COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71425 ERIN M. POSKOCIL : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION THE CLEVELAND INSTITUTE : OF MUSIC : PER CURIAM : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: APRIL 24, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-287509 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: TIMOTHY A. SHIMKO (#0006736) JANET I. STICH (#0036983) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 For Defendant-Appellee: BRUCE G. HEAREY (#0009087) WALLY MUELLER (#0044114) SPIETH, BELL, McCURDY & NEWELL CO., L.P.A. 2000 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1496 - 2 - PER CURIAM: Plaintiff-appellant Erin M. Poskocil ("appellant") appeals from the grant of summary judgment in favor of defendant-appellee The Cleveland Institute of Music ("C.I.M.). Appellant brought an action based on promissory estoppel and invasion of privacy against C.I.M. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE CLEVELAND INSTITUTE OF MUSIC AS MATERIAL ISSUES OF FACT EXIST AS TO APPELLANT'S CAUSE OF ACTION BASED ON PROMISSORY ESTOPPEL AND AS THE STATUTE OF FRAUDS IS NOT A BAR TO APPELLANT'S CLAIM FOR PROMISSORY ESTOPPEL. II. HE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE CLEVELAND INSTITUTE OF MUSIC AS MATERIAL ISSUES OF FACT EXIST AS TO APPELLANT'S CAUSE OF ACTION BASED ON INVASION OF PRIVACY. Finding the first assignment of error to be meritorious, the judgment of the trial court is reversed in part and affirmed in part. I. On June 6, 1995, appellant filed her complaint against C.I.M. Appellant's first claim was for promissory estoppel in which she alleged C.I.M. specifically promised appellant would be employed at C.I.M. for a minimum period of three years. Appellant averred she relied on C.I.M's promise of job security in accepting the position with C.I.M. That reliance was to appellant's detriment. C.I.M. terminated appellant's employment before the end of the three-year - 3 - term. Appellant also brought a claim for invasion of privacy in which she alleged C.I.M. eavesdropped on her private telephone conversations. C.I.M. answered and later filed a motion for summary judgment. C.I.M. argued appellant's claim was barred by the Statute of Frauds and that appellant had no admissible evidence C.I.M. or any of its agents invaded appellant's privacy. Appellant responded by point- ing out C.I.M. failed to raise the Statute of Frauds as an affirm- ative defense in its answer. C.I.M. then asked the trial court for leave to file its first amended answer in which it added the Statute of Frauds as an affirmative defense. Although there is nothing in the record reflecting the trial court granted leave, it did grant C.I.M's motion for summary judgment finding appellant's contract for employment to be unenforceable because of the Statute of Frauds. Because this case was disposed of by summary judgment, the set of facts most favorable to appellant must be considered for pur- poses of appeal. In the summer of 1993, Andrew Taubman, head of the development office at C.I.M., contacted appellant concerning a position available at C.I.M. Appellant then resided in Cincinnati and worked for a consultancy as an independent contractor. Appellant and Taubman knew each other and were friends. The position discussed was that of Director of Development for Annual Giving and Alumni Affairs, which was the second position in the Development Office after that of Taubman. - 4 - Appellant traveled to Cleveland from Cincinnati in July and spoke to Taubman, David Cerone, who was President of C.I.M., and two trustees. All expressed their concern appellant would leave after a short period of time and asked appellant to make a commitment to stay with C.I.M. for three years. When Taubman stated he wanted appellant to make a three-year commitment, appellant asked if C.I.M. also was making a three-year commitment to her. Taubman responded in the affirmative, stating appellant would have a job at C.I.M. for at least three years. Based on this, appellant assumed she would continue to be employed at C.I.M. for a minimum of three years as long as she relatively performed her duties. The two trustees also said appellant would have a job at C.I.M. for as long as she wanted. Appellant decided to accept the position at C.I.M. and discontinued discussions regarding two other possible positions. Appellant would not have relocated to Cleveland from Cincinnati without the commitment of job security by C.I.M. Appellant received a letter from the personnel office which set forth the terms of her employment. There was no mention of a minimum three-year term of employment. Appellant questioned the September 7, 1993, start date in the letter, arguing her employment began on September 1, 1993. Appellant received her compensation for the first week of September. She never asked anyone why the three-year commitment was not stated as one of the terms of her employment. - 5 - During her employment at C.I.M., appellant began to believe her phone calls were being monitored. Appellant occasionally would hear a click on the line and people in the office knew information about her which she thought only could have come from her private telephone conversations. An acquaintance informed appellant he had been told appellant's calls were being monitored. Appellant further believed her desk and computer were being searched. Objects on her desk top were moved from their positions of the previous day. Files appellant had not worked on the day before would be listed as having been pulled up on her computer. Appellant thought the culprit was President Cerone's assistant because she observed him waiting in the hallway when she worked late. Taubman's position at C.I.M. was terminated in January of 1994. C.I.M. then undertook a study regarding a possible reorganization of the Development Office. A meeting was held in August of 1994 with members of the Development Office. At the meeting, the employees learned their positions were to be eliminated but they could apply for the new positions that were being created. Otherwise, their employment would end on August 30th. Immediately following the meeting, appellant met with Joyce Ely who had replaced Taubman. Appellant asked Ely what Ely wanted appellant to do. Ely replied that sometimes you just have to know when to go. Appellant did not apply for one of the new, lower- - 6 - paid positions. Appellant's employment with C.I.M. ended on August 30th. II. In her first assignment of error, appellant contends the trial court erred in granting summary judgment on her promissory estoppel claim. Appellant argues C.I.M. did not raise the Statute of Frauds as an affirmative defense and, therefore, was barred from asserting it in its summary judgment motion. Even if validly raised, appellant maintains the Statute of Frauds cannot be applied to bar her promissory estoppel claim. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (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 conclu- sion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, - 7 - 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322. C.I.M. filed a motion for leave to file an amended answer in which the Statute of Frauds was raised as an affirmative defense. Although no journal entry relating to the matter appears in the record, the trial court granted summary judgment based on the Statute of Frauds. Therefore, the motion for leave was granted by implication. Generally, in the absence of a written employment contract which states the term of duration, the employment relationship is terminable at will by either the employer or the employee. See Henkel v. Educational Research Council (1976), 45 Ohio St.2d 249, 255. Promissory estoppel can be an exception to the rule the employee can be terminated at will in an oral employment agreement. The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The test in such cases is whether the employer should 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. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, paragraph three of the syllabus. - 8 - C.I.M. argues this court explained when the Statute of Frauds applies to promissory estoppel claims in McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. First Union Mgt., Inc. (1993), 87 Ohio App.3d 613. McCarthy, Lebit involved a suit brought by the tenant law firm against its landlord for promissory estoppel, among other claims, in a dispute over a lease agreement. The holding of the case permitted the use of the doctrine of promissory estoppel to preclude the defense of the Statute of Frauds only if there was a misrepresentation that the statute's requirements were complied with or there was a promise to make a memorandum of the agreement. Id. at 626. The reasoning relied on by the McCarthy, Lebit court was that this would promote: [A] balanced approach to encouraging those in business to reduce their agreements to writing and thereby adhering to the policy considera- tions behind the statute of frauds while at the same time providing a mitigating effect to the harsh application of the statute of frauds and assures fairness in business relationships by protecting one who relies to his detriment on the promise of another. Id. at 627. The holding of McCarthy, Lebit and the reasoning supporting that holding are not applicable to the instant case. The limitation on the doctrine of promissory estoppel does not apply to employer-employee relationships. McCarthy, Lebit is applicable to business relationships in which the parties are more of an equal in bargaining position and knowledge than in a typical employment agreement situation. Most employment agreements are not reduced to - 9 - writing and a typical hopeful prospective employee does not have the leverage to demand that a writing be executed. If an employer is allowed to make unqualified and high-sounding promises of fair treatment and job security in order to obtain loyal and long-standing employees, and then disaffirm such promises and rely on the "at-will" doctrine * * *, injustice will frequently result. Jones v. East Center for Community Mental Health, Inc. (1984), 19 Ohio App.3d 19, 23. The Statute of Frauds cannot be applied to an employment agreement to bar the application of the doctrine of promissory estoppel. Accord Rogers v. Targot Telemarketing Services (1990), 70 Ohio App.3d 689. It must be determined if appellant has presented sufficient evidence on her promissory estoppel claim to withstand summary judgment. For promissory estoppel to apply, the employee must point to some representation by the employer which may be reasonably interpreted as limiting the employer's ability to terminate the employee at will. Penwell v. Amherst Hosp. (1992), 84 Ohio App.3d 16. Specific promises of job security must be clear and unambiguous. Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656. In her deposition, appellant averred Taubman and two trustees stated she would be employed by C.I.M. for at least three years. This promise would limit C.I.M.'s ability to terminate appellant and was a specific promise of job security. Additionally, an employee must show she detrimentally changed her position in reliance on the employer's representation. Gargasz - 10 - v. Nordson Corp. (1991), 68 Ohio App.3d 149, 153. The employee's reliance is reasonable if the employer should have expected the employee to base her actions or forbearance on the employer's promise. Mers, supra at 105. The question of reasonableness is by nature an issue for resolution by the fact finder. Tersigni v. Gen. Tire, Inc. (1993), 91 Ohio App.3d 757. In Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, the court found specific promises were made to Helmick regarding job security and opportunities for advancement. These promises induced Helmick to discontinue job hunting. "A demonstra- tion of detrimental reliance on specific promises of job security can create an exception to the employment-at-will doctrine." Id. at 136. Appellant testified in her deposition that she received specific assurances of employment at C.I.M. for at least three years. Based on this promise of job security, appellant broke off discussions with two other possible employers and relocated to Cleveland. This is sufficient to show detrimental reliance. Appellant presented evidence to support her claim of promissory estoppel. Resolution of this issue by summary judgment by the trial court was inappropriate. Appellant's first assignment of error has merit. - 11 - II. In her second assignment of error, appellant argues the trial court erred in granting summary judgment in favor of C.I.M. on her invasion of privacy cause of action. Appellant argues she presented admissible evidence to support her claim by way of her testimony regarding her beliefs as to the actions of President Cerone's assistant. In Housh v. Peth (1956), 165 Ohio St. 35, the court defined the "right to privacy" as: [T]he right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. Id., at paragraph one of the syllabus. The prima facie elements of an actionable invasion of privacy claim are: [T]he unwarranted appropriation or exploita- tion of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Id., at paragraph two of the syllabus. The evidence offered by appellant to support her invasion of privacy claim are her suspicions that President Cerone's assistant searched her computer and desk. She also maintains her phone conversations were monitored because people in the office knew personal matters and information which they could not have known - 12 - otherwise. Appellant additionally testified her boyfriend was told by another person that appellant's telephone conversations were being monitored. This last statement is inadmissible double hearsay. See Evid.R. 801. It cannot be used to support appellant's position in opposition to C.I.M.'s motion for summary judgment. The rest of appellant's evidence is merely speculation and suspicion, not facts based on personal knowledge which would be admissible in evidence. See Civ.R. 56(E). Appellant has failed to set forth specific facts demonstrating that a triable issue exists. Appellant cannot rest on mere allegations. Accord Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48. See also State, ex rel. Martinelli v. Corrigan (1991), 71 Ohio App.3d 243. Because appellant's evidence consists of speculation and hearsay, the trial court did not err in granting summary judgment on her claim of invasion of privacy. Appellant's second assignment of error lacks merit. Judgment affirmed in part and reversed in part. - 13 - This cause is affirmed in part and reversed in part. It is ordered that appellant and appellee each pay one-half of the 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. JAMES D. SWEENEY, CHIEF JUSTICE LEO M. SPELLACY, JUDGE KENNETH A. ROCCO, JUDGE N.B. This 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(B) 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 clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). .