Unpublished Disposition, 908 F.2d 977 (9th Cir. 1988)

No. 89-35485.

United States Court of Appeals, Ninth Circuit.

Before WRIGHT and WALLACE, Circuit Judges, and JONES,^*  District Judge.

MEMORANDUM^** 

Donald Leher was employed by Western States Equipment Company as a commissioned sales representative. His compensation was in the form of a guaranteed monthly income which consisted of a salary and a draw against commissions. The fiscal year used by Western States was April 1 through March 31 of the following year. Leher was employed by Western States from October 1, 1981, through March 31, 1987. Upon termination of the employment relationship between Leher and Western States, Leher was paid in full for his services rendered with the exception of the alleged claim for commissions involved in this controversy. Leher contends that he is owed a commission from a sale of equipment he arranged prior to leaving the employ of Western States and which sale took place after his leaving the employment of Western States.

The trial court granted Western States' summary judgment motion based upon the expiration of the applicable statute of limitations. Leher appeals contending that the two year statute of limitations should apply rather than the six month statute of limitations. We disagree and accordingly affirm the decision of the district court.

The applicable Idaho statute provides, in part, as follows:

in the event salary or wages have been paid to any employee and such employee claims additional salary, wages, overtime compensation, penalties or liquidated damages, because of work done or services performed during his employment for the pay period covered by said payment, any action therefor shall be commenced within six (6) months of the accrual of the cause of action. Idaho Code Sec. 45-608

Leher does not allege that he performed any work after he left employment with Western States. Any claim he may have is based upon work performed between January and March of 1987. Although Leher may not have been entitled to the commission until April or May of 1987, the date of delivery and payment, this does not affect the applicable statute of limitations, but rather, the date of the accrual of the action.

This action is barred because the claim was not filed within six months of the "accrual of the cause of action." The cause of action accrued, as the district court found, no later than May 31, 1987, when the equipment was delivered and payment was received.

We reject any argument based upon the premise that Leher could not commence this cause of action until he first received an accounting from Western States. Indeed, Leher did commence this action on February 11, 1988, prior to receiving an accounting. Moreover, within the six month period the employee could have ascertained the amount of or existence of the claimed commission due.

Leher relies upon three cases for the proposition that the two year statute of limitations ought to apply. The reliance is misplaced. In Schoonover v. Bonner County, 113 Idaho 916, 750 P.2d 95 (1988), deputy sheriffs sued the county for wages in the form of unused vacation time. The action was filed within one month of Schoonover's termination. Longstanding practice had established that all overtime pay accrued upon termination. Hence, Schoonover's claim was filed well within either six months or two years of the accrual of the cause of action. The court did not determine which time applied, but merely stated that the claim was brought in time.

Leher next relies upon Thomas v. Ballou-Latimer Drug Co., 92 Idaho 337, 442 P.2d 747 (1968). In that case, an employee sued his employer for bonus wages allegedly due under an employment contract. The employment contract provided for the payment of a fixed wage plus a bonus based upon profits at the end of the year. After finding a bonus due, the court held that payments made during the year were partial payments for services rendered. The court cited to Anderson v. Lee, 86 Idaho 300, 386 P.2d 54 (1963), and held that these partial payments were payment on account, and as such, the two year statute of limitations applied.

In Anderson, the third case relied upon by Leher, the court stated:

" [i]f the payments were made on account ... then no particular pay period was covered by such payments ... and the statute limiting the period for the commencement of plaintiff's action to six months would not apply, because in such case plaintiff would not be claiming additional wages for the pay period covered by any of the payments made. His claim ... would be for an unpaid balance applicable to the entire period of his employment."

Anderson, 386 P.2d at 56.

Therefore, these three cases are distinguishable as Leher did not file within both statutes of limitations as in Schoonover and as Leher's wages consisted of full payment at the end of each pay period and not payment on account as in Thomas and Anderson.

The decision of the district court is affirmed.

AFFIRMED.