Branch v. Ameriresource Group, Inc.
| Decision Date | 16 February 2001 |
| Docket Number | No. 93,742.,93,742. |
| Citation | 2001 OK CIV APP 86,29 P.3d 605 |
| Parties | Leonard BRANCH, Plaintiff/Appellee/Counter-Appellant, v. AMERIRESOURCE GROUP, INC., Defendant/Appellant/Counter-Appellee/Third-Party Plaintiff, v. Advanced Recruiting, Inc., An Oklahoma Corporation, Third-Party Defendant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
J. Matthew DeVilliers, Oklahoma City, for Plaintiff/Appellee/Counter-Appellant.
Jeffrey D. Black, Jeffrey D. Black & Associates, Oklahoma City, for Defendant/Appellant/Counter-Appellee/Third-Party Plaintiff.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. BUETTNER, Presiding Judge.
¶ 1 Defendant/Appellant/Counter-Appellee/Third-Party Plaintiff AmeriResource Group, Inc. (Employer) appeals from a judgment entered against it following a bench trial. Plaintiff/Appellee/Counter-Appellant Leonard Branch sued Employer for commissions allegedly not paid to Branch after he terminated his employment. Employer filed its counterclaim against Branch for breach of an agreement not to compete. Because we find the trial court abused its discretion in denying Employer's quest to reopen its case to present additional evidence, we reverse in part and remand for proceedings consistent with this opinion.1
¶ 2 Branch began work as a recruiter for Employer, a staffing agency, in October 1995. On January 3, 1997, Branch submitted his resignation, which was to be effective January 10, 1997. Upon receipt of Branch's resignation letter, Employer terminated Branch's employment, effective January 3, 1997. Branch was employed pursuant to an employment contract which provided that commissions which were received by Employer before termination of employment would be paid to Branch.2 In his petition, filed May 30, 1997, Branch alleged that Employer breached the employment agreement because Employer had failed to pay him $4,234.00 in commissions for three placements he made before terminating his employment.3 Branch sought that amount plus liquidated damages.
¶ 3 Employer filed its counterclaim August 18, 1997 in which it averred that Branch breached a confidentiality agreement and an agreement not to compete which were part of his contract with Employer. Employer asserted causes of action for breach of contract, breach of fiduciary duty, interference with contract, interference with economic advantage, fraud, conversion, and misappropriation of trade secrets. Employer also sought punitive damages and an injunction.
¶ 4 Branch filed his motion for summary judgment September 23, 1998. The trial court denied the motion November 20, 1998. Employer filed its third-party petition against Advanced Recruiting, Inc. November 6, 1998. Employer alleged that Advanced Recruiting is a staffing firm started by Branch to compete with Employer. Employer alleged the same causes of action against Advanced Recruiting which it had alleged in its counterclaim against Branch. On January 29, 1999, the trial court granted the motion of Branch and Advanced Recruiting which requested separate trials.
¶ 5 A bench trial on the claims between Branch and Employer was held July 19, 1999. In its findings of fact, the trial court found that the three job placements for whom Branch sought unpaid commissions were hired and on-the-job before Branch's employment was terminated. The trial court further found that Employer's clients had paid the commission checks on each of those placements before the effective date of Branch's resignation. The court noted that Employer conceded it owed Branch the $600 commission for the placement of Bob Simpson, but asserted that the checks for the other two placements were received by Employer after Branch was terminated and that company policy prohibited paying commissions received after an employee's termination. The trial court found, however, that Employer's policy of not paying commissions received after an employee's termination date did not apply to six month guarantee placements. The court found that Employer's "Policy on Placements with a Guarantee" provided that "whenever a placement fee is collected from a client" the commission would be paid to the recruiter, and that the policy indicated that Employer would hold such commissions until they are earned (by expiration of the guarantee period) and then distribute them to the recruiter. The trial court therefore determined that Branch was entitled to payment of the commissions on the three placements at issue in the instant case.
¶ 6 The trial court also found that Employer acted in bad faith in refusing to pay the $600 commission for the placement of Bob Simpson which was received by Employer well before Branch was terminated. The court accordingly awarded Branch an additional $600 in liquidated damages pursuant to 40 O.S.1991 § 165.3. The court did not award liquidated damages for the other two placements based on its finding that they were the subject of a bona fide dispute. The total judgment awarded to Branch was $4,774.00. The trial court held that Employer had failed to prove its counterclaim and affirmative defenses. The trial court finally held that Branch was entitled to prevailing party attorney fees under 40 O.S.1991 § 165.9, but reserved that determination pending the filing of a motion for such fees.
¶ 7 Branch then filed his application for pre-judgment interest, attorney fees and costs. In its order filed October 14, 1999, the trial court held that Branch was entitled to an award of attorney fees spent pursuing his wage claim, but that Branch was not entitled to attorney fees spent defending against Employer's counterclaim, based on the trial court's finding that Employer did not act in bad faith in asserting the counterclaim. The court found that Branch was entitled to attorney fees for 63.3 hours at the rate of $125.00 per hour. The total costs and attorney fees awarded were $9,317.94, in addition to $629.71 in pre-judgment interest.
¶ 8 Employer's first assertion of error is that the trial court abused its discretion in denying Employer the opportunity to present evidence in support of Employer's counterclaim. Employer urges that, based on the pre-trial conference order, it believed the trial would be held in two stages so that, when Employer announced it was resting at the end of Branch's case, Employer understood that it would then be allowed to present its case on its counterclaim. We have reviewed the pre-trial conference order and find that it does not indicate the trial will be bifurcated.4
¶ 9 Trial in the instant case was held July 19, 1999. Branch presented one witness and then rested his case. In resting, counsel for Branch stated The trial court then called upon Employer to present its case. Employer called three witnesses. After Branch's cross-examination of Employer's last witness, the following exchange occurred between the trial court and Mr. McDaniel, counsel for Employer:
Branch then indicated he would like to recall one witness in rebuttal, which the court allowed. At the conclusion of that witness, the trial court asked Employer if it wished to present any surrebuttal which Employer declined to do. The trial court then asked for closing arguments and the following exchange occurred:
Counsel for Branch then argued that Employer had not presented any evidence in support of its affirmative defenses or its counterclaim. Employer then asked:
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