Opinion
No. 81-272.
December 29, 1983.
Before NEWMAN, Chief Judge; KERN, NEBEKER, MACK, FERREN, PRYOR, BELSON, TERRY and ROGERS, Associate Judges.
ORDER
On consideration of appellees' petition for rehearing and rehearing en banc, it is
ORDERED by the merits division that appellees' petition for rehearing is denied.
It appearing that the majority of the judges of this court has voted to deny the petition for rehearing en banc, it is
FURTHER ORDERED that appellees' petition for rehearing en banc is denied.
Associate Judges Ferren, Belson, and Terry would grant the petition for rehearing en banc.
Statement of Associate Judge NEBEKER:
I would grant the petition for rehearing. I am now convinced that the agreement between these parties regarding the continuation of commission payments after termination of employment constitutes an essential term of the employment contract. Since it is unsupported by a written memorandum, it is unenforceable under the Statute of Frauds.
I do not, however, perceive this as a case requiring en banc consideration under the criteria of D.C.App.R. 40(c). Each case presenting this "essential terms" issue must necessarily turn upon its own peculiar facts, as this one on its facts surely does.