Seidler v. FKM Advertising, Co.

DeGENARO, J., dissenting:

I must respectfully dissent from the majority's opinion. The majority has misconstrued Weiper v. W.A. Hill Assoc. (1995), 104 Ohio App.3d 250. Properly applying the Weiper analysis requires reversal of the trial court's decision.

The fundamental question before this court is why, among all the people employed to sell billboard space, this plaintiff is entitled to receive post-employment commissions when the industry custom is not to pay these commissions. In order to answer this question, this court must be guided by two competing interests, the equitable considerations involving this particular employee and the public policy principle that courts should not second-guess business decisions. The majority has addressed the equitable issue in this case without any consideration of the public policy issue.

In order for a court to determine when the right to a post-employment commission vests absent some form of mutual assent, a court must considerboth the employee's efforts and industry custom. Weiper v. W.A. Hill Assoc., supra at 250. The reason a court applies this method of analysis is that "[s]imply because a commissioned employee through his or her efforts makes a company more profitable does not entitle that person to post-employment commissions." Id.

The majority seems to be saying otherwise when it states "Appellants receive a windfall every time they terminate an employee because they do not pay commissions on the contracts previously controlled by that employee until those contracts come up for renewal months or even years later." At 6. This court should let the free-market address this concern. If Appellant hires and fires salespeople in order to receive that windfall, then no one will want to work for Appellant and the market will prevail, thereby motivating Appellant to change its policy. Courts should not place themselves "in the untenable position of having to second-guess the business judgments of employers." Mers v. DispatchPrinting Co. (1985), 19 Ohio St.3d 100, 103. Because of this public policy principle, this court should look to more than just equitable considerations, and apply the Weiper analysis in this case.

The majority attempts to distinguish Weiper by juxtaposing the type of commission denied the plaintiff in Weiper against the type of commission sought in this case. Although the plaintiff in Weiper was seeking commissions in perpetuity, and this may have contributed to the court's decision, it is not the sole reason to use the analysis in the first place. This distinction with regard to the duration of the post-employment commissions sought merely reinforced the point in Weiper that the employee's efforts while still an employee were not sufficient to justify giving him commissions beyond his termination in contravention of industry custom.

Instead of using Weiper's two-pronged analysis, the majority relies on two cases, Finsterwald-Maiden v. AAA South Central Ohio (1996),115 Ohio App.3d 442 and McKelvey v. Spitzer Motor Ctr., Inc. (1988),46 Ohio App.3d 75, which solely address employee efforts. Both of these opinions are silent as to whether industry custom was a factor in those decisions. Weiper calls for courts to consider both the employee's efforts as well as industry custom. In the case sub judice, the uncontroverted evidence is that the industry standard is to not pay post-employment commissions. Tr. pp. 65-6, 79. Both the magistrate and the majority disregard this evidence. It is for this reason that bothFinsterwald-Maiden and McKelvey are distinguishable from this case.

With regard to employee efforts, as the majority points out, the Magistrate's Decision found Appellants' salesmen had little or no follow-up duties after the sales contract was signed, despite evidence to the contrary. Although this judge would have come to a different conclusion as to that fact alone, it cannot be said that particular finding is against the manifest weight of the evidence. The majority's argument regarding credibility gives this writer pause, as weighing the credibility of the witnesses is the role of the trier of fact. State v.Dye (1998), 82 Ohio St.3d 323, 329. Appellate judges must show restraint when tempted to overturn a finding made by the trier of fact. In this case, however, the magistrate's finding that Appellee had little or no duties after the sale is not dispositive in and of itself.

As illustrated by Weiper, when considering an employee's efforts, a court must look to more than simply what the employee has done, and examine all of the circumstances surrounding the employment situation. In this case Appellee worked for Appellant for only six weeks. Prior to this he had been working for Appellant's predecessor, Naegle, with whom he had signed an acknowledgment he would not receive post-employment commissions. Most of the commissions Appellee seeks to recover in this case arise from contracts sold while working for Naegle.

Keeping in mind the public policy stated in Mers that Ohio courts should not be placed in the untenable position of second-guessing the business decisions of employers, I conclude that, based on these additional facts, which were not considered by the majority and the magistrate, when combined with the magistrate's finding that Appellee had little or no follow-up duties and the industry custom not to pay post-employment commissions, the trial court incorrectly awarded the post-employment commissions.

For the foregoing reasons, I would find Appellant's assignment of error to be meritorious and reverse the decision of the trial court.