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Metromarketing Services3/2/2000
g Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985)).
THE "SALES REPRESENTATIVES" STATUTE
In its third and fourth issues, MSI co ntends that the trial court erred in granting summary judgment to HTT based on section 35.81, et seq. of the Texas Business and Commerce Code. This statute, entitled "Sales Representatives," governs contracts between "principals" and "sales representatives" as well as obligations for payment of commissions in the absence of a contract. See TEX. BUS. & COM. CODE ANN. §§ 35.82-35.83 (Vernon Supp. 1999). The statute not only prescribes the basic obligations of the principal but also sets forth the measure of damages for a principal's failure to pay commissions required by a contract or to otherwise comply with a contract's terms. See § 35.84. In the trial court, HTT asserted that because the contract between HTT and MSI was not in writing, it was not enforceable under this statute. In its third issue, MSI argues that the statute does not provide an affirmative defense to HTT as a "principal" because it was the legislature's intent in enacting the statute to provide protection to sales representatives and not to principals like HTT. Alternatively, in the fourth issue, MSI argues that a material question of fact exists as to whether MSI is a "sales representative" as that term is defined in the statute.
Notably, MSI did not bring a cause of action under the "Sales Representatives" statute nor did MSI seek to recover the statutory damages it provides. In fact, MSI maintains that it is not a "sales representative" as defined in the statute. If MSI had asserted a claim for affirmative relief under this statute, then it would have had to have established the statutory elements. Under that scenario, HTT, as a defendant, could have challenged MSI's claim by proving MSI's inability to establish at least one element of a prima facie case for recovery under the statute. MSI, however, made no such claim nor did it seek to invoke this statute as a basis for obtaining affirmative relief. Rather, it was HTT that introduced this statute into the litigation, seeking to use it as an affirmative defense to MSI's common law claim for breach of contract.
HTT's argument is based on the faulty premise that the statute bars the recovery of commissions due under agreements that are not reduced to writing. This notion is belied by the plain language of the statute , which allows a sales representative to recover commissions regardless of whether the agreement is written or unwritten. Section 35.82 requires any "contract between a principal and a sales representative under which the sales representative is to solicit wholesale orders within this state" to be in writing or in a computer based medium and "to set forth the method by which the sales representative's commission is to be computed and paid;" however, section 35.83 expressly requires the principal to "pay all commissions due the sales representative within thirty working days after the date of the termination" when an agreement that does not comply with section 35.82 is terminated. See § 35.83 (emphasis added). The latter provision clearly encompasses unwritten agr eements. Thus, the plain wording of the statute directly refutes HTT's contention that recovery of commissions is barred when the contract is not in writing.
In considering the merit of MSI's argument that HTT was not entitled to rely on the "Sales Representatives" statute as an affirmative defense, we note that several provisions of the statute afford protection to the sales representative while placing specific duties and obligations on the principal. This statutory framework strongly suggests a legislative inte
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