Unique Staff Leasing LLC v. Onder
| Decision Date | 09 December 2010 |
| Docket Number | NO. 13-09-00213-CV,13-09-00213-CV |
| Parties | UNIQUE STAFF LEASING, LLC, AND UNIQUE STAFF LEASING I, LTD., Appellants, v. RICHARD ONDER,Appellee. |
| Court | Texas Court of Appeals |
On appeal from the County Court at Law No. 3
of Nueces County, Texas.
MEMORANDUM OPINIONBefore Chief Justice Valdez and Justices Benavides and Vela
Appellants, Unique Staff Leasing, LLC, and Unique Staff Leasing I, Ltd. (collectively "Unique"), challenge the jury's verdict in a breach of contract case in favor of appellee, Richard Onder. By four issues, Unique argues that: (1) the statute of frauds bars Onder'sclaims for breach of an oral agreement for future commissions; (2) the statute of frauds bars Onder's claim for breach of a written agreement to pay future commissions because Onder could not establish that such a document existed and was signed by Unique, the party charged under the agreement; (3) the evidence is legally and factually insufficient to support Onder's recovery for breach of contract; and (4) if any agreement between Unique and Onder existed, Unique was excused from performing because Onder committed a prior material breach of the purported contract. We affirm as modified.
This dispute centers on whether an "Independent Contractor and Commission Agreement" that Onder and Unique purportedly executed in 2005 and an earlier oral agreement to pay commissions are enforceable. Unique is a "professional employer organization" that provides "staff leasing" and other employment services to businesses, including "human resources, payroll, workers compensation, healthcare, pension plans, safety [and] risk management, and claims services." Unique is based in Corpus Christi, Texas, but has branch offices in Houston, San Antonio, and McAllen, Texas. Bradford and his wife own Unique; Ernest Wayne Judge served as Unique's Regional Vice-President of Sales; and Greg Maisal is Unique's Vice-President of Sales and Marketing.
In February 2002, Onder was hired by Unique as a salesman.1 Onder was tasked with soliciting and bringing new company clients to Unique. Judge recommended hiring Onder because the two knew each other. Onder was classified as an at-will employee of Unique's, and, on July 30, 2004, he signed an "At-Will Agreement," which included a non-compete clause lasting for one year. In his pleadings, Onder asserted that he was originally hired based on verbal agreements and that, on July 30, 2004, Unique required that he signed the "At-Will Agreement." Onder acknowledged at trial that most discussions regarding his compensation were done verbally; in an affidavit, Onder noted that the parties agreed he would be paid
On December 31, 2004, Unique sent Onder a letter terminating his employment with Unique. In this letter, Unique stated that:
You failed to meet the $6,000, 000 gross payroll sales objectives outlines for 2004. You only met 8% of the stated goals. On October 5, 2004[,] you were placed on a 90-day probationary review period and encouraged to meet a revised $900,000 payroll goal by the end of December 2004. You were fully aware of the communicated expectations and consequences related to low production levels. Your failure to attain the stated sales objectives is unacceptable and is the basis for your employment termination.
Nevertheless, Unique apparently desired to maintain a working relationship with Onder.2 As such, Bradford sent Onder an e-mail on January 3, 2005, with an unsigned "Independent Contractor and Commission Agreement" attached. In his e-mail, Bradford instructed Onder to read, sign, and return the document to Bradford so that Onder could remain employed by Unique as an independent contractor. Onder printed the agreement, signed it, and mailed it back to Bradford from a local UPS store. The record does notcontain a copy of the agreement signed by Onder, Bradford, or an authorized representative of Unique; instead, an unsigned copy of the agreement is included in the record. At trial, Bradford denied that the alleged signed version of the contract could have been lost by Unique employees. Onder asserted that shortly thereafter, he was contacted by Maisel for tax information so that Onder could get set up in Unique's payroll system.
The parties apparently operated under the "Independent Contractor and Commission Agreement" for approximately two years, until February 7, 2007, when Bradford sent Onder a letter terminating his services.3 In this letter, Bradford noted that:
(Emphasis in original.) Unique discontinued paying Onder commissions, even though some of Onder's clients continued to do business with Unique.
Onder later filed an original petition alleging that, by refusing to continue paying him commissions for his clients that remained with Unique, Unique had breached the "Independent Contractor and Commission Agreement" and the oral agreements that Judge and Onder entered into when Onder was first hired by Unique.5 Onder also asserted claims for unjust enrichment and attorney's fees and sought a declaration from the trialcourt that he was entitled to the commissions at issue pursuant to the "Independent Contractor and Commission Agreement." Unique filed its original answer generally denying Onder's allegations and asserted counterclaims for attorney's fees and a declaration that Onder is no longer entitled to the payment of commissions under the "Independent Contractor and Commission Agreement" considering he was terminated. Unique also pleaded that the contract violated the statute of frauds and was, therefore, unenforceable.
Thereafter, Unique filed a traditional motion for partial summary judgment, arguing that: (1) the complained-of contract was governed by the statute of frauds; (2) the complained-of contract did not satisfy the statute of frauds; and (3) Onder's breach of contract claim failed as a matter of law. After a hearing, the trial court denied Unique's motion for summary judgment.
In early September 2008, trial commended in this matter. After several days of testimony, the jury returned a verdict favorable to Onder. Specifically, the jury concluded that: (1) Onder and Unique agreed that Onder would continue to be paid commissions (the agreement allegedly entered into by Judge and Onder when Onder was first hired), even after his employment with Unique was terminated; (2) Unique failed to comply with the commissions agreement; (3) Unique's failure to comply with the oral commissions agreement was not excused; (4) the parties intended to conduct business electronically, and both parties agreed to be bound by the "Independent Contractor and Commission Agreement"; (5) Unique failed to comply with the "Independent Contractor and Commission Agreement"; and (6) Unique's failure to comply was not excused. Given its liability findings, the jury awarded Onder $52,025.11 in lost commissions.6 The trial court signed its final judgment adopting the jury's findings on January 26, 2009, and awarded Onder an additional $3,117.96 in pre-judgment interest, $21,750 in attorney's fees for trial preparation, $15,000 in attorney's fees for an appeal to this Court, attorney's fees for an appeal to the supreme court, and interest in the amount of 5% per annum.
Unique subsequently filed a motion for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c). This appeal followed.
In their first and second issues, Unique argues that the "Independent Contractor and Commission Agreement" and the oral agreements between Judge and Onder violate the statute of frauds and are therefore unenforceable because the agreements could not be performed within one year of their making and were not signed by the party charged with the agreement—Unique. Unique also contends that the parties did not intend to conduct business electronically, and the attachment of the unsigned contract to an e-mail in which Bradford typed his name does not constitute an electronic signature or satisfy the requirements for an enforceable electronic transaction. Onder counters by arguing that the contract is not subject to the statute of frauds because the agreement could be performedwithin one year of its making, in accordance with its own terms.7 Onder further argues that the contract was electronically signed by Bradford and that Onder accepted Unique's offer of employment as an independent contractor by signing the agreement and returning a hard copy to Unique by mail, as Unique requested. In the alternative, Onder asserts that if the contract falls within the statute of frauds, Unique partly performed under the contract and cannot accept the benefits of Onder's performance "and now urge that the contract is not enforceable pursuant to the [s]tatute of [f]rauds."
The statute of frauds exists to prevent fraud and perjury in certain...
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