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Bloomsz, LLC v. Bourgondien

Court of Appeals of Kentucky

November 9, 2017

BLOOMSZ, LLC APPELLANT
v.
JOSEPH VAN BOURGONDIEN APPELLEE

         APPEAL FROM BOONE CIRCUIT COURT HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 13-CI-00407

          BRIEFS FOR APPELLANT: Scott R. Thomas Kyle Winslow Ft. Mitchell, Kentucky.

          BRIEF FOR APPELLEE: Joseph E. Conley, Jr. Florence, Kentucky.

          BEFORE: ACREE, DIXON, AND JONES, JUDGES.

          OPINION

          DIXON, JUDGE.

         Bloomsz, 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.

         Bloomsz and its affiliate, DeVroomen Bulb Company, are engaged in the business of selling horticultural products to retail outlets and garden centers.[1]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.

         Please 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.

         Bloomsz 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.

         On July 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 advances.

         The 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.

         Bloomsz contends the court erred by disregarding Van Bourgondien's status as an independent contractor, along with his testimony indicating he understood the companies would ...


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