Staschiak v. Certified Logistics, Inc., 2015–T–0055.

60 N.E.3d 824

John STASCHIAK, Plaintiff–Appellant,

v.CERTIFIED LOGISTICS, Inc., et al., Defendants–Appellees.

No. 2015–T–0055.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

March 7, 2016.

Stephen A. Turner, Turner, May & Shepherd, Warren, OH, for plaintiff-appellant.

Shirley J. Smith, Poland, OH, for defendants-appellees.

OPINION

DIANE V. GRENDELL, J.

{¶ 1} Plaintiff-appellant, John Staschiak, appeals from the Judgment Entry of the Trumbull County Court of Common Pleas, granting the defendants-appellees, Certified Logistics, Inc.'s and Checkered Express, Inc.'s, Motions for Summary Judgment and dismissing Staschiak's Complaint. The issue to be determined by this court is whether an employee handbook can create a contract as to certain terms of employment, including the employee's rate of pay. For the following reasons, we reverse the judgment of the lower court and remand for further proceedings consistent with this opinion.

{¶ 2} On February 21, 2012, Staschiak filed a Complaint against Certified Logistics and Checkered Express, his former employers. Staschiak filed an Amended Complaint on February 26, 2013.

{¶ 3} The Amended Complaint explained that Staschiak had worked as a commercial truck driver for Checkered Express from May 2003 to 2009. From 2009 to April 2011, he was employed in the same capacity with Certified Logistics.¹ He asserted that his employment with both entities was governed by an employee handbook that he had been issued by Checkered Express. According to Staschiak, pursuant to that handbook, after 5 years of service, he was to be paid 30 percent of the gross income received by the appellees for loads he drove and $15 per hour for detention and layover pay. He was also entitled, after 90 days of service, to have the appellees cover 70 percent of his health insurance. Attached to the Amended Complaint was a copy of the “Checkered Express Inc. Employee Handbook.”

{¶ 4} Counts One and Two raised separate claims for Breach of Contract against Checkered Express and Certified Logistics, asserting that Staschiak was not paid in accordance with the 30 percent of load policy stated in the handbook. Counts Three and Four raised claims for Fraud relating to false statements and representations, “understating the gross income to be received for loads.” The Breach of Contract claims in Counts Five through Eight related to the failure to compensate Staschiak for detention, layovers, and other time, and for 70 percent of his health insurance, again pursuant to the employee handbook.

{¶ 5} Both appellees filed Motions to Dismiss Plaintiff's Amended Complaint on May 2, 2013, arguing that the handbook did not constitute an employment contract and the Fraud claims were not pled with particularity. Staschiak filed a Memorandum in Opposition on June 13, 2013. The Motions to Dismiss were denied on June 21, 2013.

{¶ 6} On September 13, 2013, the appellees filed Answers and Counterclaims.

{¶ 7} The appellees filed separate Motions for Summary Judgment on February 6, 2015. They argued, inter alia, that there was no written contract, Staschiak was an at-will employee, and the handbook did not constitute an employment contract. Certified Logistics also noted that the handbook was issued and written solely by Checkered Express. Attached to the Motions were copies of the affidavit of Csaba Budjoso, the owner of Certified Logistics, who averred that there was never a contract or employment agreement between the company and Staschiak and the company made no false representations to him.

{¶ 8} Staschiak filed a Memorandum in Opposition on February 20, 2015. He argued that the employee handbook created a contract since it contained clear promissory language about what the company “will” do. He claimed that the appellees made false representations about the amounts paid by shippers for the loads that he hauled. Attached was Staschiak's affidavit, in which he averred that he received the handbook in connection with his employment with Checkered Express, continued to work for that company after receiving the handbook, and that, after he became an employee of Certified Logistics, he continued to drive trucks with Checkered's “mark” and “was still required to obey” the Checkered handbook. The appellees each filed a Memorandum in Response on March 6, 2015.

{¶ 9} The lower court issued a Judgment Entry on April 27, 2015, granting the appellees' Motions for Summary Judgment and dismissing all of Staschiak's claims. The court found that Staschiak failed to establish there was a “meeting of the minds” sufficient to make the handbook a contract, and thus, could not prove his Breach of Contract claims. The Fraud claims were dismissed on the ground that the alleged damages were not separate from those attributed to the breach.

{¶ 10} After Staschiak appealed to this court, on July 27, 2015, the appellees filed Objections/Proposed Amended Statement of Evidence and Proceedings Pursuant to App.R. 9(C). Staschiak filed a Proposed Statement of the Proceedings on July 28, 2015.

{¶ 11} Following a motion to extend the time for transmission of the record in this court, we remanded for the trial court to settle/approve the App.R. 9(C) statement. The trial court filed a Judgment Entry on August 3, 2015, finding that such a statement was unnecessary, since no evidence was taken at the hearing on the Motion for Summary Judgment.

{¶ 12} On appeal, Staschiak raises the following assignments of error.

{¶ 13} “[1.] The trial court erred in granting summary judgment to the appellees based upon arguments not raised in appellees' initial motions.

{¶ 14} “[2.] The trial court[ ] erred when it ruled that the appellees were not contractually obligated to honor the compensation provisions of the employee handbook.”

{¶ 15} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the evidence shows “that there is no genuine issue as to any material fact” 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 that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence * * * construed most strongly in the party's favor.”

{¶ 16} A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision.” (Citation omitted.) Peer v. Sayers, 11th Dist. Trumbull No. 2011–T–0014, 2011-Ohio-5439, 2011 WL 5028693, ¶ 27.

{¶ 17} In his first assignment of error, Staschiak contends that the lower court was not permitted to grant summary judgment based on new arguments raised by the appellees to which he was not permitted to reply.

{¶ 18} Staschiak takes issue with the fact that the appellees raised, in their responses to his Memorandum in Opposition to summary judgment, issues relating to the lack of Civ.R. 56 evidence presented, and that his reliance on the employee handbook was unreasonable. The appellees' contentions appear to merely have been responses to arguments raised in Staschiak's Memorandum in Opposition. Further, Staschiak failed to raise this issue before the lower court through a motion to strike and, thus, should not be permitted to raise it on appeal.² Lawson v. Mahoning Cty. Mental Health Bd., 7th Dist. Mahoning No. 10 MA 23, 2010-Ohio-6389, 2010 WL 5508636, ¶ 51 (“in the context of summary judgment[,] * * * if a reply raises new arguments and the non-moving party fails to file a motion to strike, the non-moving party is precluded from arguing on appeal that it was ‘ambushed’ by the new argument”). Regardless, these issues are not dispositive of the appeal, as will be discussed in the remainder of the opinion.

{¶ 19} The first assignment of error is without merit.

{¶ 20} In his second assignment of error, Staschiak argues that the provisions of the employee handbook created a binding contract because they contained promissory language which he accepted by continuing to work after receiving the handbook. As such, he should have been permitted to prove his Breach of Contract claim at trial.

{¶ 21} The appellees contend that the handbook contained “guidelines” and was not intended to form a contract.

{¶ 22} This court has held that “[a]n employer's promulgation of employment manuals, employee handbooks or other written guidelines elucidating policies or practices may be evidence of the existence of subsidiary agreements internal to the employment relationship.” White v. Fabiniak, 11th Dist. Lake No. 2007–L–100, 2008-Ohio-2120, 2008 WL 1932099, ¶ 17. Employment manuals may constitute binding contracts between employees and employers provided all necessary elements of an implied contract are present. Jones v. Conneaut City Health Dept., 190 Ohio App.3d 28, 2010-Ohio-4560, 940 N.E.2d 629, ¶ 27 (11th Dist.). While principles of implied contract law are often utilized in wrongful discharge claims, they are also applied in other circumstances. For example, Jones, which dealt with a dispute over pay for unused vacation hours, applies the implied contract principles discussed in this opinion. See also Finsterwald–Maiden v. AAA S. Cent. Ohio, 115 Ohio App.3d 442, 445–446, 685 N.E.2d 786 (4th Dist.1996) (noting that wrongful termination principles are “instructive” in cases involving employment handbooks and considering whether a subsidiary, binding contract was created, in addition to the existing at-will employment, in order for a plaintiff to recover payment of commissions and bonuses).

{¶ 23} “[A]n employee who asserts the existence of an implied contract must prove the existence of each element necessary for the formation * * * of a contract, including, offer,...