COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72443 JEFFREY J. LENZO : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : NEW RESOURCES CORPORATION : OPINION : Defendant-Appellee : Date of Announcement of Decision: MARCH 26, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 302841 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: For Defendant-Appellee: PAUL H. HENTEMANN, ESQ. MICHAEL P. HARVEY, ESQ. Northmark Office Building 311 Northcliff Drive 35000 Kaiser Court Rocky River, Ohio 44116 Suite 305 Willoughby, Ohio 44094 -2- JAMES M. PORTER, J.: Plaintiff-appellant Jeffrey J. Lenzo appeals from the summary judgment entered in favor of defendant-appellee New Resources Corporation on the grounds that the trial court erred in finding that plaintiff had failed to make out a claim of promissory estoppel in his wrongful discharge action. We find no error and affirm. Plaintiff has an employment history in computer software, hardware and programming consultation while working for major corporations in the Northeastern Ohio area. In August 1995, he began employment with Mapsys, Inc. in the Akron area under an employment agreement which contained a two-year/100 mile radius, non-compete covenant. Within a few months of his starting date, plaintiff's working relationship with his immediate supervisor at Mapsys deteriorated to the point where plaintiff perceived he could no longer work for him. In late November 1995, plaintiff was approached by Kris Wolfe, a New Resources' representative, for an interview. Plaintiff indicated to Wolfe that he was under obligation to Mapsys pursuant to the non-compete agreement. Wolfe indicated that this would not be a problem since New Resources was recruiting other Mapsys employees. Plaintiff interviewed with Wolfe on November 23, 1995. Subsequently, a second interview was scheduled. At the second interview, plaintiff was classified as a Technical Consultant II and advised he would be employed as a consultant. -3- A final interview was arranged for December 13, 1995, with several New Resources representatives present. During this interview, plaintiff was presented with a written offer dated December 12, 1995, which he never signed. Plaintiff then asked again about his non-compete agreement with Mapsys and was again told this would not be a problem; that if any lawsuit was filed by Mapsys, New Resources would fight it. Plaintiff contends that he verbally accepted the written offer from New Resources on December 13, 1995. The written offer stated as follows: We at new Resources Corporation believe that our uncompromising dedication to our mission, vision, and client's return on investment sets us apart in the Information Management Consulting industry. Our unique management approach and dedication to internal professional development offers long term opportunity to individuals looking for a bright future. We are pleased today to invite you to join New Resources Corporation. We recognize your qualifications and professional objectives as a welcome addition to our continuing growth and success. New Resources Corporation is eager to extend to you the following opportunity on this exiting career path. Your New Resources Corporation Portfolio is attached for your review. Please let us know what additional questions you may have. We are anxious to receive your acceptance and determine a mutually beneficial start date. Thereafter, he resigned his position with Mapsys expecting to start employment with New Resources on December 27, 1985. On December 22, 1995, plaintiff received a telephone call from a New Resources' representative advising him he was not to start -4- working until January 9, 1996. On January 9, 1996, plaintiff reported for work at New Resources, went through the orientation process, and, in general, learned about the daily operations of the company. Plaintiff signed the following disclaimers contained in the employment application and employee handbook acknowledgment, respectively: If I am hired, I understand that I am free to resign at any time, with or without cause, and without prior notice, and the employer reserves the same right to terminate my employment at any time, without [sic] or without cause, and without prior notice. Except as may be required by law, this application does not constitute an agreement or a contract for employment for any specified period of definite duration. I understand that no representative of the employer other than an authorized officer has the authority to make any assurances to the contrary. I further understand that any such assurances must be in writing and signed by an authorized officer. * * * I understand that my employment can be terminated, with or without cause, and with or without notice, at any time, at the option of either New Resources or myself (See General Employee Agreement). I further understand that no manager or representative of New Resources other than the officers has any authority to enter into any agreement for employment for any specific time, or to make agreements contrary to the foregoing. Due to an illness of his father, plaintiff was required to spend time on January 10 and 11 at the hospital. At the beginning of the following week, plaintiff returned to work. On the day he returned to work, at approximately 3:00 p.m., he was called into the office of New Resources' Cleveland manager. He was then told -5- that Mapsys would not release him from his non-compete agreement and New Resources' attorneys indicated that the non-compete agreement might be enforceable. Plaintiff was asked to work out of state beyond the geographic scope of the non-compete agreement, but he declined. As a result of Mapsys' threat to sue to enforce plaintiff's restrictive covenants, plaintiff was advised that he was no longer employed by New Resources; that he would not be reimbursed for any expenses; and that he could sue if he wanted to. On February 5, 1996, plaintiff filed a complaint against New Resources alleging promissory estoppel, i.e., he was induced to resign his position with Mapsys to go to work for New Resources and was wrongfully discharged. He also asserted a count for intentional infliction of emotional distress. On April 2, 1997, the trial court granted New Resources' motion for summary judgment and dismissed plaintiff's action. Defendant has only appealed from the dismissal of his promissory estoppel count. His sole assignment of error asserts as follows: I. THE TRIAL COURT COMMITTED ERROR IN FINDING THAT THE PLAINTIFF-APPELLANT, JEFFREY J. LENZO, HAD FAILED TO STATE A CLAIM BASED UPON PROMISSORY ESTOPPEL. 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 such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. -6- State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. -7- This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. In Ohio, the employment at-will doctrine establishes that when a contract of employment does not mention the duration of employment, employment is considered at-will and terminable by either party for any reason or for no reason. Phung v. Waste Management, Inc. (1988), 40 Ohio App.3d 130, 134. 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. (1985), 19 Ohio St.3d 100. Plaintiff's appeal is based solely on the promissory estoppel exception. We find that our decision in this case is governed in large part by the recent decision of this Court in Gill v. Monetary Management Corporation (Sept. 19, 1996), Cuyahoga App. No. 69949, unreported, where a manager was recruited from Denver to take up employment in Cleveland and discharged soon after his employment -8- began. The manager depended on a letter offer, as here, which did not contain any reference to employment for a specific period. This Court held that in the absence of evidence of an agreement for specific terms, at-will employment status prevails. In the absence of a specific time period, we held that promissory estoppel did not apply either. See Gill, supra at pp. 8-9: However, plaintiff also relies on the doctrine of promissory estoppel which we do not find applicable. His evidence falls short of establishing the necessary elements of that doctrine. Again, as stated in Krettler, supra at 4: *** This bar to termination of at-will employment is sometimes found in employee handbooks or rules or regulations laid down by the employer which hold out to the employee some promise of tenure upon which the employee relies. Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St.3d 134, 139; Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, 135; Hanley v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 77. Defendant relies on administrative Order 11 to support his claim of promissory estoppel. We do not agree. As stated by this Court in Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 26, 492 N.E.2d 867, promissory estoppel depends on the following defined elements: (1) the employer must make a promise clear and unambiguous in its terms to the employee; (2) the employee must rely on that promise to his detriment; and (3) the reliance must be reasonable and foreseeable; and (4) the employee must be injured by the reliance. -9- Plaintiff has failed to meet the threshold prong of this test which requires a meeting of the minds. As this Court stated in Curak v. Cleveland Clinic Foundation (Dec. 22, 1988), Cuyahoga App. No. 54822, unreported at 10-11: The parties did not have the necessary contractual intent for the provisions of the clinic's employee handbook to alter or supplement the terms of their oral at-will employment contract. In order for such materials to be considered part of the employment contract, there must be a meeting of the minds. The parties must have a distinct and common intention which is communicated by each party to the other. Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 24. Where mutual assent is lacking, an employee handbook or other supplementary materials merely constitute the employer's unilateral statement of the business' rules and regulations. Mosely v. City of Warrensville Heights (May 19, 1988), Cuyahoga App. No. 53930, unreported; Turner v. SPS Technologies, Inc. (June 4, 1984), Cuyahoga App. No. 51945, unreported. Plaintiff's assertion that he was induced to change positions and that he reasonably relied upon New Resources' representations is insufficient to establish promissory estoppel. Based on the foregoing, plaintiff was an at-will employee, subject to discharge with or without cause at New Resources' pleasure and convenience. His position on promissory estoppel is no different because there was no promise clear and unambiguous in its terms assuring plaintiff of employment for any specific term. As was held in Cohen & Co., supra, in order for promissory estoppel to apply, the parties to the employment contract must have a distinct and common intention which is communicated by each -10- party to the other. The terms of such a promise by the employer must be clear and unambiguous. Gill, supra. As plaintiff's counsel conceded at oral argument, it is undisputed that plaintiff's employment was at-will. The disclaimers in New Resources' employment agreement and employee handbook establish this intention. No further assertions were made by New Resources. In fact, both disclaimers specifically state that they are not agreements or contracts for employment for a definite period or duration. Furthermore, plaintiff signed these disclaimers evidencing his knowledge of his at-will status. In his deposition, at page 90, plaintiff defined at-will to mean: Anybody can do anything they want at any time. Employers. These signed disclaimers clearly operate to extinguish any claim of promissory estoppel. Because New Resources made no clear and unambiguous promise that plaintiff would be employed permanently or for a specific term, plaintiff cannot establish the requisite elements of his claim for promissory estoppel. Accordingly, plaintiff's claim fails as a matter of law; summary judgment was properly granted. Plaintiff's sole assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant 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 Court of Common Pleas 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. BLACKMON, A.J., CONCURS. O'DONNELL, J., CONCURS IN JUDGMMENT ONLY. JAMES M. PORTER 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 .