Opinion
No. 15–P–1378.
10-05-2016
Matt PERRY v. HAMPDEN ENGINEERING CORPORATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Hampden Engineering Corporation (Hampden), appeals from a judgment entered in favor of former employee Matt Perry following a jury-waived trial in the Superior Court. We affirm.
Background. We summarize the facts as found by the judge. In 2008, Hampden principal Michael Flynn hired Perry as a regional sales manager. Perry's salary was $45,000, plus one percent commission on all sales in his region. In 2010, the commission structure changed. The new structure paid one percent commission on the first $2 million in sales, two percent on sales more than $2 million, and three percent on sales more than $3 million. Under the new structure, Perry's 2010 commission totaled $40,222.51. In January of 2011, Flynn attempted retroactively to change the 2010 commission structure by removing the commission on the first $2 million in sales. When the regional sales managers objected, Flynn reinstated the 2010 commission structure and Perry was paid $40,222.51.
On February 15, 2011, Flynn presented Perry with a document stating that the commission structure for 2011 would not include one percent commission on sales between zero dollars and $1 million. Perry refused to sign the document, and on March 17, 2011, his employment was terminated. Hampden paid Perry his accrued wages and vacation time; however, it refused to pay Perry $8,462, which Perry claimed as commissions earned through the date of termination.
Perry brought suit under the Massachusetts Wage Act, G.L. c. 149, § 148 (Wage Act), for nonpayment of wages. By agreement, the claims against Flynn were dismissed. Following a jury-waived trial at which Perry and Flynn were the only witnesses, the judge concluded that Perry was an employee for the purposes of the Wage Act and that Hampden was required to pay Perry the commissions he had earned up to the date of his termination. Judgment entered in favor of Perry in the amount of $25,386 plus interest, attorney's fees, and costs. Hampden appeals.
Treble Perry's claimed damages of $8,462. See G.L. c. 149, § 150.
Discussion. We do not review the judge's findings of fact because Hampden does not challenge them. Instead, we review the judge's ultimate findings and conclusions to ensure that they are consistent with relevant legal standards. Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).
In any event, upon our review of the record, they are amply supported by the evidence. Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).
There is no dispute that Perry was Hampden's employee and that the Wage Act “applies to the payment of commissions,” Commonwealth v. Northern Telecom, Inc., 25 Mass.App.Ct. 255, 256 (1988), “when the amount of such commissions ... has been definitely determined and has become due and payable to such employee,” G.L. c. 149, § 148, as appearing in St.1956, c. 259. Hampden argues that the amount of commissions due Perry was not definitely determined at the time of termination because Flynn had changed the commission structure for 2011, and that any commissions were not due and payable based on Hampden's policy that an employee must be employed at the end of the calendar year in order to receive commissions earned the prior year. As did the trial judge, we reject these contentions.
Perry's commissions were definitely determined because the parties stipulated that he had earned $8,462 through the date of his termination. The judge properly concluded that that amount was due and payable, where any ambiguity in Hampden's 2011 commission structure must be interpreted against Hampden. See Electronic Data Sys. Corp. v. Attorney Gen., 440 Mass. 1020, 1021 (2003). The Wage Act required Hampden to pay commissions to Perry “in full on the day of his discharge” and “in no event ... more than six days from the termination of the pay period in which such wages were earned by the employee,” G.L. c. 149, § 148, as appearing in St.1960, c. 416. Hampden did not do so, and the judge correctly rejected Hampden's attempts to rely on its policy that employees must be employed in order to receive commissions earned the prior year. See Electronic Data Sys. Corp. v. Attorney Gen., supra (“[N]o person shall by a special contract with an employee or by any other means exempt himself from this section” [citation omitted] ). The judge's conclusion that Hampden violated the Wage Act is “based on reasonable inferences from the evidence and [is] consistent with the findings.” Demoulas v. Demoulas Super Mkts., Inc., supra. There was no error.
Because he prevailed on his Wage Act claim, Perry “is statutorily entitled to recover reasonable appellate attorney's fees and costs.” Fernandes v. Attleboro Hous. Authy., 470 Mass. 117, 132 (2014). See G.L. c. 149, § 150. Perry is invited to file a verified and itemized application for appellate attorney's fees and costs within fourteen days of the date of the rescript, and Hampden will have fourteen days thereafter in which to file any opposition to the amounts requested. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004).