a plaintiff’s recovery has been enhanced by statutorily trebled damages. . . . The plaintiff’s offer of judgment must offer to settle the case on all counts, including his count for multiple damages. Before the commencement of trial, the plaintiff cannot be sure of damages from either the jury or the court. The policy of encouraging settlements counsels against piecemeal offers of judgment. We therefore conclude that the trial court was in error in holding that the plaintiff was not entitled to recover interest under § 52-192a.” Gionfriddo II, supra, 307.
The court’s holding in Gionfriddo II, that since the plaintiff’s offer of judgment under § 52-192a (b) must seek to settle the action on all counts it must be compared with the amounts recovered on all counts, is decisive of the issue now under consideration. Where a claim for the extraordinary statutory remedy of double wages, costs and reasonable attorney’s fees allowed under § 31-72 has been alleged in the complaint,
The defendant’s further argument against the inclusion of attorney’s fees awarded under § 31-72 in the amount of recovery to determine applicability of the penalty under § 52-192a (b) is illogical. It contends that “plaintiff should be entitled to the same award of attorney’s fees as defendant if he is successful with his offer of judgment.” Under General Statutes § 52-195 (b), the plaintiff, in that reverse event, “shall pay the defendant’s costs accruing after he received notice. Such costs may include reasonable attorney’s fees in an amount
The sole matter remaining for our consideration is the plaintiff’s second claim of error on his cross appeal. The plaintiff claims that § 31-72 not only permits the court to award attorney’s fees and costs to the time of judgment, as it did in this case, but also that it permits an award of reasonable attorney’s fees and costs incurred in defending this appeal and prosecuting his cross appeal. Therefore, the plaintiff has requested that “[tjhis action ... be remanded to the trial court for consideration of plaintiff’s reasonable attorneys’ fees and costs incurred since the entry of judgment on April 30, 1985.”
General Statutes § 31-72 permits an employee to recover “such reasonable attorney’s fees as may be
We note, however, that this matter is in a procedurally different context from that which was present in Price. There we were faced with a direct appeal from the trial court’s award of appellate fees incurred by the plaintiff in defending a prior appeal to the Supreme Court. In the present case, we have no decision of the trial court regarding attorney’s fees incurred on appeal before us upon which to pass appellate judgment. Indeed, in Price, we expressly stated that the most appropriate time to pursue an award of appellate attorney’s fees is after the appeal has been concluded. Id., 73. This is critical since, unlike the statute at issue in Price which mandated an award of attorney’s fees; see General Statutes § 22a-44 (b); General Statutes § 31-72, involved in the present case, merely permits an award of reasonable attorney’s fees in the discretion of the court. Thus, we must leave the plaintiff to pursue, in available proceedings in the trial court, his recovery of reasonable attorney’s fees incurred in defending the defendant’s appeal to this court.
There is no error on the appeal; there is no error on the cross appeal.
In this opinion the other judges concurred.
General Statutes § 31-72 provides in pertinent part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court
General Statutes § 31-71a (3) contains the following definition: “ ‘Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation.”
“[General Statutes] Sec. 52-192a. offer of judgment by plaintiff. ACCEPTANCE BY DEFENDANT. COMPUTATION OF INTEREST, (a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment.’ Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
“(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer
See footnote 2, supra.
The inclusion of punitive damages of $124,977 awarded on the second count in the comparison of amounts was not questioned by the defendants at trial or on appeal.
No such remedy is available where the complaint has not expressly invoked the relevant statute. Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982).