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C. Thomas Beneventine v. Siemens Hearing Instruments

December 17, 2012

C. THOMAS BENEVENTINE,
PLAINTIFF-APPELLANT,
v.
SIEMENS HEARING INSTRUMENTS, INC., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2805-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2012

Before Judges A. A. Rodriguez and Ashrafi.

Plaintiff C. Thomas Beneventine appeals from an order granting summary judgment to defendant Siemens Hearing Instruments, Inc. and dismissing plaintiff's claims arising out of the parties' consulting contracts. We affirm.

Viewed most favorably to plaintiff, R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record established the following relevant facts and procedural history.

Many years ago, plaintiff underwent surgical removal of his larynx, and he uses an artificial speech aid device. Beginning in the 1980s, plaintiff used a device named Servox Electrolarynx that was manufactured by defendant Siemens. As a result of his familiarity with the device, plaintiff would attend trade shows and other events to demonstrate and help sell the Servox device for defendant. Eventually plaintiff and defendant entered into biannual and later annual consulting contracts. During the last four years of the contracts, defendant agreed to pay plaintiff an annual salary of $30,000 for his services. Plaintiff did not receive regular paychecks but would request periodic payments from defendant.

Also beginning in the 1980s, plaintiff became a reseller of defendant's Servox product. He would receive on credit from defendant shipments of the product at wholesale price, and he would resell the devices to users at a profit. His costs for the product would typically be deducted from his salary payments from defendant. Plaintiff did not keep good records of these transactions and the resulting accounting of what amounts defendant owed to him or he owed to defendant. For income tax purposes, defendant issued IRS 1099 forms at the end of each calendar year to record the amount of plaintiff's salary it had paid that year.

In September 2003, defendant decided to stop manufacturing its Servox device. By letter dated October 6, 2003, defendant notified plaintiff that his consulting contract would not be renewed. Plaintiff had some remaining Servox devices that defendant permitted him to sell until all sales of the product stopped in March 2004.

Plaintiff testified in deposition that, after he learned his contract would not be renewed, he requested from defendant's vice-president for sales that the company make a severance payment to him. At that time, plaintiff owed defendant $8,500 for product that he had obtained on credit for resale. Defendant agreed to make a final payment of $10,000 to plaintiff, from which the $8,500 owed would be deducted. In exchange, defendant asked plaintiff to sign a release in favor of defendant. Plaintiff agreed to do so.

Defendant sent a typed release to plaintiff, which he read and understood. The release, dated December 22, 2003, stated in relevant part:

NOW, THEREFORE, in consideration of the premises and covenants contained herein, the parties agree as follows:

1. Consultant has taken an advance against future earnings in the amount of eight thousand five hundred ($8,500.00) dollars. . . .

2. Siemens wishes to provide Consultant with a payment designed to show its appreciation of Consultant's activities on Siemens' behalf. The amount of the payment offered by ...


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