COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68131 DONALD DANKO : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MBIS INC. DBA MB DYNAMICS : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-224941 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant/ For Defendant-Appellee/ Cross-Appellee: Cross-Appellant, MB Dynamics: ELLEN SIMON SACKS (#0006739) JAMES F. KOEHLER (#0007904) JAMES A. MARX (#0038999) TIMOTHY J. FITZGERALD JOHN R. LIBER, II (#0058424) (#0042734) SPANGENBERG, SHIBLEY, TRACI, GALLAGHER, SHARP, FULTON LANCIONE & LIBER & NORMAN 2400 NATIONAL CITY CENTER SEVENTH FLOOR, BULKLEY BUILDING CLEVELAND, OHIO 44114 1501 EUCLID AVENUE CLEVELAND, OHIO 44115 NICHOLAS D. SATULLO REMINGER & REMINGER CO., L.P.A. 113 ST. CLAIR AVENUE, N.W. CLEVELAND, OHIO 44114 For Appellee, William Rusen: JOHN CUBAR (#Z00004766) McNEAL, SCHICK, ARCHIBALD & & BIRO CO., L.P.A. 700 SKYLIGHT OFFICE TOWER 1660 WEST SECOND STREET - 2 - 2 CLEVELAND, OHIO 44113-1454 SPELLACY, J.: Plaintiff, Donald Danko, appeals from the entry of summary judgment on his claims against defendant, MBIS Inc., D.B.A. MB Dynamics ("MBIS"), for breach of an implied contract and promissory estoppel. Danko raises the following assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO MBIS ON PLAINTIFF'S CLAIMS OF BREACH OF IMPLIED CONTRACT AND PROMISSORY ESTOPPEL. MBIS cross-appeals from the trial court's denial of its motion for summary judgment on the issue of emotional distress damages. MBIS raises the following assignment of error: THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM FOR EMOTIONAL DISTRESS DAMAGES FOR WRONGFUL DISCHARGE. I. After MBIS discharged him, Danko brought this action for, among other claims, breach of an implied contract and promissory estoppel. MBIS moved for summary judgment, which the trial court partially granted, including the portion concerning the implied contract and promissory estoppel claims. MBIS also moved for summary judgment on Danko's request for emotional distress damages. The trial court denied this motion. The case proceeded to trial on the remaining claims and the jury found for MBIS. II. The evidentiary material provided under Civ.R. 56 reveals the following: - 3 - 3 On December 18, 1984, McCormick Acquisition Co. purchased MBIS. In a letter to Danko and other MBIS employees, Richard McCormick stated: The purpose of this letter is to inform you that effective December 18, 1984, the assets of MBIS, Inc. have been purchased by McCormick Acquisition Co. (soon to be named "MBIS, Inc.") (the "Company"). You are invited to become an employee of the Company. Enclosed with this letter are copies of the Employee Policies and Workrules and Regulations that will be in effect at this facility. Please take time to review them carefully. Management reserves the unilateral right to change the Employee Policies and Workrules at any time. Your rate of compensation at the Company, at least initially, will be the same as that received by you during your employment with MBIS, Inc. The Company will credit your length of service with MBIS for the purposes of vacation benefits. The Company will adhere to policies and practices set forth in the Manual. The Company has now, and plans to develop in the future, special competence in various areas important to its growth. Employees create this information and special competence which enable the Company to conduct its business successfully and, in turn, provide job security and career opportunities for employees. How- ever, these business and individual opportunities can be maintained and expanded only as long as this information is retained proprietary within the Company. Therefore, the Company and its employees have a common interest and also a common responsibility in seeing that no employee or other person who creates, uses or has access to such information accidentally or intentionally distributes it to non-Company people. To help safeguard this informa- tion, the Company requires prospective, as well as existing, employees to sign an "Employee Proprietary Information, Inventions and Non-competition Agreement." It is a condition of employment with the Company that an employee sign this Agreement. Two copies are to be signed - one to be retained by the employee and the other filed in the employee's file. Please indicate your understanding and acceptance of the terms and conditions outlined in this letter and the - 4 - 4 enclosed materials by signing a copy of the letter and the Proprietary Information Agreement and returning them to the Personnel Office tomorrow. Danko received the following disclaimer with his copy of the Employee Policies and Workrules and Regulations ("Handbook"): I understand that the policies and rules contained herein are subject to change from time to time at the discretion of Management and that this is not intended to be, or deemed to constitute, an employment contract. He never signed the letter or proprietary information agreement. In his affidavit, Danko avers that: 4. When McCormick took over the company, he promised all employees job security both orally and by letter. McCormick also promised as evidenced by his letter to me of December 18, 1984 ***, that he and his company would follow the work rules contained in the employee manual. These work rules provided, among other things, that employees would be treated fairly and consistently and that disciplinary action, if necessary, would involve a verbal warning, written reprimand, a three-day layoff and only then, if necessary, a dis- charge. 5. I relied on the promises and representations made by Richard McCormick concerning job security and fairness as well as the representations set forth in the employee manual when I accepted McCormick's invitation and offer of employment in December, 1984. During deposition testimony, Danko testified as follows: Q. Did anyone at MB Dynamics [MBIS] ever provide you with assurances of continued employment? A. Yeah, I believe so. Q. Who -- A. Mr. McCormick when he first took over the company. Q. What did he say? - 5 - 5 A. That was his speech. Q. Did he tell you that you would have a job there as long as you wanted one? A. That's what he told everybody. Q. He said you would have a job as long as you wanted one? A. He told the people to bear with them, that it was a learning experience and that he wanted to have a nice smooth transition which I thought was very nice, and I believed him. Q. Did he say anything else that you can recall? A. Well, there were other points of encouragement. I thought it was a good speech. It was very nice. We gave our all for him. Q. What other specifics do you recall of the speech other than what you have testified to? A. That was the highlight of the speech. There were other meetings with engineering staff that verbal- ized pretty much the same thing. He was offering encouragement to the other people. He was very con- siderate with Ray and Ray's talent. He was considerate at that time with my talent. He offered encouragement that we stay with the company and prosper with it. We did not prosper. (Danko's Feb. 9, 1993, deposition, pages 87-88.) In September 1991, MBIS discharged Danko without following the progressive discipline procedure in the Handbook. III. In his assignment of error, Danko contends the trial court erred when it entered summary judgment on his claims for breach of an implied contract and promissory estoppel. We review the entry of summary judgment independently and without deference to the trial court's determination. Stewart v. - 6 - 6 B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 39. Under Civ.R. 56, summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. State, ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589; see, also, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. Danko argues MBIS breached an implied contract when it discharged him for less than cause and without following the progressive discipline procedure in the Handbook. Employment agreements are presumptively at-will, allowing the employer to discharge the employee for any lawful reason. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, paragraph one of the syllabus; Henkel v. Educ. Research Council (1976), 45 Ohio St.2d 249, syllabus. The employer and employee may alter this employment-at-will agreement by forming an implied contract restricting the employer's ability to discharge the employee. Mers, 19 Ohio St.3d at 103-104. The formation of an implied contract requires all the essential elements of a contract, Priebe v. O'Malley (1993), 89 Ohio App.3d 8, 12, including a meeting of - 7 - 7 the minds. Bartlett v. Daniel Drake Mem. Hosp. (1991), 75 Ohio App.3d 334, 338. Whether an implied contract has been formed is determined by "[t]he facts and circumstances surrounding an employment-at-will 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. Danko maintains the oral and written representations of job security formed an implied contract under which MBIS could only discharge him for cause. Even construing the evidentiary material most strongly for Danko, however, reasonable minds could only con- clude that the oral and written representations of job security fail to demonstrate a meeting of the minds between MBIS and Danko concerning MBIS's ability to discharge Danko. Danko also maintains the written representations concerning the handbook formed an implied contract requiring MBIS to follow the progressive discipline system in the Handbook. A disclaimer stating a handbook does not create a contract will generally prevent the creation of an implied contract based on the terms of the handbook. McIntosh v. Roadway Express, Inc. (1994), 94 Ohio App.3d 195, 201; Tohline v. Central Trust Co., N.A. (1988), 48 Ohio App.3d 280, 282; cf. Wing, 59 Ohio St.3d 108, at paragraph one of the syllabus. Assurances from the employer, however, may negate the disclaimer. Handler v. Merrill Lynch Life Agency, Inc. (1993), - 8 - 8 92 Ohio App.3d 356, 362. Here, construing the evidence most strongly for Danko, reasonable minds could find the written representations sufficient to overcome the disclaimer. Danko also argues the doctrine of promissory estoppel pre- cludes MBIS from discharging him for less than cause or without following the progressive discipline procedure in the Handbook. In an employment context, a successful claim for promissory estoppel requires a showing that "the employer should have reasonably expected its representation to be relied upon by its employee and *** [that] the expected action or forbearance actually resulted and was detrimental to the employee." Kelly, 46 Ohio St.3d 134, paragraph three of the syllabus. Danko maintains the oral and written representations of job security support his promissory estoppel claim. To support a claim for promissory estoppel, representations concerning job security must be specific promises. Wing, 59 Ohio St.3d 108, at paragraph two of the syllabus; Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, paragraph three of the syllabus. Even construing the evidence most strongly for Danko, reasonable minds could only find that the oral and written representations of job security fail to rise to the level of specific promises. Danko further maintains the written representations concerning the Handbook support his claim for promissory estoppel. We agree. Construing the evidence most strongly for Danko, reasonable minds could find that MBIS should have reasonably expected Danko to rely - 9 - 9 on its representation that it would follow the Handbook. Similar- ly, genuine questions of fact exist concerning whether Danko detrimentally relied on these representations by accepting the position with MBIS. Accordingly, Danko's assignment of error is well taken to the extent that the trial court erred when it entered summary judgment on his claim that MBIS breached an implied contract requiring it to follow the progressive discipline procedure in the Handbook and his claim that the doctrine of promissory estoppel precluded MBIS from discharging him without following the progressive discipline procedure in the Handbook. IV. In its assignment of error, MBIS contends the trial court erred in denying its motion for summary judgment on Danko's request for emotional distress damages. In his appellate brief, and in open court, Danko concedes that he is not seeking emotional distress damages on his claims for breach of an implied contract and promissory estoppel. It is unnecessary, therefore, for us to address this assignment of error. Judgment affirmed in part, reversed in part, and cause remanded for further proceedings. - 10 - It is ordered that appellant recover of appellee one-half his costs herein taxed. It is ordered that appellee recover of appellant one-half 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. JOHN T. PATTON, C.J. and TERRENCE O'DONNELL, J., CONCUR. LEO M. SPELLACY 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 .