Robert Shaw v. J.Pollock & Co.

• Decision Date: 30 September 1992
• Docket Number: 92-LW-5335,15542
• Parties: ROBERT SHAW, Plaintiff-Appellant v. J.POLLOCK & CO., et al., Defendants-Appellees C.A.
• Court: Ohio Court of Appeals

ROBERT SHAW, Plaintiff-Appellant v. J.POLLOCK & CO., et al Defendants-Appellees

No. 15542.

92-LW-5335 (9th)

Court of Appeals of Ohio, Ninth District Summit

September 30, 1992

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CV 90 3 3355.

DECISION

REECE J.

Plaintiff-appellant, Robert Shaw, claims that he was wrongfully discharged by the defendant-appellee, J. Pollock &amp Company, from his position at Steel Products of Massillon (Steel Products). He appeals from the decision of the trial court granting summary judgment in favor of the Appellees. We affirm.

Shaw was employed by Steel Products from January 31, 1990, until he was terminated on April 6, 1990. Shaw had business dealings with the forerunner of Steel Products, Massillon Spring & Rivet Co. When Jerry Pollock purchased Steel Products, he needed someone to manage the company. On January 29, 1990, Pollock spoke with Shaw regarding the possibility of Shaw filling this management position and on January 31, Pollock hired Shaw. While there was no written employment agreement, Shaw was orally promised a salary of $40,000, a bonus tied to company profits and certain other fringe benefits.

Shaw alleges that he was assured a certain amount of time, at least a year, to make Steel products profitable. pollock denies that these promises were made. On April 6, 1990, Shaw was terminated and paid the portion of his salary commensurate with the period he was employed.

Shaw brought causes of action for wrongful discharge, fraudulent hiring, and unjust enrichment. After a deposition of Shaw, the court granted a summary judgment motion for the defendant. Shaw appeals, alleging four errors concerning the propriety of granting summary judgment.

The standard of review for an appeal of a decision granting summary judgment is well-established. Pursuant to Civ. R.56(C), summary judgment is proper if the trial court determines that:

"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence mist strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party."

Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327; see, also, Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d. 1, 2.

Once summary judgment is requested, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ. R.56(E); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 324. The issue to be tried must also be genuine, allowing reasonable minds to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248-252. Further, a plaintiff may not rest upon mere allegations, but must set forth specific facts which show there is as an issue for trial. Civ. R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52.

Assignment of Error II

"The court erred in granting summary judgment where there is a disputed question of fact as to whether the appellant was made certain representations which he had the right to rely upon and when he did to his detriment."

The Ohio Supreme Court has held that in the area of employment contracts, there exists "a strong presumption in favor of a contract terminable at will unless the terms of the contract or other circumstances clearly manifest the parties' intent to bind each other." Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, 255. See, also, Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 102-103 and n. 1.

However, in paragraph three of the syllabus, Mers recognized promissory estoppel as an exception to employment-at-will contracts.

"The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee."

Further, the promises alleged must be "clear and unambiguous" in their terms. Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 26.

This court has held that "clear and unambiguous promises" must be specific promises of job security. Tarantine v. Loral Corp. (Oct. 24, 1990), Summit App. No. 14600, unreported, at 9; see, Modarelli v. First Federal S. & L. Assoc. of Wooster (June 6, 1990), Wayne App. No. 2529, unreported, at 8-9. In this case, the only promises made relating to Shaw's job were that the salary was approximately $40,000 per year, and that he would get a year end bonus based on the companies profits.^[1] The Ohio Supreme Court has stated that an employment contract which provides for an annual rate of pay, but makes no provision for the duration of employment, is terminable at the will of either party unless the facts and circumstances indicate otherwise. Henkel, 45 Ohio St.2d 249 at syllabus.

The potential of future profit sharing is not a fact or circumstance which transforms a contract terminable at will into a contract for a term of years. A promise of future benefits or opportunities without a specific promise of continued employment does not support a promissory estoppel exception to the employment-at-will doctrine. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 108, paragraph two of the syllabus. As Shaw has shown no evidence of a specific representation upon which he relied, his second assignment of error is not well-taken.

Assignment of Error I

"The lower court erred in granting summary judgment where there is a disputed question of fact as to whether the appellee made specifIc promises with respect to the terms and conditions of employment which were subsequently breached."

The Court in Mers recognized that the cumulative effect of various events may transform an employment-at-will agreement into an implied contract for a definite term. Mers, 19 Ohio St.3d 100, at paragraph two of the syllabus, states:

"The facts and circumstances surrounding an oral employment-at-will agreement, including the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question, can be considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge.

The court has warned, however, that a strong presumption exists against such arrangements. Henkle, 45 Ohio St.2d at 255-257; Mers, 19 Ohio St. 3d at 102 n. 1.

The legal effect of an implied contract and an express contract is identical, the only distinction being the manner in which mutual assent is manifested. 1 Williston on Contracts (4 Ed. 1990) 18-25 Section 1-5. See, also, Columbus, Hocking Valley & Toledo Ry. Co. v. Gaffney (1901), 65 Ohio St. 104, paragraph one of the syllabus. However, in an implied contract all of the essential elements of a contract must be proved.

As we have previously stated, seldom will an employee, failing to establish promissory estoppel to alter an employment-at-will agreement, be able to establish an implied employment contract based on the same set of facts. Gargasz v. Nordson Corp. (1991), 68 Ohio App.3d 149, 155.

In this case, Shaw points only to the annual rate of compensation and the promise of a bonus as proof of an implied in fact contract. As we have stated in discussing Shaw's Second Assignment of Error, these representations are not specific promises of a contract for one year. Based on these facts, reasonable minds could come to but one conclusion, that there was no mutual assent to a contract for a one year term of employment. Ap...