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Poirier v. Process Equipment Co. of Tipp City

Court of Appeals of Ohio, Second District, Montgomery

May 18, 2018

RICK POIRIER, Plaintiff-Appellant

          Civil Appeal from Common Pleas Court Trial Court Case No. 2016-CV-2848

          WAYNE E. WAITE, Atty. Reg. No. 0008352, Attorney for Plaintiff-Appellant.

          RICHARD A. TALDA, Atty. Reg. No. 0023395, and JENNIFER R. GREWE, Atty. Reg. No. 0092329, Attorneys for Defendant-Appellee.


          WELBAUM, P.J.

         {¶ 1} This case is before us on the appeal of Plaintiff-Appellant, Rick Poirier, from a summary judgment rendered in favor of Defendant-Appellee, Process Equipment Co. of Tipp City ("PECo"). In support of his appeal, Poirier contends that the trial court erred in striking his Civ.R. 41(A)(1) notice of dismissal without prejudice, which was filed after the trial court had granted summary judgment to PECo.

         {¶ 2} We conclude that the trial court lacked jurisdiction over the case once Poirier filed a notice of dismissal under Civ.R. 41(A)(1). Although the trial court had issued a summary judgment decision in PECo's favor, the decision was interlocutory and was not a final order, because the issue of attorney fees had not been resolved and the trial court had not included a Civ.R. 54(B) certification in its decision. Since the decision was interlocutory, Poirier was able to file a notice of dismissal under Civ.R. 41(A)(1). Once the notice of dismissal was filed, the action was as if it had never been filed, and the trial court erred in striking Poirier's notice of dismissal. Accordingly, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings.

         I. Facts and Course of Proceedings

         {¶ 3} On June 8, 2016, Poirier filed a complaint against PECo for monetary damages and equitable relief, based on PECo's alleged breach of Poirier's manufacturer's representative agreement. The complaint alleged four causes of action against PECo: breach of contract; conversion of fees paid by Poirier's clients; violation of the statutory duty in R.C. 1335.11 when PECo failed to pay Poirier's commissions from 2013 to 2016; and unjust enrichment. As a remedy, Poirier asked to be paid commissions in excess of $25, 000, punitive damages, attorney fees, and any other relief the court deemed appropriate.

         {¶ 4} The facts in the case were undisputed. According to the complaint, PECo and Poirier entered into a manufacturer's representative agreement in mid-August 2013. Under the agreement, which was attached to the complaint as Exhibit 1, PECo appointed Poirier to act as a non-exclusive or sales-specific sales representative for customers and prospective customers described in Ex. A (the Territory). The specified territory was Fanuc Robotics in Detroit, Michigan, and Spacex, in Los Angeles, California.

         {¶ 5} Poirier was to be paid commission on all products sold within the Territory and was to be paid compensation based entirely on commission. Under the agreement, Poirier was to be paid commission on actual amounts that were collected within 30 days after PECo rendered an invoice to a customer and received payment. The commission schedule provided for a certain percentage of commission for each production purchase order, and further provided for spilt commissions. Concerning split commissions, the agreement stated that "[i]n the event that two or more representatives work in collaboration with PECo, commission will be spilt in accordance with the effort of the Representatives. PECo will make the determination of the level of activity shown by the representative." Complaint, Ex. C attached to Ex. 1, p. 2.

         {¶ 6} The agreement also contained a termination clause, which provided that:

X. Termination. The Agreement shall take effect as of the day and year written above and shall continue in force until terminated as hereinafter provided. After the effective date of this Agreement, either party may terminate this Agreement with or without cause upon 30 days written notice (hereafter referred to as the "Notice Period"), sent by certified mail, return receipt requested, to the other party. During said 30 day Notice Period, this Agreement shall continue in full force and effect in all respects and may not be shortened without the express written consent of both parties. In the event of termination, the Company shall also pay to the Representative "Post Termination Commissions" on orders received after the date of such written notice from quotations submitted to accounts located in the Representative's territory prior to termination. The Company will honor such orders for a period of 6 months after the date of written notice of termination. During such Post Termination Period, the Representative shall not directly or indirectly pursue or have contacts with any other firms that compete with the Company.

Complaint, Ex. 1, p. 3.

         {¶ 7} Also attached to the complaint was a letter dated September 28, 2015, from PECo to Poirier. The letter indicated that PECo was terminating Poirier's representative agreement, which had previously been verbally terminated by Poirier and Richard Schafer in February 2015. The letter further indicated that PECo had not received any communication from Poirier relaying Poirier's representative activities with Fanuc on PECo's behalf in the past year. In addition, the letter stated that when PECo's CEO, Susan Springhetti, had questioned Poirier about his activity for 2014/2015, Poirier's expressed activity (one visit to Fanuc in one year) was inadequate. In the complaint, Poirier contended that after his termination, PECo had refused to pay him commissions that were due.

         {¶ 8} On July 15, 2016, PECo filed its answer to the complaint, and it admitted that the documents attached to the complaint were true and accurate copies of the documents that were involved. PECo asserted various defenses, including that the complaint failed to state a claim, that the claims were barred due to Poirier's lack of performance and breach of agreement, by a lack of consideration, by lawful termination of the contract, by equitable doctrines of laches, estoppel, wavier, and unclean hands, and so forth. PECo, therefore, asked that the complaint be dismissed at Poirier's cost, and that it be awarded the costs of litigation, including reasonable attorney fees.

         {¶ 9} In late December 2016, the trial court filed a final pretrial order, setting a final pretrial conference for April 13, 2017, and a bench trial for April 25, 2017. Shortly thereafter, on January 9, 2017, PECo filed a motion for summary judgment. The essence of the motion was that Poirier had breached the contract by doing nothing, and that he was not entitled to any commissions.

         {¶ 10} The motion was supported by the affidavit of Springhetti, who indicated that she had met with Poirier in the fall of 2014 to discuss what activities Poirier had conducted on behalf of and to represent PECo. At that time, Poirier stated that the extent of his efforts was only one trip to Fanuc in 2014 with Richard Schaefer, PECo's sales representative. Springhetti then asked that Poirier send her notification of his trips, contacts made, communications, discussion topics, and the purpose of visits to, and contact with, PECo customers. However, after the fall 2014 meeting, Springhetti did not receive any information that she had requested, including evidence that Poirier was performing work for PECo. The only "sales" activities that Poirier had engaged in since entering the agreement in 2013 were two visits to Fanuc. During those visits, Poirier was accompanied by Richard Schaefer, who led the meetings and did a majority of the communicating with the client. Springhetti stated that Poirier's "presence and participations at these meetings was minimal at best." PECo Motion for Summary Judgment, Ex. 1 (Affidavit of Susan Springhetti), p. 3. Springhetti further indicated that PECo had been damaged by Poirier's failure to perform and by paying him commissions, and that Poirier had not conferred any benefit on PECo.

         {¶ 11} In addition, Springhetti stated that Poirier was notified in February 2015 that his agreement was being terminated due to his failure to perform. PECo sent a follow-up letter on September 28, 2015, confirming the February 2015 oral termination. According to Springhetti, PECo determined that Poirier had not shown the level of activity that the Agreement required for payment of commissions, as Poirier had not done any work or service to earn them. Springhetti further indicated that while PECo did not believe Poirier was entitled to any commissions due to his failure to comply with a material term of the agreement, i.e., perform work and services, PECo paid commissions to Poirier up through December 2014.

         {¶ 12} Springhetti also included documents that Poirier had produced in response to PECo's request for production of documents. Specifically, PECo asked for any documents that would support Poirier's claim that he had conducted business activities on PECo's behalf, and that demonstrated his claim for damages. Poirier produced only nine pages of documents, which included: (1) what appears to be copies of seven payments totaling more than $30, 000 that he had received from PECo between March 19, 2015, and June 24, 2015 (most of which were labeled "4th QTR Comm."); (2) a few emails between Poirier and a PECo employee, during one of which he mentioned that a meeting with Spacex had gone well; and (3) minimal correspondence between Poirier and Springhetti in September 2015 regarding his termination.

         {¶ 13} In responding to the summary judgment motion, Poirier did not file an affidavit or any materials other than what had been filed with his complaint. Poirier contended that the contract was not terminated until September 28, 2015, and that he was due commissions for six months after termination. However, he did not produce proof of any orders that he produced at any time during the agreement.

         {¶ 14} On March 8, 2017, the trial court granted summary judgment in PECo's favor on all counts in the complaint. The court concluded that PECo had presented evidence that Poirier failed to perform under the contract and that Poirier did not refute this fact. The court further concluded that no conversion had occurred because Poirier failed to identify any commissions that had not been paid; in view of this fact, the issue of when Poirier was terminated was also irrelevant. As to the claim under R.C. 1335.11, the court found a lack of evidence that Poirier was due any commissions past December 2014. And finally, the court rejected Poirier's claim of unjust enrichment because Poirier had not conferred any benefit on PECo.

         {¶ 15} In its decision, the court also set a non-oral hearing for March 21, 2017, at which time PECo was to submit evidence of reasonable attorney fees and costs due. Poirier was then given seven days thereafter to respond to any submission. The court noted that the decision was a final appealable order but the court did not include a Civ.R. 54(B) certification. In addition, the court noted that the decision had been electronically transmitted to the parties.

         {¶ 16} On March 16, 2017, Poirier filed a notice of voluntary dismissal pursuant to Civ.R. 41(A), and dismissed his claims against PECo, without prejudice. Subsequently, on March 21, 2017, PECo submitted its request for attorney fees and costs totaling $14, 662.28. The same day, PECo filed a motion to strike Poirier's voluntary dismissal. The court then granted the motion to strike ...

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