COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73808 MICHAEL SCANLON : : Plaintiff-appellant : : -vs- : JOURNAL ENTRY : AND TREMCO, INC. : OPINION : Defendant-appellee : : : : DATE OF ANNOUNCEMENT : DECEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. 319,998 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Alan Belkin, Esq. 75 Pubic Square Suite 920 Cleveland, Ohio 44113 For defendant-appellee: Earl M. Leiken, Esq. Todd H. Lebowitz, Esq. Baker & Hostetler 3200 National City Center Cleveland, Ohio 44114 MICHAEL J. CORRIGAN, J.: Michael Scanlon, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General -2- Division, Case No. CV-319998, in which the trial court granted the motion for summary judgment of Tremco, Inc., defendant-appellee, on plaintiff-appellant's breach of employment contract claim. Plaintiff-appellant assigns two errors for this court's review. Plaintiff-appellant's appeal is not well taken. Plaintiff-appellant beganworking at Tremco, Inc. (hereinafter Tremco ) in 1984 as a salesman. In March of 1993, Tremco approached plaintiff-appellant regarding a possible overseas assignment in the company's international division in Kuala Lumpur, Malaysia. Tremco planned to start a joint venture with a Malaysian company known as Sine Darby and wanted plaintiff-appellant to develop the sales operations for the joint venture. The assignment was to last at least three years. Plaintiff-appellant was informed that successful handling of the Malaysia assignment would enhance his future with Tremco. Negotiations ensued during which an agreement was reached whereby plaintiff-appellant agreed to accept the overseas position. The agreement, which was reduced to writing, contained the following provisions: (1) the Malaysia assignment was to last for three years; (2) at the conclusion of the three-year period, plaintiff-appellant couldreturn to the United States, Canada or to another mutually agreeable location where Tremco agreed to provide plaintiff-appellant with a position of equivalent responsibility to the overseas position; (3) plaintiff-appellant could remain in Malaysia, with the approval of Sine Darby, at a mutually agreed upon salary; and (4) should Tremco decide to terminate plaintiff- -3- appellant's employment during the period of the overseas assignment, plaintiff-appellant would receive three months notice and a termination payment equal to six months base salary. In July 1996, plaintiff-appellant concluded his three-year assignment in Malaysia. Pursuant to the terms of the prior agreement, Tremco offered plaintiff-appellant the choice of three different assignments: (1) manager of Tremco operations in Australia; (2) operations manager of Tremco Service Corporation; and (3) marketing manager in Tremco's auto glass business unit in Cleveland, Ohio. Subsequently, plaintiff-appellant was offered a fourth position with Tremco as the marketing manager in the glazing division of the auto glass unit. This position was also located in Cleveland, Ohio. Ultimately, plaintiff-appellant accepted the position of marketing manager in the glazing division. Plaintiff-appellant began working in Cleveland in April of 1996. Admittedly, plaintiff-appellant had no practical experience in marketing, having been a salesman throughout most of his career. Consequently, Tremco maintains that plaintiff-appellant performed poorly in the new position. On October 31, 1996, after six months as marketing manager of the glazing division, Tremco terminated plaintiff-appellant's employment. On December 5, 1996, plaintiff-appellant filed the underlying complaint in which he maintained that Tremco breached the employment contract executed in conjunction with plaintiff- appellant's acceptance of the Malaysian assignment. Plaintiff- appellant also asserted a claim for promissory estoppel. -4- On July 18, 1997, Tremco filed a motion for summary judgment in which it maintained that it fulfilled the terms of its written agreement with plaintiff-appellant; the agreement itself expired when plaintiff-appellant returned to work in the United States; and Tremco made no specific promise of continued employment beyond the initial promise to provide plaintiff-appellant with a position of equivalent responsibility upon the conclusion of the Malaysian assignment. A promise it fulfilled by hiring plaintiff-appellant as marketing manager of the glazing division. Plaintiff-appellant opposed the motion for summary judgment arguing that Tremco had breached the employment contract in question and plaintiff- appellant had set forth a valid claim under the theory of promissory estoppel. On December 8, 1997, the trial court issued an opinion and order in which it granted Tremco's motion for summary judgment in its entirety. On January 8, 1998, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. Plaintiff-appellant's first assignment of error states: I. THE RECORD BEFORE THE TRIAL COURT SHOWED THAT AN EXPRESS EMPLOYMENT CONTRACT EXISTED BETWEEN SCANLON AND TREMCO AND CONTAINED EVIDENCE THAT TREMCO HAD BREACHED THAT EMPLOYMENT CONTRACT. Plaintiff-appellant's second assignment of error states: II. THE RECORD CONTAINED EVIDENCE TO SUPPORT EACH OF THE LEGAL ELEMENTS OF SCANLON'S PROMISSORY ESTOPPEL CLAIM AGAINST TREMCO. Having a common basis in both law and fact, this court shall consider plaintiff-appellant's first and second assignments of error simultaneously. -5- Plaintiff-appellant argues, through his first and second assignments of error, that the trial court erred in granting the motion for summary judgment of Tremco, Inc. Specifically, plaintiff-appellant argues that, viewing the evidence presented in a light most favorable to the non-movant, it is apparent that genuine issues of material fact exist as to the alleged breach of the overseas employment agreement between plaintiff-appellant and Tremco as well as Tremco's alleged promise of future employment at the conclusion of the Malaysian assignment. The standard for granting a motion for summary judgment is set forth in Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (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 non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, syllabus. The non-movant must also present specific facts and may not merely rely upon the pleadings or upon -6- unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio St.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court discussed the standard to be applied when reviewing motions for summary judgment. The court stated: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56 (A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. The court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. Ohio has a long standing doctrine of employment at will. See Henkel v. Educ. Research Council (1976), 45 Ohio St.2d 249, 255, 344 N.E.2d 118. Unless otherwise agreed, either party to an oral employment-at-will relationship may terminate the employment -7- relationship for any reason that is not contrary to law. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103, 483 N.E.2d 150. However, such relationships do have defined limits, such as the prohibition against retaliatory discharge for filing workers' compensation claims, union activity or discriminatory firings based upon race, sex, age or physical handicap. Id. In addition to the considerations set forth above, a court examining an employment-at-will agreement should also consider the facts and circumstances surrounding the agreement to determine if the parties' actions, the parties' intent, and the existence of implied or express contractual provisions alter the employment-at- will agreement. Id; Girts v. Bostwick-Braun Company (Feb. 6, 1998), Lucas App. No. L-97-1221, unreported. Factors to be considered are employee handbooks, company policy, oral representations, the nature of the employment, the course of dealing between the parties, and any other relevant factor which may indicate a modification of the agreement. Mers, supra. The doctrine of promissory estoppel requires that the following elements be demonstrated: (1) a clear, unambiguous promise; (2) reliance upon the promise by the person to whom the promise is made; (3) the reliance is reasonable and foreseeable; and (4) the person claiming reliance is injured as a result of reliance on the promise. Weiper v. W.A. Hill & Assoc. (1995), 104 Ohio App.3d 250, 661 N.E.2d 796; Carter v. Warner Interior, Inc. (Nov. 6, 1997), Cuyahoga App. No. 71797, unreported. -8- In the case herein, a review of the record from the trial court demonstrates that the trial court did not err in granting the motion for summary judgment of Tremco, Inc. on plaintiff- appellant's breach of contract and promissory estoppel claims. The agreement upon which plaintiff-appellant relies clearly relates to plaintiff-appellant's employment with Tremco while assigned to the Malaysian joint venture. The contract required Tremco to provide plaintiff-appellant with a position of equivalent responsibility upon his return to the United States. It is undisputed that Tremco did provide plaintiff-appellant with such a position. In fact, Tremco provided a choice of three such positions allowing plaintiff-appellant to choose the employment opportunity for which he felt he would be best suited. At that point, Tremco's obligations under the overseas agreement were fully satisfied and plaintiff-appellant's employment status reverted back to that of an at-will employee. The remaining contractual provision concerning severance pay was no longer applicable to plaintiff-appellant's employment status with Tremco. Similarly, plaintiff-appellant's promissory estoppel claim is equally unsupported by the record. Initially, it must be noted that the only identifiable promise made by Tremco was to provide a position of equal responsibility to plaintiff-appellant upon his return to the United States. Admittedly, Tremco fulfilled this obligation by offering plaintiff-appellant the position as marketing manager of the glazing division. Plaintiff-appellant maintains that additional representations were made by Tremco to -9- the effect that he would have a bright future with the company upon successful completion of the Malaysian assignment. As the trial court correctly determined, mere representations of future conduct without more specificity do not form a valid basis for the application of the doctrine of promissory estoppel. Vague, indefinite promises of future employment will not support a promissory estoppel claim. Condon v. Body, Vickers, and Daniels (1994), 99 Ohio App.3d 12, 20-21, 649 N.E.2d 1259, 1264-65; Lake v. Wolff Bros. Supply, Inc. (Nov. 10, 1993), Cuyahoga App. No. 63959, unreported; Mers, supra. For the foregoing reasons, it is apparent that the trial court did not err in granting summary judgment on plaintiff-appellant's claims. Plaintiff-appellant's first and second assignments of error are not well taken. Judgment of the trial court is affirmed. -10- It is ordered that appellee recover of appellant 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 Cuyahoga County 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 M. PORTER, P.J., AND LEO M. SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .