COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60838 LAURA LOWRY-GREENE : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY CROSS-APPELLANT : v. : AND : BRIGHTON HOTEL CORPORATION, : OPINION ET AL. : : DEFENDANTS-APPELLANTS : CROSS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 151028. JUDGMENT: REVERSED AND FINAL JUDGMENT ENTERED FOR APPELLANTS. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Theodore Meckler, Esq. Meckler & Meckler Co. 614 Superior Avenue N.W. Suite 1350 Cleveland, OH 44113 For Defendants-Appellants: Marcia E. Hurt, Esq. Walter, Haverfield, Buescher & Chockley 1215 Terminal Tower Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendants-appellants, Brighton Hotel Corp., Brighton Manor Corp. and E. Scott Emerson appeal from a jury verdict rendered on behalf of plaintiff-appellee, Laura Lowry-Greene. The defendants-appellants raise six assignments of error. In addition, plaintiff-appellee, Laura Lowry-Greene, raises six assignments of error by way of cross-appeal. I. THE FACTS A. THE EMPLOYMENT HISTORY OF APPELLEE-GREENE In the fall of 1986, appellee-Greene resided in the state of Wisconsin and was employed as the director of association sales for the Bergstrom Hotel Corp. Appellee-Greene, however, was seeking employment in the Cleveland area through the services provided by an employment agency. Appellant-Brighton Hotel Corp., which owned and operated three Holiday Inn hotels within the Cleveland area, was seeking a director of sales and marketing. Appellee-Greene was placed in contact with appellant- Brighton Hotel Corp. by the employment agency with regard to the possibility of future employment. After a series of meetings and correspondence with appellant-Emerson, who was the president of appellant-Brighton Hotel Corp., and J. Patrick Bark, who was the vice-president of appellant-Brighton Hotel Corp., appellee-Green was hired as the director of sales and marketing. Appellee- Greene started her employment as director of sales and marketing on April 20, 1987. On November 3, 1987, the employment of appellee-Greene was terminated. -3- B. THE APPELLEE FILES A COMPLAINT IN THE CUYAHOGA COUNTY COURT OF COMMON PLEAS On June 8, 1988, appellee-Greene filed a complaint in the Cuyahoga County Court of Common Pleas against appellant-Brighton 1 Hotel Corp., appellant-E. Scott Emerson and J. Patrick Bark. The complaint of appellee-Greene raised six causes of action: 1) breach of an implied contract of employment: 2) promissory estoppel as a result of promises and representations made by the appellants; 3) violation of public policy as a result of the termination of appellee-Greene; 4) fraud on the part of the appellants; 5) civil conspiracy; and 6) sexual discrimination. Each of these six causes of action were raised against appellant- Brighton Hotel Corp. and also against appellant-Emerson in his individual capacity. C. THE AMENDED COMPLAINT OF APPELLEE-GREENE On October 26, 1989, appellee-Greene filed an amended complaint which added appellant-Brighton Manor Corp. as a new defendant. The amended complaint retained the original six causes of action and merely claimed that the new defendant, appellant-Brighton Manor Corp., was also an employer of appellee- Greene. D. THE TRIAL COURT GRANTS A DIRECTED VERDICT AS TO SOME OF APPELLEE-GREENE'S CAUSES OF ACTION 1 On July 17, 1990, appellee-Greene filed a notice of dismissal with regard to J. Patrick Bark who was the vice- president of appellant-Brighton Hotel Corp. J. Patrick Bark is not a party with regard to the present appeal. -4- On July 16, 1990, appellee-Greene's six causes of action were tried before a jury. At the conclusion of the trial, the trial court granted a directed verdict for the appellants as follows: 1) a directed verdict was granted in favor of appellant- Emerson with regard to the first claim for relief which was based upon a theory of implied contract; 2) a directed verdict was granted in favor of appellant- Emerson with regard to the second claim for relief which was based upon a theory of promissory estoppel; 3) a directed verdict was granted in favor of appellant- Emerson, appellant-Brighton Hotel Corp. and appellant- Brighton Manor Corp. with regard to the third claim for relief which was based upon a theory of violation of public policy; 4) a directed verdict was granted in favor of appellant- Emerson, appellant-Brighton Hotel Corp. and appellant- Brighton Manor Corp. with regard to the fifth claim for relief which was based upon a theory of civil conspiracy; and 5) a directed verdict was granted in favor of appellant- Emerson, appellant-Brighton Hotel Corp. and appellant- Brighton Manor Corp. with regard to the sixth claim for relief which was based upon a theory of sexual discrimination. E. THE CAUSES OF ACTION SUBMITTED TO THE JURY -5- Thus, the trial court allowed the jury to deliberate on the following three claims: 1) breach of an implied contract of employment as to appellant-Brighton Hotel Corp. and appellant-Brighton Manor Corp. (directed out as to appellant-Emerson); 2) promissory estoppel as to appellant-Brighton Hotel Corp. and appellant-Brighton Manor (directed out as to appellant-Emerson); and 3) fraud as to appellant-Brighton Hotel Corp., appellant- Brighton Manor Corp. and appellant-Emerson. F. THE VERDICT OF THE JURY On July 20, 1990, the jury returned the following verdict against the appellants: 1) compensatory damages in the amount of $16,096.15 against appellant-Brighton Hotel Corp. and appellant-Brighton Manor Corp. with regard to the claim of breach of an 2 implied contract claim; 2) compensatory damages in the amount of $12,142.85 against appellant-Brighton Hotel Corp. and appellant-Brighton Manor Corp. with regard to the fraud claim; 2 Both of appellee-Greene's claims for breach of an employment contract and promissory estoppel were submitted to the jury. The jury, however, was specifically instructed that a verdict for appellee-Greene could only be returned with regard to either the claim of breach of contract or promissory estoppel, but not both. The jury chose to return a finding for appellee- Greene with regard to her claim for breach of contract thus in effect returning a defense verdict on the claim of promissory estoppel. -6- 3) punitive damages in the amount of $11,428.57 against appellant-Brighton Hotel Corp. and appellant-Brighton Manor Corp. with regard to the fraud claim; 4) compensatory damages in the amount of $714.29 against appellant-Emerson with regard to the fraud claim; and 5) punitive damages in the amount of $22,857.14 against appellant-Emerson with regard to the fraud claim. G. THE POST-TRIAL MOTIONS OF APPELLEE-GREENE FOR ATTORNEY FEES AND PREJUDGMENT INTEREST It should be noted that the trial court granted the post- trial motion of appellee-Greene for attorney fees and entered an award against all three appellants, jointly and severally, in the amount of $10,000. Further, the trial court denied the motion for pre-judgment interest as filed by appellee-Greene. H. THE APPELLANTS' MOTION FOR J.N.O.V./NEW TRIAL On August 13, 1990, the appellants filed a joint motion for judgment notwithstanding the verdict and/or motion for new trial with appellee-Greene filing a responsive brief on October 1, 1990. On October 24, 1990, the trial court denied the appellants' joint motion for judgment notwithstanding the verdict and/or motion for new trial. I. THE TIMELY APPEAL OF APPELLANTS AND APPELLEE-GREENE Thereafter, the appellants timely brought the instant appeal from the jury verdict rendered on behalf of appellee-Greene. In addition, appellee-Greene brought a timely cross-appeal from the judgment of the trial court which granted the appellants a direct -7- verdict on the claims of sex discrimination, violation of public policy and civil conspiracy. Appellee-Greene also appeals from the trial court's denial of her motion for prejudgment interest. This court shall initially consider the joint appeal as brought by appellant-Brighton Hotel Corp., appellant-Brighton Manor Corp. and appellant-Emerson and then proceed to a review of the cross-appeal as brought by appellee-Greene. II. THE APPELLANTS' FIRST ASSIGNMENT OF ERROR The first assignment of error, as brought by appellant- Brighton Hotel Corp. and Brighton Manor Corp., is that: THE TRAIL (SIC) COURT ERRED IN FAILING TO DIRECT A VERDICT OR TO ENTER JUDGMENT NOTWITHSTANDING THE VERDICT ON PLAINTIFF- APPELLEE'S CONTRACT AND/OR PROMISSORY ESTOPPEL CLAIMS BECAUSE THE PLAINTIFF- APPELLEE FAILED TO SHOW BY ANY EVIDENCE ANY SPECIFIC PROMISES MADE TO HER ABOUT JOB SECURITY. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT IMPROPERLY DENIED APPELLANTS' MOTION FOR DIRECTED VERDICT ON APPELLEE-GREENE'S CLAIM OF AN EMPLOYMENT CONTRACT AND PROMISSORY ESTOPPEL Appellant-Brighton Hotel Corp. and appellant-Brighton Manor Corp., through the first assignment of error, argue that the trial court erred by failing to direct a verdict or grant the motion for judgment notwithstanding the verdict as made with regard to the claims of appellee-Greene for breach of an implied employment contract and promissory estoppel. Specifically, appellant-Brighton Hotel Corp. and appellant-Brighton Manor Corp. argue that appellee-Greene failed to introduce sufficient -8- evidence at trial relating to the claims of breach of an implied employment contract and promissory estoppel thus requiring the trial court to grant the motion for directed verdict and/or grant 3 the motion for judgment notwithstanding the verdict. The first assignment of error is well taken. B. THE STANDARD OF REVIEW FOR A MOTION FOR DIRECTED VERDICT Civ. R. 50(A)(4), which defines the basis upon which a trial court shall grant a motion for directed verdict, provides that: (4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. In addition, Civ. R. 50(B), which deals with a motion for judgment notwithstanding the verdict, provides that: (B) Motion for judgment notwithstanding the verdict. Whether or not a motion to direct a verdict has been made or overruled and not later than fourteen days after entry of judgment, a party may move to have the 3 Appellee-Greene, in her responsive brief, argues that the failure of the appellants to properly move for a directed verdict with regard to the claims of an implied contract and promissory estoppel prevents this court from reviewing the first assignment of error. This court, however, may review the appellant's initial assignment of error pursuant to the doctirne of plain error. Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207. The record further indicates that the appellants did move for a directed verdict at the close of appellee-Greene's case and that the trial court delayed a ruling until the close of the appellant's case. -9- verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion; or if a verdict was not returned such party, within fourteen days after the jury has been discharged, may move for judgment in accordance with this motion. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence. If no verdict was returned the court may direct the entry of judgment or may order a new trial. The same test which is applicable to a motion for directed verdict must also be applied to a motion for judgment notwithstanding the verdict. This test requires that the trial court construe the evidence adduced at trial in a light most favorable to the non-moving party and that the trial court must deny the motion for directed verdict or judgment notwithstanding the verdict where there is substantial evidence to support the non-moving party's position upon which reasonable minds may differ. The same test is used for a motion for judgment notwithstanding the verdict and a motion for a directed verdict. Nickell v. Gonzalez, supra, 17 Ohio St. 3d at 137, 17 OBR at 282, 477 N.E. 2d at 1147. The trial judge must construe the evidence most strongly in favor of the non-movant and if upon all the evidence there is substantial evidence to support the non-movant's position upon which reasonable minds may reach different conclusions, the motion must be denied. Id. The trial judge does not determine the weight of the evidence or the -10- credibility of the witnesses, id., and although he examines the materiality of the evidence, he does not look at the conclusions to be drawn. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66, 69, 23 O.O. 3d 115, 117, 430 N.E.2d 935, 938. Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App. 3d 181, at 183. A review of the record before this court demonstrates that sufficient evidence was not introduced at trial by appellee- Greene with regard to her claims of an implied contract and promissory estoppel and that reasonable minds could only reach a conclusion which was adverse to appellee-Greene. C. THE DOCTRINE OF EMPLOYMENT-AT-WILL IS STILL ACCEPTED IN OHIO WITH EXCEPTIONS Absent a written contract of employment, the Supreme Court of Ohio has established the continued existence of the employment- at-will doctrine which provides that either the employer or the employee may terminate an employment relationship for any reason which is not contrary to law. Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St. 3d 228; Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St. 3d 131; Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100; Henkel v. Educational Research Council (1976), 45 Ohio St. 2d 249. Two narrow exceptions exist to the employment at-will doctrine: 1) an implied contract which alters the terms of the original employment-at-will relationship; and 2) the doctrine of promissory estoppel. Mers v. Dispatch Printing Co., supra. -11- In the case sub judice, appellee-Greene attempted to establish at trial both of the narrow exceptions to the employment-at-will doctrine: 1) an implied contract of employment with a term of one year was created as a result of the letter of February 25, 1987 (from appellee-Greene to J. Patrick Bark who was the vice- president of appellant-Brighton Hotel Corp.) and the letter of March 5, 1987 (from J. Patrick Bark to appellee-Greene); and 2) promissory estoppel as based upon specific promises of job security. D. THE STANDARD OF REVIEW FOR EXCEPTION OF IMPLIED EMPLOYMENT CONTRACT This court, with regard to the narrow exception of an implied contract which modifies an employment at-will relationship, held in Turner v. SPS Technologies, Inc. (June 4, 1987), Cuyahoga App. No. 51945, that: Items such as employee handbooks, company policy or oral representations, however, will not serve to alter the terms for discharge from the general at-will situation of discharge for any reason unless the parties have a 'meeting of the minds' that said items are to be considered valid contracts altering the terms for discharge. In this respect Cohen & Company v. Messina (19850, 24 Ohio App. 3d 22, states as follows: "Such [employee] manuals may be important in establishing the terms and conditions of employment [citations omitted]. However, in order for such manuals to be considered valid contracts, there must be a 'meeting of the minds' [citations omitted]. The parties must have a distinct and common intention which is communicated by each party to the other party. (Emphasis added.) "Cohen, supra, at 24. -12- "Absent the necessary mutual assent or meeting of the minds by the employer and employee, the handbook or other facts or circumstances set forth, supra, do not alter the terms for discharge. Where such mutual assent is lacking, the handbook or other supplementary materials merely constitute a unilateral statement of company rules and regulations. In Isgro v. Deaconess Hospital (Oct. 30, 1980), Cuyahoga App. No. 41996, unreported, the court held such a unilateral statement of company rules and regulations do not constitute an employment agreement and, therefore, no action in contract arises out of a violation of such rules or regulations." Turner v. SPS Technologies, Inc., supra, at 5. E. APPELLEE-GREENE FAILED TO ESTABLISH THE FIRST EXCEPTION TO EMPLOYMENT-AT-WILL OF AN IMPLIED EMPLOYMENT CONTRACT A review of testimony adduced at trial, the pleadings, depositions, answers to interrogatories, written admissions, affidavits and exhibits clearly fail to demonstrate the existence of any substantial evidence which would support a finding of an implied contract of employment which existed between appellee- Greene and the appellants. The reliance of appellee-Greene upon the letters of February 25, 1987, (see attached exhibit one) and March 5, 1987, (see attached exhibit two) was without merit. The letter of February 25, 1987, as drafted by appellee-Greene, was but a mere unilateral statement of her understanding of the terms of her employment. The letter of February 25, 1987 merely summarized salary, signing bonus, usage of a company automobile, insurance, possible vacation schedule and expenses. In addition, the letter of March 5, 1987, was but a summary of the salary, -13- signing bonus, automobile, insurance, possible vacation and expenses which were to be received by the appellee-Greene as part of her employment. No specific term of employment for a period of one year can be found in either of these two letters. The letters of February 25, 1987, and March 5, 1987, at best established the remuneration that appellee-Greene was to receive annually. In fact, the Supreme Court of Ohio has established that a provision for an annual rate of compensation does not establish the duration of employment. In the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which provides for an 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. Henkle v. Educational Research Council, supra, syllabus. Herein, appellee-Greene failed to introduce substantial evidence with regard to her claim of an implied contract upon which reasonable minds could differ. Thus, the trial court erred by allowing the jury to consider the claim of breach of an implied contract of employment. Further review of the record fails to disclose that appellee- Greene introduced sufficient evidence at trial with regard to her claim of promissory estoppel upon which reasonable minds could differ thus requiring the trial court to deny the appellants' -14- motion for directed verdict or motion for judgment 4 notwithstanding the verdict. F. THE STANDARD OF REVIEW APPLICABLE TO EXCEPTION OF PROMISSORY ESTOPPEL In Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134, the Supreme Court of Ohio opined that the doctrine of promissory estoppel is applicable to an employment-at-will relationship where the employer makes promises to the employee which should reasonably be expected to be relied upon by the employee. Thus, the doctrine of promissory estoppel is applicable and binding to employment-at- will relationships when a promise which the employer should reasonably expect to induce action or forbearance on the part of the employee does induce such action or forbearance, if injustice can be avoided only by enforcement of the promise. The test in such cases is whether the employer should 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. See id. at paragraph three of the syllabus. Kelly v. Georgia-Pacific Corp., supra, at 139. G. APPELLEE-GREENE ALSO FAILED TO ESTABLISH THE PROMISISORY ESTOPPEL EXCEPTION Herein, no evidence was introduced by appellee-Greene to substantiate her claim of promissory estoppel. The record is devoid of any representations made during performance reviews, 4 The jury did not render a verdict for appellee-Greene with regard to her claim of promissory estoppel thus rendering the issue moot. Nevertheless, this court shall address the issue of promissory estoppel. -15- discussions regarding employee manuals applicable to appellee- Greene or correspondence upon which appellee-Greene detrimentally relied. Thus, the trial court erred by failing to grant a directed verdict to the appellants on the claim of promissory estoppel. The appellants' first assignment of error is well taken. III. THE APPELLANT'S SECOND ASSIGNMENT OF ERROR The appellants' second assignment of error is that: THE TRIAL COURT ERRED IN REFUSING TO DIRECT A VERDICT FOR DEFENDANTS-APPELLANTS ON PLAINTIFF'S-APPELLEE'S CLAIMS OF FRAUD BECAUSE THE PLAINTIFF-APPELLEE FAILED TO INTRODUCE ANY EVIDENCE THAT DEFENDANTS- APPELLANTS HAD MISREPRESENTED ANY PAST OR PRESENT FACTS TO HER. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT IMPROPERLY DENIED APPELLANTS' MOTION FOR DIRECTED VERDICT WITH REGARD TO HER CLAIM OF FRAUD The appellants, through their second assignment of error, argue that the trial court erred as a result of failing to grant the appellants a directed verdict as to the claim of fraud. Specifically, the appellants argue that appellee-Greene failed to introduce sufficient evidence at trial which allowed the jury to 5 consider the claim of fraud. 5 The transcript of proceedings demonstrates that appellant-Brighton Hotel Corp. and appellant-Brighton Manor Corp. withdrew their motion for directed verdict as to the claim of fraud. (Tr. 473.) The trial court, however, did deny the motion for directed verdict on the claim of fraud as made by appellant- Emerson. It is axiomatic that a corporate entity can only act through the actions of its officers and the failure of the claim of fraud with regard to appellant-Emerson, who was the president of the defendant corporate entity, would prevent the finding of fraud on the part of appellant-Brighton Hotel Corp. and -16- The appellants' second assignment of error is well taken. B. THE ELEMENTS OF FRAUD The Supreme Court of Ohio, with regard to a claim of common- law fraud, held that: Appellant also seeks reversal of the jury disposition of appellee's cause of action predicated upon fraud. A claim of common- law fraud requires proof of the following elements: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand; (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St. 3d 69, 23 OBR 200, 491 N.E. 2d 1101, paragraph two of the syllabus; Cohen v. Lamko, Inc. (1984), 10 Ohio St. 3d 167, 169, 10 OBR 500, 502, 462 N.E. 2d 407, 409. Russ v. T.R.W., Inc. (1991), 59 Ohio St. 3d 42, at 49. C. APPELLEE-GREENE'S CLAIM OF FRAUD WAS TWO-FOLD In the case at bar, the claim of fraud as made by appellee- Greene was two-fold: 1) appellants misrepresented present or past facts which related the promise to provide appellee-Greene with steady and secure employment; and 2) a letter of March 9, 1987, from J. Patrick Bark to appellee-Greene, was fraudulently drafted and never delivered to appellee-Greene. A review of the evidence adduced at trial, however, fails to disclose that appellant-Brighton Manor Corp. -17- appellee-Greene presented sufficient evidence as to all six elements of fraud with regard to her claim of fraud. D. APPELLEE-GREENE FAILED TO INTRODUCE EVIDENCE OF APPELLANTS' MISREPRESENTATION OF PRESENT OR PAST FACTS Appellee-Greene failed to introduce any evidence at trial that the appellants misrepresented present or past facts vis-a-vis a promise of steady and secure employment. Specifically, appellee- Greene failed to establish at trial that: 1) the appellants falsely made to appellee-Greene, with knowledge of its falsity, any representation as related to steady and secure employment; and 2) the appellants had made a representation with the intent of misleading appellee-Greene. E. APPELLEE-GREENE FAILED TO INTRODUCE EVIDENCE OF RELIANCE UPON LETTER OF MARCH 9, 1987 With regard to the alleged fraudulent letter of March 9, 1987, which altered the terms of appellee-Greene's employment, the evidence adduced at trial failed to establish that: 1) appellee- Greene had relied upon the contents of the letter of March 9, 1987; and 2) appellee-Greene suffered injury which was proximately caused by her reliance. Appellee-Greene, through her own testimony, admitted that she never received the letter of March 9, 1989, prior to her termination thus preventing detrimental reliance. Cf. Russ v. T.R.W., Inc., supra; Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St. 3d 69; Smullen v. Interfact Polygraphs Inc. (Oct. 31, 1991), Cuyahoga App. No. 58722, unreported; Shales v. Agency Rent-A-Car, Inc. (Nov. 14, 1991), Cuyahoga App. No. 59143, unreported. Thus, the trial -18- court erred by allowing the claim of fraud to proceed to the jury for deliberation since appellee-Greene failed to present evidence at trial which supported her claim of fraud. The appellants' second assignment of error is well taken. IV. THE APPELLANTS' THIRD ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF PUNITIVE DAMAGES TO THE JURY BECAUSE THE PLAINTIFF-APPELLEE HAD INTRODUCED NO EVIDENCE TO SHOW THAT DEFENDANTS-APPELLANTS HAD ENGAGED IN ANY CONDUCT CHARACTERIZED BY ACTUAL MALICE. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT IMPROPERLY DENIED APPELLANTS' MOTION FOR DIRECTED VERDICT WITH REGARD TO PUNITIVE DAMAGES The appellants, through their third assignment of error, argue that the trial court erred in submitting the issue of punitive damages to the jury. Specifically, the appellants argue that appellee-Greene failed to demonstrate any actual malice on the part of the appellants thus preventing the award of punitive damages. The appellants' third assignment of error is well taken. B. THE STANDARD OF REVIEW FOR AWARD OF PUNITIVE DAMAGES Punitive damages may only be awarded in a tort action which involves a claim of fraud, malice or insult. Preston v. Murty (1987), 32 Ohio St. 3d 334; Roberts v. Mason (1859), 10 Ohio St. 277. C. APPELLEE-GREENE NOT ENTITLED TO PUNITIVE DAMAGES Herein, appellee-Greene did not allege a claim of insult. In addition, this court has already determined that appellee-Greene -19- failed to establish her claim of fraud. Thus, the sole remaining basis remaining to appellee-Greene which would allow the award of punitive damages is malice. The Supreme Court of Ohio, in Preston v. Murty, supra, examined the issue of actual malice and established that: Actual malice, necessary for an award of punitive damages, is (1) the state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. Id., syllabus. A review of the record fails to disclose that appellee-Greene adduced any evidence at trial which demonstrated actual malice on the part of the appellants. The conduct of the appellant was not characterized by hatred, ill will or a spirit of revenge nor did the conduct of the appellants demonstrate a conscious disregard for the rights or safety of appellee-Greene thus resulting in a great probability of substantial harm. The issue of punitive damages should not have been submitted to the jury since appellee-Greene failed to demonstrate fraud, malice or insult. Therefore, the appellants' third assignment of error is well taken. V. THE APPELLANTS' FOURTH ASSIGNMENT OF ERROR The appellants' fourth assignment of error is that: THE TRIAL COURT ERRED IN AWARDING PLAINTIFF- APPELLEE ATTORNEYS' FEES BECAUSE THE PLAINTIFF-APPELLEE HAD INTRODUCED NO EVIDENCE WHICH PERMITTED THE AWARD OF FEES. -20- A. THE ISSUE RAISED: WHETHER THE TRIAL COURT IMPROPERLY AWARDED ATTORNEY FEES TO APPELLEE-GREENE The appellants, through their fourth assignment of error, argue that the trial court erred by awarding appellee-Greene attorney fees in the amount of $10,000.00. Specifically, the appellants argue that the inability of the jury to award punitive damages to appellee-Greene prevented the trial court's award of attorney fees. The appellants' fourth assignment of error is well taken. B. THE STANDARD OF REVIEW FOR AWARD OF ATTORNEY FEES Absent specific statutory authorization, a prevailing party may not generally recover attorney fees unless the losing party acted in bad faith, vexatiously, wantonly, obdurately or for oppressive reasons. Kabatek v. Stackhouse (1983), 6 Ohio St. 3d 55; Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177; Buller v. Respicare, Inc. (1987), 39 Ohio App. 3d 17. In addition, an aggrieved party may recover reasonable attorney fees where the award of punitive damages are proper. Hutchinson v. J.C. Penney Cas. Ins. Co. (1985), 17 Ohio St. 3d 195; Columbus Finance v. Howard (1975), 42 Ohio St. 2d 178. C. THE TRIAL COURT IMPROPERLY AWARDED ATTORNEY FEES TO APPELLEE- GREENE No evidence was adduced at trial to show that the appellants acted in bad faith or that the conduct of the appellants was vexatious, wanton, obdurative or oppressive, thus preventing the trial court's award of attorney fees. In addition, the inability of the jury to award punitive damages, as dealt with in the -21- appellants' third assignment of error, prevented the trial court's award of attorney fees. Thus, the trial court erred in awarding attorney fees in the amount of $10,000.00 to appellee-Greene and the appellants' fourth assignment of error is well taken. VI. THE APPELLANTS' FIFTH ASSIGNMENT OF ERROR The appellant's fifth assignment of error is that: THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT INSTRUCTED THE JURY THAT THE JURY COULD AWARD PUNITIVE DAMAGES TO THE PLAINTIFF- APPELLEE IF THE JURY FOUND FOR THE PLAINTIFF- APPELLEE ON HER FRAUD CLAIM. A. THE ISSUE RAISED: THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY WITH REGARD TO PUNITIVE DAMAGES The appellants, through their fifth assignment of error, argue that the trial court improperly instructed the jury. Specifically, the appellants argue that the trial court improperly instructed the jury with regard to the possible award of punitive damages. The appellants' fifth assignment of error is not well taken. B. CIV. R. 51(A) AND OBJECTIONS TO JURY CHARGE Civ. R. 51(A), which deals with a party's objections to jury instructions as delivered by the trial court, provides that: (A) Instructions; error; record. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies of such requests shall be furnished to all other parties at the time of making such requests. -22- The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. A court need not reduce its instructions to writing. A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. C. APPELLANTS FAILED TO OBJECT TO TRIAL COURT'S JURY CHARGE Herein, the record fails to disclose that the appellants objected to the trial court's jury instruction as made with regard to the issue of punitive damages. Thus, the appellants are prohibited from assigning as error the trial court's jury instruction as made with regard to the issue of punitive damages. R. H. Mary & Co. v. Otis Elevator Co. (1990), 51 Ohio St. 3d 108; Schade v. Carnegie Body Co., supra; Jenks v. West Carrollton (1989), 58 Ohio App. 3d 33. D. THE TRIAL COURT DID PROPERLY INSTRUCT JURY WITH REGARD TO PUNITIVE DAMAGES In addition, a substantive review of the trial court's jury instruction, with regard to the issue of punitive damages, does not reveal the existence of any error. The trial court did properly instruct the jury with regard to the issue of punitive damages. Detting v. Chockley (1982), 70 Ohio St. 2d 1982. Therefore, the appellants' fifth assignment of error is not well taken. -23- VII. THE APPELLANTS' SIXTH ASSIGNMENT OF ERROR The appellants' sixth assignment of error is that: THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST BRIGHTON MANOR CORPORATION BECAUSE THERE WAS NO EVIDENCE THAT BRIGHTON MANOR HAD ANY LIABILITY TO PLAINTIFF-APPELLEE UNDER ANY LEGAL THEORY. A. THE ISSUE RAISED: APPELLANT-BRIGHTON MANOR CORP. WAS NOT LIABLE TO APPELLEE-GREENE UNDER ANY THEORY OF LIABILITY The appellants, through their sixth assignment of error, argue that the trial court erred by entering judgment against appellant-Brighton Manor Corp. Specifically, the appellants argue that no evidence was adduced at trial to establish a legal basis upon which to enter judgment against appellant-Brighton Manor Corp. The appellants' sixth assignment of error is not well taken. B. APPELLANT-BRIGHTON MANOR CORP. ADMITTED AVERMENT IN COMPLAINT Paragraph three, of the first amended complaint as filed by appellee-Greene, on October 26, 1989, provided that: 3. Defendant, Brighton Manor Corporation (hereinafter, "Manor") is an Ohio corporation which operates out of its main office located in the State of Ohio, County of Cuyahoga, and City of Beachwood, and was at all relevant times the employer or direct beneficiary of the employment of Plaintiff. Both corporations share the same shareholders and officers. The appellants, through their answer to the first amended complaint, admitted the averment as contained in paragraph three of the first amended complaint. The appellants thus admitted as being true that appellant-Brighton Manor Corp. was the employer -24- or direct beneficiary of the employment of appellee-Greene thus establishing a basis for awarding a potential judgment against appellant-Brighton Manor Corp. Civ. R. 8(D); Farmers & Merchants Bank v. Barr Ent., Inc. (1982), 6 Ohio App. 3d 43. Thus, the appellant's sixth assignment of error is not well taken. Having completed a review of the appellants' six assignments of error, this court shall now proceed to a review of the six assignments of error as raised by appellee-Greene by way of a cross-appeal. VIII. THE FIRST AND SECOND CROSS- ASSIGNMENTS OF APPELLEE-GREENE Having a common basis in law and fact, this court shall simultaneously consider the first and second cross-assignments of error as raised by appellee-Greene. The first cross-assignment of error, as raised by appellee- Greene, is that: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S REQUEST FOR PRE JUDGMENT (SIC) INTEREST ON THE CONTRACT CLAIM. The second cross-assignment of error, as raised by appellee- Greene, is that: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S REQUEST FOR PRE JUDGMENT (SIC) INTEREST ON THE FRAUD CLAIM WITHOUT AN EVIDENTIARY HEARING. A. THE TRIAL COURT ERRED BY DENYING APPELLEE-GREENE'S MOTION FOR PREJUDGMENT INTEREST -25- Appellee-Greene, through her first and second cross- assignments of error, argues that the trial court erred in denying a motion for prejudgment interest. Specifically, appellee-Greene argues that the failure of the appellants to make a good faith effort to settle the implied employment contract claim and the fraud claim required the granting of the motion for prejudgment interest. The first and second cross-assignments of error, as raised by appellee-Greene, are not well taken. B. R.C. 1343.03(C) AND PREJUDGMENT INTEREST R.C. 1343.03(C), which controls the award of prejudgment interest on a judgment, provides that: (C) Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case. (Emphasis added.) C. APPELLEE-GREENE POSSESSED NO BASIS FOR AWARD OF PREJUDGMENT INTEREST This court's prior determination that appellee-Greene failed to prove her claims of breach of an implied employment contract and fraud has rendered the first and second cross-assignments of error moot. Absent a judgment for appellee-Greene on her claims -26- of breach of an employment contract and fraud, the trial court was without authority to award prejudgment interest. D. NO EVIDENCE OF A LACK OF GOOD FAITH TO SETTLE ON PART OF APPELLANTS In addition, a lack of good faith in attempting to settle a claim cannot be found in the present case. A lack of good faith connotes more than bad judgment or negligence. A lack of good faith involves dishonest purpose, conscious wrongdoing or breach of a known duty based upon some ulterior motive or ill will. Ware v. Richey (1983), 14 Ohio App. 3d 3. Such behavior, on the part of the appellants, cannot be found in the present appeal. Thus, the trial court did not err in denying the motion for prejudgment interest and appellee-Greene's first and second cross-assignments of error are not well taken. IX. THE THIRD CROSS-ASSIGNMENT OF ERROR OF APPELLEE-GREENE The third cross-assignment of error, as raised by appellee- Greene, is that: THE TRIAL COURT ERRED BY GRANTING ATTORNEY FEES TO PLAINTIFF IN THE AMOUNT OF ONLY $10,000 - THE EVIDENCE JUSTIFIED A HIGHER AWARD. A. THE ISSUE RAISED: THE TRIAL COURT'S AWARD OF ONLY $10,000.00 IN ATTORNEY FEES WAS IMPROPER Appellee-Greene, through her third cross-assignment of error, argues that the trial court erred by awarding attorney fees in -27- the amount of $10,000.00. Specifically, appellee-Greene argues that the affidavits and other evidentiary material attached to the motion for attorney fees supported an award of $30,120.00. The third cross-assignment of error is not well taken. B. APPELLEE-GREENE NOT ENTITLED TO AWARD OF ATTORNEY FEES As dealt with upon review of the appellants' fourth assignment of error, the trial court was prevented from awarding attorney fees on behalf of appellee-Greene since no evidence was adduced at trial which showed that the appellants acted in bad faith or that the conduct of the appellants was vexatious, wanton, obdurative or oppressive. C. BASED UPON ASSUMPTION THAT ATTORNEY FEES WERE MANDATED, THE TRIAL COURT'S AWARD WAS PROPER Assuming that appellee-Greene was entitled to the award of attorney fees, we find no error in the award of $10,000.00 based upon the five factors enumerated by the Supreme Court of Ohio in State, ex rel. Montrie Nursing Home, Inc. v. Creary (1983), 5 Ohio St. 3d 124: 1) the time and labor involved in maintaining the litigation; 2) the novelty, complexity and difficulty of the legal questions involved; 3) the professional skill required to perform the necessary legal services; 4) the experience, reputation, and ability of the attorneys; and 5) the miscellaneous expenses of the litigation. Upon application of the five factors as set forth in State, ex rel. Montrie Nursing Home, Inc. v. Creary, supra, and again assuming that appellee-Greene was entitled to attorney fees, we -28- find that the trial court did not abuse its discretion in awarding appellee-Greene attorney fees in the amount of $10,000.00. Cf. Wing Leasing, Inc. v. M & B Aviation, Inc. (1988), 44 Ohio App. 3d 178; Buller v. Respicare, Inc. (1987), 39 Ohio App. 3d 17. The third cross-assignment of appellee-Greene is not well taken. X. THE FOURTH CROSS-ASSIGNMENT OF ERROR OF APPELLEE-GREENE The fourth cross-assignment of error, of appellee-Greene, is that: THE TRIAL COURT ERRED BY DIRECTING A VERDICT IN FAVOR OF ALL DEFENDANTS ON PLAINTIFF'S SEX DISCRIMINATION CLAIM. A. THE ISSUE RAISED: THE TRIAL COURT IMPROPERLY DIRECTED OUT CLAIM OF DISCRIMINATION Appellee-Greene, in her fourth assignment of error, argues that the trial court erred by granting the appellants' motion for a directed verdict as made with regard to the claim of sex discrimination. Specifically, appellee-Greene argues that sufficient evidence was adduced at trial to demonstrate a prima facie case of unlawful sex based discrimination and thus the trial court was prevented from granting the appellants' motion for a directed verdict. The fourth cross-assignment of error of appellee-Greene is not well taken. B. R.C. 4112.02(A) AND SEX DISCRIMINATION R.C. 4112.02(A), which prohibits unlawful discriminatory sexual practices on the part of an employer, provides that: -29- (A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. C. THE BURDEN OF PROOF FOR CLAIM OF SEX DISCRIMINATION In order to demonstrate a claim of sex or gender discrimination as prohibited by R.C. 4112.02(A), a plaintiff must establish by a preponderance of the evidence that there is a prima facie case of discrimination. The burden then shifts to the employer who must demonstrate some legitimate non- discriminatory reason for the plaintiff's termination from employment. Finally, the burden shifts again to the plaintiff which requires demonstration by a preponderance of the evidence that the reasons proffered by the employer are but a pretext. Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St. 2d 192; In re Brantley (187), 34 Ohio App. 3d 320. A prima facie showing of sex discrimination as based upon gender requires that the plaintiff show that: 1) the plaintiff was a member of a potential class; 2) the plaintiff was discharged by his or her employer; and 3) the plaintiff was qualified for the position from which he or she was terminated. Duchon v. Cajon Co. (C.A. 6, 1986), 791 F.2d 43. See also McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792; Becton v. Detroit Terminal (C.A. 6, 1982), 687 F.2d 140. D. APPELLEE-GREENE FAILED TO ESTABLISH CASE OF SEX DISCRIMINATION -30- Herein, appellee-Greene adduced sufficient evidence at trial to establish a prima facie case of sex discrimination thus shifting the burden to the appellants to articulate some legitimate non-discriminatory reasons for the termination of appellee-Greene. A review of the record, however, clearly reveals that the appellants did articulate a non-discriminatory reason for the termination of the employment of appellee-Greene. This non-discriminatory reason involved the failure of appellee- Greene to discharge her duties by obtaining the sale of hotel rooms for occupancy. In turn, appellee-Greene failed to adduce any evidence at trial, which demonstrated by a preponderance of the evidence, that the reason offered by the appellants was but a pretext. It should also be noted that three individuals, who were hired to replace appellee-Greene at subsequent points in time, were each of the female gender thus further eroding the claim of sex discrimination. Gutzwiller v. Fenik (C.A. 6, 1988), 860 F.2d 1317. Therefore, the trial court did not err in granting the appellants a directed verdict with regard to appellee-Greene's claim of sex discrimination. The fourth cross-assignment of error is not well taken. XI. THE FIFTH ASSIGNMENT OF ERROR OF APPELLEE-GREENE The fifth cross-assignment of error, as raised by appellee- Greene, is that: -31- THE TRIAL COURT ERRED BY DIRECTING A VERDICT IN FAVOR OF ALL DEFENDANTS ON PLAINTIFF'S PUBLIC POLICY TORT CLAIM. A. THE ISSUE RAISED: THE TRIAL COURT ERRED BY DIRECTING OUT PUBLIC POLICY TORT CLAIM Appellee-Greene, through her fifth cross-assignment of error, argues that the trial court erred by granting the appellants' motion for a directed verdict as made with regard to a public policy tort claim. Specifically, appellee-Greene argues that sufficient evidence was adduced at trial to allow the jury to consider whether her discharge was in violation of a statute and thus a contravention of public policy. The fifth cross-assignment of appellee-Greene is not well taken. B. THE STANDARD OF REVIEW FOR PUBLIC POLICY TORT CLAIM In Greeley v. Miami Valley Maintenance Contrs. Inc. (1990), 49 Ohio St. 3d 228, the Supreme Court of Ohio carved out a public policy exception to the employment-at-will doctrine. The court, in Greeley, held that a cause of action for wrongful discharge may be brought in tort when an employee is discharged for a reason which is prohibited by statute. Public policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute. (R.C. 3113.213[D], construed and applied.) Greeley v. Miami Valley Maintenance Contrs., Inc., supra, paragraph one of the syllabus. Henceforth, the right of employers to terminate employment at will for "any cause" no longer includes the discharge of an employee where the discharge is in violation of a statute and thereby -32- contravenes public policy. Fawcett v. G.C. Murphy & co. [1976], 46 Ohio St. 2d 245, 75 O.O. 2d 291, 348 N.E. 2d 144, modified.) Id., paragraph two of the syllabus. In Ohio, a cause of action for wrongful discharge in violation of public policy may be brought in tort. Id., paragraph three of the syllabus. C. APPELLEE-GREENE FAILED TO ESTABLISH A PUBLIC POLICY TORT CLAIM Herein, appellee-Greene failed to introduce evidence at trial that the appellants had violated a state statute vis-a-vis the discharge of appellee-Greene. Thus, the trial court did not err in granting the appellants a directed verdict on appellee- Greene's public policy tort claim. The fifth cross-assignment of error of appellee-Greene is not well taken. XII. THE SIXTH CROSS-ASSIGNMENT OF ERROR The sixth cross-assignment of error of appellee-Greene is that: THE TRIAL COURT ERRED IN DIRECTING A VERDICT IN FAVOR OF ALL DEFENDANTS ON PLAINTIFF'S CIVIL CONSPIRACY CLAIM. A. THE ISSUE RAISED: THE TRIAL COURT ERRED BY DIRECTING OUT CLAIM OF CIVIL CONSPIRACY -33- Appellee-Greene, through her sixth cross-assignment of error, argues that the trial court erred by granting the appellants' motion for directed verdict with regard to the claim of civil conspiracy. Specifically, appellee-Greene argues that sufficient evidence was adduced at trial to allow the jury to consider the claim of civil conspiracy. The sixth cross-assignment of error of appellee-Greene is not well taken. B. THE ELEMENTS OF CIVIL CONSPIRACY This court, in Minarik v. Nagy (1963), 8 Ohio App. 2d 194, defined a civil conspiracy as "a malicious combination of two or more persons to injure another, in person or property, in a way not competent for one alone." This court further stated in Minarik that: "With respect to defendants, John S. Nagy and Robert Keefe, however, we determine and, therefore, hold that from the evidence reasonable minds might reach different conclusions upon the question of a conspiracy existing between such defendants to deprive plaintiff of his legal position as painter No. 4 of the Division of Recreation and that, as a consequence, such question of fact was for the jury. "It is stated in 1 Cooley on Torts (4 Ed.), 234, Section 74: "'*** The general rule is, that a conspiracy cannot be made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action. The damage is the gist of the action, not the conspiracy; and though the conspiracy may be said to be of itself a thing amiss, it must nevertheless, until something has been accomplished in pursuance -34- of it, be looked upon as a mere unfulfilled intention of several to do mischief. "'*** When the mischief is accomplished, the conspiracy becomes important, as it affects the means and measure of redress; for the party wronged may look beyond the actual participants in committing the injury, and join with them as defendants all who conspired to accomplish it. The significance of the conspiracy consists, therefore, in this: That it gives the person injured a remedy against parties not otherwise connected with the wrong. It is also significant as constituting matter of aggravation, and as such tending to increase the plaintiff's recovery. "And in 10 Ohio Jurisprudence 2d 59, Conspiracy, Section 2, it is said: "'*** conspiracy *** viewed as a tort, is a malicious combination of two or more persons to injure another, in person or property, in a way not competent for one alone, resulting in actual damage to him.' (Emphasis added.) "And on page 60 of the above citation, under Section 3, entitled 'Generally; Necessity of Damage,' it is stated: "'Conspiracy, in and of itself, furnishes no cause of civil action. The gist of the civil action for conspiracy is the damage caused by acts committed pursuant to a formed conspiracy, rather than the conspiracy itself; and unless something is actually done by one or more of the conspirators which proximately results in damage, no civil action lies against anyone.' (Emphasis added.) "See Hoffman v. Johnston, 68 Ohio App. 19, at page 29; 15 Corpus Juris Secundum 994, at page 1000." Minarik v. Nagy, supra, at 195. Thus, a party claiming a cause of action based upon the tort of -35- civil conspiracy must establish at trial the following elements: 1) a malicious combination; 2) two or more persons; 3) injury to a person or property; and 4) existence of an unlawful act independent from the actual conspiracy. C. APPELLEE-GREENE FAILED TO ESTABLISH CLAIM OF CIVIL CONSPIRACY As dealt with upon review of the appellants' first and second assignments of error, evidence was not adduced at trial to support the claims of appellee-Greene for breach of an employment contract and fraud. The failure of proof on the claims of breach of an employment contract and fraud must result in the failure of proof on the claim of civil conspiracy. Without the existence of the underlying unlawful acts of breach of an implied employment contract and fraud, there can be no claim for civil conspiracy. LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St. 3d 121; Herr-Morr, Inc. v. Herring Enterprises, Inc. (March 13, 1986), Cuyahoga App. No. 50325, unreported. Therefore, the trial court did not err in granting the appellants a directed verdict with regard to appellee-Greene's claim of civil conspiracy. The sixth cross-assignment of error of appellee-Greene is not well taken. Based upon a review of the appellants' six assignments of error and the six cross-assignments as raised by appellee-Greene, the verdict of the jury and the judgment of the trial court is reversed. Judgment is hereby entered for appellant-Brighton -36- Hotel Corp., appellant-Brighton Manor Corp. and appellant-Emerson on appellee-Greene's claims for breach of an implied employment contract, fraud, punitive damages and attorney fees. Judgment reversed and final judgment entered for appellant- Brighton Hotel Corp., appellant-Brighton Manor Corp. and appellant-Emerson. -37- This cause is reversed and final judgment entered for appellant-Brighton Hotel Corp., appellant-Brighton Manor Corp and appellant-Emerson. It is, therefore, considered that said appellant recover of said appellees her costs herein. It is ordered that a special mandate be sent to said 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. JAMES D. SWEENEY, J., CONCURS; JOHN F. CORRIGAN, J., DISSENTS IN PART (WITH DISSENTING OPINION ATTACHED). DAVID T. MATIA CHIEF JUSTICE 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60838 : LAURA LOWRY-GREENE : : : D I S S E N T I N G Plaintiff-appellee/ : cross-appellant : : O P I N I O N vs. : : BRIGHTON HOTEL CORPORATION, : ET AL. : : : : Defendants-appellants/ : cross-appellees : : DATE: AUGUST 20, 1992 J.F. CORRIGAN, J., DISSENTS IN PART: Because I find that the plaintiff presented sufficient evidence to overcome a motion for a directed verdict as to her contract claim, I respectfully dissent from the majority's disposition of this issue. It is well-established that under Ohio law, an employment agreement with no fixed duration is deemed to be at-will, and the employer is therefore free to discharge the employee without cause. Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, 251; Rogers v. Targot Telemarketing Services (1990), 70 Ohio App.3d 689, 692. -2- Conversely, under an employment agreement of definite duration, the employer must have "just cause" to terminate the employee. Jones v. East Center for Community Mental Health, Inc. (1989), 19 Ohio App.3d 19, 22. Moreover, oral representations have been recognized as evidence of an employment agreement. See Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104; Helle v. Landmark, Inc. (1984), 15 Ohio App.3d 1, 7. In this case, plaintiff claimed that she was hired under an employment agreement of definite duration. In support of this claim, plaintiff testified that the parties orally agreed at a meeting at the Paper Valley Hotel, that "[plaintiff] would come to work for one year," and that her compensation "would be [$] 31,000.00 for that year." (Tr. 65) Although it is clear that the provision concerning an annual rate of compensation, standing alone, does not constitute a contract for one year, Henkel v. Educational Research Council, supra; Stearns v. Ohio Savings Association (1984), 15 Ohio App.3d 18, 19, the remaining provision, when construed most favorably to plaintiff, constitutes sufficient evidence which, if believed, allows reasonable minds to reach different conclusions as to whether plaintiff was employed pursuant to a contract for one year. Cf. Civ. R. 50(A); Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 74. Accordingly, I believe that plaintiff's contract claim was properly submitted to the jury, and I respectfully dissent from Section E of the majority's opinion. .