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Ellicott v. American Capital Energy Inc.

United States District Court, D. Massachusetts

April 3, 2017

STEPHEN ELLICOTT, Plaintiff,
v.
AMERICAN CAPITAL ENERGY, INC., THOMAS HUNTON, and ARTHUR HENNESSEY, Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR RELIEF UNDER FED. R. CIV. P. 59(E)

          F. Dennis Saylor IV United States District Judge.

         This is a dispute between a solar-energy company and a former sales employee over unpaid commissions. Plaintiff Stephen Ellicott brought suit against American Capital Energy, Inc. and its two principals, Thomas Hunton and Arthur Hennessey, alleging a violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, and breach of contract. On February 6, 2017, following a jury trial, the Court issued a judgment in favor of plaintiff on both counts. Defendants have moved to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). For the following reasons, defendants' motion will be denied.

         I. Background

         Defendant American Capital Energy, Inc. (“ACE”), sells large-scale solar-energy projects to commercial clients. Plaintiff Stephen Ellicott is a former sales employee at ACE. Defendants Thomas Hunton and Arthur Hennessey are principals of ACE. Hunton is ACE's president and Hennessey is ACE's treasurer.

         On April 2, 2014, Ellicott brought this action seeking compensation for unpaid commissions. The complaint alleged two counts under Massachusetts state law, claiming a violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, and breach of contract.

         The case was tried in January 2017 to a jury. Ellicott offered evidence that he had a written contract with ACE that provided for a commission of 40% of the profit margin on each “sale” he made, and stated that his commission “may be reasonably split with various sales support personnel by mutual agreement.” The parties stipulated that Ellicott was involved in the sale of nine solar installation projects while employed with ACE, eight of which made a profit. Among other things, the parties disputed whether Ellicott made a “sale” on each of those projects entitling him to a 40% commission, and how the commission should be calculated if any was due. All but one of the projects were sold more than three years prior to the filing of the lawsuit.

         At the close of evidence, defendants moved for a directed verdict on the Wage Act claim on the basis that the Act does not apply to commissions based on profit. (Docket No. 183).

         On January 24, 2017, the Court charged the jury. The jury was instructed that under the Wage Act, “[t]he third element that the plaintiff must prove . . . is that the employer failed to pay him the wages he earned in a timely manner.” The jury was further instructed under the heading of “damages” that “[i]f you find any of the defendants are liable under the Wage Act, you must determine the amount of wages that the plaintiff earned, but has not been paid.”

         The verdict form listed the three defendants separately for liability and damages. The form asked, as to each defendant, “If you found that [the relevant defendant] is liable under the Massachusetts Wage Act, what amount of damages do you award against that defendant as to that claim?” (Docket No. 189). Initially, the jury returned a verdict form that found all three defendants were liable under the Wage Act. However, the jury found ACE liable for $958, 830 and each of the individual defendants liable for $0.

         After conferring with the parties at sidebar, the Court instructed the jury that for the individual defendants to be held liable, there has to be a wage due and payable for some amount greater than zero. The Court directed the jury to reconsider its answers concerning liability and damages owed by the individual defendants to make the verdict form consistent.

         The jury returned a second verdict form that found ACE liable for $758, 830 and each of the individual defendants liable for $100, 000. Defendants immediately moved for a mistrial. That motion was denied.

         On February 2, 2017, defendants again moved for a mistrial and for judgment notwithstanding the verdict. In the motion for a mistrial, defendants argued that the Court erred in making rulings in limine concerning whether Ellicott was obligated to split commissions with sales support staff. In the motion for judgment notwithstanding the verdict, defendants again argued that the Wage Act does not apply to commissions. The Court denied both motions.

         On February 6, 2017, the Court issued a judgment in favor of plaintiff on both counts pursuant to the second verdict form. On the Wage Act claim, the judgment ordered that damages be awarded against ACE in the amount of $758, 830, trebled pursuant to Mass. Gen. Laws ch. 149, § 150, for a total sum of $2, 276, 490. It ordered damages against each of the individual defendants in the amount of $100, 000, trebled for a total sum of $300, 000, plus joint and several liability for the amount ...


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