[Cite as Gill v. Rana, 2017-Ohio-591.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
KULWINDER GILL, et al., : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellees : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : RAKESH RANA, et al., : Case No. CT2016-0027 : Defendant - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Common Pleas Court, Case No. CH2015-0011
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 13, 2017
APPEARANCES:
For Plaintiff-Appellees For Defendant-Appellants
RICHARD O. MAZANEC SANJAY K. BHATT 1422 Euclid Ave., Suite 500 2935 Kenny Rd., Suite 225 Cleveland, Ohio 44115 Columbus, Ohio 43221 [Cite as Gill v. Rana, 2017-Ohio-591.]
Baldwin, J.
{¶1} Defendants-appellants Rakesh Rana and State Street Market, Inc. appeal
from the June 23, 2016 Amended Journal Entry of the Muskingum County Court of
Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant State Street Market, Inc. is an Ohio corporation which owns and
operates a carry-out store and liquor store. Appellant Rakesh Rana (“appellant Rana”) is
the sole shareholder and owner of appellant State Street.
{¶3} Appellee Kulwinder Gill (“appellee Gill”) “and appellee Jasvinder Gill filed a
complaint against appellants seeking compensation for services performed for appellants
at the State Street Market. Appellants filed a counterclaim. After the parties agreed to
waive a jury trial and try the liability issues separately from the damage claims, a bench
trial on the issue of liability was held on March 10, 2016.
{¶4} Testimony was adduced at trial that appellee Kulwinder Gill started working
at the business in February of 2010. An agreement was drawn up by appellants’ attorney
that stated that appellee Gill would receive $3,333.00 a month for managing the business
plus an additional 25% of the profits. The agreement further stated that appellee Gill’s
wife would receive 25% of the profits when she came later. Appellee Gill testified that he
signed the agreement and then gave it to appellant Rana and that he began working at
the business on February 12, 2010. He testified that he worked from 7:00 a.m. to 10 p.m.,
except for Sundays when the business closed one hour earlier.
{¶5} Appellee Gill testified that on November 26, 2010, he started receiving a
payroll check in the amount of $1,000.00 a week. He testified that he was not [Cite as Gill v. Rana, 2017-Ohio-591.]
compensated for his work from February 12, 2010 through November 26, 2010 when he
went on the payroll. The following testimony was adduced when he was asked why he
would work for 40 weeks without pay:
A. Because our verbal very clearly and our understanding – understanding
and agreement was we going to make – see what the property makes so
we can understand, see how much property makes so we can split, the way
I understand. And when store have a cash flow money, that’s when, you
know, you get paid.
Q. All right.
A. And then he [appellant Rana] went out of country.
{¶6} Transcript of March 10, 2016 trial at 53. According to appellee Gill, the two
never divided any profits. He further testified that he regularly discussed the operation of
State Street with appellant Rana who monitored the business’s bank statements and
check registers. When asked how many hours he worked, appellee Gill testified that he
typically worked over one hundred hours a week. Between November 26, 2010 and March
11, 2011, when he was in a car accident and ended his employment, appellee Gill was
paid $1,000.00 a week and given credit for 80 hours a week.
{¶7} On cross-examination, appellee Gill testified that he signed the agreement,
but then testified that he never signed the same. He further testified that prior to starting
managing the business, the parties agreed that “we [appellee Gill and his wife] going to
take some money as per month, then the profit.” Transcript of March 10, 2016 trial at 76.
He agreed that they were to take “some money that you needed to live on” and then split [Cite as Gill v. Rana, 2017-Ohio-591.]
the profits. Transcript of March 10, 2016 trial at 76. Appellee Gill testified that the parties
agreed on a minimum of $1,000.00 a week.
{¶8} Testimony was adduced at trial that appellee Gill did all of the hiring and
firing for the business and paid vendors by either paying cash or writing and signing
checks. He also signed the payroll checks for all employees, including his own, and
submitted payroll information to the accountant for the business that included the number
of hours that the employees worked. Appellant Gill testified that he decided not to ask for
money initially because, “per our agreement that cash flow has to be there in order to get
it.” Transcript of March 10, 2016 trial at 89. He stated that the agreement was that he
would start taking money when there was cash flow and testified that in the fall of 2010,
he put his own name on the sheet faxed to the accountant and started receiving
paychecks. The checks issued to appellee Gill for pay, commencing in November of 2010,
were signed by him.
{¶9} At trial, appellee Gill was questioned about his response to an interrogatory
in which he stated that he had signed the parties’ written agreement in November of 2009
at appellants’ attorney’s office. Appellee denied that he had signed the agreement in such
office and indicated that it was his counsel who had answered the interrogatory.
{¶10} On redirect, appellee Gill testified that he never intended to volunteer his
time and not to be paid for the first 40 weeks that he worked at the business.
{¶11} At trial, appellant Rakesh Rana testified on cross-examination that he
monitored the business accounts on a regular basis and spoke with appellee Gill
whenever he had a question. He, when asked, agreed that he did not expect appellee Gill
to work for free and testified that, in his mind, he reached an agreement with appellee Gill [Cite as Gill v. Rana, 2017-Ohio-591.]
that appellee Gill would be paid $40,000.00 a year in salary. According to appellant Rana,
appellee Gill chose not to be paid for the first 40 weeks he worked at the business because
he wanted to prove himself first and see that the business was making money before
taking a paycheck. Appellant Rana agreed that appellee Gill was not paid for the first 40
weeks he was there and did not dispute that appellee Gill’s time sheets showed that he
worked at least 80 hours a week.
{¶12} On direct examination, appellant Rana testified that appellee Gill did not
consult him before he started paying himself $1,000.00 a week starting in October of
2010. He further testified that appellee Gill never contacted him prior to such time to
indicate that he wanted to get paid. The following is an excerpt from his trial testimony:
Q. So in – in October or so of 2010, when he started taking a paycheck, did he call
you up and say, hey, Rocky [appellant Rana], I’m going to pay myself?
A. No.
Q. Did he – and did he say I’m going to start paying myself $1,000 a month – or a
week?
Q. So did he call you up in March, April, May, June, July, August, all those,
2010 and say, Rocky, I want to get paid?
A.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Gill v. Rana, 2017-Ohio-591.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
KULWINDER GILL, et al., : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff - Appellees : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : RAKESH RANA, et al., : Case No. CT2016-0027 : Defendant - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Common Pleas Court, Case No. CH2015-0011
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 13, 2017
APPEARANCES:
For Plaintiff-Appellees For Defendant-Appellants
RICHARD O. MAZANEC SANJAY K. BHATT 1422 Euclid Ave., Suite 500 2935 Kenny Rd., Suite 225 Cleveland, Ohio 44115 Columbus, Ohio 43221 [Cite as Gill v. Rana, 2017-Ohio-591.]
Baldwin, J.
{¶1} Defendants-appellants Rakesh Rana and State Street Market, Inc. appeal
from the June 23, 2016 Amended Journal Entry of the Muskingum County Court of
Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant State Street Market, Inc. is an Ohio corporation which owns and
operates a carry-out store and liquor store. Appellant Rakesh Rana (“appellant Rana”) is
the sole shareholder and owner of appellant State Street.
{¶3} Appellee Kulwinder Gill (“appellee Gill”) “and appellee Jasvinder Gill filed a
complaint against appellants seeking compensation for services performed for appellants
at the State Street Market. Appellants filed a counterclaim. After the parties agreed to
waive a jury trial and try the liability issues separately from the damage claims, a bench
trial on the issue of liability was held on March 10, 2016.
{¶4} Testimony was adduced at trial that appellee Kulwinder Gill started working
at the business in February of 2010. An agreement was drawn up by appellants’ attorney
that stated that appellee Gill would receive $3,333.00 a month for managing the business
plus an additional 25% of the profits. The agreement further stated that appellee Gill’s
wife would receive 25% of the profits when she came later. Appellee Gill testified that he
signed the agreement and then gave it to appellant Rana and that he began working at
the business on February 12, 2010. He testified that he worked from 7:00 a.m. to 10 p.m.,
except for Sundays when the business closed one hour earlier.
{¶5} Appellee Gill testified that on November 26, 2010, he started receiving a
payroll check in the amount of $1,000.00 a week. He testified that he was not [Cite as Gill v. Rana, 2017-Ohio-591.]
compensated for his work from February 12, 2010 through November 26, 2010 when he
went on the payroll. The following testimony was adduced when he was asked why he
would work for 40 weeks without pay:
A. Because our verbal very clearly and our understanding – understanding
and agreement was we going to make – see what the property makes so
we can understand, see how much property makes so we can split, the way
I understand. And when store have a cash flow money, that’s when, you
know, you get paid.
Q. All right.
A. And then he [appellant Rana] went out of country.
{¶6} Transcript of March 10, 2016 trial at 53. According to appellee Gill, the two
never divided any profits. He further testified that he regularly discussed the operation of
State Street with appellant Rana who monitored the business’s bank statements and
check registers. When asked how many hours he worked, appellee Gill testified that he
typically worked over one hundred hours a week. Between November 26, 2010 and March
11, 2011, when he was in a car accident and ended his employment, appellee Gill was
paid $1,000.00 a week and given credit for 80 hours a week.
{¶7} On cross-examination, appellee Gill testified that he signed the agreement,
but then testified that he never signed the same. He further testified that prior to starting
managing the business, the parties agreed that “we [appellee Gill and his wife] going to
take some money as per month, then the profit.” Transcript of March 10, 2016 trial at 76.
He agreed that they were to take “some money that you needed to live on” and then split [Cite as Gill v. Rana, 2017-Ohio-591.]
the profits. Transcript of March 10, 2016 trial at 76. Appellee Gill testified that the parties
agreed on a minimum of $1,000.00 a week.
{¶8} Testimony was adduced at trial that appellee Gill did all of the hiring and
firing for the business and paid vendors by either paying cash or writing and signing
checks. He also signed the payroll checks for all employees, including his own, and
submitted payroll information to the accountant for the business that included the number
of hours that the employees worked. Appellant Gill testified that he decided not to ask for
money initially because, “per our agreement that cash flow has to be there in order to get
it.” Transcript of March 10, 2016 trial at 89. He stated that the agreement was that he
would start taking money when there was cash flow and testified that in the fall of 2010,
he put his own name on the sheet faxed to the accountant and started receiving
paychecks. The checks issued to appellee Gill for pay, commencing in November of 2010,
were signed by him.
{¶9} At trial, appellee Gill was questioned about his response to an interrogatory
in which he stated that he had signed the parties’ written agreement in November of 2009
at appellants’ attorney’s office. Appellee denied that he had signed the agreement in such
office and indicated that it was his counsel who had answered the interrogatory.
{¶10} On redirect, appellee Gill testified that he never intended to volunteer his
time and not to be paid for the first 40 weeks that he worked at the business.
{¶11} At trial, appellant Rakesh Rana testified on cross-examination that he
monitored the business accounts on a regular basis and spoke with appellee Gill
whenever he had a question. He, when asked, agreed that he did not expect appellee Gill
to work for free and testified that, in his mind, he reached an agreement with appellee Gill [Cite as Gill v. Rana, 2017-Ohio-591.]
that appellee Gill would be paid $40,000.00 a year in salary. According to appellant Rana,
appellee Gill chose not to be paid for the first 40 weeks he worked at the business because
he wanted to prove himself first and see that the business was making money before
taking a paycheck. Appellant Rana agreed that appellee Gill was not paid for the first 40
weeks he was there and did not dispute that appellee Gill’s time sheets showed that he
worked at least 80 hours a week.
{¶12} On direct examination, appellant Rana testified that appellee Gill did not
consult him before he started paying himself $1,000.00 a week starting in October of
2010. He further testified that appellee Gill never contacted him prior to such time to
indicate that he wanted to get paid. The following is an excerpt from his trial testimony:
Q. So in – in October or so of 2010, when he started taking a paycheck, did he call
you up and say, hey, Rocky [appellant Rana], I’m going to pay myself?
A. No.
Q. Did he – and did he say I’m going to start paying myself $1,000 a month – or a
week?
Q. So did he call you up in March, April, May, June, July, August, all those,
2010 and say, Rocky, I want to get paid?
A. No, He never said he wants to get paid.
Q. Whose decision was it whether to take the money that – that he should
have -- that – that he could have taken?
A. It was that he decided to draw $1,000 a week for him and his wife, but
since, you know, I , you know, watched it, and since he didn’t get paid to – [Cite as Gill v. Rana, 2017-Ohio-591.]
start with, so I didn’t -- you know, more or less him getting paid. So, I mean,
by the time he was there they ended up paying himself $40,000.
Q. So he was paying himself more than –
A. More.
Q. But you were okay with that, because he didn’t take the money before?
A. He didn’t take anything to start with, so I didn’t mind them paying that
much, you know, money. So eventually which – which came down to over
$40,000.
Q. Okay.
A. Yeah.
Q. Did you ever agree to have his wife take – or Ms. Gill take $1,000 a
A. Well, that was $40,000 between him and his wife, so I didn’t mind who -
- who get the check, you know, who – but she – she was working there, or
– between him and her, one of them will be there to, you know, run the
place.
Q. So in those months that he did not take the check, was it your decision
not to pay him, or was that his decision not to take the check?
A. That was his decision not to pay himself.
{¶13} Transcript of March 10, 2016 trial at 149-150.
{¶14} Appellant Rana also denied ever telling appellee Gish not to take a
paycheck for the first 40 weeks and testified that appellee Gill told him that he wanted to
prove himself before taking money. He testified that he went to India in April of 2010 after [Cite as Gill v. Rana, 2017-Ohio-591.]
recovering from heart surgery and did not come back until June or July of 2010. On
recross, appellant Rana testified that he never objected to appellee Gill paying himself
and his wife $1,000.00 a week without consulting with him because appellee Gill had
never paid himself earlier from February of 2010 through October of 2010.
{¶15} At the conclusion of the evidence, the trial court asked the parties to brief
the issue of whether or not appellee Gill had waived his right to be compensated for the
first 40 weeks of his employment. Subsequently, the trial court, as memorialized in a
Journal Entry filed on April 21, 2016, found that appellee Gill did not waive his right to be
compensated for his hours of employment. The trial court scheduled a trial on damages
for June 3, 2016.
{¶16} At the June 3, 2016 trial, appellant Rana testified that, as stipulated to by
the parties, appellee Gill worked at the business from February 10, 2010 until March 10,
2011. He testified that, prior to appellee Gill working there, the parties agreed that appellee
Gill would be paid $3,300.00 a month, or $40,000.00 per year, and that the parties
had never signed a written contract that had been drafted. According to appellant Rana,
appellee Gill managed the business from February 12, 2010 through March 10,
2011 and did all of the hiring and firing. Appellant Rana testified that most of the
employees made minimum wage and that when appellee Gill started taking a salary of
$1,000.00 a week in November of 2010, he did not ask appellant Rana how much to take.
Appellant Rana testified that he allowed him to take $1,000.00 a week because appellee
Gill had not drawn a salary for the first 40 weeks. Appellant Rana testified that he did not
agree that appellee Gill’s wife could draw a salary of $1,000.00 a week once she started
working at the business in September of 2010. He testified that it was his understanding [Cite as Gill v. Rana, 2017-Ohio-591.]
that the manager’s compensation was split between the two and that he had never hired
the wife to manage his business. Appellant Rana asked that any money that the trial court
found appellee Gill to be entitled to be set-off by the money paid to her. On cross-
examination, he admitted that he monitored the checking accounts weekly and knew what
both appellees were being paid. Appellant Rana, on redirect, testified that when appellee
Gill started working at the store in February of 2010, there was not an agreement, written
or verbal, between them as to how much he would be paid for his services.
{¶17} At the damages trial, appellee Gill testified that there was never an
agreement between him and appellant Rana that if appellee Gill was paid $1,000.00 a
week, it would compensate him for the first 40 weeks he worked at the business. He also
denied that they had an agreement that, by paying appellee Gill’s wife, appellant Rana
would be compensating appellee Gill for such time. When asked about the amount of
damages that he was seeking, appellee Gill testified that he was seeking $1,000.00 a
week for 52 weeks and that appellant Rana had agreed to such amount. He further
testified that he came up with the figure of $1,000.00 a week “[b]ecause we was supposed
to take what we need to make my ends meet until we shared the profits” and he needed
$1,000.00 a week to make ends meet. Transcript of June 3, 2016 trial at 33.
{¶18} The trial court, pursuant to a Journal Entry filed on June 3, 2016, awarded
appellee Gill a judgment in the amount of $1,000.00 a week for forty (40) weeks, for a
total of $40,000.00. In an Amended Journal Entry filed on June 23, 2016, the trial court
stated that such amount was payable individually or jointly by both appellants.
{¶19} Appellants now raise the following assignments of error on appeal: [Cite as Gill v. Rana, 2017-Ohio-591.]
{¶20} THE TRIAL COURT ERRED BY RULING THAT APPELLEE, GILL, DID NOT
WAIVE HIS RIGHT TO CLAIM COMPENSATION FOR THE PERIOD OF FEBRUARY,
2010, THROUGH OCTOBER, 2010.
{¶21} THE TRIAL COURT ERRED IN AWARDING DAMAGES TO APPELLEE IN
THE AMOUNT OF $40,000.
I
{¶22} Appellants, in their first assignment of error, argue that the trial court erred
in finding that appellee Gill did not waive his right to compensation for the period from
February of 2010 through October of 2010. Appellant argues that the trial court’s finding
is against the manifest weight of the evidence.
{¶23} We note that a judgment supported by some competent, credible evidence
will not be reversed by a reviewing court as against the manifest weight of the evidence.
C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).
A reviewing court must not substitute its judgment for that of the trial court where there
exists some competent and credible evidence supporting the judgment rendered by the
trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993–Ohio–9, 614 N.E.2d 742. The
underlying rationale for giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony. Seasons Coal Co. v. City of Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶24} “ ‘Waiver’ is defined as a voluntary relinquishment of a known right.” State
ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431, 435, 732 N.E.2d 960, 2000- [Cite as Gill v. Rana, 2017-Ohio-591.]
Ohio-213. Waiver assumes one has an opportunity to choose between relinquishing or
enforcing a right. Chubb v. Ohio Bur. of Workers' Comp., 81 Ohio St.3d 275, 279, 1998-
Ohio-628, 690 N.E.2d 1267. A party asserting a waiver “must prove a clear, unequivocal,
decisive act of the party against whom the waiver is alleged, showing such a purpose or
acts amounting to an estoppel on his part.” White Co. v. Canton Transportation Co., 131
Ohio St. 190, 2 N.E.2d 501, paragraph four of the syllabus (1936).
{¶25} In the case sub judice, there is no dispute that appellee Gill was not
compensated for the period from February 12, 2010 through November 26, 2010. While
appellants contend that he waived his right to compensation for such period, we disagree.
{¶26} At the March 10, 2016 trial, appellant Rana testified that he understood that
appellee Gill would receive a salary of $40,000.00 per year ($3,333.00 per month).
Appellee Gill testified that he was presented with a proposed employment agreement that
provided that he would receive $3,333.00 a month plus 25% of the profits and his wife
would receive 25% of the profits.
{¶27} While there was testimony that appellee Gill worked long hours at the
business seven days a week and was, as manager, responsible for payroll and hiring and
firing employees, he did not receive any compensation for the period from February 12,
2010 to November 26, 2010. When asked why he would work at the business for 40
weeks without getting paid, he testified that he wanted the business to show a monthly
profit and positive cash flow before he was compensated. As noted by appellees, appellee
Gill never signed a written waiver of his compensation for the 40 week period. He testified
that the parties’ agreement was that when the business had a cash flow, he would start
taking a salary. [Cite as Gill v. Rana, 2017-Ohio-591.]
{¶28} Moreover, at the March 10, 2016 trial, appellant Rana testified that he did
not expect appellee Gill to work for free and that, in his mind, he reached an agreement
to pay appellee Gill $40,000.00 a year. Thus, there was testimony that appellant Rana
expected to pay appellee Gill for his services during the 40 week period and that he
benefitted from the services that appellee Gill provided.
{¶29} Based on the foregoing, we find that the trial court did not err in finding that
appellee Gill did not waive his right to be compensated for the period in question. There
was competent credible evidence supporting the trial court’s decision.
{¶30} Appellants’ first assignment of error is, therefore, overruled.
II
{¶31} Appellants, in their second assignment of error, contend that the trial court
erred in awarding damages to appellee Gill in the amount of $40,000.00. Appellants
argue that the trial court’s decision was against the manifest weight of the evidence and
that the reasonable value of appellee Gill’s services to appellants was not $1,000.00 a
week as found by the trial court. We disagree.
{¶32} At the trial on damages, appellant Rana testified that, prior to appellee Gill
starting working at the business, they agreed that appellee Gill would be paid $3,300.00
a month, or $40,000.00 per year. He testified that he later agreed with appellant Gill
receiving $1,000.00 a week for his services managing the business because “he’s like
compensating for that unpaid amount.” Transcript of June 3, 2016 trial at 13. Appellee Gill
received a salary of $1,000.00 a week from November 10, 2010 until he was injured in an
automobile accident in March 10, 2011 without any objection from appellant Rana. At the
damages trial, appellee Gill denied that there was ever an agreement that, if he was paid $1,000.00 a week, it would compensate him for the first 40 weeks that he worked at the
business.
{¶33} We concur with appellees that the factual evidence and appellant Rana’s
own testimony provide a reasonable basis for the trial court’s award of $1,000.00 per week,
or $40,000.00, to compensate appellee Gill.
{¶34} Appellants’ second assignment of error is, therefore, overruled.
{¶35} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Delaney, P.J. and
Wise, J. concur.