Opinion
21-1218
03-15-2022
William Flemm, Plaintiff-Appellant, v. Victory Commercial Management Inc., Defendant-Appellee.
FOR PLAINTIFF-APPELLANT: Stephen R. Bosin, Law Office of Stephen R. Bosin, River Edge, NJ. FOR DEFENDANT-APPELLEE: Mingli Chen, Chen Ran Law Group, P.C., Flushing, NY.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of March, two thousand twenty-two.
Appeal from a judgment of the United States District Court for the Southern District of New York (John P. Cronan, Judge.).
FOR PLAINTIFF-APPELLANT: Stephen R. Bosin, Law Office of Stephen R. Bosin, River Edge, NJ.
FOR DEFENDANT-APPELLEE: Mingli Chen, Chen Ran Law Group, P.C., Flushing, NY.
PRESENT: Denny Chin, Richard J. Sullivan, Joseph F. Bianco, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Appellant William Flemm appeals from the district court's grant of summary judgment to Appellee Victory Commercial Management Inc. ("Victory" or the "Company") on his common law fraud claim, which alleges that Victory fraudulently induced him to leave his job by falsely promising him the position of chief operating officer ("COO") at Victory.
Although Flemm asserts that he also raised claims alleging equitable fraud and negligent misrepresentation below, he does not challenge the district court's dismissal of those claims, thus failing to preserve them for our review. See Niagara Mohawk Power Corp. v. Hudson River-Black River Reg. Dist., 673 F.3d 84, 107 (2d Cir. 2012) ("[W]e generally will decline to consider issues that are not sufficiently argued [on appeal].") (citation and quotation marks omitted).
We review a district court's grant of summary judgment de novo. ING Bank N.V. v. M/V TEMARA, IMO No. 9333929 , 892 F.3d 511, 518 (2d Cir. 2018). "[W]e construe the evidence in the light most favorable to [Flemm as the non-moving party], drawing all reasonable inferences and resolving all ambiguities in [his] favor." Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017) (citation omitted).
This case revolves around a series of communications between Flemm and Edward Liang, the managing director of Victory, about Flemm's candidacy to become the Company's COO. Throughout the parties' correspondence, however, Liang was clear that Flemm's hiring was contingent upon acceptance by the Company's board of directors (the "Board") of a "business proposal" that Flemm was to submit in connection with his candidacy. Thus, even when Victory transmitted an "offer letter" to Flemm on September 27, 2018 (the "September 27 Letter"), the document contained the express condition that Flemm would not begin with the Company until "the time [his] business proposal [was] accepted by the Board of Directors." J. App'x at 67. Liang reiterated this condition to Flemm on October 7. On October 12, Flemm submitted his business plan to Liang. In an email four days later, Liang told Flemm that the proposal looked good, but that Liang would get back to Flemm if the Board had any comments. Flemm nevertheless quit his job at the Howard Hughes Corporation within two days of receiving Liang's email. Victory ultimately decided not to hire Flemm, and he brought this suit alleging that Victory had fraudulently induced him to quit his job at Howard Hughes by means of a phantom job offer.
Under New York law, common law fraud "require[s] a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff[, ] and damages." Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 (2009). Here, Flemm failed to establish that Victory made any material misrepresentation of fact; on the contrary, the Company consistently emphasized that Flemm's hiring was contingent on the Board's acceptance of his business proposal. Indeed, Flemm acknowledged as much when he stated that "the only condition" of the September 27 Letter was that he could not start until his "business proposal [was] accepted by the Board." J. App'x at 253 (Flemm Affidavit). Since that condition was never satisfied, Flemm cannot argue that any of the alleged misrepresentations made by Victory was material. The Company was perfectly justified in not hiring Flemm because he did not fulfill the specified prerequisite for beginning his employment, rendering any potential misrepresentation immaterial. See Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 350 (1999) ("Not every misrepresentation or omission rises to the level of fraud. An omission or misrepresentation may be so trifling as to be legally inconsequential . . . .") (footnote omitted).
For the same reason, Flemm cannot contend that he justifiably relied on Victory's offer letter when he resigned from his position at Howard Hughes. Because Flemm's offer was contingent on the Board's acceptance of his business proposal, it was clearly unreasonable for Flemm to resign from Howard Hughes before receiving word that the business proposal had been approved - as counsel for Flemm forthrightly admitted at oral argument. The parties vigorously dispute the proper legal label for the September 27 Letter, but regardless of whether it is called a "draft" offer, a "conditional" offer, a "bona fide" offer, or anything else, there can be no question that Flemm's offer of employment was purely hypothetical unless and until the Board approved Flemm's business proposal. Flemm clearly jumped the gun when he resigned before the condition precedent to his job offer was met.
Flemm contends that, had he known that Victory presented him a "draft" offer letter - as Liang characterized it in his deposition testimony - he would not have resigned from Howard Hughes, thereby making the misrepresentation material and his reliance justified. But a misrepresentation does not become material - or reliance justified - solely because a counterparty did in fact rely on it. To hold otherwise would turn both the material misrepresentation and justifiable reliance elements into nullities. See Eurycleia Partners, 12 N.Y.3d at 559 (citing the requirement that a plaintiff must have "justifiabl[y] reli[ed] on a misrepresentation) (emphasis added). Whether or not Flemm believed the offer to be "final," he could not have justifiably quit his job in reliance on an offer with an unfulfilled condition precedent that he had no reason to assume would ever be fulfilled - especially since Liang had called Flemm's attention to that condition just days before he left his job at Howard Hughes.
Flemm's reliance on Navaretta v. Group Health Inc., 595 N.Y.S.2d 839, 841 (3d Dep't 1993), is similarly unavailing. In Navaretta, the plaintiff claimed that the agent for his prospective employer misrepresented that certain tests "were 'not that important, '" when, in fact, "successful completion of the tests was mandatory[, ] and a failure of these tests would result in termination." Id. at 840. Far from representing to Flemm that the business plan was unimportant - or the Board's approval a foregone conclusion - Victory consistently emphasized to Flemm that the Board's acceptance of his business plan was required.
In sum, Flemm fails to raise a genuine dispute as to whether Victory made a material misrepresentation of fact upon which he justifiably relied.
We have considered all of Flemm's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.