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Bisbano v. Strine Printing Co., Inc.

Supreme Court of Rhode Island

March 14, 2016

Richard Bisbano, Sr.
v.
Strine Printing Company, Inc. et al

          Providence County Superior Court. (PB 14-3235). Associate Justice Michael A. Silverstein.

         For Plaintiff: Gina A. DiCenso, Esq., V. Edward Formisano, Esq.

         For Defendants: Jeffrey S. Brenner, Esq.

         Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

Page 1203

         Francis X. Flaherty, Justice

         This case is before the Court on appeal by the plaintiff, Richard Bisbano, Sr., from a decision of the Superior Court granting summary judgment in favor of his former employer, Strine Printing Company, and Menasha Packaging Company, LLC, the defendants, on the plaintiff's complaint for unpaid commissions. The plaintiff contends that the hearing justice erred in granting summary judgment on res judicata grounds because a prior suit in Federal District Court was based on factually distinct circumstances and because the defendants had agreed to, or at least acquiesced in, the splitting of claims into a separate lawsuit. The parties further dispute whether the trial justice erred when he decided that the second suit was time-barred by the three-year statute of limitations contained in Rhode Island's Payment of Wages Act, G.L. 1956 chapter 14 of title 28. This matter came before us on January 21, 2016, pursuant to an order directing the parties to appear and show cause why the issues raised by this appeal should not summarily be decided. After considering counsels' oral and written arguments, and after a thorough review of the record, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. For the reasons given below, we affirm the judgment of the Superior Court.

         1

         Facts and Travel

         This controversy arises out of an employment relationship between Richard Bisbano, Sr. and Strine Printing that took a short time to sour and a long time to resolve. Strine hired Bisbano in December 2006 as a sales representative. Under the terms of the parties' agreement, Bisbano's wages were commission-based and depended on the printing jobs that Bisbano was able to secure on behalf of Strine. Bisbano alleges that he procured several printing jobs during his time as a Strine sales representative, but the primary business that he brought in was printing work for CVS Pharmacy, Inc. Bisbano had had a relationship with CVS that spanned approximately twenty years, predating his association with Strine. Indeed, Bisbano believed that to be the principal reason that Strine hired him as a sales representative.

         In June 2010, Strine terminated Bisbano's employment after an internal investigation by CVS revealed that Bisbano had inappropriately provided money to a CVS employee with whom he dealt in the course of his employment. Because of this discovery, CVS informed Strine that it no longer wanted Bisbano to service its account. With the CVS relationship no longer in his book of business, Bisbano was, in Strine's opinion, no longer able to generate sufficient business to justify his continued employment. Even after it separated Bisbano from its employment, however, Strine continued to cultivate its contractual relationship with CVS and it performed many more printing jobs for CVS related to the specific work that Bisbano had solicited on Strine's behalf.

         Bisbano filed an eight count complaint against Strine Printing and its president in the Superior Court in July 2010, claiming age discrimination, unjust enrichment, intentional interference with prospective contractual relations, breach of contract, breach of the implied covenant of good

Page 1204

faith and fair dealing, intentional and negligent misrepresentations, and quantum meruit. The claims were predicated on factual allegations related to his wrongful termination by Strine. The lawsuit was soon removed to the United States District Court for the District of Rhode Island.

         During the pendency of that lawsuit, the parties, through counsel, regularly communicated about outstanding commissions that Bisbano asserted he had earned during the time he was employed by Strine. In essence, the correspondence revolved around the parties' disagreement about the exact amount of commissions that Strine owed Bisbano. Counsel for Bisbano informed Strine that--in addition to $65,000 that Bisbano believed he was owed for outstanding work-related expenses and commissions--Bisbano sought a commission in connection with a " Flu Promotion" job for CVS that had not been completed at the time that Bisbano was terminated. Bisbano believed that a commission was owed to him on the complete printing job because he had landed the contract during his employment. Strine's attorney responded that Strine's business practice was to pay commissions after the bill was paid by its customer and that it paid " commissions earned in excess of a salesman's draw at the end of the month." However, he continued, " Mr. Bisbano always requested his excess commission to be paid at the end of the year. Once Strine Printing is paid by its customers, they will send me a commission check for Mr. Bisbano along with an explanation of the amount." Strine's counsel specifically disagreed with the amount claimed, remarking that " [i]f we have a dispute as to the amount, we can cross that bridge when we get to it."

         In a letter dated November 15, 2010, Strine's counsel informed Bisbano's attorney that Strine had just received payment from its client, CVS, and that " Strine believe[d] that the total amount due to Mr. Bisbano for jobs sold in 2010 concerning CVS [was] $38,275." Strine noted some deductions that it believed were applicable in reaching the final amount including that it did not incorporate the so-called " flu" contract because Strine was not awarded that contract until after Bisbano had left its employment. Bisbano's counsel responded in writing to Strine's counsel, objecting to Strine's stated limitations on the commission calculations.

         The parties agreed that Strine would issue a check in the amount of $38,275 and that Bisbano's acceptance of the check would " not bar his right to seek additional commissions." Therefore, on April 15, 2011, counsel for Strine sent the following letter to Bisbano's counsel:

" As we discussed yesterday, [Bisbano] no longer desires to have a written agreement in place regarding the commissions that [Strine] has been trying to pay him. Therefore, enclosed is Strine's check in the amount of $38,275 representing the amount of commissions that Strine believes it owes to Bisbano. By accepting this check, Bisbano is not waiving any right to claim that he is entitled to additional commissions. By sending this check, Strine is not waiving any defenses that it has to Bisbano's claim for additional commissions. Please contact me if you wish to discuss this matter further."

         The parties also communicated about settlement of Bisbano's wrongful termination claims. On October 2, 2011, Bisbano's attorney sent a letter discussing the possibility of further mediation and addressed concerns that Strine had regarding the viability of Bisbano's contract claims. The letter also raised the issue of outstanding commissions, wherein Bisbano's counsel wrote, " I have taken the position that, if a settlement is reached, this issue will be

Page 1205

rolled into any settlement. * * * Barring a dialogue or offer or agreement to mediate, I fully expect that Mr. Bisbano will initiate formal ...


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