NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

PRIOR HISTORY:

CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas. Case No. 282888.

DISPOSITION: JUDGMENT: Affirmed

COUNSEL:

APPEARANCES:

For Plaintiff-Appellant: CHARLES W. FONDA, ESQ., Cleveland, Ohio.

For Defendant-Appellee: HILARY B. MILLER, ESQ., Greenwich Connecticut. RICHARD H. NEMETH, ESQ., Beachwood, Ohio.

JUDGES: JAMES M. PORTER, PRESIDING JUDGE. DYKE, J., CONCURS. KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART.

OPINIONBY: JAMES M. PORTER

OPINION: JOURNAL ENTRY AND OPINION

JAMES M. PORTER, P.J.,

Plaintiff-appellant Jack Gill appeals from a summary judgment granted in favor of defendant-appellee Monetary Management Corporation ("MMC") arising out of plaintiff's claim for wrongful discharge from MMC's employment. Plaintiff contends that the trial court erred in entering summary judgment for the employer because a letter offer of employment promised plaintiff permanent employment for an indefinite period based on its terms and promissory estoppel, and that plaintiff was owed bonuses under a bonus plan to be structured for plaintiff's benefit after one year of employment. [*2] We find no error and affirm for the reasons hereinafter stated.

In January 1991, plaintiff was employed in Denver, Colorado. By letter dated January 18, 1991, defendant MMC made an offer to employ defendant as Check Cashing Manager and Supervisor of eight new Financial Exchange Stores in the Cleveland area. The offer letter stated as follows:

You have accepted our offer as the Check Cashing Manager and Area Supervisor for our Ohio Financial Exchange Stores.

You will have direct P & L responsibility for approximately eight (8) new stores and will supervise check cashing for all the Ohio stores. You will report directly to our Ohio Director of Operations.

Your compensation will be $40,000 per year.

You will receive a $1500 "up-front" allowance when you start the job in Cleveland.

In addition to your salary, you will receive a monthly $250 auto allowance. All auto expenses will be paid directly by you. Also, you will be reimbursed for any other approved job-related travel and entertainment expenses.

We will pay your moving expenses from Denver to Cleveland. We will discuss details after you have a specific date of availability.

After a six-month [*3] waiting period, you will be eligible to participate in the company major medical, life insurance and disability coverage. While the company pays a large portion of the monthly premium, all employees are required to pay a portion of the premium (approximately $95.00 per month for family coverage).

We will structure a bonus payment for you after one year with the company based on the actual results in check cashing overall and the profits of the new stores. Minimum payment will be $2500.00.

After one year with the company you will be eligible to participate in the 401-K retirement program. In accordance with IRS guidelines, the company will match 50% of what you pay into the program based on a maximum employee contribution of 8%.

Two (2) weeks paid vacation after one (1) year with the company. Three (3) weeks paid vacation after five (5) years with the company.

We are excited that you have decided to be a part of our team and we look forward to a long, prosperous relationship.

Please call me if you have any questions.

Sincerely,

s/

Paul F. Petru

Vice President

Operations

Plaintiff did not rely on any oral assurances from his prospective [*4] employer outside the letter respecting the terms of his employment. This was confirmed by his deposition testimony which was advanced in support of MMC's motion for summary judgment:

Q. Prior to the time you became employed by the company did you ever have any discussions with Mr. Petru about the circumstances under which our employment might be terminated?

A. Absolutely not.

Q. Were any assurances made to you that the company would refrain from terminating your employment?

A. The subject of my termination -- my termination was never discussed with anybody within the company.

Q. At any time before or during your employment by Monetary Management Corporation did anybody tell you your employment could not be terminated?

A. No, they did not.

Q. Under Exhibit C [the January 18, 1991 offer letter] that you have in front of you was it your understanding that you were at liberty to terminate your employment at any time? Exhibit C, you have it in your hands.

A. I am sorry.

Q. Was it your understanding that you were at liberty to terminate your employment at any time?

A. I understood that.

Q. And was it your understanding that the [*5] company was at liberty to terminate your employment at any time?

A. Yes, and I also believed they would with just cause.

Q. Is there any reference in the letter to just cause?

A. No, there is not.

Q. And you already testified that nobody made any statements to you about just cause?

A. Yes, you are right, correct.

Q. And that is still correct, nobody made any statements to you about just cause, is that correct?

A. Yes.

Q. So, the just cause notion is something that existed in your mind, right?

A. Yes, it was, and is something that I believed to be very true. I believed that I would be working for the company for a period of years and not months -- and not a few months, excuse me.

Q. But there were no terms or conditions, oral or written, of your employment, that required the company to employ you for any particular term of years or months?

A. That is correct.

Q. Is that correct?

A. That is correct.

(Gill Depo. at 25-27).

Plaintiff accepted the position and came to Cleveland where he started work in February 1991. By March 1992, the stores which plaintiff was managing had an unusual number of thefts, robberies [*6] and embezzlements. Plaintiff testified there were "six or eight" incidents at the stores under his control. He testified that he was "disturbed" at the "tremendous" loss of funds. Plaintiff attested to two instances where employees under his control embezzled $29,000 of company funds. (Gill Depo. at 33-35). The stores were also unprofitable. Plaintiff conceded that these problems and MMC's dissatisfaction with the performance of these stores was genuine and not contrived. (Gill Depo. at 47). Plaintiff had no experience in solving the security problems that plagued the stores. Plaintiff was asked to take a polygraph test in connection with the numerous employee defalcations and refused. He was notified of his termination on March 31, 1992. On April 8, MMC sent him a letter accounting for the sums due plaintiff ($194). Following discovery, the court granted summary judgment for the defendants and this timely appeal ensued.

Plaintiff's sole assignment of error states as follows:

I. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT ON ALL CAUSE OF ACTION BROUGHT BY THE APPELLANT.

Plaintiff essentially contends that the letter offer, which he accepted, [*7] constituted a written contract on which he relied in coming to Cleveland from Denver and giving up his previous secure job with Sherwin Williams. Plaintiff also relies on the doctrine of promissory estoppel as a basis for why summary judgment should not have been granted to defendant MMC. We find no merit to these arguments.

We have reviewed carefully the letter offer, and while it expansively describes various terms of the new employment, it does not specify for how long the employment will last - in short, no tenure or duration is specified. It is a fundamental tenet of Ohio employment law that, in the absence of evidence of an agreement for a specified term, at-will employment status prevails:

In the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which provided for annual rate of compensation, but makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at-will by either party. [Footnote omitted.]

Henkel v. Educational Research Council (1976), 45 Ohio St. 2d 249, 344 N.E.2d 118, syllabus; Lowry-Greene v. Brighton Hotel Corp. (Aug. 20, 1992), [*8] Cuyahoga App. No. 60838, unreported (absent statement regarding duration of employment, a letter that summarized the employee's salary, signing bonus, insurance, automobile allowance, vacation schedule and expenses did not constitute an implied contract of employment). See, also, Kiel v. Circuit Design Technology, Inc. (1988), 55 Ohio App. 3d 63, 65, 562 N.E.2d 517; Kuhn v. St. John & West Shore Hosp. (1989), 50 Ohio App. 3d 23, 24, 552 N.E.2d 240; Demczyk v. Innkeeper's Telemanagement & Equipment Corp. (Aug. 18, 1994), 1994 Ohio App. LEXIS 3617, Cuyahoga App. No. 65953, unreported.

We find that plaintiff's evidence did not present sufficient proof to allow a reasonable person to conclude that there was an expressed or implied contract of employment for any specific term. See Corradi v. Soclof (May 25, 1995), 1995 Ohio App. LEXIS 2162, Cuyahoga App. No. 67586, unreported.

The letter therefore provides for employment at-will. As we stated in Krettler v. CMHA (Dec. 16, 1993), 1993 Ohio App. LEXIS 5995, Cuyahoga App. No. 64475, unreported at 3:

More recently the doctrine has been described as follows in Bear v. Geetronics, Inc. (1992), 83 Ohio App. 3d 163, 168, 614 N.E.2d 803:

The employment-at-will doctrine holds that when a contract of [*9] employment does not mention the duration of employment, employment is considered to be at will and terminable by either party for any reason or for no reason. Peters v. Mansfield Screw Mach. Products Co. (1991), 73 Ohio App. 3d 197, 200, 596 N.E.2d 1071, 1073; Phung v. Waste Management, Inc. (1988), 40 Ohio App. 3d 130, 134, 532 N.E.2d 195, 200. The doctrine further holds that the discharge of an "at-will" employee without cause does not constitute a breach of contract nor does it permit the recovery of damages by the discharged employee. Henkel v. Educational Research Council of America (1976), 45 Ohio St. 2d 249, 255, 74 Ohio Op. 2d 415, 418, 344 N.E.2d 118, 121. It is not disputed that appellant was an "at-will" employee of Geetronics.

However, plaintiff also relies on the doctrine of promissory estoppel which we do not find applicable. His evidence falls short of establishing the necessary elements of that doctrine. Again, as stated in Krettler, supra at 4:

*** This bar to termination of at-will employment is sometimes found in employee handbooks or rules or regulations laid down by the employer which hold out to the employee some promise of tenure upon [*10] which the employee relies. Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134, 139, 545 N.E.2d 1244; Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131, 135, 543 N.E.2d 1212; Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App. 3d 73, 77, 603 N.E.2d 1126. Defendant relies on administrative Order 11 to support his claim of promissory estoppel. We do not agree.

As stated by this Court in Cohen & Co. v. Messina (1985), 24 Ohio App. 3d 22, 26, 492 N.E.2d 867 promissory estoppel depends on the following defined elements:

(1) the employer must make a promise clear and unambiguous in its terms to the employee;

(2) the employee must rely on that promise to his detriment; and

(3) the reliance must be reasonable and foreseeable; and

(4) the employee must be injured by the reliance.

Plaintiff has failed to meet the threshold prong of this test which requires a meeting of the minds. As this Court stated in Curak v. Cleveland Clinic Foundation (Dec. 22, 1988), 1988 Ohio App. LEXIS 5281, Cuyahoga App. No. 54822, unreported at 10-11:

The parties did not have the necessary contractual intent for the provisions of the clinic's employee handbook to alter or supplement the terms [*11] of their oral at-will employment contract. In order for such materials to be considered part of the employment contract, there must be a "meeting of the minds." "The parties must have a distinct and common intention which is communicated by each party to the other." Cohen & Co. v. Messina (1985), 24 Ohio App. 3d 22, 24, 492 N.E.2d 867. Where mutual assent is lacking, an employee handbook or other supplementary materials merely constitute the employer's unilateral statement of the business' rules and regulations. Mosely v. City of Warrensville Heights (May 19, 1988), Cuyahoga App. No. 53930, unreported; Turner v. SPS Technologies, Inc. (June 4, 1984), Cuyahoga App. No. 51945, unreported.

Since plaintiff contends he never saw the employee handbook, he cannot rely on that document to sustain a promissory estoppel claim. Csuhran v. Kaiser Foundation Health Plan of Ohio (June 8, 1995), 1995 Ohio App. LEXIS 2396, Cuyahoga App. No. 67460, unreported. As in the cases referenced above, there is no "promise clear and unambiguous in its terms" to which plaintiff can point to sustain his promissory estoppel claim.

Based on the foregoing, there was no expressed or implied promise upon which plaintiff [*12] could rely to claim employment for a specific term. As such, it was at-will and the defendant was within its right in firing plaintiff for just cause or no cause at all.

Plaintiff further asserts that MMC breached its promise to pay him a bonus. Plaintiff contends that the January 19, 1991 offer letter constituted an employment contract entitling him to a $2,500 bonus for the 1992 year. The offer letter contained the following paragraph on the bonus plan:

We will structure a bonus payment for you after one year with the company based on the actual results in check cashing overall and the profits of the new stores. Minimum payment will be $2500.00.

At the outset, we recognize that an implied employment contract may arise out of an original employment at-will agreement. Mers v. Dispatch Printing Co. (1988), 19 Ohio St. 3d 100, 483 N.E.2d 150 at paragraph two of the syllabus. The essential elements of a contract, however, must still be present. Gargasz v. Nordson Corp. (1991), 68 Ohio App. 3d 149, 154, 587 N.E.2d 475. Further, as the court held in Shaw v. Pollock & Co. (1992), 82 Ohio App. 3d 656 at 661, 612 N.E.2d 1295, "seldom will an employee, failing to establish [*13] promissory estoppel to alter an employment at-will agreement, be able to establish an implied employment contract based on the same set of facts." See, also, Gargasz, supra.

The language of the offer letter states that MMC "will structure a bonus payment" after a year's service. This is not a specific promise to make a bonus payment. The language simply means that MMC would develop a bonus program for him after a year to set up bonus compensation to be earned and due for subsequent periods of employment. The "structure" of the bonus program is unknown and not defined. There is no way to determine the size or shape of the program. It is well-settled that a meeting of the minds must exist as to the essential terms, here the bonus program and what it would take to earn it. Isquick v. Classic Autoworks, Inc. (1993), 89 Ohio App. 3d 767, 772, 627 N.E.2d 624; Mr. Mark Corp. v. Rush, Inc. (1983), 11 Ohio App. 3d 167, 464 N.E.2d 586. A bonus provision is unenforceable absent a meeting of the minds on the essential terms. Schleicher v. Alliance Corporate Resources, Inc. (Dec. 7, 1995), 1995 Ohio App. LEXIS 5405, Franklin App. No. 95APE03-311, unreported. See, also, Perrin v. Bishop (Dec. 2, 1993), [*14] 1993 Ohio App. LEXIS 5736, Cuyahoga App. No. 64266, unreported, where this Court held:

Plaintiff, as part of his claim of breach of contract avers he was denied earned bonuses as promised. He claims he was hired at a lower starting salary based on the guarantee that he would receive a bonus in the future based on increased productivity and efficiency. The evidence does not establish that the Bishop Company breached terms of an express contract to pay a bonus as there was no express contract. Even if there was a contract, there was no evidence he would have been entitled to one based upon productivity and efficiency.

Since plaintiff's employment was terminated after thirteen months, no bonus could accrue for a subsequent period yet to be "structured" and plaintiff is entitled to no bonus based on the evidence at hand.

Plaintiff's sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute [*15] the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

DYKE, J., CONCURS.

KARPINSKI, J., CONCURS IN

PART AND DISSENTS IN PART.

JAMES M. PORTER

PRESIDING JUDGE

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S. Ct. Prac.R. II, Section 2(A)(1).

CONCURBY: KARPINSKI (In Part)

DISSENTBY: KARPINSKI (In Part)

DISSENT:

KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART:

I concur in the majority's opinion, except that I respectfully dissent from its affirmance of summary judgment on Gill's claim for bonus compensation. One can reach the majority's conclusion only by ignoring the express, unconditional, guaranteed minimum bonus provision of the parties' [*16] agreement.

The majority asserts that the bonus provision of the contract is not sufficiently definite so that the parties had "no meeting of the minds" concerning the bonus terms. However, the parties expressly agreed and communicated their intent to be bound to the following specific terms:

We [Monetary Management Corporation] will structure a bonus payment for you [Gill] after one year with the company based on the actual results in check cashing overall and the profits of the new stores. Minimum payment will be $2500.00. (Emphasis added.)

The final sentence of this annual bonus provision can be construed reasonably to provide for an unconditional, guaranteed minimum bonus payment of $2,500 regardless of the performance of the company. This interpretation is consistent with the other unconditional "up front," monthly "auto allowance," and "moving expense" provisions Monetary Management agreed to pay in other paragraphs of the letter.

Even if the structure and scope of the bonus plan were unclear as the majority argues, the unconditional guarantee of a minimum annual bonus sufficiently removes any uncertainty to render Monetary Management's promise enforceable. [*17] Set apart as a separate sentence without qualification and without even the subjunctive verb "would" to suggest an underlying condition, the language of the minimum payment provision is quite emphatic. The majority's reliance on the Schleicher and Perrin cases to support the denial of Gill's bonus claim is misplaced precisely because neither case involved a guaranteed minimum bonus provision like that in this case.

I am unwilling to join the majority in construing the parties' agreement as if it did not contain the provision "Minimum payment will be $2500.00." The majority's argument is contrary to well-established law that courts should give meaning to every term of a contract. Moreover, to the extent that any ambiguity arises, the terms of the agreement must be construed against the author, Monetary Management, rather than Gill. I respectfully dissent, therefore, from the majority's disposition of this bonus claim.