COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71927 INTERNATIONAL TOTAL SERVICES INC. Plaintiff-appellee JOURNAL ENTRY vs. AND WILLIAM D. GLUBIAK OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 12, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court Case No. CV-280426 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: MICHAEL J. GARVIN, ESQ. DOUGLAS J. PAUL, ESQ. SHARON A. RIEGEL, ESQ. CHATTMAN, GAINES & STERN HAHN LOESER & PARKS 6200 Rockside Road 3300 BP America Building Cleveland, Ohio 44131 200 Public Square Cleveland, Ohio 44114-2301 -2- KARPINSKI, J.: Defendant-appellant, William Glubiak, appeals from the judgment of the trial court which awarded him $71,261.54 on his cross-claim against plaintiff-appellee, International Total Services ( ITS ). ITS filed suit against Glubiak seeking to regain possession of sales files which Glubiak retained after leaving ITS. In response, Glubiak filed a counter-claim for commissions owed to him from his employment at ITS. During the course of the proceedings the files were returned to ITS. The trial court held that Glubiak was entitled to $71,261.54 in commissions and that ITS was not entitled to attorney fees for having to bring the lawsuit to regain the files. Arguing that he is entitled to commissions based on revenue received by ITS after his termination, Glubiak filed the instant appeal. In response, ITS filed three cross-assignments of error which contest (1) the trial court's award, (2) the failure to award ITS attorney fees, and (3) the amount of interest added on the award. We find all of these arguments to lack merit and affirm the judgment of the court below. The pertinent facts follow. ITS is in the aviation service business, providing security, skycap, and ground service for airlines. Glubiak was hired by ITS as vice-president of sales in August, 1992, to sell these services to airlines in airports throughout the midwest. Glubiak's salary had a base of $45,000. In addition, he received a commission based on contracts he negotiated between ITS and the airlines. -3- These contracts lasted for a year or two during which the airlines paid ITS monthly. ITS, in turn, paid Glubiak his commission quarterly. The contracts were also subject to renegotiation or termination. Glubiak and ITS did not enter into a formal employment contract. However, ITS sent Glubiak a letter which outlined the terms of employment as follows: ITS will compensate you accordingly: 1) Base salary of $45,000 per year 2) Reimburse you for your automobile lease for 6 months 3) Reimburse vehicle expense related to your travel 4) Commission plan - 1% of revenue sold by you during first year - .5% of revenue sold by you in year two - zero after third year ITS will review all the commission plans if sales exceed targeted levels. The parties tried this case to the bench, which issued findings of fact and conclusions of law, in part, as follows: 10. Glubiak was entitled to a commission bonus at the time that a contract was sold. As a result, he is not claiming he is entitled to anticipated future income, but only to commissions earned on sales that were completed by him prior to leaving ITS. * * * Glubiak's rights to receive a commission vested at the time that he sold the contracts, and he is entitled to judgment in the amount of $71,261.54 total with statutory 10% interest. Glubiak and ITS each appealed from the judgment of the trial court. In his appeal, Glubiak raised the following assignment of error: I. THE AMOUNT OF THE JUDGMENT IS INCONSISTENT WITH THE TRIAL COURT'S OWN FINDINGS OF FACT AND CONCLUSIONS OF LAW AND SHOULD BE MODIFIED TO REFLECT JUDGEMENT IN FAVOR OF APPELLANT/CROSS-APPELLEE, MR. GLUBIAK, IN THE AMOUNT OF $192,888.05. -4- Also addressing the trial court's award, ITS' first cross- assignment states as follows: I. THE TRIAL COURT ERRED IN AWARDING JUDGMENT IN THE AMOUNT OF $71,261.54 TO DEFENDANT/APPELLANT/CROSS- APPELLEE WILLIAM D. GLUBIAK ( GLUBIAK ). FINDINGS OF FACT AND CONCLUSIONS OF LAW ( FINDINGS ) AT P. 5. In the case at bar, there are two issues concerning the commissions. One is whether Glubiak was entitled to commissions on income the company had earned before he left employment. A second is whether he was entitled to commissions on income the company earned after he left. The trial court concluded that Glubiak is entitled to $71,261.54, which is the total of the undisputed percentage of the completed sales plus interest. We agree with this award. We also agree that no commission was owed to the employee on revenue received after the employee left the employment of the company. Both parties argue that the trial court was inconsistent in its application of the findings and conclusions of law. However, it is not necessary to address any inconsistency since we are not bound by the reasoning of the trial court. Myers v. Garson (1993), 66 Ohio St.3d 610. We review the agreement, as any contract, de novo. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107. As a result of our review, we find that the letter outlining the terms of employment does not expressly provide for post- employment commissions. The agreement, which is written in phrases rather than sentences, is a simple outline. This outline provides a formula for computing the commission; it does not -5- address the question of post-employment commissions. Absent a contract for future commissions, an employee is not entitled to post-employment commissions on previously generated business. Weiper v. W.A.Hill & Assoc. (1995), 104 Ohio App.3d 250, 259; Kovacic v. All States Freight Sys. (Aug. 15, 1996), Cuyahoga App. No. 69926, unreported, appeal denied 77 Ohio St.3d 1525. The reference to how the payment will be computed in the second year is merely a description of how payment will be made, not whether it will continue past employment. Evidence that the formula used to compute the commissions differed for the second year of the contract cannot be construed as a promise to pay commissions in the future. Weiper, supra. Weiper,which denied post-termination commission, is instruc- tive to the case at bar. The plaintiff, Weiper, worked for an employment agency and received commissions for placing professional personnel. The Hamilton County Court of Appeals held that plaintiff was not entitled to recover commissions on income the company received after he was terminated even if the revenue arose from persons he placed before termination. In reaching this conclusion, the court specifically looked at industry custom and plaintiff's employment contract. ITS presented evidence that it was not industry custom, or the custom of ITS, to pay post-employment commissions. Glubiak provided no evidence to the contrary. Absent evidence of either an express agreement on this point or of industry custom paying such commissions, an employee is not entitled to commissions on sales -6- after the employment relationship has been terminated. Weiper, supra; Kovacic, supra. A key here is that although the employee negotiated a contact for future sales, that contract was revocable. The contract provides that either party can terminate the contract without financial penalty upon 30-day notice. Such a contract does not provide any assurance that the customer will continue to do business with ITS. Glubiak agreed that ITS' contracts were up for grabs and that when revenue stops, his commission stops (Tr. 115- 116). Thus, although the employee was instrumental in procuring those sales, income from those sales could only be anticipated at the time the employee terminated his employment. We note, however, that there is much confusion in the use of the word vested. To clarify, we conclude that whatever rights Glubiak had to receive a commission depended, in part, on the revenue generated under the contracts he negotiated. All parties agree the commission was not a one-time bonus on the value of the contract. Since the purchaser of the contract had a right to revoke the contract every thirty days, the right to receive a commission was limited by whether the contract continued. At oral argument, both parties admitted to this condition. Any right so limited cannot be said to have vested unconditionally. The word vested, therefore, is a misnomer. From our review of the record in this case, we further conclude that an additional condition was his continuing employment. We thus agree with the trial court that at the time Glubiak sold a contract he earned the right to receive -7- a commission, but we clarify that the extent of that commission depended upon the continuation of both the contract and his employment. Accordingly, we affirm the trial court's award of $71,261.54 plus the post-judgment interest of ten percent. II. THE TRIAL COURT ERRED IN FAILING TO AWARD ATTORNEY'S FEES TO PLAINTIFF/APPELLEE/CROSS-APPELLANT INTERNATIONAL TOTAL SERVICES, INC. ( ITS ). FINDINGS AT P.5. In this assignment, ITS argues that the trial court erred by not awarding attorney fees. On this point, the trial court stated as follows: Plaintiff ITS is not entitled to recover attorney fees. Although ITS submitted evidence that Glubiak converted ITS documents and that ITS may be entitled to attorney fees incurred in the recovery of the converted property, ITS is equitably estopped from recovering attorney fees since their wrongful failure to compensate Glubiak, (even though they represented that they would properly compensate him, he actually relied on those representations and suffered pecuniary disadvantage as a result), estops ITS from asserting an otherwise valid right to attorney fees expended in the recovery of converted property. Findings of Fact at p.5 (emphasis added.) Generally, a grant or denial of attorney's fees is left to the sound discretion of the trial court. Motorist Mut. Ins. Co. v. Brandenburg (1995), 72 Ohio St.3d 157, 160. ITS correctly points out that in a conversion action, a party can get attorney fees to regain its property. Bench Billboard Co. v. Columbus (1989), 63 Ohio App.3d 421. In the case at bar, however, the court found it inequitable to award ITS attorney fees because they wrongfully withheld from Glubiak his commission. In the first assignment, supra,we affirmed the trial court's decision and agreed that ITS owed Glubiak $71,261.54 representing the pre-termination -8- commissions plus interest. Generally, [t]he purpose of the doctrine of equitable estoppel is to avoid unjust results which are `contrary to good conscience and fair dealing.' Kosa v. Pruchinsky (1992), 82 Ohio App.3d 649, 652. Given the circumstances of this case, the trial court did not abuse its discretion in denying ITS' motion for attorney fees. III. THE TRIAL COURT ERRED IN COMPOUNDING THE AMOUNT OF THE JUDGMENT OF $71,261.54 WITH AN ADDITIONAL 10% INTEREST. FINDINGS AT P.5. In this assignment, ITS argues that the trial court erred by twice imposing statutory interest on the judgment owed to Glubiak. This assignment is meritless. The order states in part as follows: he is entitled to judgment in the amount of $71,261.54 total with statutory 10% interest. ITS argues that this award is in error because it represents (1) the original commissions due ($59,384.62) plus (2) 10 percent interest ($11,876.92, for a total of $71,261.54), plus (3) an additional 10 percent interest, which is duplicative. ITS misreads this order. In arriving at the figure of $71,261.54, the trial court correctly included pre-judgment interest of 10 percent. We interpret the trial court's reference to an additional 10 percent interest as post-judgment interest that will continue to be added until ITS pays the amount due. This assignment is overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, P.J., and PORTER, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .