COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59668 EDWARD A. GRAVES : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : MENTAL HEALTH MANAGEMENT, INC., ET AL: : Defendant-Appellees : : DATE OF ANNOUNCEMENT DECEMBER 19, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 144254 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEES: Margaret Kazdin Stanard Walter J. Rekstis, III Reid, Berry & Stanard 1800 Huntington Building 1300 Illuminating Building Cleveland, Ohio 44115 55 Public Square Cleveland, Ohio 44113 Lee Calligaro Craig N. Goodrich 1920 L Street, N.W. Suite 500 Washington, D.C. 20036 - 2 - ANN McMANAMON, J.: In August 1986, Edward Graves ("the employee") and Mental Health Management, Inc. ("MHM") entered into a five-year employment contract. Under the terms of this agreement, the employee was to serve as Administrator for Windsor Hospital in exchange for a $70,000 annual salary and other benefits. The employee's responsibilities included ensuring compliance with the requirements of the Joint Commission for the Accreditation of Hospitals ("JCAH"). In March 1987, MHM fired the employee for alleged deficiencies in his performance relative to the JCAH requirements. At that time, the employee signed a release relinquishing all rights arising from the parties' employment relationship in exchange for, inter alia, $21,538.43 (four months severance pay), MHM's waiver of a non-competition clause in the 1987 employment contract and a favorable reference. Almost one year after signing the release, the employee sued MHM and Mental Health Management, Inc. of Ohio for breach of the employment contract and for inducing him to enter into it without any intention of itself honoring the agreement. The defendants moved for summary judgment on the ground that the release precludes the employee's claims. The court initially denied the motion but, upon reconsideration, entered judgment for the defendants. In a timely appeal, the employee raises three assignments of error./1\ Since his arguments are not well taken, we affirm. /1\ See Appendix. - 3 - In his first assignment, the employee asserts the court erred in granting the motion for reconsideration and entering judgment for the defendants. The employee claims that, because the defendants failed to file their motion within the fourteen day limit of Civ. R. 59, the trial judge could not reconsider his initial ruling. The employee's reliance on Civ. R. 59 is misplaced. The defendants filed a motion for reconsideration of an interlocutory ruling, not a Civ. R. 59 motion for a new trial. Civ. R. 59 governs motions filed after trial and is inapplicable to this case. Summary judgment proceedings do not constitute "trials" within the meaning of that rule. See L.A. & D v. Bd. of Commrs. (1981), 67 Ohio St. 2d 384; Dahl v. Kelling (1986), 34 Ohio App. 3d 258. Finally, it is well-established that an order overruling a motion for summary judgment is interlocutory in nature and may be reconsidered by the trial court at any time prior to the entry of final judgment in the case. See Maxey v. Lenigar (1984), 14 Ohio App. 3d 458, 459; Pizzuro v. McKinley Savings and Loan Assoc. (November 21, 1991), Cuyahoga App. No. 59402, unreported. Thus, the trial judge did not err in reconsidering his initial ruling. Accordingly, this assignment of error is overruled. - 4 - In his second assignment, the employee states the "trial court erred in granting a motion filed out-of-rule." The employee failed to separately argue this assignment of error in his brief and, thus, we decline to address it. App. R. 12(A). See, also, State v. Rivers (1977), 50 Ohio App. 2d 129. We note, however, that our disposition of the first assignment appears to address this issue. Accordingly, this assignment of error is overruled. The employee's third assignment of error challenges the entry of summary judgment for the defendants. The entry of summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Civ. R. 56(C). In reviewing a summary judgment motion, the court must construe the evidence in a light most strongly in favor of the party opposing the motion. Morris v. Ohio Casualty Ins. Co. (1988), 35 Ohio St. 3d 45; Harless v. Willis Day Wakehousing Co. (1978), 54 Ohio St. 2d 64. The party opposing the motion, however, may not rest upon mere allegations but must produce documentary evidence setting forth specific facts that create a genuine issue for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317; Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112. - 5 - The defendants contend the March 1987 release bars the employee's claims. The release provides in relevant part: "Employee hereby releases, acquits and forever discharges MHM including all employees, agents, successors, assigns, representatives and attorneys of MHM, from any and all claims, contingent claims, counterclaims, obligations, liabilities, demands, rights, suits, actions or causes of actions relating in any way to any obligations of MHM pursuant to any employment relationship between the parties. ***." The employee, initially, counters that he signed the release under duress and, thus, the document is invalid. To avoid a contract on the grounds of duress a party must demonstrate he was subject to "'*** a wrongful or unlawful act or threat, ***' and that it '*** deprived the victim of his unfettered will.'" Blodgett v. Blodgett (1990), 49 Ohio St. 3d 243, 246, quoting 13 Williston on Contracts (3 Ed. 1970), 704, Section 1617. See, also, Mancino v. Friedman (1980), 69 Ohio App. 2d 30. In Blodgett, the Supreme Court set forth three elements common to all situations involving duress: "'*** (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party. *** The assertion of duress must be proven to have been the result of the defendant's conduct and not by the plaintiff's necessities.'" Blodgett, supra, at 246 quoting Urban Plumbing & Heating Co. v. United States (U.S. Ct. of Claims 1969), 408 F.2d 382, 383- 390. Finally, it is not enough to demonstrate that the individual signed the release because of difficult circumstances that are not the fault of the other party. Id. at 246. - 6 - In support of his defense of duress, the employee claims the defendants misrepresented the results of the JCAH survey and led him to believe the hospital failed its accreditation review. He also states the defendants refused to give him a copy of the release for review by his attorney, forced him to sign the release in a short period of time and failed to inform him that MHM policy provided for two months severance pay even if the employee did not sign a release. Assuming arguendo, that the employee's allegations are true, we do not find that they constitute wrongful or illegal acts which deprived the employee of "his unfettered will." Blodgett, supra. See, e.g., Mancino, supra; Agates, Inc. v. Wolfe (January 17, 1989), Franklin App. No. 88AP-344, unreported. The record demonstrates MHM's representative, Thomas Wojick, offered the employee three months severance pay and waiver of the non- competition clause in exchange for signing the release. Although Wojick refused to give the employee a copy of the release for his attorney's review, the employee telephoned his lawyer to discuss the ramifications of signing the document. The attorney advised him to ask for more severance pay and a favorable reference. The employee then met again with Wojick who agreed to four months severance pay and promised to provide the reference. At his deposition, the employee indicated he did not sign the release then -- Friday March 27, 1987 -- but waited until Monday or Tuesday -- March 30 or 31, 1987 -- after he met with his attorney. In his affidavit, the employee states the release was - 7 - offered on Thursday, March 26, 1987 and that he met with his lawyer and signed the release the next day, March 27, 1987. Even assuming the employee had less that twenty-four hours to decide whether to sign the release, we do not find this supports his duress defense. The employee admitted he discussed with his lawyer the "pros and cons" of signing the release and understood "[t]he possibility that that's all I [Graves] was ever going to get from Mental Health Management, that it was done, over, finished, that we were walking away from each other." (Graves deposition Tr. 184). The employee also averred he recently incurred heavy debt and that "'*** in order to keep my (Graves) head above water financially, I had no choice but to sign the release and accept the minimal severance pay offered.'" (Graves deposition Tr. 172-173, 181). Construing the evidence in a light most favorable to the employee, we find he voluntarily signed the release and that he chose this alternative rather than pursuing other legal recourse. Blodgett, supra. The fact that he purportedly found himself in a difficult financial situation, which the defendants did not create, is insufficient to establish duress. Id. We also reject the employee's claim that the release was not supported by adequate consideration since his employment contract provided for a $70,000 annual salary. There is no guarantee the employee would have prevailed in an action to recover his salary based upon the employment contract. Furthermore, the employee received $21,538.43 in severance pay, a - 8 - favorable reference, and waiver of the non-competition clause in exchange for the release. We find this to be valuable consideration sufficient to support the release. See Manning v. Brocato (January 23, 1986), Cuyahoga App. No. 49361, unreported. Accordingly, the third assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 9 - 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. JOHN F. CORRIGAN, P.J., JAMES D. SWEENEY, J., CONCUR. JUDGE ANN McMANAMON 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. - 10 - APPENDIX Appellant's assignments of error: I "The court erred by granting appellees' motion for reconsideration." II "The trial court erred by granting appellees' motion for summary judgment on the grounds that there are genuine issues of material fact; therefore, appellees are not entitled to judgment as a matter of law." .