Hamlen v. Fairchild Industries, Inc.

• Decision Date: 15 April 1982
• Docket Number: No. AG-415,AG-415
• Citation: 413 So.2d 800
• Court: Florida District Court of Appeals
• Parties: Omar P. HAMLEN, Appellant, v. FAIRCHILD INDUSTRIES, INC., Appellee.

Page 800

413 So.2d 800

Omar P. HAMLEN, Appellant, v. FAIRCHILD INDUSTRIES, INC., Appellee.

No. AG-415.

District Court of Appeal of Florida First District.

April 15, 1982.

Rehearing Denied May 24, 1982.

James M. Wilson of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.

Joseph D. Lorenz and Jack R. Heflin of Lorenz, Lungstrum & Heflin, Fort Walton Beach, for appellee.

ERVIN, Judge.

In this appeal from a judgment on the pleadings, we affirm that portion of the lower court's determination, finding that appellant and plaintiff below, Omar P. Hamlen, could not maintain an action against appellee and his employer, Fairchild Industries, Inc., for breach of an oral contract promising to provide him permanent employment. We reverse, however, the judgment to the extent that it bars Hamlen's action charging a tortious, fraudulent misrepresentation of the employment contract.

Hamlen's complaint alleges that he was formerly employed by Westinghouse in a specialized position as a quality control technician in non-destructive testing of metal compounds; that agents of appellee and defendant, Fairchild Industries, Inc., induced Hamlen to terminate employment with Westinghouse, thereby causing him to forego his rights to retirement and related benefits; that the inducement was in the form of a promise of permanent employment at Fairchild; that at the time of the inducement Fairchild secretly had no intention of giving Hamlen a permanent position; that Hamlen was laid off after working for Fairchild for a short period; that he has since been unable to obtain work with either Westinghouse or Fairchild, and that he relied upon this misrepresentation to his detriment, thereby causing damages, both compensatory and punitive.

The propriety of the action based on the alleged breach of the oral contract is controlled by this court's opinion in Russell & Axon v. Handshoe, 176 So.2d 909 (Fla. 1st DCA 1965), cert. denied, 188 So.2d 317 (Fla.1966), wherein we precluded a former employee from suing an employer under such a theory. Although Russell & Axon involved a written contract of employment--not as here an oral contract--it is nevertheless applicable, because both contracts allegedly promised "permanent" employment. Quoting Orsini v. Trojan Steel Corp., 219 S.C. 272, 64 S.E.2d 878, 880 (1951), with approval, the First District observed that permanent employment means " 'a steady job, a position of some permanence.' " Id. at 916. Yet, notwithstanding the element of permanence, the court continued that in the absence of an agreement for employment for a fixed term or duration, a contract for permanent employment usually refers to " 'an indefinite general hiring, terminable at will.' " Id. Hamlen's complaint fails on this basis, because he has alleged that the contract is one for permanent work, which constitutes an indefinite hiring. Indefinite terms of employment are recognized as instances in which "either party for any reason may terminate it [the employment] at any time and no action may be maintained for breach of the employment contract." De Marco v. Publix Super Markets, Inc., 360 So.2d 134, 136 (Fla. 3d DCA 1978), aff'd., 384 So.2d 1253 (Fla.1980).

The complaint before us is also deficient in that it lacks any mutuality of obligation. Once again, reference to Russell & Axon is instructive. The court expressed its concern about the lack of mutuality of a contract, which had sought to bind the employer, but not the employee, in the following terms:

It cannot be reasonably contended that the contract of employment in this case is such that the employer could require the employee to remain in the service of the company for any fixed period of time, whether one year or longer, if the employee elected to terminate his employment. This being true, the contract is so lacking in mutuality of obligation as to render it invalid.

Russell & Axon, supra, at 916. We believe that the contract alleged in the appellant's complaint--silent as to any conditions affecting Hamlen's right to terminate--suffers from a similar lack of mutuality of obligation. See generally, 11 Fla.Jur.2d, Contracts, § 15 (1979). Therefore, we affirm the judgment on the pleadings as it relates to appellant's action for breach of an employment contract.

Appellant's complaint alleges also that Fairchild Industries made fraudulent misrepresentations in guaranteeing him permanent employment. An action for damages based upon a fraudulent misrepresentation sounds, of course, in tort; therefore our disposition of the action in contract is legally distinct from the tort issue. To state a viable cause of action under such a theory, the five following elements must be present:

(1) A...