Turner v. Newsom, 2070095.

• Decision Date: 29 August 2008
• Docket Number: 2070095.
• Citation: 3 So.3d 913
• Parties: Susan Bosch TURNER v. Gary NEWSOM and University Diagnostics, P.C.
• Court: Alabama Court of Civil Appeals

3 So.3d 913

Susan Bosch TURNER v. Gary NEWSOM and University Diagnostics, P.C.

2070095.

Court of Civil Appeals of Alabama.

August 29, 2008.

Zondra T. Hutto of Hutto Staggs, LLC, Tuscaloosa; and Travis R. Wisdom, Auburn, for appellant.

Ronald L. Davis and Chad L. Hobbs of Rosen & Harwood, P.A., Tuscaloosa, for appellees.

THOMAS, Judge.

Susan Bosch Turner appeals from a summary judgment entered for Gary Newsom and University Diagnostics, P.C. ("UD"), on her claim alleging that they breached her employment contract, which she alleged was for permanent or lifetime employment.

Turner was employed as a psychiatric nurse by UD in August or September 2000. At that time, UD was a professional partnership between Newsom and Kamal Raisani, who were both psychiatrists. In April 2001, Raisani left the partnership. According to Turner, Newsom was concerned about the practice and desired that somebody be employed to assist in maintaining the practice, reconciling records, and handling office-management tasks. To this end, Turner said, Newsom approached her with an offer for her to become the "Executive Officer" of UD. She testified in her deposition that Newsom had requested her to prepare an employment contract; however, she said that he was not satisfied with the contract she prepared and that he then added several terms to the contract. The contract contained several terms indicating that Turner's employment was permanent, including:

[Turner] will receive her pay until Dr. Gary Newsom retires, or until she resigns."

[Turner] will be employed with these benefits until the retirement of the President."

[Turner] also will remain employed by University Diagnostics until the time of retirement of Gary Newsom. If the personal relationship resides [sic] there will always remain this professional relationship. [Turner] will remain at her same title and pay until the resolution [sic] of the corporation."

For her part, Turner was required to give a one-month notice of her resignation and to train the employee who would replace her; she was also required to display a professional attitude toward Newsom and promised not to harm Newsom or his practice intentionally. The contract specified Turner's hours to be from 9:00 a.m. to 2:00 p.m. each weekday and indicated that her biweekly salary was $4,800. In addition, the contract provided that Turner was to receive bonuses, an automobile purchased by UD, and that her automobile, health, and dental insurance would be furnished by UD as well. The contract further stated that, if Turner decided to continue her education, UD would pay for her tuition and fees.

In May 2003, UD fired Turner. In August 2005, she sued UD, Newsom, and fictitiously named parties, alleging breach of her lifetime employment contract. After filing an answer denying Turner's allegations, Newsom and UD filed a counterclaim, alleging conversion of certain personal and business items, intentional infliction of emotional distress/the tort of outrage, and asserting a claim under the Alabama Litigation Accountability Act ("ALAA"), Ala.Code 1975, § 12-19-270 et seq. Turner answered the counterclaim, denying the allegations asserted therein and amended her complaint to add an intentional-infliction-of-emotional-distress/tort-of-outrage claim and a conversion claim; she also asserted an ALAA claim against Newsom and UD. Newsom and UD later amended their counterclaim to assert claims of forgery and embezzlement.

On June 30, 2006, Newsom and UD filed a motion for a summary judgment. In that motion, they argued that Newsom neither agreed to nor signed the contract upon which Turner based her breach-of-contract claim; that the contract was insufficient as a matter of law to be a lifetime employment contract; and that, if the contract were deemed to be sufficient to be a lifetime employment contract, Newsom and UD had had sufficient cause to terminate Turner's employment, i.e., Tuner's alleged forgery of several UD checks and the conversion of UD's funds to her own use. Newsom and UD attached the affidavit of a handwriting expert, Newsom's own affidavit, and Turner's deposition testimony to their summary-judgment motion.

Turner filed a response to the summary-judgment motion on June 21, 2007. In support of her response, Turner presented the employment contract, the affidavit of a handwriting expert, an office memorandum regarding Turner's promotion to executive officer written by and signed by Newsom, Turner's own affidavit, portions of Newsom's testimony in his divorce trial, portions of Newsom's deposition, and two letters informing Turner of the termination of her employment. She argued in her response to the summary-judgment motion that genuine issues of fact regarding whether the contract was sufficient to be a lifetime employment contract existed and that genuine issues of fact regarding the basis for her termination from employment existed.

After a hearing, at which counsel for both parties presented oral argument, the trial court entered a partial summary judgment in favor of Newsom and UD only on Turner's breach-of-contract and intentional-infliction-of-emotional-distress/tort-of-outrage claims. The trial court expressly made the partial summary judgment a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Turner appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant, and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Generally, in Alabama, employment relationships with no specified terms are considered to be terminable at the will of either party. Ex parte Michelin North America, Inc., 795 So.2d 674, 677 (Ala. 2001). Provisions in company handbooks and company memoranda have been held to establish employment contracts modifying the at-will doctrine. See, e.g., Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987); Evans v. National Microsys., Inc., 576 So.2d 207 (Ala.1991). In addition, in certain instances, Alabama courts will recognize a "permanent" or lifetime employment relationship. See, e.g., Birmingham-Jefferson County Transit Auth. v. Arvan, 669 So.2d 825, 827-29 (Ala.1995); Scott v. Lane, 409 So.2d 791 (Ala.1982). As contrasted with at-will employment, permanent employment is "'a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform this service satisfactorily.'" Alabama Mills, Inc. v. Smith, 237 Ala. 296, 299, 186 So. 699, 702 (1939) (quoting 18 R.C.L. 510); see also Green v. City of Hamilton, Hous. Auth., 937 F.2d 1561, 1564 (11th Cir.1991). However, permanent or lifetime employment contracts are considered extraordinary and are not to be lightly implied; the burden on an employee seeking to demonstrate the existence of such a contract is a heavy one. Howard v. Wolff Broad. Corp., 611 So.2d 307, 311 (Ala.1992).

"The cases reveal that three elements must be shown to establish that an employment contract is one other than one terminable at will: (1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration, Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982); (2) that the hiring agent had authority to bind the principal to a permanent employment contract, Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939); and (3) that the employee provided substantial consideration for the contract separate from the services to be rendered, United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 201 So.2d 853 (1967)."

Hoffman-La Roche, 512 So.2d at 728. Although Newsom and UD have challenged the authenticity of Newsom's signature on the contract, for purposes of the summary-judgment motion and this appeal they concede that, assuming that Newsom signed the contract, Newsom would have had the authority to bind UD. Thus, only the first and third elements are at issue. Because we conclude that Turner did not present substantial evidence indicating that she provided substantial consideration for the alleged contract, we pretermit discussion of whether she submitted substantial evidence indicating that Newsom and UD made a clear and unequivocal offer of lifetime employment. Turner was required to present substantial evidence creating a genuine issue of material fact regarding whether she "provided substantial consideration for the contract separate from the services to be rendered." Hoffman-La Roche, 512 So.2d at 728 (emphasis added). In making a determination as to whether the employee has provided...