COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60667 ANTHONY J. LoPRESTI, ET AL., : : Plaintiff-Appellants : : JOURNAL ENTRY vs. : and : OPINION TRANSOHIO SAVINGS BANK, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 4, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 171,338 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Dennis M. Pilawa Clark D. Rice 1280 West Third Street Cleveland, Ohio 44113 For defendant-appellee: Thomas H. Barnard Robert M. Wolff Erieview Tower, 20th Floor 1301 East Ninth Street Cleveland, Ohio 44114 -2- NAHRA, P.J.: Anthony J. LoPresti, Jr. and his wife, Michelle LoPresti appeal the trial court's decision granting summary judgment in favor of TransOhio Savings Bank. For the reasons set forth below, we affirm the judgment of the trial court. Anthony LoPresti was employed by TransOhio from 1981-1988. He started out as a residential lending officer. He then managed the bank's money desk. Ultimately, LoPresti ran the bank's investment portfolio. At various times, LoPresti reported to senior management at TransOhio. He was told by his supervisors that he was doing a good job and would have opportunities for advancement. They also gave him increasing responsibilities, promotions, salary increases, bonuses, parking privileges and other benefits. All these things led LoPresti to believe that he had job security at TransOhio. In 1986, the LoPrestis entered into a purchase agreement with Wm. C. Kay Builders, Inc. to build them a house in Concord, Ohio. The LoPrestis obtained financing through TransOhio for the deal. The LoPrestis' loan was not a construction loan, with provision for partial payments during construction, but a residential mortgage. The purchase agreement provided for payment of the purchase price upon completion of the house or upon final approval by the bank. The escrow agreement provided a method whereby the LoPrestis and the builder could authorize TransOhio as escrow agent to withhold set sums pending the completion of certain items. In September, 1986, TransOhio -3- refused to give final approval of the house because it was incomplete. Accordingly, the bank did not disburse the loan proceeds. The builder refused to authorize a hold back, and the LoPrestis refused to authorize disbursement without a hold back. The LoPrestis took possession of the house without payment of the purchase price, without a deed, and without a mortgage. The builder filed a complaint against the LoPrestis for forcible entry and detainer in Lake County. TransOhio was subsequently added as a new party defendant. The case was settled by consent entry dated August 26, 1988. The settlement required the LoPrestis to pay the builder $19,200. TransOhio was to pay the $90,000 loan amount plus another $12,064. The builder was ordered to complete outstanding items. At the time the Lake County litigation was set for trial, Anthony LoPresti was working on a large investment deal for TransOhio. Although he missed a day or two of work to attend to the Lake County case, he stated in his deposition that his absence did not affect the deal. LoPresti also stated that he was asked to obtain psychiatric help in connection with the Lake County litigation, which he refused. Shortly after settlement of the Lake County case, LoPresti was suspended for unauthorized arbitrage trades. A week later he was terminated. LoPresti stated at his deposition that his trading sometimes violated TransOhio's investment policies. He also stated that he did not know TransOhio's termination policy. LoPresti believed he was fired because of the Lake County case. -4- The LoPrestis sued TransOhio for breach of the duty of good faith and fair dealing and breach of contract arising out of TransOhio's refusal to disburse loan funds to the LoPrestis' builders, and for indemnification of costs associated with the Lake County case. They also asserted claims for breach of employment contract, promissory estoppel and breach of the implied covenant of good faith and fair dealing arising out of Anthony LoPresti's termination. Claims for emotional distress and invasion of privacy were deleted from their amended complaint. TransOhio moved for summary judgment on all claims. The trial court issued a memorandum of opinion and order granting the motion, and appellants filed this timely appeal. I. Appellants' first assignment of error reads as follows: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS' (SIC) WHEN IT CONCLUDED THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AND THE APPELLEE WAS ENTITLED TO A JUDGMENT AS A MATTER OF LAW, THEREBY GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT, WHEN THERE WAS OVERWHELMING EVIDENCE THAT APPELLEE, THROUGH ITS OFFICERS, EMPLOYEES AND AGENTS, MADE REPEATED REPRESENTATIONS AND PROMISES TO APPELLANTS OF JOB SECURITY, REPRESENTATIONS AND PROMISES UPON WHICH APPELLANTS WERE JUSTIFIED TO RELY. Employment relationships are presumed to be at will in the state of Ohio unless the parties have agreed otherwise. See, e.g., Henkel v. Educ. Research Council (1976), 45 Ohio St. 2d 249, 255; Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, paragraph one of the syllabus. Where the circumstances -5- clearly show that the employer and employee intended to be bound by an employment contract, such contract will be enforced. See, e.g., Henkel, supra, at 255. An enforceable contract arises only where there has been a meeting of minds: "[t]he 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. In order to determine the existence and terms of a contract, the courts look at all of the circumstances surrounding the employment relationship, including "the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question". Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134, paragraph two of the syllabus. Although employment handbooks can provide the basis of an employment contract, where there is no evidence of mutual assent to the handbook terms, the handbook is considered to be a unilateral statement by the employer which does not give rise to contract rights or obligations. Uebelacker v. Cincom Systems, Inc. 48 Ohio App. 3d 268, 272. Where no contract can be implied, a discharged employee may be entitled to relief pursuant to the equitable doctrine of promissory estoppel. In Mers, supra, at paragraph three of the syllabus, the court held as follows: The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The test in such cases is whether the employer should -6- have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee. Promissory estoppel requires specific promises of job security, not merely promises of future benefits or opportunities. Compare Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, with Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131. Without a specific promise of continued employment, there can be no detrimental reliance. Wing, see supra, at 110. In Wing the court also held that a party opposing summary judgment must come forward with evidence of each element of each claim to avoid dismissal. Id. at 111. In this case, appellants rely on statements that LoPresti was a valuable employee, regular salary increases, positive performance reviews, parking privileges and the invitation to participate in the employer's Executive Incentive Plan to prove the existence of an implied contract and to justify promissory estoppel. Appellants have failed to adduce evidence of the elements of their contract and estoppel claims as required by Wing, see supra. None of the evidence relied on by appellants reflects specific terms of employment which would have modified LoPresti's at-will employment status. Anthony LoPresti admitted in his deposition that he did not know the reasons for which he could be terminated, and was not aware of provisions on the TransOhio policy manual regarding the conditions of his employment. The -7- Executive Incentive Plan explicitly disclaims creation of employment contracts. See Smith v. Toledo Edison Co. (1986), 32 Ohio App. 3d 24, 32. There is no evidence of a meeting of minds between TransOhio and LoPresti as to specific terms which modified LoPresti's employment at-will status. Accordingly, no employment contract can be implied. As for promissory estoppel, appellant does not claim that the bank made him a specific promise of continued employment, but rather that he "understood" that he would keep his job from the praise and promotions he received. Without evidence of a specific promise, appellants cannot succeed on their promissory estoppel claim. Compare to Bruno v. Struktrol Co. of America (1991), 62 Ohio App. 3d 509 (summary judgment for employer reversed where employer told 58-year-old prospective employee concerned about job security that with satisfactory performance he would have a job until age 65), and Helmick, supra (summary judgment for employer reversed where employer dissuaded employee from job search and promised continued employment). Appellants' first assignment of error is overruled. II. Appellant's second assignment of error reads as follows: THE TRIAL COURT ERRED WHEN IT DETERMINED THAT APPELLEE DID NOT BREACH ITS DUTY TO ACT IN GOOD FAITH AS A LENDER, DESPITE VIOLATING THE CLEAR AND UNEQUIVOCAL TERMS OF AN ESCROW AGREEMENT. Appellants claim that TransOhio breached its duty to act in good faith as a lender by holding back loan funds in violation of -8- the escrow agreement. The escrow agreement reads in pertinent part as follows: Furthermore, where a letter of acceptance, approved by both Seller and Buyer, authorizes TRANSOHIO as escrow agent, to hold definite sums of money to insure the completion of specific items, the Seller shall have 120 days from date to complete the enumerated work. Appellants claim that since neither they nor the seller authorized a "hold" of definite sums of money, TransOhio's unilateral decision to hold back $10,000 violated the escrow agreement. The trial court found that there was no evidence that TransOhio held back $10,000. The court concluded from the evidence that TransOhio withheld all of the loan proceeds pursuant to paragraph 14 of the Purchase Agreement, which states as follows: The parties agree that the house shall be considered completed when the structure has been substantially completed in accordance with the plans and selection sheet, or when the structure has been given final approval by Buyer's lending institution. Upon completion, Buyer agrees to make full payment of the balance of the purchase price within 10 days of the date of such completion or approval. The record in this case reflects that the house was not completed, and that TransOhio had not given final approval to the structure. Mary Ann Cuglewski, escrow officer in the deal, stated at her deposition that the funds were not disbursed. Anthony LoPresti stated at his deposition that the bank had a bona fide reason not to disburse funds because the house was not complete, and that he had not authorized disbursement. There was -9- no evidence of a unilateral $10,000 hold back by the bank. Instead, all of the evidence indicated that the bank had refused to make any disbursement of loan funds pursuant to the purchase agreement because the structure was incomplete. Since appellants failed to adduce any evidence in support of their claim, the trial court correctly dismissed it. Appellants' second assignment of error is overruled. III. Appellants' third assignment of error reads as follows: THE TRIAL COURT ERRED IN DISMISSING APPELLANTS' CLAIMS FOR LENDER LIABILITY AND INDEMNIFICATION. Appellants claim that TransOhio should pay appellants' expenses in the Lake County litigation. They argue that these costs were incurred because of the wrongful acts of TransOhio, such that general principles of indemnity apply. The acts in question include TransOhio's wrongful hold back of loan proceeds and termination of Anthony LoPresti. The rule of indemnity provides that: where a person is chargeable with another's wrongful act, and pays damages to the injured party as a result thereof, he has a right of indemnity from the person committing the wrongful act, the party paying the damages being only secondarily liable, whereas, the person committing the wrongful act is primarily liable. Travelers Indemnity Co. v. Trowbridge (1975), 41 Ohio St. 2d 11, 14. Therefore, one party must be "chargeable" for the wrongful act of another as a prerequisite for indemnity. * * * -10- In order to collect indemnity for sums paid in settlement of a claim, the party seeking indemnity must prove that the party from whom indemnity is claimed received proper and timely notice of the settlement, that legal liability required the settlement, and that the settlement was fair and reasonable. Globe Indemnity Co. v. Schmitt (1944), 142 Ohio St. 595, 604. Convention Center Inn, Ltd. v. Dow Chemical Co. (Nov. 1, 1990), Cuyahoga App. No. 57643, unreported, 6-7. We have already determined that appellants failed to adduce evidence of wrongful withholding of loan funds by TransOhio. Furthermore, appellants failed to prove that Anthony LoPresti was wrongfully terminated in violation of an implied contract of employment or in violation of a specific promise of continued employment upon which he relied to his detriment. Accordingly, there are no wrongful acts upon which indemnity could be predicated. Appellants' third assignment of error is overruled. Affirmed. -11- It is ordered that appellee recover of appellants 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 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. ANN McMANAMON, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .