McKissick v. ROTH COMMUNICATIONS OF SAVANNAH, INC.
McKissick v. ROTH COMMUNICATIONS OF SAVANNAH, INC.
Concurring in Part
concurring in part and dissenting in part.
I concur in Division 2 and in that part of Division 1 which affirms the trial court. I respectfully dissent in that part which reverses the trial court, for I agree with it that defendant employer is entitled to summary judgment also on those sales orders which were billable but not collected before plaintiff employee’s voluntary termination.
It is undisputed that collection of payment on the sales engendered is part of the duties of a salesperson in defendant’s employ. His or her commissions are directly related to the fulfillment of that final
It is clear from the controlling provision in the contract that the salesperson does not earn a commission until and unless he or she completes the job by assuring timely payment from the customer to the employer. Plaintiff left without collecting on all his sales. Under the agreement, he was not entitled to a commission on those.
Opinion of the Court
Appellant-plaintiff voluntarily terminated his employment as an advertising salesman for appellee-defendant. Thereafter, he brought the instant action, seeking to recover commissions that appellee allegedly owed him. Appellee answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.
1. Appellant is entitled to recover commissions that he actually
The above-quoted provision clearly provides that a salesman’s commission is earned on the basis of appellee’s billings for its actual advertising services, and not on the basis of the salesman’s initial sales order for those services. Only after appellee has provided and billed for its advertising services is the procuring salesman then entitled to expect payment of his commission from collections timely received within 90 days thereafter. Appellant is entitled to those commissions that he actually earned while employed by appellee, but his contract clearly provides that he earns no commission until such time as his sales order has at least generated a bill representing appellee’s potential receipt of advertising revenue. It follows that appellant has no viable claim for any commissions on sales orders for advertising which were not actually billable by appellee until after the termination of his employment. See generally Maine v. Strange, 138 Ga. App. 24 (225 SE2d 484) (1976). Billing by appellee during appellant’s tenure of employment is a condition precedent to its obligation to pay him a commission.
The issue thus becomes whether appellant has a viable claim for any commissions on his sales orders which were actually billable by appellee during his tenure of employment, but which were not timely collected until thereafter.
Nothing in the above quoted provision expressly provides that no commission will be paid for any sales orders which are billable, but uncollected, at the time the procuring salesman’s employment was terminated. The provision does provide that a procuring salesman will be paid his commission only on timely received collections, but this
The trial court correctly granted summary judgment as to those sales orders for advertising services which were not otherwise billable by appellee during appellant’s tenure of employment. The trial court erroneously granted summary judgment as to those sales orders which were otherwise billable by appellee during appellant’s tenure of employment and which were thereafter timely collected by appellee.
2. The trial court correctly granted summary judgment as to appellant’s quantum meruit claim.
“ ‘(O)ne is estopped to recover on quantum meruit where there exists an express agreement. (Cits.)’ [Cit.]” Gilbert v. Edmondson, 193 Ga. App. 593, 594 (1) (388 SE2d 713) (1989).
Judgment affirmed in part and reversed in part.
Reference
- Full Case Name
- McKISSICK v. ROTH COMMUNICATIONS OF SAVANNAH, INC.
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- 6 cases
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- Published