1

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45143

KAREN L. SAVAGE,

 Plaintiff-Appellant,

v.

SCANDIT INC.,

 Defendant-Respondent.

)

)

)

)

)

)

)

)

)

Boise, April 2018 Term

2018 Opinion No. 46

Filed: May 1, 2018

Karel A. Lehrman, Clerk 

Appeal from the District Court of the Fourth Judicial District of the 

State of Idaho, Valley County. Hon. Jason D. Scott, District Judge.

The judgment of the district court is reversed. This case is remanded

for further proceedings consistent with this Opinion.

Givens Pursley, LLP, Boise, Attorney for appellant. Thomas Dvorak 

argued.

Hawley, Troxell, Ennis & Hawley, Boise, for respondent. 

Daylen John Ashby argued.

 _______________________________________________

SCHROEDER, Justice pro tem

I. NATURE OF THE CASE

Karen Savage appeals the dismissal of her Idaho Wage Claim Act (“IWCA”) action by 

the district court in Valley County. Savage brought this action against her employer Scandit Inc. 

(“Scandit”) in November 2016 after Scandit failed to pay her over $400,000 in commissions and 

bonuses she claims were due by the end of October. The district court granted Scandit’s motion 

to dismiss finding that Savage had failed to allege that she had earned the commissions as 

defined in the 2016 Commission Compensation Plan (“CCP”) between Savage and Scandit. The 

district court also denied Savage’s motion to amend, holding that the amendment would be futile. 

This case was decided upon Scandit’s motion to dismiss. Consequently the facts are those set 

forth in the complaint and attachments.

II. FACTUAL AND PROCEDURAL BACKGROUND
2

Savage was employed by Scandit as a senior sales executive. In early 2016 both parties 

signed the CCP. On September 27, 2016, Savage coordinated a Master Software License 

Agreement with Amazon Services, LLC (“Amazon Agreement”). Savage’s commission from the 

Amazon Agreement was $390,234. Savage alleges that the commission became due in late 

September or October of 2016. Scandit agrees that the commission was not paid during this time 

and agrees that at this stage Savage is entitled to the assumption that the prepayment was due. 

Both parties rely on section IV of the CCP, which in relevant part provides the following:

Commissions shall become earned (i.e. not subject to recoupment or “claw-back” 

by Employer) only upon (a) recognition of revenue by Scandit according to its 

then current revenue recognition policies, and (b) actual receipt of payment from 

the customer.

Therefore, should one or both of these conditions fail to occur, the paid but 

unearned commissions must be returned to Scandit by Employee per Section V 

below. Employee’s obligation to return any prepaid but unearned commission 

survives any termination of the Employee’s engagement with Scandit, and 

Employee agrees that such amounts may be deducted from Employee’s final 

paycheck including severance payments, if any.

100% of the respective commission will be paid as soon as reasonably practicable 

following the booking of the Order, and ideally no later than within 30 days of the 

end of the month during which the transaction has been booked. 

The Section continues on to discuss the criteria for a sale to be considered “booked.”

Savage did not receive the payment when she alleges it was due and brought this suit 

seeking treble damages under the IWCA as well as contractual damages. Additionally, the

contract provides for an annual quota bonus of $36,000 should her sales for the year surpass a 

certain quantity. The relevant section of the CCP states:

Employee will earn a bonus of USD 36,000 if the combined ACV [Annual 

Contract Value] of renewals and Orders equals CHF [Swiss Francs] 641,001 or 

more.

This threshold was crossed after Savage negotiated the Amazon Agreement. She alleges 

that the annual bonus became due as soon as the threshold was reached and seeks to recover 

treble damages for that sum as well. 

After responding to the complaint, Scandit moved for the suit to be dismissed pursuant to 

Idaho Rule of Civil Procedure 12(b)(6) for failure to state a claim. Savage moved for leave to 

amend her complaint, seeking to include a variety of equitable theories. The district court granted 

Scandit’s motion to dismiss and denied the motion to amend, holding that it would be futile. The 
3

district court held that because Amazon had not yet made payments on the agreement at the time 

Savage brought the suit that she had not earned the commission and was not entitled to relief 

under the IWCA. The district court also held that any attempt to amend the complaint would be 

futile on the basis that Savage could not allege that she had earned the commission prior to filing 

the suit. In dismissing the claim regarding the annual bonus, the district court held that the annual 

bonus was due at the end of the year and as such was not subject to the IWCA when the 

complaint was filed. Savage appealed both rulings.

III. ISSUES ON APPEAL

1. Whether the district court erred when it held that the commission fell outside of the IWCA as 

Savage had not yet earned the commission under the terms of her contract.

2. Whether the district court erred when it held that the annual bonus fell outside of the IWCA

as the bonus was not yet due at the time the complaint was filed.

3. Whether the district court abused its discretion when it denied Savage’s motion to amend her 

complaint finding that any such amendment would be futile.

4. Whether either party is entitled to attorney fees on appeal.

IV. STANDARD OF REVIEW

When this Court reviews an order dismissing an action pursuant to 

I.R.C.P. 12(b)(6), we apply the same standard of review we apply to a motion for 

summary judgment. A 12(b)(6) motion looks only at the pleadings to determine 

whether a claim for relief has been stated. On review of a dismissal this Court 

determines whether the non-movant has alleged sufficient facts in support of his 

claim, which if true, would entitle him to relief. In doing so, the Court draws all 

reasonable inferences in favor of the non-moving party.

Hammer v. Ribi, 162 Idaho 570, ___, 401 P.3d 148, 151 (2017) (internal quotations and citations 

omitted). 

V. ANALYSIS

A. Savage alleged sufficient facts in her complaint to preclude dismissal of her IWCA 

claim for an unpaid commission from the Amazon Agreement.

The district court dismissed Savage’s IWCA claim seeking damages for an unpaid 

commission holding that under the terms of the contract Savage had not yet earned the 

commission and the IWCA did not apply to future wages. Wages are defined under the IWCA as 

“compensation for labor or services rendered by an employee, whether the amount is determined 

on a time, task, piece or commission basis.” I.C. § 45-601(7). Employers are required to pay all 

wages due to their employees at least once every month. I.C. § 45-608(1). Employees who are 

harmed by an employer’s failure to comply with the IWCA may file a complaint with the 
4

Department of Labor or bring a lawsuit seeking damages. I.C. §§ 45-608, 45-615. An employee

who prevails in a suit under the IWCA is entitled to attorney fees and treble damages of the 

wages found “due and owing.” I.C. § 45-615.

While employers are required to pay wages monthly, the employer and employee have a 

great deal of freedom to determine how that compensation will be paid. Bakker v. Thunder 

Spring-Wareham, LLC, 141 Idaho 185, 190, 108 P.3d 332, 337 (2005). The IWCA requires “an 

employer only to pay a minimum wage for all hours worked and to pay employees at least 

monthly.” Id. “Beyond that, the Wage Claim Act does not place any limitations on the ability of 

the employer and employee to contract for the terms of the employee’s compensation.” Id. In 

Bakker, a real estate agent sought to recover treble damages under the IWCA for commissions he 

argued he was owed under the law. Id. The Court recognized that a real estate agent generally is 

entitled to a commission when he or she finds a ready, willing, and able buyer to purchase 

property. However, the contract between Bakker and his employer required him to be employed 

at closing in order to receive the commission. Id. In finding for the employer, the Court stated 

“[a]s long as the employer is meeting the minimum wage requirements of state law, further 

compensation is subject to negotiations between the employer and employee.” Id. 

The district court held that the IWCA did not apply on the basis Savage’s claims were for 

prepayments of future wages that she had not yet earned according to her contract. Future wages 

are not subject to the mandatory trebling provision of the IWCA. Moore v. Omnicare, Inc., 141 

Idaho 809, 819, 118 P.3d 141, 151 (2005). In distinguishing between future wages and those 

subject to the IWCA, this Court often looks to whether the employee is entitled to the wages for 

services rendered or whether there is more they must do in order to be entitled to the wages. See 

id.; see also Nettleton v. Canyon Outdoor Media, LLC, 163 Idaho 70, 408 P.3d 68 (2017). In 

Nettleton, this Court vacated the grant of summary judgment in favor of an employee for unpaid 

commissions. See Nettleton, 163 Idaho at ___, 408 P.3d at 69. The employee alleged he was 

owed a commission for the rent of a billboard. Id. at ___, 408 P.3d at 69–70. The employer 

argued that the employee was not yet entitled to the commission as he was required to service the 

client account on an ongoing basis throughout the contract before he was entitled to the 

commission. Id. at ___, 408 P.3d at 72. In vacating the grant of summary judgment and 

remanding the case, this Court noted that there was a question of material fact as to whether the 

employee was entitled to the commission at the time he brought the suit. Id. If the employee was 
5

entitled to the commission at the time he brought the suit it would fall under the IWCA, if there 

was more that he was required to do then it would not. Id. In this case, so far as the record is 

concerned, Savage had no further duties to perform with regard to the agreement with Amazon. 

She had done what she was hired to do.

Savage alleges in her complaint that under the terms of the CCP she was entitled to 

payment of the commission at the time she filed her suit. The CCP is incorporated into the 

complaint and may be considered. Idaho Wool Growers Ass’n, Inc. v. State, 154 Idaho 716, 723, 

302 P.3d 341, 348 (2012).

Section IV of the CCP addresses the payment of commissions:

Commissions shall become earned (i.e. not subject to recoupment or “claw-back” 

by Employer) only upon (a) recognition of revenue by Scandit according to its 

then current revenue recognition policies, and (b) actual receipt of payment from 

the customer.

Therefore, should one or both of these conditions fail to occur, the paid but 

unearned commission must be returned to Scandit by Employee per Section V 

below. Employee’s obligation to return any prepaid but unearned commission 

survives any termination of the Employee’s engagements with Scandit, and 

Employee agrees that such amounts may be deducted from Employee’s final 

paycheck including severance payments, if any.

100% of the respective commission will be paid as soon as reasonably 

practicable following the booking of the Order, and ideally no later than 

within 30 days of the end of the month during which the transaction has been 

booked.

(Emphasis added).

Scandit concedes that for purposes of the motion to dismiss Savage is entitled to the 

presumption that the deal was booked prior to the filing of the complaint. According to the CCP 

“100% of the respective commission will be paid as soon as reasonably practicable following 

booking of the Order...” This provision must be read in light of the language in Bakker, 141 

Idaho at 190, 108 P.3d at 337, which recognizes that a contract may differentiate between wages 

earned and wages due: “This statement does not dictate a clear public policy that employers and 

employees cannot contract for terms of compensation when wages are earned and/or due as long 

as relevant law is respected.” The CCP defines when Savage’s commission was due, that is 

within 30 days of when the contract is booked. The prior provisions as to when commissions are 

earned relates to the rights of Scandit to recoup or “claw back” commission payments that have 

been made but payment on the agreement has not been made. There would be little or no reason 
6

for such provisions if the commission were only due when payments on the Amazon Agreement

were made.

When all of the inferences are drawn in Savage’s favor, the payment of the commission 

was due and owing before she filed her complaint, and Savage was entitled to the payment of the 

commission. While Scandit may be able to show later that the deal was not formally booked or 

that there were contingencies that prevented the booking, for purposes of a motion to dismiss 

pursuant to Idaho Rule of Civil Procedure 12(b)(6) Savage has stated a claim under the Idaho 

Wage Claim Act.

B. Savage’s complaint states an IWCA claim as it relates to the Annual Quota Bonus.

The district court granted Scandit’s motion to dismiss Savage’s IWCA claim, finding 

that the bonus was not yet due. Bonuses fall under the definition of wages and are subject to the 

mandatory trebling statute if they are not paid when they are due. See Paolini v. Albertson’s Inc., 

143 Idaho 547, 149 P.3d 822 (2006) (holding that the IWCA applied to the payment of a bonus). 

The CCP provides for an Annual Quota Achievement Bonus in subsection E of section

VI. That subsection states:

Employee will earn a bonus of USD 36,000 if the combined ACV [annual 

contract value] of renewals and Orders equals CHF 641,001 [Swiss Franc] or 

more. 

(Emphasis in original).

Both sides agree that the Amazon Agreement pushed Savage past the CHF 641,001 mark. 

Savage alleged in her complaint that her bonus became due as soon as she passed that mark. 

While the CCP was written for the entire year, the section discussing the Annual Quota 

Achievement Bonus is ambiguous. There is nothing in the bonus section that states specifically

when the bonus will be paid. Savage alleged that the bonus was due as soon as she surpassed the 

quota requirement. Scandit says that as an annual bonus it was not yet due when the complaint 

was filed. Savage is entitled to have all the inferences drawn in her favor at this stage of the 

proceeding. The CCP is ambiguous on this point. Savage has stated a claim.

C. Savage’s motion to amend the complaint was not futile.

Prior to the district court dismissing her case, Savage filed a motion to amend her 

complaint to assert various equitable claims. The district court held that because the amendments 

could not show that Savage had earned the commission at the time the complaint was filed the 

amendments would be futile and denied her motion. 
7

A party’s ability to amend a complaint once an answer has been filed is governed by 

Idaho Rule of Civil Procedure 15(a)(2). That rule states that once an answer has been filed “a 

party may amend its pleading only with the opposing party’s written consent or the court’s 

leave.” I.R.C.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. “A 

court may consider whether the allegations sought to be added to the complaint state a valid 

claim in determining whether to grant leave to amend the complaint.” Estate of Becker v. 

Callahan, 140 Idaho 522, 527, 96 P.3d 623, 628 (2004).

The district court denied Savage’s motion to amend after it found that the proposed 

amendment would not be able to allege that she had earned the commission under the terms of 

the contract because Amazon had not yet made a payment prior to the filing of the complaint. 

The amendments sought to add equitable claims that would prevent Scandit from claiming the 

contract was not booked until a later date. Because the amended complaint contained facts 

alleging the commission was due and owing at the time Savage sought leave to amend, the

amendment would not be futile.

D. Attorney fees on appeal

Both parties request an award of attorney fees on appeal. Because Scandit is not the 

prevailing party on appeal it is not entitled to an award of attorney fees. Savage seeks an award 

of attorney fees pursuant to Idaho Code section 45-615(2). While Savage is the prevailing party 

on appeal, it cannot yet be determined who will be the prevailing party in the action. See 

Nettleton, 163 Idaho at ___, 408 P.3d at 73. The Court will not award attorney fees at this time 

but will allow the district court on remand to consider fees incurred in this appeal when it makes 

a final determination as to the prevailing party.

VI. CONCLUSION

The decisions of the district court granting the motion to dismiss the complaint and 

denying the motion to amend are reversed and remanded for further proceedings consistent with 

this Opinion. Costs on appeal to Savage.

Chief Justice BURDICK, Justices HORTON, BRODY and BEVAN, CONCUR.