OLIVER C. BIEWALD
SEVEN TEN STORAGE SOFTWARE, INC., & others.
Heard: December 4, 2017.
action commenced in the Superior Court Department on
October 18, 2012.
motion for summary judgment was heard by Robert N.
Tochka, J.; the case was tried before Diane M.
Kottmyer, J.; a motion for judgment notwithstanding the
verdict was heard by Kottmyer, J.; and a motion for
costs was considered by Kottmyer, J.
A. Catignani for the plaintiff.
Bradley L. Croft (Michael J. Duffy also present) for the
Present: Green, Maldonado, & Kinder, JJ.
C. Biewald commenced this action against his former employer,
Seven Ten Storage Software, Inc., now known as Brojaban,
Inc., and Seven Ten Software, LLC (collectively, Seven Ten),
and several of its executives asserting a variety of claims
related to the nonpayment of sales commissions. A Superior
Court judge dismissed most of those claims on the
defendants' motion for summary judgment. A second judge
then presided over a trial of the remaining claims, at the
conclusion of which the jury found largely in favor of
Biewald and awarded him damages for violations of the Wage
Act, G. L. c. 149, § 148, and breach of his employment
agreement. In response to the defendants' motion for
judgment notwithstanding the verdict, however, the trial
judge, who had reserved ruling on the defendants' motions
for a directed verdict during the trial, vacated the verdict
and ordered judgment for the defendants. The judge concluded
that Biewald's claims were barred by the unambiguous
provisions of his employment agreement. She further concluded
that, even assuming the employment agreement was ambiguous,
the verdict could not be sustained on any reasonable view of
the evidence. On appeal from the final judgment, Biewald
challenges that ruling and the dismissal of certain claims on
summary judgment.He also appeals from a post judgment
order awarding costs to the defendants. We affirm.
22, 2007, Seven Ten, a "startup" company that
developed and marketed data storage software, entered into a
written agreement (employment agreement) with Biewald to
employ him as vice president of strategic sales. Under the
terms of the employment agreement, Biewald was entitled to an
annual salary of $60, 000 and to commissions as follows:
"3.4 Commissions. The Employee shall receive
payment for any sale, purchase, transfer, or contract for the
services, licenses, and/or products -- for internal use,
distribution or for resale -- of Employer products/services
('Sale') to the companies defined in and agreed upon
in the attached Exhibit A (Exclusive List) at such time as
any consideration for such sale is provided to Employer,
whether in the form of purchase orders, promissory notes,
letters of intent, monies, cash, stock, options for stock, or
any other consideration in any form whatsoever
('Consideration'); the commission shall be 50% (fifty
percent) of said sale. . . .
"3.4.1 Guaranteed contracts. For all
OEM/Partner/Reseller/Distributor contracts signed with a
committed and guaranteed revenue stream to Employer, Employee
shall receive, in addition to the commissions stated in
Section 3.4, Five Percent (5%) of the guaranteed revenue
payable upon execution of such agreement. Commissions on
contract hereunder will be paid upon receipt of payment by
employment agreement had no defined term and instead provided
that Biewald was an at-will employee, who could be terminated
at any time, with or without cause. Upon such termination,
the employment agreement further provided, in section 2, that
only certain sections of the employment agreement would
survive. Sections 3.4 and 3.4.1 were not included among those
two years later, on September 2, 2009, Seven Ten, through
Biewald's efforts, entered into a distributor agreement
(EMC contract) with EMC Corporation (EMC) that fell within
section 3.4 of Biewald's employment agreement. However,
because the EMC contract did not provide Seven Ten with a
committed or guaranteed revenue stream, it did not qualify as
a "guaranteed contract" under section 3.4.1 of the
employment agreement. In fact, while EMC had the right
under the EMC contract to make purchases from Seven Ten, it
was not obligated to do so. The only way that Seven Ten could
realize revenue under the EMC contract was if EMC
subsequently chose to submit a purchase order. Theoretically,
the EMC contract could expire without EMC ever having
submitted an order. Seven Ten, meanwhile, was obligated to
pay EMC $51, 000 over the term of the EMC contract for
admittance to EMC's so-called "Select" program.
time, Seven Ten was, like many companies, struggling in the
wake of the worldwide financial crisis and facing an
uncertain future unless it could secure a fresh infusion of
capital. In the summer of 2009, a new investor -- an
"angel" investor -- had surfaced. The new investor
conditioned its investment on Seven Ten's implementation
of various changes, including the reform of existing
employment contracts. On October 9, 2009, therefore, ...