Opinion
10-P-1759
08-04-2011
PETER MAGYAR v. JILLY BEANNE'S, INC., & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This Superior Court action arose out of a failed retail establishment called Bon Vivant Wine (Bon Vivant). Peter Magyar appeals from a summary judgment entered in favor of his former employer, and its corporate officials, Jeffrey L. Largey and Patrick R. Treanor (collectively, defendants), on his claims of breach of contract, promissory estoppel, misrepresentation, wrongful termination in violation of public policy, and intentional interference with a contract. We affirm.
To begin, we conclude that Magyar has failed to prove that a contract existed between the parties. Even assuming sufficient facts to get to the jury on the question whether Magyar had a one-year, oral, employment contract as opposed to an at-will relationship, we conclude, as did the judge, that no jury reasonably could have found an absence of just cause for his discharge. See G & M Employment Serv., Inc. v. Commonwealth, 358 Mass. 430, 435 (1970), appeal dismissed, 402 U.S. 968 (1971) (defining just cause in context of statute regulating employment agencies to mean, as herein relevant, 'grounds for discharge reasonably related, in the employer's honest judgment, to the needs of his business'); Commissioner of Health & Hosps. of Boston v. Civil Serv. Commn., 23 Mass. App. Ct. 410, 413 (1987) (reasons of economic necessity and lack of funds advanced in good faith are considered just cause for layoffs under civil service law); Goldhor v. Hampshire College, 25 Mass. App. Ct. 716, 723 (1988) (applying the G & M Employment Serv., Inc. definition of just cause in private employment context); York v. Zurich Scudder Invs., Inc., 66 Mass. App. Ct. 610, 617-619 (2006) (concluding that nondiscriminatory discharge for cost-cutting reasons fell within definition of just cause; deciding question of good cause as matter of law).
Here, in February, 2008, the defendants told Magyar that they had to let him go after three months of employment because they could not afford to keep him anymore. Nothing of record would have permitted an inference that this economic reason was a sham or asserted in bad faith to mask an improper reason for the termination. In fact, Magyar agreed that he was terminated in part because of Bon Vivant's financial difficulties. Magyar admitted that both Treanor and Largey wanted the business to succeed. By the date of Magyar's termination, however, the store was continuing to lose money; because the expenses were higher than anticipated, Largey and Treanor had been forced to put more of their own money into the business to keep it afloat; and they were unwilling to sink in any additional funds. After Magyar's termination, Largey assumed his duties, never replacing him. With Magyar's departure, Bon Vivant's payroll costs went down, though unfortunately so did its revenues. In July, 2008, Treanor sold his interest in Bon Vivant, which he considered a losing proposition, to Largey, and left the wine business. When the debts continued to mount, Largey closed Bon Vivant in May, 2009. The business never made a profit. In sum, because no jury could find that Magyar's discharge was other than for cause as that term is defined under Massachusetts law, he cannot show a breach of his employment contract. See Klein v. President & Fellows of Harvard College, 25 Mass. App. Ct. 204, 208- 209 (1987). Summary judgment was properly entered in favor of the defendants on the claim.
Treanor opted not to draw a salary and Largey often worked without pay in order to decrease the financial distress.
The corporate tax returns submitted by the defendants corroborated their testimony regarding Bon Vivant's lack of profitability and business losses. Magyar's suggestion that the store was doing 'as well if not better than as expected' was not supported by the facts of record and thus was inadequate to create a triable issue of just cause. While there was evidence that Magyar gave accurate projections about inventory costs and revenue, these projections were meaningless absent consideration of Bon Vivant's numerous operating costs and liabilities. Magyar admitted he had no knowledge of these aspects of the business.
As the owners, the defendants had no duty to seek, or to follow, Magyar's advice about start-up expenses, which were higher than expected. Finally, no jury could have found that the economic reason was a pretext to cover a retaliatory termination in violation of public policy, as we discuss, infra.
Reasonable reliance upon an unambiguous promise was a required element of Magyar's promissory estoppel claim. See Upton v. JWP Businessland, 425 Mass. 756, 760 (1997). We conclude that any reliance by Magyar on alleged promises to keep the business open and Magyar employed for fifty-two weeks was unreasonable as matter of law. Magyar was experienced in business and had worked in the local alcoholic beverage industry since 1970. During preemployment talks in 2007, the parties discussed their concerns about opening the business, including competition from nearby wholesalers moving into the area. Having performed research before agreeing to sign on with Bon Vivant, Magyar knew that sixty to seventy percent of small businesses failed within the first five years for a variety of reasons. Magyar admitted that no matter what type of business was involved, there was always the chance of failure and that there were no guarantees for anything. In light of these acknowledgments about the risks inherent in the start-up and the lack of any guarantees, no jury could find that Magyar reasonably relied upon the promise to keep the business running for a full year under any and all conditions, including financial crisis. See Anzalone v. Administrative Office of the Trial Ct., 457 Mass. 647, 661-662 (2010).
As demonstrated by the argument in his brief, Magyar's fraud and negligent misrepresentation claims simply were reconstituted breach of contract claims. See Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 474 (2009) ('Plaintiffs who are unable to prevail on their contract claims may not repackage the same claims under tort law'). Moreover, where, as here, on the undisputed facts, only one conclusion was permissible as to whether Magyar's reliance was reasonable or justifiable, summary judgment was properly entered on these claims. See id. at 470-476.
Magyar's fraud claim was properly dismissed for the added reason that he could not show that Largey and Treanor harbored any intent to deceive or actual knowledge that their statements were false at the time they were made. See Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455 Mass. at 471.
To the extent that Magyar claimed that he was terminated for failing to provide the defendants with a copy of his juror summons prior to his service and for refusing to obey Largey's order to report for his night shift the evening of his one-day juror service, this public policy violation claim was properly dismissed. As a threshold matter, we note that although Magyar argued that the defendants were 'in violation of the law' and were 'in technical violation of the statute,' he never identified the law or the statute violated. Such argument does not comport with proper appellate standards. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Charara v. Yatim, 78 Mass. App. Ct. 325, 331 n.11 (2010) (court refused to reach issues that were unsupported by citation to relevant authority). In any event, the public policy recognizing the importance of juror service is already reflected in G. L. c. 234A, §§ 1 et seq., and c. 268, § 14A. Given the comprehensive remedial scheme provided to employees by the Legislature, Magyar's common-law claim was preempted. See G. L. c. 234A, §§ 60 and 61; Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985), S. C., 397 Mass. 1004 (1986); Ourfalian v. Aro Mfg. Co., 31 Mass. App. Ct. 294, 295-296 (1991).
We agree with the judge's conclusion that Largey's order to work the night shift did not violate the regulations of the jury commissioner. Thus, on Magyar's theory of his case, no public policy concern was implicated by his termination. Magyar failed to address these regulations in his brief.
On this record, even assuming that Largey and Treanor, the sole officers and owners of Pat & Jeff, Inc., the corporation formed to develop and to operate Bon Vivant, could have interfered with Magyar's employment contract with the corporation, he will be unable to meet the heightened actual malice standard applicable in proving improper motive or means by corporate officials. See Blackstone v. Cashman, 448 Mass. 255, 259-261 & n.8 (2007). Magyar's intentional interference claim thus failed as matter of law.
Judgment affirmed.
By the Court (Trainor, Fecteau & Hanlon, JJ.),