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Click here for the full text of this decision FACTS:Myrex Industries, a steel fabricator, hired David Ortolon to work as a project estimator for salary plus commission under its incentive bonus plan. Under this plan, an estimator is paid a commission of 5 percent of the net profit on the projects he sells. However, an estimator is not paid the commission until a project closes. A project closes when Myrex collects final payment from the customer and makes adjustments for job costs. Further, if an estimator’s projects that close within a quarter maintain a certain profit margin, he is paid an additional 5 percent. When Ortolon resigned in 2001, he had been paid for the projects he sold that had been closed, but there were projects he’d sold that had not closed. Ortolon asked for payment on these projects, but Myrex refused, saying it did not pay out on projects closed after an estimator’s departure from the company. Ortolon sued for breach of contract or, alternatively, quantum meruit. The jury ruled for Myrex on the breach of contract claim, but it found in favor of Ortolon on the quantum meruit claim and awarded him $64,631.93. HOLDING:Reversed and rendered. The court agrees with Myrex that Ortolon did not establish all of the elements necessary to recover under quantum meruit theory, which requires a plaintiff to prove 1. valuable services were rendered or materials furnished; 2. for the person sought to be charged; 3. which services and materials were accepted by the person sought to be charged; and 4. under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. Ortolon did not prove the third element, the court holds. Though Ortolon made demands at the time of his departure that he expected to be paid, the court finds that demands did not satisfy the “notice” element of quantum meruit, as that element focuses on what the recipient of the services knew or should have known at the time the services were accepted. The court finds a complete lack of evidence that Myrex knew or should have known at the time Ortolon sold the disputed projects that he expected to be paid commission even if the projects closed after his employment ended. Instead, under the incentive bonus plan, just the opposite is what Myrex knew or should have known. The policy, which was standard in the industry, was implemented precisely so estimators would see their projects through to the end. The circumstances surrounding a co-employee who was paid after he resigned were different, the court adds, because that employee returned to work eight days later, and the commission he was paid was part of a negotiated deal to bring him back to work. OPINION:Seymore, J.

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