COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59417 EDWARD D. STARK : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : T. W. GROGAN CO., ET AL. : OPINION : : DEFENDANT-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 149062. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Thomas G. Kelley, Esq. 516 Standard Building Cleveland, Ohio 44113 For Defendant-appellees: Andrew C. Meyer, Esq. Paul A. Monahan, Esq. Duvin, Cahn & Barnard Erieview Tower - 20th Floor 1301 East Ninth Street Cleveland, Ohio 44114 - 1 - SWEENEY, JAMES D., J.: Plaintiff-appellant Edward Stark filed this appeal subsequent to the trial court's granting of the motion for summary judgment on behalf of defendant-appellee COM Corp. Inc. - Sun Newspapers. Appellant was employed by appellee as a newspaper reporter, and authored the column "Stark Raving" in the Sun Newspaper. At the time of his discharge on April 30, 1986, appellant had been an employee of appellee for eight or nine years. On April 13, 1986, appellant met his lover, Ms. Heidi Rindfleisch, at the Bread and Butter Company, a restaurant and bar located in the Berea Commons. Appellant and Ms. Rindfleisch met to discuss divorcing their respective spouses so they could continue their relationship. Appellant arrived at approximately midnight, and he and Ms. Rindfleisch left between 2:00 and 2:30 a.m. During that time appellant had three drinks. After leaving the bar, appellant and Ms. Rindfleisch stood on the sidewalk, embraced and kissed. Mr. John A. Bently, the security guard for the Berea Commons area, requested the couple to move along, to which appellant responded, "What right do you have to make me move along." (Appellant's deposition T. 49) They did, however, move to appellant's office located 45 to 50 feet away, also in the Berea Commons. Since no one was in the Sun Newspaper offices, appellant used his key to gain entrance. He checked his telephone messages, but did not engage in any other work-related activity. -3- Within minutes, appellant responded to a knock on the door by the same security guard. Upon being questioned by the guard, appellant responded, "I work here, I have every right in the world to be here." (T. 51) Appellant and Ms. Rindfleisch remained in the Sun Newspaper office for another hour, or hour and a half, until approximately 3:00 or 3:30 a.m. The security guard wrote up his report and after his signature wrote: "Note this person had obviously had quiet (sic) a few, to (sic) many, drinks." In the body of his report he described the appellant as surly, and stated that in response to his request for identification, appellant slammed the door. Appellant did receive an employee handbook on November 20, 1984. The front of the handbook contains the following disclaimers: The policies described in this handbook are not conditions of employment. The language is not intended to create a contract between the Company and its employees. In the section entitled "Work Rules for All Employees" it states in part: * * * These guidelines are published as part of your Employee Handbook to eliminate future misunderstandings and as standards of conduct to be administered fairly and equitably in the best interest of employees and Sun Newspapers. Any discipline required as a result of breaking the rules should be regarded as necessary to prevent reoccurrence. These rules should be considered representative rather than all inclusive of conduct for which disciplinary action, -4- ranging from verbal warning to immediate discharge, will be taken. From time to time, new or amended rules may be established by Sun Newspapers for work and conduct not specifically covered by these rules, if such work and conduct is harmful either to the right of the other employees or the safety and operation of Sun Newspapers. . . . Under part A of this section are listed twelve offenses which would subject an employee to automatic discharge. Number 10 is "Consuming, possessing or being under the influence of alcoholic beverages, drugs or narcotics on Company premises or while conducting Company business off premises." It was pursuant to this section that appellant lost his job. During his years with the Sun Newspaper, appellant had received positive performance reviews. In December, 1985, his supervisor wrote, "Ed is a solid newsman and an entertaining columnist," and referred to him as a "heavy weight," meaning that he carried great weight on the staff. On April 30, 1986, appellant attended a meeting with his supervisors at which he received his final paycheck. Appellant presents one assignment of error for review. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Summary judgment should be granted only where there exists no material issue of fact, the movant is entitled to judgment as a matter of law, and when viewing the evidence most strongly in favor of the non-moving party reasonable minds could only come to one conclusion in favor of the movant. Civ. R. 56(C); Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1. -5- In Phung v. Waste Management, Inc. (1986), 23 Ohio St. 3d 100, the Supreme Court stated: "Ohio has long adhered to the general rule that 'either party to an oral employment-at-will agreement may terminate the employment relationship for any reason that is not contrary to law.' Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, 103." In the case sub judice, there is no question that there was an at-will-employment relationship between appellant and appellee. See deposition of appellant at 26, 27, 33, 99. There are two recognized exceptions to the employer's right to discharge an at-will employee. The first is where there is an implied contract based on facts and circumstances surrounding the oral agreement. Mers, supra. This exception includes situations, as here, where an employee bases a claim on the employee handbook. However, the Supreme Court has recently stated that: Absent fraud in the inducement, a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employee handbook. See Tohline v. Central Trust Co. (1988), 48 Ohio App. 3d 280, 549 N.E. 2d 1223. Wing v. Anchor Media (1991), 59 Ohio St. 3d 108. Here, the employee handbook clearly stated that it was not intended to create a contract. Since appellant raises no issue as to fraud in the inducement, as a matter of law the trial court correctly granted appellee's motion for summary judgment on this issue. -6- The second exception set forth in Mers, supra, to employment-at-will is promissory estoppel. The Wing court, supra, cited Mers,: Mers applied traditional promissory estoppel doctrine to an employment setting: "'"[A] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. * * *"'" Id. at 104, 19 OBR at 265, 483 N.E. 2d at 154, quoting Restatement of the Law 2d, Contracts (1973), Section 90. The appellant does not contend that any direct promises were made to him regarding his length of employment. Rather, he contends that because of his positive employee evaluations, there was an implied promise to retain his services. The court dealt squarely with this issue in Wing, supra, when it stated: Recently we shed further light on the nature of a promise that can give rise to a promissory estoppel exception to the employment-at-will doctrine. "Standing alone, praise with respect to job performance and discussion of future career development will not modify the employment-at-will relationship. A demonstration of detrimental reliance on specific promises of job security can create an exception to the employment-at- will doctrine. * * *" (Citation to Mers omitted.) Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131, 543 N.E. 2d 1212, paragraph three of the syllabus. Appellant does not demonstrate any detrimental reliance on any specific promises by appellee. Therefore, as a matter of law the trial court correctly granted summary judgment on this issue. -7- Appellant's assignment of error is overruled, and the judgment of the trial court is affirmed. judgment of the trial court is affirmed. It is ordered that appellees recover of appellant their 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DYKE, P.J., and ANN MCMANAMON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .