Romack v. Public Service Co. of Indiana, Inc.

Decision Date10 November 1986
Docket NumberNo. 4-985,4-985
Citation499 N.E.2d 768
Parties3 IER Cases 990 Jay H. ROMACK, Appellant (Plaintiff Below), v. PUBLIC SERVICE COMPANY OF INDIANA, INC., Appellee (Defendant Below). A 251
CourtIndiana Appellate Court

William H. Sparrenberger, Indianapolis, for appellant.

Michael R. Maine, Gayle L. Skolnik, Indianapolis, Curtis M. Jacobs, Cooper, Cox, Jacobs, Reed & Barlow, Madison, for appellee.

YOUNG, Judge.

Jay H. Romack appeals the trial court's entry of summary judgment in favor of Public Service Company of Indiana, Inc. (PSI) on Romack's claims of fraud, constructive fraud, negligent misrepresentation, retaliatory discharge and denial of due process. Romack makes the following arguments on appeal:

1) The trial court erred when it refused to consider his supplemental affidavit in ruling on his motion to correct errors;

2) His discharge was unlawful because it violated an enforceable oral contract of employment which could not be terminated "at will" by PSI.

3) Summary judgment was inappropriate on the wrongful discharge claim because his discharge was in retaliation for the performance of a statutory right or duty;

4) The trial court erred in granting PSI's motion for summary judgment because the pleadings and evidence supported a cause of action under theories of fraud, constructive fraud, negligent misrepresentation and denial of due process; and

5) Material issues of fact existed which precluded the entry of summary judgment on his various claims.

We affirm.

4

In 1977, Romack applied for the position of Corporate Security Manager at PSI but did not receive the position. However, two years later, PSI contacted Romack concerning an available position. At that time, Romack was a Captain of the Indiana State Police with twenty-five years of service to his credit. Romack informed PSI that he had "permanent employment" with the State Police and would not consider leaving his position there unless the new job offered the same "permanency" of employment, advancement and benefits. An employee of PSI told Romack that if he came to work for PSI, he would have "such permanent employment." (R. 296-297) With these assurances, Romack terminated his employment with the Indiana State Police and began working for PSI on September 24, 1979 as an Operations Security Supervisor at the Marble Hill Nuclear Generating construction site.

As a result of his employment with PSI, Romack purchased a house trailer and rented a tract of land near his place of employment. Later, Romack purchased a home in that locality and moved his family to the area. PSI requested that Romack take this action so he and his family would "become a part of the community." Romack was reimbursed for the relocation costs occasioned by the first move in 1979 pursuant to PSI policy. In January of 1981, Romack sought reimbursement for the relocation costs associated with moving his family to the area. These expenses were reimbursed in February of 1981 and PSI also paid the cost of having a moving company transport Romack's household goods to the new home. The total amount paid or reimbursed by PSI was approximately $4,694.72.

On July 30, 1982, Romack was discharged by PSI. Romack requested that he be given a position elsewhere in the company because he was 52 years old and suffering from a work-related back injury. His request was denied because PSI thought it would be better if a "clean break" was made. (R. 300) Romack subsequently filed this action asserting that he was terminated because his attempts to deal with bomb threats and alcohol and drug problems at the construction site were slowing down the work progress and costing PSI additional money because of delays. Romack also asserted that he was not an employee at will and had been unlawfully discharged. PSI moved for summary judgment on all of Romack's claims and the trial court granted the motion. Romack appeals.

When reviewing a summary judgment we must accept as true the facts alleged by the non-moving party. Eby v. York-Division, Borg-Warner (1983), Ind.App., 455 N.E.2d 623, 626. This leads to an examination of what facts were placed before the trial court and capable of consideration in this action. Romack argues that the pleadings, his first set of affidavits and his supplemental affidavit which was presented with his motion to correct errors, are all proper for consideration. We disagree.

Error normally cannot be based upon evidence that was not before the trial court at the time it rules on a motion for summary judgment. Johnson v. Rutoskey (1984), Ind.App., 472 N.E.2d 620, 623. However, new evidence that could not, with reasonable diligence, have been discovered and produced earlier may be presented by affidavit with a motion to correct errors. Ind.Rules of Procedure, Trial Rules 59(A)(6) and 59(H)(1). See also Johnson, supra at 623. Trial Rule 59(H)(1) affidavits cannot be used to present evidence that a party neglected to present during the summary judgment proceeding. Mid-States Aircraft Engines, Inc. v. Mize Co., Inc. (1984), Ind.App., 467 N.E.2d 1242, 1245. Romack was given ample opportunity to present additional evidence both at the summary judgment hearing and after the hearing. Romack refused these opportunities. After the court entered summary judgment, Romack filed his motion to correct errors and supplemental affidavit. The evidence presented in the supplemental affidavit was not newly discovered and could have been presented to the trial court prior to its ruling on PSI's motion for summary judgment. Under these circumstances, the trial court had no basis upon which it could have properly considered the supplemental affidavit and necessarily refused to consider it in ruling on Romack's motion to correct errors. Likewise, we cannot consider the facts provided in the supplemental affidavit when reviewing the trial court's action since the affidavit was properly excluded from consideration at the trial court level. With this restriction in mind, we examine the remainder of Romack's arguments.

Romack asserts that his employment with PSI was not "at will" because PSI had promised him "permanent employment," i.e., employment for the remainder of his working days. Even if the employment was initially at will, Romack argues that he gave PSI additional consideration beyond his services which modified the nature of the employment. Therefore, Romack argues that his discharge from PSI was wrongful. PSI counters that Romack's discharge was not wrongful because he was at all times an employee at will who could be discharged with or without cause at any time.

In Indiana, an employee at will may be discharged for any reason or no reason at all. Hamblen v. Danners, Inc. (1985), Ind.App., 478 N.E.2d 926, 928. The employment relation is at will unless there is a promise of employment for a fixed duration or the employee has given independent consideration beyond his services in exchange for the employment. Hamblen, supra. An employment at will relationship may be converted to one requiring good cause before termination if the employee, in exchange for permanent employment, provides independent consideration that results in a detriment to him and a corresponding benefit to the employer. Streckfus v. Gardenside Terrace Co-op, Inc. (1985), Ind.App., 481 N.E.2d 423, 425; Hamblen, supra at 928; Ohio Table Pad Co. of Indiana, Inc. v. Hogan (1981), Ind.App., 424 N.E.2d 144. Therefore, in order to prevail in an action for wrongful discharge, the employee must show either that he has an employment contract which provides for employment of a specific duration or that his at will employment was converted to one which required good cause before his employment could be terminated. Ewing v. Board of Trustees of Pulaski Mem. Hosp. (1985), Ind.App., 486 N.E.2d 1094, 1098.

In the present case, Romack argues that, because PSI gave him oral assurances of permanent employment, he was not an employee at will. Such a promise is insufficient to establish a contract for permanent employment since the period of employment is not for a definite or fixed duration. Romack was under no obligation to continue his employment with PSI and could have retired or quit at any time. Although he told PSI that he "would continue working permanently for PSI as my 'second career' for the remainder of my work life" (R. 299), this statement creates no obligation for him to do so and does not clarify or set the duration of employment. See Ohio Table Pad Co., Inc. v. Hogan, supra at 145; Streckfus, supra. Considering only the evidence most favorable to Romack, the employment contract must be treated as one for an indefinite term.

Romack argues, however, that he gave additional valuable consideration to PSI in exchange for the promise of permanent employment. The consideration consisted of purchasing a trailer and moving to an area closer to the work site. Later upon the insistence of PSI, he purchased another home, assumed another mortgage and relocated his family. Romack asserts that these actions were additional consideration which altered the nature of the original contract. Romack concedes, however, that these actions were taken after his initial employment with PSI. He provides us no evidence that at the time he took these actions he did so in exchange for an additional promise by PSI to continue his employment on a permanent basis and to discharge him only for cause. Thus, the moves were not independent consideration for the asserted promise of permanent employment. In addition, we note that while moving one's household to a new location will constitute sufficient consideration for an agreement to provide moving expenses, "it will not support a contract of permanent employment so as to impose the requirement of good cause upon the right to terminate the employee." Ohio Table Pad Co., supra at 146. The evidence is undisputed that Romack received reimbursement for...

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