Carol Farmer v. Meigs Center Limited, an Ohio Limited Partnership and Meigs County Care Center, Inc., 98-LW-1049

• Decision Date: 30 March 1998
• Docket Number: 98-LW-1049,96 CA 12
• Parties: CAROL FARMER, Plaintiff-Appellee v. MEIGS CENTER LIMITED, AN OHIO LIMITED PARTNERSHIP and MEIGS COUNTY CARE CENTER, INC., Defendants-Appellants Case
• Court: Ohio Court of Appeals

CAROL FARMER, Plaintiff-Appellee v. MEIGS CENTER LIMITED, AN OHIO LIMITED PARTNERSHIP and MEIGS COUNTY CARE CENTER, INC. Defendants-Appellants

No. 96 CA 12.

98-LW-1049 (4th)

Court of Appeals of Ohio, Fourth District Meigs

March 30, 1998

COUNSEL FOR APPELLANTS: Linda R. Warner, Little, Sheets & Warner P.O. Box 686, 211-213 East Second Street, Pomeroy, Ohio 45769.

COUNSEL FOR APPELLEE: Mark E. Sheets & Brent A. Saunders, Halliday Sheets & Saunders, 19 Locust Street, P.O. Box 325, Gallipolis, Ohio

45631.

DECISION

ABELE J.

This is an appeal from two Meigs County Common Pleas Court judgments in favor of Carol Farmer, plaintiff below and appellee herein, and against Meigs Center Limited, An Ohio Limited Partnership, and Meigs County Care Center, Incorporated, defendants below and appellants herein. In the January 19, 1996, judgment, the trial court awarded appellee $13,000 in accordance with the jury's verdict. In the April 12, 1996 judgment, the trial court overruled appellants' motion for judgment notwithstanding the verdict or for a new trial.

Appellants assign the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ITS DENIAL OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ITS DENIAL OF DEFENDANTS/APPELLANTS' MOTIONS FOR DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF/ APPELLEE'S CASE, AT THE CLOSE OF DEFENDANTS/APPELLANTS' CASE AND AT THE CLOSE OF ALL EVIDENCE, AS WELL AS ITS DENIAL OF DEFENDANTS/APPELLANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTION FOR NEW TRIAL."

On February 25, 1994, appellee filed the instant complaint alleging that on April 29, 1992 the entered into a written employment agreement^[1] whereby appellants agreed to employ her once again as Director of Admissions at Overbrook Center, a nursing home, for a minimum tern of one year to begin on May 11, 1992. The employment agreement Signed by appellee and appellants' representative, Mark Murphey, provided in pertinent part as follows:

"TO: Mrs. Carol Farmer,

Director of Admissions

SUBJECT: OUR MUTUAL INITIAL EMPLOYMENT UNDERSTANDING

Welcome back to Overbrook Center!

This memorandum summarizes our discussions to date regarding the major points of agreement relating to your initial employment (or re-employment) at Overbrook Center as referenced below:

1. Your full-time effective start date is Monday May 11, 1992

2. Your initial salaried exempt rate is established at $12.00 per hour; you will be entitled to receive $13.00 per hour after your initial six months Performance Evaluation, provided that your contribution to Overbrook Center is evaluated as `Above Expectation.'

3. You will be entitled to an annual bonus compensation of $1,000.00 as based on the accomplishment of specific operational objectives that we jointly will formulate by July 1, 1992.

4. Non-paid leave is authorized for your June, 1992 family vacation."

On March 3, 1995, appellants filed a motion for summary judgment. In a memorandum in support of the motion, appellants raised three main arguments. First, appellants argued that the R.C. 1335.05 statute of frauds governing contracts not to be performed within one year bars appellee's claim. Appellants acknowledged that the April 29, 1992 writing signed by the parties contained some of the terms of appellee's employment, but noted that because the writing did not state any particular duration of the employment and because duration is an essential term of employment agreement that appellee alleges exists between the parties, the writing does not Satisfy the R.C. 1335.05 statute of frauds. Second, appellants argued that under the facts of this case, appellee's employment was at-will. Third, appellants argued that the promissory estoppel exception to the R.C. 1335.05 statute of frauds governing contracts not to be performed within one year does not apply to the facts of this case.

On March 14, 1995, appellee filed a memorandum contra the motion. In the memorandum, appellee argued that: (1) the writing required by the R.C. 1335.05 statute of frauds need not contain all the terms of the agreement; (2) "the agreement is ambiguous with respect to whether or not the parties anticipated whether the employment would continue indefinitely"; (3) "this Court may find that oral testimony is admissible to explain any ambiguities in this agreement." We note that appellee did not address appellants' argument that the promissory estoppel exception to the R.C. 1335.05 statute of frauds does not apply to the facts of this case.

On March 17, 1995, appellant; filed a supplemental memorandum in support of their motion for summary judgment. In the supplemental memorandum, appellants repeated their arguments regarding the applicability of the statute of frauds and the absence of facts supporting a promissory estoppel defense.

On June 15, 1995, the trial court issued a decision denying appellants' motion for summary judgment. When rejecting appellants' statute of frauds argument, the trial court wrote as follows:

"Initially, the Court finds Defendants' statute of frauds argument misplaced. Apparently, what Defendants seek is a summary finding that Plaintiff's employment was at-will. If the Court so found, such would necessitate the conclusion that Plaintiff's employment contract could be performed within one year. In that case, Plaintiff's employment contract would not fall within the statute of frauds. See, e.g., Stout v. M. Aron Corp. (May 13, 1993), Franklin App. No. 92AP-1179, unreported.

As to the at-will employment issue, the syllabus of Henkel v. Educational Research Council (1976), 45 Ohio St.3d 249, is helpful.

In the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which provides for an annual rate of compensation, but makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at will by either party.

Therefore, the Court is not persuaded that the language in the April 29, 1992, `Memorandum' pertaining to a $1,000 `annual bonus' by itself creates a one-year employment contract. See, also, Shaw v. Pollock & Co. (1992), 82 Ohio App.3d 656, 660.

The Court is persuaded that Henkel is accurately interpreted in the following excerpt from Butler v. American Hoechst Corp. (Oct. 16, 1979), Franklin App. No. 79AP-309, unreported:

Thus, according to Henkel, if the memoranda be silent as to the duration of the employment, it is a contract terminable at will by either party. On the other hand, if the memoranda be ambiguous as to the duration of employment, the parol-evidence rule permits oral testimony as to the facts and circumstances surrounding the entering into of the agreement in order to ascertain the intent of the parties by use of the ambiguous language. Parol evidence may not be introduced to vary the terms of the contract where it can be ascertained from the writing itself with reasonable certainty. However, where the language is of doubtful or ambiguous meaning, parol evidence as to the intent of the parties is admissible to enable the court to construe the writing in the sense intended by the parties.

In reviewing the subject memorandum, the Court notes at least one ambiguity pertaining to duration of employment. The document speaks of an `initial' six-month performance evaluation. Evidence of a set time for a performance evaluation many be construed as a term of employment at least until the evaluation date. Cf. Omotola v. S. & S. Anesthesia Servs. (Aug. 19, 1991), Athens App. No. 1483, unreported. More importantly, the use of the term `initial' creates some ambiguity in that one might reasonably conclude that the specified evaluation was to be only the first of successive six-month evaluations.

In light of this ambiguity, however slight, the Court feels it is proper to consider parol evidence of the facts and circumstances surrounding the execution of the April 19, 1992, memorandum. Having reviewed the evidence offered on summary judgment, the Court finds that a jury question is present as to whether the subject memorandum created a one-year contract of employment. * * *"

On December 19, 1995, the trial court commenced a three-day jury trial. The parties introduced eight witnesses including appellee, her husband, appellants' management firm partner James M. Boyd, III, appellants' Overbrock Center licensed nursing home administrator Mark Murphey, and four other Overbrook Center employees. The witnesses testified that appellant first worked for Overbrook Center as Director of Admissions in 1988. She resigned in 1990 due to emotional problems she suffered as a result of her son's accidental death.

In April 1992, appellee called Murphy to ask him for an employment reference for a position at the Gallipolis Development Center. Murphey, upon learning that appellee sought to reenter the job market, began recruiting appellee to return to her former position as Director of Admissions at Overbrook Center. Boyd supported Murphey's efforts to recruit appellee.

Appellee and Murphey met several times to negotiate salary and vacation time. Murphey testified that he does not recall whether, prior to entering into this April 29, 1992 employment contract, he elicited a promise from appellee that she would stay in the position of Director of Admissions at Overbrook Center for at least one year. Appellee testified that Murphey elicited such a promise from her. On April 29, 1992, the day they reached their agreement, and on April 30, 1992, the day they signed the written agreement, appellee met all the written qualifications for the position.

Appellee spent April 30, 1992 and May 1, 1992 in orientation at Overbrook Center. Appellants; paid app...