ERIC N. BALLES vs. BABCOCK POWER INC.
SJC-12151
Supreme Judicial Court of Massachusetts
March 6, 2017
476 Mass. 565 (2017)
Middlesex. November 8, 2016. - March 6, 2017. Present: GANTS, C.J., BOTSFORD, LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
In a civil action involving the interpretation by a corporation‘s board of directors of a term in a stockholders’ agreement, a Superior Court judge properly reviewed that interpretation de novo, where the language of the agreement was not ambiguous and did not provide for a deferential standard of judicial review. [571-573]
In a civil action arising from the defendant corporation‘s termination of the employment of the plaintiff, who had been an executive and an investor at that corporation, the judge did not err in determining that the plaintiff‘s conduct did not give the defendant grounds to terminate the plaintiff‘s employment for cause under the terms of a stockholders’ agreement, where the plaintiff‘s conduct did not amount to fraud or gross insubordination within the meaning of the agreement, and where the defendant failed to meet its burden of showing that the adverse effects of the plaintiff‘s breach of his obligation of loyalty were not correctable if he had been given the opportunity to do so. [573-579]
In a civil action arising from the defendant corporation‘s termination of the employment of the plaintiff, who had been an executive and an investor at that corporation, there was no merit to the claim that the plaintiff‘s breach of a stockholders’ agreement precluded him from recovering under that agreement. [579-580]
CIVIL ACTION commenced in the Superior Court Department on December 21, 2010.
The case was heard by Douglas H. Wilkins, J.
The Supreme Judicial Court granted an application for direct appellate review.
Mark C. Fleming (Jonathan A. Cox also present) for the defendant.
Thomas J. Carey, Jr. (Jody L. Newman also present) for the plaintiff.
Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief.
Babcock terminated Balles‘s employment when it discovered that he was engaged in an ongoing extramarital affair with a young female subordinate. Babcock‘s board of directors (board) subsequently concluded that Balles had been terminated “for cause” under the terms of his stockholders’ agreement with the company, thereby allowing the board to repurchase his stock at a minimal price. The board withheld subsequent dividends, amounting to approximately $900,000 in total, and refused to pay Balles any severance.
Years of litigation followed, with Balles seeking declaratory relief to the effect that the stock be returned to him, along with the withheld dividends. Babcock responded with counterclaims on various grounds. Following a bifurcated trial, a Superior Court jury rejected Babcock‘s counterclaims, and although Balles prevailed at a jury-waived trial on his claim for declaratory relief, a portion of his prior salary was subjected to equitable forfeiture and he was unsuccessful in his bid to receive severance pay. Babcock appealed from the judgment at the jury-waived trial, and we allowed its application for direct appellate review. We affirm.1
1. Background. We recite the facts found by the trial judge, which the parties acknowledged at oral argument they do not challenge. We have supplemented those findings by reference to facts in the record that the parties do not dispute.
a. Stockholders’ agreement and employment agreement. When his employment at Babcock began in 2002,2 Balles entered into two agreements: a stockholders’ agreement and an employment agreement.3 Under the terms of the stockholders’ agreement, Balles, one of seventeen “management investors” in Babcock,4 received 100,000 shares of common stock in the company at a
Section 5 of the stockholders’ agreement sets forth the rights of management investors in the event of their termination. Section 5(d) states that, if a management investor‘s employment is terminated without cause, the stockholders’ agreement continues to apply to his or her stock. By contrast, section 5(e) provides that if a management investor‘s employment is terminated “for cause,” as defined in the stockholders’ agreement, Babcock‘s board of directors must repurchase his or her stock at the nominal price of $0.001 per share.
“Cause,” in turn, is defined under section 1 of the stockholder‘s agreement as follows:
“(a) fraud, embezzlement or gross insubordination on the part of the Management Investor; (b) the Management Investor‘s conviction of or plea of nolo contendere to any felony; (c) the Management Investor‘s willful and material breach of or willful failure or refusal to perform and discharge, his duties, responsibilities or obligations to the Company (other than by reason of disability or death) that is not corrected within thirty (30) days following written notice thereof to the Management Investor by the Company, such notice to state with specificity the nature of the breach, failure or refusal; provided, that if such breach, failure or refusal cannot reasonably be corrected within thirty (30) days of written notice thereof, such thirty (30) day period shall be extended for so long as may be reasonably necessary to correct the same; or (d) any act of willful misconduct by the Management Investor which (i) is intended to result in substantial personal enrichment of the Management Investor at the expense of the Company or any of its subsidiaries or affiliates or (ii) is intended to and does have a material adverse impact on the business or reputation of the Company or any of its subsidiaries or affiliates. For purposes of this Agreement, a determination of ‘Cause’ may only be made by the Board of Directors of the Company.”
The stockholders’ agreement also provides for a jury-waived trial to adjudicate any claims arising under it, stating in relevant part that “each party acknowledges and agrees that any controversy which may arise under [the stockholders’ agreement] is likely to involve complicated and difficult issues,” and that the parties “waive[ ] any right such party may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to the [stockholders’ agreement].”
b. Relationship with female subordinate. The female subordinate began working at Babcock as an intern when she was still an undergraduate student. She eventually obtained a full-time position at the company as an “Engineering Management Assistant/Engineering Coordinator.” After receiving two raises while serving in this role, she eventually was promoted to the position of “Operations Associate/Engineering.” Balles was her supervisor at all relevant times.
In the summer of 2008, Balles began an intimate extramarital relationship with the female subordinate, which continued through his termination in 2010. The pair pursued their relationship on business trips funded by Babcock, and exchanged sexually explicit text messages on their personal cellular telephones. Balles uploaded, downloaded, and saved photographs of the female subordinate, some depicting sexual content, on his Babcock-issued laptop computer.5 To conceal his relationship with the female subordinate from Babcock, Balles falsified the details of at least one travel reimbursement request, but did not intentionally claim any fiscal reimbursement from Babcock to which he was not entitled under company policy.6
On August 30, 2010, Michael LeClair, the president and chief executive officer of Babcock, learned of the relationship between Balles and the female subordinate. Soon thereafter, Jim Dougherty, president and chief executive officer of a subsidiary of Babcock, hand-delivered a memorandum to Balles stating that his employment was suspended “pending an investigation into allegations of misconduct and improper workplace behavior relating to [his] relationship with a female subordinate employee.” Babcock‘s investigation included an in-depth review of Balles‘s documents,
During the investigation, Balles repeatedly requested a face-to-face meeting with the board, which Babcock declined to provide. He received a letter on September 15, 2010, informing him that his employment had been terminated effective September 1, 2010, and that the board would be meeting shortly to determine whether his conduct met the definition of “[c]ause” under the stockholders’ agreement. Babcock‘s attorney sent notice separately that it would not be necessary for Balles to provide information relating to the allegations of misconduct against him. The parties engaged in settlement negotiations but were unable to come to an agreement.7
At the subsequent board meeting to determine whether Balles‘s conduct constituted “cause” within the meaning of the stockholders’ agreement, LeClair summarized the investigation and recommended that the board terminate Balles “for cause” pursuant to clauses (a), (c), and (d) of the definition of “[c]ause” in section 1 of the stockholders’ agreement. The board, after discussion, unanimously agreed, as noted in its minutes, that Balles‘s conduct constituted “cause” under the stockholders’ agreement. The minutes reflected the board‘s determination that there was “overwhelming and irrefutable evidence that . . . Balles engaged in serious misconduct during his employment and [that] such misconduct was a breach of fiduciary duty to the [c]ompany, including a breach of his duty of loyalty.” Because the board terminated Balles for cause, it went on to “repurchase” all of Balles‘s shares pursuant to section 5(e) of the stockholders’ agreement, “amounting to 100,000 shares of capital stock of [Babcock] for a repurchase price of $0.001 per share.”
c. Prior proceedings. Shortly after the board voted to terminate him “for cause,” Balles commenced this action against Babcock
The jury found for Balles on Babcock‘s counterclaims. The trial judge, moreover, ruled in favor of Balles on the declaratory judgment and breach of contract claims, concluding that Balles “was not fired ‘for cause’ as defined in the [s]tockholders’ [a]greement” and that he was therefore “entitled to the return of his stock and payment of all dividends and other benefits provided by Babcock . . . as if he had own[ed] the stock continuously.” The judge found in favor of Babcock on its remaining counterclaim, concluding that Balles had committed a breach of his fiduciary duty of loyalty to the company, owed pursuant to his status as an employee. On this basis, the judge assessed Balles $412,000 in equitable forfeiture of his past salary. The judge also rejected Balles‘s claim for severance pay under the employment agreement, on the ground that Balles had committed a material breach of the agreement through his disloyal actions.
Babcock appealed from the judgment, raising issues arising only from the jury-waived trial, and we allowed its application for direct appellate review.10
a. Appropriate standard of review. Babcock argues that the trial judge improperly reviewed on a de novo basis the board‘s determinations of “cause.” The company relies in this regard on the last sentence of the “[c]ause” definition in section 1 of the stockholders’ agreement, which provides that “[f]or purposes of this [a]greement, a determination of ‘[c]ause’ may only be made by the [board].” Babcock contends that this language demonstrates the parties’ intent that the board‘s determinations under the “cause” provision receive deference upon any judicial review. We agree with the trial judge that the language of the stockholders’ agreement does not support Babcock‘s suggested interpretation.
We review a court‘s “interpretation of the meaning of a term in a contract,” a question of law, de novo.12 EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016). In so doing, we are mindful that when the language of a contract is clear, it alone determines the contract‘s meaning, but that a court may consider extrinsic evidence if the language is ambiguous. Id. The determination of ambiguity in a contract is also a question of law. Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 287 (2007). Contractual language is ambiguous when it “can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken” (citation omitted). Bank v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008). When contract language is unambiguous, it must be construed according to its plain mean-
To determine whether the language at issue is ambiguous, we look both to the contested language and to the text of the contract as a whole. Assuming without deciding that parties to a private agreement may contract for a specific standard of judicial review in this situation,13 we conclude that the language at issue is not ambiguous and that it does not provide for a deferential standard of judicial review.
On its face, the contract language that Babcock highlights speaks to which persons in the company are to determine “cause” for purposes of the stockholders’ agreement. Standing alone, the sentence is silent as to an appropriate standard of judicial review for disputes relating to that determination. The language does not, by itself, contain an ambiguity that could support Babcock‘s suggested interpretation. The language also does not convey any ambiguity when read in conjunction with the remainder of clause (c) of the definition of “[c]ause” or the stockholders’ agreement as a whole. The only provision dealing with a somewhat related matter is section 9(e)(iii), which provides that “any controversy which may arise under [the stockholders’ agreement] is likely to involve complicated and difficult issues, and therefore each . . . party . . . unconditionally waives any right such party may have to a trial by jury in respect of any litigation directly or indirectly arising [out] of or relating to [the stockholders’ agreement] . . . .” If anything, this recognition of the innate complexity of disputes arising under the contract and of the need for resolution by judges rather than juries is consistent with the application by judges of the usual de novo standard of review.14
Concluding, as we do, that the contractual language on which
b. Board‘s decision to terminate Balles for cause under stockholders’ agreement. Babcock argues that the trial judge erred in determining that Balles‘s conduct did not meet clauses (a) and (c) of the definition of “[c]ause” in section 1 of the stockholders’ agreement.
i. Clause (a). Babcock argues that Balles‘s conduct constituted “fraud” and “gross insubordination” under clause (a) for three reasons: (i) his intentional submission of false expense reports for the purpose of concealing his affair with the female subordinate was fraudulent; (ii) his outspoken support for the female subordinate constituted fraud because she lacked fitness for employment; (iii) his over-all conduct during his relationship with the female subordinate constituted gross insubordination. We discern no error in the judge‘s determination that Balles‘s conduct did not constitute fraud or gross insubordination.
A. Fraud. The elements of fraud consist of “[1] a false representation [2] of a matter of material fact [3] with knowledge of its falsity [4] for the purpose of inducing [action] thereon, and [5] that the plaintiff relied upon the representation as true and acted upon it to his [or her] damage.” Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982), quoting Barrett Assocs. v. Aronson, 346 Mass.
I. False reimbursement requests. The trial judge found that Balles‘s false reimbursement requests had not resulted in damage to Babcock, and that Balles lacked fraudulent intent, both necessary elements of fraud. Because Babcock has failed to show that the judge‘s findings, amply supported by the evidence, were clearly erroneous, it cannot establish that Balles‘s submission of false reimbursement requests gave rise to fraud that would constitute cause under clause (a) of the definition of “[c]ause” in the stockholders’ agreement.
II. Advocacy for the female subordinate. Babcock similarly maintains, again without merit, that in view of the female subordinate‘s inadequate qualifications and poor job performance, it was fraudulent conduct on Balles‘s part to advocate — as her supervisor and without disclosing their personal ties — on her behalf professionally. The judge, however, determined that “[t]he jury, the court, or both, have rejected the factual claim that Balles was engaged in any ruse when he made decisions about [the female subordinate‘s] employment, [and] her salary and benefits,” and that “[a]ll of those decisions had a sound business justification.” He found in this regard that given “the actual work [the female subordinate] did, in combination with her obvious verbal and managerial skills, intelligence, maturity and motivation, . . . [the female subordinate] fully earned her salary, benefits, and tuition reimbursement during the period she was employed at [Babcock].”
To demonstrate that the female subordinate‘s qualifications and performance were inadequate, the company points to a statement from a coworker suggesting that she had received preferential treatment and a statement from a manager that she lacked an engineering degree. These two statements, however, do not suffice to establish that the trial judge‘s findings of fact to the contrary, supported by other evidence, were clearly erroneous. See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014). Given this, Balles‘s advocacy on the female subordinate‘s behalf neither constituted a “false” representation nor resulted in damages to Babcock, and accordingly was not fraudulent.
B. Gross insubordination. Babcock maintains that Balles‘s conduct also constituted “gross insubordination” under clause (a)
We defer to the judge‘s factual findings, but review de novo his interpretation of “gross insubordination” under the stockholders’ agreement. Because the stockholders’ agreement does not define “gross insubordination,” it is appropriate to look to other sources to determine the meaning of the term. See Meehan v. Shaughnessy, 404 Mass. 419, 445 n.22 (1989) (professional norms can supply meaningful definition of contractual term); Zeo v. Loomis, 246 Mass. 366, 368 (1923) (“[Contract term] must be determined from all the circumstances according to the reasonable inferences presumably entertained by normal business [people]“).
Babcock relies chiefly on Oehme v. Whittemore-Wright Co., 279 Mass. 558, 563 (1932), which defines “insubordination” as “a wilful disregard of express or implied directions and refusal to obey reasonable orders.” The company emphasizes the “implied directions” portion of the definition, presumably to suggest that Balles‘s violations of company policy constituted gross insubordination. It is “gross insubordination,” and not “insubordination,” that gives rise to “[c]ause” under clause (a), however, and Oehme does not speak to the more egregious misconduct required to establish gross insubordination.17 A review of relevant case law indicates, as the judge concluded, that gross insubordination is generally defined as wilful disregard of a direct order. See Hawkins v. Director of the Div. of Employment Sec., 392 Mass. 305, 306-307 (1984)
ii. Clause (c). Babcock also maintains that Balles‘s conduct fell within clause (c), which defines “[c]ause” as follows:
“the . . . willful and material breach of, or willful failure or refusal to perform and discharge, his duties, responsibilities or obligations to the [c]ompany . . . that is not corrected within thirty (30) days following written notice thereof to the [m]anagement [i]nvestor by the [c]ompany, such notice to state with specificity the nature of the breach, failure or refusal; provided, that if such breach, failure or refusal cannot reasonably be corrected within thirty (30) days of written notice thereof, such thirty (30) day period shall be extended for so long as may be reasonably necessary to correct the same.”
Babcock argues that Balles‘s relationship with the female subordinate and his attempts to conceal it constituted a wilful and material breach of his obligation of loyalty to the company. Balles concedes that his conduct constituted a breach of loyalty under clause (c), but argues that Babcock failed to provide him with an opportunity to correct his breach, as required by clause (c). The company counters that, because Balles‘s breach could not be corrected, it was excused from the requirement of offering him an opportunity to correct the breach, as to do so would have been futile.
The trial judge concluded that Babcock had failed to provide Balles with an opportunity to correct his breach in violation of clause (c) and that Balles‘s conduct was correctable. On appeal, Babcock argues that three particular components of Balles‘s breach were uncorrectable:18 (1) the effect of Balles‘s divided loyalty on his job performance during his affair with the female subordinate; (2) the harmful effects of Balles‘s example on company culture;
We begin by noting that the futility exception upon which Babcock relies is not expressly mentioned in the stockholders’ agreement. Both parties nonetheless seem to accept the contention that truly futile gestures under the agreement are unnecessary, an assumption that accords with our common law. To excuse nonperformance in that respect, parties in breach of a contract may establish that compliance with the contract would have been futile. See Shawmut-Canton LLC v. Great Spring Waters of Am., Inc., 62 Mass. App. Ct. 330, 340 (2004). The exception, notably, is quite narrow, see Jefferson Ins. Co. of N.Y. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 42 Mass. App. Ct. 94, 103 (1997) (rejecting interpretation of contract that “would have the exclusion swallow the policy” [citation omitted]), and the party in breach bears the burden of proving that its performance under the contract would have been futile. See, e.g., 7-Eleven, Inc. v. Khan, 977 F. Supp. 2d 214, 230-231 (E.D.N.Y. 2013) (party claiming that incurable breach relieved obligation to provide notice and opportunity to cure bore burden of proof). Ordinarily, futility is shown where performance under the contract would be impossible, see, e.g., L.K. Comstock & Co. v. United Engineers & Constructors Inc., 880 F.2d 219, 231-232 (9th Cir. 1989) (finding contractually guaranteed opportunity to cure would have been futile where party could not have cured its breaches in allotted time period), or where the other party had first repudiated performance under the contract, see, e.g., Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 F.2d 1003, 1009 (2d Cir. 1991) (burden on party claiming incurable breach), neither of which took place here.
We nonetheless turn to Babcock‘s contention that, because Balles‘s breach cannot be corrected, its failure to provide him with an opportunity to do so falls within the narrow futility exception. Babcock first contends that Balles‘s breach of loyalty throughout his affair with the female subordinate could not be corrected because the correction provision “contemplates correction of the ‘breach’ itself — not its future consequences.” In the company‘s view, ” ‘correction’ presumes that the wrong has been righted, as though no breach happened,” and a ” ‘correctable’ offense would have been one where, following a ‘correction,’ Babcock and Balles could have continued their association as before.” We are unpersuaded by this argument, both because it relies on an implausible interpretation of the contract and because
By asserting that correction requires actually undoing the breach, rather than remedying its effects, Babcock would in effect read the correction provision out of clause (c). See J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795 (1986) (“A contract is to be construed to give reasonable effect to each of its provisions“). As a practical matter, bells cannot be unrung, nor the past undone. Clause (c) contemplates that, in the event of a management investor‘s “willful and material breach of . . . duties, responsibilities or obligations to the [c]ompany,” the management investor will be given thirty days following written notice to “correct” that “breach, failure or refusal [to perform].” No exception is made for breaches of loyalty. The correction envisioned, reasonably construed within the context of that clause and the contract as a whole, can only be to remedy the adverse effects from the breach or nonperformance when performance will not itself be adequate or possible. See Downer & Co. v. STI Holding, Inc., 76 Mass. App. Ct. 786, 792 (2010) (objective in interpreting contract “is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose” [citation omitted]).
Given the foregoing, Babcock has not met its burden of showing that the adverse effects of the breach were uncorrectable if Balles were given the opportunity to do so. Indeed, Babcock prevailed on its counterclaim when the judge deducted over $400,000 from the amount of Balles‘s salary because of his breach of the duty of loyalty during his relationship with the female subordinate, thereby in essence compensating Babcock for the lost value of Balles‘s services in that period.
Babcock‘s contention that Balles‘s harm to company culture was uncorrectable meets a similar fate. While the trial judge did not address this argument directly,19 Babcock does not establish why any such harms would not be remedied by the termination of Balles. The company‘s abrupt termination of Balles, a senior executive, surely made clear to other employees that his impermissible conduct would not be tolerated. The company‘s lone argument why this would not suffice is its insistence that only terminating Balles for cause could correct the harms he visited
Babcock‘s final argument — that the risk of a sexual harassment lawsuit brought by the female subordinate constituted uncorrectable harm to the corporation — also lacks merit. The trial judge summarily dismissed this argument, determining that the stockholders’ agreement pertains to “actual harm, not potential harm that never materialized.” Even if the judge were incorrect in this and we were to assume that Balles‘s conduct in fact created a risk to the company that would not otherwise have existed, Babcock has not shown that the harm was uncorrectable. Risks are routinely adjusted and reallocated by various means such as indemnification agreements providing for the costs of defense, and such measures could presumably have been employed here.20 We accordingly reject Babcock‘s view that the risk of a sexual harassment claim brought by the female subordinate was uncorrectable.21
There was thus no error in the judge‘s determination that Babcock‘s failure to provide Balles with an opportunity to correct his breach prevents a finding of cause under clause (c).
c. Whether Balles committed a material breach of the stockholders’ agreement. Babcock argues further that Balles committed a material breach of the stockholders’ agreement, thereby precluding the recovery he seeks under it. The company maintains that Balles owed a fiduciary duty of loyalty to it as an officer and shareholder of a closely held corporation,22 and that, by committing a breach of this duty, he committed a material breach of the stockholders’ agreement.
Even if Balles had committed a breach of a fiduciary duty owed to Babcock arising out of the stockholders’ agreement, Babcock‘s
Sections 1 and 5 of the stockholders’ agreement clearly address the rights of management investors as to their company stock holdings in the event of their termination. Section 5(e) provides that a management investor may only be divested of his or her stock if terminated for “cause.” Section 1, in turn, sets forth a detailed, carefully crafted definition of “cause.” Clause (c) of that definition specifically speaks to a management investor‘s rights in the event of termination for a material breach, including a breach of the duty of loyalty. Insofar as the stockholders’ agreement speaks directly to the rights of a management investor in the event of the material breach alleged here, Balles is not precluded from seeking relief pursuant to its terms.
Judgment affirmed.