This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-15

Willis Daniel Webster,

Appellant,

vs.

Jostens, Inc.,

Respondent.

Filed September 10, 1996

Affirmed

Willis, Judge

Hennepin County District Court

File No. 9410822

Daniel E. Warner, Warner Law Office, P.A., 3445 Washington Drive, Suite 204, Eagan, MN 55122 (for Appellant)

R. Scott Davies, Donna J. Bailey, Briggs and Morgan, 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

Willis, Judge

Willis Webster appeals from the grant of summary judgment to Jostens, Inc., arguing that (1) genuine issues of material fact exist regarding his promissory estoppel and fraudulent misrepresentation claims and (2) the statute of frauds does not bar this action. We affirm.

FACTS

In late 1992, appellant Willis Webster, then a New Jersey resident, learned that his wife would have to move to Minneapolis to maintain her employment. Webster and his wife decided that she would take the position and that he would attempt to sell his photography business and find employment in the Twin Cities.

Webster began to look for a buyer for his photography business in New Jersey and to look for a job in Minnesota. In the course of his job search, Webster contacted a representative of respondent Jostens, Inc., regarding employment; he also asked if Jostens would be interested in buying his New Jersey business. In January 1993, the parties discussed the possibility that Webster would manage Jostens' Minneapolis Service Center, which was a new concept and was an attempt to make Jostens' unprofitable photography division more competitive.

In April 1993, Jostens offered Webster a position managing the Minneapolis Service Center and gave him a job description that described a non-exclusive list of duties that the position required. Webster also signed a job application that, in part, provided that his employment could be terminated at any time and for any reason by either party. However, Webster maintains that at the time he accepted the position he knew that Jostens' photography division was not profitable and, therefore, he sought, and was given, assurances that he would be given a reasonable amount of time to make the service center successful.

In July 1993, after selling his home and business in New Jersey, Webster reported to work at the Minnesota Service Center.[1] Webster contends that the duties he was actually to perform did not precisely match those identified in his job description, although he filed an operations status report in August 1993 that reviewed responsibilities itemized in his job description. In September 1993, after working for Jostens for approximately three months, Webster was terminated, along with approximately 3000 Jostens employees nationwide, because of continued poor performance of the photography division.

Webster sued Jostens, claiming promissory estoppel on the ground of an alleged promise of long-term employment and fraudulent misrepresentation regarding the nature of his position and job security. Jostens moved for summary judgment, and the district court granted the motion. This appeal followed.

D E C I S I O N

Summary judgment is appropriate where there is "no genuine issue as to any material fact and [if] either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. The function of a reviewing court is to determine whether there are any genuine issues of fact for trial and whether the district court erred in applying the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn. 1979). On appeal, this court must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.

Employment contracts that "do not specify whether employment is terminable with or without cause are construed to be terminable at will." Harris v. Mardan Business Sys., 421 N.W.2d 350, 354 (Minn. App. 1988), review denied (Minn. May 18, 1988). "An employee hired for an indefinite time may be terminated at any time with or without cause." Id. However, the doctrine of promissory estoppel is an exception to the general rule and can restrict an employer's right to terminate an employee without cause. Id. A claim for promissory estoppel is proved by establishing the following elements:

A promise which the promisor should reasonably expect to induce action or forbearance * * * on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

Grouse v. Group Health Plan, 306 N.W.2d 114, 116 (Minn. 1981) (citing Restatement of Contracts § 90 (1932)).

Webster claims that the grant of summary judgment was error because there was sufficient evidence in the record to support his contention that he moved to Minneapolis in reliance on assurances of long-term employment. We disagree.

Our review of the record leads us to conclude that Webster offered no evidence that Jostens provided him with a "clear and definite" promise of long-term employment sufficient to support a promissory estoppel claim. In his deposition, Webster admits Jostens did not tell him he would have a position for a particular length of time or that Jostens intended to keep the service center open until the photography division became profitable. The only evidence Webster provides regarding promises of long-term employment is that his discussions with Jostens often concerned future events. Webster has not produced evidence that his position with Jostens was anything other than at-will employment, and the district court thereby properly granted summary judgment on Webster's promissory estoppel claim. See Ruud v. Great Plains Supply, 526 N.W.2d 369, 372 (Minn. 1995) (holding that statement made to employee that "[g]ood employees are taken care of" and "[y]ou are considered a good employee" and that he would be given a "similar position" elsewhere in the organization did not support promissory estoppel claim of employee who sought assurances that he would maintain a position within the company); see also Dumas v. Kessler & Maguire Funeral Home, 380 N.W.2d 544, 548 (Minn. App. 1986) (holding that employer's statement that he and employee would "retire together" was not a statement sufficient to support a promissory estoppel claim).

II.

Webster also contends that the district court erred by granting summary judgment on his fraudulent misrepresentation claim. He asserts that Jostens made misrepresentations both with regard to Webster's job duties and the security of his employment.

To establish a claim of fraudulent misrepresentation, a plaintiff must show that the defendant:

(1) made a representation (2) that was false (3) having to do with a past or present fact (4) that is material (5) and susceptible of knowledge (6) that the representor knows to be false or is asserted without knowing whether the fact is true or false (7) with the intent to induce the other person to act (8) and the person in fact is induced to act (9) in reliance on the representation (10) that the plaintiff suffered damages (11) attributable to the misrepresentation.

M.H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992). The alleged fraud must be related to a past or existing fact and cannot be based on statements of intentions, unless the promisor makes a misrepresentation as to the promisor's present intent. Belisle v. Southdale Realty Co., 283 Minn. 537, 539-540, 168 N.W.2d 361, 363-64 (1969).

"'In order to survive the pleading stage, a claimant must be able to point to specific, objective manifestations of fraudulent intent.'" Bower v. Jones, 978 F.2d 1004, 1012 (7th. Cir. 1992) (citation omitted). Webster has failed to offer evidence that Jostens fraudulently misrepresented the terms and conditions of Webster's employment. The record shows that during his three months with Jostens Webster performed many of the duties identified in his job description, and he presented no evidence that his duties were to be limited to those listed in the job description.

Webster's claim that he was fraudulently induced into accepting employment by a promise of long-term employment is also without merit. The record shows no evidence of a definite and enforceable promise by Jostens of long-term employment. See Friedman v. BRW, Inc., 40 F.3d 293, 297 (8th. Cir. 1994) (holding that letter indicating employee was offered "permanent employment" did not support fraud cause of action when employee was later terminated, because the letter did not create a definite and enforceable promise).

Nothing in the record indicates that Jostens misrepresented its intentions to Webster, either with regard to the nature of the job he was offered or with regard to job security.

III.

Finally, Webster argues that the district court incorrectly determined that the statute of frauds bars his claims. The statute of frauds provides:

No action shall be maintained, in either of the following cases, upon any agreement, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party charged therewith:

(1) Every agreement that by its terms is not to be performed within one year from the making thereof * * *.

Minn. Stat. § 513.01 (1994) (emphasis added).

Webster asserts that his employment was guaranteed for a year and a half, which he contends is the amount of time it would have taken to make Jostens' photography division profitable. During Webster's deposition the following exchange occurred:

Q: Up to this point and through the 23rd of April, Mr. Webster, had anyone at Jostens made a statement to you about the anticipated length of your employment with the company?

A: Well, as I said before, the only discussion we had on length was it was not going to be a one-season turnaround in the business. It was going to take us at least two seasons which would be like from the time frame that I was going to be starting would be like a year and a half that we were going to be just working to get it turned around.

It is clear that Webster expected his position with Jostens to last at least a year and a half. Because it would take more than one year to complete the terms and conditions of the alleged employment contract, we find that the district court's application of the statute of frauds was proper. See Roaderick v. Lull Engineering Co., 296 Minn. 385, 388, 208 N.W.2d 761, 763-64 (1973) (holding that employee's alleged oral contract that was to last at least two years was subject to statute of frauds because the terms would take more than one year to complete).

Affirmed.

[ ]1At the time he was discussing employment in the Twin Cities with Jostens, Webster also was negotiating with Jostens regarding the sale of his photography business in New Jersey. Webster eventually sold his business to Jostens, and he does not claim that the sale price was unfair.