Slate v. Saxon, Marquoit, Bertoni & Todd

999 P.2d 1152, 166 Or. App. 1, 16 I.E.R. Cas. (BNA) 581, 2000 Ore. App. LEXIS 364
CourtCourt of Appeals of Oregon
DecidedMarch 8, 2000
Docket9609-06865; CA A99631
StatusPublished
Cited by10 cases

This text of 999 P.2d 1152 (Slate v. Saxon, Marquoit, Bertoni & Todd) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slate v. Saxon, Marquoit, Bertoni & Todd, 999 P.2d 1152, 166 Or. App. 1, 16 I.E.R. Cas. (BNA) 581, 2000 Ore. App. LEXIS 364 (Or. Ct. App. 2000).

Opinions

[3]*3DEITS, C. J.

In this breach of contract action, plaintiff appeals from a judgment granting summary judgment in favor of defendants. On appeal, plaintiff argues that defendants breached an agreement to hire him and, in the alternative, that he is entitled to recover damages under a promissory estoppel theory. We affirm.

On review of a summary judgment, we determine whether there are any genuine issues of material fact and, examining the evidence in the light most favorable to the nonmoving party, whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997).

The facts in this case do not appear to be in dispute. Plaintiff worked as a law clerk for the defendant attorneys, beginning in June 1992. In December 1993, apparently after plaintiffs clerkship was completed, defendants offered him a position as an associate attorney. The offer was premised on the condition that plaintiff take and pass the Oregon bar examination. The offer also was contingent on the renewal of defendants’ juvenile court and indigent defense contracts. The offer was not for a fixed term and did not contain a “termination only for cause” provision. Plaintiff accepted defendants’ offer and took the February 1994 Oregon bar examination. Plaintiff passed the bar examination, and defendants’ juvenile court and indigent defense contracts were renewed. In March 1994, defendants advised plaintiff that they were terminating the planned employment arrangement, although plaintiff had not yet begun working for them.

Plaintiff sued defendants, seeking relief for the termination. Plaintiff contends that, because he had accepted defendants’job offer, he took the Oregon bar when he otherwise might not have and did not seek other employment opportunities. Defendants moved for summary judgment. The trial court granted the motion and plaintiff appeals, assigning error to the ruling. We hold that defendants are entitled to judgment as a matter of law, because plaintiff has no right of action under either of his alternative theories.

[4]*4Subject to “some contrary agreement” or to other limitations that neither party suggests are present here, an employment contract implicitly creates an “at will” arrangement that may be terminated by either the employer or the employee at any time, for any reason or for no reason. Lewis v. Oregon Beauty Supply Co., 302 Or 616, 620, 733 P2d 430 (1987). Such a “termination by the employer or employee is not a breach of contract.” Nees v. Hock, 272 Or 210, 216, 532 P2d 512 (1975). The parties agree that the contract of employment between them was an “at will” agreement under the foregoing principles. Plaintiff argues that he nevertheless has a viable breach of contract claim against defendants, because:

“Defendants’ termination of their contract with plaintiff was a breach of an agreement for employment, not a breach of the employment-at-will contract itself. Whether they could or would have fired him after he began working for them is not the issue. Plaintiff reasonably relied on defendants’job offer, and they had reason to know that he would change his plans and incur expenses based on that promise, which he did.”

It is unclear whether defendants accept plaintiffs thesis that there was or could be an “agreement for employment” that was somehow separate from the prospective “employment contract itself.”1 Be that as it may, the crux of defendants’ position is that, since they could terminate the employment itself at will, they also could “withdraw [their] offer of employment” at will, without incurring liability. Plaintiffs brief ably captures the essence of defendants’ argument, to which it then responds as follows:

“Defendants * * * argue that, as a matter of law, plaintiff cannot prevail on his breach of contract claim because defendants’ offer to plaintiff was for employment ‘at will.’ Defendants contend that it is illogical to allow an employee-at-will to recover damages if the employer terminates him [5]*5before he commences work because the employee could not recover contractual damages if he were fired one hour after beginning work. But * * * defendants’ logic does not hold water. The mere fact that defendants could have fired plaintiff at any time after hiring him does not absolve them of all liability for damages caused by their decision to breach their promise to employ him. Contrary to defendants’ assertion, it does matter whether defendants repudiated the contract before plaintiff commenced employment instead of firing him after he began.” (Emphasis plaintiffs.)

Although the question does not appear to have arisen before in any reported Oregon decision, there are numerous cases from other jurisdictions that deal with the actionability of an employer’s termination of an at will employment agreement before the employee has begun his or her performance of the job. Cases related to the issue are assembled in Tracy A. Bateman, Annotation, Employer’s State-Law Liability for Withdrawing, or Substantially Altering, Job Offer for Indefinite Period Before Employee Actually Commences Employment, 1ALR 5th 401 (1992). In relatively equivalent numbers, the courts deciding those cases have resolved the issue in both of the possible ways, with respect both to claims based on breach of contract and claims based on promissory estoppel.

For purposes of a case like this one, which presents the issues in fairly pristine form (i.e., there are no variations from the at will model in the terms of the parties’ agreement, and the only claimed consequences of defendants’ action is that plaintiff secured his license to practice law in Oregon rather than elsewhere and did not seek alternative employment while he thought he had this job), we agree with the conclusion of the courts that have held that there is no cause of action in these circumstances.

In our view, it would be completely illogical to hold that an employer is exposed to liability if it invokes the right to terminate at will before the employee begins working but is absolved from liability if it defers doing so until immediately after the employee first reports for work. In addition to being illogical, such a holding would also be most undesirable in its consequences. It would serve the interests of no one— least of all new professional persons in search of work — to [6]*6discourage putative employers from discharging them earlier rather than later, under circumstances where there is no possibility that an actual employment relationship will ever exist. To those who might say that we should not base our decision on social or policy concerns of that kind, as distinct from the terms of the parties’ agreement, there is a simple answer: Our decision is completely consistent with the terms of the contract. Conversely, the parties and courts that have urged or acted on the opposite view of desirable policy have generally found it necessary to devise the fiction that one contract is really two in order to attain their objective.

Even given that fiction, however, plaintiffs argument does not succeed. His distinction between a contract for employment and a contract of employment does not alter the fact that, both before the time of performance and after, whatever contractual relationship there was between the parties was one that related to plaintiffs employment by defendants.

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Slate v. Saxon, Marquoit, Bertoni & Todd
999 P.2d 1152 (Court of Appeals of Oregon, 2000)

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Bluebook (online)
999 P.2d 1152, 166 Or. App. 1, 16 I.E.R. Cas. (BNA) 581, 2000 Ore. App. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slate-v-saxon-marquoit-bertoni-todd-orctapp-2000.