United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN, United States District Judge
plaintiff, Carlton Cleland, alleges that the defendant,
Mortara Instrument, Inc., failed to pay him commissions that
he earned while working as its sales agent. He brings this
action under Wisconsin law, seeking damages for breach of
contract or, in the alternative, equitable relief under the
doctrines of promissory estoppel and unjust
enrichment. Before me now is Mortara's motion for
makes and sells medical devices throughout the country.
Between June 2007 and May 20, 2016, Mortara employed Cleland
as a Cardiology Account Executive. Cleland's duties in
this position included selling medical devices to customers,
providing training to customers, and servicing equipment.
During his employment, Cleland had an assigned sales
territory that consisted of the southern half of Nebraska,
all of Kansas, the northern half of Arkansas, all of
Missouri, and the bottom half of Iowa.
compensation took the form of both a fixed salary and
commissions on sales. The commissions portion of his
compensation was governed by a written agreement. This
agreement is a somewhat skeletal document that mostly
describes how commissions would be calculated. (Decl. of
Carlton Cleland, Ex. A, ECF No. 40-1.) However, it also
contains some terms. As is relevant here, the agreement
states that “[c]ommissions are earned upon shipment,
paid by the end of the subsequent month.” (Id.
at p. 1.) The agreement also states that “[a]ll
commission determinations are subject to approval by”
20, 2016, Mortara terminated Cleland's employment.
Mortara contends, and Cleland does not dispute, that it
terminated him “because of customer complaints and
Cleland's ongoing issues with properly managing his
territory.” (Def. Prop. Finding of Fact
(“PFOF”) ¶ 25.) Cleland's last paycheck
was dated June 23, 2016, and it included commissions on sales
that had shipped during the last month of his employment.
Mortara terminated Cleland, it promoted an existing employee,
Kevin Tecce, to the position of account executive for
Cleland's former territory. However, it took Mortara
until August 2016 to move Tecce into Cleland's former
position. At that point, Mortara and Tecce entered into a
commission agreement that was in all material respects
identical to the agreement between Mortara and Cleland.
Mortara then began paying Tecce commissions on orders that
shipped into the territory. (Def. PFOF ¶ 36.) Some of
these commissions were for orders that Cleland had worked on
while he was the account executive for the territory. These
commissions were for orders that closed sometime after
Cleland had sent quotes to the customers but did not ship
until after Cleland had been terminated. (Id.)
and Tecce are close friends. After Tecce was promoted to
Cleland's former position, the two men had a conversation
in which Tecce told Cleland that he was receiving commissions
based on work that Cleland had performed. Cleland was
surprised to learn that Mortara was paying Tecce those
commissions because he “just assumed that management
would absorb all those commissions.” (Def. PFOF. ¶
remained the account executive for Cleland's former
territory until January 2017. At that point, a different
Mortara employee, David McNeel, became the account executive
for the territory. Mortara and McNeel then entered into the
same commission agreement as Mortara had entered into with
Cleland and Tecce Once McNeel took over, Mortara began paying
him the commissions on orders that shipped into the
territory, including on orders that resulted from Tecce's
work but which did not ship until after McNeel became the
commenced this suit in February 2017. He contends that
Mortara breached the commission agreement by failing to pay
him commissions on orders that resulted from his work as the
account executive for the territory but did not ship until
after he was terminated. He also contends that, if the
commission agreement proves to be “illusory, ”
then he is entitled to recover those commissions under the
doctrines of promissory estoppel and unjust enrichment. (Br.
in Opp. at 1, ECF No. 37.)
judgment is required where “there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). When
considering a motion for summary judgment, I take evidence in
the light most favorable to the non-moving party and must
grant the motion if no reasonable juror could find for that
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 255 (1986). The parties agree that Wisconsin
substantive law applies to their dispute.
Breach of Contract
Wisconsin law, a court tasked with interpreting a contract
attempts to identify the intent of the parties as expressed
by the contractual language they used. Betz v. Diamond
Jim's Auto Sales, 355 Wis.2d 301, 320 (2014). In
ascertaining the parties' intent, the court must give
contract terms their plain or ordinary meaning. Id.
If the contract is unambiguous, the court's attempt to
determine the parties' intent ends with the four corners
of the contract, without consideration of extrinsic evidence.
Id. Only when the contract is ambiguous, meaning it
is susceptible to more than ...