UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RON POE,

Plaintiff-Appellant,

v.

NATIONWIDE MUTUAL INSURANCE

COMPANY; NATIONWIDE MUTUAL FIRE

INSURANCE COMPANY; NATIONWIDE

GENERAL INSURANCE COMPANY, all

Ohio corporations authorized to do

business in the State of West

No. 96-2050

Virginia; NATIONWIDE LIFE

INSURANCE COMPANY; NATIONWIDE

PROPERTY AND CASUALTY COMPANY;

FINANCIAL HORIZONS LIFE INSURANCE

COMPANY; COLONIAL INSURANCE

COMPANY OF CALIFORNIA, all Ohio

corporations authorized to do

business in the State of West

Virginia,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, Senior District Judge.

(CA-95-60-5)

Submitted: May 20, 1997

Decided: June 13, 1997

Before MURNAGHAN and HAMILTON, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Michael R. Whitt, LAW OFFICE OF MICHAEL R. WHITT, Lewisburg, West Virginia, for Appellant. Cheryl H. Wolfe, JACKSON &

KELLY, Charleston, West Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Ron Poe appeals the district court's order granting

Defendants' motion for summary judgment. Poe asserts that genuine

issues of material fact existed concerning whether there was an

enforceable agreement between the parties and whether the principle

of equitable estoppel applies in this case. Finding no reversible error,

we affirm.

Poe worked for Defendants in various capacities from 1972 until

1995, when he was terminated. Poe became an agency representative

in 1991, and he hoped to become an independent contractor for

Defendants after three years. However, Poe's supervisors, Rusty

Whistler, State Operations Officer, and C.L. Wilkerson, Regional

Sales Manager, testified that Poe's performance as an agency representative was subpar, and they informed him that Defendants would

not immediately consider him for an independent contractor position

at the end of his employment agreement.

In September 1994, Whistler met with Poe to discuss his performance. Whistler testified that he intended to use this meeting to

impress upon Poe that he had one last chance to meet performance

 2
objectives. In a memorandum memorializing the meeting, Whistler

informed Poe that he would become an independent contractor in January 1995 if his performance for the rest of 1994 was acceptable and

certain other conditions were met ("Whistler Memo"). However,

Poe's performance failed to improve, and he received a termination

letter from Wilkerson in December 1994, with an effective date of

January 1995. Poe filed a complaint alleging that his termination constituted a breach of contract. Poe asserted that the Whistler Memo

constituted an enforceable contract to grant him independent contractor status or at least an enforceable agreement to agree in the future.

In the alternative, Poe asserted that he detrimentally relied on Defendants' misrepresentations and that the principle of equitable estoppel

required Defendants to honor the terms of the Whistler Memo. Applying West Virginia substantive law,1 the district court granted Defendants' motion for summary judgment.

Summary judgment is appropriate when there is "no genuine issue

of material fact," given the parties' burdens of proof at trial. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-8 (1986) (italics in original);

Fed. R. Civ. P. 56(c). In determining whether the moving party has

shown that there is no genuine issue of material fact, a court must

assess the factual evidence and all inferences to be drawn therefrom

in the light most favorable to the non-moving party. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). The

appellate standard of review of a grant of summary judgment is de

novo. Higgins v. E.I. DuPont de Nemours & Co. , 863 F.2d 1162,

1167 (4th Cir. 1988). In the present case, we find that the district

court properly granted the Defendants' motion.

We reject Poe's assertion that the Whistler Memo constituted an

enforceable contract for three reasons. First, the express terms of the

employment agreement prohibit any modification or addition to the

agreement unless signed by certain company officers and the

employee, and Whistler was not one of the individuals authorized to

modify the employment agreement or to bind the Defendants. Second,

it is well-settled contract law that a person or entity can only be bound

_________________________________________________________________

1 In this diversity action, state substantive law applies. See Rock-Ola

Mfg. Corp. v. Wertz, 282 F.2d 208, 210 (4th Cir. 1960).

 3
if an authorized signature appears on the document, 2 and Whistler was

not so authorized. Finally, the employment agreement expressly provides that Poe's employment was at-will. Under West Virginia law,

any alleged agreement to alter an at-will employment relationship

must be very definite in its terms to be enforceable, and the party relying on the alleged agreement bears the burden of proof. See Sayres

v. Bauman, 425 S.E.2d 226, 229-30 (W. Va. 1992); Suter v. Harsco

Corp., 403 S.E.2d 751, 754 (W. Va. 1991). We find that Poe failed

to satisfy this burden.

Poe's claim that the Whistler Memo is an enforceable agreement

to agree in the future is also without merit. While parties may agree

to agree in the future, "it is necessary that the terms to be agreed upon

in the future be substantially drawn from the initial agreement, . . .

[and] the terms must be determined independent of a party's mere

wish, will and desire." Ridgeway Coal Co., Inc. v. FMC Corp., 616

F. Supp. 404, 407 (S.D.W. Va. 1985) (citations and internal quotation

marks omitted). As was the case in Ridgeway Coal , the Whistler

Memo contained a sentence stating that further negotiations were

required to solidify the agreement. As a result, we find that the Whistler Memo was at most an agreement to negotiate, and as such was

simply part of Poe's employment negotiations; it was not an enforceable agreement to agree in the future. Id.

Finally, the burden was on Poe to prove that equitable estoppel

applied in this case, and we find that he failed to do so. National Mut.

Ins. Co. v. McMahon & Sons, Inc., 356 S.E.2d 488, 493 (W. Va.

1987). Poe's mere conclusory allegations of detrimental reliance,

standing alone, were insufficient to withstand a motion for summary

judgment. Moreover, he failed to show that Defendants misrepresented or concealed any material fact.

We therefore affirm the district court's order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the material before the court and argument would not aid

the decisional process.

AFFIRMED

_________________________________________________________________

2 Absent certain exceptions not applicable here.

 4