Ryan Colter v. Amkin Technologies, LLC ( 2015 )

Opinion issued June 25, 2015.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00175-CV
———————————
RYAN COLTER, Appellant
V.
AMKIN TECHNOLOGIES, L.L.C., Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2011-35412
MEMORANDUM OPINION
The underlying action arises out of a breach-of-contract case brought by
appellant, Ryan Colter, against his former employer, Amkin Technologies, L.L.C.,
for unpaid sales commissions. After the jury found against Colter regarding the
existence of such an agreement and the trial court entered a take-nothing judgment
on his breach-of-contract claims, Colter appealed, contending that the jury’s “no”
answer regarding the existence of an agreement to is so against the great weight
and preponderance of the evidence as to be manifestly unjust. We affirm.
BACKGROUND
The dispute in this case is whether Amkin Technologies, L.L.C. agreed to
pay pay Ryan Colter a 3% commission on all his sales, whether the agreement
provided that Amkin could utilize its discretion in determining the amount of
Colter’s commission with 3% being the ceiling, or whether the parties reached any
agreement at all regarding Colter’s commissions
Amkin is in the business of selling portable drilling rigs. Amkin hired Colter
in May 2008 as its sales director. Colter interviewed for the job with David Camp
(“Camp”), Amkin’s president and one of its owners. After the interview, Camp
sent Colter a letter offering him the job in exchange for a salary of $4,000 per
month, plus a commission structure. Camp’s offer letter stated the commission
structure would be provided later in detail. Colter testified that right after he was
hired, “[Camp] and I had a conversation that my commission was going to be
based off the letter. The $4,000 a month plus a 3% commission on sales I was
involved with.” In contrast, when asked whether he had any verbal agreement to
pay Colter a 3% commission no matter what work he did or how he was involved
with a project, Camp replied, “No. No. I never would have agreed to that. I mean
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based on prior history and things that I’d done with other sales groups, that is not
something I could agree to.” No written agreement formalizing the commission
structure was ever executed.
Colter accepted Amkin’s offer and soon started work without a written
commission structure in place. Colter testified that he started work without
knowing the terms, conditions, or amount of the commissions he would be paid.
Colter’s tenure at Amkin was divided into two periods: (1) he was the sales
director between May 2008 and February 5, 2010 and (2) he was the company’s
project manager and in charge of inside sales from February 5, 2010 until he was
fired on January 27, 2011.
The Sales Director Period
The first commission Colter received was for the Potter transaction, and it
involved the sale of a drilling rig. On the rig sale to Potter, Amkin did not keep the
full $661,000 it received from the sale because it shared some of it with the rig’s
original purchaser, but it nonetheless paid Colter 3% of the entire sale proceeds.
Subsequent to the rig sale to Potter, Amkin also paid Colter a 3% commission on
his sales of various spare parts to Potter. Later, during his tenure as the sales
director, Colter sold a drilling rig to another customer known as Sandia, and
Amkin paid him a 3% commission on that sale too.
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However, another rig sold by Amkin during Colter’s tenure as sales director
was the SST rig. The parties dispute whether Colter was involved in the sale of the
SST rig. Camp testified Colter was involved in the sale of the SST rig, while Colter
testified he did not have anything to do with the SST rig sale and was only
involved with SST after the rig sale. Both parties, however, agree that Colter never
sought any commission from the sale of the SST rig, nor complained about the lack
of payment of any commission from the sale of the rig to SST; and both parties
agree that Colter was involved in the sale of spare parts to SST, and that Amkin
paid him a 3% commission on the sale of those spare parts.
Camp also testified about a transaction with Drill Steam for which Colter did
not receive any commission. Colter testified that Amkin did not sell anything to
Drill Steam, but merely rented some space from Amkin to work on its own
projects, so he never sought a commission related to Drill Steam.
The Project Manager/Inside Sales Period
In February 2010, Amkin asked Colter to change jobs from sales director to
project manager and inside sales. Amkin felt that Colter would be more effective
working on inside leads that came in to the business rather than creating new
business through outside sales. The job change involved a change in Colter’s
compensation structure—including the potential for bonus compensation and a
1.5% commission on sales, the payment of which was documented as being subject
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to management discretion in several respects (referred to as the “February 2010
Contract”).
Colter testified that he and Camp discussed the commission structure that
would be applied to potential sales in Colter’s “pipeline,” which the parties
describe as potential sales that had been initiated by Colter when he was the Sales
Director, but might not come to fruition until after he changed jobs. Colter testified
that he and Camp agreed that Amkin would pay Colter 3% commission on any
“pipeline” sales. Camp remembered no such discussion. Instead, when asked
about any agreement reached when Colter changed jobs, Camp testified, “I don’t
have a signed agreement between the two of us that dictates the specific term other
than the fact that as we operated for the course of that year and a half there were
times when [Colter] got a maximum percentage and sometimes he didn’t get a
percentage.” Camp testified that his understanding of Colter’s pre-February 2010
commission agreement was that it was based on the company’s discretion up to a
maximum of 3%. He said that “[t]he way in which we worked the commission
[before the 2010 contract] was effectively the same prior to not having a contract.”
After Colter changed jobs, Amkin paid him a 3% commission on the sale of
the Eskom rig. Amkin then failed to pay Colter a 3% commission on the sale of a
rig to Linc, one of the four transactions at issue in this case. Instead, Amkin paid
Colter a .25% commission on Linc. Colter did not complain about the non-
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payment of the 3% commission on the Linc rig sale and continued working for
Amkin.
Thereafter, in October 2010, Amkin advised Colter it intended to pay him
less than 3% on four other transactions involving parts sold to existing customers.
This time, Colter did complain to Camp about Amkin’s failure to pay him 3% on
these other transactions. Amkin responded by paying Colter the 3% commission on
these four transactions.
Colter’s Termination
Amkin terminated Colter on January 27, 2011. Camp testified that he was
unsatisfied with Colter’s productivity. At that time, Amkin advised Colter he
would not receive a 3% commission on the WKK and Pol Tex rig sales or on the
sale of parts and services to Sandia under the final billing of that project. Instead,
Amkin would pay Colter 2.25% on the WKK rig sale, 2.25% on the Pol-Tex rig
sale, and 1.5% on the Sandia parts sale. These are the other three transactions that,
in addition to the sale of the Linc rig, for which Colter received a .25%
commission, that make up the basis of Colter’s lawsuit.
DISCUSSION
At trial the jury was asked the following:
Did Amkin Technologies LLC and Ryan Colter agree that
Amkin Technologies LLC would pay Ryan Colter a salary plus 3%
commission on sales initiated when Ryan Colter was sales director for
Amkin Technologies LLC from May 20, 2008, to February 5, 2010?
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In deciding whether the parties reached an agreement, you may
consider what they said and did in light of the surrounding
circumstances, including any earlier course of dealing. You may not
consider the parties’ unexpressed thoughts or intentions.
Answer “Yes” or “No”
Answer: NO
In his sole issue on appeal, Colter contends “the jury’s ‘no’ answer regarding
the existence of an agreement to pay a 3% commission is so against the great
weight and preponderance of the evidence as to be manifestly unjust[.]”
Standard of Review
When the party having the burden of proof attacks the factual sufficiency of
an adverse finding from the trial court, he must demonstrate on appeal that the
jury’s finding was against the great weight and preponderance of the evidence.
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We must consider and
weigh all of the evidence in order to conduct a proper factual sufficiency review.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We may set aside the
verdict only if the evidence is so weak or if the finding is so against the great
weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
Sufficiency of the Evidence Analysis
To prove his case at trial, Colter was required to show by a preponderance of
the evidence that the parties had an agreement that Amkin would pay Colter a
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commission of “3% on sales initiated when [he] was sales director for [Amkin] . . .
.”
It was undisputed at trial that there was no written or executed document
detailing the terms and conditions of a commission structure, either at the time he
was hired or for transactions that began while he was sales director but culminated
after his move to inside sales.
Colter’s case at trial rested on the testimony of two fact witnesses, himself
and Camp, along with circumstantial evidence of various business projects where
sometimes Colter received a 3% commission and other times he received no
commission or less than 3%.
At trial, Colter contended that he and Camp discussed a 3% commission, but
Camp testified at trial that he remembered no such discussion. The jury was
entitled to resolve this dispute in the evidence against Colter. See Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (“The jury is the sole
judge of the credibility of the witnesses and the weight to be given to [the
witness’s] testimony.”) Camp also testified that, while Amkin never “gave [Colter]
a single piece of paper prior to the time [it] asked him to change jobs” indicating
that the commissions were subject to its discretion, there was nonetheless evidence
that the parties agreed to such management discretion, as evidenced by their
history on other projects for which Colter was not paid a full 3% commission.
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Specifically, Camp pointed out that Amkin did not pay Colter a commission on the
SST rig during his tenure as sales director, even though he was involved in its sale.
While Colter disputed his involvement in the sale, again, the jury was entitled to
believe Camp and not Colter. See id. And, after Colter moved into his new
position, Amkin did not pay him a full commission on the Linc rig, but he was
instead paid only .25%, an amount to which Colter did not object. Colter testified
that the parties had agreed to a 3% sales commission shortly after he was hired, but
Camp testified that he would never have agreed to such a commission structure,
and that the 3% was a cap, with the company having the right to adjust the
percentage based on the profitability to the company and Colter’s level of
involvement.
The facts established by both disputed testimonial evidence and payment
history permitted the jury to conclude that Colter had failed to meet his burden of
proving by a preponderance of the evidence that there was an agreement that he
was to receive a 3% commission on all projects and sales. The jury could
reasonably have concluded that there was never a “meeting of the minds” as to the
commission structure in effect before the February 2010 contract or whether such a
structure, if any, applied to all sales initiated, but not concluded until after Colter’s
job switch. As such, the jury’s negative finding is not against the great weight and
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preponderance of the evidence. See Croucher, 660 S.W.2d at 58; see also Dow
Chem. Co., 46 S.W.3d at 242.
We overrule Colter’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
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