Counter v. A. Land
| Decision Date | 04 August 2010 |
| Docket Number | No. 48A02-0911-CV-1099.,48A02-0911-CV-1099. |
| Parties | WELLS FARGO INSURANCE, INC., Appellant/Counter-Defendant, v. Bruce A. LAND, Appellee/Counter-Plaintiff. |
| Court | Indiana Appellate Court |
932 N.E.2d 195
WELLS FARGO INSURANCE, INC., Appellant/Counter-Defendant,
v.
Bruce A. LAND, Appellee/Counter-Plaintiff.
No. 48A02-0911-CV-1099.
Court of Appeals of Indiana.
Aug. 4, 2010.
COPYRIGHT MATERIAL OMITTED.
Elizabeth G. Russell, Indianapolis, IN, Attorney for Appellant.
Thomas B. Blackwell, Indianapolis, IN, Crystal G. Rowe, New Albany, IN, Attorneys for Appellee.
Plaintiff-Appellant Wells Fargo Insurance, Inc. appeals the trial court's entry of summary judgment in favor of Defendant-Appellee Bruce A. Land.
We affirm in part and reverse and remand in part.
Due to the nature of the issue, we address first an issue presented by Land:
I. Whether several arguments presented by Wells Fargo are barred by judicial estoppel.
In appealing the entry of summary judgment, Wells Fargo presents four issues which we consolidate and restate as:
II. Whether the trial court erred in determining the amount of Land's 2005 crop year commissions.
III. Whether Wells Fargo is entitled to deduct the amount of Land's 2006 draw from his 2005 commissions.
In his cross-appeal, Land presents two issues:
IV. Whether the trial court erred by denying his motion for additional attorney fees.
V. Whether he is entitled to appellate attorney fees.
Land was employed from April 25, 2005 to February 2, 2006 as a sales representative for Wells Fargo selling crop insurance, and Lisa Komestakes was his manager, for at least a portion of that time. Subsequent to his employment with Wells Fargo, Land apparently started his own crop insurance agency. In March 2006, Wells Fargo filed suit against Land alleging that he had violated a covenant not to compete and seeking to permanently enjoin him from contacting its customers. Land counterclaimed with a claim for unpaid wages. The trial court denied Wells Fargo's request for an injunction, and thereafter the parties filed cross-motions for summary judgment with regard to Land's wage claim. Following a hearing, the trial court entered summary judgment on behalf of Land in the amount of $81,619.35, representing commissions and penalties, pursuant to Ind.Code § 22-2-5-2, and $23,312.67 in attorney fees.
Wells Fargo subsequently filed a motion to correct error. Land filed a response to Wells Fargo's motion and requested additional attorney fees. Following a hearing, the trial court denied Wells Fargo's motion to correct error as well as Land's request for additional attorney fees. Wells Fargo then filed a motion to vacate or set aside the judgment, which the trial court also denied. Wells Fargo now appeals, and Land cross appeals.
We first address Land's argument that several of Wells Fargo's arguments are barred by judicial estoppel. Land maintains that Wells Fargo is judicially estopped from claiming that (1) Land's commissions were not earned until the date that the farmers paid their premiums; (2) Land is not entitled to receive any commissions derived from premiums paid between January 1, 2006 and March 15, 2006; (3) Wells Fargo does not owe Land any compensatory or liquidated damages; and (4) the trial court erred by finding that Land is entitled to commissions in the sum of $27,206.44, less deductions, if any.
Judicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one previously asserted. Plaza Group Properties, LLC v. Spencer County Plan Com'n, 911 N.E.2d 1264, 1269 (Ind.Ct.App.2009), reh'g denied, trans. denied (2010). “While a party may properly plead alternative and contradictory theories, he may not repudiate by contrary assertions that which he has averred in his pleadings to be true.” Marquez v. Mayer, 727 N.E.2d 768, 773 (Ind.Ct.App.2000), trans. denied.
As to the first claim of judicial estoppel, Land asserts that Wells Fargo had previously argued that Land's commissions were earned when farmers signed the insurance application to apply for crop insurance and that, on appeal, Wells Fargo is now claiming that Land's commissions were not earned until the date that Wells Fargo received its commission from the insurance carrier after the carrier was paid the premium due from the farmer. Our review of the materials submitted on appeal reveals that, both in its response to
Land's motion for summary judgment and in its argument to the trial court at the summary judgment hearing, Wells Fargo maintained that Land's commissions were not earned until the date that Wells Fargo received its commission from the insurance carrier. See Appellant's Appendix at 83, Plaintiff's Response to Defendant's Motion for Summary Judgment and Brief in Support of Plaintiff's Cross-Motion for Summary Judgment, and Tr. at 25. Therefore, the doctrine of judicial estoppel does not apply to this issue.
Secondly, Land argues that Wells Fargo is judicially estopped from arguing that he is not entitled to receive any commissions derived from premiums paid between January 1, 2006 and March 15, 2006. On this issue, Wells Fargo presented alternative arguments. Wells Fargo first and foremost urged the trial court to find that Land is owed nothing more. In the alternative, Wells Fargo advocated different outcomes to the court based upon different interpretations of its Agribusiness Commission Plan, which it argued applied to Land's employment with Wells Fargo. In one or more of these scenarios, Wells Fargo was to pay commission to Land for premiums paid during this time period. Providing the court with alternative outcomes does not necessarily amount to declaring a position contrary to one already asserted. Judicial estoppel does not apply in these circumstances.
With regard to any argument by Wells Fargo that it does not owe Land any compensatory or liquidated damages and that the trial court erred by finding that Land is entitled to commissions in the sum of $27,206.44, less deductions, we determine that judicial estoppel is not applicable. As we stated previously, Wells Fargo maintained that it owed nothing to Land. However, in the event the trial court did not come to the same conclusion, Wells Fargo offered alternatives to the court. Moreover, it did so in post-summary judgment motions to the court, at times utilizing the court's findings of commissions owed or damages in order to explain to the court the error in its determination. This does not amount to the assertion of a position inconsistent with one previously asserted. Land's judicial estoppel argument fails.
We now turn to the entry of summary judgment in favor of Land. On appeal from a grant or denial of summary judgment, our standard of review is identical to that of the trial court: whether there exists a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Winchell v. Guy, 857 N.E.2d 1024, 1026 (Ind.Ct.App.2006); see also Ind. Trial Rule 56(C). Appellate review of a summary judgment motion is limited to those materials designated to the trial court. Pond v. McNellis, 845 N.E.2d 1043, 1053 (Ind.Ct.App.2006), trans. denied. All facts and reasonable inferences drawn therefrom are construed in favor of the non-movant. Id. Further, we carefully review a summary judgment determination to ensure that a party was not improperly denied its day in court. Id. Moreover, the fact that the parties made cross-motions for summary judgment does not alter our standard of review; rather, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id. The party appealing the judgment carries the burden of persuading this court that the trial court's decision was erroneous. Wells v. Auto Owners Ins. Co., 864 N.E.2d 356, 358 (Ind.Ct.App.2007).
In general, Wells Fargo alleges that the trial court erred by denying its motion for summary judgment and by
granting Land's motion for summary judgment. Specifically, Wells Fargo contends that the trial court erred in computing Land's 2005 crop year commissions.
Land asserts that he is entitled to be paid commission on all the policies of crop insurance he sold for the 2005 crop year regardless of when the premiums were paid. Wells Fargo counters that it should only have to pay Land for the policies whose premiums were paid before January 1, 2006. In the alternative, Wells Fargo argues that it should only pay Land his commission upon those policies whose premiums were paid on or before Land's resignation date of February 2, 2006.
As a general rule, a person employed on a commission basis is entitled to his commission on business he has secured even though payment is not received by the employer until a later date. Davis v. All American Siding & Windows, Inc., 897 N.E.2d 936, 940 (Ind.Ct.App.2008), reh'g denied, trans. denied, 915 N.E.2d 989 (2009); see also Vector Engineering & Mfg. Corp. v. Pequet, 431 N.E.2d 503, 505 (Ind.Ct.App.1982). This general rule may be altered by a written agreement or by the conduct of the parties which clearly demonstrates a different compensation scheme. Id.
Here, Wells Fargo argues that its Agribusiness Insurance Commission Plan is the exception to the general rule regarding an employee's entitlement to commissions. The...
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