JOSEPH A. SYLVESTER, Plaintiff-Appellant, v. TURNING POINT COUNSELING SERVICES, INC., Defendant-Appellee.
Case No. 19 MA 0134
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
January 28, 2021
2021-Ohio-1284
Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio, Case No. 2018 CV 46
Cheryl L. Waite, Carol Ann Robb, Judges and Judge Timothy P. Cannon, Judge of the Eleventh District Court of Appeals, Sitting by Assignment.
JUDGMENT:
Affirmed.
Atty. Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East, Suite 926 Youngstown, Ohio 44503-1811, for Plaintiff-Appellant and
Atty. Adam V. Buente, The Law Office of Adam V. Buente, LLC, 841 Boardman-Poland Road, Suite 307, Boardman, Ohio 44512, for Defendant-Appellee.
WAITE, J.
{¶1} Appellant, Joseph Sylvester, appeals the decision of the Mahoning County Common Pleas Court to grant summary judgment in favor of Appellee, Turning Point Counseling Services, Inc. in a breach of employment contract action brought by Appellant. Based on the following, we conclude the trial court did not err in granting Appellee‘s motion for leave to file summary judgment nor in granting Appellee summary judgment. No genuine issue of material fact exists regarding whether Appellant‘s employment contract had expired or whether he executed a release of all claims against Appellee on termination. Appellant‘s assignments of error are overruled and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} On July 1, 2012, Appellant was hired as Appellee‘s Executive Director. The parties executed a written employment contract. The employment contract stated that Appellant was to be employed for a term of two years, with the possibility of renewal or extension. The contract specifically provided:
The term of this Agreement shall be for (2) years commencing on the First Day of July, 2012. If either Party requests in writing no less than sixty (60) days prior to the expiration of the contract period for a review of the terms contained herein, the Parties hereto shall review the provisions of the Agreement as requested and negotiate an Agreement of continued employment which must be mutually acceptable. If the Parties fail to give
the notice as required, then in that event and at the expiration of the contract period, the terms and conditions of this Agreement shall be extended and continued in full force and effect for one (1) additional year.
(Motion for Summary Judgment, Exh. A-1.)
{¶3} The parties do not dispute that Appellant was employed as the Executive Director not only for the two-year original contract term, but also for the additional one year renewal period. Subsequently, on May 27, 2016, Appellant was asked to meet with Appellee‘s Board of Directors. At that meeting Appellant was informed that he was being terminated. The Board presented Appellant with a “Release and Severance Agreement” (“termination agreement“) that provided Appellant with eight weeks of severance pay and eight weeks of continued health insurance. The Agreement also contained the following “Release” clause:
Sylvester, on behalf of himself, his heirs, beneficiaries and personal representatives, hereby releases, acquits and forever discharges Turning Point, its owners, subsidiaries, affiliates, successors and assigns, together with its and their past and present directors, officers, agents, attorneys, insurers, employees, shareholders, partners and any employee benefit plans established or maintained by any such entities, together with their fiduciaries and agents, and all other persons, firms, partnerships or corporation in control of, under the direction of, or in any way presently or formerly associated with Turning Point (collectively “Turning Point Affiliates“), of and from all claims, charges, complaints, liabilities,
obligations, promises, agreements, contracts, damages, actions, causes of action, suits, accrued benefits or other liabilities of any kind or character, whether known or hereafter discovered, arising from or in any way connected with or related to Sylvester‘s employment with Turning Point and/or Sylvester‘s termination of employment from Turning Point, including, but not limited to, allegations of wrongful termination, discrimination, retaliation, breach of contract, promissory estoppel, retaliatory discharge, any claim related to drug or alcohol testing, constructive discharge, discharge in violation of any law, statute, regulation or ordinance providing whistleblower protection, discharge in violation of public policy, intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, harassment, sexual harassment, invasion of privacy, any action in tort or contract, any violation of any federal, state, or local law[.]
(Motion for Summary Judgment, Exh. A-2, ¶ 2.)
{¶4} The termination agreement also contained three additional clauses relevant to this appeal:
5. Consideration. Sylvester voluntarily accepts the consideration cited herein, as sufficient payment for the full, final and complete release stated herein, and agrees that no other promises or representations, including, but not limited to, the tax treatment of the severance payments have been made to Sylvester by Turning Point or any other person purporting to act on behalf of Turning Point, except as expressly stated herein.
7. Understanding of Agreement. Sylvester understands that this is a full, complete and final release of Turning Point and all Turning Point Affiliates, as evidenced by the signature below, Sylvester expressly promises and represents to Turning Point that he has completely read this Agreement and understands its terms, contents, conditions and effects.
* * *
9. Other Agreements. This Agreement will supersede any and all obligations Turning Point or any Turning Point Affiliate might otherwise owe to Sylvester for any act or omission whatsoever that took place, or should have taken place, on or before the date this Agreement is signed and executed by Sylvester. Other than the terms of the Agreement as set forth herein this Severance Agreement constitutes the entire understanding and agreement between the parties and it may only be modified or amended an assigned [sic] writing by both parties hereto.
(Motion for Summary Judgment, Exh. A-2, ¶ 5, 7, 9.)
{¶5} The parties do not dispute that Appellant executed this termination agreement at the May 27, 2016 Board meeting. On December 29, 2017, Appellant filed a complaint for breach of the employment contract. In his complaint, Appellant alleged that his employment contract had remained in effect, despite the stated expiration date, under the same terms and conditions as his initial employment. He also claimed that
{¶6} Appellee filed an answer on March 12, 2018, raising the affirmative defense that Appellant failed to state a claim on which relief could be based, because Appellant‘s employment contract had expired and was not in effect at the time of the May 27, 2016 Board meeting. Thus, Appellant was an at-will employee at the time he was terminated. Appellee also raised the defense of waiver, alleging Appellant knowingly and voluntarily entered into the termination agreement, which barred the claims alleged in the complaint. On June 13, 2018, Appellant served Appellee with interrogatories and a request for production of documents. Appellee conducted no discovery in this matter. The court ordered all dispositive motions to be filed two and one half months prior to trial. The matter was set for trial on October 1, 2019.
{¶7} On September 3, 2019, Appellee filed a motion seeking leave to file a motion for summary judgment instanter, along with a separately time-stamped motion for summary judgment. Appellee asserted in its summary judgment motion that Appellant‘s employment contract expired July 1, 2015. Hence, Appellant could not prove breach of contract because at the time of his termination he was an at-will employee. Because Appellant had no valid breach of contract claim, there was no basis for relief on Appellant‘s derivative breach of good faith and breach of fair dealing claim. And as
{¶8} On September 5, 2019, Appellant filed a motion opposing the request to file for summary judgment, arguing that the motion was filed too close to the trial date in violation of
{¶9} On September 9, 2019, a magistrate‘s order was issued granting Appellee‘s request to file for summary judgment instanter. On September 17, 2019, Appellant filed a motion to set aside the magistrate‘s order. However, on September 20, 2019, the trial court denied Appellant‘s motion and adopted the magistrate‘s order. The trial court continued the pretrial and trial dates for 60 days in order to allow Appellant 28 days to respond to the summary judgment motion and for Appellee to have seven days in which to file a reply.
{¶10} Appellant filed a brief in opposition to summary judgment on October 16, 2019. In it, he asserted that his employment contract was still in effect at the time he was terminated, because Appellee had never informed him that he was no longer subject to the terms of his employment contract or that he was considered by the Board to be an at-
{¶11} On October 24, 2019, the trial court granted Appellee‘s motion for summary judgment, concluding that the evidence demonstrated Appellant could not prove a valid employment contract was in effect, defeating the first element of his breach of contract claim, because his employment contract had expired by its own terms on June 30, 2015. Because the claims for breach of the covenant of good faith and fair dealing are dependent on the existence of a valid contract, these also failed.
{¶12} Appellant filed this timely appeal.
ASSIGNMENT OF ERROR NO. 1
The trial court abused its discretion in allowing Turning Point to file its motion for summary judgment after trial was set.
{¶13} It is well settled that a trial court has the inherent authority to manage its own proceedings and control matters on its own docket. State ex rel. Nat. City Bank v. Maloney, 7th Dist. No. 03 MA 139, 2003-Ohio-7010, ¶ 5. Moreover, a trial court is within
{¶14} In this case the trial court had ordered that all dispositive motions were to be filed two and one half months prior to trial, which was set for October 1, 2019. On September 3, 2019, Appellee filed a motion for permission to file for summary judgment instanter along with the actual summary judgment motion, both separately time-stamped. A magistrate‘s order of September 9, 2019 granted Appellee‘s instanter motion despite its untimeliness. Without responding to the summary judgment motion, Appellant filed on September 17, 2019, to set aside the magistrate‘s order. However, three days later the trial court denied Appellant‘s motion and adopted the magistrate‘s decision. In order to provide sufficient time for Appellant‘s response under the Rules, the court continued all pretrial and trial matters for 60 days. Appellant filed his response to the motion for summary judgment on October 16, 2019.
{¶15} Appellant argues that allowing Appellee to file a summary judgment motion so close to the date of trial was unduly prejudicial to him and that the motion was merely filed in an attempt to delay his day in court. He reiterates the identical arguments raised both to the magistrate and to the trial court in this matter, contending that his trial counsel
{¶16} Appellant‘s assertions are not borne out by the record. Although the trial court allowed Appellee to file for summary judgment after the cutoff date earlier set, the pretrial and trial dates in the matter were continued in order to provide Appellant time to respond to summary judgment in accordance with
ASSIGNMENT OF ERROR NO. 2
The trial court erred as a matter of law in granting summary judgment in favor of Turning Point.
{¶17} An appellate court conducts a de novo review of a trial court‘s decision to grant summary judgment, using the same standards as the trial court set forth in
{¶18} “[T]he 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 on a material element of the nonmoving party‘s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party‘s favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).
{¶19} The evidentiary materials to support a motion for summary judgment are listed in
{¶21} Issues surrounding the interpretation of a contract constitute a question of law to be determined by the court. Leber v. Smith, 70 Ohio St.3d 548, 639 N.E.2d 1159 (1994). The role of the court when interpreting the terms of a contract is to give effect to the intention of the parties. Westfield Ins. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 9-11. We must examine the contract in its entirety and presume that the parties’ intent is reflected in the language of the contract. Id. at ¶ 11. Common words in a contract will be given their ordinary meaning unless this would result in a manifest absurdity or unless some other meaning is clear from the face of the agreement. Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156, 2003-Ohio-3048, 789 N.E.2d 1094, ¶ 34. If language in a contract is ambiguous, courts will interpret the ambiguity against the drafter. Galatis, ¶ 13.
{¶22} Both parties submitted an executed copy of the employment contract along with their motions. Appellee contends the language of the contract unambiguously states that its terms were to end no later than June 30, 2015. As such, Appellant was not subject to the employment contract at the time he was terminated. Instead, he was an at-will
If the Parties fail to give the notice as required, then in that event and at the expiration of the contract period, the terms and conditions of this Agreement shall be extended and continued in full force and effect for one (1) additional year.
(Motion for Summary Judgment, Exh. A-1.) Hence, the language of the employment contract reveals that the contract expired, by its own terms, on June 30, 2015, without a showing that it was renegotiated by mutual agreement the previous year.
{¶23} Appellant had the reciprocal burden of producing evidence to demonstrate a genuine issue of material fact existed regarding whether any employment contract was still in effect. Appellant did not argue that the contract was ambiguous or had been renegotiated and an extension had been agreed-to by the parties. Appellant‘s sworn affidavit testimony instead goes to his argument that he was never informed by the Board that he was no longer subject to the employment agreement. Appellant claims that because the Board did not tell him that his contract expired and he was considered to be an at-will employee, the parties continued to be subject to the terms and conditions of the agreement. Appellant argues, then, that the parties were subject to the terms of the
I understood under the terms and conditions of my Employment Agreement (Exhibit A) and the direction of the Board of Directors of Turning Point Counseling Services, Inc. that I was to continue my employment as the Executive Director of Turning Point Counseling Services, Inc. beginning July 1, 2015 under my same Employment Agreement as attached in Exhibit A.
(Appellant‘s Aff., ¶ 6.)
{¶24} Appellant does not cite to any portion of the contract requiring notification that the terms of the contract had expired. He avers only that he “understood” the contract would continue. He also does not allege that the Board collectively, or any individual Board member, said or did anything to support this “understanding.” To the contrary, the language of the contract clearly sets out the contractual term. As noted above, the contract term was for two years commencing July 1, 2012. No less than sixty days prior to the end of the initial two-year term, either party could submit a written request for a renegotiation of the contract terms. If no such request was made, the contract would continue in full force or effect for one (1) additional year. This contract had the potential for a maximum term of three years: two years by its terms, with a one-year renewal if no renegotiation was requested by either party. Appellant‘s assertion that he was never notified of the expiration of the contract presumes that Appellee owed him a duty to notify him that the contract had expired. Such a duty could only be contained within the four
{¶25} In the instant matter, in addition to the breach of contract claim based on the employment contract, Appellant alleged a second cause of action for breach of the implied covenant of good faith and fair dealing based on Appellee‘s failure to pay accrued vacation and sick pay that Appellant claims was orally promised at his termination.
{¶26} “In addition to a contract‘s express terms, every contract imposes an implied duty of good faith and fair dealing in its performance and enforcement.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, ¶ 42, citing Restatement of the Law 2d, Contracts, Section 205 (1981). The Supreme Court has recognized that, ” ’ [g]ood faith’ is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and
{¶27} Appellee‘s position throughout has been that, as no valid employment contract exists in this case, no viable claim for breach of the covenant of good faith and fair dealing can be maintained as this is a derivative claim, wholly dependent on the existence of a valid, written contract. In response, Appellant seems to link his argument to the termination agreement. Appellant does not dispute that he signed the termination agreement or that this agreement lacked any provisions regarding the sick and vacation pay he seeks. He argues that he felt “forced” into signing the termination agreement immediately, even though the Agreement itself provided a 21 day period in order to review its terms. He also argues that the affidavit of Attorney Essad submitted by Appellee that he was not promised this pay creates a genuine issue of fact in this matter because he filed his own affidavit stating that this payment was promised.
{¶28} Appellant‘s claim for breach of the implied covenant of good faith and fair dealing is problematic for many reasons. Most notably, Appellant filed his complaint based on an alleged breach of his employment contract. This is the only contract on which Appellant relies in raising his derivative claim of breach of good faith and fair
{¶29} Appellant asserts that at the Board meeting on the day he was terminated, oral promises were made for the payment of his accrued vacation and sick time. He concedes that the agreement he signed at termination provides for only the payment of eight weeks of pay and health care coverage. In order to prevail on a breach of good faith and fair dealing, not only must the parties have a valid contract, that contract must contain a specific obligation to perform. Lucarell, ¶ 47. We have already noted that no valid employment contract existed. Even if we turn to the language in the contract of the termination agreement, not only is this agreement clear that Appellant was entitled to only the eight weeks of pay and health insurance and there was no provision for payment of sick and vacation time, the termination agreement contains a Release clause prohibiting Appellant from raising any claims, including claims regarding compensation.
{¶30} As no contract was offered on which to base a claim for payment of sick and vacation pay, no valid contractual claim for breach of good faith and fair dealing has been raised, either. Appellant signed an actual severance contract when he entered the termination agreement. Even if the Release clause in that contract did not operate as a complete bar to any and all matters involving his employment and termination by Appellee, the existence of a contract addressing his severance pay would operate to bar
{¶31} Appellant‘s employment contract had expired at the time he was terminated. Appellee was not in breach in terminating Appellant. Appellant voluntarily signed a termination agreement at the time he was fired containing a specific provision relative to severance pay and a Release clause, barring litigation over employment and termination issues. He is thus not entitled to any additional severance. The trial court was well within its discretion in allowing the matter to be decided in summary judgment. Both of Appellant‘s assignments of error are without merit and the judgment of the trial court is affirmed.
Robb, J., concurs.
Cannon, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to
NOTICE TO COUNSEL
This document constitutes a final judgment entry.