[Cite as Trehar v. Brightway Ctr., 2015-Ohio-4144.]



                           STATE OF OHIO, JEFFERSON COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

JENNIFER TREHAR,                                      )
                                                      )
        PLAINTIFF-APPELLANT,                          )
                                                      )             CASE NO. 14 JE 20
V.                                                    )
                                                      )                   OPINION
BRIGHTWAY CENTER, INC.,                               )
                                                      )
        DEFENDANT-APPELLEE.                           )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from Court of Common
                                                      Pleas of Jefferson County, Ohio
                                                      Case No. 12CV605

JUDGMENT:                                             Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellant                               Attorney Ira J. Mirkin
                                                      Attorney Charles W. Oldfield
                                                      City Centre One, Suite 800
                                                      100 Federal Plaza East
                                                      Youngstown, Ohio 44503

For Defendant-Appellee                                Attorney David J. Scarpone
                                                      Attorney Kristopher M. Haught
                                                      2021 Sunset Boulevard
                                                      Steubenville, Ohio 43952


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                      Dated: October 2, 2015
[Cite as Trehar v. Brightway Ctr., 2015-Ohio-4144.]
DONOFRIO, P.J.

        {¶1}     Plaintiff-appellant, Jennifer Trehar, appeals from a Jefferson County
Common Pleas Court judgment granting summary judgment in favor of defendant-
appellee, Brightway Center, Inc., on Trehar’s complaint for promissory estoppel.
        {¶2}     Brightway is a nonprofit corporation whose goal is to build a Christian
youth sports camp. Daryle Griffin is the president and CEO of Brightway.
        {¶3}     Brightway hired Trehar in September 2009, as a freelancer doing
promotional work. In May 2010, Brightway hired Trehar as a full-time employee at a
salary of $50,000. Her job duties included writing grant proposals, updating the web
site, designing the newsletter, designing brochures and fliers, planning events,
attending meetings with Griffin, and attending various functions.
        {¶4}     In the spring of 2012, Trehar and her boyfriend decided to move in
together. According to Trehar, she informed Griffin of her planned move in mid-May
2012, and Griffin congratulated her. Also according to Trehar, she and Griffin again
discussed her move on June 1, and June 8, 2012. During the June 8 discussion,
Trehar states, Griffin approved her not attending a work function so that she could
help her boyfriend with moving into their new home.
        {¶5}     On June 19, 2012, Trehar, Griffin, and Cathy Takach, another
Brightway employee, attended a lunch together. During the lunch, the subject of
Trehar’s new home came up. Griffin claims this was the first he heard of Trehar
moving in with her boyfriend.
        {¶6}     In a letter dated July 13, 2012, Brightway’s board of directors informed
Trehar:

                 [G]iven that Brightway is a Christian organization at its very core,
        we must hold ourselves and our employees to the highest ethical
        standards.      Our concern, as you are well aware, is how your living
        arrangement will be perceived by those whom we hope to impact, as
        well as those from whom we seek support. We simply cannot reconcile
        our affections and appreciation for you with our belief that living
        together outside marriage is forbidden by the Scriptures.
                                                                                 -2-


              Accordingly, we have opted to suspend you for the month of
      July.   We will, however, continue to pay your salary and health
      insurance on schedule. The suspension will allow you time to decide, if
      you have not already done so, whether to remain where you are living
      or to make other arrangements.
              Should     you   choose    to   remain   in   your   current   living
      arrangements, your employment with Brightway would be terminated,
      effective July 31, 2012. * * * Should you choose to move out or marry
      your employment would resume on August 1, 2012.

(Trehar Dep. Ex. C).
      {¶7}    Trehar did not change her living arrangement.              Consequently,
Brightway fired her on July 31, 2012.
      {¶8}    Trehar filed a complaint against Brightway asserting a claim for
promissory estoppel.     She asserted that Brightway, through Griffin’s actions and
words, represented to her that she would not be fired for moving in with her boyfriend
and she relied on his representations to her detriment. Brightway filed a counterclaim
for conversion.
      {¶9}    Brightway then filed a motion for summary judgment on Trehar’s
complaint asserting there was no evidence that it made any specific promises of job
security or continued employment and, therefore, Trehar’s claim must fail. Trehar
filed a response arguing there was a genuine issue of material fact as to whether
Brightway knew and approved of Trehar’s living arrangement.
      {¶10} The trial court held a hearing on Brightway’s motion.            During the
hearing, Brightway brought up this court’s decision in Dunn v. Bruzzese Jr., 172 Ohio
App.3d 320, 2007-Ohio-3500, 874 N.E.2d 1221 (7th Dist.), which the trial court stated
it had not read.    At the conclusion of the hearing, the trial court stated there was a
genuine issue of material fact as to whether there was a promise of continued
employment.       Therefore, the court stated it was going to overrule the summary
judgment motion.
                                                                             -3-


      {¶11} Two days later, however, the trial court issued its judgment entry which
granted Brightway’s summary judgment motion. The court relied on Dunn, 172 Ohio
App.3d 320. The court noted that Trehar was an employee at-will. It reasoned that
Trehar did not allege any statements by Brightway that amounted to a clear and
unambiguous promise of continued employment. Therefore, it found she could not
meet the elements required for promissory estoppel.       After the court granted its
motion for summary judgment, Brightway dismissed its counterclaim.
      {¶12} Trehar filed a timely notice of appeal on May 27, 2014.
      {¶13} Trehar now raises a single assignment of error, which states:

             THE TRIAL COURT ERRED WHEN IT GRANTED BRIGHTWAY
      CENTER, INC.’S MOTION FOR SUMMARY JUDGMENT.

      {¶14} Trehar argues she presented evidence that Brightway represented to
her that she could move in with her boyfriend and then fired her when she relied on
those representations and did so. She claims she was not required to show an
explicit promise in order to establish a promissory estoppel claim. She asserts even
silence on the part of an employer can suffice. Trehar points to evidence that Griffin
did not tell her she would be fired for moving in with her boyfriend, he congratulated
her on her move, and he granted her request for time off to help her boyfriend move
into their new home. These facts, when viewed in the light most favorable to her,
Trehar argues create a genuine issue of material fact as to whether Brightway was
estopped from firing Trehar for moving in with her boyfriend.
      {¶15} In reviewing a trial court's decision on a summary judgment motion,
appellate courts apply a de novo standard of review.        Cole v. Am. Industries &
Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998).
Thus, we shall apply the same test as the trial court in determining whether summary
judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary
judgment if no genuine issue of material fact exists and when construing the
evidence most strongly in favor of the nonmoving party, reasonable minds can only
                                                                              -4-


conclude that the moving party is entitled to judgment as a matter of law. State ex
rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).            A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
      {¶16} Ohio is an employment at-will state. Dohme v. Eurand Am., Inc., 130
Ohio St. 3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶11.             Either party to an
employment-at-will agreement may terminate the employment relationship for any
reason that is not contrary to law. Mers v. Dispatch Printing Co., 19 Ohio St.3d 100,
483 N.E.2d 150 (1985). Stated another way, an employee can be terminated for
good cause, bad cause, or no cause at all. Phung v. Waste Mgt., Inc., 23 Ohio St.3d
100, 491 N.E.2d 1114 (1986).
      {¶17} Promissory estoppel is an exception to the employment at-will doctrine.
Mers, at paragraph three of the syllabus. The elements necessary for a promissory
estoppel claim are (1) a clear and unambiguous promise, (2) reasonable and
foreseeable reliance by the party to whom the promise is made, and (3) injury by the
reliance by the party claiming estoppel. Landpor Contrs., Inc. v. C&D Disposal Tech.
L.L.C., 7th Dist. No. 11-JE-28, 2013-Ohio-1436, ¶34.
      {¶18} “A clear and unambiguous promise is one that the promisor would
expect to induce reliance.” Ringhand v. Chaney, 12th Dist. Nos. CA2013-09-072,
CA2013-09-076     2014-Ohio-3661, ¶20, citing McCroskey v. State, 8 Ohio St.3d 29,
30, 456 N.E.2d 1204 (1983). Praise with respect to job performance and discussion
of future career development, without more, will not modify an employment-at-will
relationship. Helmick v. Cincinnati Word Processing, Inc., 45 Ohio St. 3d 131, 543
N.E.2d 1212 (1989), paragraph three of the syllabus. Instead, the claimant must
demonstrate detrimental reliance on specific promises of job security. Id. Moreover,
a promise of future benefits or opportunities without a specific promise of continued
employment is not enough to support a claim for promissory estoppel.          Wing v.
                                                                              -5-


Anchor Media, Ltd. of Texas, 59 Ohio St. 3d 108, 110-111, 570 N.E.2d 1095 (1991).
       {¶19} According to Trehar, she first told Griffin of her plans to move in with
her boyfriend on May 17, 2012. (Trehar Dep. 33). Trehar stated that when she told
Griffin of her plans, he congratulated her on her upcoming move.           (Answer to
Interrogatory 8). Griffin asked her if she was telling people, and Trehar responded
that she had not planned a big announcement. (Answer to Interrogatory 8). Griffin
told Trehar he would respect her privacy. (Answer to Interrogatory 8).
       {¶20} Trehar stated that she again discussed her move with Griffin on June 1,
2012, when she told him she and her boyfriend were going to begin moving furniture
into their home that evening. (Answer to Interrogatory 8).
       {¶21} The next time the move came up, Trehar stated, was on June 8, 2012,
when Griffin approved Trehar not attending a work-related event the following day so
that she could assist her boyfriend in moving into their new home.         (Answer to
Interrogatory 8).
       {¶22} Brightway, on the other hand, asserts it had no knowledge that Trehar
had moved in with her boyfriend until June 19, 2012. (Griffin Dep. Vol. I, 24). Griffin
stated he was at a lunch meeting with Trehar and Cathy Takach. (Griffin Dep. Vol. I,
24).   Trehar and Takach were discussing the living arrangements with Trehar’s
boyfriend and his children and it then hit him “like a ton of bricks” that Trehar had
moved in with her boyfriend. (Griffin Dep. Vol. I, 24). Griffin stated that he had no
knowledge of Trehar’s move prior to that day. (Griffin Dep. Vol. I, 29). He stated that
Trehar had mentioned that her boyfriend was moving but he did not know she was
moving in with him. (Griffin Dep. Vol. I, 34).
       {¶23} The evidence demonstrated, however, that on May 29, 2012, Trehar
sent an email to several people, including Griffin, referencing her “moving this
weekend.” (Trehar Dep. 29, Ex. B). And on June 2, 2012, Trehar sent an email to
Griffin where she told him “I’m moving tomorrow and have been moving stuff every
night this week.” (Trehar Dep. Ex. H). Additionally, approximately one month before
Trehar’s move, she told Takach about it. (Takach Dep. 18). Takach asked Trehar if
                                                                                 -6-


Griffin knew, and Trehar told her that he did. (Takach Dep. 18).
       {¶24} Griffin is Brightway’s president and CEO. (Griffin Dep. Vol. I, 11). He is
the person at Brightway with responsibility for day-to-day leadership and direction of
the employees. (Griffin Dep. Vol. II, 14). Griffin stated that Brightway’s employees
are to rely on his statements and promises. (Griffin Dep. Vol. II, 16).
       {¶25} Brightway relies heavily on its employee handbook and the fact that
Trehar was an employee at-will.          Brightway’s employee handbook contains an
“Employment at Will Policy” stating:

              Brightway Center does not offer tenured or guaranteed
       employment. Either Brightway Center or the employee can terminate
       the employment relationship at any time, with or without cause, with or
       without notice. This is called Employment At Will.
              This employment at will relationship exists regardless of any
       other written statements or policies contained in this Handbook or any
       other Brightway Center documents or any verbal statements to the
       contrary.

(Trehar Dep. Ex. F, p. 15).
       {¶26} The handbook also contains a provision stating:              “Only a written
agreement, signed by the Chief Executive Officer of Brightway Center, can change
the “at will” nature of the employment of any individual.” (Trehar Dep. Ex. F, p. 6).
Trehar signed the handbook and was very familiar with it. (Trehar Dep. 50-51).
       {¶27} The handbook does little more than re-emphasize that Trehar was an
employee-at will. And an exception can be made to employment at-will by means of
promissory estoppel. Moreover, if in fact promissory estoppel exists in this case it
would not alter Trehar’s status as an employee at-will in all other respects. Brightway
could still fire her for any other reason.
       {¶28} At the motion hearing, the trial court stated it would deny Brightway’s
summary judgment motion. But two days later, when it entered its judgment, the
                                                                              -7-


court granted summary judgment. In doing so, the trial court relied on this court’s
decision in Dunn v. Bruzzese, 172 Ohio App.3d 320.
      {¶29} In that case, Dunn was the former judicial secretary to Judge Bruzzese.
Dunn worked for Judge Bruzzese for almost 20 years during which time the judge
made comments that he always wanted Dunn to be his secretary and complimented
her work.   But Judge Bruzzese fired Dunn after growing tired of her periods of
inefficient work and her complaints. Dunn filed a complaint against Judge Bruzzese
raising claims for age discrimination, breach of implied contract, and promissory
estoppel. The trial court granted summary judgment in favor of Judge Bruzzese and
Dunn appealed.
      {¶30} On appeal, this court began its analysis by noting that Dunn was an at-
will employee. Id. at ¶19. We went on to find that Judge Bruzzese did not make a
clear and unambiguous promise to Dunn as was necessary to support a claim for
promissory estoppel. Id. at ¶¶21-22. Analyzing the evidence, we found:

             In this case, Dunn has failed to demonstrate a genuine issue
      regarding whether Judge Bruzzese clearly and unambiguously
      promised that continued employment. The statements that Dunn relies
      upon are all either praise with respect to job performance, discussion of
      future career development, or promises of future opportunities. For
      instance, before he was elected to the Court of Common Pleas, Judge
      Bruzzese told Dunn that “he never wanted her to quit,” that he was
      going to take Dunn to the court with him if he became a judge and pay
      her what she was worth, that he “always” wanted Dunn working for him,
      that she was “the greatest secretary ever” and he was looking forward
      to “10 (or 20)” more years with her, that “[h]e never wanted anything to
      happen that [Dunn] didn't work for him.” Shortly after his election, Judge
      Bruzzese told Dunn, “[T]his is where we're going to retire from.” At a
      later point in time, Judge Bruzzese was considering leaving the bench,
      but told Dunn's mother that her daughter would be okay because,
                                                                                 -8-


       “Where I go, Drema goes. The day that Drema retires is the day that I
       retire.”
                  Since none of these statements are clear, unambiguous
       promises of continued employment, Dunn cannot prove a claim of
       promissory estoppel and that the trial court properly granted summary
       judgment to Judge Bruzzese on this issue.

Id. at ¶¶ 24-25.
       {¶31} The case at bar, however, is distinguishable from Dunn.            In Dunn,
Judge Bruzzese made general statements that this court characterized as “praise
with respect to job performance, discussion of future career development, or
promises of future opportunities.” In this case, however, there is evidence Griffin
silently assented to Trehar moving in with her boyfriend and his silence can be
construed as a promise that no adverse employment action would come as a result
of her move. Other cases have stated that silence can be sufficient to establish a
promissory estoppel claim.
       {¶32} For instance, in Hedrick v. Ctr. for Comprehensive Alcoholism
Treatment, 7 Ohio App. 3d 211, 214, 454 N.E.2d 1343 (1st Dist.1982), the First
District, quoiting the Ohio Supreme Court stated:

       Promissory or equitable estoppel arises when “ * * * ‘one, by his acts,
       representations, or admissions, or by his silence when he ought to
       speak out, intentionally or through culpable negligence induces another
       to believe certain facts to exist, and such other rightfully relies and acts
       on such belief, so that he will be prejudiced if the former is permitted to
       deny the existence of such facts. * * * ’ * * *.” London & Lancashire
       Indemnity Co. of America v. Fairbanks Steam Shovel Co. (1925), 112
       Ohio St. 136, 152, 147 N.E. 329 (quoting 21 C.J. 1113-1114, Estoppel,
       Section 116).
                                                                              -9-


(Emphasis added.)
      {¶33} And the Sixth District has observed:

      In essence, the expression of estoppel in the form of a rule is that one
      party will not be permitted to deny that which, by his words, his acts, or
      his silence (when there was an obligation to speak), he has induced a
      second party reasonably and in good faith to assume and rely upon to
      that party's prejudice or pecuniary disadvantage.

(Emphasis added.) First Fed. Sav. & Loan Ass'n of Toledo v. Perry's Landing, Inc.,
11 Ohio App. 3d 135, 145, 463 N.E.2d 636 (6th Dist.1983), citing 42 Ohio
Jurisprudence 3d 56, 62-66, Estoppel, Sections 36-46. See also, Nilavar v. Osborn,
127 Ohio App. 3d 1, 17, 711 N.E.2d 726 (2d Dist.1998).
      {¶34} We must construe the facts of this case in the light most favorable to
Trehar.    There are material facts in dispute.        According to Trehar, Griffin
congratulated her on her move with her boyfriend, Griffin granted Trehar permission
to miss a work function in order to move, and Griffin was silent on the issue of Trehar
moving in with her boyfriend. It is possible that these actions and inactions might be
construed as a promise that Trehar would not be fired for her cohabitation and that
Trehar relied on Griffin’s silence on the issue. Reasonable people could conclude
that if Griffin intended that Trehar’s cohabitation would result in her termination, he
should have spoken.
      {¶35} In a promissory estoppel claim, the employer’s subjective interpretation
of the alleged promise does not control. Mers at 104-105. Instead, “the employer's
representation is to be determined by what the ‘promisor should reasonably expect’
the employee to believe the promise means if expected action or forbearance
results.” (Emphasis sic.); Id. at 105. Assuming as true that Trehar told her boss she
was going to move in with her boyfriend and he congratulated her instead of
objecting to the move or advising her she could suffer adverse employment
consequences, it may be construed as reasonable for her to believe she would not
                                                                                  - 10 -


be fired for cohabitating with her boyfriend.
       {¶36} Griffin is Brightway’s president and CEO. He stated that his employees
should rely on his statements and promises. In construing the evidence in Trehar’s
favor, reasonable people could conclude that Trehar’s boss and the president of the
company induced Trehar to believe that no adverse employment action would result
from her move.     Thus, Trehar’s promissory estoppel claim should have survived
summary judgment.
       {¶37} This is not to say that Trehar will necessarily prevail at trial. Genuine
issues of material fact exist in this case. The parties dispute both the timing of the
information to Griffin and its impact on him. When exactly Griffin learned of Trehar’s
intended move and his actions in response to this information are questions of fact
for a jury. Therefore, the trial court erred in granting Brightway’s motion for summary
judgment.
       {¶38} Accordingly, Trehar’s sole assignment of error has merit.
       {¶39} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded to the trial court for further proceedings.

Waite, J., concurs.
Robb, J., concurs.
