AV-MED, Inc. v. French, AV-ME

• Decision Date: 30 October 1984
• Docket Number: INC,AV-ME,83-2157,Nos. 83-2158,s. 83-2158
• Citation: 458 So.2d 67
• Parties: , Appellant, v. Larry FRENCH and Dale Carter, Appellees. Dale CARTER, Cross Appellant/Appellee, v., Cross Appellee/Appellant.
• Court: Florida District Court of Appeals

Page 67

458 So.2d 67

AV-MED, INC., Appellant, v. Larry FRENCH and Dale Carter, Appellees.

Dale CARTER, Cross Appellant/Appellee, v. AV-MED, INC., Cross Appellee/Appellant.

Nos. 83-2158, 83-2157.

District Court of Appeal of Florida Third District.

Oct. 30, 1984.

Markus, Winter & Feldman and Stuart Markus and Sheldon I. Pivnik, Miami, for appellant.

Horton, Perse & Ginsberg and Edward Perse, Miami, for appellees.

Before BARKDULL, HUBBART and FERGUSON, JJ.

PER CURIAM.

By this appeal and cross appeal, we are asked to review two amended final judgments entered in favor of Dale Carter and Larry French in an action which they brought below against their former employer, AV-MED, INC., for commissions allegedly due them. AV-MED appeals contending that (1) the agreement to pay commissions was barred by the statute of frauds, (2) no commissions were due and owing under the oral agreement, (3) an improper reduction was made of proper set-offs allowed by the trial court as to the employee Dale Carter, and (4) the interest due on the bonus commissions was improperly computed. The employee Dale Carter cross appeals contending that no set-offs should have been allowed as to him in favor of AV-MED. We reject all these contentions, save for the interest point, and accordingly affirm in part and reverse in part.

There was sufficient evidence adduced below that the employees herein were employed by AV-MED, INC. under an oral contract for an indefinite period of time. Dale Carter was employed to act as a salesman in soliciting various businesses to become members of AV-MED. The compensation agreement called for a specific salary, plus a commission based on the number of insurance clients which he enrolled. Larry French was employed to act as a marketing director in supervising a number of salesmen who, like Dale Carter, were employed to solicit insurance clients for AV-MED. The compensation agreement as to French called for a base salary, plus a commission based on the sale or enrollment of insurance clients by all salesmen under his supervision.

It is a reasonable, although disputed, interpretation of the contract, based on the evidence adduced below, that these commissions were earned by the employees upon the enrollment of the insurance clients in question, subject to certain conditions subsequent: (1) the monthly premiums from the insurance clients would, in fact, have to be paid by the said clients before the commissions would be payable to the employees in question, and (2) the insurance clients would have to be serviced, if necessary, by the employee Dale Carter, and if not so serviced, a reasonable set-off on the commissions due would be required in AV-MED's favor.

Both employees performed under their respective oral contracts for approximately one year. Thereafter, Larry French resigned his position and Dale Carter was terminated. Both employees claimed and were denied commissions for insurance clients enrolled on the ground that these commissions were not earned until such time as the monthly premiums were, in fact, paid by the insurance clients. Since the insurance premiums were paid after the employees had left the employ of AV-MED, it was contended that these commissions were not due and owing to the employees in question.

Both employees brought suit claiming that they were entitled to the above commissions. The case was tried non-jury below; the trial court agreed with the employees and ordered the payment of the said commissions. The matter was then referred to a master and thereafter amended final judgments were entered. By these judgments, the trial court (1) computed the interest due on the commissions earned from the date that the employees left the employ of AV-MED, rather than from the dates on which the commissions were payable, and (2)...