Court of Appeals of Ohio, Eleventh District, Portage
EDWARD F. GEMBARSKI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellee,
PARTSSOURCE, INC., Defendant-Appellant.
Appeal from the Portage County Court of Common Pleas, Case
No. 2013 CV 0001.
J. Connick, Connick Law, LLC, (For Plaintiff-Appellee).
Jeffrey J. Wedel, Stephen S. Zashin, and Helena Oroz, Zashin
& Rich Co., L.P.A., Ernst & Young Tower, (For
CYNTHIA WESTCOTT RICE, P.J.
Appellant, PartsSource, Inc., appeals from the judgment of
the Portage County Court of Common Pleas, granting a motion
to certify class action filed by appellee, Edward F.
Gembarski. At issue is whether a class defined as all current
and former employees who earned commissions from the sales of
medical equipment and whose earned commissions were subject
to rescission if the accounts were not paid within a
ninety-day period satisfies the requirements of Civ.R. 23 for
certification. We affirm the trial court's judgment.
On October 1, 2012, appellee filed a class-action complaint
for damages against appellee in the Summit County Court of
Common Pleas. Appellee filed an answer and the case was
transferred to the Portage County Court of Common Pleas by
stipulation of the parties. On September 22, 2015, appellee
filed a motion to certify class action and a motion to
modify/amend class definition. Appellee opposed the motion.
On March 31, 2016, the motion to modify/amend class
definition was granted On May 2, 2016, appellant filed a
brief in opposition to appellee's motion to certify class
action and, on June 23, 2016, a class certification hearing
was held before the magistrate.
On September 30, 2016, the magistrate issued findings of fact
and conclusions of law. The following are taken from the
"Mr. Gembarski was an Account Representative, i.e.,
salesman, who sold medical replacement parts. PartsSource is
in the business of selling medical equipment replacement
"Mr. Gembarski was paid by commission only. He did not
receive a salary.
"There were allegedly at least 75 persons who were in
the same position as Mr. Gembarski and earned their
commissions in the same manner he did. Other employees have
placed that number, to their knowledge, at anywhere between
"Commissions are allegedly earned when a part is sold
and then delivered to a customer, and then paid to the
Account Manager within 30 days therefrom on the next
commission statement. Then, that money actually went into the
Account Manager's paycheck and allegedly became their
"PartsSource allegedly took back the commissions
allegedly earned by Plaintiff and the putative class, and
that money has never been returned. And this same alleged
wrongful taking of the alleged earned commissions happened to
Mr. Gembarski as well as approximately 75-120 other Account
Managers. Mr. Gembarski has personal knowledge of the list of
Account Managers PartsSource regularly sent out advising that
they were having their commissions pulled, and whose
complaints were exactly the same as Mr. Gembarski's.
The court certified the class and defined the same as
follows: "All current and/or former PartsSource, Inc.
Account Managers and/or employees who are or ever have been
subject to Defendant PartsSource, Inc.'s policy and
wrongful practice of reducing, withholding or deducting, i.e.
taking back or 'pulling' earned commissions on sales
of medical equipment and/or supplies."
Appellant filed objections to the magistrate's decision,
which were opposed by appellee. Ultimately, the trial court
overruled appellant's objections and adopted the
magistrate's decision. Appellant now appeals and assigns
three errors for our review. Its first assignment of error
"The trial court abused its discretion by adopting the
magistrate's findings, which adopted appellee's
proposed findings verbatim, over appellant's objection
where the record does not contain competent and credible
evidence supporting those findings."
"A trial court must conduct a rigorous analysis when
determining whether to certify a class pursuant to Civ.R. 23
and may grant certification only after finding that all of
the requirements of the rule are satisfied; the analysis
requires the court to resolve factual disputes relative to
each requirement and to find, based upon those
determinations, other relevant facts and the applicable legal
standard, that the requirement is met." Cullen v.
State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373,
2013-Ohio-4733, paragraph one of the syllabus.
The Ohio Supreme Court has identified seven prerequisites for
maintaining a class action derived from Civ.R. 23:
"(1) an identifiable class must exist and the definition
of the class must be unambiguous; (2) the named
representatives must be members of the class; (3) the class
must be so numerous that joinder of all members is
impracticable; (4) there must be questions of law or fact
common to the class; (5) the claims or defenses of the
representative parties must be typical of the claims or
defenses of the class; (6) the representative parties must
fairly and adequately protect the interests of the class; and
(7) one of the three Civ.R. 23(B) requirements must be
met." Hamilton v. Ohio Savings Bank, 82 Ohio
St.3d 67, 71 (1998).
Moreover, "Civ.R. 23(B)(3) states that in order to
certify a class in an action for damages, two findings must
be made by the trial court. First, it must find that
questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members; and second, the court must find that a class action
is superior to other available methods for the fair and
efficient adjudication of the controversy." In re
Consol. Mgte. Satisfaction Cases, 97 Ohio St.3d 465,
2002- Ohio-6720, ¶7. "A party seeking certification
pursuant to Civ.R. 23 bears the burden of demonstrating by a
preponderance of the evidence that the proposed class meets
each of the requirements set forth in the rule. Cullen,
supra, at paragraph three of the syllabus.
"A trial judge has broad discretion in determining
whether a class action may be maintained and that
determination will not be disturbed absent an abuse of
discretion." Marks v. C.P.Chem. Co., Inc., 31
Ohio St.3d 200 (1987), syllabus. The abuse of discretion
standard "applies to the ultimate decision of the trial
court, * * * as well as to its determination regarding each
requirement of the rule." Cullen, supra, at
¶19. Nevertheless, as in a general civil case, where
"the burden of persuasion is only by a preponderance of
the evidence, * * * evidence must still exist on each element
(sufficiency) and the evidence on each element must satisfy
the burden of persuasion (weight)." Id. at
¶19, citing Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, ¶19.
Under its first assignment of error, appellant contends the
trial court erred by adopting, verbatim, appellee's
proposed findings of fact and conclusions of law, despite the
submission being "replete with verbatim errors,
misstated testimony, and other inaccuracies." Appellant
incorporates by reference its "forty-two objections,
filed with the trial court on October 4, 2016, " but,
"in interest of brevity, " provides illustrative
examples of errors in the magistrate's decision.
First, appellant challenges the magistrate's finding that
appellee seeks certification "of a class of Account
Managers who sold medical equipment and/or parts for
Defendant PartsSource, " and, in a footnote, observed
that "Account Managers, Sales Representatives and
Customer Service Representatives are used, at times,
interchangeably herein." Appellant counters that, at the
certification hearing, appellee testified that the proposed
class included account managers, senior account managers, and
strategic account managers, but not product managers.
Appellant also notes that Charles Koch, its Chief
Administrative Officer, testified that different categories
of employees were compensated differently so that the titles
were not interchangeable.
We find the objection fails to identify a recognizable error.
The class certified by the trial court includes any of
appellant's employees who received commissions from the
sale of medical equipment and/or supplies and who were
subject to an allegedly improper policy of having earned
commissions rescinded. Membership in the class does not
depend on job title, responsibilities, or overall
compensation package. Moreover, Koch testified by deposition
that there were a variety of titles that were applied to
salespersons who were, nonetheless, paid by
Appellant next asserts the magistrate erred when it found
that appellee was employed with it through 2011 when, in
fact, he was employed through 2012. Appellant acknowledges
that the trial court recognized this objection as valid and
corrected the error, but counters that if the court had
conducted a thorough review of the Magistrate's Decision
before adopting it, there would have been no need to raise an
Appellant also maintains the magistrate erred when it
identified appellee as an Account Representative, not
acknowledging that he held other positions and/or titles
during his employment with it.
These objections are inconsequential to the ultimate issue of
class certification. As such, any error is harmless as a
matter of law.
Next, appellant argues the magistrate erred in finding that
at least 75 persons "were in the same position as Mr.
Gembarski and earned their commissions in the same manner he
did." Appellant counters that appellee testified that he
only had personal knowledge of six other employees'
compensation plans and, therefore, speculated about the
We discern no error in the foregoing. The magistrate's
finding fairly reflects appellee's testimony, which was
based on complaints he heard from approximately 50 or 60
other salespersons ("100 percent" of them) who had
commissions "pulled back." The magistrate also
cited the deposition testimony of Daniel Brenner, the
Director of Customer Implementation for appellant, who
estimated that there were between 45 and 65 persons who sell
medical parts for commission at any given time. Koch in his
deposition testimony referred to "140 or so sales
reps" who had received reduced commissions over a number
of years. The magistrate's finding is therefore
adequately supported by the record.
Appellant next contends the magistrate's finding that a
salesperson's "money actually went into the Account
Manager's paycheck and allegedly became their personal
property" is based only on appellee's opinion. We do
The magistrate properly conditioned the status of the money
that went into a salesperson's paycheck by the use of the
qualifying adverb "allegedly." That such money
became the salesperson's personal property was not only
Gembarski's opinion, but that of Brenner and Koch as
well. The point at which a commission is actually earned is,
of course, one of the ultimate factual issues to be decided
in this case. For the purpose of class certification, the
magistrate is not deciding the ultimate issues of the case,
but merely describing appellee's theory of recovery. Such
analysis is expressly sanctioned by the Ohio Supreme Court.
See Stammco, LLC. v. United Tel. Co. of Ohio, 136
Ohio St.3d 231, 2013-Ohio-3019, syllabus. ("At the
certification stage in a class-action lawsuit, a trial court
must undertake a rigorous analysis, which may include probing
the underlying merits of the plaintiff's claim, but only
for the purpose of determining whether the plaintiff has
satisfied the prerequisites of Civ.R. 23.")
With respect to appellant's remaining 37 objections, we
decline to consider them as they have not been properly
raised before this court. "Parties cannot simply
incorporate by reference arguments they made to the trial
court in their appellate brief." Deutsche Bank Natl.
Trust Co. v. Taylor, 9th Dist. Summit No. 28069,
2016-Ohio-7090, ¶14, fn. 1, citing App.R. 16(A)(7)
("[t]he appellant shall include in its brief * * * [a]n
argument containing the contentions of the appellant with
respect to each assignment of error presented for
review") and App.R. 12(A)(2) ("[t]he court may
disregard an assignment of error presented for review if the
party raising it * * * fails to argue the assignment
separately in the brief, as required under App.R.
16(A)"); see also Kulikowski v. State Farm Mut. Ins.