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CONTRACTS 11: Plaintiff contended defendant breached the purchase agreement by failing to pay it as agreed.

This case arises out of the sale of an insurance agency.

In 2009, Plaintiff sold the insurance company in what he described as a fire sale. The parties entered into an asset purchasing agreement (the “APA”) on September 4, 2009. Under the terms of the contract, defendant agreed to pay plaintiff for certain assets. This dispute involves plaintiff’s personal lines of business, commercial lines, and a benefits book. Each of these items represents a revenue stream of commissions generated by plaintiff’s book of business.

Regarding the personal lines, defendant agreed to pay $350,000 total, with $150,000 due up front and the remaining $200,000 payable over two years in $50,000 installments every six months. Each of those installments was conditioned on defendant meeting a certain benchmark. This benchmark required that certain accounts be reviewed and if more than 88% of those accounts were retained, then defendant would pay the installment, but if less than 70% of the benchmark was retained, then no such payment was due, and the purchase price was reduced by $50,000.00. The APA also provided that plaintiff was entitled to regular reports from carriers as to commissions received by defendant in connection with the purchased books.

Regarding the commercial lines and benefits book, the APA provided that defendant would pay plaintiff in the following manner: 45% of commissions actually received for any type of insurance sold to customers from the Commercial Book and 35%· of commission actually received for any type of insurance sold to customers in the Benefits Books.

Plaintiff filed a complaint in January 2016, alleging breach of contract and requesting an accounting and specific performance of the contract.

Plaintiff contended defendant breached the APA by failing to pay it as agreed despite the achievement of the APA’s benchmarks, by failing to provide periodic reports pursuant to the APA, and by failing to pay commissions on the commercial lines and benefits book.

At trial, the parties presented evidence regarding the value of the benchmark.

The trial court awarded plaintiff $162,678.37 in connection with its claims and statutory interest.

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