Burke v. Port Resort Realty Corp.

• Decision Date: 29 July 1998
• Docket Number: Docket No. Y
• Citation: 714 A.2d 837,1998 ME 193
• Parties: 136 Lab.Cas. P 58,463, 4 Wage & Hour Cas.2d (BNA) 1625, 1998 ME 193 Greg BURKE v. PORT RESORT REALTY CORP., et al. or-98-24.
• Court: Maine Supreme Court

Page 837

714 A.2d 837

136 Lab.Cas. P 58,463, 4 Wage & Hour Cas.2d

(BNA) 1625,

1998 ME 193

Greg BURKE v. PORT RESORT REALTY CORP., et al.

Docket No. Yor-98-24.

Supreme Judicial Court of Maine.

Submitted on Briefs June 29, 1998.

Decided July 29, 1998.

Jens-Peter W. Bergen, Kennebunk, for plaintiff.

Defendants did not file a brief.

Before WATHEN, C.J., and ROBERTS, RUDMAN, and DANA, JJ.

RUDMAN, Justice.

¶1 Greg Burke appeals from the summary judgment entered in his favor by the Superior Court (York County, Fritzsche, J.). Burke contends that the court (i) erroneously interpreted a provision in his employment contract with Port Resort Realty Corp., operator of The Shawmut Inn, governing the payment of wages to Burke following his resignation, and (ii) erroneously determined that Port Resort did not violate 26 M.R.S.A. § 626 (Supp.1997), and thereby deprived him of the exemplary damages to which he is entitled pursuant to section 626. Because a material issue of fact exists precluding a summary judgment on the issue of whether Port Resort violated section 626, we vacate the judgment.

¶2 In October of 1994, Burke was hired by Port Resort to serve as The Shawmut Inn's general manager and director of marketing and sales. The terms and conditions of Burke's employment were contained in an employment agreement, subsequently modified by a written addendum signed by Burke and the president of Port Resort, Ralph Bruno, that added a number of performance incentives and increased Burke's base salary. The agreement as amended provided for Burke to receive a 1% commission based on revenue received from all groups visiting The Shawmut Inn and a 3% commission based on revenue received from those groups for which Burke was the sales person responsible for the account. The amended agreement addressed the payment of Burke's commissions upon the cessation of his employment with Port Resort, stating:

It should be noted that should Greg [Burke] be laid off or terminated for any reason, with or without cause, all group commissions for business "on the books" going forward is to be estimated and paid upon departure. Otherwise, all group commissions are to be paid in full the pay period following payment in full by the group.

¶3 Thirteen months to the day after his hiring, Burke submitted his resignation, effective that day. At the time of his resignation, Burke demanded an immediate lump sum payment reflecting commissions for groups booked for dates subsequent to the date of his resignation, and the cash value of the three weeks vacation to which he claimed he was entitled. Port Resort refused Burke's demand and instead allegedly offered to pay Burke as the income from the booked events was realized. Port Resort also allegedly offered Burke 1/12 of the cash value of his vacation time because Burke had only worked one month into his second year at the Inn. Aside from two checks paid in December of 1995 totaling $79.46, Burke was not paid commissions due from events at The Shawmut Inn from 1995 through 1996.

¶4 Burke commenced this suit and subsequently moved for a summary judgment against Port Resort. The Superior Court entered a summary judgment awarding Burke his earned commissions and 1/12 of the cash value of his vacation time. ¹ The court specifically declined to find that Port Resort violated section 626, reasoning that "[a]ny attempt to pay the commissions through a series of smaller checks would have been pointless as [Burke] wanted all his estimated commissions in advance."

I.

¶5 The employment agreement, not section 626, governs how wages are earned and, if specified, when wages are to be paid. See Purdy v. Community Telecomm. Corp., 663 A.2d 25, 28-29 (Me.1995) (wages due to employee determined by reference to employee agreement); cf. Rowell v. Jones & Vining, Inc., 524 A.2d 1208, 1210-11 (Me.1987) ("the conditions for earning vacation and the amount of vacation earned are governed by the terms of employment, not by [section 626]"). In this case, Burke was not owed wages subsequent to his resignation until his commissions were earned pursuant to his employment agreement with Port Resort. Burke's employment agreement unambiguously specifies how Burke's future commissions would be paid if Burke was "laid off or terminated for any reason with or without cause," and how Burke's commissions would be paid if his employment "otherwise" ended. Burke was not laid off or terminated and thus the trial court correctly determined that, pursuant to the employment agreement, Burke's commissions were due "in full the pay period following payment in full by the group."

II.

¶6 Burke contends that, regardless of whether his employment contract required the immediate or incremental payment of his commissions, Port Resort violated section 626 because Port Resort failed to pay him in a timely manner ² under either interpretation. Burke thus argues that he is entitled to recover exemplary damages ³ pursuant to section 626. In reviewing the motion court's determination that Port Resort did not violate section 626, we examine the evidence supporting the motion court's conclusion that Burke refused incremental payment of wages as they became wages earned.

¶7 A party is entitled to a summary judgment if no genuine issue of material fact exists and if the party on the undisputed facts is entitled to a judgment as a matter of law. See Seashore Performing Arts Ctr., Inc. v. Town of Old Orchard Beach, 676 A.2d 482,...