United States District Court, E.D. Kentucky, Covington Division
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, District Judge.
This matter is before the Court on the parties' briefs concerning damages (Doc. 46, Def. Brief; Doc. 52, Pl. Brief) and on Plaintiff's Motion to Modify the Court's November 27, 2013 Order (Doc. 51, Motion to Modify).
Having reviewed the parties' briefs, the Court concludes that oral argument is unnecessary to the resolution of the matter. The Court therefore issues the following Memorandum Opinion and Order.
A. Background Information
The focus of this litigation is a contract that was entered into on November 1, 2009 (the "Contract") between the parties, Plaintiff Webster & Associates ("Webster") and Defendant EagleBurgmann KE, Inc. ("Defendant"). ( See Doc. 32, Webster Dep., p.p. 42, 99-100, Exs. F and C; Green Dec., ¶ 3 and Ex. 1.)
Under the Contract, Webster was granted the exclusive obligation and right to solicit for the sale of equipment on behalf of Burgmann to a defined market territory in the Southeast. (Webster Dep., Ex. C., Appx. II.) In exchange for his services, Webster received commissions as determined by Appendix I to the Contract. ( Id., Ex. C at Appx. I.)
The Contract states that in the event of termination of the Contract by Burgmann, Webster "will receive commission for any orders accepted by the PRINCIPAL, for the remaining period of the contract." ( Id. at Section 10.) The relevant duration and Contract termination provisions under Section 11 of the Contract state:
Section 11. DURATION OF AGREEMENT
This Agreement shall be a three (3) year "evergreen" contract, meaning the Agreement shall automatically be extended by one (1) year at the end of each contract year, unless either party shall have given written notice of its intention not to renew the Agreement at least sixty (60) days prior to the expiration of the then current year of the agreement.
Should the PRINCIPAL serve notice of intention to terminate the agreement, REPRESENTATIVE may be required to service ACCOUNTS in the Territory for the remaining two years of this agreement, at the PRINCIPAL's option. PRINCIPAL's decision to relieve the REPRESENTATIVE of this responsibility does not affect payment of commissions for any shipments that occur during the remaining two years of the agreement.
Upon a breach of any of the terms and conditions of this Agreement, or any act of misfeasance by either party, or should either party become involved in insolvency proceedings, receivership or bankruptcy, this Agreement may be terminated immediately at the option of the other party by written notice.
( Id. at Section 11.)
The contractual relationship operated smoothly until Spring 2011, when Webster was unavailable to Burgmann and neglected his duties under the Contract. ( See Doc. 30 at p. 6; Richard Webster Affidavit at ¶ 14; Webster Depo. at 65-66, 70.) After multiple attempts to reach Webster without response, Burgmann mailed ...