Maille v. The Darcy Group, Ltd., No. S1416-03 CnC (Norton, J., June 13,

2005)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. S1416-03 CnC

MAILLE

v.

THE DARCY GROUP, LTD.

FINDINGS OF FACT

CONCLUSIONS OF LAW

NOTICE OF DECISION

Plaintiff Scott Maille was hired as the audit fun ction manager of defendant accounting firm, of which John F. Darc y was the chief executive officer. Maille was hired by a December 2, 2001 offer, which Darcy drafted. Maille seeks payment under the comp ensation clause of the contract that provided:Upon assuming your duties as Audit Manager, we woul d pay you a base salary of $60,000 per annum and you would be eligible for our firm’s bonus program. As we discussed, the bon us program is based upon the firm’s profitability and your indivi dual efforts. For the first year we would guarantee that your bonus w ould be not less than $5000.

Maille worked for the Darcy Group from January 1, 2002 to May, 15, 2003, when he was discharged for p oor performance. The parties agree he was an employee- at-will, and thus this is not an unlawful discharge claim. Maille was paid his salary, but claims he is due $9,933, under the new client incentive program ($4,933) and the guarantee d bonus ($5000).

Basically, the new client incentive bonus was a “rainmaker” award for bringing in new clients who p aid their fees based on a projected fee realization of 100%, according to the bid estimate for the “engagement,” or a set fee for certain work, such as a $400 minimum fee for indivi dual tax returns. According to the Darcy Employee Manual, w hich Maille relied upon but refused to sign, bonuses wer e not made on engagements with a realization of less than 70%, on a sliding scale of 1% for 70% to 74% to a maximum of 10% on

100% realization. Maille was informed there were n o profit or bonuses for any employee in 2002. At trial, Joh n F. Darcy testified to this. Thus, Maille was not eligible f or a bonus under the employment offer of Dec. 2, 2001. He the refore turned to the manual’s new client incentive provisi on for

relief.Maille seeks to define realization as an incentive based on standard

rates compared with the fees actually generated, bu t he produced no credible evidence that he generated any engagements , except one, that qualified under the program, and defendant agreed t hat he was due $213 on that project. But defendant proved that the remain der of the claims were far below the 70% realization floor, and the firm wrote off a $2,500 loss on the tax clients alone with only a 50% retention rate fo r 2003.

The court will award $213 plus interest from date of discharge and deny any other damages as not proven by the prepond erance of the

evidence on the incentive claim.

Turning to the $5000 first year bonus, Maille dema nded payment after the first year of employment but was “ignore d” by the Darcy Group. He viewed the guarantee as a separate unconditional promise in the last sentence of the compensation clause. Darcy argues that the $5000 guaranteed bonus was subject to the firm’s “profita bility and your individual efforts” language in the second sentence of the compensation package, but it is clear from the words and structu re of the compensation clause that the guarantee promise was not dependent on any contingent factors. Otherwise, why would the employer, who dr afted the offer, guarantee the first year of employment calling for the payment of the $5000 “bonus?” The answer is that this was a separate, i ndependent promise in the nature of a signing reward for coming on board to head the audit division. A reasonable interpretation of the compe nsation package from the expectations of both parties clearly favors Maille’ s interpretation.

Conclusions of Law Generally, the construction of a contract is a mat ter of law for the court. Bergeron v. Boyle , 2003 VT. 89. Here the court must interpret the offer according to its terms and the parties intent , with reference to thewords used in the document. Ferrill v. North Ameri can Hunting Retriever

Ass’n Inc., 173 Vt. 587, 590 (2002). There is no ambiguity in the plain language of the offer, and defendant’s reliance on Curtis v. Watson, 64 Vt. 549 (1892), is misplaced because that case involved a contract term which was triggered by a condition precedent. Id . The owner had to convey the property before Curtis could collect a fee. Id . The condition precedent in this case was: that Maille be employed one year. H e met this condition, and he is entitled to the guaranteed $ 5000, plus i nterest from the date of his discharge, May 15, 2003.

Judgment is entered for plaintiff Scott Maille aga inst the defendants in the sum of $5,213 with interest to run at 12% fr om May 15, 2003, to the date of payment, along with the costs incurred in t his suit. Plaintiff Maille will submit a judgment order consistent with this O rder.

Dated at Burlington, Vermont________________, 2005

.

________________________ Judge