Facts

In 2005, Randy Bendel entered into discussions with George Marshall to work for Marshall's company, TM 1031 Exchange Inc. On Sept. 27, in an email, TM 1031 offered Bendel a position with a $6,000 base pay and a $4,000 potential bonus, based on TM 1031's performance. On Oct. 12, Bendel began working for TM 1031 as an independent contractor and under the terms of the email offer. In December, although Bendel had not yet generated any revenue for TM 1031, Bendel received a bonus pursuant to the terms of the email. On Nov. 15, 2006, TM 1031 presented Bendel with a draft performance measure. On Dec. 26, TM 1031 terminated Bendel and paid him through the rest of the year. Bendel sued alleging breach of contract and seeking to recover an unpaid bonus. TM 1031 filed a cross-claim for breach of contract.

PLAINTIFF'S CONTENTIONS:
Bendel claimed that, during initial discussions, he expressed a concern about TM 1031's lack of liability insurance and indicated that he would only work on net leased assets until such insurance was obtained. Bendel alleged that on Jan. 1, 2006, he was converted from an independent contractor to an employee under the terms of the Sept. 27 email. Bendel alleged that there was an understanding that he would work on the less profitable investments, assisting in the overall operations of TM 1031.

Bendel alleged that in 2006, he negotiated several lucrative contracts with real estate brokerages and property owners, which would continue to generate income for TM 1031 and complemented TM 1031's primary activities, including the sale of tenant-in-common investments. Bendel further alleged that the Nov. 15 draft performance measure amounted to a breach of the agreement between the parties that had been formed by the original Sept. 27 email and the conduct of the parties over the past year. He alleged that the measure allocated to Bendel all of the risk of finding new developers and eliminated the bonuses promised in the original offer. He further alleged other breaches of the agreement, and claimed that TM 1031 requested that he "launder" money.

DEFENDANT'S CONTENTIONS:
TM 1031 alleged that Bendel was terminated for cause. TM 1031 alleged that Bendel refused to produce or yield any work product, failed to timely or efficiently complete assignments, stole proprietary material, practiced law without a license, performed poorly, was frequently absent or tardy, was disheveled and appeared to be under the influence of some substance, was disrespectful to co-workers, and used the Internet to browse pornographic sites and order drugs.

Damages

TM 1031 alleged the breach caused damages of $80,000.

Result

The court found in favor of the TM 1031 on the primary claim and Bendel on the cross-claim.

Other Information

FILING DATE: Nov. 20, 2007.