-1-

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

JAY LOY, 

 Plaintiff, 

 Case Number 09-12728-BC 

v. Honorable Thomas L. Ludington 

 

B & P PROCESS EQUIPMENT & 

SYSTEMS, L.L.C., 

 

 Defendant. 

______________________________________ / 

ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION

 Following a bench trial of this dispute between a salesman and his former employer over 

an unpaid commission and bonus, the Court issued an opinion and order establishing the Court’s 

findings of fact and conclusions of law. ECF No. 35. The Court concluded that the salesman, 

Plaintiff Jay Loy, was entitled to judgment on both the commission and bonus, as well as 

additional damages pursuant to the Michigan Sales Representative Commission Act, Mich. 

Comp. Laws § 600.2961 (“Act”). See Loy v. B & P Process Equip, & Sys., L.L.C., No. 09-

12728-BC, 2011 WL 3359578 (E.D. Mich. August 04, 2011). The former employer, Defendant 

B&P Process Equipment & Systems, L.L.C., now moves for reconsideration. ECF No. 38. 

“Generally, and without restricting the court’s discretion, the court will not grant motions 

for rehearing or reconsideration that merely present the same issues ruled upon by the court, 

either expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3). Rather, a motion for 

reconsideration will be granted only if the moving party has identified a “palpable defect by 

which the court and the parties” were misled and demonstrates that “correcting the defect will 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 1 of 9 Pg ID 652
 -2-

result in a different disposition of the case.” E.D. Mich. L.R. 7.1(h). Because Defendant’s 

motion presents the same issues ruled upon by the Court, and because it does not demonstrate 

that the purported defect in the Court’s opinion would result in a different disposition of the case, 

Defendant’s motion for reconsideration will be denied. 

I. 

Defendant manufactures, installs, and services commercial mixing systems in a variety of 

industries. Defendant hired Plaintiff as a salesman and promoted him to an account manager on 

January 31, 2008. Also on January 31, 2008, Plaintiff and Defendant entered into a contract that 

provided for the payment of sales commissions to Plaintiff. The agreement provided that 

Plaintiff would receive a one percent bonus commission on all “Sales Revenue” arising from the 

sale of new equipment that exceeded $10 million per fiscal year. The applicable bonus 

commission language provided: 

Sales Revenue for the purposes of commission calculations is equal to invoiced 

revenue as reflected in the purchase contract, net of shipping charges and 

applicable taxes. 

. . . 

Bonus Commission: Once your cumulative Sales Revenue within the current 

fiscal year exceeds your assigned annual Sales Target, you are eligible for a 

Bonus Commission. The Bonus Commission is applied only to Sales Revenue 

dollars above you annual Sales Target and is earned in addition to the regular 

Acquisition Commission. 

The “invoiced revenue” referenced in the sales revenue calculation (i.e., “invoiced revenue as 

reflected in the purchase contract”) was not defined elsewhere in the contract. 

On April 1, 2008, Plaintiff and Defendant’s then-CEO, Ray Miller, traveled to India 

where they negotiated and signed a “letter of intent” with an Indian company called Vedanta for 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 2 of 9 Pg ID 653
 -3-

the sale of three continuous mixers designed to be used in the aluminum smelting process. The 

letter of intent provided that Defendant would deliver the three machines to a Vedanta plant in 

India, provide various services, and provide spare parts in exchange for $5,496,860. Plaintiff 

was credited for making the sale and negotiating the terms of the letter of intent. 

Defendant, as an internal tracking system for computing commissions, recorded new 

sales and projected commissions with spreadsheets. One of these spreadsheets, which was 

created, signed, and approved by Defendant’s accounting personnel, is reprinted below: 

Dated April 29, 2008, this spreadsheet recorded the sales revenue on the Vendanta transaction as 

$5,496,000. Plaintiff’s sales commission on the transaction, in turn, was recorded as $19,236. 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 3 of 9 Pg ID 654
 -4-

And, because Plaintiff had cumulative sales revenue in excess of $10 million at the time the sales 

revenue for the Vedanta transaction was recorded, his bonus commission on the transaction was 

recorded as $54,960. 

On September 4, 2008, Vedanta returned the contract, unsigned, to Defendant. 

Defendant’s managers immediately re-executed the contract and returned it to Vedanta, which 

eventually executed it in October 2008. 

While this was transpiring, on September 5, 2008, Plaintiff drafted a memorandum under 

the name of Robert Lytkowski, Defendant’s national sales manager, to Larry Slovin, Defendant’s 

CEO, which stated: “This memo is to inform that Jeremy Loy is owed by B&P Process 

Equipment a sum of $162,513 for commissions earned during his employment at B&P per the 

B&P Sales Plan which outlines the payment of commission.” Plaintiff, Lytkowski, and Clay 

Chargot, another manager, signed the memorandum. 

On September 12, 2008 Plaintiff voluntarily resigned from Defendant. In January 2009, 

Plaintiff began e-mailing Slovin, asking when the commissions would be paid. Slovin responded 

by assuring Plaintiff that he would be paid all commissions that were due. In a January 27, 2009, 

e-mail, for example, Slovin wrote that he had reviewed the compensation agreement with 

Lytowski and that Plaintiff would be paid the commissions he was owed. Slovin emphasized to 

Plaintiff: “The two of us are in total agreement as to the plan rules etc and what is payable under 

the plan rules.” Slovin followed up the same day, directly addressing the Vedanta project: 

Bob [Lytowski] will call you shortly to review the payments. I apologize but I 

inadvertently left out the issue with Vedanta. There is considerable questions as 

to the likelihood of this project progressing at each stage. Our current [letters of 

credit] are not collectable and we do not have [a letter of credit] for the 3rd 

machine. All payments to you will not include Vedanta until the Vedanta project 

is complete. Upon the completion of Vedanta, we will calculate your commission 

and bonus as per our agreement and pay for the complete project. 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 4 of 9 Pg ID 655
 -5-

Notwithstanding these representations, however, Defendant did not pay Plaintiff any commission 

or bonus associated with the Vedanta sale. This litigation followed. 

Eventually, the case proceeded to a bench trial before this Court. In its trial brief, 

Defendant wrote: “The only ‘Sales Revenue’ attributable to the Vedanta contract in 2008 was the 

down payment invoiced by B & P on September 29, 2008.” Def.’s Tr. Br. 3, ECF No. 30. 

Accordingly, Defendant argued, it was not obligated to pay the bonus commission because the 

bonus targets were based on “invoiced revenue” and the Vedanta transaction had not been fully 

“invoiced” at the time Plaintiff resigned. Plaintiff disagreed, emphasizing Defendant’s course of 

conduct before the litigation began. 

Ruling in Plaintiff’s favor, the Court concluded that the meaning of “invoiced revenue” 

was not clear on the face of the document. But the parties’ intentions, as reflected by their 

actions, suggested that Plaintiff’s interpretation was correct. Moreover, the Court concluded, 

even if Plaintiff was not entitled to a bonus commission based on the language of the 

compensation plan, by Defendant’s own conduct it may well have waived any right it had to 

refuse to pay the bonus commission. 

Defendant now asks that the Court reconsider its ruling, quoting at length from its trial 

brief and reiterating that “[t]he only ‘Sales Revenue’ attributable to the Vedanta contract in 2008 

was the down payment invoiced by B & P.” Def.’s Br. 2, ECF No. 38 (quoting Tr. Br. 3) 

(internal quotation marks omitted). Defendant then argues: 

At no point did this Court consider Defendant’s actual argument that revenue is 

invoiced when it is invoiced. The plain meaning of the word “invoice” whether 

being utilized as a noun or a verb is unambiguous. Vedanta was invoiced only 

once in 2008 and received no invoice other than the document admitted as 

Defendant’s Exhibit 63. Providing Mr. Loy with full credit for that invoice leaves 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 5 of 9 Pg ID 656
 -6-

him short of his 2008 sales target and requires a determination that he failed to 

establish entitlement to a bonus commission. 

 

Def.’s Br. 3. For the reasons that follow, Defendant’s argument is unpersuasive. Its motion to 

reconsider will be denied. 

II. 

“Generally,” as noted above, “the court will not grant motions for rehearing or 

reconsideration that merely present the same issues ruled upon by the court, either expressly or 

by reasonable implication.”). E.D. Mich. LR 7.1(h)(3). Here, the motion for reconsideration 

literally presents the same arguments –—it quotes its trial brief for much of its three-page brief in 

support of its motion for reconsideration. See Def.’s Br. 1–2 (prefacing a quotation of four full 

paragraphs of Defendant’s trial brief with “Defendant’s argument with regard to the bonus 

commission issue was succinctly set forth at pages 2-3 of its Trial Brief”). 

As the Court noted in its previous order, the meaning of “invoiced revenue” is not readily 

apparent on the face of the contract. See Loy v. B & P Process Equip, & Sys., L.L.C., No. 09-

12728-BC, 2011 WL 3359578, at *6–7 (E.D. Mich. August 04, 2011). “Invoiced revenue” was 

not a defined term elsewhere in the contract. And read in context of the commission calculation 

provision — “invoiced revenue as reflected in the purchase contract” — the meaning is not 

obvious. It might mean the periodic invoices (colloquially, the bills) sent to the purchaser. But it 

may also mean the revenue “reflected in the purchase contract itself,” i.e., the sale price. 

Defendant, in its motion for reconsideration does not expressly offer a definition of the 

“invoiced revenue.” Instead, Defendant reiterates its “argument that revenue is invoiced when it 

is invoiced.” Def.’s Br. 3. “Vedanta was invoiced only once in 2008,” Defendant concludes. Id. 

This interpretation, of course, does not explain why the contract referred to “invoiced revenue” 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 6 of 9 Pg ID 657
 -7-

not as “invoiced revenue as reflected in the invoices periodically sent to the purchaser,” but 

rather as “invoiced revenue as reflected in the purchase contract.” Thus, as the Court explained 

in its previous order, Defendant’s actual course of practice was quite helpful in interpreting this 

ambiguous provision. See Loy., 2011 WL 3359578, at *6–8 (citing Port Huron Educ. Ass’n v. 

Port Huron Area Sch. Dist., 452 Mich. 309, 323 (1996) (holding that when the language of the 

contract is not clear on its face, the Court must look beyond the words to determine the parties’ 

intentions)); see also Schroeder v. Terra Energy, 565 NW2d 887, 895 (Mich. Ct. App. 1997). 

(“[G]enerally a course of performance is highly persuasive evidence of proper contract 

interpretation when introduced against the party so performing.”). 

As the Court elaborated in its previous order, the Court first considered spreadsheets like 

the one reproduced above, which were created, signed, and approved by Defendant’s accounting 

personnel as an internal tracking system for computing commissions. The documents reflect the 

commissions being earned when Defendant’s customers agreed to purchase the equipment, even 

though the salesmen would only be paid the commissions if and when Defendant received 

payment for the equipment. Second, the Court considered the memorandum signed by Plaintiff, 

Lytkowski (Defendant’s national sales manager), and Chargot (another manager), which 

provided in pertinent part: “This memo is to inform that Jeremy Loy is owed by B&P Process 

Equipment a sum of $162,513 for commissions earned during his employment at B&P per the 

B&P Sales Plan which outlines the payment of commission.” This memorandum was executed 

before this litigation arose; indeed, it was executed before Plaintiff left his employment with 

Defendant. And finally, the Court considered the email of Slovin, Defendant’s CEO, who wrote: 

“Upon the completion of Vedanta, we will calculate your commission and bonus as per our 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 7 of 9 Pg ID 658
 -8-

agreement and pay for the complete project.” Although the plain meaning of “invoiced revenue” 

was not obvious, the Court concluded, the parties’ actions made plain that they interpreted it to 

mean that Plaintiff was entitled to the Vedanta commission and bonus in 2008. Defendant has 

not demonstrated a palpable defect in this conclusion. 

III. 

Additionally, a motion for reconsideration will be granted only if the moving party 

demonstrates that “correcting the defect will result in a different disposition of the case.” E.D. 

Mich. L.R. 7.1(h). Here, the Court made alternative findings regarding Plaintiff’s entitlement to 

a bonus commission. The Court concluded that Plaintiff’s interpretation of the contract was 

correct. And in the alternative, the Court concluded that Defendant may well have waived any 

right it had to refuse to pay the bonus commission based on its conduct. 

In its motion for reconsideration, Defendant addresses only the first finding. It does not 

address the waiver argument. Accordingly, even if the Court’s order was amended as Defendant 

requested above, Defendant has not shown that granting the motion for reconsideration would 

result in a different disposition of the case. 

IV. 

Accordingly, it is ORDERED that Defendant’s motion for reconsideration (ECF No. 38) 

is DENIED. 

Dated: October 28, 2011 

 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 8 of 9 Pg ID 659
 -9-

 

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on October 28, 2011. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

1:09-cv-12728-TLL-CEB Doc # 48 Filed 10/28/11 Pg 9 of 9 Pg ID 660