Cavic v. Pioneer Astro Industries, Inc., s. 85-1318

• Citation: 825 F.2d 1421
• Decision Date: 16 April 1987
• Docket Number: 85-1339,Nos. 85-1318,s. 85-1318
• Parties: Louis F. CAVIC, Jr., Plaintiff-Appellee/Cross-Appellant, v. PIONEER ASTRO INDUSTRIES, INC., Defendant-Appellant/Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1421

825 F.2d 1421

Louis F. CAVIC, Jr., Plaintiff-Appellee/Cross-Appellant, v. PIONEER ASTRO INDUSTRIES, INC., Defendant-Appellant/Cross-Appellee.

Nos. 85-1318, 85-1339.

United States Court of Appeals, Tenth Circuit.

April 16, 1987.

Rehearing Denied May 28, 1987.

Robert B. Warren of Warren, Mundt, Martin & O'Dowd, P.C., Colorado Springs, Colo., for defendant-appellant/cross-appellee.

J. Richard McEachern (Peter M. Nemkov of Boris, Klueger & Nemkov, P.C., Denver, Colo., with him on brief), of Guilfoil, Petzall & Shoemake, St. Louis, Mo., for plaintiff-appellee/cross-appellant.

Before BARRETT, McWILLIAMS and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This is an appeal from a district court decision awarding Louis Cavic unpaid sales commissions, prejudgment and postjudgment interest, and costs, but denying him attorneys' fees and penalties. For the reasons set forth below, we affirm the district court.

On February 1, 1974, Cavic agreed to act as manufacturing representative for the predecessor to Pioneer Astro Industries (Pioneer), ¹ a custom machining shop. The agreement gave Cavic the "exclusive right to solicit orders" in Missouri, Illinois and Kansas and from specifically listed customers. The agreement further provided for a percentage commission to be paid Cavic for all orders that he obtained which were accepted by Pioneer. Finally, it provided that upon termination of the agreement "the Corporation [Pioneer] shall continue to pay commissions on all orders received and accepted prior to the effective termination date thereof even though shipments are made after said date of termination, until completion of the order." Termination was "effective" after 90 days notice by either party.

During Cavic's employment, Pioneer entered into several "purchase agreements" with Varian Associates (Varian), General Electric, and Applied Radiation (Siemens). Also during this time Pioneer made sales to the United States Army and Fiat-Allis.

On July 3, 1979, Pioneer terminated the agreement with Cavic effective September 30, 1979. After his termination, Cavic received and cashed commission checks totaling approximately $20,000. Cavic then received a "final" commission check bearing a restrictive endorsement. Cavic did not cash this check. Instead, he called several of Pioneer's customers and learned of several transactions which he felt warranted payment of additional commissions.

Cavic sued Pioneer for unpaid commissions, alleging breach of contract and, alternatively, unjust enrichment. The trial court found the "purchase agreements" between Pioneer and Varian, General Electric, and Siemens were long term requirements contracts which were procured by Cavic. Thus, Pioneer owed Cavic commissions generated by any sales made pursuant to those contracts. In addition, the court awarded Cavic commissions on sales to Fiat-Allis but denied commissions on sales to the United States Army ². The court also awarded Cavic prejudgment and postjudgment interest and costs but denied him attorneys' fees and statutory penalties sought under Colorado's wage laws.

Pioneer now appeals alleging that the "purchase agreements" were erroneously construed to be long term requirements contracts, and that Pioneer owed Cavic nothing after his effective termination. Cavic's cross-appeal argues that he is entitled to commissions on the sales to the Army as well as attorneys' fees and penalties.

I. Varian, General Electric and Siemens Agreements.

A.

The parties dispute whether Pioneer entered into binding contracts with Varian, General Electric, and Siemens when the original purchase agreements were signed.

Pioneer argues now, as it did at trial, that the "purchase agreements" between Pioneer and Varian, General Electric, and Siemens were intended to be "pricing agreements" and not binding contracts upon which Cavic would be due commissions. The agreements, Pioneer asserts, merely establish a firm price base to guide future contracts for as long as three years. Thus, Pioneer argues, the individual purchase orders placed pursuant to these pricing agreements were the binding contracts from which Cavic's commissions should be determined. Any purchase order received after Cavic's termination, according to Pioneer, would not trigger a commission.

To the contrary, the trial court found these agreements were intended to be long term requirements contracts, specifically authorized by and binding under Article 2 of Colorado's version of the Uniform Commercial Code. Thus, any purchase orders written pursuant to these contracts, even though received after Cavic's termination, generated commissions to Cavic.

When the existence of a contract depends upon the intent of the parties, the issue is one of fact reserved for the trier of fact. Acree v. Minolta Corp., 748 F.2d 1382 1387 (10th Cir.1984). Furthermore, while we are not limited to a clearly erroneous standard of review regarding an unambiguous written agreement, when the trial court resorts to extrinsic testimony to ascertain the meaning of the contractual terms, the interpretation is factual. Carpenters & Millwrights Health Benefit Trust Fund v. Gardineer Dry Walling Co., 573 F.2d 1172, 1173 (10th Cir.1978). See also Southwestern Stationery & Bank Supply, Inc. v. Harris Corp., 624 F.2d 168, 170 (10th Cir.1980). When the district court's interpretation is aided by extrinsic evidence it cannot be set aside unless clearly erroneous. Carpenters, 573 F.2d at 1173.

The trial court's conclusion that the agreements were intended to be long term requirements contracts specifically relied upon evidence of the intent of the parties to the agreements. The court heard testimony from two witnesses who stated that the custom of Pioneer, and the machining industry as a whole, was to secure business through long term contracts. Additionally, the court noted the president of Pioneer himself labeled the agreements "long term contractual relationships" in a letter to company stockholders. Based upon this evidence, and according to the standards above, we hold that the trial court did not err.

B.

Pioneer also argues that Cavic is not entitled to any further commissions on orders from Varian, General Electric or Siemens because Cavic's employment contract limits payment of commissions to orders "received and accepted" prior to his termination. Since the commissions Cavic claims were computed from purchase orders received or accepted after Cavic was fired, Pioneer argues, the clear language of the agreement should bar his recovery. ³

This argument necessarily relies on a finding that the agreements between Pioneer and Varian, General Electric and Siemens were not long term requirements contracts. But, as the trial court has found, this is not the case. As binding, long term requirements contracts, any purchase orders made pursuant to those contracts triggered commissions to Cavic, the representative responsible for procuring the underlying agreements.

Further, Pioneer argues that the original agreement between Pioneer and Varian expired by its own terms in 1978 and that therefore Cavic is not entitled to commissions from any sales to Varian after 1978. The trial court found that despite the expiration of the Varian contract in 1978, the parties continued to perform pursuant to an oral agreement based upon the terms of the original contract. This finding is supported by the record and is not clearly erroneous. See T'ai Corp. v. Kalso Systemet, Inc., 568 F.2d 145, 147 (10th Cir.1977).

II. Fiat-Allis Agreement.

A.

Pioneer argues that it has already paid commissions based on purchase orders from Fiat-Allis. Pioneer relies on the testimony of Regina Deich, the former in-house accountant for Pioneer, who said: "I can recall looking at Fiat-Allis and I believe that most of the commissions, if not all, were paid." Later, when asked the location of any documents that would substantiate this testimony, Ms. Deich replied: "When I left Pioneer, they were in the files and records at Pioneer Astro Industries." None of this documentation, if it exists, is in the record to show whether the commissions were or were not actually paid. By contrast, Cavic presented purchase orders which clearly showed his right to receive commissions. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). Accordingly, the trial court did not err by accepting Cavic's version regarding this issue.

B.

Alternatively, Pioneer contends that Cavic's claims to the Fiat-Allis commissions are barred by the applicable Colorado statutes of limitation.

The statute of limitations issue was first raised by Pioneer as an affirmative defense in its answer. The issue was again listed in the pretrial order and was read aloud by the trial court at the start of trial as one of several legal theories upon which Pioneer would rely. The issue was never mentioned again until after trial. Pioneer neither argued the issue nor presented evidence to advance any theory as to why the statute of limitations had run. And, not surprisingly, the trial court made no ruling on the question in its findings and conclusions.

It is a general rule that a federal appellate court will not consider an issue "which was not presented to, considered or decided by the trial court." Eureka-Carlisle Co. v. Rottman, 398 F.2d 1015, 1019 (10th Cir.1968). See also Pell v. Azar Nut Co., Inc., 711 F.2d 949, 950 (10th Cir.1983). The rule may be relaxed when the issue is one of law and the proper resolution is beyond doubt or where injustice might otherwise result. Singleton v. Wulff, 428 U.S. 106, 121...