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Click here for the full text of this decision FACTS:Michael Engleman worked as an independent contractor selling trees and other nursery items to retailers and landscapers. In 1995, Engleman spoke with Dennis Gandy, owner of Gandy Nursery. According to Engleman, he and Gandy discussed Engleman’s ability to secure Home Depot as a customer for Gandy. Engleman stated that in the course of these discussions, Gandy told him he would pay Engleman “five percent of all Home Depot business.” Gandy denied ever making such a statement. Following that conversation, Engleman and Gandy signed a document entitled Sales Representatives for Gandy Nursery. The document stated it was intended as “guidelines for those who will represent us as a sales force.” The guidelines contained both a definition of the commissions to be paid to sales representatives as well as a schedule of when the commissions would be paid. Commissions were defined as “monies paid to a sales person for an account which he has sold and collected.” The guidelines further stated that once an invoice had been paid, the sales person would be “paid for the sale less the freight and any returns.” No specific amount of commission was set forth, however. According to the guidelines, commissions would be paid once a month and any accounts that were ninety days in arrears would not be considered for a commission. The guidelines also specified that Gandy would not be responsible for any expenses incurred by sales personnel. Engleman worked as a sales representative for Gandy until October 2000. During that time, Engleman’s commissions were paid on a different basis than was set out in the guidelines. Rather than paying Engleman commissions once a month, Gandy would estimate the amount of commission Engleman would earn over the course of the fiscal year and Engleman was allowed to draw against those estimated commissions to have an income on which to live and to service his accounts. On a regular basis, Gandy compared the amount of money Engleman drew to the amount of commission he had earned and the amounts were reconciled. In addition, at Engleman’s request, Gandy made monthly health insurance premium payments for Engleman, which were deducted from his commissions. In October 2000, Gandy informed Engleman that his services for the company were being terminated. Engleman told Gandy he felt he was entitled to a commission on the fall 2000 tree sales to Home Depot because he had already secured the orders. Gandy stated he agreed to pay Engleman a commission on the sales made to Home Depot through December 2000 to “buy the peace.” Gandy further stated that Engleman never informed him he was dissatisfied with the amount of the commission payment until he filed this suit. Engleman testified he contacted a lawyer shortly after being terminated to discuss suing Gandy for unpaid commissions. The lawyer informed him that he did not feel the case was worth pursuing on a contingency fee basis. After talking with the lawyer, Engleman doubted the viability of his case and decided not to pursue it. In April 2001, Engleman filed a voluntary petition for bankruptcy. In his petition, Engleman did not list his potential claims against Gandy as an asset. The bankruptcy proceeded routinely, and Engleman was discharged in July 2001. Approximately two years later, Engleman discovered that another salesman had sued Gandy for unpaid commissions. In deposition testimony in that case, Gandy testified that salesmen who did not originate spread orders were not entitled to a commission. Based on this testimony, Engleman thought he might have a claim for unpaid commissions for sales to Home Depot in 2001 because he believed he had obtained a spread order from Home Depot for the first eight months of that year. In addition, Engleman decided to pursue a claim for commissions for all sales made to Home Depot after he was fired based on his contention that Gandy promised him a percentage of all Home Depot business. Engleman filed this suit on September 23, 2003, alleging he was owed commissions dating from before he was fired until Gandy sold its business to another company in 2003. Engleman based his claims for unpaid commissions solely on breach of contract. During the course of discovery in the case, it was revealed that Engleman had voluntarily filed for and been discharged from bankruptcy in 2001. It was also revealed that Engleman failed to include his potential claims for unpaid commissions on his list of assets in the bankruptcy proceeding. After this was brought to Engleman’s attention, he contacted Jason Searcy, the trustee in his bankruptcy action. Searcy successfully petitioned the bankruptcy court to reopen Engleman’s bankruptcy case and Searcy amended the filings to include the claims against Gandy as an asset. The trial court then allowed Searcy to substitute himself as plaintiff in this case. Engleman contended he did not include the claims on his list of assets when he originally filed for bankruptcy because, at the time, he did not think his claims were viable. Gandy moved for both a traditional and no-evidence summary judgment. In its motion for a no-evidence summary judgment, Gandy contended, among other things, that there was no- evidence of a valid and enforceable contract for commissions. Gandy’s motion for a traditional summary judgment was based on its affirmative defenses of judicial estoppel, waiver, laches, and payment. Searcy moved for a partial summary judgment asserting Gandy had no evidence of its affirmative defenses of collateral estoppel, accord and satisfaction, estoppel and laches. The trial court denied Searcy’s motion for partial summary judgment and granted Gandy’s motion for summary judgment. In its order, the court did not specify the ground or grounds upon which it relied. Searcy brings this appeal challenging all of the grounds for summary judgment asserted in Gandy’s motion. HOLDING:Affirmed. Searcy presented no evidence that Engleman and Gandy had a meeting of the minds on the essential terms of the alleged commission contract. It is unclear, based on Searcy’s contentions, what constitutes the essential terms of Engleman’s alleged contract with Gandy. Also, the court states, there does not appear to be any agreement on what was necessary for a sales representative to earn a commission. Searcy presented no evidence to suggest that there was a meeting of the minds about whether Engleman would continue to receive commissions on sales to Home Depot even if he was no longer employed by Gandy. The court concludes Searcy failed to provide any evidence sufficient to raise a fact issue on the existence of a valid and e nforceable commission contract. OPINION: Joseph B. Morris, J.; Morris, Bridges and Richter, J.J.

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