Diving not always fun.

[bl6394]

What is the name of your state (only U.S. law)? MO

I entered into a contract and paid a Local Dive Shop (LDS) for professional development training - specifically a DiveCon Certificate (i.e. Divemaster Assistant Instructor certificate though SSI - the certificating agency). Several agreements where signed pursuant this contract: employment agreement, statement of understanding, etc. and $1500 was paid in consideration for this training.

The LDS breached the contract by terminating my participation in the training program for a frivolous reason - alleging that I violated company policy when I asked other LDS staff if they wanted to dive at a local spring on personal time for the purpose of developing diving skills.

No such policy exists in either the documents above or in any of the written policies available at the LDS.

Specifically, I'm alleging a breach of the employment agreement which promises that the LDS (employer) will not terminate its employment / training program for "arbitrary or capricious reasons." My argument will be that termination for an unwritten, unspoken, and patently unreasonable policy is both arbitrary and capricious - and specifically contrary to the language of the employment agreement. My damages are the sum I paid for the training.

I've sent a demand letter - and at the end of three weeks - will file in small claims court to recover the $1500 lost for the training program.

I'm naming the LDS owner - and the corporation under which he operates his diving business.

Question 1: the email terminating the program actually was sent by and in the name of his training program coordinator - although I assume it was at the sole direction of the LDS owner. Would it be appropriate to name the training coordinator in the suit as well?

Question 2: as the owner has organized his small business as a corporation - how much more difficult will it be to successfully garnish, assuming I win a judgement?

I assume that it would be pointless to attempt a wage garnishment against a corporation he operates. I may be able to locate one of his bank accounts on a check I wrote to him a year ago. In Missouri, is this bank account the only likely asset that I may attach?

 

[John_DFW]

Question 1: the email terminating the program actually was sent by and in the name of his training program coordinator - although I assume it was at the sole direction of the LDS owner. Would it be appropriate to name the training coordinator in the suit as well?

Question 2: as the owner has organized his small business as a corporation - how much more difficult will it be to successfully garnish, assuming I win a judgement?

The employee if acting within the scope of normal job duties is an authorized agent for the business. I see no reason to file against anyone else except the business.

You have to file against the registered agent at the address listed for the registered agent.

Worry about getting the money after you win

If they fail to pay within the time frame allowed by the court, a writ of execution for the sheriff's to seize property and sell to meet the debt is usually easier and cheaper than trying to get the money from wages or accounts.

 

[bl6394]

The employee if acting within the scope of normal job duties is an authorized agent for the business. I see no reason to file against anyone else except the business.

You have to file against the registered agent at the address listed for the registered agent.

Worry about getting the money after you win

If they fail to pay within the time frame allowed by the court, a writ of execution for the sheriff's to seize property and sell to meet the debt is usually easier and cheaper than trying to get the money from wages or accounts.

Thanks for the feedback. I'm getting the registered agent info from the state. Should have in time to complete filing the petition and have the agent served with process. Will follow your advise regarding the scope of litigation.

Regarding my attachment question... I've already got $27,000 worth of worthless orders and judgments of contempt against my ex-wife (unemployed / no assets). If I've learned anything in civil court, I don't bother filing - unless there is something I can collect.

 

[bl6394]

Three follow-up questions - if I may:

I've made an inquiry with the Sec. of State, and there are actually a gaggle of registered entities operating out of this little dive shop.

• A Closed Corp is at the center of this small business.
• The closed corp then owns (100%) two General Businesses.
• and has 6 Fictitious names registered.

Question 1: When filing, is it sufficient to name the Owner, the Corporation, and the Two General Businesses, "Doing Business As."

Question 2: In the closed Corp's annual registration report - the owner lists himself and his wife as President and Vice President respectively. I believe for the purpose of attaching assets (assuming I win), I'll want to name both the husband and wife as owners of this business - correct?

Question 3: The registered agent is an attorney - and trivial to serve. Is it sufficient to serve him alone - or do I need to have process served individually on the owners?

Thanks in advance for your replies.

 

[Zigner]

So, what happened when you asked for a refund, as advised two weeks ago?

https://forum.freeadvice.com/hiring-firing-wrongful-termination-5/divecon-training-552855.html

 

[bl6394]

So, what happened when you asked for a refund, as advised two weeks ago?

https://forum.freeadvice.com/hiring-firing-wrongful-termination-5/divecon-training-552855.html

It was actually 3 weeks as of today:

Demand letter sent (6/14) - registered mail - signature required.
Received proof of signature and receipt from USPS (signed for on 6/15).
No other acknowledgement or response from the potential respondent.

* I gave 3 weeks for a response in the demand letter.

 

[bl6394]

It was actually 3 weeks as of today:

Demand letter sent (6/14) - registered mail - signature required.
Received proof of signature and receipt from USPS (signed for on 6/15).
No other acknowledgement or response from the potential respondent.

* I gave 3 weeks for a response in the demand letter.

Small claims petition filed.:

Based upon previous filings of small claims actions against this party and upon advise of the court clerk:

Named Defendants are: Closed Corporation (Registered Agent), the Owner of the Corp ( as President), the Owner's wife (as vice President), both d/b/a General Businesses.

Service by certified mail to the Registered Agent at his law office. Separate service by Sheriff upon the owner and his wife at their place of business.

Court date in August. Thanks for the suggestions.

 

[bl6394]

Small claims petition filed.:

Based upon previous filings of small claims actions against this party and upon advise of the court clerk:

Named Defendants are: Closed Corporation (Registered Agent), the Owner of the Corp ( as President), the Owner's wife (as vice President), both d/b/a General Businesses.

Service by certified mail to the Registered Agent at his law office. Separate service by Sheriff upon the owner and his wife at their place of business.

Court date in August. Thanks for the suggestions.

Personal Service has been obtained on all parties.

Question: It seems that I was an "employee" based upon the common law standard...

• I providing a service for the employer
• I was directed what and how that service was to be performed
• I was terminated at the discretion of the employer

It don't think it matters that it was an unpaid activity. Nor could I find any more specific statute in MO addressing an "unpaid training position." If anyone has an opinion to the contrary - I'd be interested.

In this situation - training for a certification was sold - and the hands-on component of the training was organized as an unpaid employee position. I expect the employer will argue that subject to MO being an at will state - they can terminate any employee for any reason.

I'd argue that while they absolutely have the right to terminate the employee / or even the training program for that matter - unless they have just cause - they are still in material breach and liable for the fees I paid for the training program.

Just preparing for my Small Claims hearing on August 9th. Appreciate any thought shared on the matter.

 

[bl6394]

Had the Small Claims Hearing hearing today. It was much more like mediation than I would have thought. I had anticipated presenting my argument as a whole followed by the defense presenting a rebuttal, but it was much more of a conversational interaction.

The defendant was represented by an attorney. The attorney initially was going to represent the client - and serve as a witness for the defense. But the judge thought it was a bit of a conflict for him to do both. Defense atty briefly argued that there was no conflict in his opinion - but ultimately acquiesced to the judge's wishes.

I agreed to Defense's point that the Employee Agreement was not in force - its language was such that any employee protections (i.e. good cause requirements to fire) were in effect only AFTER the training was over. We agreed that when I was fired - I was not an employee - but in fact a trainee. Granted - in spite of the irony.

Defense then tried to argue that ANY diving outside of the mine was prohibited by the policies and procedures - but were unable to find any written policies that actually spoke to this. So - for a while we argued if it was disloyal for me to dive anywhere else - and as such in violation of a "loyalty clause." This was a pretty subjective discussion - and not a terribly productive for either party. After a while - the judge tired of it.

Eventually - with prodding from the judge - the attorney focused on the "non-refundable fees clause" of our Statement of Understanding. Defense argued that it didn't matter if they had good cause to terminate the training program. The training program could be terminated for any reason - and that the fees paid for that program were - by contract - non-refundable.

We're waiting for the judge to mail us her judgment. My prediction is that the judge will rule that regardless of the performance of the parties - the training program fees are non-refundable.

I could appeal and request a De Novo trial with the circuit court - but I'm not sure if I can prevail. Would you agree that in a Buyer / Seller agreement for a training program - regardless of the performance of the Seller - non-refundable fees can't be considered damages?