Jack L. Alderton v. Armco, Inc.

• Decision Date: 19 February 1985
• Docket Number: 85-LW-0312,CA84-07-076
• Parties: Jack L. ALDERTON, Plaintiff-Appellant, v. ARMCO, INC., Defendant-Appellee
• Court: Ohio Court of Appeals

Jack L. ALDERTON, Plaintiff-Appellant, v. ARMCO, INC., Defendant-Appellee

No. CA84-07-076.

85-LW-0312 (12th)

Court of Appeals of Ohio, Twelfth District, Butler County.

February 19, 1985

Noah E Powers II, Repper and Powers, Middletown, Ohio, for appellant.

David C. Horn, Frost & Jacobs, Cincinnati, Ohio, for appellee.

MEMORANDUM DECISION AND JUDGMENT ENTRY

PER CURIAM

This cause came on to be heard upon an appeal, transcript of the docket, journal entries, original papers from the Court of Common Pleas of Butler County, Ohio, and the briefs and arguments of counsel.

Now therefore, the assignment of error having been fully considered, is passed upon in conformity with App. R. 12(A) as follows:

Jack L. Alderton, plaintiff-appellant, filed suit against his employer, Armco Inc., defendant-appellee, seeking money allegedly due him for suggestions he submitted to Armco pursuant to its suggestion plan. The complaint sets forth fifteen causes of action each based upon a suggestion or suggestions he submitted, either individually or in conjunction with others, between July 1974 and February 1982.

Armco responded to the complaint by filing a Civ. R. 12(B)(6) motion which the trial court granted. Alderton filed a timely notice of appeal therefrom and on this appeal asserts a single assignment of error^the trial court erred in granting the Civ. R. 12(B)(6) motion.

Under the rubric of this assignment of error, Alderton raises three issues. The first issue raised, and the one most strenuously argued, is that the trial court erred in considering a document attached to Armco's supporting memorandum for its motion to dismiss. The document in question, entitled "Armco Suggestion Manual," contains the rules and guidelines for Armco's suggestion program. The trial court found the manual to be incorporated into the complaint and so considered it in deciding to grant Armco's Civ. R 12(B)(6) motion.

We do not believe the court erred in considering the manual. Although the manual is not specifically incorporated by reference into the complaint, any fair reading of the complaint must incorporate the manual. Two of the predicates of each cause of action are that Alderton was an employee of Armco during the applicable time and that

"[a]t all times pertinent to this Complaint, Defendant had in effect at its Middletown, Ohio Plant a suggestion plan whereby employees of Defendant were encouraged to make suggestions for the improvement of the plan in terms of quality, production, waste, delivery promises, etc. This plan offered to the employees cash awards based on the savings realized by Defendant as a result of the suggestion. The cash awards were either 10% or 15% of the amount of money the suggestion saved Defendant during the one-year period after the suggestion was accepted and put into effect. The percentage of pay-off depended on the date of the suggestion."

Each cause of action includes the suggestion and the number Armco assigned it; the date it was filed; its adoption by the defendant; the amount saved from the adoption of the suggestion, if known; the amount, if any, Armco paid Alderton; and the amount Alderton claimed as owing. Each amount Alderton claimed as owing was based upon either ten or fifteen percent of the savings. Clearly, the basis of Alderton's recovery is the suggestion plan which the manual describes.

Civ R. 10(D) mandates

"When any claim or defense is founded on an account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading." Since the manual in question represents the written instrument upon which Alderton's claim is founded, it should have been attached to his complaint and as such would have properly been part of the pleadings in the case. Alderton argues his error in pleading precludes the trial court from considering the document. We believe appellant is estopped from making such an argument where as here the complaint would have failed if the document had not been attached.

Alderton's remaining two issues, which are argued using the assumption the trial court could consider the manual, address the sufficiency of the complaint, i.e., whether it appears beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover. O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242. At the trial level, the parties argued whether Alderton could recover under either the terms of the suggestion program, a contract theory of recovery, or on a quasi-contract theory and whether the common-law shop right theory barred the claim.

The trial court found Armco had reserved the right to interpret and administer the program and to determine finally and conclusively any award and granted the motion to dismiss on that ground. The court also noted that there was a strong implication that Armco retained a shop right for matters not listed in the manual.

Alderton's objection to the trial court's decision as to the agreement are twofold. First, he argues the court should not have interpreted the agreement between the parties, the manual, at the pleading stage. We believe the terms of the manual are clear and unambiguous and the court did not err in interpreting it. Slife v. Kundtz...