United States District Court, W.D. North Carolina, Statesville Division
THOMAS M. CARUTHERS JR., Plaintiff,
VITEX, INC., Defendant.
Kenneth D. Bell United States District Judge.
MATTER is before the Court on the parties' cross
motions for summary judgment. The Court has carefully
reviewed the motion and considered the parties'
arguments, briefs and exhibits. For the reasons discussed
below, the Court will GRANT IN PART and
DENY IN PART Plaintiff's motion (Doc.
No. 17), and GRANT IN PART and DENY
IN PART Defendant's motion (Doc. No. 15).
case arises out of a dispute regarding payment of commissions
under the terms of an agreement for independent contracting
services between Plaintiff Thomas M. Caruthers
(“Plaintiff”) and Vitex, Inc.
(“Vitex”). The undisputed facts are as follows:
provides technology consulting services to financial
institutions. Its material services are provided by
“salesmen” and “consultants.”
Salesmen meet with prospective clients to sell Vitex's
consulting services, while consultants perform the actual
services once a sale is made. Vitex's workforce is
comprised mainly of independent contractors who are
compensated by payment of commissions based on sales.
began working as a “salesman” for Vitex in
January 2014. The terms of his employment were governed by a
“Contract Consulting Services Master Agreement”
(“Master Agreement”) and a single addendum
thereto. The Master Agreement provides that Plaintiff was to
be paid up to 15% of the gross revenue received by Vitex for
each sale. 5% would be paid for generation of the client
lead, 5% would be paid for drafting the proposal, and 5%
would be paid for closing the sale. The Master Agreement
provides that commissions would not become due to be paid
until Vitex received payments from the client for the
services. If the client never paid, the Plaintiff would not
receive any payment.
point in 2015, Plaintiff closed a sale to CCB Community Bank
(“CCB”), where he personally banks. (Doc. No. 19,
at 5.) Because of Plaintiff's relationship with CCB,
Vitex's President, David Powell, authorized Plaintiff to
also act as a consultant and provide Vitex services to CCB
after the sale closed. (Id.) The Master Agreement
and addendum only covered the terms of compensation for
sales, not consulting. (Id.) As a result, Powell
“verbally agreed that Vitex would pay [Plaintiff] 40%
of gross revenue” for the consulting services provided
to CCB, “in addition to the 15% he would receive for
completing the sale” to CCB. (Id.) The parties
did not memorialize this agreement in writing or create an
addendum to the Master Agreement.
principal issue in this action is whether or not Plaintiff is
entitled to certain commission payments that did not become
due to be paid to him until after the parties terminated
their relationship. The Master Agreement provides the
5. Forfeiture of Commissions: If Contractor or Company
Terminates the Contract Consulting Services Master Agreement
or applicable addendums for any reason, fixed fee payments
end immediately and the following policy applies for future
Contractor Initiated Termination: All future
commissions from active engagement will be forfeited
effective with the notification date of separation.
Company Initiated Termination: All commissions
earned on active engagements (including “signed”
but not yet active) will be paid for a period of six (6)
months from the date of termination.
(Doc. No. 19-1, at ¶ 5.) Plaintiff contends that Vitex
terminated the agreement, while Vitex contends that Plaintiff
initiated termination of the agreement.
2016, Powell stepped down as president and Randall Roth took
control of Vitex. Plaintiff contends that Roth cut off
Plaintiff's access to his Vitex email account on June 1,
2016. (Doc. No. 19, at 6.) Vitex asserts that it did so
because Plaintiff allegedly deleted 5, 500 emails from his
Vitex account. Roth then sent an email to Plaintiff stating
that his performance as a Vitex contractor “over the
past several months” had been “completely
unacceptable.” (Doc. No. 19-7.) The email informed
Plaintiff he was to have no further contact with any Vitex
clients and that “after we complete our review of the
content of the deleted emails we will determine the
appropriate actions to take and your status as a Vitex
contractor.” Id. Plaintiff testified that
“based on the tone and tenor” of Roth's
email, he was under the belief that Vitex no longer wanted
him to continue working as a contractor. (Doc. No. 19, at 6.)
parties agree that five days after Roth sent this email,
Plaintiff had a telephone conference with Roth and Powell to
discuss Plaintiff's employment status. This phone call is
the center of the parties' dispute. Roth and Powell
testified that during this call, Plaintiff “requested
that we find a way to end his relationship with Vitex.”
(Doc. No. 20, at 3.) Plaintiff testified that he does not
recall saying this. Id. Vitex contends that prior to
this alleged statement by Plaintiff, ...