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Guardian Alarm Company v. Nicholas Portentoso

October 24, 2011


Appeal from Fostoria Municipal Court Trial Court No. CVF-09-014

The opinion of the court was delivered by: Willamowski, J.

Cite as Guardian Alarm Co. v. Portentoso,


Judgment Affirmed in Part, Reversed in Part and Cause Remanded

{¶1} Defendant-Appellant, Nicholas Portentoso ("Portentoso"), appeals the judgment of the Fostoria Municipal Court ordering him to pay $15,000 to his former employer, Plaintiff-Appellee Guardian Alarm Company ("Guardian"), pursuant to the terms of an employment agreement requiring the repayment of excess draws against commissions. On appeal, Portentoso contends that the trial court erred in finding that an enforceable contract existed; that the judgment was against the manifest weight of the evidence; and, that the trial court erred in denying his Civ.R. 41(B)(2) motion to dismiss. For the reasons set forth below, the judgment is affirmed in part and reversed in part.

{¶2} On January 26, 2004, Guardian hired Portentoso for a sales position as a "security consultant" to sell commercial security systems, including fire and burglar alarms as well as various access control monitoring systems. Portentoso worked for Guardian for more than a year and did his work properly, according to Guardian's testimony. However, in March of 2005, Portentoso was indicted on felony charges unrelated to his employment. Because of the sensitive nature of Guardian's security business, the company has a strict policy against employing anyone with a felony record. Guardian terminated Portentoso, an "at-will" employee, in March of 2005.

{¶3} When Guardian first hired Portentoso, it paid him a guaranteed weekly salary of $700 during a three-month (14 weeks) training period. Beginning May 1, 2004, his compensation was to be based upon commissions plus potential bonuses. Guardian continued to pay him $700 weekly. After his termination, Guardian claimed that Portentoso owed Guardian $17,445.47 in excess payments of draws against commissions. Guardian maintained that Portentoso signed an employment agreement stating that employees were responsible for the repayment of any draw overpayments. The company attempted to collect the amount owed.*fn1

{¶4} In January 2009, Guardian filed suit against Portentoso to collect the alleged overpayments. Portentoso filed an answer denying that he owed Guardian any money. He also filed a counter claim asserting that Guardian owed him additional monies for commissions earned and business generated. Guardian moved for summary judgment on Portentoso's counter claim, which was granted by the trial court.*fn2 On September 15, 2010, a bench trial was held on Guardian's claims against Portentoso.

{¶5} Kristine Zielinski ("Ms. Zielinski"), a regional general manager for Guardian, testified on behalf of Guardian. She testified that Portentoso signed a Standard Sales Employment Packet (the "Employment Agreement," admitted into evidence as Plaintiff's Exhibit A), which contained the terms of all sales consultants' employment with Guardian. According to this Employment Agreement, the company established draw accounts for employees with payments made against future commissions. The terms of the "Draw Accounts" section stated that:

In the event that an employee's draw account has a deficit balance at the time of the employee's termination with Guardian, the employee agrees to allow Guardian to deduct any such deficit from said employee's final payroll settlement. Furthermore, the employee agrees to re-pay Guardian any remaining deficit within 30 days of termination of said employee's employments.

(Ex. A., p. 3; Tr. p. 75.)

{¶6} Ms. Zielinski testified that after Portentoso was terminated, she took information from payroll and monthly reports to put together a "commission log" worksheet ("the Worksheet"). (Tr. pp. 45-47; 93.) This Worksheet, which Ms. Zielinski created as part of an interoffice memo dated September 14, 2005, showed that Portentoso accrued a shortage against his draw for every month that he worked for Guardian after he completed his training period, beginning in May 2004 through March 2005. The Worksheet, admitted as Plaintiff's Exhibit A-1, listed the amounts Portentoso received for his draw each month (either $2,800 or $3,500), and listed the monthly amounts that were credited for his commissions earned and bonuses. The Worksheet showed that Portentoso had accrued a deficit against his draws of $14,973.32 for the eight months (following his training period) he worked in 2004; $17,790.20 at the time of his termination in March 2005; and a final total deficit of $17,445.47 by July 2005, after subtracting the commissions that were credited after his termination. (Tr. 20-23; Ex. A-1.)

{¶7} On cross examination, Ms. Zielinski admitted that she had not personally negotiated or discussed Portentoso's terms of employment with him nor did she actually see him sign an Employment Agreement. Both Ms. Zielinski and Portentoso testified that Michael McMullin ("Mr. McMullin") was Portentoso's sales manager; Mr. McMullin made the decision to hire Portentoso, and Mr. McMullin was the person who was primarily responsible for managing Portentoso and communicating company business with him.*fn3 Ms. Zielinski testified that the company had the original signature page signed by Portentoso in its files, but she did not have personal knowledge that the first six pages of the Employment Agreement submitted as Exhibit A was the same contract shown to Portentoso. (Tr. pp. 49-53.) However, Ms. Zielinski testified that it was typical procedure for a sales manager to give a new employee the entire Employment Agreement and then send her only the final signature page, page 7, to keep in the company's files. She testified that she "assumed" that the Employment Agreement that she attached to Portentoso's signature page was the same as the one that was a part of the agreement he signed because every employee in that position was given the same agreement. (Tr. p. 52.)

{ΒΆ8} Ms. Zielinski also acknowledged that, although Portentoso was hired in January of 2004, the signature page was not signed and dated until nearly eleven months later, in December of 2004. The signature page is signed by Portentoso in the "Employee" column, and it is signed or initialed by Ms. Zielinski (as General Manager), the Director of H/R, the Director of Finance, and the company President on the "Guardian" side of the page. All of the signatures are dated "12/13/04" or "12/13." Furthermore, the heading on the first page of the Employment Agreement states that the "Effective Date" is "01/01/05." Ms. Zielinski conceded that Portentoso had worked for almost a year before he ever allegedly signed this Employment Agreement, stating that "[t]his was a change in his previous contract that was effective January 1 of '05. He would have had a different contract prior to that." (Tr. p. 52.) Ms. Zielinski testified that "there probably is a contract that he signed in January of '04 that I might have with me. I don't recall. * * * I'd have to look." (Tr. p. 36.) No agreement ...

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