STEPHEN VARGO V WILLIAM D GILLESPIE
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STATE OF MICHIGAN
COURT OF APPEALS
STEPHEN VARGO,
UNPUBLISHED
February 1, 2002
Plaintiff-Appellant,
No. 225460
Wayne Circuit Court
LC No. 97-735244-CZ
v
WILLIAM D. GILLESPIE and CERTIFIED
ALARM, INC.,
Defendants-Appellees.
Before: Cooper, P.J., and Griffin and Saad, JJ.
PER CURIAM.
Plaintiff appeals as of right from a judgment awarding him $30,000 following a bench
trial. Pursuant to the parties’ stipulation, the trial was “limited to the issue of the amount of
compensation and/or commissions Plaintiff may be entitled to receive as a result of his
employment with Certified Alarm from December 1, 1990 to November 24, 1995.” Plaintiff
argues on appeal that the trial court’s award of damages was not supported by the record and the
court did not apply the correct measure of damages as established by law.
We review a trial court’s award of damages in a bench trial under the clearly erroneous
standard. Meek v Dep’t of Transportation, 240 Mich App 105, 121; 610 NW2d 250 (2000).
The court found that plaintiff’s employment status changed from a fifty-fifty split to a
“commissioned” salesperson once defendant started leaving him off as a partner on the minutes
and notes and other filings, which entailed a period of thirty months before his termination. This
determination is supported by evidence that plaintiff had been listed as a partner or officer of the
corporation on all pertinent documents in 1990, 1991, and 1992 and on the 1994 application for
licensing, but not in the 1993 report, which was filed on August 31, 1995. The court awarded
plaintiff commissions of $2,000 a month for the thirty-month period, resulting in a total of
$60,000, which the court then offset by the $30,000 amount that defendant had paid to plaintiff
pursuant to the stipulation. We find that the trial court did not clearly err in its award of
damages.
Although plaintiff asserts that he was entitled to a larger amount, his demand for a twenty
percent commission rate was not representative of the industry standard, which was ten percent
according to his own witness and was what plaintiff had been paid when he was on commission
with Wyandotte Alarm Company. Second, plaintiff could not substantiate the amount he was
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requesting because he admittedly did not have many of the contracts on which he asserted a right
to compensation.
We further find no merit to plaintiff’s claim that the court applied the wrong measure of
damages. Plaintiff claims he and defendant Gillespie had agreed that plaintiff would be a fiftyfifty partner and that, under standard principles of contract law, he was therefore entitled to an
award of damages that would compensate him as an equal partner. See Farm Credit Services v
Weldon, 232 Mich App 662, 678-679; 591 NW2d 438 (1998), citing Kewin v Massachusetts Mut
Life Ins Co, 409 Mich 401, 414; 295 NW2d 50 (1980). We disagree.
Pursuant to the parties’ pretrial stipulation, the only issue to be decided at trial was “the
amount of compensation and/or commissions Plaintiff may be entitled to receive as a result of
his employment with Certified Alarm from December 1, 1990 to November 24, 1995.” All other
claims were dismissed with prejudice. Plaintiff’s request for damages based on an alleged
partnership arrangement between himself and Gillespie exceeds the scope of the stipulation.
Accordingly, we reject plaintiff’s claim that the trial court applied an erroneous measure of
damages.
Affirmed.
/s/ Jessica R. Cooper
/s/ Richard Allen Griffin
/s/ Henry William Saad
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