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Branyon v. Phoenix Business Consulting, Inc.

United States District Court, M.D. North Carolina

March 5, 2018

JAMES C. BRANYON, JR., Plaintiff,


          N. Carlton Tilley, Jr. Senior United States District Judge

         Plaintiff James C. Branyon, Jr. has sued his former employer, Defendant Phoenix Business Consulting, Inc. (“Phoenix”), for violations of the North Carolina Wage and Hour Act (“Wage and Hour Act”) and seeks to recover, among other relief, commissions he believes he is owed under three purported contracts - the First Anvil Contract, the Second Anvil Contract, and the Grain Craft Contract. (See, e.g., Compl. ¶¶ 21-35 [Doc. #2].) This matter is before the Court on Phoenix's Motion for Summary Judgment [Doc. #40]. Phoenix argues that the Wage and Hour Act claim fails as a matter of law because the claims for commissions under the Anvil Contracts are barred by the statute of limitations, the claim under the Second Anvil Contract is not supported by the allegations in the Complaint, and the claims under all Contracts are unsubstantiated by competent evidence. (See Mot. for Summ. J. at 1-2; see also Mem. of Law in Supp. of Def.'s Mot. for Summ. J. [Docs. #41, 45 (Sealed)].) For the reasons that follow, Phoenix's Motion is granted in part and denied in part. It is denied in part as to the portion of the Wage and Hour Act claim seeking commissions due on May 27, 2014 onward under the Second Anvil Contract for services provided by Kim Swartz. It is otherwise granted.


         Branyon was a sales associate with Phoenix from late 2005 or early 2006, when Phoenix merged with Branyon's previous employer, until his termination on December 31, 2015. (James C. Branyon, Jr. Dep. 14:22-25, 25:1-3 (May 2, 2017) [Doc. #42-1]; Richard Michael Very, Jr. Dep. 135:18-22 (May 3, 2017) [Doc. #42-2].)[1] Phoenix, also doing business as Thorondor, provides Business Planning and Control System (“BPCS”) software consulting and technical services. (Very Dep. 29:18-19, 171:2-4.) As a sales associate for Phoenix, Branyon's primary duty was to secure contracts for Phoenix's services by contacting prospective and current clients to purchase Phoenix's software and consulting services. (Branyon Dep. 25:9-14.) He would do so by identifying and creating demand for Phoenix's services and developing relationships with customers. (Id. at 25:23-25.) If he were selling software, he “identif[ied], . . . qualif[ied, ] and then once the sale's made, . . . turn[ed] it over and mov[ed] on to the next sale.” (Id. at 26:8-12.) On the other hand, if he were selling services, “it's much more of a relationship sale” so he would “spend more time -- . . . constantly maintaining the customers.” (Id. at 26:4-7.) This included “phone calls [and] visits”. (Id. at 26:13-18.) Richard Very of Phoenix similarly described Branyon as the “interface between the client and Phoenix to help maintain the customer support at a high level[, ] [t]o identify any new opportunities with that client[, ] [t]o effectively seal the deal on those new opportunities when he - when he could[, and] [t]o continuously search for other new opportunities.” (Very Dep. 48:14-19.) A “big portion of his responsibility” “was maintaining client relationships with those clients that were assigned to him.” (Id. at 48:22-25.)

         Effective January 1, 2009, Branyon operated under a compensation plan (“2009 Compensation Plan”), according to which the parties agreed he would receive a commission of nine percent of Phoenix's gross sales for accounts assigned to him. (Branyon Dep. 44:2-20, 46:7-18; Very Dep. 79:3-9, 94:8-18; Ex. 3 to Branyon Dep. [Docs. #42-3, #48-3].) The 2009 Compensation Plan reads, in part, “9% Commissions on All Work @ $135/hour or higher up to $2.5 Sales”. (Ex. 3 to Branyon Dep.)

         In 2010, Anvil International, LP (“Anvil”), a BPCS services client of Phoenix, decided to transition to new software, prompting Phoenix to undertake efforts to sell Anvil its new software. (Branyon Dep. 28:14-25.) After Phoenix successfully did so, it bid on the project to implement the software at Anvil's facilities by offering consulting services. (Id. at 30:15-19; 160:20-163:9.) Ultimately, as a result of at least the work of Branyon, Anvil and Thorondor entered into a Master Services Agreement (“MSA”) on October 3, 2011, according to which Thorondor would provide services, either directly or through third parties, to Anvil as directed in separately executed Services Work Authorizations (“SWAs”). (Very Dep. 88:4-5, 88:19-23, 89:18-24; Ex. 4 to Very Dep. [Docs. #42-4, 49-2 (Sealed)].) Attached to the MSA was the initial SWA. (Ex. 4 to Very Dep.) This account was assigned to Branyon. (Very Dep. 88:14-17.)

         Nine days after the MSA was executed, on October 12, 2011, Very emailed Branyon on the subject of “Anvil Commissions”. (Ex. 5 to Branyon Dep. [Docs. #42-5, 48-5].) The email reads, in relevant part,

Jim - just to sum up what we discussed this morning:
. . .
Ongoing Services Commission on services provided by Thorondor resources:
• Jim - 9%
. . .
Ongoing Services Commission on services provided by other than Thorondor resources - We need to discuss, but we would suggest the commission be based on NET Profit Margin to Thorondor (if any). These should be minimal.
. . . “.

(Id.) Branyon did not agree to the distinction between commissions paid on services provided by Phoenix and those provided by subcontractors. (Branyon Dep. 74:3-20; Very Dep. 95:11-13.)

         In February 2013, a subcontractor, Kim Swartz, began servicing Anvil under the MSA. (Branyon Dep. 82:18-83:25; Very Dep. 161:13-16.) On October 1, 2013, Branyon emailed Very the following:

Rich Per our discussions attached is a copy of the compensation that I understand we are operating under.
Based on this plan I have the following current concerns: Commissions for billings to Anvil do not appear to include services subcontracted by PHOENIX to ...

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