COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71298 VIRGINIA SHAVER : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL PRIORE : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION AUGUST 7, 1997 CHARACTER OF PROCEEDING Civil appeal from Euclid Municipal Court Case No. 96-CVF-359 JUDGMENT Affirmed as modified. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: GARRY A. KATZ, ESQ. GARY L. LIEBERMAN, ESQ. Van Sweringen Arcade 400 Terminal Tower 123 Prospect Ave., N.W. 50 Public Square Suite 265 Cleveland, Ohio 44113 Cleveland, Ohio 44115 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 25. Defendant-appellant Michael Priore appeals from the judgment of the Euclid Municipal Court in favor of plaintiff-appellee Virginia Shaver for the sum of $7,400 which represented a car allowance of $200 per month over 37 months while plaintiff was in defendant's employ. Defendant claims that the trial court erred in enforcing a memorandum of a meeting as a contract, and in not finding a waiver of said allowance by changes in the terms and conditions of employment over the period. For the reasons hereinafter stated, we modify the judgment and affirm. Plaintiff filed a complaint against defendant on February 27, 1996, alleging that the defendant failed to pay her a car allowance per their written agreement. She claimed defendant owed her $200 per month for 37 months. A hearing was held before a magistrate on July 9, 1996, who subsequently found for the plaintiff. At the time she began employment, plaintiff was given a memorandum of "Financial Arrangements" dated June 1, 1992, signed by defendant and received in evidence as Exhibit A. The memorandum contained four items, as follows: 1. Salary $18,000 per year paid every two weeks $346.15 per week 2. Gas card for your auto - 3 - 3. Sept. 1st 1992 $200.00 per month car allowance paid directly to you. You will receive 1099 for this amount. 4. One week vacation after 6 months. The trial court subsequently affirmed the magistrate's recommendation after overruling the defendant's objections to the magistrate's report. No transcript of the hearing before the magistrate is available. The trial court (the magistrate as acting judge), after rejecting defendant's App.R. 9(C) statement, however, issued an App.R. 9(E) statement of the evidence which stated as follows: Plaintiff was employed by the Defendant from 1992 for a period of thirty-seven months. Her employment was based on two meetings with Defendant and a paper writing identified as "Financial Arrangements" dated June 1, 1992 prepared by the Defendant who was in the business of managing approximately fifteen hundred rental units. The Defendant had evident expertise. All conditions of employment were met except for the payment by the Defendant to the Plaintiff of the sum of Two Hundred Dollars ($200.00) per month for thirty seven months. The sole issue on Exhibit "A", which is the sole submitted exhibit, is the question of whether or not the second paragraph was written in the disjunctive or the conjunctive. Exhibit "A" is a writing which contributed to an understanding of an oral contract between the parties. Evidence was clear that it was not the entire agreement of the parties. At least during part of her employment, Plaintiff drove about three hundred miles per week and supervised rental units in Euclid, Lakewood and Akron. - 4 - While she used a company credit card (and used it for personal needs - for which she reimbursed the Defendant) there appeared to be no provision for reimbursement for the use of her automobile. As the relationship between the parties developed, Plaintiff was given vacation and monetary incentives to rent apartment units. This Court concluded that Exhibit "A" must be construed in a manner least favorable to the interests of the Defendant who prepared the document and who was very experienced. The fact that Defendant testified that he made a mistake in preparation does not change the foregoing. Exhibit "A" is written in the disjunctive and therefore Plaintiff must prevail. Plaintiff is entitled to both reimbursement for automobile operating expenses (which she received) and the monthly sum of Two Hundred Dollars ($200.00) for her thirty seven month period of employment or Seven Thousand Four Hundred Dollars ($7,400). This Court pursuant to App.R. 12(A) is bound to accept the trial court's statement of the evidence. State v. Dickard (1983), 10 Ohio App.3d 293,295. Our review is restricted to the trial court's App.R. 9(E) statement. 200 West Apartments v. Foreman (Sept. 15, 1994), Cuyahoga App. No. 66107, unreported. Defendant-appellant's three assignments of error shall be considered together and state as follows: I. THE TRIAL COURT ERRED IN ENFORCING A MEMORANDUM OF A MEETING AS A CONTRACT. II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE PLAINTIFF-APPELLEE WAIVED HER RIGHTS BY REMAINING SILENT FOR THE ENTIRE EMPLOYMENT PERIOD OF THIRTY- SEVEN MONTHS BY HER ACTS AND CONDUCT AND BY HER ACCEPTANCE OF OTHER TERMS AND CONDITIONS OF EMPLOYMENT. - 5 - III. THE TRIAL COURT ERRED IN AWARDING DAMAGES CALCULATED AT $200 PER MONTH FOR THIRTY SEVEN- MONTHS WHEN THE TERMS OF EMPLOYMENT CHANGED DURING SUCH THIRTY-SEVEN MONTH PERIOD. Defendant contends that the terms of plaintiff's employment contract were uncertain and did not comply with the Statute of Frauds because they were not all contained in the June 1, 1992 memorandum. While enforceability requires certainty, as defendant contends, it does not require every contract to be in writing. In the instant case, it is apparent that the parties intended to create a binding contract and went forward on that basis for over three years. Not all of the terms were in writing, but the essential terms were apparently understood. Plaintiff performed what was expected of her as an employee and Priore understood that he was to compensate her for her performance. The performance of the parties for 37 months shows that they had formed an oral employment agreement and understood its terms sufficiently to proceed in reliance on it for that period. The law will recognize an employment contract where the conduct of the parties indicates such a contract exists. St. Clare Center, Inc. v. Mueller (1986), 34 Ohio App.3d 69, 70 ("Under common law, however, a contract need not be evidenced by an express exchange of promises but may be implied from acts and conduct of the parties under the facts and circumstances in evidence."); Penny Stites v. Napoleon Spring Works, Inc. (Nov. 15, 1996), Fulton App. No. F-96- 002, unreported ("*** the initial determination to be made is - 6 - whether it could reasonably be implied from the conduct of the parties that they intended to enter into a contract governing the rights and obligations of the parties with respect to the continuation and termination of the employment relationship."). Defendant's argument that the Statute of Frauds (R.C. 1305.05) bars enforcement of the car allowance promise is without merit. We find that the oral employment agreement was outside the Statute of Frauds and enforceable. First, the oral agreement could have been performed in less than a year, since no term was specified. Employment was essentially at-will. Secondly, even if the agreement would necessarily have lasted beyond a year, plaintiff's full performance of her obligations under the agreement took the agreement out of the Statute of Frauds. After proving full performance of her obligations, plaintiff could recover on the defendant's promise. The law in Ohio is well settled that: A contract which is not likely to be fully completed within a year, and which in fact is not completed within a year, does not automatically violate the Statute of Frauds if, at the time the contract is made, there is a possibility in law and in fact that full performance such as the parties intended may be completed before the expiration of a year. Bryan v. Looker (1994), 94 Ohio App.3d 228, 234; See, also, Ford v. Tandy Transp., Inc. (1993), 86 Ohio App.3d 364, 382; R.C. 1335.05. That a contract was not in fact completed in a year is of no consequence to the application of the Statute of Frauds. The law - 7 - is only interested in the possibility of completion of the term of the contract within a year. However, even if we were to find that the contract could not possibly have been performed within a year, the oral agreement is still exempt from the Statute of Frauds due to plaintiff's full performance. This Court recently held that: [A]n agreement is removed from the Statute of Frauds by virtue of partial performance only where the party relying on the agreement changes his position to his detriment thereby making it impractical or impossible to return the parties to their original status. [Weishaar v. Strimbu (1991), 76 Ohio App.3d 276, 601 N.E.2d 587.] Saydell v. Geppetto's Pizza & Ribs (1994), 100 Ohio App.3d 111, 121. This Court has held that full performance bars the raising of the Statute of Frauds defense in an employment context. Gathagan v. Firestone Tire & Rubber Co. (1985), 23 Ohio App.3d 16, 18; The Parish & Bingham Corp. v. Jackson (1921), 16 Ohio App. 51, 57. Consequently, we find that enforcement of the contract was neither barred by uncertainty or the Statute of Frauds. Defendant also argues that plaintiff waived the car allowance by accepting the gas credit card in lieu thereof and not protesting defendant's failure to pay same over the three year period. We find these contentions likewise to be without merit. First, the record does not indicate whether plaintiff was silent or not. Secondly, a party will not be held to have waived a - 8 - material term of a contract unless she intends and consents to do so. A waiver may be made by express words or by conduct which renders impossible a performance by the other party, or which seems to dispense with complete performance at a time when the obligor might fully perform. List & Son Co. v. Chase (1909), 80 Ohio St. 42, 49; N. Olmsted v. Eliza Jennings, Inc. (1993), 91 Ohio App.3d 173, 182. Before silence will be construed as a waiver of rights, the duty to speak must be imperative, and the silence must clearly indicate an intent to waive or be maintained under such circumstances that equity will impute thereto such intent. Where, however, the silence is, under the circumstances, susceptible of more than one interpretation, the waiver will not be inferred therefrom. Allenbaugh v. City of Canton (1940), 137 Ohio St. 128, 133; see, also, Saydell, supra at 123. The mere fact of plaintiff's silence, if supported by the evidence, without any other indication of an intent to waive her right to a car allowance under the agreement, does not create a waiver. Her silence could have been due to any number of reasons, such as deference to her employer, indecision, sheer timidity or forgetfulness. See Allenbaugh, supra, at 133- 134. If defendant seeks to show a waiver of the terms of the agreement he must aver it as an excuse for non-performance of such conditions. The Eureka Fire & Marine Insurance Co. v. Baldwin (1900), 62 Ohio St. 368, paragraph one of syllabus; The List & Son Co., supra, at paragraph two of syllabus. In the instant case, - 9 - defendant's excuse for non-performance was not due to an alleged waiver, but due to his own forgetfulness in failing to include the words "either/or" between the gas credit card provision and the $200 monthly car allowance. When such a waiver, if in fact there was a waiver, comes after a breach of the original contract by the party claiming the benefit of the waiver, it should receive not only careful but serious consideration at the hands of the courts, as such an arrangement is diametrically opposed to sound business principles. White Co. v. Canton Transportation Co. (1936), 131 Ohio St. 190, 198. In order to prove that plaintiff waived her rights, defendant had to prove that there was a "clear, unequivocal, decisive act" by plaintiff, the party against whom the waiver is asserted, "showing such a purpose or acts amounting to an estoppel in the latter's part." Id. at 198-199. Defendant, on the record before us, has failed to meet this burden of proof. Defendant testified that he made an omission in drafting the memorandum by not including the words "either/or" between items two and three, i.e., plaintiff would be entitled to a gas credit card, or in lieu thereof, a $200 monthly car allowance. The reference to an [IRS form] 1099 for the car allowance tends to suggest it was for depreciation of the car not for gas. Courts presume that the intent of the parties to the contract resides in the language they choose to employ in the agreement. Shifrin v. Forest City Ent. (1992), 64 Ohio St.3d 635, 638. When the terms in a contract are unambiguous, courts will not in effect create a new contract by - 10 - finding an intent not expressed in the clear language employed by the parties. Id. Assignments of Error I and II are overruled. Although we affirm judgment in favor of plaintiff, we find it necessary to modify the amount of damages awarded. The memorandum states as follows: "Sept. 1st 1992 $200 per month car allowance paid directly to you." Since the memorandum was dated June 1, 1992, the only sensible meaning to this language is that the car allowance would not start until September 1, 1992. Since the damage award was for 37 months, it included $600 for the summer months of 1992. Assignment of Error III is sustained in part. We modify the damage award by reducing it from $7,400 to $6,800. Judgment affirmed as modified. - 11 - It is ordered that appellee recover of appellant her 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 Euclid Municipal 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. JAMES M. PORTER, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .