David Glickman v. Sears, Roebuck & Co.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF
No. 04-10826 APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 19, 2005
D. C. Docket No. 03-60085 CV-UUB THOMAS K. KAHN
CLERK
DAVID GLICKMAN,
Plaintiff-Counter Defendant-
Appellant
Cross-Appellee,
versus
SEARS, ROEBUCK AND CO.,
Defendant-Counter Claimant,
Appellee
Cross-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
( April 19, 2005 )
Before CARNES and COX, Circuit Judges, and STROM*, District Judge.
PER CURIAM:
David Glickman appeals the district court’s order granting summary judgment
to his former employer, Sears, Roebuck & Co. (“Sears”). Sears appeals the district
court’s order granting summary judgment for Glickman on Sears’s counterclaim. We
affirm.
I. BACKGROUND
Florida Builders Association (“FBA”) sells appliances to developers of high
rise condominiums and builders of single family homes in South Florida. Glickman
was employed by FBA as a salesman from about 1984 to April 2002. In February
1997, soon after Sears acquired FBA, Sears and Glickman entered into a written
agreement (the “Agreement”), under which FBA agreed to pay Glickman the sum of
$50,000 and, in exchange, Glickman agreed: (1) to remain employed by FBA for at
least one year following the acquisition by Sears; and (2) not to compete with FBA
or solicit its employees for a period of one year following his last day of active
employment with the company. (R.2-74 at 28, 33-40 and Ex. 1.)
The compensation for FBA salesmen, including Glickman, consisted of a base
*
Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting
by designation.
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salary and sales commissions. Sears contends that it was the long-standing practice
of FBA not to pay commissions for products delivered to customers after an
employee’s termination. In August of 2000, this practice was explicitly set forth in
FBA’s Sales and Marketing Bulletin No. 3 (the “Bulletin”), which provides:
In the event a Sales Associate leaves FBA for any reason, they will be
paid commissions and spiffs for all sales delivered up to and including
their last day worked.
(R.2-75 at at Ex. 3.) Glickman received a copy of the Bulletin and was present at the
sales meeting where the policy was discussed.
In February 2002, Glickman was placed on administrative leave of absence for
violating FBA’s ethics policies. Specifically, Glickman was alleged to have
borrowed money from FBA’s suppliers, customers, and vendors. After his
termination, Glickman joined another company, Appliance Florida, LLC. Sears
contends that Appliance Florida is a competitor of FBA and that Glickman solicited
FBA employees in violation of the Agreement.
Glickman filed suit against Sears, alleging that he is entitled to commissions
on appliances sold while he was an employee of FBA, but that were delivered after
his termination. Sears counterclaimed, alleging that Glickman had breached the
Agreement, and seeking return of the $50,000 stay bonus paid to Glickman and lost
profits. The district court granted Sears summary judgment on Glickman’s claim, and
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granted Glickman summary judgment on Sears’s counterclaim. This appeal followed.
II. DISCUSSION
Glickman argues that the district court erred in granting Sears summary
judgment because there was a genuine issue of material fact as to whether Sears had
a policy of requiring goods to be delivered before commissions were credited to a
salesman. Glickman contends that under Florida law he earned commissions at the
time of sale, rather than at the time of delivery. Glickman correctly identifies the
controlling Florida law. Under Comerford v. Sunshine Network, 710 So. 2d 197 (Fla.
Dist. Ct. App. 1998), “an employee is entitled to commissions collected post-
termination, provided those commissions were ‘earned’ during his employment.” Id.
at 198. Furthermore, “if a contract is silent not only on post-termination rights, but
on the right of accrual, the commissions are generally deemed ‘earned’ when a sale
is made, although the goods are delivered after his termination.” Id. But, there are
exceptions to the Comerford rule, including where there is a recognized business
custom providing otherwise. Id.Two Sears executives testified that the company had an established practice of
not crediting a salesman with commission until delivery. Larry Lewis, President of
FBA, testified that “[t]he sales are not completed until they are delivered. . . . The
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date of delivery is the driving force between our accounting department and the
payment of commissions.” (R.2-75 at 139.) Vice President John Wilkens also
testified that commissions were earned when FBA’s products were delivered, and that
this practice is, in fact, industrywide. Glickman offered no evidence contradicting the
testimony offered by Sears. It is thus clear from the record that there was no genuine
issue of material fact and that the district court properly entered summary judgment
on behalf of Sears.1
Sears’s counterclaim alleges that Glickman breached the Agreement by taking
a position with a competitor and by soliciting FBA employees. Sears does not seek
an injunction against Glickman, but return of a $50,000 stay bonus plus lost profits.
After reviewing the Agreement, we agree with the district court that Sears is
not entitled to return of the $50,000 stay bonus. Sears has failed to make any
connection between Glickman’s $50,000 bonus and any damages suffered by Sears
as a result of Glickman’s affiliation with a competing business. And, the noncompete
terms set forth in the Agreement are so broad (the entire state of Florida) that they are
1
Glickman’s argument that he was not a salesman is meritless. Glickman’s job at FBA was
to “generat[e] profits” through sales. (R.2-74 at 71.) Nor do we agree with Glickman that his
signature was needed on the Bulletin to make Sears’s commission policy applicable to him.
Evidence in the record establishes that Sears’s policy of not crediting a sale to a salesman until
delivery for purposes of commission was an established company policy prior to issuance of the
Bulletin. We also conclude that it was not an abuse of discretion to strike Glickman’s untimely reply
brief.
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void under the applicable Illinois law. See The Instrumentalist Co. v. Band Inc., 480
N.E.2d 1273, 1281 (Ill. App. Ct. 1985) (“[E]nforceability of a restrictive covenant in
an employment contract is dependent on whether, given the particular facts of the
case, the restraints imposed thereby are reasonably necessary for the protection of
plaintiff’s business from unfair or improper competition.”). The district court
therefore properly granted Glickman’s motion for summary judgment on Sears’s
counterclaim.
AFFIRMED.
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