The opinion of the court was delivered by: District Judge Susan J. Dlott
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter comes before the Court on Plaintiff's Motion for Partial Summary Judgment (doc. 28). Plaintiff William P. Cox seeks judgment on his claims that Defendant Priority America, f/k/a Transit Group Transportation, LLC ("Priority America") breached his employment agreement and violated Ohio Revised Code § 4113.15 by failing to provide him severance pay upon the termination of his former employment with Priority America. For the reasons that follow, Cox's motion is DENIED because genuine issues of material fact remain in dispute.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cox is a resident of Cincinnati, Ohio, who was formerly employed by the company now known as Priority America. Priority America is a Florida trucking corporation with its principal offices in Orlando, Florida. This case arises out of the termination of Cox's and Priority America's employment relationship.
In the summer of 2002, Priority America hired Tim O'Brien, an executive recruiter, to find a candidate to fill the chief financial officer ("CFO") position for Priority America. Cox submitted a resume to O'Brien and O'Brien recommended Cox for the CFO position to Jim Salmon, Priority America's chief executive officer.
At the time Priority America began its search for a new CFO, the company was going though a bankruptcy reorganization under the control of the Middle District of Florida. Priority America remained the debtor in possession throughout the bankruptcy proceedings. On September 4, 2002, Priority America filed an Amended Joint Plan of Reorganization ("Reorganization Plan") with the consent of its creditor committee and its largest creditor and shareholder, General Electric Capital Corporation ("GECC"). The Reorganization Plan required Priority America to issue warrants to GECC for approximately 75% of its stock when the company emerged from bankruptcy. (Salmon Decl. ¶ 6.) The Reorganization Plan was subsequently amended to address concerns of other creditors. Prior to the Reorganization Plan, GECC owned approximately 34% of the common stock of Priority America. (Id. ¶ 15.) Salmon testified that in September 2002 the long-term plan for the company after its emergence from bankruptcy was that GE would control the company. (Salmon Depo. at 78.) He further testified that he believed that GE would liquidate the company at some point in the future. (Id. at 78-80.)
Also in September 2002, Cox and Salmon began to negotiate the terms of Cox's employment agreement with Priority America. O'Brien drafted the initial agreement, which Salmon revised and sent to Cox for his review on September 19, 2002. Cox rejected this agreement and sent Salmon a two-page counter-proposal also on September 19, 2002. The Cox draft agreement contained a "change of control" provision stating as follows:
12. Change of Control: In the event of a [sic] (i) the Company terminates your employment for any reason other than cause or (ii) subsequent to a change of control of the Company you terminate your employment foranyreason within twelve months after the change of control of the Company, we will continue to pay your base salary, bonus and benefits at the effective date of termination for twelve months from the effective date of termination so long as you do not compete with the Company or disclose or use non-public information concerning the Company. (Salmon Decl. ex. 1. (emphasis added).) Further, the Cox draft agreement defined "change of control" as a footnote on the second page of the document as follows:
"Change of Control" a change of control shall be deemed to have occurred if any party other than GE (and its subsidiaries) becomes the beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company's then outstanding securities or a sale of substantially all the assets. Notwithstanding the foregoing, a change of ownership resulting from an Initial Public Offering of the Companies [sic] securities shall not result in a change of control for purposes of this agreement. (Id. (emphasis added).) The parties did not execute the September 19, 2002 Cox draft agreement.
Ultimately, the parties signed an employment agreement in the form of a letter from Salmon to Cox dated September 22, 2002 which was signed by Salmon on September 23, 2002 and signed by Cox on September 24, 2002. This Letter Agreement contained a "change of control" provision that stated as follows:
12. Change of Control: In the event of a [sic] (i) the Company terminates your employment for any reason other than cause or (ii) subsequent to a change of control of the Company you terminate your employment for any reason within three months after the change of control of the Company, we will continue to pay your base salary, bonus and benefits at the effective date of termination for twelve months from the effective date of termination so long as you do not compete with the Company or disclose or use non-public information concerning the Company. (Doc. 28 ex. 1 (emphasis added).) Thus, the signed Letter Agreement differed from Cox's draft agreement in that Cox had only three months to terminate his employment following a change of control if he wanted to receive the severance benefits. According to Cox, the Letter Agreement contained only two pages and the "change of control" provision and the signature line were both on the second page. No definition of "change of control" is stated on the two pages which Cox contends constitutes the totality of the Letter Agreement.
Salmon, on the other hand, asserts that the Letter Agreement that he signed on September 23, 2002 and sent to Cox for his acceptance contained a total of three pages. He states that the third page of the Letter Agreement contained the identical definition for "change of control" as had been written in Cox's draft agreement. The definition stated in relevant part that "A change of control shall be deemed to have occurred if any party other than GE (and its subsidiaries) becomes the beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company's then outstanding securities or a sale of substantially all the assets." (Salmon Decl. ¶ 2.) Thus, Salmon contends that the Letter Agreement also excluded GECC's ownership of the Company from constituting a change of control event. Salmon states that Cox only returned to him the first two pages of the signed Letter Agreement, but that he did not realize this oversight until the current litigation. Salmon has no physical evidence that the third page existed. His computer has crashed since the contract was signed, making it impossible to retrieve an electronic copy of the Letter Agreement he sent to Cox.
Cox testified as follows regarding the changes made from the September 19, 2002 draft agreement to the signed Letter Agreement:
Q: The change in control language in paragraph 12 is slightly different . . . with the change, as I see it, that the change of control language goes from 12 months after change of control to 3 months after a change of control. Do you know how or why it was that that change was made?
A: Jim [Salmon] made that ...