distinguishing Eby by stating, “in dictum [Eby] erroneously cites Blaising [v. Mills, 374 N.E.2d 1166 (Ind.App.1978)] as holding that constructive fraud may be based upon promissory misrepresentations”
How later courts described this case
- distinguishing Eby by stating, “in dictum [Eby] erroneously cites Blaising [v. Mills, 374 N.E.2d 1166 (Ind.App.1978)] as holding that constructive fraud may be based upon promissory misrepresentations”
- characterizing consequences as "the kind of adverse consequences which normally attend the involuntary termination of someone's employment" in finding no independent consideration
- “Were [the holding in Kavanaugh ] not the rule the statute would be rendered virtually meaningless because the frustrated claimant would always assert an oral promise/agreement to defeat by means of estoppel the statute’s requirement for a written one.”
Written by the judges who cited it.
The opinion
CONOVER, Judge,
dissenting.
I concur in the result reached by the majority as to Missimi, Burge, and Kopani. However, I respectfully dissent as to the majority's holding regarding Kordos for the reasons stated in my dissent in Romack v. Public Service Co. of Indiana (1986), Ind.App., 499 N.E.2d 768 , trans. granted, dissent adopted in part, 511 N.E.2d 1024 .
The following facts here regarding Kor-dos parallel those in Romack:
*849 (a) Kordos was uniquely qualified for the specialized position Whiteco sought to fill, namely, theatrical producer, by virtue of his talent, education, training, and experience;
(b) Kordos did not seek employment with Whiteco. He was recruited by Whiteco with promises of a substantial salary increase and permanent employment; and
(c) Kordos, at the time he was recruited by Whiteco, was not looking for new employment. He was already successfully employed as a theatrical producer.
The majority questions whether Kordos was uniquely qualified for the position Whiteco recruited him to fill. The cireum-stances surrounding the recruiting and hiring of Kordos by Whiteco leads me to the conclusion a jury could readily find he was indeed.
In Frederick Brothers Artist Corp. v. Yates (1946), 61 N.Y.S.2d 478 , 186 Misc. 871 , the term "unique" was defined as follows:
"Unique" is a term not capable of exact or precise definition; it depends upon the cireumstances and conditions in which it is applied. In one instance, as pertaining to services, it may mean ability and capability of unparalleled character; in another, as indicating one who is specially skillful and individualistic; again, it may mean one possessed of unusual personality; also, as being one possessed of valuable personal contacts in the form of means of approach to key men in a particular industry. When the term is used the background which called it forth must be considered.
In my opinion, the trial court erred by sustaining the T.R. 50 motion for judgment on the evidence. Kordos made out a pri-ma facie case below that should have gone to the jury.
I would reverse and remand for a new trial as to Kordos.