Veur v. Groove Entm't Techs., 20160153-CA

Decision Date09 August 2018
Docket NumberNo. 20160153-CA,20160153-CA
Citation436 P.3d 109
CourtUtah Court of Appeals

Nan T. Bassett and S. Shane Stroud, Salt Lake City, Attorneys for Appellant

Cheylynn Hayman, Salt Lake City, Attorney for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.



¶1 Mike Vander Veur appeals the district court’s grant of summary judgment to Groove Entertainment Technologies. Groove terminated Vander Veur’s employment in June 2013. Vander Veur argues that the district court incorrectly granted summary judgment to Groove on his claims for breach of the implied covenant of good faith and fair dealing regarding certain commissions and a bonus to which he claims entitlement. He also argues that the district court erred in granting summary judgment in Groove’s favor on its unjust enrichment claim, which was based on Vander Veur’s retention of certain commission draws following his termination. We affirm in part, vacate in part, and remand for further proceedings.


¶2 Around September 2010, Groove, a company that sells television services to customers, such as hotels, hired Vander Veur as a sales representative. Vander Veur’s duties included, among other things, producing leads and generating new business by signing new customers for television services.

¶3 In October 2012, Vander Veur and Groove entered into a Sales Representative Compensation Agreement (the Compensation Agreement). Among its relevant provisions, the Compensation Agreement provided that it would be effective as of October 15, 2012, and that it would "remain in effect as long as [Vander Veur] is employed by Groove." The agreement further provided that "Groove [would] pay [Vander Veur] a commission for each Qualifying Sale deemed commissionable as defined in this Agreement." The Compensation Agreement defined "Qualifying Sale" as "a commissionable sale where the minimum margin requirements are met and the installation is complete." It also explained that Vander Veur was entitled to biweekly draws against his earned commissions and that these draws would be deducted from his earned commissions.

¶4 Vander Veur also signed an Employee Handbook Acknowledgement on three separate occasions—in December 2010, December 2011, and April 2013. Each acknowledgement explained that, notwithstanding the policies and procedures detailed in the handbook, Vander Veur’s employment was at will; both Groove and Vander Veur had the right to terminate their employment relationship at any time, with or without notice or cause.

¶5 Groove terminated Vander Veur’s employment in June 2013. At the time of termination, Vander Veur was in the process of procuring six commissionable sales. While Vander Veur had apparently obtained either written sales contracts or verbal commitments for each sale, it is undisputed that at the time of his termination none of those sales had been installed. The first of the six installations took place in July 2013, approximately one month after Vander Veur’s termination, and all six sales were installed within three months of his termination. Groove did not pay Vander Veur any commission for the six sales.

¶6 In addition, before his termination, Vander Veur was working with Groove’s lead sales representative and another Groove employee to complete a large sale to provide satellite services to a hotel. In connection with this sale, Groove stood to be paid a sizeable bonus from Showtime (the Showtime bonus). Groove’s president, Vander Veur, and the lead sales representative apparently agreed that, after paying $1,000 to the other Groove employee who had assisted with the sale, they would split the Showtime bonus evenly between them.2 Groove did not receive the bonus from Showtime until nearly one month after Vander Veur’s termination, and Groove did not share any portion of it with Vander Veur.

¶7 After his termination, Vander Veur filed suit against Groove. Among other things, he alleged that Groove had breached the implied covenant of good faith and fair dealing in the compensation and bonus agreements by terminating him for the express purpose of avoiding paying him the six commissions and the Showtime bonus.3 Groove counterclaimed, asserting breach of contract and unjust enrichment claims against Vander Veur on the basis that Vander Veur had retained certain draw monies that exceeded the commissions he had earned prior to his termination. Groove’s breach of contract claim was based upon a 2013 Sales Representative Agreement (the 2013 Agreement) that Vander Veur had not signed, and it pleaded its unjust enrichment claim in the alternative.

¶8 Groove moved for summary judgment on Vander Veur’s claims as well as its unjust enrichment counterclaim. As to the six commissions, Groove argued that Vander Veur could not rely on the implied covenant of good faith and fair dealing to claim entitlement to the commissions in light of "the parties’ course of dealing and [Vander Veur’s] at-will employment status." Groove pointed to the plain language of the Compensation Agreement, asserting that the agreement unambiguously stated that commissions were not earned until installation. Groove also characterized Vander Veur’s breach of the implied covenant claim as an improper attempt to have the court "retroactively re-craft more favorable payment terms" than those to which Vander Veur agreed, asserting that it undoubtedly never would have agreed to pay Vander Veur commissions for post-termination installations had it considered and addressed the issue in the Compensation Agreement. Indeed, Groove claimed that it had "never paid commissions to sales representatives for installations that were completed after the termination of employment." Groove further argued that Vander Veur could not "use the covenant to pencil in a ‘good cause’ termination restriction" in light of the "numerous acknowledgements he signed in which he expressly recognized that his employment was at-will."

¶9 Regarding the Showtime bonus, Groove similarly argued that Vander Veur’s claim for breach of the implied covenant was unavailing where Groove "never would have agreed to pay Vander Veur" that bonus "after the termination of his employment." In its summary judgment reply memorandum, Groove also contended that the claim should be dismissed for the alternative and independent reason that there was "no enforceable contract" as to the Showtime bonus, because there was no meeting of the minds on whether Vander Veur would have been entitled to the bonus post-termination.

¶10 Finally, Groove argued that it was entitled to judgment as a matter of law on its unjust enrichment claim. Groove accepted for purposes of summary judgment that, as Vander Veur claimed in his answer, the 2013 Agreement was "inapplicable to him," and Groove argued that it met the three requirements to establish unjust enrichment. See generally Rawlings v. Rawlings , 2010 UT 52, ¶ 29, 240 P.3d 754 (listing the "three elements" required to prove "[a] claim for unjust enrichment in Utah").

¶11 In response, Vander Veur argued that summary judgment was inappropriate on his breach of the implied covenant claims because "[a] rational jury could determine based on the facts" that Groove’s claimed reason for terminating him was mere pretext and that his termination, "executed on the eve of him becoming eligible for significant commission and bonus payments," was instead done "to deprive him of the commissions and bonuses he was to receive once the jobs he had sold were installed." Regarding Groove’s counterclaims, Vander Veur argued that Groove was not entitled to judgment on its unjust enrichment claim for two reasons. First, he argued that because an unjust enrichment claim is cognizable only if no contract controls, Groove could not prevail simply by "ignor[ing]," for purposes of summary judgment, the 2013 Agreement on which its breach of contract counterclaim was based. Rather, Vander Veur contended that Groove should have to "withdraw its breach of contract claim," or, at the very least, be required to explain "why it has no legal remedy under its breach of contract cause of action prior to proceeding with its unjust enrichment claim." Second, he argued that Groove had failed to prove its unjust enrichment claim primarily because the existence of his own claims made the calculation of the benefit conferred to him and his liability for it "impossible," where he could be entitled to offset as well as pre- and postjudgment interest, should he prevail.

¶12 The district court granted summary judgment to Groove on all issues, dismissing Vander Veur’s claims with prejudice. It also entered judgment in Groove’s favor for unjust enrichment in the amount of $2,925.04, plus prejudgment interest. Vander Veur appeals.


¶13 Vander Veur argues that the district court improperly granted summary judgment in favor of Groove on his claims for breach of the implied covenant of good faith and fair dealing as well as Groove’s unjust enrichment claim. Summary judgment is appropriate "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). "An appellate court reviews a district court’s legal conclusions and ultimate grant or denial of summary judgment for correctness and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." ZB, N.A. v. Crapo , 2017 UT 12, ¶ 11, 394 P.3d 338 (quotation simplified).

I. Breach of the Implied Covenant of Good Faith and Fair Dealing

¶14 Vander Veur argues that the district court incorrectly granted Groove summary judgment on his claims for breach of the implied covenant of good faith and fair dealing. Although he acknowledges the at-will nature of his employment with Groove, h...

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5 cases
  • Vander Veur v. Groove Entm't Techs.
    • United States
    • Utah Supreme Court
    • October 29, 2019
    ...inheres in every contract," including those "associated with employment." Vander Veur v. Groove Entm’t Techs. , 2018 UT App 148, ¶ 20, 436 P.3d 109. "Its ‘core function’ is to impose on parties the duty to perform" their contractual obligations in good faith, id. ¶ 21, and to "refrain from ......
  • Cella v. MobiChord, Inc.
    • United States
    • U.S. District Court — District of Utah
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    ...have the right to terminate the employment for any reason (or no reason) except where prohibited by law." Vander Veur v. Groove Entertainment Techs., Inc., 436 P.3d 109, 116 (UtahCt. App. 2018) ("Vander Veur I") (internal quotation marks and citations omitted), rev'd on other grounds by Van......
  • Syme v. Symphony Grp. LLC
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    • November 8, 2018 affirm on this alternative basis and remand for further proceedings. See Vander Veur v. Groove Entm’t Techs. , 2018 UT App 148, ¶ 37, 436 P.3d 109 (quotation simplified), petition for cert. filed , Sept. 10, 2018 (No. 20180730).III. Good Faith and Fair Dealing¶ 27 Finally, the Symes cont......
  • Cella v. MobiChord, Inc.
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    • July 31, 2020 a compensation agreement attendant to the at-will employment relationship.'" Id. at 1177 (quoting Vander Veur v. Groove Entm't Techs., 436 P.3d 109, 115 (Utah Ct. App. 2018)). Reversing the appellate court, the Utah Supreme Court found on the facts before it that Mr. Vander Veur was not ......
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