An employee, a trauma assistant, initially under at-will employment is paid additional amounts for being “on call”, there being sign-up sheets and the like for this. The employee alleges the arrangements were made in 2004 so this employee is to have scheduled on-call times. It is alleged these were complied-with for some time, but the employer, it is alleged, stopped paying the additional amounts some time in 2006.
After summary judgment, in response to the appellant/employee’s brief, some curious observations are made by the employer:
It is Appellant’s contention that an oral contract created in 1983 and modified by an oral amendment in 2004, both for indefinite periods, neither of which were reduced to writing, falls under an exception to the Statute of Frauds. The Statute of Frauds was designed to prevent just such a situation. As discussed supra, Appellant’s Amended Petition relies entirely on an alleged oral agreement for her employment as the “Trauma Assistant On Call.”
Here, Appellant does not allege the contract was to be performed within one year. In fact, Appellant’s Amended Petition indicates she performed under the alleged contract from October 1, 2004 through March 3, 2011. (LF 36 – Amended Petition, ¶ 8). As such, it is clear the alleged agreement was of unlimited duration and, therefore, must have been in writing to be enforceable under the Statute of Frauds. Even assuming the alleged agreement was memorialized in writing, as Appellant suggests was accomplished by Exhibit A of the Amended Petition, the writing must contain all of the essential terms of the agreement, one of which is duration. See Sales Service, Inc. v. Daewoo International (America) Corp., 770 S.W.2d 453, 455 (Mo.App.E.D.1989). Appellant has failed to allege how Exhibit A memorializes a duration provision of the alleged oral contract. Nothing on Exhibit A promises on call pay. (LF 40 – Amended Petition). Further, nothing on Exhibit A limits Saint Francis’ right to interpret its policies and determine who would or would not receive on call pay. The “Surgical Personnel On Call” sheet depicted in Exhibit A is nothing more than a collection of employee names and telephone numbers compiled for easy access by Saint Francis administration and certainly does not memorialize the alleged oral contract and amendment as Appellant suggests.
As such, Appellant has failed to state a claim upon which relief can be granted inasmuch as the Statute of Frauds precludes the enforcement of an oral agreement for an indefinite period of time.
What? Although there are complicated issues as to whether part performance takes a contract out of the statute of frauds, certainly it cannot be a bar to recovery of what is alleged to be part of the agreed-upon compensation for parts of at-will employment that have been fully performed.
The statute of frauds does not foreclose recovery on oral contracts by application of the statute if the contract has been fully performed by one of the parties. Straatmann v. Straatmann, 809 S.W.2d 95, 99 (Mo.App.1991). Serafin v. Med 90, Inc.,
932 S.W.2d 422 (Mo. App. E.D. 1996).
Clearly Serafin states the doctrinally-correct answer.