COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71144 REBECCA LYNCH : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION MALRITE COMMUNICATIONS : : Defendant-appellee : : JULY 31, 1997 : DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-270694 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: ROBERT TROLL LYNCH, ESQ. LINDA HAUSERMANN HARROLD, ESQ. LYNCH & LYNCH LESTER W. ARMSTRONG, ESQ. 423 Statler Office Tower BELKIN, BILLICK, HARROLD & WIENCEK Cleveland, OH 44115 25101 Chagrin Boulevard, #210 Cleveland, OH 44122 -2- PATTON, J. The issue in this appeal concerns the validity of a release signed by plaintiff Rebecca Lynch in which she agreed to relin- quish all claims against her employer, defendant Malrite Communica- tions Group, Inc. ( Malrite ), following her termination. Plaintiff argued the release should be voided because Malrite coerced her signature. The trial court disagreed and granted summary judgment to Malrite. Malrite terminated plaintiff's employment on September 15, 1992. Malrite claimed it terminated plaintiff for unsatisfactory job performance; plaintiff maintained Malrite terminated her because she had begun to show symptoms of multiple sclerosis. On September 23, 1992, Malrite asked plaintiff to sign an agreement not to sue and, in return, offered to provide her with severance pay and extended health insurance coverage. The agreement stated: For the sum of $ see attached, receipt of which is hereby acknowledged, Rebecca Lynch ( Releasor ) does for herself and her succes- sors and assigns, release Malrite Communica- tions Group, Inc. and its officers, sharehold- ers, employees and agents, and their respec- tive successors and assigns ( Malrite ) from any and all claims which she has or may have against Malrite arising out of her employment by Malrite. * * * Releasor states that no promise or agree- ment not expressed herein has been made to her in connection with the Release and that this Release constitutes the entire agreement between Releasor and Malrite. Releasor ac- knowledges and agrees that she has entered into this Release freely and voluntarily and -3- that Releasor has been given the opportunity to review this Release with counsel. The attachment to the release specified that plaintiff would receive seven weeks of severance pay plus three additional months of continuing health care. The attachment also specified payment for eight unused vacation days. Plaintiff took several weeks to consider the release and, on October 13, 1992, Malrite wrote to plaintiff and asked her whether she had decided not to sign the release. Plaintiff responded that same day, indicating counsel is reviewing it. Plaintiff returned the signed release to Malrite on December 1, 1992. At that time, Malrite issued a check for severance pay and later issued another check equal to three monthly insurance payments. Plaintiff brought this suit in 1994, setting forth causes of action for breach of employment contract, promissory estoppel, intentional infliction of emotional distress, and handicap discrimination. Malrite filed a motion to dismiss the complaint, citing the terms of the release. The trial court granted the motion to dismiss, but a panel of this court reversed, finding the trial court improperly converted the motion to dismiss into a motion for summary judgment without first informing the parties. See Lynch v. Malrite Communications (Sept. 28, 1995), Cuyahoga App. No. 67985, unreported. On remand, Malrite filed a motion for summary judgment in which it argued the terms of the release proscribed any action against it. Malrite cited authority which bars a party to a release from seeking rescission of the release on grounds of fraud -4- without first tendering back the consideration for the release. Plaintiff argued that fraud principles did not apply because Malrite obtained her signature on the release through coercion. She cited to her fragile state of mind caused by financial worries following termination and her diagnosis of multiple sclerosis. The trial court granted summary judgment without opinion. A release of a cause of action for damages is ordinarily an absolute bar to a later action on any claim encompassed within the release. Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 12. A release is a form of contract, Garrison v. Daytonia Hotel (1995), 105 Ohio App.3d 322, 325, and is favored in the law in order to encourage the private resolution of disputes between parties. Continental West Condo. Unit Assoc. v. Howard E. Ferguson, Inc. (1996), 74 Ohio St.3d 501, 502. Plaintiff first argues the release lacked consideration because Malrite simply agreed to do that which its employment policies dictated. She claims Malrite had a preexisting duty to offer her severance pay and continued health care after her discharge, so the release lacked consideration. It is true that consideration for a contract will not exist where the contract merely calls for a party to do that which the party is legally obligated to do. Rhoades v. Rhoades (1974), 40 Ohio App.2d 559, 562; Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 25. However, plaintiff's evidentiary materials fail to establish a question of fact on this issue. Malrite submitted copies of its employee manual showing its -5- severance pay policy. The manual states that severance pay will be given in situations initiated by the Company for reasons beyond your control, such as, but not limited to, reorganization, cutback for economic reasons, elimination of position, etc. The manual further states that severance pay will not be given to employees released for reasons other than unsatisfactory performance or as a result of disciplinary action ***. A Malrite representative submitted an affidavit stating that Malrite terminated plaintiff for reasons other than those that might qualify her for severance pay. Plaintiff did not submit evidence to contradict Malrite. Civ.R. 56(E) provides that in response to a properly supported motion for summary judgment, the adverse party must respond by setting forth specific facts showing there is a genuine issue for trial. The only evidence cited by plaintiff is her statement that [a]ll monies received were due and owing to me as compensa- tion related to my job at Malrite Communications. This is not an admissible statement of fact -- it is a legal conclusion. Youseff v. Parr (1990), 69 Ohio App.3d 679, 689. Importantly, none of plaintiff's evidentiary materials question Malrite's assertion that it terminated plaintiff for reasons other than those that would qualify her for severance pay. In fact, plaintiff attached deposition testimony by Malrite's representative that detailed several instances of conduct that would qualify as unsatisfactory performance or disciplinary action sufficient to bar her receipt of severance pay. To be -6- sure, plaintiff alleged that these instances did not justify her termination, but questions concerning the validity of her discharge were unrelated to the issue raised by the release. In other words, by signing the release, plaintiff expressly waived the right to argue the validity of her termination whether Malrite had cause or not to terminate her employment is simply immaterial in light of the release. Consequently, plaintiff's assertion that she was entitled to receive the severance pay and insurance premiums prior to her discharge is not sufficient to rebut Malrite's properly submitted facts showing that her dismissal would not qualify her for severance pay and extended health benefits. We likewise reject plaintiff's argument that Malrite failed to show a meeting of the minds sufficient to form a contract for the release, presumably to show that she did not intend to waive her right to sue in exchange for severance pay and additional insurance premiums. Again, plaintiff does not offer any evidence for this proposition other than to assert that there was no direct compensation for the release itself. This assertion is contra- dicted by the specific terms of the release which show the seven weeks of severance pay and three months of insurance premiums as consideration for the release. Courts presume that the intent of the parties is contained in the language they chose to use in the contract, and the express words of the contract will not be disregarded unless the contract is unclear or ambiguous, or circumstances surrounding the agreement suggest the parties intended the contract to have a special meaning. See Shifrin v. -7- Forest City Ent., Inc. (1992), 64 Ohio St.3d 635, 638. Nothing in the release suggests the parties intended it to contain any other meaning than that expressed by its terms, and plaintiff's undocu- mented assertions are insufficient to contradict the express terms of the release. This brings us to plaintiff's primary argument, that Malrite coerced her into signing the agreement despite knowing that she was previously entitled to the severance pay and insurance premiums. She maintains that Malrite took advantage of her fragile state of mind following her termination to force her signature to the release. A party may avoid the terms of a release if it can be shown either that the terms of the release were obtained by fraud, or that a party to the release had been under duress when agreeing to the release. A release is void ab initio if a party can show that the terms of the release were obtained by fraud in the factum; a release obtained by fraud in the inducement in merely voidable. Haller v. Blodgett Corp. (1990), 50 Ohio St.3d 10, paragraph one of the syllabus. A party may also avoid the terms of a release on the basis of duress if that party can show by clear and convincing evidence coercion by the other party to the contract. DiPietro v. DiPietro (1983), 10 Ohio App.3d 44, 46. In her response to Malrite's motion for summary judgment, plaintiff expressly disavowed any argument relating to fraud, instead choosing to argue that Malrite coerced her agreement to the release ( *** fraud of any nature or kind has never been asserted -8- or alleged anywhere in this litigation by Plaintiffs! ). Accordingly, we will only address the duress issue. Threats may constitute duress if they overcome the will of such person, remove his capacity to act for himself and cause him to perform an act he is not legally bound to perform. Tallmadge v. Robinson (1952), 158 Ohio St. 333, paragraph one of the syllabus; Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245. Plaintiff argues that Malrite took advantage of her impending financial straits and poor emotional state (brought on by her disease) to force her signature to the release. In support of her argument, she relies primarily on Massi v. Blue Cross & Blue Shield Mut. of Ohio (N.D. Ohio 1991), 765 F.Supp. 904. In Massi, a former employee filed age discrimination claims and state law employment claims following termination. Blue Cross asked the employee to sign a voluntary resignation agreement, telling him that if he did not sign the agreement he would not receive any benefits. When the employee asked if he could have a copy of the agreement to review, Blue Cross told him he could have all the copies he wanted after he signed the agreement. The district court, relying on Blodgett, supra, found the employee presented a colorable claim of economic duress: The Plaintiff alleged that unexpectedly he was taken aside and informed that his position was being eliminated. Immediately thereafter he claims he was presented with the waiver agreement, told to review it and informed that he would receive no severance benefits if he chose not to sign. Finally, Plaintiff pro- vided extensive testimony on his confused and disturbed state of mind during this meeting. Id., at 910. -9- The facts in Massi are far different than those presented in this case because there is simply no evidence of overreaching by Malrite. Unlike Massi, Malrite did not insist upon plaintiff's immediate signature on the release. In point of fact, the release stated that, [r]eleasor has been given the opportunity to review this Release with counsel. After several weeks without a response, Malrite contacted plaintiff and asked if she intended to sign the release. Plaintiff told Malrite she had reached no decision on signing the release, and that counsel is reviewing it. On these facts, plaintiff has failed to show Malrite coerced her to sign the release. Likewise, plaintiff's alleged emotional state is not suffi- ciently demonstrated in the record. Plaintiff attached an unsworn letter to her opposition to Malrite's motion for summary judgment that purported to describe her state of mind after her termination. This letter, written more than three years after the fact, is inadmissible under Civ.R. 56(C) because it is not in affidavit form. Moreover, even had the letter been in affidavit form, it would not have shown evidence sufficient to create an issue of fact on the duress issue. In Davis v. Davis (Apr. 18, 1996), Cuyahoga App. Nos. 68672 and 69121, unreported, we held that a statement that a party suffered from multiple sclerosis is insufficient, by itself, to establish that the party lacked capacity to contract. Id., unreported at 1. Curiously, the letter suggests that plaintiff became more confused about the release after her counsel reviewed it. Any duress caused by her own counsel would not -10- demonstrate duress by Malrite. Id., unreported at 2, citing Blodgett, 49 Ohio St.3d at syllabus. Finally, we find plaintiff's poor financial outlook, brought about by her termination, insufficient to show Malrite coerced her agreement to the release. A claim of economic duress will generally not lie when it is alleged to have resulted from a party's threat to do something that the party is legally entitled to do. Togo Internatl., Inc. v. Mound Steel Corp. (1995), 106 Ohio App.3d 282, 287. Plaintiff waived the right to challenge the cause for her termination when she accepted severance pay as consider- ation for the release. Merely taking advantage of another's financial difficulty is not duress. Blodgett, 49 Ohio St.3d at 246, citing 13 Williston on Contracts (3 Ed. 1970), 708, Section 1617. Malrite's offer of severance pay in exchange for plaintiff's agreement to release any claims against Malrite was not, as a matter of law, sufficient to show economic duress. Accordingly, we find the trial court did not err by granting summary judgment to Malrite. Plaintiff has failed to show by clear and convincing evidence any existing issues of material fact on her claim that Malrite coerced her agreement to sign the release. The assigned errors are overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this ourt directing the Court of Common Pleas to carry this judgment nto execution. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. AHRA, P.J. ARPINSKI, J., CONCUR. -12- JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. ee App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision ill be journalized and will become the judgment and order of the ourtpursuant to App.R. 22(E) unless a motion for reconsideration ith supporting brief, per App.R. 26(A), is filed within ten (10) ays of the announcement of the court's decision. The time period or review by the Supreme Court of Ohio shall begin to run upon the .