Hansen v. Life-Line

Robert B. Hansen,
Plaintiff and Appellant,

v.

Life-Line, a non-profit corporation,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981783-CA

F I L E D
June 17, 1999
1999 UT App 201
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Third District, Salt Lake Department
The Honorable Judith S. Atherton

Attorneys:
Robert B. Hansen, Salt Lake City, Appellant Pro Se
Gregory J. Sanders, Salt Lake City, for Appellee

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Before Judges Wilkins, Greenwood, and Billings.

PER CURIAM:

Appellant appeals the trial court's summary judgment in favor of appellee, asserting that his affidavit was sufficient to create an issue of material fact as to whether he was an at-will employee. We affirm.

Although appellant correctly notes that "'it only takes one sworn statement under oath to dispute the averments on the other side of the controversy and create an issue of fact[,]'" Draper City v. Estate of Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (quoting Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975)), he ignores the mandate that the sworn affidavit "set forth specific facts showing that there is a genuine issue for trial." Utah R. Civ. P. 56(e) (emphasis added). In order to create an issue of fact as to whether he was an at-will employee, appellant must allege specific facts which, if true, would overcome the strong presumption in Utah law that he was an at-will employee, such as facts that affirmatively show that an express or implied agreement existed that extended the employment for a specific duration or prohibited appellee from terminating the employment without cause. See Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 400 (Utah 1998); Sorenson v. Kennecott-Utah Copper Corp., 873 P.2d 1141, 1145 (Utah Ct. App. 1994).(1) The facts alleged must manifest "the employer's intent that is communicated to the employee and sufficiently definite to operate as a contract provision [such that] the employee can reasonably believe that the employer is making an offer of employment other than employment at-will." Kirberg v. West One Bank, 872 P.2d 39, 41 (Utah Ct. App. 1994).

Appellant has failed to allege facts demonstrating that appellee communicated any intent, let alone a sufficiently definite intent to operate as an express or implied contract provision, to offer employment to appellant other than at-will employment, and thus has failed to overcome the presumption of at-will employment and create a genuine issue of fact. Appellant merely alleges in his affidavit that he agreed to work twenty hours per week for nine dollars per hour so long as he was "useful" to appellee. There is no evidence that he was hired for a specific duration nor of an agreement by appellee to terminate him only if he became too ill to work. Appellant does not point to any definite and affirmative acts of appellee demonstrating an intent to modify the at-will employment contract.

Based on the foregoing, no reasonable jury could find that an implied contract modifying the at-will employment relationship existed. Accordingly, summary judgment is affirmed.
 

______________________________
Michael J. Wilkins,
Presiding Judge
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Judith M. Billings, Judge

1. The existence of an implied agreement is generally a factual question, however, the court has "'the power to decide whether, as a matter of law, a reasonable jury could find that an implied contract exists.'" Ryan, 972 P.2d at 401 (quoting Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 306 (Utah 1992)). See also Kirberg v. West One Bank, 872 P.2d 39, 41 (Utah Ct. App. 1994) (if evidence is such that no reasonable jury could conclude employer agreed to limit right to terminate employee, issue is one of law appropriate for summary judgment).