Appeals court remands BusComm’s judgment notwithstanding verdict in sales commission case

By Dawn Geske | Apr 28, 2017

ST. LOUIS — A Missouri appeals court has reversed the decision of a trial court in a case involving unpaid commission to a sales employee.

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ST. LOUIS — A Missouri appeals court has reversed the decision of a trial court in a case involving unpaid commission to a sales employee.

The Missouri Court of Appeals, Eastern District reversed and remanded the decision of the Circuit Court of St. Louis County to enter a judgment despite a jury's decision in the case.

Charles Len Mercer filed a suit against his former employer BusComm Inc., a St. Louis-based business communication company, after he was terminated. Mercer claims that during his employment at BusComm, he was discriminated and retaliated against when a supervisor allegedly made unwelcome sexual advances toward him. The advances affected his performance and created a hostile workplace for him, Mercer said in the complaint. He alleges the company violated the Missouri Human Rights Act.

In his complaint, Mercer also said that BusComm didn’t pay him for commission and bonuses owed to him while he was working for the company. He alleges that he was owed at least $14,000 for sales that occurred before Dec. 28, 2011, when he filed for bankruptcy.

In a jury trial, Mercer was awarded $1,750 in owed commissions before his termination, $8,506 for commissions earned after his termination and another $25,000 as annualized pro rata commission. 

Following the verdict, BusComm filed a motion for judgment notwithstanding verdict, arguing that Mercer failed to present evidence to support that he made the sales after Dec. 28, 2011, that would lead to a generated commission. Both parties in the case also filed motions to have their attorney fees and costs paid, $15,264 for BusComm and $105,553 for Mercer.

Although the trial court granted BusComm its judgment notwithstanding verdict, on appeal Judge Robert G. Dowd Jr. reversed and remanded the decision. 

Three orders were in question that Mercer claimed to have sold after his bankruptcy date, according to court documents. Mercer testified that he received contract signatures for the orders on Jan. 4, 2012, and Jan. 5, 2012. BusComm argued that the orders were made before this date and that the customer in question was only waiting on grant money to finalize its order.

The court took into account that the dates of the contracts could be used to determine actual sales order close dates. In addition, sales commission reports were entered into evidence that displayed sales for Mercer in January and February 2012. While testimony indicated that these were invoice dates, Dowd ruled that they could be considered sold dates as well. 

BusComm argued that the sales were simply an add-on to previous orders and not separate sales by Mercer. Dowd pointed to the verdict as indicating that sales didn’t have to subsist of anything new and could be add-ons. 

According to court documents, Dowd ruled that there was indeed sufficient evidence to support the jury verdict in favor or Mercer. 

"We find the Appellant made a submissible case, and the trial court, therefore, erred in granting BusComm’s motion for (judgment notwithstanding verdict)," Dowd wrote.

The appeals court denied both the plaintiff’s and defendant’s motion for attorney fees, citing BusComm’s denied cross-appeal and finding no abuse by BusComm to suggest that fees should be awarded to Mercer in the case.

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