OHIO COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73149, 73150, 73151, 73402, 73403, 73404 RUTH CAROL ROOT, ET AL. : : Plaintiffs-Appellants/ : JOURNAL ENTRY Cross-Appellees : : AND -vs- : : OPINION PCC AIRFOILS, INC. : : Defendant-Appellee/ : Cross-Appellant : Date of Announcement of Decision: OCTOBER 1, 1998 Character of Proceeding: Civil appeals from Court of Common Pleas Case Nos. 286787, 286786, 262643 Judgment: Affirmed in part; reversed in part and remanded. Cross- appeal denied. Date of Journalization: Appearances: For Plaintiffs-Appellants/ ELLEN SIMON, ESQ. Cross-Appellees: CHRISTOPHER P. THORMAN, ESQ. Lancione & Simon, P.L.L. 1717 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1503 For Defendant-Appellee/ KEITH A. ASHMUS, ESQ. Cross-Appellant: CARL H. GLUEK, ESQ. MICHAEL N. CHESNEY, ESQ. Thompson, Hine & Flory, L.L.P. 3900 Key Center 227 Public Square Cleveland, Ohio 44114-1216 -2- JAMES M. PORTER, P.J.: Plaintiffs-appellants/cross-appellees Ruth Carol Root, et al. appeal from the summary judgment rendered in favor of defendant- appellee/cross-appellant PCC Airfoils, Inc. (PCC) on their claims that they were wrongfully discharged during a reduction in force at PCC's Wickliffe plant. The twelve plaintiffs contend that they had an implied contract; that they could only be discharged for cause; and their seniority/bumping rights were violated by the layoff. Plaintiffs contend that disputed issues of material fact precluded summary judgment. For the reasons hereinafter stated, we affirm in part, reverse in part and remand for further proceedings. PCC manufactures blades and vanes (known as airfoils ) used in jet engines that power military and commercial aircraft. PCC's facility in Wickliffe, Ohio is known as Sherwood Metal Products (the SMP Facility ). In July 1986, PCC purchased the assets of the SMP Facility from TRW, Inc. Immediately after PCC's purchase of the SMP Facility, the new managers eliminated cost of living increases and personal days, and made significant changes to employee pension and medical benefits for competitive reasons. In 1988, PCC published its SMP Plant Employee Handbook covering hourly employees working in the plant. Plaintiffs contend that the seniority/bumping provisions of the PCC Handbook also applied to them although most of them were salaried employees. The seniority/bumping provisions allowed employees scheduled for layoff to bump the least senior employee in the next highest -3- grade job for which the employee had previously qualified. Deposition testimony of the plaintiffs relied on these provisions from the PCC Handbook to form the basis of their contract claims along with oral representations of job security by management personnel. The seniority and layoff provisions in the PCC Handbook were preceded by a provision entitled EMPLOYMENT AT WILL : The company cannot guarantee or promise employment for any specified length of time. Periodically, it may be in the best interest of the company to terminate employees either on an individual basis or on the basis of a reduction in force. The company reserves the right to make such decisions at its sole discretion. Accordingly, employees must realize that their employment may be terminated at any time at the option of the company. This company handbook or other written policies are not intended as a direct or implied contract of employment. (PCC Handbook at 2-3). During 1991-93, the aerospace industry, PCC's market for airfoils, experienced a severe economic downturn. This reduced the number of in-coming orders and the corresponding number of production hours needed to fill the orders at the SMP Facility. Due to these conditions, PCC was forced to make deep cuts in its work force. Between June 1991 and January 1993, PCC laid off 358 of the 638 employees at its SMP Facility, i.e., 47% of its salaried personnel and 62% of its hourly workforce. Layoff decisions respecting hourly employees were generally made on the basis of seniority/bumping rights set forth in the PCC Handbook. Laid off hourly employees did not receive severance pay. -4- Layoff decisions for salaried employees were not made solely on the basis of seniority, although it was a factor considered. Generally, layoffs of salaried employees were made on the basis of skills and qualifications as well as the needs of the company. In her deposition, former PCC Human Relations Director Maureen Howell described the rationale for not basing these decisions solely on seniority: When you're downsizing *** you develop or maintain the strongest team that you can, because that's what your organization needs to survive. That's how you protect the jobs of the survivors, by making sure the organization is strong and capable. That you use a sound judgment process. (Howell Tr. at 10). However, in mid-1991, PCC allowed, at its sole discretion, certain salaried employees who had previously held hourly positions to transfer back to hourly jobs of the company's choosing. PCC claims it was concerned about losing the diverse skills of too many competent salaried employees who had previously held hourly positions if they were not permitted to bump into former hourly positions. Salaried employees were not, however, permitted to transfer back to salaried positions that they had previously held. Ten of the plaintiffs, Diane Alusheff, Bonnie Bell, Edward Beres, Richard Bush, Cynthia Mizner, Ruth Carol Root, Matthew Sands, Carolyn Snyder, Beverly Steele and Rene Velez, were affected by the company's reductions. It is undisputed that six of those ten (Alusheff, Bell, Beres, Mizner, Steele and Velez), were offered hourly positions with PCC, but declined. Two remaining plaintiffs, -5- Edward Dieterich and Rose Noonan, were terminated for disruptive behavior, not as a result of layoffs. With the exceptions of Ms. Bell, Mr. Dieterich and Ms. Noonan, each of the plaintiffs was a salaried employee at the time of layoff/termination. Plaintiffs Carolyn Snyder and Edward Dieterich filed individual complaints challenging their layoff in April and May 1993, respectively. After voluntarily dismissing their complaints, they refiled them in March 1995. In December 1993, plaintiffs Root, Alusheff, Bell, Beres, Bush, Noonan, Sands, Steele and Velez filed a single complaint. In their complaint, plaintiffs alleged various claims against PCC, including handicap discrimination, federal and state age discrimination, wrongful discharge in violation of public policy and breach of an implied contract. The only common cause of action asserted by all plaintiffs was their claim that PCC had entered into an implied employment contract preventing discharge except for cause. Over PCC's opposition, plaintiffs' motion to consolidate the two cases was granted on March 8, 1996. On July 23, 1996, the court, with the parties' agreement, ordered that discovery on plaintiffs' contract claims was to be completed by September 16, 1996 and dispositive motions would be filed as to those claims by October 23, 1996. A briefing schedule was ordered as agreed by the parties. On August 14, 1996, plaintiffs sought leave to file a second amended complaint adding a new cause of action for promissory estoppel. The trial court denied leave to amend on September 20, -6- 1996 stating that this matter is nearly three years old and [plaintiff] still has not expressed its theory. On October 23, 1996, plaintiffs and PCC filed cross-motions for partial summary judgment on the implied contract issues. Opposition briefs were due to be filed by November 18, 1996. On November 15, 1996, plaintiffs filed a motion for an extension of time through December 9, 1996 to oppose PCC's motion. On November 20, 1996, the trial court granted plaintiffs leave until November 20, 1996 in which to file their opposition brief. This was extended to December 2, 1996. No further enlargements were to be granted. At a pretrial on November 25, 1996, the court reset a pretrial for December 16, 1996 by which time he would rule on the pending motions. Plaintiffs' opposition papers were not filed by December 2 nor by December 9. On December 16, 1996, the trial court granted PCC's motion for partial summary judgment, which was then unopposed, and denied plaintiffs' motion. (Journalized Dec. 18, 1996). On December 19, 1996, with knowledge of the court's ruling, plaintiffs filed a motion instanter seeking leave to file their opposition brief with attached affidavits and other exhibits. That motion was denied by the trial court in an order journalized January 17, 1997. On plaintiffs' renewed motion, on April 1, 1997, the trial court reconsidered its January 17, 1997 order and granted plaintiffs leave to file their brief in opposition to PCC's motion for partial summary judgment. The court found, however, that upon -7- consideration of plaintiffs' opposition, PCC's motion for summary judgment remains meritorious. On April 21, 1997, PCC filed a motion to strike plaintiffs' opposition brief from the record, or in the alternative, strike the evidentiary materials filed with the opposition brief. In an opinion dated August 11, 1997, the trial court granted PCC's motion to strike various evidentiary materials submitted with the opposition brief, stating: The evidentiary material attached to the plaintiffs' Brief in Opposition and to the Motion to Reconsider January 17, 1997 Order shall not become a part of the record and are hereby stricken and excluded from the same. Moreover, on review, this Court finds the evidentiary basis for their admission to have been inaccurate and misleading. On August 11, 1996, the trial court granted plaintiffs' Civ.R. 54(B) motion seeking no just cause for delay in appealing the partial summary judgment. On September 24, 1997, the trial court sua sponte dismissed the plaintiffs' remaining claims with prejudice. Plaintiffs filed a timely notice of appeal and PCC filed its notice of cross-appeal from the consolidation order. We will address plaintiffs' Assignment of Error V first as it affects our disposition of Assignment of Error I. V. THE TRIAL COURT ERRED WHEN IT STRUCK FROM THE RECORD EVIDENTIARY MATERIAL ATTACHED TO PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND WHEN IT SUA SPONTE STRUCK EVIDENTIARY MATERIAL ATTACHED TO PLAINTIFF'S MOTION TO RECONSIDER. -8- In an order dated August 11, 1997, the trial court ruled that [t]he evidentiary material attached to the Plaintiffs' Brief in Opposition and to the Motion to Reconsider January 17, 1997, order shall not become a part of the record and are hereby stricken and excluded from the same. The court specifically found the evidentiary basis for their admission to have been inaccurate and misleading. Id. The lower court's ruling on a motion to strike such evidentiary materials is subject to an abuse of discretion standard. State ex rel. Cassels v. Dayton City School District Board of Education (1984), 69 Ohio St.3d 217, 223; Riley v. Langer (1994), 95 Ohio App.3d 151, 157. The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Cassels, supra. As noted by the court in Oakbrook Realty Corp. v. Blout(1988), 48 Ohio App.3d 69, a trial court's broad discretion in the admission or exclusion of evidence *** is firmly rooted in the case law of Ohio. The trial court's order striking the belated evidence was based on plaintiffs' dilatory conduct in briefing the summary judgment issues. These cases had been on file for three years when discovery cut-off on the contract issues was agreed to be September 16, 1996. Plaintiffs failed to adhere to a briefing schedule suggested and agreed to by counsel for both parties; they failed to file their opposition brief after receiving two separate -9- enlargements of time and two specific warnings from the court that no further extensions would be granted. After plaintiffs learned that the trial court had granted PCC's motion for partial summary judgment, they filed their brief and evidentiary materials in opposition. The plaintiffs' affidavits attached to the brief contradicted in part the plaintiffs' prior deposition testimony. The plaintiffs' delay in filing these contradictory affidavits was no doubt viewed by the trial court as an unfair and deliberate discovery tactic which deprived defendant of an opportunity to address the belated evidence. Given the trial court's superior knowledge of the situation, its obligation to control its own docket as well as the ebb and flow of contentious discovery and motion practice, we cannot disagree with the trial court's discretion in the matter. As the court in Getter v. Getter (1993), 90 Ohio App.3d 1, 5 held: The discovery rules are designed to permit a party to obtain evidence to prove or disprove the determinative issues in the case. The purpose of the sanctions authorized by Civ.R. 37 is to remedy prejudice created by the failure to provide discovery, not punish for that failure. Therefore, the sanction imposed must be limited to the scope of that prejudice and be proportionate to it. If the sanction excludes a party's claims or defenses or the evidence he would use to prove them or oppose those of the other party, it must be based on a failure of discovery that impairs his opponent's capacity to prove or resist such matter through the discovery that has been denied. ***. -10- However, we find the trial court was overbroad in striking all of the evidence attached to the plaintiffs' opposition brief. The deposition testimony attached was certainly no surprise to PCC since they took the depositions of plaintiffs. The excerpt of the letter to the EEOC from Millisor, Nobil regarding the age discrimination claims was likewise known to defendant and attached to PCC's own brief. The answers to interrogatories fall in the same category and presented no surprise to the defendant. Therefore, these kind of exhibits were improperly struck. Also contained within plaintiffs' evidentiary materials were the affidavits of two former managerial employees of PCC, Chris Idzerda and Frank Moegling. Their affidavits were dated back in October 1996 and could have been attached to plaintiffs' summary judgment papers filed on October 23, 1996. Although PCC had previously served separate sets of interrogatories on each plaintiff seeking the identification of all witnesses and individuals with knowledge relative to plaintiffs' claims, Idzerda and Moegling were never identified by plaintiffs. Thus, PCC never had the opportunity to depose either of these individuals relative to their purported knowledge with which to challenge their last minute affidavits. The trial court thus had apparent reasons for finding that the evidentiary basis for their admissions to have been inaccurate and misleading. We will not second guess the trial court's sanction by the exclusion of evidence not fairly or timely disclosed. Plaintiffs' Assignment of Error V is overruled in part and sustained in part. -11- I. THE TRIAL COURT ERRED WHEN IT ENTERED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE ON PLAINTIFFS-APPELLANTS' IMPLIED EMPLOYMENT CONTRACT CLAIM. 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. 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 -12- 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. 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. Pursuant to our disposition of Assignment of Error V, in reviewing this assignment of error we will not rely on the plaintiffs' affidavits attached to their brief in opposition which were stricken by the trial court. In pressing their implied contract claim, plaintiffs contend they were not at-will employees and that the 1980 TRW Handbook and/or the 1988 PCC Handbook gave them certain implied contractual rights only permitting discharge for just cause but with seniority -13- and/or bumping rights in the event of a reduction in force. PCC contends the salaried employees were all at-will employees subject to discharge with or without cause but to whom PCC, in its sole discretion, could extend some kind of bumping privileges to preserve the expertise of its work force. We turn first to whether or not there was an implied contract of any kind. Under Ohio's employment-at-will doctrine, the employment relationship between the employer and the employee is terminable at the will of either; thus an employee is subject to discharge by an employer at any time even without cause. Wright v. Honda of America(1995), 73 Ohio St.3d 571, 574. However, the Ohio Supreme Court has created two exceptions to the employment-at-will doctrine (1) the existence of promissory estoppel where certain representations or promises have been made to an employee; and (2) the existence of implied or express contractual provisions which have the effect of altering the terms and conditions of employment or discharge. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104-105. In spite of these two exceptions, however, there still exists a strong presumption that the employment relationship is terminable at will unless the terms of the contract or other circumstances clearly manifest an intent otherwise. Henkle v. Educational Research Council of America (1976), 45 Ohio St.2d 249, 255. The principles applicable to an implied contract claim in the employer/employee situation were stated by this Court in Csuhran v. -14- Kaiser Foundation Health Plan of Ohio (June 8, 1995), Cuyahoga App. No. 67460, unreported at 8 as follows: Consistent with the presumption of at- will employment, it is recognized that the party asserting an implied contract of employment has a heavy burden. He must prove the existence of each element necessary to the formation of a contract. Penwell v. Amherst Hospital (1992), 84 Ohio App.3d 16, 21, 616 N.E.2d 254; Rudy v. Loral Defense Sys. (1993), 85 Ohio App.3d 148, 152, 619 N.E.2d 449; Priebe, supra at 12. Therefore, plaintiff must show a meeting of the minds of the parties that the employment was other than at- will. Schwartz v. Comcorp., Inc. (1993), 91 Ohio App.3d 639, 647, 633 N.E.2d 551; Cohen & Co. v. Messina (1985), 24 Ohio App.3d 22, 24, 492 N.E.2d 867; Turner v. SPS Technologies (June 4, 1987), Cuyahoga App. No. 51945, unreported at 5. Therefore, the party relying on an implied contract must demonstrate the existence of each element necessary to the formation of a contract including, inter alia, the exchange of bilateral promises, consideration and mutual assent. Gargasz v. Nordson Corp. (1990), 68 Ohio App.3d 149, 154; Nichols v. Ryder Truck Rental, Inc. (June 23, 1994), Cuyahoga App. No. 65376, unreported at 6. Promises alleged must unambiguously and specifically promise job security. Id. Moreover, [t]he terms of the agreement or the circumstances must manifest the parties' mutual intent to bind each other to overcome [the] presumption against implied contracts of employment. Srail v. RJF Int'l Corp. (March 5, 1998), Cuyahoga App. No. 72050, unreported at 34. In Wright v. Honda, supra, the Ohio Supreme Court detailed the types of evidence that could be advanced by an employee to raise a factual issue about whether an employment at-will agreement had -15- been altered by an implied contract: [T]he trier of fact can consider *** information contained in employee handbooks, oral representations made by supervisory personnel that employees have been promised job security in exchange for good performance, and written assurances reflecting company policy. Id. at 575. Generally, employee handbooks and statements of policy will not affect the employment-at-will rule. Under the implied contract exception, `a handbook may be found to alter the terms of employment at will only if the employee and employer have agreed to create a contract from the writing.' Latimore-Debose v. BVM, Inc. (April 4, 1996), Cuyahoga App. No. 69439, unreported at 7. In the absence of mutual assent, a handbook is merely a unilateral statement of rules and policies which creates no rights and obligations ***. Id; see, also, Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 671. Most importantly for the case at hand, where a handbook contains a disclaimer, absent fraud in the inducement, the disclaimer precludes the use of the handbook to demonstrate an implied contract. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 110: The trial court and appellate court both held that the disclaimer contained in both the confirmation of employment and the handbook, irrespective of the terms of the handbook, bars the finding of a contract of employment other than an at-will relationship. We agree. Absent fraud in the inducement, a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employee handbook. See Tohline v. Central Trust Co. (1988), 48 Ohio App.3d 280, 549 N.E.2d 1223. -16- In granting PCC's motion for partial summary judgment, the trial court pointed to the unambiguous disclaimer contained in the PCC Handbook stating, *** the employment at will disclaimer contained in the 1988 employee handbook precludes the use of the handbook as an implied contract ***. (Journal Entry Dec. 18, 1996). This provision provided in no uncertain terms that none of PCC's policies was intended to create contracts of employment or impede the management's prerogatives to discharge at will even where the company engaged in a reduction in force: EMPLOYMENT AT WILL The company cannot guarantee or promise employment for any specified length of time. Periodically, it may be in the best interest of the company to terminate employees either on an individual basis or on the basis of a reduction in force. The company reserves the right to make such decisions at its sole discretion. Accordingly, employees must realize that their employment may be terminated at any time at the option of the company. This company handbook or other written policies are not intended as a direct or implied contract of employment. (PCC Handbook at 3). Under Ohio law, the existence of this disclaimer was fatal to the plaintiffs' implied contract claims. It precluded the formation of any alleged contracts (express or implied) as a matter of law. Smith v. Council For Economic Opportunities in Greater Cleveland (Oct. 12, 1995), Cuyahoga App. No. 68032, unreported at 12 (disclaimer precludes finding of implied contract based on employer's policies); Washington v. Cleveland Clinic Fund. (Dec. 10, 1992), Cuyahoga App. No. 61556, unreported (disclaimer -17- establishes no meeting of the minds to form an implied contract); McIntosh v. Roadway Express, Inc. (1994), 94 Ohio App.3d 195, 201 (disclaimer in handbook manifests the absence of mutual assent to contract). Plaintiffs' argument for avoiding this disclaimer is their assertion that the 1980 TRW Handbook created a prior contract of employment. Because the TRW Handbook did not contain a disclaimer, and because PCC allegedly continued to apply some of the policies contained in the TRW Handbook after it purchased the SMP Facility, plaintiffs claim that a prior contract of employment was formed, i.e., the unambiguous disclaimer contained in PCC's Handbook constituted an ineffective modification of their previously vested contractual rights. We disagree. Such reasoning ignores the well-established principle that absent a meeting of the minds - a distinct and common intention by the parties to be contractually bound - an employee handbook is merely a unilateral statement of rules and policies which creates no obligations and rights. Tohline v. Central Trust Co., N.A. (1988), 48 Ohio App.3d 282; see, also, Gill v. Monetary Mgmt. Corp. (Sept. 19, 1996), Cuyahoga App. No. 69949, unreported at 11. Plaintiffs have failed to demonstrate a common intention between PCC and plaintiffs to create a contract of any kind, let alone one based upon their former employer's handbook. PCC acquired the assets of TRW; there is no evidence in the record that it assumed any contractual liabilities of TRW or employment contracts. Furthermore, the distribution of the PCC Handbook voided any -18- possible intention to create a contract based on the TRW Handbook, since a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employee handbook. Wing, supra, at 110. Despite this alleged violation of their purported contractual rights, not one of the plaintiffs objected in any manner to the new PCC Handbook or its disclaimer, but continued in employment with PCC. In Henderson v. Pioneer Standard Electronics, Inc. (March 29, 1993), Montgomery App. No. 12815, unreported, the court rejected the appellant's claim that a new handbook's disclaimer was insufficient to change his alleged prior employment relationship. The Court in Henderson held at 6-7: Appellant's acceptance of the Handbook terms was effective when he stayed with [the employer], after becoming aware of the new policies. Thus, even if appellant objected to the Handbook as he claims, he accepted its terms by continuing to work for the employer. See, also, Carter v. Warner Interior, Inc. (Nov. 6, 1997), Cuyahoga App. No. 71797, unreported at 7 (continued employment constituted sufficient consideration to change commission policy); Carter v. Tucker (1996), 110 Ohio App.3d 421, 424-25 (continued employment adequate consideration for covenant not to compete amendment to employment contract). We do not find our decision in Harmon v. Phillip Morris, Inc. (1997), 120 Ohio App.3d 187 controlling because there the court found that the employee had not consented to submit its claims for wrongful discharge to arbitration, an issue not before us. -19- It should also be noted that the plaintiffs testified on deposition that their purported contract of employment was based on PCC's Handbook which contains the disclaimer they now seek to disregard. (See, e.g., Dieterich Tr. at 121-23; Alusheff Tr. at 28; Bell Tr. at 114, 127; Beres Tr. at 244; Bush Tr. at 91; Mizner Tr. at 48; Sands Tr. at 20-21; Steele Tr. at 74, 156; Root Tr. at 230-32; Velez Tr. at 35, 42). This testimony directly supports the trial court's finding that PCC's disclaimer precluded the formation of any employment contracts. As plaintiffs argue, oral representations by supervisors may in some circumstances create an implied contract, see Wright v. Honda, supra, the representations that the plaintiffs purportedly relied on were not clear and unambiguous so as to negate the disclaimer in the PCC Handbook. See Tersigni v. Gen. Tire, Inc. (1993), 91 Ohio App.3d 757, 760; Handler v. Merrill Lynch Life Agency, Inc. (1993), 92 Ohio App.3d 350, 362. Some of the plaintiffs claimed that supervisors assured them of their seniority/bumping rights: Bell Depo. at 170; Snyder Depo. at 49; Mizner Depo. at 67; and Steele Depo. at 151. However, these assurances regarding the plaintiffs' future job prospects were not enough to negate the disclaimer and create an implied contract of employment as no specific term of employment was promised, i.e., there was no assurance of tenure for a fixed period of time. Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131, paragraph three of syllabus (praise with respect to job -20- performance and discussion of future career development will not modify the employment-at-will relationship). This Court clearly applied these principles in Rayel v. Wackenhut Corp.(June 8, 1995), Cuyahoga App. No. 67459, unreported at 4-5: It is undisputed that there was no written employment contract governing the circumstances under which appellant could be terminated by appellee-Wackenhut. Thus, appellant bears the heavy burden of establishing the existence of an implied contract as an exception to the presumption of at-will employment. Penwell v. Amherst Hosp. (1992), 84 Ohio App.3d 16, 21. Even if a contract does exist, it must be for a fixed and definite period in order to overcome the at-will presumption. Mers, supra, paragraph one of the syllabus. Oral representations will alter the at- will employment relationship if the parties have a meeting of the minds that such representations are considered valid contracts altering the terms for discharge. Turner v. SPS Technologies, Inc. (June 4, 1987), Cuyahoga App. No. 51945, unreported. In order to satisfy this requirement, [t]he parties must have a distinct and common intention which is communicated by each party to the other party. Cohen & Company v. Messina (1985), 24 Ohio App.3d 22, 24. Construing the facts in the light most favorable to appellant, and therefore assuming Robert Green told appellant that as long as appellant did his job, there would be no problem, and that appellee did not just fire people for no good reason, such statements are insufficient as a matter of law to support an implied contract. See, e.g., Lake v. Wolff Bros. Supply, Inc. (Nov. 10, 1993), Cuyahoga App. No. 63959, unreported (summary judgment proper as to claim of breach of implied contract when employer said, Don't worry. If you do this well, you will have this position forever. ). -21- Further, there was no distinct and common intention which is communicated by each party to the other party in the case sub judice so as to show a meeting of the minds. Indeed, appellant admits that he construed such statements as creating an employment contract; however, he never communicated his understanding to Green. As a result, the evidence does not support a finding of an implied contract of employment. See Eagleye v. TRW, Inc. (Feb. 17, 1994), Cuyahoga App. No. 64662, unreported ( subjective belief cannot be a substitute for evidence of a specific promise of continued employment by the employer. ). See, also, Boggs v. Avon Products, Inc. (1990), 56 Ohio App.3d 67 (summary judgment for employer upheld; assurances that employee's job was secure as long as he improved his attendance and followed the employer's attendance requirements did not establish an implied contract); Clipson v. Schlessman (1993), 89 Ohio App.3d 230 (statements praising employee's performance and assurance that he would never have to worry about his job did not evidence a specific promise of future employment as a matter of law); Corradi v. Soclof (May 25, 1995), Cuyahoga App. No. 67589, unreported (assurances that employee should not look for another job after seeing her job position advertised and praise regarding job performance did not create an implied contract as no specific term of employment was promised); Demczyk v. Innkeeper's Telemanagement & Equipment Corporation (August 18, 1994), Cuyahoga App. No. 65953, unreported (employment is presumed to be at will in absence of contractual terms or circumstances which clearly manifest the parties' intent to bind each other to a specific term of employment); Lake v. Wolff Bros. Supply, Inc. (Nov. 10, 1993), -22- Cuyahoga App. No. 63959, unreported (summary judgment for employer affirmed despite promises of career advancement opportunities and being told that he would have position forever); Condon v. Body, Vickers, Daniels (1994), 99 Ohio App.3d 12, 19-20 (favorable comments concerning job performance and that employee should not be concerned that two new employees hired as everyone was wanted did not create a contract of specific duration); Dahl Cutshaw v. Allen Bradley Company (Dec. 1, 1994), Cuyahoga App. No. 66508, unreported (favorable comment concerning job position in regards to budget insufficient to overcome employment at will). The disclaimer in the PCC Handbook clearly informed the employees that the employer had the discretion to reduce its forces according to the company's needs and that the employees were not guaranteed or promised employment for any specific length of time. Since PCC could terminate employees at any time, the wrongful discharge claims of plaintiffs Noonan and Dieterich also fail. Plaintiffs' Assignment of Error I is overruled. II. THE TRIAL COURT ERRED WHEN IT REFUSED TO INVOKE THE DOCTRINE OF PROMISSORY ESTOPPEL TO BAR DEFENDANT-APPELLEE FROM DENYING SPECIFIC PROMISES TO FIRE ONLY FOR JUST CAUSE AND TO PROVIDE SENIORITY RIGHTS. III. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFFS-APPELLANT LEAVE TO FILE THEIR SECOND AMENDED COMPLAINT. We will address Assignment of Error III out of order because it logically precedes Assignment of Error II. If the Court was within its discretion in denying plaintiffs the right to file an -23- amended complaint seeking to join promissory estoppel claims, we can then proceed to Assignment of Error II. Trial courts have broad discretion in ruling upon a party's motion to amend a complaint pursuant to Civ.R. 15(A). Wilmington Steel Products v. Cleveland Electric Illuminating Co. (1991), 60 Ohio St.3d 120, 122. On appeal, the reviewing court is to determine whether the trial judge's decision constitutes an abuse of discretion, not whether it was the same decision the reviewing court might have made. Woomer v. Kitta (April 17, 1997), Cuyahoga App. Nos. 70863/71049, unreported at 1. Among the reasons that a trial court may deny leave to amend is the moving party's delay, see, e.g., Wells v. Bowie (1993), 87 Ohio App.3d 730, 735 (affirming denial of leave where appellant waited nearly two years to seek to amend her complaint); St. Mary's v. Dayton Power & Light Co. (1992), 79 Ohio App.3d 526, 535- 36 (affirming denial of leave to amend complaint in light of appellant's delay and prejudice to non-moving defendant in light of upcoming hearing); Woomersupra, at 6 (affirming denial of leave to amend complaint due to plaintiff's delay and potential prejudice to defendant). In this case, plaintiffs waited nearly three years before they sought leave, on August 22, 1996, to add their proposed promissory estoppel claims. Plaintiffs already had been granted a leave on April 29, 1996 to amend their complaint and failed to add these claims when it was convenient to do so. By August 1996, when plaintiffs sought leave again, PCC had completed most all of its -24- discovery without the opportunity to inquire about these new claims. Significantly, the discovery and dispositive motion deadlines had been set by agreement of the parties for September 16, 1996 and October 16, 1996, respectively. Plaintiffs eleventh- hour amendment would have destroyed the agreed-upon schedule, prejudiced PCC and required a re-deposition of key witnesses. We find no abuse of discretion in the court's denial of leave to file the second amended complaint. Plaintiffs' Assignment of Error III is overruled. Also without merit is plaintiffs' contention that the trial court should have sua sponte invoked the doctrine of promissory estoppel to deny PCC's motion for partial summary judgment. However, plaintiffs were unable, as a matter of law, to prevail on such claims. See, e.g., Cohen & Co. v. Messina 1985), 24 Ohio App.3d 22, 26 (in order to establish a claim of promissory estoppel, a plaintiff must demonstrate: (1) a clear and unambiguous promise; (2) reliance that is reasonable and foreseeable; and (3) injury caused by the reliance ( detrimental reliance )). There was no clear and unambiguous promise of continued employment for a specific term. As previously discussed, the disclaimer in PCC's Handbook negated any claim of reasonable reliance. Finally, plaintiffs' continued employment was insufficient to provide the necessary detrimental reliance. There is no claim or evidence that the plaintiffs gave up other employment opportunities to remain in defendant's employ in reliance on any promises. -25- Plaintiffs' Assignment of Error II is overruled. IV. THE TRIAL COURT ERRED WHEN IT SUA SPONTE ENTERED FINAL JUDGMENT IN FAVOR OF DEFENDANT- APPELLEE. The plaintiffs asserted various non-contract claims in their amended complaint. The trial court sua sponte dismissed those non- contract claims with prejudice although PCC did not move for summary judgment on these claims. The plaintiffs had no notice that the non-contract claims were subject to dismissal. The trial court simply entered an order on September 24, 1997 stating, Docket shall reflect fact that case has been disposed of with prejudice per this court's ruling on 8/12/1997. However, the August 12, 1997 ruling only concerned the implied contract claim and not the non-contract claims. There is no evidence in the record that the plaintiffs waived these other claims. We find it was error to sua sponte dismiss such claims on this state of the record. Plaintiffs' Assignment of Error IV is sustained. The case will be remanded for further proceedings respecting those claims. CROSS-APPEAL I. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLANT'S MOTION FOR CONSOLIDATION AND/OR JOINDER. The trial court did not abuse its discretion when it consolidated the cases below. Civ.R. 42(A) provides that [w]hen actions involving a common question of law or fact are pending before a court *** it may order some or all the actions consolidated. The decision whether to consolidate is within the -26- lower court's discretion. Jamestown Village Condo. v. Market Media (1994), 96 Ohio App.3d 678, 681. Common evidence and common implied contract claims made these cases candidates for consolidation. The trial court noted that each of the plaintiffs alleged breach of an implied employment contract, involving common evidence, against the same employer, arising out of the same series of layoffs. These common issues were sufficient to consolidate the cases. We find no abuse of discretion. Since the common issue recommending consolidation has been resolved and the remand may raise differentiated non-contract claims, the trial court may wish to give consideration to severing the distinct claims now that the common element of implied contract is no longer a viable issue. We intimate no disposition on such procedures or issues. Cross-Assignment of Error I is overruled. Judgment affirmed in part, reversed in part and remanded for further proceedings. Cross-appeal denied. -27- It is ordered that appellee/cross-appellant and appellants/ cross-appellees shall pay their respective 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. JAMES D. SWEENEY, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING 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 .