Clifton Franklin v. Fountain Group Adjusters, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-724

CLIFTON FRANKLIN
VERSUS

FOUNTAIN GROUP ADJUSTERS, L.L.C.

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APPEAL FROM THE
PINEVILLE CITY COURT
PARISH OF RAPIDES, NO. 2016CV00229
HONORABLE GARY K. HAYS, CITY COURT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

WRIT GRANTED. JUDGMENT REVERSED IN PART, RENDERED IN
PART, AND REMANDED.

David F. Rutledge

330 Settlers Trace, Suite A

Lafayette, LA 70508

(337) 484-1529

COUNSEL FOR PLAINTIFF/APPLICANT:
Clifton Franklin

Stacy C. Auzenne

Auzenne Law Firm, L.L.C.

P. O. Box 11817

Alexandria, LA 71315-1817

(318) 880-0087

COUNSEL FOR DEFENDANT/RESPONDENT:
Fountain Group Adjusters, LLC

KYZAR, Judge.

The Plaintiff/Relator, Clifton Franklin, seeks supervisory writs from the
judgment of the Pineville City Court, Parish of Rapides, which denied his motion
for summary judgment filed against the Defendant/Respondent, Fountain Group
Adjusters, LLC. For the reasons set forth below, we grant the writ, reverse the
judgment in part, render in part, and remand for further proceedings consistent
herewith.

FACTS AND PROCEDURAL HISTORY

Mr. Franklin entered into a contract with Fountain Group Adjusters, LLC,
(Fountain) to provide insurance adjusting services associated with damages claims
arising from Superstorm Sandy. The amount of compensation to be received for
his work was set forth in the contract executed between Mr. Franklin and Fountain;
Mr. Franklin being identified in the contract as the independent contractor, referred
to as “IC,” and Fountain being identified in the contract as “FG,” in the following
provision:

COMPENSATION

5. IC shall be entitled to compensation for performing those
tasks and duties related to the adjustment of insurance
claims equal to 65% of FG’s compensation based on the
current applicable Fee Schedule, copies of which will be
provided by FG to IC from time to time.

Note: FG has the right to apply compliance penalties.
You will be notified of the penalty and the reason for
such penalty.

6. Such compensation shall be paid to IC on a weekly basis
after FG has received compensation from the client for
service fee.

Mr. Franklin avers that he was asked to sign a second contract, identical to

the first, because Fountain could not locate its original copy of the contract. The

pertinent provisions are the same in both contracts, with the exception that the
second contract calls for compensation for claims adjusting services at 75%, rather
than 65%. Mr. Franklin, however, is only asserting a claim for 65% commission.
The two contracts, attached to Mr. Franklin’s motion for summary judgment, are
dated August 28, 2012 and December 4, 2012.

During this time, Mr. Franklin was employed by Claims One.’ Fountain
also entered into a contract with Claims One. Below is a portion of that contract,
with Claims One identified as an independent contractor, referred to as “IC,” and
Fountain being identified in the contract as “FG,” also setting forth compensation
for services, in the following provision:

COMPENSATION

5. IC shall be entitled to compensation for performing those
tasks and duties related to the adjustment of insurance
claims equal to 10% of FG’s compensation based on the
current applicable Fee Schedule, copies of which will be
provided by FG to IC from time to time.

Note: FG has the right to apply compliance penalties.
You will be notified of the penalty and the reason for
such penalty.

6. Such compensation shall be paid to IC on a weekly basis
after FG has received compensation from the client for
service fee.

It is undisputed that Mr. Franklin performed adjusting services pursuant to
the contract from 2012 through some point in 2014. It is also undisputed that
through third parties, Fountain received $327,644.00 for adjusting services
performed by Mr. Franklin, through his employment with Claims One. Fountain

paid Claims One seventy-five percent (75%) of that total, equaling $245,737.00,

which is the total amount of adjuster commission earned by work performed by

‘Claims One was also referred to as Claimsone and Claims 1 One and various other
similar titles in the writ application and documents attached thereto.

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Mr. Franklin through Claims One, representing the 65% owed to Mr. Franklin and
the 10% due Claims One. It is further undisputed that Mr. Franklin did, in fact,
receive a significant amount of the money he was owed through his contract with
Fountain directly from Claims One, which was paid by Fountain to Claims One on
Mr. Franklin’s behalf.

Then, on May 2, 2016, Mr. Franklin filed suit against Fountain, claiming
that, although he had received much of what he had earned under the contract, he
had not been fully compensated. Subsequently, Mr. Franklin filed a motion for
summary judgment, arguing that the contract clearly provided that Fountain was to
pay him a certain amount, and pursuant to his affidavit, he was not paid the full
amount. He asked that the trial court enter judgment in his favor against Fountain,
as follows: “summary judgment should be granted against Fountain Group
Adjusters, LLC for breach of contract and damages in the amount of $28,395.74
plus legal interests [sic] from date of original demand and court costs.”
Alternatively, Mr. Franklin requested that summary judgment be granted against
Fountain as to the issue of liability concerning the breach of contract claim.

Fountain filed an opposition to the motion for summary judgment
contending that it was not liable to Mr. Franklin. Fountain stated that it had
entered into a separate contract with Mr. Franklin’s employer, Claims One,
whereby Claims One would receive 10% of the amount of payment Fountain
received for the adjusted claims, similar to the 65% provided for in Mr. Franklin’s
contract. Fountain asserted that it paid Mr. Franklin’s employer, Claims One, the
full amount due to Mr. Franklin, minus a 10% “hold back” until all audits were
completed; all of which, Fountain claimed, was standard practice in the industry.
Fountain expounded on the purported industry standard, claiming that the

contractor, Fountain herein, would pay the employer, 1.e., Claims One, and the

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adjuster, i.e., Mr. Franklin, the amount due to both of them and that Claims One
would then pay the employee, Mr. Franklin, the portion of that total amount that is
his due.

In this case, however, Claims One did not pay Mr. Franklin the full amount
due him, even though Fountain had allegedly sent the earned commissions to
Claims One for it to pay Mr. Franklin. Based upon this fact, Fountain asserted that
the true party liable to Mr. Franklin was Claims One, not Fountain.” In addition to
attaching an affidavit of Keith Fountain, the sole owner of Fountain, Fountain
attached documentation to its opposition, including various business records and
emails.

Mr. Franklin filed a reply brief in response to the opposition and moved for
the trial court to strike the documentation attached to Fountain’s motion as hearsay.
At the hearing on the motion for summary judgment, however, it was made clear to
the court that the objectionable materials sought to be excluded were certain emails
and direct mail from Claims One to Fountain, as shown by the following excerpt of
argument by counsel for Mr. Franklin:

I feel that’s not an argument I have to make uh, but it is clearly
hearsay and we exclude - - we would request that it be excluded as it

is hearsay, it’s not authenticated either, Your Honor. There’s no

authentication from this other gentlemen [sic] that allows it to come in.

He is not a party by the way the defendant just - - just said uh, my

counterpart just said that there has not been an answer, to
acknowledge, filed in the court.

But there is a letter sent to the defendant, that the defendant
submitted to the court, uh but you - - in any regard, it doesn’t matter,
the declarant is not here testifying to the truth of the matter asserted,
therefore, it’s hearsay.

* In the opposition memorandum filed in the city court, Fountain stated that Claims One
had been added as a third party to the litigation; however, no pleading attached to the instant writ
application shows this information to be true.

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After the hearing on the motion for summary judgment, counsel for Mr.
Franklin requested a specific ruling as to the hearsay issue, and the trial court
answered as follows:

[A]s to the hearsay, um, the Court has taken that and looked at it [],
with the hearsay issue, I do believe for the purposes of this hearing
that we’re having this morning, [] but the Court really didn’t look at
that to make its decision so the Court is going to actually make a
ruling on the hearsay issue, I do believe that it is hearsay.

Though it ruled to disregard the hearsay items in Fountain’s submission, the
trial court denied Mr. Franklin’s motion for summary judgment, finding genuine
issues of material fact that must first be resolved. Mr. Franklin thereafter filed the
instant writ application, asserting one assignment of error: “The trial court erred in
denying the applicant’s Motion for Summary Judgment; there was no evidence to
the contrary and therefore, no genuine issues of material fact.”

OPINION

We review a trial court’s granting or denial of a motion for summary

judgment de novo according to well established appellate principles.

Appellate review of the granting of a motion for summary judgment is
de novo, using the identical criteria that govern the trial court’s
consideration of whether summary judgment is appropriate. Bonin v.
Westport Ins. Corp., 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910;
Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345
(La.1991). A motion for summary judgment is properly granted only
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show there is
no genuine issue of material fact, and the mover is entitled to
judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA
Ins. Co., 06-0363, p. 4 (La. 11/29/06), 950 So.2d 544, 546-547. A
fact is material if it potentially insures or precludes recovery, affects a
litigant’s ultimate success, or determines the outcome of the legal
dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764,
765 (per curiam)(citing Smith v. Our Lady of the Lake Hosp., Inc., 93-
2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of
material fact is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need
for trial on that issue and summary judgment is appropriate. Hines,
876 So.2d at 765-66.

Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 7-8 (La. 7/2/12), 94 So.3d 750,
755.

Louisiana Code of Civil Procedure Article 966 provides that summary
judgment procedure is favored and that it “is designed to secure the just, speedy,
and inexpensive determination of every action, except those disallowed by Article
969.” La.Code Civ.P. art. 966(A)(2). It further provides that summary judgment
“shall be granted if the motion, memorandum, and supporting documents show that
there is no genuine issue as to material fact and that the mover is entitled to
judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3). Although the burden
of proof rests with the mover, if the mover will not bear the burden of proof at trial
then he need only point out to the trial court “the absence of factual support for one
or more elements essential to the adverse party’s claim, action, or defense.”
La.Code Civ.P. art. 966(D)(1). Once this occurs, the burden shifts to “the adverse
party to produce factual support sufficient to establish the existence of a genuine
issue of material fact or that the mover is not entitled to judgment as a matter of
law.” Ia.

The resolution of Mr. Franklin’s motion for summary judgment herein rests
with the interpretation of the contract entered into between the parties. Mr.
Franklin claims the contract is clear and free from ambiguity and that the terms of
the contract clearly entitle him to recover the sums allegedly due, directly from
Fountain. Thus, he claims that Fountain breached the contract, and he is entitled to
summary judgment for the unpaid amounts, asserted to be $28,395.74, plus legal
interest and court costs. On the other hand, Fountain asserts that the contract and
payment procedure is a standard in the industry, such that the parties understood
that payments due to Mr. Franklin for work performed were to be routed through

his employer, Claims One, which would deduct the 10% due it, then remit to Mr.

Franklin his 65% commission. Accordingly, Fountain asserts that it did not breach
its contract with Mr. Franklin, as it paid the full 75% to Claims One.

The essential elements of a breach of contract claim are the existence

of a contract, the party’s breach thereof, and resulting damages.

Favrot v. Favrot, 10-0986, pp. 14 15 (La.App. 4 Cir. 2/9/11), 68

So.3d 1099, 1108-09 (citations omitted). The party claiming the

rights under the contract bears the burden of proof. /d., 10-0986, p.

15, 68 So.3d at 1109.

1100 South Jefferson Davis Parkway, LLC v. Williams, 14-1326, p. 5 (La.App. 4
Cir, 5/20/15), 165 So.3d 1211, 1216, writ denied, 15-1449 (La. 10/9/15), 178 So.3d
1005.

“When the words of a contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search of the parties’
intent.” La.Civ.Code art. 2046. A contract is interpreted by a determination of the
common intent of the parties, giving the contractual words their generally
prevailing meaning. La.Civ.Code art. 2045; La.Civ.Code art. 2047; Amend v.
McCabe, 95-316 (La. 12/1/95), 664 So.2d 1183.

At the hearing on his motion for summary judgment, Mr. Franklin was
required to present evidence to support his claim before the burden could shift to
Fountain. 1/100 South Jefferson Davis Parkway, LLC, 165 So.3d 1211. To do so,
Mr. Franklin attached various documents to his motion and noted that he submitted
Requests for Admissions to Fountain during discovery. Mr. Franklin asserted that
Fountain never responded to the admissions requests. The documentation attached
to Mr. Franklin’s motion included these unanswered Requests for Admissions, in
addition to the contracts with Fountain that Mr. Franklin signed. Fountain filed no
objection. Therefore, Mr. Franklin contends that the requests for admissions
should be deemed as true, citing La.Code Civ.P. art. 1467(A) (emphasis added),

which reads:

Each matter of which an admission is requested shall be
separately set forth, The matter is admitted unless, within thirty

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days after service of the request, or within such shorter or longer
time as the court may allow, the party to whom the request is
directed serves upon the party requesting the admission a written
answer or objection addressed to the matter, signed by the party
or by his attorney. The written answer or reasons for objection to
each request for admission shall immediately follow a restatement of
the request for admission to which the answer or objection is
responding. If objection is made, the reasons therefor shall be stated.
The answer shall specifically deny the matter or set forth in detail the
reasons why the answering party cannot truthfully admit or deny the
matter. A denial shall fairly meet the substance of the requested
admission, and when good faith requires that a party qualify his
answer or deny only a part of the matter of which an admission is
requested, he shall specify so much of it as is true and qualify or deny
the remainder. An answering party may not give lack of information
or knowledge as a reason for failure to admit or deny unless he states
that he has made reasonable inquiry and that the information known
or readily obtainable by him is insufficient to enable him to admit or
deny. A party who considers that a matter of which an admission has
been requested presents a genuine issue for trial may not, on that
ground alone, object to the request; he may, subject to the provisions
of Article 1472, deny the matter or set forth reasons why he cannot
admit or deny it.

In St. Julien v. Landry, 12-100 (La.App. 3 Cir. 6/20/12), 94 So.3d 976, the
defendant moved for summary judgment, averring that the plaintiff could not prove
that the defendant was the owner of a dog which had caused the plaintiff's
damages. In finding that summary judgment was improperly granted, this court
observed the following:

We review the grants of a summary judgment de novo. In
reviewing the case before us, we first note that the record does not
contain any response filed by Defendant to Plaintiffs Requests for
Admissions of Fact. Under the provisions of La.Code Civ.P. art.
1467(A), a fact is deemed admitted if the responding party fails to
timely “serve[ ] upon the party requesting the admission” his written
answer or objection. A responding party ordinarily has fifteen days to
file his response or objection, however, La.Code. Civ.P. art. 1467(A)
also provides that “a defendant shall not be required to serve answers
or objections before the expiration of thirty days after service of the
petition upon him.” Plaintiff filed suit on November 29, 2010, and
attached to her Petition to be served upon Defendant a Request for
Admissions of Facts and Interrogatories. Defendant did not file an
Answer until April 6, 2011. From the record before us, we are able to
determine that Defendant failed to timely answer or object to
Plaintiff's Requests for Admissions of Fact and they are therefore
deemed to be admitted. The trial judge should have considered these

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admissions of fact, as directed in La.Code. Civ.P. art. 966, when
deciding whether to grant or deny Defendant’s motion for summary
judgment. The facts deemed to be admitted by Defendant are contrary
to Defendant’s representations in her affidavit.

Thus, faced with the facts deemed to be admitted by Defendant

and the contradictory facts asserted in her affidavit, the trial_judge, in

order to reach his decision, would have had to engage in weighing the

facts. Such is not appropriate on summary judgment, as this by its

very nature indicates there are genuine issues of material facts in

dispute. Moreover, at this stage of the proceedings, Plaintiff, relying

on the facts deemed to be admitted by Defendant, shifted the burden

of proof on the Motion for Summary Judgment to Defendant.

Id. at 979 (alteration in original).

Similarly, in the instant case, the record indicates that no responses were
filed by Fountain to the Requests for Admissions, nor did Fountain seek to have
the admissions set aside by the trial court. Therefore, the trial court should have
considered the Requests for Admissions as admitted for purposes of the hearing on
the motion for summary judgment in the instant case. La.Code Civ.P. art. 1476;
La.Code Civ.P. art. 966. We do so here and include the admissions in our review
of the evidence submitted to the trial court for purposes of summary judgment.
The following Requests for Admissions, amongst others, were submitted by Mr.

Franklin to Fountain:

REQUEST FOR ADMISSIONS NO. 3:

Admit or deny that in 2012 Fountain Group hired Clifton
Franklin as an Independent Contractor to provide insurance claim
adjusting services for which Fountain Group agreed to compensate
Clifton Franklin for performing said adjustment of insurance claims
by paying him equal to 65% of Fountain Group’s compensation based
on the applicable Fee Schedule.

REQUEST FOR ADMISSIONS NO. 3:

Admit or deny that Fountain Group never directly compensated
Clifton Franklin in full in accordance with the 2012
contract/agreement to hire Clifton Franklin after Clifton Franklin did

perform his job by adjusting those claim assignments assigned to him
on behalf of Fountain Group from 2012-2014.

REQUEST FOR ADMISSIONS NO. 6:

Admit or deny that Fountain Group received compensation
related to the adjustment of insurance claims Clifton Franklin adjusted
from 2012-2014 after he was hired by Fountain Group as an
Independent Contractor in 2012 to provide insurance claim services
on behalf of Fountain Group.

REQUEST FOR ADMISSIONS NO. 7:

Admit or deny that Clifton Franklin did perform his job by
adjusting all claim assignments assigned to him from 2012-2014 on
behalf of Fountain Group, after he was hired by Fountain Group as an
Independent Contractor in 2012 to provide insurance claim adjusting
Services.

REQUEST FOR ADMISSIONS NO. 11:

Admit or deny that from 2012-2014, Clifton Franklin did
perform his job of adjusting all claim assignments assigned to him on
behalf of Fountain Group, after he was hired by Fountain Group as an
Independent Contractor in 2012 to do so, to the satisfaction of
Fountain Group in accordance with their agreement.

REQUEST FOR ADMISSIONS NO. 12:

Admit or deny that Clifton Franklin is still owed compensation
for his services of adjusting claim assignments assigned to him on
behalf of Fountain Group from 2012-2014, after he was hired by
Fountain Group as an Independent Contractor in 2012 to provide
insurance claim adjusting services.

Mr. Franklin also filed an affidavit in support of the motion for summary
judgment. In addition to verifying the fact that he had entered into the agreement
with Fountain, Mr. Franklin also averred:

In accordance with my normal course of business practice and
accounting, | am owed from Fountain Group Adjusters, LLC,
outstanding compensation for thirty-six (36) claims | successfully
adjusted in the amount of $28,395.74 representing SIXTY-FIVE
PERCENT (65%) of the agreed contact rate for those thirty-six (36)
claims I successfully adjusted on behalf of Fountain Group Adjusters
LLC.

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In response, the sole owner of Fountain, Mr. Fountain, also submitted an
affidavit, his in support of Fountain’s opposition to Mr. Franklin’s motion for
summary judgment. Mr. Fountain’s affidavit does not contradict the facts set forth
in Mr. Franklin’s affidavit nor the Requests for Admissions. The only exception
being that Mr. Fountain states, “13. At all times pertinent herein, CLIFF
FRANKLIN signed a FOUNTAIN GROUP agreement that he would be paid
sixty-five (65%) percent of all adjusting commissions earned, which would be paid
by FOUNTAIN GROUP to CLAIMSONE.” However, a thorough reading of the
referenced contract between Mr. Franklin and Fountain shows that it does not
contain a provision directing that Fountain was going to pay Mr. Franklin’s
commission to Claims One. The two contracts between the parties, attached to Mr.
Franklin’s motion for summary judgment, are dated August 28, 2012 and
December 4, 2012. Neither of these contracts provides that Fountain was to pay
Mr. Franklin’s commission to Claims One, rather than to Mr. Franklin himself.

“(W]hen a contract can be construed from the four corners of
the instrument without looking to extrinsic evidence, the question of
contractual interpretation is answered as a matter of law.” Sims v.
Mulhearn Funeral Home, Inc., 07-0054, p. 10 (La.5/22/07), 956 So.2d
583, 590. “Interpretation of a contract is the determination of the
common intent of the parties.” La. Civ.Code art. 2045. The
reasonable intention of the parties to a contract is to be sought by
examining the words of the contract itself, and not assumed. Sims,
07-0054 at p. 7, 956 So.2d at 589; McConnell v. City of New Orleans,
35 La. Ann. 273 (1883). “When the words of a contract are clear and
explicit and lead to no absurd consequences, no further interpretation
may be made in search of the parties’ intent.” La. Civ.Code art. 2046.
Common intent is determined, therefore, in accordance with the
general, ordinary, plain and popular meaning of the words used in the
contract. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co.,
93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. Accordingly, when a
clause in a contract is clear and unambiguous, the letter of that clause
should not be disregarded under the pretext of pursuing its spirit, as it
is not the duty of the courts to bend the meaning of the words of a
contract into harmony with a supposed reasonable intention of the
parties. See Maloney v. Oak Builders, Inc., 256 La. 85, 98, 235 So.2d
386, 390 (1970); McConnell, 35 La. Ann. at 275. Most importantly, a
contract “must be interpreted in a common-sense fashion, according to

1]

the words of the contract their common and usual significance.”
Lambert v. Maryland Cas. Co., 418 So.2d 553, 559 (La.1982).

Prejean v. Guillory, 10-740, pp. 6-7 (La. 7/2/10), 38 So.3d 274, 279 (alteration in
original).

Thus, even with full consideration of the affidavit of Mr. Fountain, this court
concludes that the trial court erred in failing to grant summary judgment in favor of
Mr. Franklin for the amounts owed under the contract. As stated above, Mr.
Franklin objected to the documentation attached to the opposition brief filed in the
trial court. Further, the trial court granted Mr. Franklin’s motion that certain
unspecified attachments be struck; although it is clear to this court that those
attachments intended to be struck were the emails and text messages between
Fountain, Claims One, and Claims One’s owner, John Melvan. We note that
Fountain has not filed its own writ application arguing that the trial court erred in
making this interlocutory ruling.

Furthermore, we find that the contract between Mr. Franklin and Fountain
provided that Fountain was to pay Mr. Franklin the commissions that he earned.
Nowhere in the contract between Fountain and Mr. Franklin is there a provision
that states Fountain is to pay Mr. Franklin’s commissions to a third party, who is
unnamed in the instrument and is not a party to the contract. The contract between
Mr. Franklin and Fountain expressly provides that the terms of that agreement are
not to be altered unless such alteration is set forth in writing between them. While
there may be a separate contract between Fountain and the third party, Claims One,
Mr. Franklin was not a party to that contract, just as Claims One was not a party to
Mr. Franklin’s contract with Fountain. Therefore, the provisions of the contract
between Fountain and Claims One cannot be used by Fountain to alter the terms of
its contract with Mr. Franklin. See Prejean, 38 So.3d 274. Further, as noted by Mr.

Franklin, the fact that Fountain had already paid Claims One the amount due to Mr.

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Franklin does not affect Fountain’s liability to Mr. Franklin under the contract, nor
does the custom in the industry override the express provisions of that contract.
When the language of a contract or clause is unambiguous, “the letter of that clause
should not be disregarded under the pretext of pursuing its spirit[.]” Encana Oil &
Gas (USA) Inc. v. Brammer Eng’g, Inc., 51,045, p. 6 (La.App. 2 Cir. 11/16/16),
209 So.3d 995, 1000, writ denied, 17-242 (La. 3/31/17), 217 So.3d 361.
Accordingly, as to the question of liability, we find summary judgment in favor of
Mr. Franklin to be appropriate.

Next, having found that per the express provisions of the contract Mr.
Franklin is entitled to direct payment from Fountain of any sums owed but not yet
received, we turn to the amount claimed. Mr. Franklin asserts that he is owed
$28,395.74. However, we note that the proof of that amount is limited to the
conclusory statement of Mr. Franklin, himself, in his own affidavit in support of
his summary judgment motion. The facts, as presented, clearly indicate that of the
money paid by Fountain to Claims One, Mr. Franklin did in fact receive from
Claims One a significant amount of the total payment owed to him. Fountain’s
filings indicate a total of $245,737.00 was paid to Claims One, representing Claims
One’s 10% override and Mr. Franklin’s 65% commission. Of the $245,737.00
paid by Fountain, it is not clear from the record what amount Mr. Franklin actually
received from Claims One, and thus, how much money he is actually still owed.
Mr. Franklin’s motion for summary judgment contains the foliowing conclusion:

In accordance with the facts, law and evidence enumerated
herein, summary judgment should be granted against Fountain Group
Adjusters, LLC for breach of contract and damages in the amount of
$28,395.74 plus legal interests [sic] from date of original demand and
court costs. Alternatively, summary judgment should be granted

against Fountain Group Adjusters, LLC as to the issue of liability
concerning breach of contract.

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There is no documentation in the record that demonstrates the accuracy of
the sum claimed by Mr. Franklin. Accordingly, although we conclude that
summary judgment should be granted in favor of Mr. Franklin on the issue of
liability for any amounts unpaid pursuant to the subject contract, we find that there
is a material issue of fact as to the actual amount due to Mr. Franklin from
Fountain pursuant to his work performed under the terms of the contract. Further,
Fountain admits that there is also a hold back applied to the commission payments
until a final audit is done, and thus we find there is a material issue of fact in
existence as to the effect thereof on the amount due Mr. Franklin.

DISPOSITION

For the reasons assigned, we reverse the judgment of the trial court denying
summary judgment in favor of the Plaintiff, Clifton Franklin, and render summary
judgment in his favor on the issue of the liability of the Defendant, Fountain Group
Adjusters, LLC, for payment of unpaid commissions due Plaintiff, and remand to
the trial court for a determination of the amount owed pursuant thereto, and for the
resolution of ail issues remaining not presently before this court.

WRIT GRANTED; JUDGMENT REVERSED IN PART; RENDERED

IN PART; AND REMANDED.

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