Disa v. Ashley Furniture Indus., Inc.

• Decision Date: 18 September 2015
• Docket Number: Case No. 8:14–cv–01915–T–27AEP.
• Citation: 131 F.Supp.3d 1316
• Parties: John DISA, Plaintiff, v. ASHLEY FURNITURE INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

131 F.Supp.3d 1316

John DISA, Plaintiff,

v.ASHLEY FURNITURE INDUSTRIES, INC., Defendant.

Case No. 8:14–cv–01915–T–27AEP.

United States District Court, M.D. Florida, Tampa Division.

Signed Sept. 18, 2015.

Filed Sept. 21, 2015.

Daniel A. Krawiec, Hinshaw & Culbertson, LLP, Lauderdale, FL, Patrick D. Dolan, Chicago, IL, for Plaintiff.

Grant David Petersen, Vanessa Arun Patel, Ogletree Deakins, PC, Tampa, FL, for Defendant.

ORDER

JAMES D. WHITTEMORE

, District Judge.

BEFORE THE COURT is Defendant's Motion for Summary Judgment (Dkt. 22), which Plaintiff opposes (Dkt. 36). Upon consideration, the motion is DENIED, because there are genuine disputes of material fact about whether Plaintiff was entitled to a pro-rated bonus for 2013.

I. INTRODUCTION

Plaintiff John Disa became the President of Defendant's subsidiary, Ashley Furniture HomeStores, Ltd. ("AHS") in January 2009. (Disa Dep, Dkt. 37–1 at 42:1–3). Before joining AHS, Disa had worked as a high-level executive of other retail companies, including Casual Corner, Foot Locker, and Wickes Furniture. (Id. at 11–13, 16–19, 27–29). At AHS, Disa oversaw four different categories of retail outlets: Ashley Furniture HomeStores ("AFHS"), Kingswere Furniture ("KWF"), Rockledge Furniture ("RLF"), and Stoneledge Furniture ("SLF"). (Id. at 42:12–43:7). Disa was hired (and eventually fired) by Todd Wanek, the CEO of Defendant Ashley Furniture Industries, Inc. ("Ashley"), which was the privately-held, Wanek family-controlled parent of AHS. (Disa Aff., Dkt. 36–3 ¶ 2).

After Disa was hired, he drafted an Employment Agreement,¹ which was signed by both Wanek and Disa on December 4, 2009.² (Dkt. 36–4 at pp. 2–4). The document was titled "Employment Agreement Between Ashley Furniture Industries (AFI) and John Disa" and its effective date was January 1, 2009. (Id. at p. 3). The "Compensation" section consisted of two bullets. (Id. ) The first was the "Base Salary: $700,000 annually." Second was the "Incentive Bonus: $800,000 annually," with two bullets underneath, the first of which read, "50% of the incentive bonus will be based upon the same store sales growth or total sales growth of licensed and corporate stores, which will be determined and agreed upon by the parties during each year[']s planning process. " (Id. ) (italics original). The second bullet stated, "50% of the incentive bonus will be based upon a profitability goal ... for each of the corporate homestores. The profitability number will be agreed upon each year['s] planning process accompanied by the profitability goal assumptions (to provide a basis for unanticipated activity which may increase or decrease the original goal )." (Id. ) (italics original). The Employment Agreement also included the following provision: "Severance: In the event of involuntary separation, AFI will provide one year severance pay at the current annual base salary or $700,000, whichever is higher, payable each pay period over the next 26 pay periods...." (Id. at p. 4) (italics deleted). Finally, the Employment Agreement stated that "a long-term incentive plan" would be established "in lieu of stock options that will provide financial incentive to grow and share in the growth of the business," which was to "be constructed similar to an option plan with specific metrics established for valuation." (Id. ) (italics deleted).

In July 2010, Disa and Wanek discussed the creation of a long-term incentive plan, as contemplated by the Employment Agreement. Disa's draft of an amended compensation agreement included the following clause: "Change of control. If, on or after a change of control, the Company's Board of Directors terminates Mr. Disa's employment without cause ... Mr. Disa will be entitled to receive (i) a prorated bonus for the fiscal year in which his employment terminates, and (ii) severance payments totaling 100 percent of an amount equal to his then-current base salary (minimum of $800,000) plus the maximum annual bonus earned from the prior two fiscal years of a change in control (minimum of $800,000)...." (Dkt. 37–1 at p. 77). This draft was not adopted, however. (Disa Dep. 99:10–16). The parties later agreed, in a document titled "John Disa Compensation Plan—AMENDED August, 2010" (the "Amendment"), to amend only the bonus provision of the Employment Agreement, changing it for periods after 2011 ("Go Forward") to the sum of 10% of the pretax earnings of the KWF, RWF, and SLF stores (titled as "Enterprise Incentive"), and $15,000 per percentage point of sales growth in AHS stores ("AHS Incentive"). (Dkt. 36–4 at p. 4). The Amendment also stated, "Change of control clause removed." (Id. )

Pursuant to the Employment Agreement as modified by the Amendment, Disa was paid bonuses for 2011 and 2012, based on 10% of the pretax earnings of KWF, RWF, and SLF stores, and $15,000 per percent increase in AHS same store sales. (Disa Dep. 97:4–99:1). The 2011 bonus was paid in 2012 and the 2012 bonus was paid partially in December 2012 and the remainder in early 2013 after complete financial figures were available for 2012. (Id. )

On October 30, 2013, Wanek told Disa he wanted to change course, and on November 4, 2013, Wanek fired Disa, effective immediately. (Wanek Dep., Dkt. 37–2 at 50:14–16, 74:10–25, 117:3–22). Wanek said he fired Disa based on poor performance, but Disa stated he was never told that was the reason. (Id. at 50, 67, 71–72; Disa Dep. at 112–114). Defendant paid Disa a severance of $800,000 but did not pay a bonus for 2013. (Wanek Dep. 47:14–16, 105:11–16, 119:16–24).

Disa brought this lawsuit against Ashley, claiming it was obliged to pay him the bonus due in 2013, which he calculated to be approximately $1,288,167. (Dkt. 1 ¶¶ 13–14). Disa contends he is due the bonus under theories of breach of contract (Count I), breach of oral contract (Count II), promissory estoppel (Count IV), unjust enrichment (Count V), and common law unpaid wages (Count VI).³ Ashley has moved for summary judgment on all counts.

II. STANDARD

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a)

. "A genuine factual dispute exists only if a reasonable fact-finder ‘could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.’ " Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir.2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).

The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir.2004)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the moving party fails to demonstrate the absence of a genuine dispute, the motion should be denied. Kernel Records, 694 F.3d at 1300 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Clark v. Coats & Clark, Inc., 929 F.2d 604, 606–08 (11th Cir.1991) ). Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show that specific facts exist that raise a genuine issue for trial. Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir.2010). The nonmoving party must "go beyond the pleadings," and designate specific facts showing that there is a genuine dispute. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir.1995) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ). A mere scintilla of evidence in the form of conclusory allegations, legal conclusions, or evidence that is merely colorable or not significantly probative of a disputed fact cannot satisfy a party's burden. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.1991) ; Kernel Records, 694 F.3d at 1301.

The evidence presented must be viewed in the light most favorable to the nonmoving party. Ross v. Jefferson Cnty. Dep't of Health, 701 F.3d 655, 658 (11th Cir.2012)

. If there is a conflict between the parties' allegations or evidence, the nonmoving party's evidence is presumed to be true. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir.2003). "Although all justifiable inferences are to be drawn in favor of the nonmoving party," Baldwin Cnty. v. Purcell, 971 F.2d 1558, 1563–64 (11th Cir.1992), "inferences based upon speculation are not reasonable." Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir.1986). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine dispute over a material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988)

. However, if the nonmovant's response consists of nothing more than a repetition of conclusory allegations, summary judgment is not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981), cert. denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982).

III. DISCUSSION

Ashley moves for summary judgment on the basis that it was not obligated, based on the plain language of the contract and extrinsic evidence, to pay Disa a pro rata bonus, because the bonus was due only if Disa worked a full year. Because the contract is ambiguous and a jury could reasonably find that Disa was due a pro rata bonus for the time he worked in 2013, summary judgment is due to be denied.

A. General Principles of Contract Interpretation

The interpretation of a written contract, including the question of whether a contract is ambiguous, is a matter of law. DEC Elec., Inc. v. Raphael Constr. Corp., 558 So.2d 427, 428 (Fla.1990)

. Oral contracts are also subject to the ...