Breach of Contract Cases

Constance M. Killeen vs. Westban Hotel Venture, LP. No. 05-P-1553. Suffolk. October 19, 2006. August 21, 2007. Present: Cypher, McHugh, & Katymann, JJ. Labor, Wages. Attorney at Law, Compensation. Practice, Civil, Attorney’s fees, Damages. In an action brought by an employee against her employer seeking damages and attorney’s fees for violation of G. L. c. 149, § 152A, as amended by St. 1983, c. 343, a statute regulating the manner in which employers distribute tips they collect on behalf of their employees, the judge erred in trebling the compensatory damages awarded to the employee under G. L. c. 149, § 150, where such an award is not mandatory under that statute, and where the judge made no finding on the question whether the defendant’s conduct was outrageous or showed a reckless indifference to the rights of others [787-788]; further, while the award of compensatory damages to the plaintiff, although modest, made the plaintiff the prevailing party in the litigation and therefore required an award of legal fees [788-790], the judge’s analysis of the plaintiff’s request for such fees considered with insufficient precision the relationship between the fees requested and the results achieved by litigation [790-796]; therefore, this court remanded the case for reconsideration of the issues of treble damages and the fee application. This court declined to award appellate attorney’s fees to a plaintiff who did not prevail on appeal. [796] Civil action commenced in the Superior Court Department on September 15, 1997. Following a jury-waived trial that bifurcated the issues of liability and damages, and a subsequent determination of liability, a motion for calculation of damages as well as assessment of attorney’s fees and costs was heard by Nancy Staffier-Holtz, J. Linda L. Morkan, of Connecticut (David B. Wilson & Alida Bogran-Acosta with her) for the defendant. Michael K. Gillis for the plaintiff. McHugh, J. Westban Hotel Venture, LP, doing business as Westin Copley Place, appeals from a judgment awarding the plaintiff, Constance M. Killeen, damages in the amount of $1.26, trebled to $3.78, for violation of G. L. c. 149, § 152A, as amended by St. 1983, c. 343, a statute regulating the manner in which employers distribute tips they collect on behalf of their employees, and attorney’s fees and costs in the amount of $153,717.77. We vacate the judgment and remand for further proceedings. 1. Background. The plaintiff worked as a server at banquets and functions in the defendant’s hotel, the Westin Copley Place, for more than fourteen years. During that period, she worked at an average of 400 events per year. At each of these events, the plaintiff was supervised by one or more banquet captains, who were responsible for supervising the servers and doing whatever else was necessary to ensure smoothly run functions. From time to time, the captains assisted in actual service of food and beverages, but food and beverage service was a minor component of their over-all mission. At all times material to the litigation, the defendant customarily assigned captains to supervise more than one function simultaneously. The defendant routinely added a fourteen percent service or gratuity charge to the food and beverage charges for each function. From 1983 through August, 1995, the defendant distributed an equal share of an event’s service charge to each employee, including the captains, who had worked at the event. As a result, when working multiple functions simultaneously, banquet captains would receive a larger portion of the gratuities than the servers who actually served food and beverage. In September of 1997, this action was commenced to challenge the defendant’s tip allocation procedures. In the complaint, the plaintiff claimed that captains should not have received distributions from the service charges the defendant collected because G. L. c. 149, § 152A, limited recipients to those who engaged in “the serving of food or beverage” to event patrons and the captains did not provide “service” within the meaning of the statute. In addition to alleging that the defendant’s tip distribution policy violated the statute, the plaintiff claimed that the policy (1) was a breach of contract; (2) was a breach of the covenant of good faith and fair dealing implied in the employment relationship between the plaintiff and the defendant; (3) amounted to fraud; (4) constituted conversion; and (5) was an intentional interference with an advantageous relationship. Ultimately, the case proceeded to a jury-waived trial that bifurcated liability and damages. In the liability phase, the trial judge found that captains did provide “service” to banquet patrons and were entitled to share in the service charges the defendant collected. The judge also found, however, that the defendant’s custom and practice of allowing banquet captains who simultaneously worked at multiple functions to collect a proportionate share of the service charges generated by each function violated the statute’s “proportionality” provision (see note 4, supra). Based on that conclusion, the judge also concluded that the defendant’s practice violated the covenant of good faith and fair dealing implicit in an at-will employment relationship and amounted to conversion and unjust enrichment. The judge dismissed the plaintiff’s claims of fraud, interference with an advantageous relationship, and breach of an express contract. Finally, and although the defendant had abandoned the challenged practice in 1995, some two years before the action began, the judge, sua sponte, issued a declaratory judgment pursuant to G. L. c. 231A stating that the defendant’s practice of giving “banquet captains working simultaneously scheduled or overlapping functions a single share from the 14% gratuity pool of each one of the multiple functions supervised by that captain or captains while only compensating servers from the tip pool worked by that server unlawfully violates the proportionality provisions of G. L. c. 149, § 152A.” At the subsequent damage phase of the trial, the plaintiff, who had sought damages ranging from approximately $78,000 to $127,000, was only able to prove that she had been harmed by the defendant’s practice on one occasion and that the damages for that one occasion amounted to $1.26. Because she believed that G. L. c. 149, § 152A, required an award of treble damages, the judge ordered entry of judgment in the amount of $3.78. The judge also awarded the plaintiff $153,717.77 in costs and attorney’s fees pursuant to G. L. c. 149, § 150. On this appeal, the defendant challenges the judge’s decision to treble the damages and to award costs and attorney’s fees. 2. Trebling damages pursuant to G. L. c. 149, § 150. General Laws c. 149, § 150, as appearing in St. 1993, c. 110, § 182, provides, in pertinent part: “Any employee claiming to be aggrieved by a violation of [G. L. c. 149, § 152A,] may . . . institute and prosecute in his own name and on his own behalf... a civil action for injunctive relief and any damages incurred, including treble damages for any lost wages and other benefits.” In her findings and conclusions following the damage phase of the trial, the judge stated, “It would not appear from a reading of the statute that such a trebling is discretionary.” Accordingly, she trebled the $1.26 basic award to $3.78. Subsequently, however, the Supreme Judicial Court held in Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 708-710 (2005), that treble damages under G. L. c. 149, § 150, are discretionary, not mandatory, stating that its conclusion was similar to that in Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178-179 (2000), interpreting a similar provision in G. L. c. 151, § IB. The court pointed out that multiple damages are essentially punitive damages and are appropriate where “conduct is ‘outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ ” Wiedmann v. The Bradford Group, Inc., 444 Mass. at 710, quoting from Goodrow v. Lane Bryant, Inc., 432 Mass. at 178. Because Wiedmann holds that trebling is not mandatory under G. L. c. 149, § 150, and because the judge made no finding on the question whether the defendant’s conduct was “outrageous” or showed a “reckless indifference to the rights of others,” we must “vacate the award of treble damages and remand the issue for the judge’s reconsideration whether treble damages are warranted.” Wiedmann v. The Bradford Group, Inc., 444 Mass. at 710. 3. Award of attorney’s fees. General Laws c. 149, § 150, is an exception to the “American Rule,” which requires each party to bear its own litigation costs. See generally Police Commr. of Boston v. Gows, 429 Mass. 14, 17 (1999). In pertinent part, § 150 provides: “An employee . . . who prevails in [an action for a violation of G. L. c. 149, § 152A,] shall be entitled to an award of the costs of the litigation and reasonable attorney fees” (emphases added). G. L. c. 149, § 150, as appearing in St. 1993, c. 110, § 182. In opposing the fee award in this case, the defendant claims that the plaintiff’s failure to recover anything more than “nominal” damages means that she should not be viewed as the “prevailing party” for purposes of a fee award and, even if she should be, the award in this case is not “reasonable.” We consider those claims in succession. a. Prevailing party. In Farrar v. Hobby, 506 U.S. 103 (1992), the United States Supreme Court explored the question whether a civil rights litigant who is awarded nominal damages is a “prevailing party” and entitled to attorney’s fees under 42 U.S.C. § 1988 (2000), the Federal fee-shifting statute. “[A] plaintiff ‘prevails,’ ” the Court held, “when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-112. See Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 210 (2005). Because “[a] judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would not pay,” the Court concluded that one who recovers nominal damages is a “prevailing party.” Farrar v. Hobby, 506 U.S. at 113. The Court went on to say, however, that “[ajlthough the ‘technical’ nature of a nominal damages award or any other judgment does not affect the prevailing party inquiry, it does bear on the propriety of fees awarded under § 1988. Once civil rights litigation materially alters the legal relationship between the parties, ‘the degree of the plaintiff’s overall success goes to the reasonableness’ of [the] fee award .... Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ... In some circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should receive no attorney’s fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party.” Id. at 114-115. In the aftermath of Farrar, numerous Federal decisions have declined to award attorney’s fees to litigants who recovered only nominal damages in civil rights litigation. The defendant urges that the analytical approach taken by these cases provides an ample basis for refusing to award the plaintiff any fees at all in this case. The defendant’s argument, however, ignores a critical difference between the governing statutes. The Federal statute, 42 U.S.C. § 1988, is permissive, providing that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee.” See Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001). As noted earlier, the fee provision in G. L. c. 149, § 150, is mandatory and requires award of a reasonable fee to one who “prevails” in an action to which the statute applies. The award of compensatory damages to the plaintiff, though modest, altered the legal relationship between her and the defendant, made her the “prevailing party” in the litigation, and, therefore, required an award of legal fees. b. Reasonable fees. Finally, then, we turn to the fee the judge awarded here. “The basic measure of reasonable attorney’s fees is a ‘fair market rate for the time reasonably spent preparing and litigating a case.’ ” Stowe v. Bologna, 417 Mass. 199, 203 (1994), quoting from Fontaine v. Ebtec Corp., 415 Mass. 309, 326 (1993). See Stratos v. Department of Pub. Welfare, 387 Mass. 312, 322 (1982). This approach to fee calculations is known as the “lodestar” approach, Fontaine v. Ebtec Corp., 415 Mass. at 325; Stratos v. Department of Pub. Welfare, 387 Mass. at 321-322, and the results it produces “should govern unless there are special reasons to depart from them.” Stratos v. Department of Pub. Welfare, 387 Mass. at 322. See Fontaine v. Ebtec Corp., 415 Mass. at 325; Stowe v. Bologna, 417 Mass. at 203. In this area, as in others, much is left to the discretion of the trial judge, for she typically “is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney’s services.” Fontaine v. Ebtec Corp., 415 Mass. at 324. See Stowe v. Bologna, 417 Mass. at 203. The proper method for determining the lodestar was explained succinctly in Stowe v. Bologna, 417 Mass. at 203-204: “The first component of the basic measure amount is the amount of time reasonably expended on the case. The judge should begin his inquiry with the amount of time documented by the plaintiff’s attorney. Stratos, supra at 322-323. Then the judge decides whether this amount of time was reasonably expended. Id., and cases cited. The judge should not only consider the plaintiff’s financial interests at stake but also the plaintiff’s other interests sought to be protected by the statute in question and the public interest in having persons with valid claims under the statute represented by competent legal counsel. See [i]d. at 323. The second component of the basic measure amount is the amount of a reasonable hourly rate. This amount should be the average rate in the community for similar work by attorneys with the same years’ experience. Stratos, supra at 323-324, and cases cited.” In deciding whether the documented time was reasonably expended the judge may, in addition to considering the interests at stake, also consider many of the factors articulated in Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979), i.e., the nature of the case and the issues presented, the time and labor required, the amount of damages involved, and the result obtained. Those factors have been used for years as guides to assessment of reasonable fees in Massachusetts cases, see Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1933), and continue to be useful guides to determining time reasonably spent when applying the lodestar methodology. See, e.g., Stowe v. Bologna, 417 Mass. at 203. See also Siegel v. Berkshire Life Ins. Co., 64 Mass. App. Ct. 698, 706 n.8 (2005) (noting that “[ujnder the lodestar method, [these] other, formerly separate considerations, see, e.g., Linthicum v. Archambault, 379 Mass. at 388-389, come into play indirectly”). Compare Stratos v. Department of Pub. Welfare, 387 Mass. at 322-323 (applying the Federal Johnson factors, Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 [5th Cir. 1974], to the lodestar approach). Assigning an appropriate weight to the various factors is sometimes difficult, and that difficulty is perhaps greatest when assigning a weight to the results achieved in the litigation. As noted earlier, the judge “should not only consider the plaintiff’s financial interests at stake but also the plaintiff’s other interests sought to be protected by the statute in question and the public interest in having persons with valid claims under the statute represented by competent legal counsel.” Stowe v. Bologna, 417 Mass. at 203. See Stratos v. Department of Pub. Welfare, 387 Mass. at 323 (“The financial benefit to the plaintiff, and the general benefit to public interests, are relevant considerations . . .”). Consequently, when a plaintiff’s victory, although “de minimis as to the extent of relief[,] . . . represents] a significant legal conclusion serving an important public purpose,” Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 125 (1st Cir. 2004), the fee award need not be proportionate to the damages recovered. See id. (discussing 42 U.S.C. § 1988); Stratos v. Department of Pub. Welfare, 387 Mass. at 323. See also Riverside v. Rivera, 477 U.S. 561, 573-574 (1986); Gay Officers Action League v. Puerto Rico, 247 F.3d at 296. At the same time, realistic assessment of the benefits the litigation actually produced is always necessary when attempting to determine what litigation costs are appropriate, for neither costs nor benefits are free-floating variables. In determining time reasonably spent on a matter, the court must be mindful of “the difficulty of the case” and “the results obtained,” Stratos v. Department of Pub. Welfare, 387 Mass. at 323; see Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (“the degree of success obtained” a factor in lodestar analysis); Farrar v. Hobby, 506 U.S. at 114, and “compensable hours may be reduced if the time spent was wholly disproportionate to the interests at stake.” Stratos v. Department of Pub. Welfare, 387 Mass. at 323. As stated by the Federal courts in cases awarding attorney’s fees, no fee should “be awarded for services [employed pursuing an] unsuccessful claim,” Hensley v. Eckerhart, 461 U.S. at 435, unless the court finds that “the unsuccessful claims are ‘sufficiently interconnected’ with [the] claims on which [the] plaintiff prevails.” Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 842 (1st Cir. 1990). See Hensley v. Eckerhart, supra; Krewson v. Quincy, 74 F.3d 15, 19 (1st Cir. 1996). And, as the United States Supreme Court stated in Hensley v. Eckerhart, 461 U.S. at 437, “[w]hen an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the . . . court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.” In this case, the judge did not use the lodestar method to calculate the attorney’s fees she awarded, and she did not specifically focus on whether the hours spent on the case were spent reasonably. See T & D Video, Inc. v. Revere, 66 Mass. App. Ct. 461, 476-477 (2006), cert. denied, 127 S. Ct. 2905 (2007). She noted that the fees the plaintiff sought “were disproportionate to the damage award” and, therefore, questioned “whether there ought to be a reduction in the requested fee amount.” But, citing Linthicum, she answered that question in the negative because, she found, the case was complex; the plaintiff’s victory, although nominal, had a significant impact on the service industry as a whole; the attorney had requested no compensation for time not reflected on his billing records; the plaintiff’s attorney’s hourly rate was at the low end of an appropriate range; and the plaintiff’s attorneys were skilled and experienced in this type of litigation. We think that the judge’s election to use the Linthicum factors directly, and not as guides to determining whether the hours spent on the case were reasonable, caused her to focus with insufficient precision on the amount of time it was reasonable for the plaintiffs counsel to have spent on this case in light of the results the plaintiff obtained. As to complexity, the judge noted that the case had required two trials, each lasting four days. In addition, the judge said that “much effort was required in the discovery phase, together with time required to try to analyze the data and attempt to

William Okerman vs. VA Software Corporation & another. No. 06-P-1356. Norfolk. May 17, 2007. August 20, 2007. Present: Cowin, Brown, & Meade, JJ. Labor, Wages, Failure to pay wages. Contract, Employment, Performance and breach, Implied covenant of good faith and fair dealing. Practice, Civil, Summary judgment. This court concluded that the wage act, G. L. c. 149, § 148, applied to the plaintiff’s claim for commissions owed to him, where, accepting the allegations in the complaint as true, the plaintiff had demonstrated that the commissions had been definitely determined and were due and payable, and where there was no basis in the statute for imposing other restrictions on such a claim. [774-780] The judge in a civil action alleging breach of an employment contract properly granted summary judgment in favor of the defendant employer, where the plaintiff employee’s knowledge of the new terms of his employment offered in several contract modifications, his signing of each contract modification, and his continued work for the employer in accordance with the new terms of his employment constituted assent to the contract modifications as a matter of law. [780-781] This court did not consider a claim that was not supported by proper appellate argument. [781-782] A claim that a judge erred in denying a motion for summary judgment was not properly before this court, where the case had proceeded to trial on the merits. [782-783] Civil action commenced in the Superior Court Department on November 16, 2001. A motion to dismiss was heard by Jeffrey A. Locke, J.; a motion for summary judgment and a motion for judgment on the pleadings were heard by John C. Cratsley, J.; and the case was tried before Elizabeth B. Donovan, J. Joanne D’Alcomo for the plaintiff. Bret A. Cohen (M. Elizabeth Gomperz with him) for the defendants. Formerly known as VA Linux Systems, Inc. Larry M. Augustin. Meade, J. These cross appeals arise out of an employment dispute between William Okerman and his former employer, VA Software Corporation (VA), as well as VA’s president, Larry M. Augustin. Okerman appeals the dismissal of his claim pursuant to G. L. c. 149, § 148 (wage act), against Augustin; the judgment on the pleadings for VA regarding an identical wage act claim; the allowance of summary judgment to VA on Oker-man’s breach of contract claim; and the exclusion of certain evidence relevant to his claim of a violation of the covenant of good faith and fair dealing. VA appeals from the denial of its motion for summary judgment on Okerman’s claim for breach of the implied covenant of good faith and fair dealing. For the reasons discussed below, we vacate the dismissal of Okerman’s wage act claims against VA and Augustin. In all other respects, we affirm. 1. Background. On March 24, 1999, Okerman accepted a written offer of employment from VA. He began work as VA’s Boston marketing manager on March 29, 1999. The terms of his employment included an annual base salary of $90,000, participation in the company’s stock option plan, and the “standard VA Research Commission Plan for 1999.” That commission plan provided that Okerman would earn a varied percentage of commissions depending on the amount of revenue he generated for VA. A “Compensation Overview, Policy and Plan” was prepared by VA executives in November, 1999. That plan stated that VA’s management had the right to “expand, reduce or otherwise change the territory and quota assignment as deemed appropriate to align with changes in business conditions.” It also stated that “for all matters of administration, including modifications, the [Senior Vice President] . . . shall have the sole and final authority.” On February 8, 2000, VA notified its employees, including Okerman, of a new variable compensation plan. VA retroactively applied the February, 2000, plan to November 1, 1999. Around the same time, VA converted its fiscal year from one corresponding to the calendar year to one commencing at the end of July, so that November 1 became the start of the second quarter. On February 11, 2000, Okerman signed the variable compensation plan. On August 28, 2000, VA notified its employees, including Okerman, of its second variable compensation plan, to be applied retroactively to July 31, 2000 (the first quarter of fiscal year 2001). Okerman signed the second variable compensation plan. A third variable compensation plan was presented to VA employees on November 27, 2000, applying retroactively from October 28, 2000, through January 26, 2001, i.e., the second quarter of fiscal year 2001. Okerman signed the third variable compensation plan on December 1, 2000. On March 5, 2001, VA notified its employees of yet another variable compensation plan, applying retroactively from January 27, 2001, through April 28, 2001, i.e., the third quarter of fiscal year 2001. Okerman signed the fourth variable compensation plan on May 20, 2001. Finally, on May 7, 2001, VA notified its employees of a fifth variable compensation plan, which applied retroactively from April 29, 2001, through July 28, 2001, i.e., the fourth quarter of fiscal year 2001. Okerman signed this plan on May 20, 2001. In June, 2001, VA informed its employees of its decision to leave the hardware business and to terminate the majority of its employees effective June 29, 2001. Okerman remained at VA through July 27, 2001. 2. Procedural history and Okerman’s claims. In November of 2001, Okerman filed a complaint in Superior Court asserting claims against VA of breach of contract, quantum meruit, breach of the covenant of good faith and fair dealing, promissory estop-pel, and violation of the wage act. Okerman also asserted that Augustin had violated the wage act. Although Okerman acknowledged having signed each new compensation plan, he claimed that he did so only to acknowledge receipt and not to accept the terms of those plans. He claimed that VA changed its compensation plans in bad faith to deprive him of compensation. Okerman further complained that he earned commissions that were not paid, and that VA wrongfully deprived him of additional earnings derived from one particular account. Finally, Okerman claimed that his official termination date was chosen so as to deprive him of the vesting of stock options he would have received two days after his termination. On June 27, 2002, a Superior Court judge allowed Augustin’s motion to dismiss the wage act claim against him. On July 9, 2003, a second Superior Court judge allowed summary judgment to VA on Okerman’s breach of contract, quantum meruit, and promissory estoppel claims, but denied summary judgment as to Okerman’s claim that VA breached the covenant of good faith and fair dealing. In the same decision, the second motion judge allowed VA’s motion for judgment on the pleadings as to Okerman’s wage act claim against VA. In September, 2004, the breach of the covenant of good faith and fair dealing claim was tried to a jury. The jury reached a verdict for Okerman and awarded him $136,876 in damages. 3. Discussion. The wage act claims. When reviewing a motion to dismiss, we take the well-pleaded allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiff. See Harvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 68 (1992); General Motors Acceptance Corp. v. Abington Cas. Ins. Co., 413 Mass. 583, 584 (1992). A complaint may properly be dismissed for failure to state a claim when it appears certain “that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96, 98 (1977), quoting from Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Our review of an allowed motion to dismiss is de nova. Eigerman v. Putnam Invs., Inc., 66 Mass. App. Ct. 222, 225, S.C., 450 Mass. 281 (2007). The allowance of a motion for judgment on the pleadings is governed by Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), which provides that “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Rule 12(c) effectively functions as a “ ‘motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which relief can be granted.’ Jarosz v. Palmer, 436 Mass. 526, 529 (2002), quoting from Smith & Zobel, Rules Practice § 12.16 (1974).” Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 659 (2004). Our review of an allowed rule 12(c) motion also is de nova. See Boston Water & Sewer Commn. v. Commonwealth, 64 Mass. App. Ct. 611, 614 (2005). The wage act appears in a portion of G. L. c. 149 subtitled “weekly payment of wages.” It requires employers to pay employees in a timely fashion, according to the parameters set out in the statute. Despite its subtitle, “nothing in the weekly wage law itself requires the weekly payment of wages.” Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 703-704 (2005) (Wiedmann). Indeed, “certain employees may be paid at other intervals, including monthly.” DeSantis v. Commonwealth Energy Sys., 68 Mass. App. Ct. 759, 767 n.11 (2007). The Supreme Judicial Court has stated that the legislation “in its early form was enacted primarily to prevent unreasonable detention of wages” (emphasis in original). American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). See Wiedmann, supra at 703, citing Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. 718, 720 (2002) (clear purpose of wage act is to prevent unreasonable detention of wages). The third paragraph of the wage act states that the statute “shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.” G. L. c. 149, § 148, as appearing in St. 1956, c. 259. The Legislature first enacted this paragraph in 1943, and no legislative history exists to shed light on the intent underlying this amendment. See St. 1943, c. 467. In their pretrial orders, which disposed of Okerman’s wage act claims, the motion judges determined that the wage act did not apply to Okerman’s commissions because his commissions represented earnings “above and beyond his base salary”; his commissions were “in addition to a healthy salary”; the wage act “was intended to protect wage earners who relied on the payment of their weekly or bi-weekly salary and, in the case of retail [sales] employees, the payment of a regular commission”; and Okerman’s “right to commissions were contingent upon the attainment of certain sales goals being reached and therefore are not ‘definitely determined’ under the [w]age [a]ct.” Okerman argues that, with the exception of the “definitely determined” and the “due and payable” requirements (which he satisfies), the other restrictions have been improperly engrafted onto the statute. We agree. “Where the language of a statute is plain, it is ‘the sole function of the courts ... to enforce it according to its terms.’ ” D’Avella v. McGonigle, 429 Mass. 820, 822-823 (1999), quoting from Boston Neighborhood Taxi Assn. v. Department of Pub. Util., 410 Mass. 686, 690 (1991). By its terms, the language of the wage act regarding commissions applies broadly, and is restricted in its application only by the requirements that the commissions be “definitely determined” and “due and payable.” See G. L. c. 149, § 148. As discussed below, the motion judges improperly restricted the scope of the wage act. Commissions often are earned in addition to a base salary, and in the absence of a statutory definition of the term “commission,” we will give the term its ordinary meaning, see Anderson St. Assocs. v. Boston, 442 Mass. 812, 816 (2004), “consonant with sound reason and common sense,” DiGiacomo v. Metropolitan Property & Cas. Ins. Co., 66 Mass. App. Ct. 343, 346 (2006). To exclude from the wage act commissions that are “above and beyond” an employee’s base salary effectively would vitiate the entire paragraph in the wage act addressing commissions. Similarly, the paragraph would prove meaningless if commissions contingent upon another event were excepted. Virtually all commissions are subject to a contingency, such as meeting a sales quota. The Legislature employed no language that supports a limitation on how commissions are earned. Indeed, the plain language of the paragraph portends otherwise. We also find no support for VA’s suggestion that the application of the wage act may be validly confined to employees who earn less than a “healthy” salary, or to those who rely on their weekly wages for their day-to-day existence. See Moriearty, Adkins, Rubin, & Jackson, Employment Law §§ 14.2-14.3 (2d ed. 2003) (plain language of wage act does not limit its application to employees who depend on commission income for daily existence; trial court decisions finding wage act “inapplicable to highly paid salaried employees are not well grounded in the statutory language”). “The trouble with [VA’s] suggestion is that it requires us to add words to the statute that the Legislature did not see fit to put there. This we may not do . . . .” Cooney v. Compass Group Foodservice, ante 632, 638 (2007). “Where ‘the language of the statute is clear, it is the function of the judiciary to apply it, not amend it.’ ” Ibid., quoting from Commissioner of Rev. v. Cargill, Inc., 429 Mass. 79, 82 (1999). In fact, in the fourth paragraph of the wage act, where the Legislature saw fit to exclude certain types of employees from the wage act’s protection, it did not place among the excluded those who are highly compensated. See Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct., 446 Mass. 123, 126 (2006) (“We do not read into the statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but chose not to include”). By its terms, the wage act applies to “executive, administrative or professional” employees. See G. L. c. 149, § 148, as amended through St. 1996, c. 151, § 426. Application of the wage act is not dependent on the amount of an employee’s earnings; to the contrary, it has been applied both to highly paid professionals and to lower income wage earners alike. See, e.g., Wiedmann, 444 Mass. at 701; DeSantis v. Commonwealth Energy Sys., 68 Mass. App. Ct. at 761-762. Furthermore, without explicit legislative guidance, ad hoc judicial determinations of what constitutes “a healthy salary” to push a plaintiff outside of the wage act’s purview undoubtedly will lead to arbitrary results. In support of its position, VA relies on Commonwealth v. Savage, 31 Mass. App. Ct. 714, 716-718 (1991), which construed the wage act. In Savage, we determined that a real estate broker, who was essentially an independent contractor with no base salary whatsoever, was not covered under the statute. Ibid. But see DeSantis v. Commonwealth Energy Sys., supra at 766-769 (applying wage act to employee who earned only commissions). VA does not challenge Okerman’s status as an employee within the definition of the wage act, that commissions are protected by the wage act, or that Okerman obtained the approval of the Attorney General to bring a private cause of action. See G. L. c. 149, §§ 148, 150. Rather, VA mistakenly finds support in a portion of dictum from Savage where, in reference to the title of the act (particularly the word “weekly”), we inferred “a Legislative purpose to assist employees who would ordinarily be paid on a weekly basis, such as retail salespeople, and for whom commissions constitute a significant part of weekly income.” Commonwealth v. Savage, supra at 716. However, the Supreme Judicial Court later said of the Savage decision that “[a]¡though the Savage court inferred from the title of the weekly wage law that it applied to commissions that were paid on a weekly basis, nothing in the weekly wage law itself requires the weekly payment of wages.” Wiedmann, supra at 703-704. Rather, the wage act establishes different deadlines for the payment of wages to different types of employees. Id. at 704. Because Okerman is not an independent contractor (as was the employee in Savage), and because the Supreme Judicial Court has determined that the wage act applies more broadly than Savage suggested, the case offers VA no assistance. To the extent that Savage’s discussion of the language relevant to commissions in the wage act has been read to permit other restrictions to be added to § 148, that reading is incorrect. Cf. Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. 599, 603-604 (2003) (court would not read into wage act protection against retention of severance pay where plain language of wage act did not include it); Newton v. Commissioner of the Dept. of Youth Servs., 62 Mass. App. Ct. 343, 344-347 (2004) (declining to require plaintiffs to pursue additional administrative remedies not mandated in wage act itself, which instead provides independent and distinct cause of action). Similarly, in the absence of legislative guidance, we decline to read into the phrase “so far as apt” judicial license to impose additional hurdles to a cause of action brought under the commissions paragraph in the wage act. Rather, we read the phrase in question as noting that for commissions to qualify under the wage act, they must meet the criteria the Legislature chose to express, i.e., they must be “definitely determined” and “due and payable.” See Sullivan v. Brookline, 435 Mass. 353, 360 (2001) (“statutory language should be given effect consistent with its plain meaning”). Finally, the motion judges determined that Okerman failed to properly plead that his commissions were “definitely determined” as required by the statute. We disagree. In Wiedmann, supra at 708, the Supreme Judicial Court clarified that to be definitely determined, a commission must be “arithmetically determinable,” taking into account the “applicable formulas and deductions” and the “total from which deductions would be taken.” Okerman set out in his complaint the applicable commission plan and his terms of employment, detailing the ways in which his commissions were calculated as a percentage of revenue. He also set out the revenue he brought into VA and the consequent commissions he was due. He claimed that those commissions were wrongfully withheld from him. Okerman therefore pleaded facts which, if proved true at trial, would satisfy the requirement that commissions be “arithmetically determinable.” See ibid. See also Barthel v. One Community, Inc., 233 F. Supp. 2d 125, 126-127 (D. Mass. 2002). Breach of contract claim. We review a grant of summary judgment to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Miller v. Mooney, 431 Mass. 57, 60 (2000), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The entry of summary judgment will be upheld when there are no genuine issues of material fact and the nonmoving party “has no reasonable expectation of proving an essential element of its case.” Miller v. Mooney, supra. The nonmoving party’s failure to prove an essential element of its case “renders all other facts immaterial” and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Here, on VA’s motion for summary judgment, the second motion judge determined that each new variable compensation plan represented a mutually agreed-upon contract modification, and that no material facts relevant to this claim remain