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Miller v. Paul M. Wolff Co.

Court of Appeals of Washington, Division 3

January 16, 2014

Keith Miller, Respondent,
v.
Paul M. Wolff Company et al., Appellants

Page 1114

Appeal from Benton Superior Court. Docket No: 09-2-01054-1. Date filed: 01/15/2013. Judge signing: Honorable Vic L Vanderschoor.

Peter T. Petrich, Trevor D. Osborne, and Ingrid Linnea Daun McLeod (of Davies Pearson PC ), for appellants.

D.R. (Rob) Case (of Larson Berg & Perkins PLLC ), for respondent.

AUTHOR: Stephen M. Brown, J. WE CONCUR: Kevin M. Korsmo, C.J., Laurel H. Siddoway, J.

OPINION

Page 1115

[178 Wn.App. 960] Brown, J.

¶ 1 Paul M. Wolff Company (PMW) appeals the trial court's judgment granted to Keith Miller following Mr. Miller's trial de novo following mandatory arbitration. Mr. Miller worked for PMW as a commissioned sales representative. After he resigned and unsuccessfully offered to complete unfinished jobs, he sued PMW and its [178 Wn.App. 961] president, Curtis Beesley (collectively PMW), for unpaid commissions. An arbitrator sided with Mr. Miller and awarded him wage damages but denied attorney fees for unpaid wages. Unsatisfied, Mr. Miller pursued a trial de novo where he was awarded slightly less wage damages but received his requested attorney fees. PMW contends the court erred in finding Mr. Miller was entitled to commissions under the procuring cause doctrine, in concluding Mr. Miller improved his position at trial, and in awarding attorney fees under RCW 49.48.030. We find no error and affirm.

FACTS

¶ 2 The facts are drawn largely from the trial court's unchallenged findings of fact. PMW is a subcontractor, specializing in concrete finishing services. It employs field sales representatives who are responsible for facilitating and overseeing projects within their territories. If the project is awarded to PMW, the field sales representative is responsible for managing the company's performance under the contract through completion. Managing PMW's performance through completion of the project is considered the final step in the sales representative's performance. PMW has historically paid its sales representatives a 15 percent commission on projects that meet a 35 percent gross profit threshold. Field sales representatives are paid commissions after PMW completes its work and receives payment.

¶ 3 PMW employed Mr. Miller as a field sales representative for several years until January 9, 2009. Then, Mr. Miller resigned to operate his own concrete company, Final

Page 1116

Concrete LLC. PMW claims the purpose of Final Concrete was to compete with PMW; however, PMW's unlawful competition claims were dismissed in summary judgment and the one issue appealed was rejected by Division Two of this court in an unpublished opinion. See Miller v. Paul M. Wolff Co., noted at 165 Wn.App. 1020, 2011 WL 6916485, at *1.

[178 Wn.App. 962] ¶ 4 When he resigned, Mr. Miller unsuccessfully offered to complete his unfinished projects for PMW. The parties' employment contract does not address whether and to what extent posttermination commissions would be paid. On January 12, 2009, Mr. Miller sought commissions on at least 14 at-issue projects listed in the court's findings of fact. PMW assigned other employees to finish these projects, which took several months to complete after Mr. Miller's resignation. The 35 percent gross profit threshold was met in 10 of the unfinished projects. PMW paid $25,862.87 to another field sales representative in commissions on eight of these projects. Mr. Miller had unsuccessfully requested $27,036.21 for these projects when he sued PMW, partly requesting equitable relief under the procuring cause doctrine. The parties proceeded to mandatory arbitration.

¶ 5 The arbitrator concluded Mr. Miller was entitled to recovery under the procuring cause doctrine and awarded him $22,802.84 but denied his request for attorney fees and costs under RCW 49.48.030. The arbitrator concluded the award flowed from an equitable remedy and was not ...


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