This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Don W. Becker,
One Call, LLC,
Filed April 18, 2006
Hennepin County District Court
File No. CT 04-17578
Eric Nilsson, Nilsson & Associates, P.A., 8000
Roger A. Zahn, Furber Timmer Zahn, PLLP, 100
Stephen L. Madsen, 190
Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Don W. Becker, a former employee of respondent One Call, LLC, argues that the district court erred in granting summary judgment in favor of respondent and dismissing appellant’s claims for breach of contract and unpaid commissions on the ground that no contract for commissions existed between appellant and respondent. Because we conclude that no genuine issue of material fact exists and the district court did not err in its application of the law, we affirm.
D E C I S I O N
“On an appeal from summary judgment, we ask two
questions: (1) whether there are any genuine issues of material fact and (2)
whether the [district court] erred in [its] application of the law.” State
by Cooper v. French, 460 N.W.2d 2, 4 (
The parties do not dispute that in April 2002 respondent hired appellant as an employee to sell and estimate job costs for respondent’s remodeling business. Appellant eventually began managing projects for respondent. In June 2003, respondent changed appellant’s employment status from that of an employee to that of an independent contractor. Appellant continued to be paid $3,000 every two weeks, plus benefits. Appellant alleges that he met with the president of the company in December 2003 to discuss shifting the focus of appellant’s energy to sales and to change his earnings to a pure commission-based plan. According to appellant, the president accepted the idea and instructed appellant to write it up. Appellant prepared a document entitled “Commission Agreement.” It is undisputed, however, that the document does not bear signature lines and was never formally executed. In March 2004, respondent terminated appellant and refused to pay his claim for commissions owed in the amount of $26,549.94. Prior to the completion of discovery, respondent moved for summary judgment. The district court granted respondent’s motion, finding that there was no express or implied acceptance of appellant’s proposed agreement.
Appellant argues that a genuine
issue of material fact exists regarding respondent’s acceptance of the proposed
agreement. When the relevant facts are
not in dispute, the question of whether a contract exists is a matter of law,
which this court reviews de novo. Triple B & G, Inc. v. City of
The district court concluded that no contract existed
between appellant and respondent because there was no acceptance, either
express or implied. It is undisputed
that there was no express acceptance of the proposed agreement. The district court stated: “[t]he lack of
express acceptance is found in the absence of Mock’s signature on the proposed
contract” and concluded that appellant’s argument that respondent gave implied
acceptance of the contract was not supported by the record. The district court reasoned that respondent
continued to pay and appellant continued to accept $3,000 every two weeks (the
amount he was paid as a salaried independent contractor); therefore, appellant
was aware that respondent had rejected the proposed contract. The proposed “Commission Agreement” drafted
by appellant does not provide that he would continue to receive $3,000 every
two weeks as a draw against his total commissions. Further, the president’s lack of
communication to appellant regarding the proposed agreement does not equate to acceptance. “Mere silence ordinarily does
not amount to an
acceptance; however, if the relationship between the parties is such that an
offeror is justified in expecting a reply or the offeree is under a duty to
respond, silence will be deemed an acceptance.” W. Insulation Servs, Inc. v. Cent. Nat’l.
Ins. Co. of
Appellant’s argument rests on mere averments. Because there is no genuine issue of material fact and no error was made in the application of the law, the district court did not err in granting summary judgment in favor of respondent.