Opinion
No. A-09-589.
Filed March 2, 2010.
Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge. Affirmed.
W. Patrick Betterman, of Law Offices of W. Patrick Betterman, for appellant.
Donald P. Dworak, of Stinson, Morrison Hecker, L.L.P., for appellee.
SIEVERS, CARLSON, and MOORE, Judges.
INTRODUCTION
Travis Stoler appeals from the order of the district court for Douglas County, which entered judgment in his favor against Otis Bed, Inc. (Otis). On appeal, Stoler raises a number of issues, including the applicable statute of limitations (SOL), amount of damages, and award of attorney fees. For the reasons set forth herein, we affirm.
BACKGROUND
Otis is in the business of manufacturing and selling mattress products, specifically futon mattresses and frames. When the parties met at a trade show in May 1998, Stoler was selling futons for others. At the meeting, the parties orally agreed that Stoler would sell Otis products. According to Stoler, the agreement reached was as follows:
I would have kind of an open range of sales. Whoever I brought into their company, I would get 5% commissions on whatever was paid for, you know. I wouldn't get paid on the freight, and I wouldn't get paid if someone didn't pay their bill. When stuff was paid for, I would get the commissions.
Thereafter, Otis sent Stoler a letter, dated June 3, 1998, which summarized the terms of Stoler's agreement with Otis. The letter stated that Stoler was "actively making personal calls" in certain states and that a 5-percent commission would be paid on all sales, except as to certain "house accounts," identified in an attachment to the letter. The letter also identified certain territories covered by other representatives and stated that Stoler was to receive a 1-percent "override" in some of those territories. The letter also stated:
All other states not covered by a representative [are] basically open on a store account basis by which a 5% commission will be paid to you for being instrumental in opening a new account. When a state is turned over to a representative by mutual consent you get a 1% override for all activity within that state but relinquish the 5% to the new rep. Attached is a list of house accounts which we are retaining and no commissions paid.
The "house accounts" were those customers for futon mattresses that Otis had prior to its agreement with Stoler.
From May 1998 through October 2003, Stoler performed under the terms of the parties' agreement. Likewise, Otis utilized Stoler's services and paid him commissions. Both parties referred to the arrangement as an independent contractor relationship. The parties amended the terms of their agreement from time to time both verbally and in writing. After the initial agreement, Otis later offered Stoler a 1-percent commission on house accounts in the states he represented. The accounts on which Stoler received a 1-percent commission changed from time to time. Stoler was initially paid commission on receipt of payment by Otis for shipped goods. The method of payment of Stoler's commissions was later changed to payment at the time goods were shipped, but it was ultimately changed back to the original method of payment.
Otis severed its relationship with Stoler, effective October 27, 2003, in a letter of that date, citing "a steady decline in sales" from Stoler and Stoler's "lack of interest in representing Otis." Stoler rejoined Otis in March 2004 for a 6-month probationary term. Stoler returned to Otis, starting at "[g]round [z]ero," with no existing accounts. The parties dispute whether Otis formally terminated Stoler's services for a second time in July 2004, but Stoler did agree in his testimony that Otis stopped sending him commission checks. Stoler testified that his "term to go out and solicit new business and to wear Otis on my sleeve" ended at that time, but he contended that "it didn't end my term for the customers that I paid to go see and open up that continuously bought and still buy from Otis."
Stoler filed a complaint in the district court on March 1, 2006. Stoler alleged that Otis materially breached the parties' agreement in various respects. Stoler also set forth a claim under the Nebraska Wage Payment and Collection Act (NWPCA), Neb. Rev. Stat. § 48-1228 et seq. (Reissue 2004), seeking judgment for unpaid wages due to him, as well as a reasonable attorney fee under § 48-1231 of the NWPCA. Stoler also set forth a claim for unjust enrichment.
Otis answered, generally denying the allegations of Stoler's complaint and, among other things, affirmatively alleging that Stoler's claims were barred by the applicable SOL.
Trial was held before the district court on December 2 through 4, 2008, and January 7 through 9, 2009. We have thoroughly reviewed the lengthy record, but because of the length of that record, we have not set forth a detailed recitation of the evidence at trial other than what is reflected above. We have set forth such additional background information as necessary to our resolution of this appeal in the analysis section below.
The district court entered an order on April 6, 2009, granting judgment in Stoler's favor. The court found that the parties had a valid, oral contract, the initial terms of which were set forth in the June 3, 1998, letter from Otis to Stoler. The court noted that this case was filed on March 1, 2006, and concluded that unless there was a tolling of the SOL, any claims more than 4 years old were barred. The court disagreed with Stoler's claim that the arrangement between the parties was an "open account" and that the SOL ran from the time of the last payment of any commission from any, or each, customer. The court found that this was "a clear case of commission payments for sales made" and that the amount of commission was not calculable until the sales were generated. Based on the evidence, the court found that any claims of Stoler for commissions he claimed were due prior to March 1, 2002, were barred by the SOL and that there were no acts which tolled the SOL. The court rejected Stoler's arguments that he was entitled to all of the commissions from his accounts as they existed at the time of his initial termination of employment from Otis in October 2003 to the present and that Otis was unjustly enriched by commissions Otis would have had to pay him had he still been an independent representative of Otis' products. Specifically, the court found that Stoler was no longer an independent representative of Otis after July 2004 and not entitled to any commissions on sales made by Otis after that date. The court noted that Stoler had no customers when he was rehired by Otis in March 2004, concluding that other than the commissions that were actually paid to Stoler for sales made after his rehire, Otis was under no obligation to pay Stoler for any commissions on his former customers after his separation from Otis in October 2003.
The district court granted a motion Otis made at trial to amend the pleadings to conform to evidence relating to certain offsets it was requesting from Stoler. The court noted that a particular exhibit listing the claimed adjustments was received into evidence without objection. The court concluded that the parties clearly anticipated evidence of a setoff and that Stoler was not prejudiced.
The district court found by a preponderance of the evidence that Stoler was entitled to commissions which remained unpaid on sales made between March 1, 2002, and October 27, 2003, of $42,129.94. The court allowed Otis a setoff of $11,372.77 and awarded Stoler attorney fees of $7,689.29 under § 48-1231 of the NWPCA. Accordingly, the court entered judgment in Stoler's favor for the sum of $30,757.17, plus the attorney fees and costs.
Stoler filed a motion to alter or amend the judgment, or for a new trial in the alternative, which the district court denied on May 15, 2009. Stoler subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Stoler asserts that the district court erred in (1) determining the applicable SOL, (2) concluding that there was no open account between Otis and Stoler, (3) failing to properly apply Neb. Rev. Stat. § 25-216 (Reissue 2008), (4) failing to allow Stoler to prove facts necessary for a determination of a reasonable attorney fee award, (5) failing to award damages under the procuring cause rule, (6) failing to award the correct amount of damages, (7) failing to give conclusive effect to Otis' admissions to Stoler's requests for admission, and (8) failing to grant Stoler's motion to alter or amend judgment or for new trial, in the alternative.
STANDARD OF REVIEW
A suit for damages arising from breach of a contract presents an action at law. Albert v. Heritage Admin. Servs., 277 Neb. 404, 763 N.W.2d 373 (2009). In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be disturbed on appeal unless clearly erroneous. BSB Constr. v. Pinnacle Bank, 278 Neb. 1027, 776 N.W.2d 188 (2009). In reviewing a judgment awarded in a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Id. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.
Which SOL applies is a question of law that an appellate court must decide independently of the conclusion reached by the trial court. Corona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009). If the facts in a case are undisputed, the issue as to when the SOL begins to run is a question of law. Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810, 716 N.W.2d 87 (2006). The point at which an SOL begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the SOL normally will not be set aside by an appellate court unless clearly wrong. Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved. BSB Constr., supra.
A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Russell v. Clarke, 15 Neb. App. 221, 724 N.W.2d 840 (2006). A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. R D Properties v. Altech Constr. Co., 279 Neb. 74, 776 N.W.2d 493 (2009).
ANALYSIS
Applicable SOL.
Stoler asserts that the district court erred in determining the applicable SOL. The district court determined that the parties had a valid oral contract and applied the 4-year SOL for oral contracts found in Neb. Rev. Stat. § 25-206 (Reissue 2008) rather than the 5-year SOL for written contracts found in Neb. Rev. Stat. § 25-205 (Reissue 2008). The evidence shows that after the initial oral contract was formed, the parties subsequently amended the terms of their contract both verbally and in writing.
Nebraska case law provides that an agreement partly written and partly oral may, in legal effect, be regarded in its entirety as a parol contract. Beekman v. Cornhusker Farms, 214 Neb. 418, 333 N.W.2d 918 (1983). A contract is not an "agreement, contract or promise in writing" within the meaning of § 25-205, unless it can be wholly proved by a writing or writings; and if there is anything that must be supplied by parol evidence to make it a binding obligation, it is not an "agreement, contract or promise in writing." Id.
It has been stated that "[w]here all the terms of an oral agreement are set forth in a written instrument, which is accepted and acquiesced in by the parties, the written instrument may constitute a contract in writing within the meaning of the [SOL]." Annot., 3 A.L.R.2d 809 § 12 at 823 (1949). However,
[t]he modification of a contract in writing, not required to be so by statute, by parol agreement of the parties, which goes to a material part thereof, should operate to reduce it to the status of a contract by parol, in determining the applicability of [SOL]; for, when so modified, its entire purport, terms, and construction are rendered subject to establishment by parol proof in the same measure as those of a contract and tally by parol. And, in addition, it is more reasonable that the parol part, being the more recent expression of the intention of the parties, should draw to its nature the retained stipulations of the written contract, than that the written contract should draw to it the new parol stipulations. Therefore, when by subsequent parol agreement of the parties a written contract has been modified in its material parts, the whole contract is thereby reduced to the status of a parol agreement, in determining the applicability of [SOL].
Annot., 3 A.L.R.2d 809 § 13 at 824.
Stoler argues that the parties' initial contract was a written contract as reflected in the June 3, 1998, letter. Stoler further argues that any subsequent oral amendments to the parties' agreement are not relevant to the claims he is making on appeal. The district court determined that the parties' initial contract, based upon their meeting at a trade show in May 1998, was a valid, oral contract, and we cannot say that this determination was clearly erroneous. The record shows that subsequent written and oral modifications were made to the agreement, but these do not change the legal effect of the court's ruling about the parties' initial oral agreement, because the parties' agreement cannot be wholly proved by a writing or writings. Accordingly, we find no error in the district court's determination that the 4-year SOL found in § 25-206 was the applicable SOL.
Open Account.
Stoler asserts that the district court erred in concluding there was no open account between Otis and Stoler. In an action on an open account, where the dealing between the parties was continuous, each succeeding item is applied to the true balance, and the latest item of the account removes prior items from the operation of the SOL. Sodoro, Daly v. Kramer, 267 Neb. 970, 679 N.W.2d 213 (2004). The last item in an open account, for SOL purposes, is the final underlying transaction which represents a legal indebtedness. Id. Stoler argues that the last transaction in evidence in this case occurred on October 27, 2003, well within 4 years of the commencement of these proceedings on March 1, 2006. The district court considered and rejected Stoler's claim at trial that the arrangement between the parties was an "open account," finding that this was "a clear case of commission payments for sales made."
Openness of an account is indicated when further dealings between the parties are contemplated and when some term or terms of the contract are left open and undetermined. Sodoro, Daly, supra. The critical factor in deciding whether an account is open is whether the terms of payment are specified by the agreement or are left open and undetermined. Id. The terms of payment in the contract at issue here were not left open and undetermined. The contract clearly specifies the percentage Stoler would receive as a commission and the time of payment for those commissions, although the time of payment was modified from time to time. The district court's determination that the parties did not have an open account is not clearly erroneous.
Application of § 25-216.
Stoler asserts that the district court erred in failing to properly apply § 25-216, which provides, "In any cause founded on contract, when any part of the principal or interest shall have been voluntarily paid, . . . an action may be brought in such case within the period prescribed for the same, after such payment. . . ." Stoler notes that April 14, 2003, was the date of the last check paid to Stoler by Otis prior to his employment's termination in October, and he argues that, by virtue of § 25-216, the SOL did not begin to run until "the later of the date of the last payment to [Stoler] on April 14, [2003,] or the date of his last written admission." Brief for appellant at 30.
Otis argues that under § 25-216, for part payment to have the effect of tolling the SOL, the payment must be made under circumstances which justify the inference that the debtor recognized the whole debt as an existing liability. Otis draws our attention to T. S. McShane Co., Inc. v. Dominion Constr. Co., 203 Neb. 318, 327-28, 278 N.W.2d 596, 602 (1979), wherein the court stated:
Broadly speaking, the rule that part payment tolls the [SOL] is based on the theory that part payment "amounts to voluntary acknowledgment of the existence of the debt, from which the law implies a new promise to pay the balance." It follows, therefore, that for a part payment to have the effect of tolling the [SOL], it must be made under such circumstances as to fairly warrant the inference that the debtor recognizes the whole of the debt as an existing liability. [Citation omitted.]
In Beacom v. Daley, 164 Neb. 120, 81 N. W. 2d 907, [ overruled on other grounds, Ruwe's Estate v. Ruwe, 190 Neb. 663, 211 N.W.2d 610 (1973),] it was said: "`A voluntary payment upon a claim otherwise barred by the [SOL] is one that was intentionally and consciously made and accepted as part payment of the particular indebtedness in question under such circumstances as would warrant a clear inference that the debtor assented to and acknowledged the greater debt to be due as an existing liability.'"
In the present case defendant took no affirmative action to seek the credit. Thus, no inference can arise that defendant assented to and acknowledged the greater debt to be due and in fact defendant had refused to pay the debt.
We agree with Otis' assertion that in the present case there was no evidence that would have required the district court to find that Otis assented to and acknowledged any debt owed to Stoler as an existing liability, making § 25-216 inapplicable. Stoler's assignment of error is without merit.
Attorney Fees.
Stoler asserts that the district court erred in failing to allow him to prove facts necessary for a determination of a reasonable attorney fee award. The court awarded an attorney fee of $7,689.29, which is 25 percent of the $30,757.17 judgment entered in Stoler's favor. The court did not explicitly state that it was entering judgment based on Stoler's NWPCA claim, rather than on his breach of contract theory. However, in the attorney fee award portion of the order, the court stated, "[Stoler] is allowed an attorney's fee, pursuant to § 48-1231 . . . of $7,689.29." Section 48-1231 of the NWPCA addresses, among other things, an award of attorney fees in connection with an employee's claim for unpaid wages and states, in part:
If an employee establishes a claim and secures judgment on the claim, such employee shall be entitled to recover (1) the full amount of the judgment and all costs of such suit and (2) if such employee has employed an attorney in the case, an amount for attorney's fees assessed by the court, which fees shall not be less than twenty-five percent of the unpaid wages.
Otis has not filed a cross-appeal challenging the applicability of the WPCA. We make no findings concerning its applicability here and have only addressed Stoler's assertion that the court should have granted his request to allow him to prove specific facts in connection with his claim for attorney fees.
In his postjudgment motion, Stoler asked the court to alter or amend the judgment by correcting the judgment to provide that Stoler "may file a motion for attorney fees in the event [Stoler] can demonstrate that the fair and reasonable value of the services of [Stoler's] counsel exceed[ed] 25% of the amount of the . . . judgment." On appeal, Stoler argues that the court should have granted this request, but he does not otherwise argue how the attorney fees actually awarded were in error. There is nothing in the record to indicate that the district court abused its discretion in awarding a fee equal to the minimum 25 percent of the judgment. See Schinnerer v. Nebraska Diamond Sales Co., 278 Neb. 194, 769 N.W.2d 350 (2009) (applying abuse of discretion standard to appellate review of attorney fee award under § 48-1231); Roseland v. Strategic Staff Mgmt., 272 Neb. 434, 722 N.W.2d 499 (2006) (finding no abuse of discretion in failure to award fee greater than minimum 25 percent of judgment). Accordingly, we affirm the award of attorney fees in the district court.
Procuring Cause Doctrine.
Stoler asserts that the district court erred in failing to award damages under the procuring cause rule. Specifically, he argues that he is entitled to receive commissions on sales made after October 27, 2003, under this rule, which provides that if a contract contemplates that an agent shall receive compensation for sales of which the agent was the procuring cause, the agent is entitled to a commission on sales procured by him although the sales were actually consummated by the principal after the termination of the agency. Oehlrich v. Gateway Realty of Columbus, Inc., 209 Neb. 417, 308 N.W.2d 327 (1981).
Oehlrich is distinguishable from this case. In that case, the contract entitled a real estate salesperson to a commission on sales of properties on which he had previously obtained a listing. The salesperson died after he obtained a listing on certain property but before the property was sold. The contract in that case stated, "`This contract and the association created hereby, may be terminated by either party hereto at any time upon notice given to the other; but the rights of the parties to any commission which accrued prior to such notice shall not be divested by such termination.'" 209 Neb. at 420-21, 308 N.W.2d at 330. The Nebraska Supreme Court concluded that this provision also allowed the salesperson to collect commissions accrued before his death. Id.
In this case, Stoler argues that his "efforts in introducing numerous accounts to Otis was an efficient procuring cause of all sales made to those clients, whether they occurred before October 27, 2003 or after" and that this court "should not allow Otis to be unjustly enriched by continuing to sell its products to those customers without paying a commission on those sales." Brief for appellant at 32. Stoler seems to be arguing that he has a right to receive commissions indefinitely into the future. Although the June 3, 1998, letter stated that Stoler would receive a 5-percent commission "for being instrumental in opening up a new account," the record does not show any provision of the parties' agreement concerning Stoler's right to receive commissions following the termination of the agreement. Stoler's assignment of error is without merit.
Amount of Damages.
Stoler asserts that the district court erred in failing to award the correct amount of damages. Stoler's primary argument concerning damages relates to his assertion that he was entitled to commissions on Otis' sales to a company called New Energy, which began its business relationship with Otis in the summer of 2001. The evidence concerning Stoler's involvement in procuring the New Energy account and the agreement between Stoler and Otis regarding commissions on sales to New Energy was greatly disputed. The district court apparently accepted the evidence presented by Otis, which indicated that Stoler was not involved in the relationship that developed between Otis and New Energy in 2001. Considering the evidence in the light most favorable to Otis, we cannot say that the district court erred in this regard.
Both parties presented numerous exhibits and spreadsheets to calculate the commissions owed and paid to Stoler. The district court found that Stoler was entitled to commissions which remained unpaid on sales made between March 1, 2002, and October 27, 2003, in the amount of $42,129.94, less the amount of setoff to Otis, but it did not specify on which accounts the award of damages was based. We have reviewed not only the evidence relative to the New Energy account, but also the plethora of evidence presented at trial concerning damages in general, and we conclude that the award of damages is supported by the evidence.
Effect of Otis' Admissions.
Stoler asserts that the district court erred in failing to give conclusive effect to Otis' admissions to Stoler's requests for admission. Specifically, Stoler argues that "[t]he trial court's failure to give conclusive effect to Otis's admissions that it was liable to [Stoler] for commissions accruing on numerous accounts with respect to sales occurring prior to March 1, 2002 clearly violated the mandate of Rule 36 that admissions are to be treated as conclusive." Brief for appellant at 33. While it is true that admissions that a party has not sought to withdraw or amend conclusively establish the matter admitted, see Omega Chemical Co. v. Rogers, 246 Neb. 935, 524 N.W.2d 330 (1994), Stoler does not explain how any of Otis' responses to his requests for admission alter the application of the SOL in this case. Our research has not revealed any mechanism by which this would be accomplished. Nor do we read Otis' responses as establishing liability as suggested by Stoler. Stoler's assignment of error is without merit.
Motion to Alter or Amend/New Trial.
Stoler asserts that the district court erred in failing to grant his motion to alter or amend judgment or for new trial, in the alternative. Given our resolution of Stoler's other assignments of error, we need not address this assignment of error further. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the controversy before it. Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).
CONCLUSION
The district court did not err in determining the applicable SOL or in its award of damages and attorney fees, and we affirm the judgment entered by the court.
AFFIRMED.