dissenting.
I disagree with the majority’s conclusion that the trial court’s finding that there was no agreement to pay the commissions to the Bank implies a finding there was an agreement to pay the commissions to Berdahl.
I agree with the majority that N.D.C.C. § 34-02-11 is controlling in this ease. That statute states, in pertinent part: “Everything which an employee acquires by virtue of his employment, whether acquired lawfully or unlawfully ... belongs to the employer.” While there are no cases directly on point, Keller v. Clark Equipment Company, 715 F.2d 1280 (8th Cir.1983), cert. denied 464 U.S. 1044, 104 S.Ct. 713, 79 L.Ed.2d 176 (1984) is helpful to the construction of N.D.C.C. § 34-02-11. In Keller, the Eighth Circuit Court of Appeals held, “absent any express or implied agreement by the parties to the contrary, [the employer] would have been the exclusive owner of the patent under N.D.C.C. § 34-02-11.” Id. (Emphasis added). The court upheld the district court’s finding there was an agreement to the contrary.
The trial court in the present case specifically found, “the defendant Kathleen L. Ber-dahl was an employee of the First American Bank West and its predecessors. Kathleen worked in customer service as a personal banker.” The court also found, “at the plaintiffs request, the defendant [Berdahl] became licensed to sell investment securities to the plaintiffs customers as a service for those customers.” The evidence is uncontro-verted that Berdahl’s training and licensing fees were paid for by the Bank, her “sales office” was her office at the Bank, her investment securities customers were Bank customers, and her salary for her work at the Bank, including time spent selling securities, was paid by the Bank. The commissions she earned were all “by virtue of her employment” with the Bank. Pursuant to N.D.C.C. § 34-02-11 the Bank is entitled to all the commissions. The majority also reaches this conclusion.
The majority, however, goes on to hold that because there was no specific agreement that the commissions were to be paid to the Bank, it follows that the trial court implied a finding that there was an agreement the commissions were to go to Berdahl. This logic ignores the possible conclusion that there simply was no agreement ever reached with regard to entitlement to the commissions. It is also directly contrary to N.D.C.C. § 34-02-11 and Keller. The issue is whether there was an express or implied agreement that Berdahl was to ultimately get all the commissions earned while she was a Bank employee. The trial court never made a specific finding on this issue indicating to this writer that the court did not apply the correct law to the facts of this case. This is exemplified by the trial court’s finding “the plaintiff [Bank] has not established that it had any right to or interest in the commissions earned by the defendant [Berdahl],” and its conclusion of law “that the plaintiff [Bank] has failed to meet its burden of proof establishing that it is entitled to the commissions earned by the defendant [Berdahl] in the sale of investment securities.” The Bank met its burden of establishing the commissions were earned “by virtue of her employment” with the Bank. Our court is not bound by the trial court’s findings of fact when those findings' are based on an erroneous conception of the law. Mahoney v. Mahoney, 516 N.W.2d 656, 662 (N.D.App.1994). Based on the entire findings of fact, conclusions of law, order for judgment, and judgment I am left with a definite and firm conviction a mistake has been made by the trial court in its application of the law. I would reverse and remand with instructions to apply N.D.C.C. § 34-02-11 and the holding in Keller to this case.
Thus, I respectfully dissent.