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Mercer v. Buscomm, Inc.

Court of Appeals of Missouri, Eastern District, Third Division

March 28, 2017

CHARLES LEN MERCER, Appellant/Cross-Respondent,
v.
BUSCOMM, INCORPORATED, Respondent/Cross-Appellant.

         Appeal from the Circuit Court of St. Louis County Hon. Ellen H. Ribaudo

          ROBERT G. DOWD, JR., Judge

         Charles Len Mercer ("Appellant") appeals from judgment notwithstanding the verdict in favor of BusComm Incorporated following a jury trial. Appellant also appeals the trial court's denial of his motion for attorney fees. BusComm cross-appeals the trial court's denial of its motion for attorney fees. We reverse and remand the JNOV and affirm the trial court's denial of both Appellant's and BusComm's claims for attorney fees.

         Appellant worked for BusComm in a sales position as a healthcare systems consultant and received a base salary plus a commission for sales made. He began working for BusComm on July 1, 2010, and was terminated on February 24, 2012. Following his termination, Appellant filed a six-count petition against BusComm alleging violations of the Missouri Human Rights Act ("MHRA"), breach of contract, unjust enrichment, quantum meruit and unpaid commissions under the Missouri Merchandising Practices Act ("MMPA"). The first two counts of Appellant's petition involved claims for discrimination and retaliation under the MHRA, alleging his supervisor made unwelcome sexual advances, requested sexual favors and exhibited verbal and physical conduct of a sexual nature towards him. He claimed that his supervisor's conduct interfered with his performance and created a hostile work environment and that he was discharged and discriminated against with respect to compensation, terms, conditions or privileges of employment because of his sex. He further alleged that he complained to his manager that he was uncomfortable with his supervisor's sexually explicit actions and that he experienced retaliation because of his complaints.

         The remaining counts of his petition relate to claims that Appellant was not paid for his services and was owed commissions and bonuses for sales he allegedly made while employed by BusComm. In particular, he claimed to have been owed at least $14, 000 in commissions and bonuses.

         During the course of discovery, it was determined that, prior to filing his petition in the present action, Appellant filed a voluntary petition for Chapter 7 bankruptcy protection. Appellant admitted he did not identify his claims against BusComm as assets at the time he filed his voluntary bankruptcy petition nor did he amend or supplement his bankruptcy filings to reflect his claims against BusComm as assets at any time prior to receiving his discharge.

         Thereafter BusComm moved for summary judgment on each of Appellant's claims. The trial court found there were no genuine issues of material fact and therefore BusComm was entitled to judgment as a matter of law on his discrimination and retaliation claims under the MHRA. As to the remaining claims, the trial court found that there was no genuine issue of material fact as to any earnings, commissions and bonuses from services performed by Appellant for BusComm before December 28, 2011, the date he filed his voluntary petition for Chapter 7 bankruptcy protection and, therefore, BusComm was entitled to judgment as a matter of law on those claims. Summary judgment was denied as to claims for earnings, commissions and bonuses Appellant performed for BusComm after December 28, 2011.[1]

         The only claim Appellant submitted to the jury at trial was his claim for unpaid commissions, which were limited to those earned after December 28, 2011, pursuant to the trial court's order on BusComm's motion for summary judgment. The following verdict director was submitted to the jury:

Your verdict must be for [Appellant] if you believe:
First, [Appellant] entered into an agreement whereby [Appellant] agreed to act as sales representative and be compensated by [BusComm] by being paid 5% of order amounts received on behalf of [Buscomm], [sic] and
Second, [Appellant] sold orders after December 28, 2011, pursuant to said agreement;
Third, [BusComm] has received payment for orders sold by [Appellant]; and
Fourth, [BusComm] failed to pay the commission due.

         The jury returned a verdict in Appellant's favor, finding he was owed commissions of $1, 750.00 as of the date of his termination, $8, 506.00 for commissions earned after that date and an additional $25, 000.00 as an annualized pro rata commission from the date of termination to the date of trial.[2]Thereafter, BusComm filed its motions for JNOV, new trial or remittitur. As for the motion for JNOV, BusComm claimed that Appellant failed to present sufficient evidence of services performed after December 28, 2011, that led to commissionable sales. BusComm argued that the evidence at trial demonstrated that Appellant was fully compensated for the administrative work he performed after December 28, 2011, and that he did not perform any services after that date to generate commissionable sales. BusComm also filed a motion requesting attorney fees and costs under Section 213.111 of the MHRA in the amount of $15, 264.75 and alleging ...


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