THOMPSON, Circuit Judge.
This case arises from what the district court characterized as "the worst-papered set of arrangements [it had] ever seen." Chuck Meadors — along with his company, Chuck Meadors, Inc. (collectively, Meadors) — appeals from the entry of summary judgment in favor of Continental Structural Plastics, Inc. (CSP) and from the denial of his motion for summary judgment. We reverse in part and affirm in part.
Because we write primarily for the parties and the district court judge — all of whom are familiar with the facts — we offer only a brief summary of the relevant background before cutting to the chase. In August 2005, Meadors entered into a written agreement with ADA Solutions, Inc. (ADA), under which Meadors acted as ADA's agent in negotiations with its suppliers. This agreement specified the compensation Meadors received from ADA for his services. Shortly after executing this contract, Meadors entered into a written agreement with CSP, an ADA supplier, in which CSP agreed to pay Meadors a 5% commission on all sales by CSP to ADA. ADA says it was unaware Meadors had made this deal until later. At first, everything went smoothly.
That all changed in June 2006, when CSP requested a meeting with ADA. At this meeting, CSP indicated that its price would be lower if it did not have to pay Meadors the 5% commission. Upon learning this news, ADA decided that Meadors should no longer accept the commission from CSP while acting as ADA's agent. From that point until ADA terminated Meadors in 2012, CSP did not pay Meadors his commission under their contract.
Meadors filed suit against CSP, alleging breach of contract (among other claims).
Before addressing the district court's waiver analysis, we first pause to explain why we need not concern ourselves with third-party-beneficiary principles. Although CSP had not asserted its status as a third-party beneficiary below and neither party discussed it in the summary judgment papers, the district court concluded in its decision that CSP was an intended third-party beneficiary of an agreement between ADA and Meadors, which stated that Meadors would no longer accept a commission from CSP.
The district court assumed that it could only address the issue of waiver after first determining that CSP was a third-party beneficiary of an agreement between Meadors and ADA. The primary focus of the parties' briefing on appeal is the propriety of the district court's
In conducting our de novo review of the district court's summary judgment ruling,
Typically, the question of whether a waiver has occurred is for the factfinder to determine.
In its discussion of the factual background of this case, the district court stated that, either during or shortly after the June 2006 meeting between ADA and CSP, John Flaherty, ADA's president, issued Meadors an ultimatum: he could either receive payment under his agreement with ADA or continue to receive his commission from CSP; Meadors could not receive both. According to the district court, "[f]aced with this choice, Meadors relinquished [his] claim to the five percent commission on CSP's sales, opting instead to receive a payment as the purchasing agent of ADA." The district court concluded that "[t]his knowing and voluntary choice [was] sufficient to effect a waiver of the right to continue to receive commission payments from CSP." We cannot go along with this reasoning because its factual premise was disputed.
It was not an undisputed fact that Meadors was presented with an ultimatum and chose to forgo his contractual right to a commission from CSP. At his deposition, Meadors testified that, at some point after the June 2006 meeting between ADA and CSP, he was told by Scott Ober, vice president and co-owner of ADA, that he could no longer accept the commission from CSP. According to Meadors, he protested to Ober, "You can't do that" because "I have a legal and binding contract" with CSP. Ober was unmoved, telling Meadors: "I did it. It's over." Similarly, while acknowledging that he was aware that he was no longer receiving a commission, Meadors also testified that he never volunteered, agreed, or consented to the cessation of the CSP commission. Viewing the facts in the light most favorable to Meadors — as we are required to do when analyzing the grant of summary judgment in favor of CSP,
We reach the same conclusion with respect to a waiver arising from inconsistent conduct. Although it is undisputed that Meadors continued to work for ADA without receiving his 5% commission from CSP for over five years, he represents in his affidavit that he "repeatedly voiced [his] objections to the unilateral termination of [his right to the CSP commission] to [David] Murtha[, the plant manager of one of CSP's facilities,] as well as other managers at CSP."
For these reasons, the district court erred in granting summary judgment in CSP's favor on the ground that Meadors waived his contractual right to a commission from CSP.
The evidence in this record is not one sided.
Because of the existence of genuine issues of material fact as to whether Meadors waived the commission expressly or by inconsistent conduct, Meadors was not entitled to summary judgment in his favor. The district court properly denied his summary judgment motion.
In sum, the fact-intensive nature of the waiver determination under Ohio law cuts both ways in this case; on this conflicting evidentiary record, the factfinder must resolve the question of whether Meadors waived his contractual right to receive a commission from CSP.
According to CSP, this passage establishes that Meadors made a "knowing and voluntary choice" to waive his right to receive the commission from CSP. We think that is not necessarily so, and a jury could find otherwise.
Although Meadors was asked whether he continued to perform "knowingly and voluntarily," the examiner posed an additional question before Meadors could respond. That question simply asked whether Meadors