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Burke v. Port Resort Realty
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Decision:	1998 ME 193	
Docket:	Yor-98-24
on Briefs:	June 29, 1998
Decided:	July 29, 1998

Panel:		WATHEN, C.J., and ROBERTS, RUDMAN, and DANA, JJ.


	[¶ 1]	Greg Burke appeals from the summary judgment entered in his
favor by the Superior Court (York County, Fritzsche, J.).  Burke contends that
the court (i) erroneously interpreted a provision in his employment contract
with Port Resort Realty Corp., operator of The Shawmut Inn, governing the
payment of wages to Burke following his resignation, and (ii) erroneously
determined that Port Resort did not violate 26 M.R.S.A. § 626 (Supp. 1997),
and thereby deprived him of the exemplary damages to which he is entitled
pursuant to section 626.  Because a material issue of fact exists precluding a
summary judgment on the issue of whether Port Resort violated section
626, we vacate the judgment.
	[¶ 2]	In October of 1994, Burke was hired by Port Resort to serve as
The Shawmut Inn's general manager and director of marketing and sales. 
The terms and conditions of Burke's employment were contained in an
employment agreement, subsequently modified by a written addendum
signed by Burke and the president of Port Resort, Ralph Bruno, that added a
number of performance incentives and increased Burke's base salary.  The
agreement as amended provided for Burke to receive a 1% commission
based on revenue received from all groups visiting The Shawmut Inn and a
3% commission based on revenue received from those groups for which
Burke was the sales person responsible for the account.  The amended
agreement addressed the payment of Burke's commissions upon the
cessation of his employment with Port Resort, stating:
It should be noted that should Greg [Burke] be laid off or
terminated for any reason, with or without cause, all group
commissions for business "on the books" going forward is to be
estimated and paid upon departure.  Otherwise, all group
commissions are to be paid in full the pay period following
payment in full by the group.
	[¶ 3]	Thirteen months to the day after his hiring, Burke submitted his
resignation, effective that day.  At the time of his resignation, Burke
demanded an immediate lump sum payment reflecting commissions for
groups booked for dates subsequent to the date of his resignation, and the
cash value of the three weeks vacation to which he claimed he was entitled. 
Port Resort refused Burke's demand and instead allegedly offered to pay
Burke as the income from the booked events was realized.  Port Resort also
allegedly offered Burke 1/12 of the cash value of his vacation time because
Burke had only worked one month into his second year at the Inn.   Aside
from two checks paid in December of 1995 totaling $79.46, Burke was not
paid commissions due from events at The Shawmut Inn from 1995 through
	[¶ 4]	Burke commenced this suit and subsequently moved for a
summary judgment against Port Resort.  The Superior Court entered a
summary judgment awarding Burke his earned commissions and 1/12 of the
cash value of his vacation time.{1}  The court specifically declined to find that
Port Resort violated section 626, reasoning that "[a]ny attempt to pay the
commissions through a series of smaller checks would have been pointless
as [Burke] wanted all his estimated commissions in advance."
	[¶ 5]	The employment agreement, not section 626, governs how
wages are earned and, if specified, when wages are to be paid.  See Purdy v.
Community Telecomm. Corp., 663 A.2d 25, 28-29 (Me. 1995) (wages due to
employee determined by reference to employee agreement); cf. Rowell v.
Jones & Vining, Inc., 524 A.2d 1208, 1210-11 (Me. 1987) ("the conditions
for earning vacation and the amount of vacation earned are governed by the
terms of employment, not by [section 626]").  In this case, Burke was not
owed wages subsequent to his resignation until his commissions were
earned pursuant to his employment agreement with Port Resort.  Burke's
employment agreement unambiguously specifies how Burke's future
commissions would be paid if Burke was "laid off or terminated for any
reason with or without cause," and how Burke's commissions would be paid
if his employment "otherwise" ended.  Burke was not laid off or terminated
and thus the trial court correctly determined that, pursuant to the
employment agreement, Burke's commissions were due "in full the pay
period following payment in full by the group."   
	[¶ 6]	Burke contends that, regardless of whether his employment
contract required the immediate or incremental payment of his
commissions, Port Resort violated section 626 because Port Resort failed to
pay him in a timely manner{2} under either interpretation.  Burke thus argues
that he is entitled to recover exemplary damages{3} pursuant to section 626. 
In reviewing the motion court's determination that Port Resort did not
violate section 626, we examine the evidence supporting the motion court's
conclusion that Burke refused incremental payment of wages as they became
wages earned.  
	[¶ 7]	A party is entitled to a summary judgment if no genuine issue of
material fact exists and if the party on the undisputed facts is entitled to a
judgment as a matter of law.  See Seashore Performing Arts Ctr., Inc. v.
Town of Old Orchard Beach, 676 A.2d 482, 484 (Me. 1996).  We review the
grant of a summary judgment for an error of law, viewing the evidence in the
light most favorable to the party against whom the judgment has been
granted.  See Key Trust Co. of Maine v. Nasson College, 1997 ME 145, ¶ 9,
697 A.2d 408, 409.  In ruling on a motion for a summary judgment, "'the
court is to consider only the portions of the record referred to, and the
material facts set forth, in the Rule 7(d) statements.'"  Handy Boat Serv.,
Inc. v. Professional Servs., Inc., 1998 ME 134, ¶ 16, __ A.2d __ (Me. 1998)
(quoting Gerrity Co. v. Lake Arrowhead Corp., 609 A.2d 295, 295 (Me.
	[¶ 8]	Our review of the parties' respective statements of material fact
reveals that a genuine issue of material fact exists as to whether Burke
refused to accept Port Resort's incremental tender of wages pursuant to his
employment agreement with Port Resort.  Burke, in his statement of
material facts, states that, as of March 11, 1997, Port Resort had not "paid
or unconditionally tendered to Burke the amount of commissions admittedly
owed to him."  In contrast, Port Resort, in its statement of material facts,
states that Burke, "through his attorney, refused to accept commissions to
be paid in full the pay period following payment in full by the group."  Port
Resort also relates that Burke was offered, and refused, 1/12 of the cash
value of his vacation time.  Because the record reveals a material fact in
dispute regarding whether Burke refused to accept a tender of wages by
Port Resort, the motion court erred in entering a summary judgment.  See
Roy v. Buckley, 1997 ME 155, ¶ 9, 698 A.2d 497, 501 ("At the summary
judgment stage of the proceeding, the court's task is not to decide any
disputed factual questions, but to determine whether the record before the
court generates a genuine issue of material fact.").
	 The entry is:

Judgment vacated.  Remanded for proceedings
consistent with this opinion.

Attorney for plaintiff: Jens-Peter W. Bergen, Esq. Wonderbrook Center 57 Portland Road Kennebunk, ME 04043 Defendants did not file a brief.
FOOTNOTES******************************** {1} After a hearing the parties stipulated to $8,911.24 in damages, which represented $8,680.76 in owed commissions and $230.48 for owed vacation time. This stipulation was incorporated into the judgment entered in favor of Burke. The parties expressly preserved their right to appeal the summary judgment, despite the stipulation as to damages. {2} Section 626 provides: An employee leaving employment must be paid in full within a reasonable time after demand at the office of the employer where payrolls are kept and wages are paid . . . . Whenever the terms of employment include provisions for paid vacations, vacation pay on cessation of employment has the same status as wages earned. 26 M.R.S.A. § 626 (Supp. 1997). The statute defines "a reasonable time" as "the earlier of either the next day on which employees would regularly be paid or a day not more than 2 weeks after the day on which the demand is made." Id. {3} If an employer fails to pay due wages within a reasonable time, the employer: is liable for the amount of unpaid wages and, in addition, the judgment rendered in favor of the employee or employees must include a reasonable rate of interest, an additional amount equal to twice the amount of those wages as liquidated damages and costs of suit, including a reasonable attorney's fee. 26 M.R.S.A. § 626 (Supp. 1997). Additionally, an employer who violates section 626 "is subject to a forfeiture of not less than $100 nor more than $500 for each violation." Id.