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Hunter v. BPS Guard Services1/31/1995
d], or its assigns, the sum of $14-00 as follows:
"A deposit of $None upon signing this agreement. $Prepaid upon completion of the installation of the SYSTEM and to pay in addition for use, maintenance and monitoring of said SYSTEM, the sum of $14.00 per month in advance. * * *" (Emphasis added.)
In addition, Guardian's Alarm Monitoring Service Agreement provides:
"2. Subscriber [Ken's Cardinal] hereby represents that it has contracted, or is about to contract, with installer [Certified] for the installation of a protectivssystem at premises owned or occupied by Subscriber and in connection with such installation has also requested monitoring service of said system. Installer and Subscriber have entered into an agreement whereby the installer will provide monitoring services for the Subscriber consisting of the following:
"(a) direct call response by experienced operators to an emergency condition until proper authorities are notified;
"(b) direct call response until a station designated by Subscriber is notified;
"(c) notification to the installer that an alarm condition has occurred, if requested;
"(d) such other services as may be agreed upon by the parties." (Emphasis added.)
Both of these contracts involve a connection between the installer, Certified, and the monitoring company, Guardian. In addition, Certified also suggested using Guardian to Adkinson and, in fact, had Guardian's price lists for services. Despite these facts, the evidence also shows that Sephel was free to use and suggest any monitoring company that he chose to his customers, although he rarely, if ever, suggested a company other than Guardian.
For those Certified customers who used Guardian as their monitoring company, Guardian would do the billing for both itself and Certified. Part of the bill would include a commission for Sephel, which amount was determined by him. This commission was forwarded to Sephel by Guardian. In addition, Guardian kept a set of books that showed all of Certified's customers and the amounts they paid. Whatever amount paid was above Guardian's charges, plus their billing change, would be remitted to Sephel.
Although Guardian would take any business that Certified brought to them, Guardian was also a competitor of Certified in that they also sold, installed and maintained security systems. Regardless, because of the relationship between Certified and Guardian, there is a question of fact as to whether the parties were separate, independent entities or whether the parties were engaged in a joint venture. As such, the trial court erred in determining, as a matter of law, that the parties were engaged in a joint venture and appellant's fifth assignment of error is well taken.
Based on the foregoing, appellant's five assignments of error with regard to Guardian are sustained, the judgment of the trial court as to Guardian is reversed and this cause is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part reversed in part and cause remanded.
WHITESIDE, P.J., and PETREE, J., concur.
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