Wemhoff v. Investors Management Corp., 81-272.

• Decision Date: 24 January 1983
• Docket Number: No. 81-272.,81-272.
• Citation: 455 A.2d 897
• Parties: Daniel M. WEMHOFF, Appellant, v. INVESTORS MANAGEMENT CORPORATION OF AMERICA, et al., Appellees.
• Court: D.C. Court of Appeals

455 A.2d 897

Daniel M. WEMHOFF, Appellant, v. INVESTORS MANAGEMENT CORPORATION OF AMERICA, et al., Appellees.

No. 81-272.

District of Columbia Court of Appeals.

Argued January 26, 1982.

Decided January 24, 1983.

Walter H.E. Jaeger, Washington, D.C., for appellant. Daniel M. Wemhoff filed pro se briefs.

Waldemar J. Pflepsen, Jr., Washington, D.C., with whom Lionel E. Pashkoff, Arlington, Va., was on the briefs, for appellees.

Before KERN, NEBEKER and MACK, Associate Judges.

MACK, Associate Judge:

Appellant challenges the trial court's granting of motions for dismissal, with prejudice, and for summary judgment in his action to recover commissions arising out of his sales of tax sheltered annuities. We find the challenge to be well-founded.

In the Superior Court, appellant alleged that on or about February 5, 1974, he became, pursuant to an oral contract, an at-will agent for appellees for the purpose of soliciting and procuring personnel of the Montgomery County Maryland School System as enrollees in an annuity investment program. In return, he was to receive, on an "as earned" basis, a two percent commission on each of the annuity contributions he procured. Appellant further alleged that he was terminated fraudulently and in bad faith by appellees and that, despite his termination and the fact that he had been paid in full up until the time of his discharge, he was, in accordance with representations made by appellees, entitled to compensation arising from contributions from the customers he enrolled "until such time that procured customers terminate[d] and liquidate[d] their programs." He also alternatively alleged that since appellees collected contributions directly from the enrollees for his benefit, a resulting trust in the funds he sought had been created and that, since appellees had retained these contributions, they had been unjustly enriched.

In their answer, appellees admitted the existence of the oral contract. They later moved to dismiss appellant's action, however, as barred by the Statute of Frauds, D.C.Code § 28-3502 1981¹ in that appellant's oral employment contract was not performable within a year and for summary judgment based on both the Statute of Frauds and their assertion that appellant's admissions established that his was a service contract in which no provision was made for commission payments continuing after termination of employment.

Superior Court Civil Rule 12(b) provides that "[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . ." As such, we treat the trial court's grants of both motions as a grant of summary judgment.²

Superior Court Civil Rule 56(c) provides that summary judgment shall be granted if the materials submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Intercounty Construction Corporation v. District of Columbia, 443 A.2d 29, 31 (D.C.1982). Thus a function of this court on appeal is to determine whether there existed any issue of fact pertinent to the motions court's ruling. International Underwriters, Inc. v. Boyle, 365 A.2d 779, 783 (D.C.1976).

Our review of the Superior Court's grants necessarily involves two issues; first, whether appellees were entitled to interpose the Statute of Frauds as a defense and, second, whether there existed no issues of material fact as to whether appellant was entitled to commissions on contributions by customers procured by him which were received by appellees after his termination. Because, in our view, both questions must be answered in the negative, we reverse.

I. The Statute of Frauds

In Hackney v. Morelite Construction, D.C. Corp., 418 A.2d 1062 (D.C.1980), this court ruled that the appellee, by stipulating sufficient facts to establish that an agreement was reached, waived his right to assert a Statute of Frauds objection to the enforcement of an oral agreement to purchase real estate. See also Friedman v. Clark, 252 Md. 26, 248 A.2d 867 (1969) (Statute of Frauds did not bar the enforcement of an oral promise that work would be done in a "workmanlike manner" when appellant admitted in a pretrial deposition, later admitted as evidence, that he guaranteed the work); Trossbach v. Trossbach, 185 Md. 47, 42 A.2d 905 (1945) (court established and enforced a constructive trust in land for plaintiff's benefit based on an oral agreement when defendant admitted the existence of the oral agreement at trial).

Consistent with these cases, we find that appellees, by admitting the existence of an oral contract in their answer to appellant's complaint, waived their opportunity to interpose...