Rosatone v. GTE Sprint Communications

761 S.W.2d 670, 3 I.E.R. Cas. (BNA) 1815, 1988 Mo. App. LEXIS 1455, 1988 WL 111812
CourtMissouri Court of Appeals
DecidedOctober 25, 1988
Docket54566
StatusPublished
Cited by15 cases

This text of 761 S.W.2d 670 (Rosatone v. GTE Sprint Communications) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosatone v. GTE Sprint Communications, 761 S.W.2d 670, 3 I.E.R. Cas. (BNA) 1815, 1988 Mo. App. LEXIS 1455, 1988 WL 111812 (Mo. Ct. App. 1988).

Opinion

REINHARD, Judge.

Plaintiff appeals from an order sustaining defendants’ motion to dismiss for failure to state a cause of action. We affirm.

Plaintiff filed a seven count petition on January 16, 1987, but only Counts VI and VII pertain to defendants herein. Defendants responded with a motion to dismiss. The trial court granted the motion but allowed plaintiff to amend his petition.

In his amended Count VI, plaintiff alleged the following facts: On May 12, 1986, he began employment negotiations with defendants who were engaged in a joint venture; in the course of the negotiations he disclosed to defendants an unfavorable separation from a previous employer, MCI Telecommunications; defendants offered plaintiff a position on May 23,1986, and he accepted; defendants were aware plaintiff was then employed by Citicorp and they knew or reasonably should have expected plaintiff would be required to resign in order to accept a position with them; plaintiff did, in fact, resign from Citicorp on June 3, 1986; and on June 9, 1986, defendants repudiated the employment contract.

Amended Count VII incorporated the allegations in amended Count VI and added the following: relying on defendants’ promise of employment, plaintiff resigned his position at Citicorp thereby forfeiting salary, bonuses and various benefits; and at defendants’ request, he made a trip to Dallas, Texas thereby incurring further expenses.

The trial court dismissed both amended counts (VI and VII) for failure to state a cause of action, and designated its order final for purposes of appeal. On appeal, plaintiff argues that his allegations in Count VI were sufficient to plead an exception to the employment at will doctrine, namely consideration independent and additional to the services he was to perform for defendants. Plaintiff also argues he successfully pled in Count VII a cause of action based on promissory estoppel.

In reviewing a dismissal for failure to state a cause of action, we determine whether the facts pleaded and reasonable inferences to be drawn from the allegations, when viewed in the light most favorable to the plaintiff, demonstrate any basis for relief. We accept as true all facts averred in the petition, construe all aver-ments liberally and favorably to the plaintiff and determine whether they invoke principles of substantive law upon which relief can be granted. San Luis Trails Association v. E.M. Harris Building Co., 706 S.W.2d 65, 67 (Mo.App.1986).

Because plaintiff does not allege an employment contract specifying a definite term, he must be considered an employee-at-will. See Dake v. Tuell, 687 S.W. 2d 191 (Mo. banc 1985), Maddock v. Lewis, 386 S.W.2d 406 (Mo.1965). In Count VI plaintiff seeks to remove himself from the operation of the employment at will doctrine by alleging consideration in addition to the services he was to perform for defendants. Although under certain circumstances courts have accepted this theory, Schonwald v. Burkart Manufacturing *672 Co., 356 Mo. 435, 202 S.W.2d 7, 14 (1947) (essence of contract was disclosure of plaintiff’s manufacturing process, not the services to be performed by him), Harrington v. Kansas City Cable Railway Company, 60 Mo.App. 223, 228 (1895) (plaintiff in addition to services to be performed released valuable cause of action), the facts as alleged by plaintiff do not warrant its application here. The only additional consideration plaintiff claims he performed for defendants was his resignation from his former employer. This is, however, the sort of consideration normally associated with the performance of services for an employer, and as such does not remove plaintiff’s at will status. In rejecting a similar argument, the court in Minter v. Tottle-Campbell Dry Goods Co., 173 S.W, 4, 8 (Mo.App.1915) stated:

The effort of plaintiff to show an additional consideration passing from him to defendant was abortive, since it shows that he merely abandoned other activities and interests to enter into the service of defendant — a thing almost every desirable servant does upon entering a new service, but which, of course, cannot be regarded as constituting any additional consideration to the master.

This logic applies to the case at bar and consequently the trial court did not err in dismissing amended Count VI.

Plaintiff next contends that the resignation he claimed constituted additional consideration in Count VI also constituted detrimental reliance in Count VII. This theory, one of promissory estoppel, has been resorted to by courts to enforce an otherwise unenforceable promise. See e.g. Katz v. Danny Dare, Inc., 610 S.W.2d 121 (Mo.App.1980), but see Meinhold v. Huang, 687 S.W.2d 596 (Mo.App.1985).

While plaintiff has alleged detrimental reliance on defendants’ promise of employment, he failed to allege reliance on a promise of employment for a definite term. Thus plaintiff has merely alleged reliance on a promise of employment at will. Such an allegation is insufficient to state a cause of action for wrongful discharge. Albers v. Cardinal Glennon Children’s Hospital, 729 S.W.2d 519, 523 (Mo.App.1987), Tippit v. Jepco, Inc., 726 S.W.2d 877, 878 (Mo. App.1987).

Plaintiff seeks to distinguish these cases by pointing out that they involved employees who had already commenced their employment, while this case involves an unfulfilled promise to hire plaintiff in the future. This argument, once made, has been rejected:

If an employee, under an oral contract of employment for an indefinite period, is without remedy when fired without reason, one day or one week after commencing work, is it logical to hold he is entitled to damages if the employer refuses to allow him to commence work at all under the agreement? We think not....
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.... To allow recovery of damages for breach of an oral contract of employment for an indeterminate period, either before or after entry thereupon, would be to overrule a long line of decisions which hold exactly the opposite.

Morsinkhoff v. DeLuxe Laundry & Dry Cleaning Co., 344 S.W.2d 639, 643-644 (Mo.App.1961).

Plaintiff attempts to distinguish Mor-sinkhoff by arguing that the recovery which was contemplated in that case was damages based on an unenforceable contract “reanimated” by the doctrine of promissory estoppel. Plaintiff contends, citing the recent case of Bower v. AT & T Technologies, Inc.,

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761 S.W.2d 670, 3 I.E.R. Cas. (BNA) 1815, 1988 Mo. App. LEXIS 1455, 1988 WL 111812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosatone-v-gte-sprint-communications-moctapp-1988.