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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER
10, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0599
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
RICHARD
J. SCHLEIFE and
DEBORAH
A. SCHLEIFE,
Plaintiffs-Respondents,
v.
MARQUIP,
INC., a domestic
business
corporation and
ODYSSEY
TRAVEL, INC., a
domestic
business corporation,
Defendants-Appellants.
APPEAL
from a judgment of the circuit court for Price County: GARY L. CARLSON, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Marquip, Inc., and Odyssey
Travel, Inc., (collectively Marquip) appeal a judgment awarding Richard
Schleife $9,000 for five months back wages.
The trial court found that an employment contract between the parties
commenced October 14, 1991, and that Schleife did not waive his right to back
wages between that date and March 23, 1992.
Marquip argues that Schleife was not employed during that time because
Schleife failed to fulfill preconditions of the contract, did not meet the IRS
definition of an employee, provided no services or benefit to his employer and
because Odyssey Travel, Inc. was not able to conduct business during the dates
in question. Marquip further argues
that Schleife waived his right to wages for the months in question by failing
to make a demand for payment until he filed this lawsuit. We reject these arguments and affirm the
judgment.
Schleife
was a travel agent operating his own business known as Odyssey Travel out of
his home. Marquip bought Odyssey Travel
from Schleife and, in a single transaction, agreed to hire him to work for the
new entity, Odyssey Travel, Inc. The
employment contract indicated that Schleife's employment would begin October
14, 1991. After the contracts were
signed, new quarters were constructed to house the new business. In the interim, Schleife maintained the
business out of his home until March 1992.
It
is for the trial court and not this court to resolve conflicting inferences and
to determine the weight of the evidence and the credibility of witnesses. Fidelity & Deposit Co. v. First
National Bank, 98 Wis.2d 474, 485, 297 N.W.2d 46, 51 (Ct. App.
1980). When reviewing a trial court's
factual findings, this court's duty is to affirm those findings unless they are
clearly erroneous. Section 805.17(2), Stats.
Here, the contract contained various preconditions to the employment
including a medical exam, a request for an educational history and references,
and a confidential disclosure statement.
Schleife presented sufficient evidence to show that Marquip waived the
preconditions. Schleife indicated to
Marquip that he was willing to take a medical exam and was told that Marquip
would let him know when to have the exam.
Schleife complied in March 1992 when a medical exam was requested. Schleife complied with the preconditions of
an educational history and references by submitting his resume. Schleife was told by Marquip that he did not
need to comply with the reference requirement because they knew him as a local
person. No confidentiality statement
was prepared for Schleife to sign until March 1992, at which time he signed
it. This evidence supports the trial
court's finding that Marquip waived the preconditions stated in the contract.
The
IRS test for determining whether a person is an employee is not
dispositive. Marquip provides no
authority for its assertion that this court is required to review the IRS
standards in determining the date the employment began. Whether the IRS recognized Schleife as an
employee rather than an independent contractor for tax purposes is not the same
question as whether the employment contract between these parties commenced on
October 14, 1991.
The
record does not support Marquip's argument that Schleife did not perform
services or provide any benefits to Marquip under the terms of the
contract. The trial court found that
Schleife was asked to perform services and did perform all services asked of
him on the dates in question. He
maintained the business of Odyssey Travel for the benefit of Odyssey Travel,
Inc., the successor corporation, and transferred the accounts to Odyssey
Travel, Inc., when requested to do so.
He signed a document for his employer as the "ticket
qualifier" of the new entity.
Odyssey Travel, Inc., needed Schleife to sign this document because only
Schleife qualified as a ticket qualifier by virtue of having two years
experience selling to the public.
Schleife also attended a meeting on behalf of Odyssey Travel, Inc., at
his employer's request.
Marquip
contends that it was economically impossible for it to employ Schleife during
this time because it was not yet in business.
Odyssey Travel, Inc., was conducting business through its employee,
Schleife, who maintained the client base for his employer until the new offices
were completed. Odyssey Travel, Inc.,
was formally incorporated one month before the employment contract came into
effect. Although Odyssey Travel, Inc.,
was not licensed at that time, the employment contract did not require
licensing as a precondition.[1] It is not unusual for a new business to
employ people before it is open for business and to experience negative cash
flow during the early months of its existence.
Marquip was eventually able to conduct business. Its temporary inability to conduct business
when the new entity was created does not establish that it was unable to
conduct the business for which Schleife was hired.
Finally,
sufficient evidence supports the trial court's finding that Schleife did not
waive his right to wages during the time in question. A waiver is an intentional relinquishment of a known right. Bank of Sun Prairie v. Opstein,
86 Wis.2d 669, 681, 273 N.W.2d 279, 284 (1979). Intent to waive is an essential element of waiver. Id. Schleife's conduct does not indicate any intent to waive
compensation for months of work.
Relying on a partial quotation from Davies v. J.D. Wilson Co.,
1 Wis.2d 443, 467, 85 N.W.2d 459, 471 (1957), Marquip argues that acceptance of
wage payments without objection constitutes a waiver of any right to previous
compensation. The statement in Davies,
in its entirety, holds that the waiver applies if the payments are accepted
"knowing that the employer regards them as payment in full." The trial court's finding that Schleife did
not waive his right to compensation is not clearly erroneous. See § 805.17(2), Stats.
By
the Court.--Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.