Wior v. Anchor Industries, Inc.

Decision Date25 October 1994
Docket NumberNo. 82A01-9406-CV-203,82A01-9406-CV-203
Citation641 N.E.2d 1275
PartiesGlenn WIOR, Appellant-Plaintiff, v. ANCHOR INDUSTRIES, INC., Appellee-Defendant.
CourtIndiana Appellate Court

Joseph A. Yocum, Yocum and Yocum, Evansville, for appellant.

Wm. Michael Schiff, Mary Lee Franke, Kahn, Dees, Donovan & Kahn, Evansville, for appellee.

ROBERTSON, Judge.

Glenn Wior appeals from the summary judgment granted to Anchor Industries, Inc., in Wior's lawsuit for breach of contract, unjust dismissal, and wrongful discharge. Wior presents the following issues:

I. Did the court below commit error in granting Anchor Industries, Inc.'s (hereafter "Anchor"[) ] motion for summary judgment against Glenn Wior (hereafter "Wior").

II. Did the court below's statement of undisputed material facts omit facts that require a trial on the merits.

III. Did Wior have a wrongful discharge claim for breach of contract of permanent employment outside the statute of frauds.

IV. Did Wior have a viable claim for wrongful discharge based upon his refusal to terminate an employee for having a worker's compensation claim.

V. Did the court below's findings relating to Anchor's employee handbook correctly state any viable issue.

IV. Did Wior have a viable claim for either negligent misrepresentation or intentional misrepresentation.

We affirm in part and reverse in part.

On review of summary judgment, this Court stands in the shoes of the trial court. Maurice F. Jones Trust v. Barnett Banks (1994), Ind.App., 637 N.E.2d 1301, 1303. This Court must liberally construe all designated evidentiary matter in favor of the nonmovant and resolve any doubt against the movant. Id. Even if it appears that the nonmovant will not succeed at trial, summary judgment is inappropriate where material facts conflict or where undisputed facts lead to conflicting inferences. Id. Summary judgment is appropriate if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Id.

The evidence most favorable to Wior, the nonmovant, shows that he has worked in the sewing and needle trades industry since childhood. He first worked in a family business, then for other employers, then for himself. He eventually operated a consulting business in Indianapolis.

Anchor Industries is a manufacturer of custom canvas and synthetic products for the outdoor recreational industry. Due to a promotion within the company, a Plant Supervisor position became available at a plant in Evansville; and Anchor Industries advertised for the position in an Indianapolis newspaper. The advertisement was a "blind ad," which means the prospective employer is not identified. The advertisement did not mention that the position was located in Evansville, only the "Middlewest." Wior responded to the advertisement with a resume and a cover letter.

Anchor Industries contacted Wior about prospective employment. At a later meeting, Wior advised Anchor Industries that he currently had permanent employment through his consulting business and that, without permanent employment with Anchor Industries, he would not move himself and his family from Indianapolis to Evansville. Anchor Industries informed Wior that they were looking for someone they did not have to train to fill the position. Anchor Industries indicated the position was a "position of permanence" and specified "that it was not temporary employment." Employment was to be "until retirement;" "[i]t was ... 20 plus years." When Anchor Industries asked Wior whether he would be willing to give up his business to work for Anchor Industries, Wior answered, "with a commitment to a sound future, a long-term employment--you were talking 20 plus years--a good opportunity here to be a V.P. at Anchor, yes." Wior stated that he would agree to come to Evansville but that he had to have a permanent job. The company agreed and hired him.

Wior began work on August 3, 1992. Anchor Industries informed him that his job performance would be evaluated after 90 days of employment. The subsequent job performance evaluation revealed that production in several departments would not be affected by Wior's absence and that Wior lacked "a sense of what direction to go to learn the job." On or about November 11, 1992, Anchor Industries discharged Wior because he "was just not fitting in at Anchor." Anchor had been looking for someone it did not have to train and Wior "was just not working out."

I, II, & III

Wior claims he has a valid wrongful discharge claim for breach of contract of permanent employment and asserts that his oral contract remained outside the Statute of Frauds. He claims he could not be discharged without good cause. Anchor Industries takes the contrary positions. The trial court stated that Wior's claim:

is not supported by the undisputed, material facts in the record. No enforceable oral employment contract can be found to exist between Wior and Anchor because of a failure to comply with the requirement of Indiana's Statute of Frauds ("Statute") and Wior cannot avoid the Statute's requirement under any theory.

Wior need not, however, have supported his claim with undisputed facts in the record. Summary judgment is inappropriate where facts, although undisputed, lead to conflicting inferences. The trial court should have liberally construed all designated evidentiary matter in favor of Wior and should have resolved any doubt against Anchor Industries.

The parties agree that the applicable portion of Indiana's version of the Statute of Frauds states, in pertinent part:

No action shall be brought in any of the following cases:

* * * * * *

Fifth. Upon any agreement that is not to be performed within one (1) year from the making thereof ...

* * * * * *

Unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized ...

Ind.Code 32-2-1-1.

It must affirmatively appear by the terms of a contract, that its stipulations are not to be performed within a year after it is made, in order to bring it within the provisions of the statute of frauds. Hinkle v. Fisher (1885), 104 Ind. 84, 3 N.E. 624. The Statute of Frauds has always been held to apply only to contracts which, by the express stipulations of the parties, were not to be performed within a year, and not to those which might or might not, upon a contingency, be performed within a year. Indiana & I.C.R. Co. v. Scearce (1864), 23 Ind. 223 (quoting Wiggins v. Keiser (1855), 6 Ind. 252). The one year clause of the Statute of Frauds has no application to contracts which are capable of being performed within one year of the making thereof. Kiyose v. Trustees of Indiana University (1975), 166 Ind.App. 34, 40-41, 333 N.E.2d 886, 889 (emphasis original). In a contract of lifetime employment, death is the contingency which renders the agreement fully performed. Id. Because the contingency is one which may occur at any time, such a contract by its terms is capable of being performed within one year and is therefore not within the Statute. Id. (emphasis original) (citing 2 Corbin, Contracts Sec. 446 (1950)).

Under the evidence most favorable to Wior, the terms of his employment contract with Anchor contains no affirmative provision that its stipulations were not to be performed within a year after it had been made. Whether the employment was at-will or permanent, the contract might or might not have been performed within a year. Anchor Industries takes the position that the employment was at-will; but, under Anchor Industries' approach, the employment could have and, in fact, did end before the expiration of one year. To the contrary, Wior claims that the contract contemplated "permanent" employment. If so, then his death within one year of the agreement is a contingency which would have rendered it fully performed within a year. Thus, under either legal theory, the contract, by its terms, was capable of being performed within one year. The Statute of Frauds therefore does not apply to prevent Wior's action on the oral contract.

Anchor Industries contends that Wior must produce evidence of "independent consideration" to establish a contract of permanent employment; and, because he did not, Anchor Industries need not have had "good cause" for his discharge. To the contrary,

the general rule of additional consideration is a misconception. It is actually a rule of convenience to be applied if the parties' intent regarding the permanent nature of employment is not clear. If the parties' intention is clearly manifested there is no requirement for "additional" consideration.

Romack v. Public Service Co. of Indiana (1986), Ind.App., 499 N.E.2d 768, 777 (quoting Martin v. Federal Life Ins. Co. (1982), 109 Ill.App.3d 596, 65 Ill.Dec. 143, 148, 440 N.E.2d 998, 1003), dissent adopted in part, 511 N.E.2d 1024, 1025. See also, Jarboe v. Landmark Community Newspapers (1993), Ind.App., 625 N.E.2d 1291, 1295 (oral promises in regard to employment which are unenforceable under Statute of Frauds may nonetheless be enforceable under promissory estoppel); Eby v. York-Division, Borg-Warner (1983), Ind.App., 455 N.E.2d 623, 627 (promissory estoppel as a consideration substitute in employment case); Pepsi-Cola General Bottlers, Inc. v. Woods (1982), Ind.App., 440 N.E.2d 696, 698 (same).

As a general rule, employment relationships are terminable at the will of either party. W & W Equipment Co., Inc. v. Mink (1991), Ind.App., 568 N.E.2d 564, trans. denied. If the tenure of service cannot be determined from the terms of the contract, such contract is one at will and may be terminated at any time at the election of either party. Pepsi-Cola, 440 N.E.2d at 697. Thus, parties are free to contract for permanent employment...

To continue reading

Request your trial
5 cases
  • Orr v. Westminster Village North, Inc., 49A02-9311-CV-634
    • United States
    • Court of Appeals of Indiana
    • June 8, 1995
    ...Federal Life Ins. Co. (1982), 109 Ill.App.3d 596, 602, 65 Ill.Dec. 143, 148, 440 N.E.2d 998, 1003). See also Wior v. Anchor Indust., Inc. (1994), Ind.App., 641 N.E.2d 1275, 1279. Accordingly, we must look to the employment contract to determine the parties' intent regarding permanent employ......
  • Wior v. Anchor Industries, Inc., 82S01-9505-CV-518
    • United States
    • Supreme Court of Indiana
    • August 7, 1996
    ...judgment to Anchor concluding that Wior and Anchor's employment agreement was not within the Statute of Frauds. Wior v. Anchor Industries, Inc., 641 N.E.2d 1275 (Ind.Ct.App.1994). The Court of Appeals observed that "death is the contingency which renders [a contract of lifetime employment] ......
  • Wallem v. CLS Industries, Inc., 88A04-9904-CV-157.
    • United States
    • Court of Appeals of Indiana
    • March 9, 2000
    ...are capable of being performed within one year of the making thereof. Silkey, 690 N.E.2d at 334, ( quoting Wior v. Anchor Industries, Inc., 641 N.E.2d 1275, 1278 (Ind.Ct.App.1994)), rev'd on other grounds, 669 N.E.2d 172 (Ind.1996), reh'g denied (emphasis added) (internal citations omitted)......
  • Silkey v. Investors Diversified Services, Inc., 82A04-9707-CV-272
    • United States
    • Court of Appeals of Indiana
    • December 29, 1997
    ...has no application to contracts which are capable of being performed within one year of the making thereof. Wior v. Anchor Industries, Inc., 641 N.E.2d 1275, 1278 (Ind.Ct.App.1994), rev'd on other grounds, 669 N.E.2d 172 (Ind.1996), reh'g denied, (emphasis added) (internal citations omitted......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT