Faivre v. Dex Corp. Northeast

913 N.E.2d 1029, 182 Ohio App. 3d 563
CourtOhio Court of Appeals
DecidedJune 9, 2009
DocketNo. 08AP-729
StatusPublished
Cited by7 cases

This text of 913 N.E.2d 1029 (Faivre v. Dex Corp. Northeast) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faivre v. Dex Corp. Northeast, 913 N.E.2d 1029, 182 Ohio App. 3d 563 (Ohio Ct. App. 2009).

Opinion

Klatt, Judge.

{¶ 1} Plaintiff-appellant, Patrick J. Faivre, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendant-appellee, DEX Corporation Northeast (“DEX”). For the following reasons, we reverse and remand.

{¶ 2} Beginning April 11, 2005, DEX employed Faivre as Senior Vice President and General Manager. According to DEX, Faivre performed his job poorly. On [567]*567September 6, 2006, Faivre met with Sheldon Malchicoff, Chief Executive Officer of Data Exchange Corporation (the parent corporation of DEX), Alan Kheel, Senior Vice President and General Counsel of Data Exchange Corporation, and Kimberly Cuff, Senior Vice President — Human Resources of Data Exchange Corporation. At the start of the meeting, Malchicoff informed Faivre that DEX was terminating his employment. After Malchicoff left the room, Kheel presented Faivre with a severance agreement that Cuff had already signed on DEX’s behalf. In the course of reviewing the severance agreement with Faivre, Kheel told Faivre that DEX was offering him three months of severance pay and benefit continuation. Faivre replied that he might need as much as a year to secure employment comparable to his position at DEX. Faivre, however, did not ask for additional severance and neither Kheel nor Cuff offered to extend the severance period beyond three months. Rather than immediately accepting or declining DEX’s offer of three months’ severance, Faivre took the severance agreement home to study it and review it with his attorney.

{¶ 8} In relevant part, the severance agreement stated:

In consideration of the general release contained in paragraph 2, below, and the provisions of paragraphs 3 through 11, below, DEX and you agree to the following:
1) a) Subject to subsections 1(b) and (c), below, DEX shall continue to employ you through November 30, 2007, (the “Termination Date”). It is understood that your employment with DEX from today through the Termination Date will be, for all purposes, a passive employment, and therefore you will not receive any promotions, salary increases, bonuses, profit shares or other employment related benefits, other than those enumerated below, and you will not be required to maintain an office or report to DEX or perform any work assignments, nor will you be entitled to reimbursement of any expenses normally afforded to other employees.
b) Your employment and the following salary and benefits (to the extent such benefits continue to be provided to other employees) will be continued until the Termination Date:
i) Salary of $150,000 per annum payable in bi-weekly amounts of $5,790.23 on DEX’s regular paydays and monthly car allowance of $650.

{¶ 4} While reading over the severance agreement for a second time, Faivre realized that it stated that his employment would continue until November 30, 2007, not November 30, 2006. Thus, pursuant to the terms of the severance agreement, DEX would provide Faivre 15 months of salary and benefits, not three months. As he later testified in his deposition, Faivre understood that DEX had offered him only three months of severance during the September 6, 2006 meeting. However, Faivre did not contact Kheel (or any other DEX or [568]*568Data Exchange Corporation employee) to inquire about the discrepancy between the offer made during the meeting and the terms of the severance agreement. Instead, Faivre simply signed the agreement and returned it to Kheel via certified mail.

{¶ 5} Upon receiving the executed severance agreement, Kheel reviewed it and realized for the first time that it contained a typographical error that extended Faivre’s severance to November 30, 2007, instead of November 30, 2006. Kheel immediately telephoned and e-mailed Faivre. When Kheel did not receive an answer, he sent Faivre a letter pointing out the error and enclosing a replacement page with the correct date. Kheel asked Faivre to initial the replacement page and return it. Kheel also advised Faivre that if he did not accept the corrected term, then DEX would consider the severance agreement rescinded due to mistake.

{¶ 6} Faivre received Kheel’s letter, but he did not initial and return the replacement page. Rather, on January 2, 2007, Faivre filed suit against DEX asserting claims for breach of contract, promissory estoppel, and declaratory judgment. After completing discovery, both Faivre and DEX moved for summary judgment. Faivre argued that the severance agreement constituted a binding contract that DEX breached when it refused to provide him 15 months of severance. Faivre also argued that the severance agreement was an integrated contract and, thus, DEX could not introduce any parol evidence regarding the alleged typographical error. DEX, in its motion for summary judgment, contended that it committed a unilateral mistake in drafting the severance agreement. Asserting that the parol-evidence rule did not bar extrinsic evidence of mistake, DEX urged the trial court to consider Kheel’s affidavit testimony that the severance agreement included a typographical error. Due to this unilateral mistake, DEX maintained that the trial court could rescind or reform the severance agreement, but it could not enforce it.

{¶ 7} In its March 20, 2008 decision and entry, the trial court concluded that the parol-evidence rule did not preclude it from considering extrinsic evidence of mistake. Reviewing the evidence submitted, the trial court found that DEX unknowingly presented Faivre with a severance agreement that contained a typographical error. Further, the trial court found that Faivre signed and submitted the severance agreement in an attempt to take advantage of DEX’s error. Based upon these facts, the trial court held that a unilateral mistake existed and that reformation was the proper remedy for the mistake. The trial court then reformed the severance agreement to reflect November 30, 2006, as the “Termination Date” provided in subsection 1(a).

{¶ 8} Because the record did not indicate whether DEX had paid severance to Faivre from September 6 to November 30, 2006, the trial court could not [569]*569determine whether DEX had breached the reformed severance agreement. Thus, the trial court denied DEX summary judgment to the extent that a breach-of-contract claim remained for the recovery of severance for the period of September 6 through November 30, 2006. In all other respects, the trial court granted DEX summary judgment, and concomitantly, it denied Faivre summary judgment.

{¶ 9} On August 11, 2008, after consulting with the parties, the trial court issued a judgment entry ordering DEX to perform in accordance with the reformed severance agreement and pay Faivre three months’ severance pay (i.e., $37,500) and car allowance (i.e., $1,950), plus postjudgment interest. Faivre now appeals from this judgment and assigns the following errors:

Whether the Trial Court erred to the prejudice of Appellant, Patrick Faivre, as a matter of law, in denying Plaintiffs Motion for Summary Judgment, via in [sic] its Entry of March 20, 2008 and in its Entry of August 11, 2008.
Whether the Trial Court erred to the prejudice of Appellant, Patrick Faivre, as a matter of law, in granting, in part, Defendant, DEX Corporation Northeast’s Motion for Summary Judgment, via its Entry of March 20, 2008, and in its Entry of August 11, 2008.

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Bluebook (online)
913 N.E.2d 1029, 182 Ohio App. 3d 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faivre-v-dex-corp-northeast-ohioctapp-2009.