Maille v. The Darcy Group, Ltd., No. S1416-03 CnC (Norton, J., June 13,
2005)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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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 function manager
of defendant accounting firm, of which John F. Darcy was the chief
executive officer. Maille was hired by a December 2, 2001 offer, which
Darcy drafted. Maille seeks payment under the compensation clause of the
contract that provided:
Upon assuming your duties as Audit Manager, we would 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 bonus program is
based upon the firm’s profitability and your individual efforts. For
the first year we would guarantee that your bonus would be not
less than $5000.


        Maille worked for the Darcy Group from January 1,
2002 to May, 15, 2003, when he was discharged for poor
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 guaranteed bonus
($5000).

        Basically, the new client incentive bonus was a
“rainmaker” award for bringing in new clients who paid 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 individual tax
returns. According to the Darcy Employee Manual, which
Maille relied upon but refused to sign, bonuses were 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 no profit
or bonuses for any employee in 2002. At trial, John F. Darcy
testified to this. Thus, Maille was not eligible for a bonus
under the employment offer of Dec. 2, 2001. He therefore
turned to the manual’s new client incentive provision for
relief.
        Maille seeks to define realization as an incentive based on standard
rates compared with the fees actually generated, but he produced no
credible evidence that he generated any engagements, except one, that
qualified under the program, and defendant agreed that he was due $213 on
that project. But defendant proved that the remainder 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 for 2003.

      The court will award $213 plus interest from date of discharge and
deny any other damages as not proven by the preponderance of the
evidence on the incentive claim.

        Turning to the $5000 first year bonus, Maille demanded payment
after the first year of employment but was “ignored” 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 “profitability and your
individual efforts” language in the second sentence of the compensation
package, but it is clear from the words and structure of the compensation
clause that the guarantee promise was not dependent on any contingent
factors. Otherwise, why would the employer, who drafted the offer,
guarantee the first year of employment calling for the payment of the $5000
“bonus?” The answer is that this was a separate, independent promise in
the nature of a signing reward for coming on board to head the audit
division. A reasonable interpretation of the compensation package from the
expectations of both parties clearly favors Maille’s interpretation.



                              Conclusions of Law
       Generally, the construction of a contract is a matter 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 the
words used in the document. Ferrill v. North American 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. He met this condition,
and he is entitled to the guaranteed $ 5000, plus interest from the date of his
discharge, May 15, 2003.

        Judgment is entered for plaintiff Scott Maille against the defendants
in the sum of $5,213 with interest to run at 12% from May 15, 2003, to the
date of payment, along with the costs incurred in this suit. Plaintiff Maille
will submit a judgment order consistent with this Order.



       Dated at Burlington, Vermont________________, 2005.




                                                                                  ____________
                                                                         Judge
