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In Wells Fargo, an employee sold crop insurance as a sales representative of this employer. The employer had adopted a written policy that it used, in part, to determine commissions for its employees, which stated that commissions would be earned when the premiums on the insurance had been paid. The employee left his employment, which led to a dispute over whether he was owed commissions on the insurance sold, but for which his employer had not yet been paid. The parties filed cross-motions for summary judgment on the issue of the employee's wage claim and the trial court entered judgment for the employee. The employer appealed.

On appeal, the employee first argued that the employer was judicially estopped from raising some of the arguments it was attempting to raise on appeal. The Court quickly dealt with these issues, reaffirming the distinction between inconsistent legal positions and alternative and contradictory legal positions. The Court then turned to the key issues in the case.


The general rule applied in this case, despite the existence of the written policy to the contrary, because the employer failed to show that the employee had never been informed of the written policy. This is an interesting legal conclusion because it limits the situations in which the exception may apply. Thus, an employer's proof that it and an employee have engaged in a course of conduct that demonstrates that a different compensation scheme over a period of years does not create a genuine issue of material fact regarding whether the exception applies, unless the employer can also demonstrate that the employee had some knowledge about the existence of this alternative compensation scheme.

However, the aspect of this case which will have wider application is the type of evidence that the Court relied upon when reaching this conclusion. In its decision, the Court relied heavily on the deposition of the employee's manager and an affidavit from the employee. However, those evidentiary materials had not been formally designated to the trial court. Instead, they were merely "included in materials submitted to the trial court." The Court held that these evidentiary materials were properly before the Court because the trial court had been apprised of the specific material upon which the employee relied, while noting the absence of an objection to these materials.

The Court's treatment of this evidence is instructive. Counsel should object to all evidentiary material not specifically designated. However, the Court's decision appears to support a liberal approach toward the more technical aspects of Trial Rule 56. Therefore, it will be of use to litigants who have failed to comply with all the technical requirements of that Rule.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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