Deborah A. Robinson, a former employee of Century Personnel, Inc. [Century], appeals the summary judgment entered against her on her counterclaim against Century for commissions she asserts she had earned as an employee of Century. Robinson raises three issues, which we restate and consolidate, none of which constitute reversible error.
The facts in the light most favorable to the nonmovant Robinson reveal that she worked as a recruiter for Century, an employment agency, from August of 1991 until June 12, 1995, when she resigned her position. Part of Robinson's compensation included commissions based upon employment placements made.
On June 27, 1995, Century brought the instant lawsuit against Robinson alleging that she had breached the covenant not to compete and the trade secret clause of her employment contract. Robinson counterclaimed alleging that Century had failed to pay certain commissions that had become payable after her termination. This appeal pertains only to the partial summary judgment entered against Robinson on her counterclaim for the unpaid commissions.
In support of its motion for summary judgment, Century designated three separate agreements signed by Robinson which state that an employee does not earn a commission unless the employee is still employed by Century when the placement fee is received by Century. The first such document is styled "CENTURY PERSONNEL OFFER CHECK LIST" and reads in pertinent part as follows:
The second document is styled "CONSULTANT EMPLOYMENT AGREEMENT" and reads in pertinent part as follows:
The third document is styled "CENTURY PERSONNEL OPERATIONS MANUAL" and reads in pertinent part as follows:
Consultants at Century are paid when commissions are earned.
We begin our analysis by noting that our supreme court has consistently expressed its commitment to advancing the public policy in favor of enforcing contracts. See Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1129 (Ind.1995). Indiana courts recognize that it is in the best interest of the public not to unnecessarily restrict persons' freedom to contract. Id. Thus, as a general rule, the law allows persons of full age and competent understanding the utmost liberty
As recently stated in Stevenson v. Hamilton Mutual Insurance Company, 672 N.E.2d 467 (Ind.Ct.App.1996):
Id. at 470-71 (Citations omitted).
The construction of an unambiguous written contract is generally a question of law for the court, making summary judgment particularly appropriate in contract disputes. Bicknell Minerals, Inc. v. Tilly, 570 N.E.2d 1307, 1310 (Ind.App.1991), trans. denied. If a contract is ambiguous or uncertain and its meaning is to be determined by extrinsic evidence, its construction is a matter for the fact finder. Id. If, however, an ambiguity arises because of the language used in the contract and not because of extrinsic facts, its construction is purely a question of law to be determined by the court. Id. In interpreting a written contract, the court should attempt to determine the intent of the parties at the time the contract was made as discovered by the language used to express their rights and duties. Id. at 1313. The contract is to be read as a whole when trying to ascertain the intent of the parties. Id. The court will make all attempts to construe the language in a contract so as not to render any words, phrases, or terms ineffective or meaningless. Id. at 1316. Finally, the court must accept an interpretation of the contract which harmonizes its provisions as opposed to one which causes the provisions to be conflicting. Id.
As a general rule, a person employed on a commission basis is entitled to her commission when the order is accepted by the employer. Vector Engineering & Manufacturing Corporation v. Pequet, 431 N.E.2d 503, 505 (Ind.Ct.App.1982), trans. denied. However, this general rule may be altered by a written agreement which clearly demonstrates a different compensation scheme. Id. The employer and employee are free to agree that commissions will not be paid after the employee's termination. Id. Vector controls.
BAKER, J., concurs.
KIRSCH, J., dissents with separate opinion.
KIRSCH, Judge, dissenting.
I respectfully dissent. For the reasons set forth in both the opinion of Judge Sullivan and the separate concurring opinion of Judge Staton in Weiser v. Godby Brothers, Inc., 659 N.E.2d 237 (Ind.Ct.App.1995), I would reverse the trial court's entry of summary judgment and remand for trial.