FROM BOONE CIRCUIT COURT HONORABLE JAMES R. SCHRAND, II,
JUDGE ACTION NO. 13-CI-00407
FOR APPELLANT: Scott R. Thomas Kyle Winslow Ft. Mitchell,
FOR APPELLEE: Joseph E. Conley, Jr. Florence, Kentucky.
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
LLC, appeals the judgment of the Boone Circuit Court in favor
of Appellant's former sales representative, Joseph Van
Bourgondien. Finding no error, we affirm.
and its affiliate, DeVroomen Bulb Company, are engaged in the
business of selling horticultural products to retail outlets
and garden centers.Prior to 2012, Van Bourgondien sold
horticultural products for his family-owned business, K. Van
Bourgondien & Sons, until the company was sold in
bankruptcy. In February 2012, Van Bourgondien entered into an
oral agreement with the owner of Bloomsz and DeVroomen, Hans
Philippo, to sell the companies' garden products to
various retailers. On February 17, 2012, Van Bourgondien sent
an email to Philippo, which stated:
Based on starting on a draw verses [sic] commissions, I would
need a monthly draw of 11, 250. One other thing we did not
discuss was you covering my traveling expenses?
I attached a commission structure that I had given Peter with
commission at gross margin levels.
let me know if you are in agreement with this. Philippo later
replied, "[M]y answer is yes, I can work with
this[.]" Shortly thereafter, the staff accountant for
the companies, Maria Anderson, began wiring $11, 250.00 to
Van Bourgondien's bank account each month. Van
Bourgondien resigned from his position at Bloomsz and
DeVroomen in February 2013.
filed a complaint against Van Bourgondien for breach of
contract. Bloomsz alleged Van Bourgondien was personally
liable for repayment of monthly advances that exceeded his
commissions in the amount of $67, 082.92. Van Bourgondien
generally denied the allegations.
7, 2016, the matter came before the Boone Circuit Court for a
bench trial. The court heard testimony from Van Bourgondien
and from Bloomsz's accountant, Anderson. According to Van
Bourgondien's testimony, he agreed to work as an
independent contractor salesman for Bloomsz and DeVroomen.
Van Bourgondien explained that he, along with his boss at
Bloomsz, Peter Zonneveld, worked with major chain retailers
throughout the country to market Bloomsz's products. Van
Bourgondien also worked with Roland Van den Bergh, his
supervisor at DeVroomen, to showcase products at trade shows
and regional retailers in the Midwest and Northeast. Van
Bourgondien testified he had an oral agreement with Philippo
to sell products on a commission basis. The email from
Philippo approving Van Bourgondien's $11, 250.00 monthly
advance on his commissions was introduced into evidence. Van
Bourgondien maintained he never discussed with anyone that he
would be personally liable for repayment in the event his
commissions were less than the amount he was advanced each
month. He acknowledged he understood the companies would, at
some point, reconcile the advances paid and commissions
earned; however, he hoped his commissions would exceed his
circuit court entered findings of fact, conclusions of law,
and a judgment in favor of Van Bourgondien. The court
concluded there was no agreement between the parties that Van
Bourgondien would be personally liable for any advances that
exceeded his commissions. This appeal followed.
contends the court erred by disregarding Van
Bourgondien's status as an independent contractor, along
with his testimony indicating he understood the companies