Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

J. Wilderman Autoplex Corporation, An Illinois Corporation v. Derrick Spencer Norton

January 7, 2011

J. WILDERMAN AUTOPLEX CORPORATION, AN ILLINOIS CORPORATION, PLAINTIFF,
v.
DERRICK SPENCER NORTON, DEFENDANT DERRICK SPENCER NORTON, COUNTER-CLAIMANT,
v.
J. WILDERMAN AUTOPLEX CORPORATION, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Frazier, Magistrate Judge:

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Before the Court is Plaintiff's Motion to Alter or Amend the November 19, 2010 Findings of Fact and Conclusions of Law (Doc. 103), Defendant's Motion to Alter or Amend the November 19, 2010 Findings of Fact and Conclusions of Law (Doc. 108), and Plaintiff's Motion for Attorney's Fees (Doc. 105). Having been briefed on the issues, Plaintiff's Motion to Amend is GRANTED IN PART AND DENIED IN PART, Defendant's Motion to Amend is GRANTED IN PART AND DENIED IN PART, Plaintiff's Motion for Attorney's Fees is GRANTED IN PART AND DENIED IN PART, and the Findings of Fact and Conclusions of Law are amended as follows:

On February 9, 2009, Plaintiff/Counter-Defendant J. Wilderman Autoplex Corporation ("Wilderman") filed suit for declaratory judgment against Defendant/Counter-Claimant Derrick Spencer Norton ("Norton") in the Circuit Court of Wabash County, Illinois in order to determine its rights under an employment contract entered into by the parties. After removing that action to the United States District Court for the Southern District of Illinois pursuant to 28 U.S.C. §§ 1441 and 1446, Norton filed a counterclaim against Wilderman alleging that Wilderman breached the parties' employment contract when it orally terminated Norton on January 5, 2009, and when Wilderman failed to compensate Norton in accordance with the contract. Wilderman raised the affirmative defense that Norton had waived the alleged contract breaches when he accepted a payment of $6,000 after being orally terminated on January 5, 2009. After ruling on the declaratory judgment counts in a July 22, 2010 Memorandum and Order, a bench trial ensued on November 8, 2010. The following findings of fact and conclusions of law are made pursuant to Fed. R. Civ. P. 52(a)(1):

FINDINGS OF FACT*fn1

1. James J. Wilderman ("Mr. Wilderman"), the majority shareholder of Wilderman, hired Norton in September, 2006 as a member of the Wilderman staff.

2. On January 1, 2008, Wilderman and Norton entered into an employment contract that installed Norton as General Manager and Chief Operating Officer of Wilderman. The contract provided that it could only be amended, supplemented, cancelled, or discharged by written instrument.

3. The contract provided that Norton would be employed by Wilderman for a period of ten years, and that the contract would automatically be renewed for an additional period of one year each year thereafter. Notwithstanding the foregoing provisions, Norton's employment could be terminated (1) upon Norton's death, (2) at either party's option on at least 30 days prior written notice, (3) by Wilderman for cause; or (4) due to a disability by Norton.

4. Norton was entitled to a 7% commission of all gross profits of Wilderman's main store, and its annex store in Olney, Illinois. Additionally, Norton was entitled to a base salary of $1,500.00 per week, to be drawn against any commissions earned.

5. Norton would be entitled to purchase common stock in Wilderman at the end of the ten year term if certain income benchmarks were met, but if Norton's employment with Wilderman terminated prior to the end of the ten year period, no such right would vest.

6. Mr. Wilderman and Mark R. Ide had the option, but were not required, to sell Norton real estate on which Wilderman operated.

7. During Norton's term of employment, he was entitled to (1) the use of a current year automobile owned or leased by Wilderman, with all expenses being paid by Wilderman;

(2) 21 days of vacation each year, during which his compensation was to accrue according to the compensation provisions of the contract; and (3) participate in any retirement, health, life insurance, disability and other related benefit plans.

8. Section 3 of the contract provides that weekly payments are only draws against commissions earned. There is no provision providing for paid vacation days, other than the accrual of commissions in the same fashion as that earned while not on vacation.

9. During 2008, Norton used all of his vacation days, yet never received extra compensation for these days on top of his weekly draws and commission payments.

10. On January 5, 2009, Mr. Wilderman informed Norton during a telephone conversation that he was terminating Norton's employment with Wilderman.

11. In a second telephone conversation with Norton, Mr. Wilderman informed Norton that he would be compensated for the first week's draw of January, 2009, the December, 2008 commission, and the three weeks of vacation pay he was entitled to during 2009. During this conversation, Norton never acknowledged that he was waiving his rights under the contract by accepting this payment.

12. Sometime on or after January 7, 2009, Norton received his final paycheck from Wilderman. Norton was paid $1,500.00 as his base salary for work performed between January 1, 2009 and January 7, 2009, and $4,500.00 for 120 hours of vacation pay. Along with his federal and state income tax, Medicare, and federal insurance contribution ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.