ARONSON & COMPANY v. Fetridge

ADKINS, Judge. In this case we are asked to examine, for the first time, the applicability of the Maryland Wage Payment and Collection Law to a claim against his former firm by a Certified Public Accountant who had been not only an employee, but a shareholder, president, and managing officer of the firm. Keith Fetridge (“Fetridge”) was involuntarily terminated by his employer, Aronson & Company (“Aronson”), appellant, in November 2001. Aronson appeals a judgment awarding Fetridge’s Estate (“the Estate”) $3,072,031.29 in treble damages for Aronson’s breach of an Employment Agreement and violation of the Maryland Wage Payment and Collection Law (“the Wage Law”), Md. Code (1999 Repl.

Vol., 2006 Cum. Supp.), § 3-501 et seq. of the Labor and Employment Article (LE). 1 The Estate’s claims are based on Aronson’s failure to pay Fetridge Terminating Employee Compensation (“TEC”) under the terms of the Employment Agreement. In Aronson’s appeal, it presents the following six questions for our review: I. Whether termination payments are recoverable under the Wage Law when they are expressly conditioned upon a contractual covenant not to compete. ⁶⁵⁷ II. Whether payments calculated based on a portion of a firm’s overall profits, and not based on the employee’s own efforts, are “wages” under § 3-501 of the Wage Law.

III

Whether payments contractually required to be made only in the event of an employee’s termination are recoverable under a statute that requires payment “on or before the day on which the employee would have been paid ... if the employment had not been terminated.” (Emphasis omitted.) IV. Whether a “bona fide dispute” existed between Aron-son and the Estate regarding Fetridge’s violation of the covenant not to compete when Aronson understood, and had every reason to believe, that Fetridge (a) associated with a competitor firm, (b) lured substantial business away from Aronson to that competitor firm, and (c) abandoned any claim for the TEC. V. Whether the Estate’s failure to provide access to Fetridge’s books and records breached a condition precedent under the contract to Aronson’s payment of Terminating Employee Compensation, when the contract expressly conditions payment on such access, and when the unmistakable purpose of the contractual books and records requirement is to permit Aronson to determine whether, and in what amount, it may owe TEC.

VI

Whether a judgment may be entered retroactive to the date of verdict, thus dramatically increasing the amount of post-judgment interest, when the delay in entering judgment is attributable not to clerical error but to the court’s conscious decision. In a cross-appeal, the Estate presents the following question for our review: Whether the trial court abused its discretion in eliminating the jury’s award of interest where the contract mandated the payment of accrued interest at a specified amount, and the trial court and Aronson’s counsel agreed that the man ⁶⁵⁸ ner of computing that interest was set forth in the contract and that the calculation was “arithmetical.” We conclude that the court did not err with respect to any of the issues raised in Aronson’s appeal. It erred only with respect to the Estate’s cross-appeal. 2 FACTS AND LEGAL PROCEEDINGS Keith Fetridge was a Certified Public Accountant who practiced for approximately twenty-five years at Aronson, an accounting firm in which he eventually became a shareholder, president, and managing officer. This appeal arises out of the end of Fetridge’s association with Aronson in November 2001, and his death on January 2, 2004.

Fetridge’s Estate brought an action against Aronson for breach of contract and violation of the Wage Act to recover a sum exceeding $1 million dollars that Fetridge was purportedly owed pursuant to the terms of a written Employment Agreement (“Employment Agreement”) executed on June 1,1997. The Employment Agreement provided that Fetridge would be entitled to receive TEC as defined in Section 9(a) of the Agreement upon his involuntary termination from Aronson. Section 9(a) defined TEC as follows: Pursuant to this Agreement, whenever [Fetridge] shall be entitled to receive “Terminating Employee Compensation,” he ... shall be entitled to receive payment of an amount equal to [his] Deferred Compensation Account (as defined in Section 9(b) and paid pursuant to Section 9(c), below) which shall be subject to setoff rights contained in Section 10 hereof. Section 9(b) of the Agreement specified how Fetridge’s Deferred Compensation Account was determined: ⁶⁵⁹ [Fetridge’s] Deferred Compensation Account shall be determined by [Aronson] annually as of May 31 of each year, and shall be communicated to [Fetridge] no later than September 30 of such year. [Fetridge’s] Deferred Compensation Account as of the beginning of each fiscal year of [Aronson] shall be reduced by any cash distributions made to [Fetridge] during the course of such fiscal year of [Fetridge].

Amounts accrued by [Aronson] during the course of any fiscal year shall not be posted to [Fetridge’s] Deferred Compensation Account prior to the end of such fiscal year. The amount in [Fetridge’s] Deferred Compensation Account shall be determined [by Aronson’s Board of Directors]. Section 9(c) of the Agreement stated that Aronson, upon termination, would be paid the amount in his Deferred Compensation Account “in twelve (12) equal quarterly installments with interest” that would accrue at the “applicable federal rate at the date of termination of employment for instruments with a three (3) year term plus two percent (2%) per annum.” The quarterly payments would begin on the first day of the fourth month following Fetridge’s termination and continue until the Deferred Compensation Payment Account was paid in full. Under Section 10(a) of the Employment Agreement, Fetridge agreed to a covenant not to compete, specifying that for a period of three years after his termination, he “shall not provide essentially the same services to [Aronson’s] client(s) ... as those being provided by [Aronson] or for which [Aron-son] had billed or for which [Aronson] had work in process, during the twelve-month period immediately preceding [Fetridge’s] departure.” Fetridge would only be deemed to have violated the covenant not to compete if he received compensation for competing services equal to or in excess of $25,000.

The Employment Agreement stated: [Fetridge] acknowledges that the calculation required [to determine the amount of compensation received for competing services] will require that [Aronson] be given access to [Fetridge’s] or [Fetridge’s] employer’s books and records. [Fetridge] agrees that failure to provide for such access, for any reason, shall be grounds for [Aronson] refusing to make ⁶⁶⁰ any additional payment of Terminating Employee Compensation to [Fetridge]. In the event that Fetridge violated the covenant in the three years after leaving the firm, Fetridge was required in Section 10(c) to pay to Aronson an amount equal to thirty percent of his or his new employer’s fee collections from Aronson’s former clients. Section 10(d) of the Employment Agreement then provided that Aronson “shall have the right to offset against [TEC] payments it owe[d] pursuant to Section 9(c) any amounts owed by [Fetridge] pursuant to this Section 10[,]” the covenant not to compete. Aronson’s board of directors terminated Fetridge’s employment on November 7, 2001.

The termination, effective on November 9, 2001, was involuntary. At the time of his termination by Aronson, Fetridge had $1,024,010.43 in his Deferred Compensation Account. Under Section 9(c) of the Agreement, the first quarterly TEC installment date was March 1, 2002, and the last quarterly installment date was on December 1, 2004. Aronson did not make any of the quarterly installment payments to Fetridge during his life or to the Estate after his death on January 2, 2004.

After he was terminated from Aronson, Fetridge established Keith R. Fetridge, CPA, LLC, a single member limited liability company with Fetridge as the only member. According to an attorney who helped Fetridge establish the LLC, Fetridge structured his employment relationships so as to not violate the prohibitions contained in his Employment Agreement. Approximately two weeks after his termination, Fetridge contacted Robert Offterdinger, the managing partner of Beers & Cutler (B & C), a public accounting firm. According to Offterdinger, Fetridge indicated that he was no longer with Aronson and was looking to continue to do some consulting work for some of his former clients.

Fetridge described his obligations under the covenant to not compete and eventually entered into a Co-Location and Support Agreement (“Co-Location Agreement”) with B & C. The preamble of the Co-Location Agreement indicated that the LLC “is engaged in ⁶⁶¹ the business of providing businesses and financial consulting services to clients” and that “B & C is a full service accounting, tax and consulting firm[.]” The Co-Location Agreement then provided that B & C would provide the following services to the LLC: (a) Make available for LLC’s use an office within B & C’s Washington, D.C. offices. (b) Provide LLC with secretarial support. (c) Provide LLC with general office services, such as telephone, facsimile, photocopying, courier and the like. (d) Provide LLC with time recording and billing support.

In return, the LLC would pay B & C $997.00 in rent. The Co-Location Agreement also stated that “[n]othing contained herein shall create a relationship of employer-employee, principal-agent or any partnership, joint venture or other engagement between LLC or any LLC employee (including Pet-ridge) and B & C.” Under a provision entitled “Common Clients[,]” the Co-Location Agreement provided: LLC and B & C may from time to time be separately retained to provide services to the same client. In so doing, LLC may gain access to B & C’s Confidential Information, and B & C may gain access to LLC’s Confidential Information. Accordingly, the parties have agreed to the provisions [of the Afiele addressing confidentiality] to protect their respective interests.

Offterdinger testified that B & C never paid any salary to Fetridge and never obtained any services from Fetridge for any of its clients. He stated that the LLC did not actually pay the rent that was due under the agreement. Fetridge’s failure to pay, according to Offterdinger, was due to his not being pleased with the services that he had received from the assistant furnished by B & C. During a period spanning from mid-December 2001 to early February 2002, Aonson received twenty-two authorization letters from Aonson clients notifying Aonson that they had selected B & C as their accounting firm. Three of these letters mentioned Fetridge’s name.

Aonson also introduced ⁶⁶² an exhibit listing the income B & C received from former Aronson clients from 2002 to the time of trial in 2006. The total income received was over $4.5 million. Offterdinger indicated that he knew Fetridge introduced twelve of the thirty-three listed former Aronson clients to B & C. Believing that B & C intended to employ Fetridge, Aronson wrote a letter to Offterdinger on December 13, 2001, informing Offterdinger of Fetridge’s obligations under the covenant not to compete. Offterdinger did not respond to the letter because B & C did not intend to employ Fetridge in the manner expressed in Aronson’s letter.

Offterdinger acknowledged, however, that B & C “knew that there was a possibility and probability that we would be introduced to some” of the clients Fetridge had managed at Aronson. S. Lang Hinson, one of the Estate’s personal representatives and a long-time Aronson client while Fetridge was employed there, testified that he met with Fetridge at approximately the same time that Fetridge discussed his co-location and support arrangement with B & C. According to Hinson, Fetridge asked Hinson at this meeting to consider taking his work to B & C. Shortly thereafter Hinson did so. Hinson indicated that Fetridge provided him with some consulting services, but that to his knowledge, Fetridge was not involved in any of the accounting services provided by B & C. Hinson acknowledged, however, that Fetridge competed “to some extent with Aronson” following his termination. Hinson indicated that he did not know the magnitude of Fetridge’s competition with Aronson, but knew that the LLC had billed as much as $200,000 for services to former Aronson clients.

Hinson said that he did not know what those services were. Lisa Cines, Aronson’s managing partner, testified that after Fetridge was given notice of his termination on November 9, 2001, Aronson intended to honor the terms of Fetridge’s employment contract, but that there would be “appropriate discussions over a period of time to work out details.” Attorneys for Aronson and Fetridge exchanged letters on a variety of issues, and in one letter, dated November 21, 2001, Fet ⁶⁶³ ridge’s counsel indicated that “the amount of the deferred compensation” continued to be a matter requiring attention. Aronson’s counsel wrote a letter in response five days later stating that Aronson had informed Fetridge of the amount of his deferred compensation in previous correspondence. Aron-son and Fetridge did not have any further communication on the issue.

Cines testified that Aronson determined the date when Fetridge would be due his first quarterly payment, but “believed that there was going to be an invoke, an entitlement to offsets.” Cines agreed that Aronson had been advised by counsel that the first TEC payment would be due February 1st or March 1st of 2002 and that was her operating assumption at the time. After Fetridge’s death on January 2, 2004, Hinson began investigating a claim against Aronson regarding the TEC. Hinson met with Aronson representatives who indicated that Aronson was unwilling to pay a claim for TEC. According to Hinson, he was unaware of any Aronson request for Fetridge’s or the LLC’s books or records, or that Fetridge ever refused Aronson access to his books or records prior to the lawsuit.

On November 24, 2004, the Estate filed suit for breach of contract and violation of the Wage Law, seeking treble damages and attorney fees. After the Estate brought suit, Aronson issued a subpoena duces tecum to Fetridge, LLC, requiring the LLC to designate a witness and demanding production of records. The Estate sought a protective order to limit production to certain documents. Hinson testified that his understanding was that “at some point after the subpoena was received, the records of the LLC [had] been provided as appropriate.” Aronson resorted to obtaining some documents, however, by subpoenas issued to third parties.

A six day trial was held in the Circuit Court for Montgomery County beginning March 6, 2006. At trial, the Estate sought to establish its entitlement to the TEC, and sought interest on Fetridge’s deferred compensation, as called for in Section 9(c) of the Employment Agreement. When the Estate ⁶⁶⁴ sought to put forward expert testimony concerning the rate and calculation of interest, the court concluded that expert testimony was unnecessary, agreeing with Aronson’s counsel that the calculation was “arithmetical” and the Employment Agreement was detailed in setting forth how the jury should go about calculating interest. The jury returned a verdict in favor of the Estate on March 13, 2006, for $1,302,820.07 on the breach of contract count and $3,908,460.21 on the Wage Law count.

The amount awarded for Aronson’s violation of the Wage Law represents the jury’s treble damages award for its finding that there was an absence of “a bona fide dispute between the parties as to any payment of terminating employee compensation that may have been due” to Fetridge. The court stayed entry of the judgment against Aronson on March 20, 2006, pending resolution of the Estate’s request for attorney fees. Aronson then moved for judgment notwithstanding the verdict and for a new trial, or, in the alternative, for remittitur. The court heard argument on the motions and took them under advisement on June 30, 2006.

On February 23, 2007, the court issued a memorandum opinion denying Aronson’s motions for JNOV and for a new trial, concluding that 1) the TEC was subject to the Wage Law, 2) the jury was entitled to find that there was no “bona fide dispute” between Aronson and Fetridge that justified withholding payment, and 3) the Estate had produced evidence from which the jury could find that Aronson had breached the employment contract. The court granted remittitur, however, due to “the minimal evidence presented to the jury on the issue of interest, and the significant possibility that the jury accepted statements made by [the Estate’s] counsel in closing argument as evidence[.]” The court reduced Aronson’s base damages amount to $1,024,010.43 and the corresponding treble damages amount to $3,072,031.29. The Estate accepted the reduced verdict on March 22, 2007. The Estate sought an order, while Aronson’s post-trial motions were still pending, directing the clerk to enter judgment, nunc pro tunc, to the date of the verdict, and the court ⁶⁶⁵ granted that motion on May 2, 2007, back dating the remitted judgment to March 13, 2006.

Aronson filed its notice of appeal on May 16, 2007, and the Estate cross-appealed on May 22, 2007. DISCUSSION Standard Of Review Judgment notwithstanding the verdict (JNOV) is proper “when the evidence, at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense.” Kleban v. Eghrari-Sabet, 174 Md.App. 60, 85 , 920 A.2d 606 (2007). In reviewing a motion for JNOV, we “resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs right to recover.” Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53 (1961). We are to uphold the court’s denial of a JNOV “‘[i]f there is any evidence, no matter how slight, legally sufficient to generate a jury question[.]’ ” See CIGNA Prop. and Cas.

Companies v. Zeitler, 126 Md.App. 444, 488 , 730 A.2d 248 (1999). “The denial of a motion for JNOV is in error, however, ‘[i]f the evidence ... does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty[.]’ ” See Nationwide Mut. Ins. Co. v. Anderson, 160 Md.App. 348, 356 , 864 A.2d 201 (2004), cert. denied, 386 Md. 181 , 872 A.2d 46 (2005) (citation omitted). We may reverse the trial court’s judgment, moreover, if its denial of the motion was “ ‘legally flawed.’ ” See id.

Aronson’s Appeal Aronson’s Liability Under The Wage Law I. The Covenant Not To Compete “Maryland’s Wage Payment Act protects employees from wrongful withholding of wages by employers upon termi ⁶⁶⁶ nation.” Stevenson v. Branch Banking & Trust Corp., 159 Md.App. 620, 635 , 861 A.2d 735 (2004). LE section 3-505 provides that “[e]ach employer shall pay an employee or the authorized representative of an employee all wages due for work that the employee performed before the termination of employment, on or before the day on which the employee would have been paid the wages if the employment had not been terminated.” Under LE section 3-507.1, an employee has a private right of action to recover unpaid wages: “[I]f an employer fails to pay an employee in accordance with ... § 3-505 of this subtitle, after 2 weeks have elapsed from the date on which the employer is required to have paid the wages, the employee may bring an action against the employer to recover the unpaid wages.” The Wage Law, in LE section 3-501(c)(l), defines the term “[w]age” to mean “all compensation that is due to an employee for employment.” LE section 3-501(c)(2) adds that the term “[w]age includes: (i) a bonus; (ii) a commission; (iii) a fringe benefit; or (iv) any other remuneration promised for service.” In Medex v. McCabe, 372 Md. 28, 36 , 811 A.2d 297 (2002), the Court of Appeals indicated that “it is the exchange of remuneration for the employee’s work that is crucial to the determination that compensation constitutes a wage. Where the payments are dependent upon conditions other than the employee’s efforts, they lie outside of the definition.” (Citation omitted.) Aronson argues that Fetridge’s TEC cannot be recovered under the Wage Law because the contract conditions payment on Fetridge’s compliance with the covenant not to compete. Aronson contends, citing Stevenson, 159 Md.App. at 645-47 , 861 A.2d 735 , that a payment conditioned on a covenant not to compete is not recoverable under the Wage Law, regardless of whether the employee actually violated the covenant not to compete.

Aronson insists that Fetridge’s termination compensation, like the compensation in Stevenson , is explicitly a quid pro quo for Fetridge’s compliance with the covenant not to compete and is, therefore, not a wage “due for work ... ⁶⁶⁷ performed before the termination of [Fetridge’s] employment” and not eligible for the Wage Law’s remedies. See id. In Stevenson , we considered whether an employee could recover termination compensation under the Wage Law when the employment contract contained a provision stating, “if Employee breaches [the non-compete provisions in] section 4(a) of this Agreement during the period that [s]he is receiving Termination Compensation, Employee will not be entitled to receive any further Termination Compensationf.]” See id. We concluded that the provision conditioned the employee’s termination compensation on compliance with a covenant not to compete in a manner that removed the remuneration from the scope of the Wage Law.

See id. The termination compensation was not recoverable under the Wage Law because it did not qualify as a wage due for work performed before the termination of employment. It was, instead, “explicitly a quid pro quo” for the employee’s promise to refrain from competing with the employer. See id.

Aronson asserts that Fetridge’s employment contract is like the one in Stevenson because it provides that Fetridge’s Terminating Employee Compensation “shall be subject to the setoff rights contained in Section 10 hereof.” Aronson argues that Fetridge’s covenant not to compete for three years and Ax'onson’s setoff right to 30% of Fetridge’s fees earned from Aronson’s former clients constitutes a post-termination condition on the Terminating Employee Compensation which takes the payments outside of the Wage Law. We disagree. Aronson’s “right to offset against [TEC] payments it owes” for Fetridge’s violation of the Covenant Not to Compete is of a different nature than the condition on the termination compensation in Stevenson . Fetridge’s right to receive TEC was not conditioned on his compliance with the covenant not to compete.

We agree with the Estate’s characterization of the Employment Agreement, that it “sets forth Aronson’s independent obligation to pay Terminating Employee Compensation, the right to which vests upon termination, while simultaneously creating an arrangement under which Mr. Fetridge ⁶⁶⁸ would have been obligated to compensate Aronson had he earned more than $25,000 by offering ‘essentially the same services’ to former Aronson clients.” Black’s Law Dictionary defines “setoff’ as “[a] debtor’s right to reduce the amount of a debt by any sum the creditor owes the debtor.” Black’s Law Dictionary 1404 (8th ed. 2004). “The right of setoff (also called “offset”) allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding ‘the absurdity of making A pay B when B owes A.’ ” Citizens Bank of Maryland v. Strumpf 516 U.S. 16, 18 , 116 S.Ct. 286, 289 , 133 L.Ed.2d 258 (1995) (citation omitted). The “right to offset” in the Employment Agreement operates like the conventional setoff. It merely established Aron-son’s right to reduce the amount of termination compensation owed to Fetridge by the amount Fetridge owed Aronson for his compensation received from former Aronson clients in violation of the covenant not to compete. It did not condition Fetridge’s right to termination in the “if then” fashion as in Stevenson .

Unlike the Stevenson covenant, which dis-entitled the employee from “any further Termination Compensation” for a violation of the covenant not to compete, Fetridge was entitled to continue receiving the TEC, even if he violated the covenant not compete. His payments would merely be subject to a practical mechanism through which the parties could resolve their independent debt obligations. The TEC was, .accordingly, not a disqualifying quid pro quo for a promise to refrain from competing with Aronson, but was, instead, a wage due for work performed before the termination of employment, subject to Aronson’s right to collect what it was independently owed under Section 10 of the Employment Agreement.

II

The Payments’ Inclusion Of Profits Aronson asserts that termination compensation payments at issue were not “wages” because they constituted a share of ⁶⁶⁹ Aronson’s profits. Aronson argues that the TEC did not qualify as “wage” under Section 3-501(c) of the Wage Law, because Fetridge’s TEC consisted entirely of Fetridge’s Deferred Compensation Account, and the Deferred Compensation Account represented the allocation of Aronson’s profits to its officers from the prior fiscal year. According to Aronson, the Wage Law’s definition of “wage” under LE § 3-501 does not encompass a business’s allocation of its profits. Profits, Aronson insists, are not remuneration under the statute, because they are not directly tied to an employee’s efforts, but dependant on factors other than the employee’s efforts.

See Medex, 372 Md. at 36 , 811 A.2d 297 (payments which “are dependent upon conditions other than the employee’s efforts ... lie outside the definition” of a wage). 3 Aronson contends that, although structured as a Maryland professional corporation, it functioned as a partnership, and that its Deferred Compensation Accounts were functionally identical to partnership capital accounts. In support of its position, Aronson points to expert testimony indicating that Aronson’s board would allocate the firm’s profits to the Deferred Compensation Accounts of its officers based on a number of factors, including the number of hours billed on matters supervised by the officer, and the officer’s management and administration of the firm. It also emphasizes that the deferred compensation payments were tied to the firm’s profits and points to testimony that (1) a discretionary portion (15%) was determined by the board with no set criteria, and (2) the amount of the Deferred Compensation Account would be affected by profits and losses. ⁶⁷⁰ In Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295 , 783 A.2d 667 (2001), the Court of Appeals considered whether a bonus, in the form of profit-sharing, qualified as a “wage” under LE section 3-501(c). The Court, first, synthesized what employers are required to pay terminated employees under LE section 3-501(c): [W]hat is due an employee who terminates employment with an employer are wages for work performed before termination, or all compensation due to the employee as a result of employment including any remuneration, other than salary, that is promised in exchange for the employee’s work.

Subsection (c)(1) provides the definition of “wage,” while subsection (c)(2) gives examples of the compensation, other than periodic salary, that the definition encompasses. Read together, the wages which an employee is due, and which must be paid on termination of employment, consist of all compensation, and any other remuneration, that the employee was promised in exchange for his work. In other words, ... to be wages, “to be included within the statute, the payment must have been promised to the employee as compensation for work performed.” Id. at 303 , 783 A.2d 667 (emphasis added). The Court then addressed whether the Whiting-Turner employee’s profit-sharing payment, qualified as a wage under the Wage Law, given that it was not a part of the compensation promised to the employee.

The Court concluded that the profit-sharing bonus at issue was not a wage, as it was merely a gift, but that it would have been a wage had it been offered for the employee’s fulfillment of the terms in the employee’s compensation package: When the petitioner hired the respondent, the parties agreed on a salary and, after two years of employment and depending on the profitability of the company, profít sharing. Had the respondent been with the petitioner for two years when the decision was made to offer him a bonus and had the ñnancial condition of the petitioner justified it, there would be no doubt of the respondent’s entitlement, that he would have earned the distribution in this ⁶⁷¹ case. That is so because sharing in the profits of the company after two years was promised as part of the respondent’s compensation package. Here, however, the petitioner decided to give the respondent a bonus before he had been employed for two years.

Where such remuneration is not a part of the compensation package promised, it is merely a gift, a gratuity, revocable at any time before delivery. Id. at 305-06 , 783 A.2d 667 (emphasis added). Whiting-Turner, therefore, instructs that payments comprising a business’ profits can, as a matter of law, constitute a wage under LE section 3-501, as long as they are “promised as compensation for work performed.” See id. at 303-06 , 783 A.2d 667 . The Medex Court, in stating that payments which “are dependent upon conditions other than the employee’s efforts ... lie outside of the definition” of a wage, merely explains its holding in Whiting-Turner, that payments, which are merely offered as a gratuity, revocable at any time before delivery, and not promised for service, do not qualify as wages under the Wage Law.

See Medex, 372 Md. at 36-37 , 811 A.2d 297 . The Medex Court does not require that each dollar received be tied to specific actions by the employee. The jury was entitled to conclude that Fetridge’s TEC, unlike the profit-sharing payment in Whiting-Turner, was “promised as compensation for work performed” from the terms of his Employment Agreement and Aronson’s tax treatment of the payments. Recital B of the agreement states that “[b]oth Employer and Employee desire that Employee remain in the employ of Employer in the aforesaid capacity.” In consideration of this, Aronson promised Fetridge, inter alia, to pay TEC as called for in Section 8(c) upon his involuntary termination.

Fetridge’s entitlement to the compensation, therefore, merely required his continued employment with Aronson, followed by his involuntary termination. The jury could conclude from these terms that Aronson was promised termination compensation for his employment, and that he ⁶⁷² fulfilled the terms of the Employment Agreement when he remained an Aronson employee until his involuntary termination on November 9, 2001. The Estate also introduced W-2 wage and tax statements and tax returns, and took testimony from Aronson’s internal accounting manager and others, indicating that Aronson reported the Deferred Compensation Account and TEC payments as wages. The Estate’s expert, Bruce Dubinsky, testified about the significance of recording a payment of terminating employee compensation as a wage: payments recorded as wages are tax deductible.

To qualify for the deduction, federal regulations require that payments be purely for services. Aronson’s tax treatment of these payments as wages provided additional relevant evidence from which the jury could conclude that these payments were promised in exchange for Fetridge’s services.

III

The Plain Language Of The Wage Law Aronson argues that the Fetridge’s TEC is not recoverable under the plain language of LE § 3-505, because it would not have been due “if the employment had not been terminated.” LE § 3-505 provides that “[e]ach employer shall pay an employee or the authorized representative of an employee all wages due for work that the employee performed before the termination of employment, on or before the day on which the employee would have been paid the wages if the employment had not been terminated.” Aronson insists that the fundamental principles of statutory interpretation require us to read the final clause in LE § 3-505, stating that an employer must pay an employee as “if the employment had not been terminated” as necessarily excluding payments that arise from termination. According to Aronson, a contrary interpretation would render that clause superfluous and nugatory. Our decision in Stevenson, 159 Md.App. at 644 , 861 A.2d 735 quickly disposes of this claim. In Stevenson , we rejected an argument “that severance pay falls outside the scope of the ⁶⁷³ [Wage Law] because it does not compensate employees for work performed before termination[:]” Given the broad language of the statute and its remedial purpose, we conclude that the scope of Maryland’s Wage Payment Act extends to the type of severance pay that represents deferred compensation for work performed during the employment.

Thus, a severance benefit that is based on the length and/or nature of the employee’s service, and promised upon termination, may be recoverable under the Wage Payment Act. Id. at 644 , 861 A.2d 785 . We found persuasive the observation in Botany Mills, Inc. v. Textile Workers Union of Am., 50 N.J.Super. 18 , 141 A.2d 107, 113 (1958) that severance pay “has often been said to be in the nature of deferred compensation, in lieu of wages, earned in part each week the employee works, and payable at some later time.” See Stevenson, 159 Md.App. at 644 , 861 A.2d 735 (emphasis omitted). Although we focused our analysis in Stevenson on the first clause of LE section 3-505, i.e. whether severance pay qualified as “wages due for work that the employee performed before the termination of employment,” we necessarily concluded that the second clause of LE section 3-505 did not disqualify severance pay from the Wage Law’s coverage.

See id. at 635-42 , 861 A.2d 735 . The second clause in LE section 3-505, stating that wages are to be paid “on or before the day on which the employee would have been paid wages if the employment had not been terminated[,]” does not define the type of remuneration subject to the Wage Law. This is addressed in the first clause of LE section 3-505 and in section 3-501, which provides what a “wage” includes in the subtitle. The second clause in LE section 3-505 instead simply instructs employers as to when they are to pay “wages due” upon termination, which is when such remuneration was regularly paid according to the terms of employment.

See Friolo v. Frankel, 373 Md. 501, 513 , 819 A.2d 354 (2003)(stating that “[t]he focus of [section 3-505 of the Wage Law] is [ ] on ... ⁶⁷⁴ the duty to pay whatever wages are due on a regular basis and to pay all that is due following termination of the employment.”) Severance pay, a form of deferred compensation for work performed during the employment, is regularly owed upon an employee’s termination. We are to “consider the meaning of the statutory language in the context of the overall statutory scheme[,]” see Whiting-Turner, 366 Md. at 302 , 783 A.2d 667 , when endeavoring to “apply the statute in the manner designed by the legislature.” See Stevenson, 159 Md.App. at 637 , 861 A.2d 735 . Were we to read the second clause of LE section 3-505 in isolation, as Aronson suggests, and conclude from it that termination compensation cannot qualify because it could not be due “if the employment had not been terminated[,]” we would indulge an interpretation that undermines the Wage Law’s remedial purpose to ensure that employees are paid “ ‘all that is due following termination of the employment.’” See id. at 635-44 , 861 A.2d 735 (citing Friolo, 373 Md. at 513 , 819 A.2d 354 ). Section 3-505, therefore, required Aronson to pay Fetridge what he was regularly due under the terms of the Employment Agreement.

This included TEC according to Section 9(c), which states that he would be paid “twelve (12) equal quarterly installments” with the first installment being paid “on the first day of the fourth (4th) month after [his] termination of employment.” IV. The Treble Damages And Attorney’s Fees Aronson challenges the awards of treble damages and attorney’s fees, claiming that the evidence presented at trial established conclusively that a “bona fide dispute” existed regarding whether and to what extent Aronson owed Fetridge TEC.