15 Mass. App. Ct. 992 | Mass. App. Ct. | 1983
The Fall River Housing Joint Tenants Council, Inc. (Council), the recognized representative of Fall River’s public housing tenants brought this action for declaratory and injunctive relief in the Superior Court alleging that the hiring of the defendant Martin “M.” Zenni by the defendant Fall River Housing Authority (Authority) as the Authority’s executive director violated an agreement contained in a “Memorandum of Understanding” between the Council and the Authority as to hiring practices. After a trial before a judge without a jury, judgment entered dismissing the complaint. The judge ruled that the “judgment of the court” in an earlier Superior Court case involving the Council and the Authority (the so called Frazier litigation, Bristol Super. Ct., Civil Action No. 8221, filed January 19,1979), in which the Council had challenged a different hiring decision of the Authority, precluded the Authority (and Zenni as one whose rights were derivative from the Authority) from raising any issue as to the “existence, form, adoption and approval” of the agreement. He also ruled, however, that the agreement had not been made upon legally sufficient consideration (or substitute therefor) and was thus without legal effect, an issue not precluded by the former “judgment.” Without becoming preoccupied with form, we think the working arrangement contemplated by the memorandum (as furthering the egalitarian management of the Authori
1. The Council’s argument that the issues in this case are precluded by proceedings in the Frazier litigation is based upon a fundamental misperception of the legal effect of the document referred to as the “Frazier judgment.” That document is, in fact, an agreement for judgment, assented to by the parties to the Frazier case, which provides in pertinent part that “[t]he Fall River Housing Authority and the Fall River Joint Tenants Council are and have been bound by the terms of the Memorandum of Understanding signed April 1978, which is attached hereto and incorporated herein.” This part of the agreement for judgment provides for declaratory relief. The agreement for judgment was therefore not capable of going to judgment under the terms of Mass.R.Civ.P. 58(a)(1), as amended, 371 Mass. 908 (1977), which allow the clerk to prepare, sign and enter judgment as a ministerial matter without awaiting any direction by the court. That provision expressly applies only to agreements for judgment for a sum certain or denying relief. Since, if it were to be adopted as the decision of the court, the agreement for judgment in the Frazier case would constitute “other relief,” it could not become the “judgment” of the court unless the court expressly approved it pursuant to Mass.R.Civ.P. 58(a)(2), 365 Mass. 827 (1974). Neither the agreement for judgment itself nor the docket sheet on which it was entered (both of which are part of the record) shows any evidence of the requisite approval by the court, nor has the Council claimed that the agreement was approved. It follows that there is no “Frazier judgment” to enforce or capable of precluding issues in the present case. See also Restatement (Second) of Judgments § 27 comment e (1980).
2. The judge’s ruling that the memorandum lacked legally sufficient consideration is erroneous. “The requirement of consideration is satisfied if there is either a benefit to the promisor or a detriment to the promisee.” Marine Contractors Co. v. Hurley, 365 Mass. 280, 286 (1974); see 1 Williston, Contracts § 102 (3d ed. 1957). The meaning of contractual “benefit” and “detriment” is well-established. See Graphic Arts Finishers, Inc. v. Boston Redevelopment Authy., 357 Mass. 40, 42-43 (1970); 1 Williston, supra § 102A, at 382. The record indicates that the Council incurred detriment by becoming bound, under the memorandum’s terms, to the performance of a number of specific time consuming duties and obligations which required the expenditure of considerable effort by its members. Even though these labors benefited the Council by giving it a voice in hiring, the fact remains that the Council committed itself to “doing something . . . which [it] was privileged not to do,” a recognized characteristic of consideration. See 1 Williston, supra § 102A,
3. We have no doubt that the memorandum governs the hiring of an executive director. The “Preliminary Statement” of the document states that it is to cover “all vacant positions on the staff of the Authority.” Although the word “staff’ is not defined, ensuing provisions point to the conclusion that the parties meant to include the executive director. A section labeled “Job Descriptions” requires the maintenance of detailed descriptions “for every job at the Authority” as part of the memorandum. Section 4(a) of the memorandum’s “Hiring Procedure” requires that “all vacancies” not filled by in-house transfer of personnel are to be filled under the procedure previously outlined, which is contained in the memorandum’s § 4. Section 4(g) of the procedure requires advertisements in certain newspapers “[i]n the case of a vacancy in the position of Executiye Director.” This last provision in particular would be completely out of place if the parties did not intend to cover the selection of an executive director. In reaching our conclusion, we have not considered the two controverted schedules labeled “Authority Work Force” and “Career Ladders” which were not completed at the time of the agreement’s execution but which, when later completed, incorporated in each case the position of executive director.
4. We do not consider the memorandum unenforceable because it lacks a termination date. We think this aspect of the case is governed by the analogous contract principle that an agreement of unspecified duration “might fairly be construed as one ‘terminable at will by either party upon reasonable notice,’” Simons v. American Dry Ginger Ale Co., 335 Mass. 521, 524 (1957), a principle which appears to be of general application to agreements of unspecified duration. See e.g. Emerson v. Ackerman, 233 Mass. 249, 252 (1919); Phoenix Spring Beverage Co. v. Harvard Brewing Co., 312 Mass. 501, 503, 506 (1942); Maddaloni v. Western Mass. Bus Lines, Inc., 386 Mass. 877, 879 (1982); Labrecque v. Niconchuk, 442 F.2d 1094, 1098 (1st Cir. 1971); Local Div. 589, Amalgamated Transit Union v. Commonwealth, 511 F. Supp. 312, 316 (D. Mass. 1981). See also 1 Williston, supra § 38, at 115-117. Even if a contract is ter
5. There is nothing in law or policy which would bar enforcement of the memorandum’s procedures. General Laws c. 121B, § 7, inserted by St. 1969. c. 751, § 1, authorizes the Authority to “employ” and “determine [the] qualifications” of an executive director and (in the same sentence) provides for the right of the Authority to delegate to an agent “such powers and duties as it deems necessary or proper for the carrying out of any action determined upon by it.” The memorandum’s hiring procedures do not involve delegation of the Authority’s ultimate right to hire, but merely establish a procedure by which the Authority makes its selection from among pre-screened qualified applicants presented by the hiring committee for consideration. The procedure unquestionably involves a delegation, in part, of the Authority’s statutory duty to “determine [the] qualifications” of its executive director, but that delegation is entirely consistent with the power of delegation conferred on the Authority by G. L. c. 121B, § 7. The Authority’s reliance on cases discussing “ultimate decisions” of a school committee, Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. 522, 525-527 (1978), is misplaced because the statutes which establish the powers of a school committee, including its hiring powers, conspicuously lack any provision comparable to the power of delegation given a housing authority. See G. L. c. 71, §§ 37, 59B. Even so, school committees have been required to adhere to negotiated procedures for resolving issues the determination of which is nondelegable, School Comm. of Boston v. Boston Teachers Local 66, 378 Mass. 65, 72 (1978), and cases cited, and are bound by statute to a process (similar in many respects to the voluntarily entered arrangement embodied in the memorandum) whereby a school committee may only elect teachers who have been nominated by the superintendent of schools. G. L. c. 71, § 38. This suggests that there is no public policy of general application which proscribes the sort of arrangement in issue here. We thus find nothing in the statutes or cases which deal with school committee hiring powers which militates against
6. We conclude that the Authority and Council had, at all pertinent times, a binding obligation to follow the hiring procedures set forth in the memorandum, and that those procedures governed the hiring of an executive director. Although terminable at will, no notice of termination would be timely under the memorandum with respect to the filling of particular job vacancies which have already been submitted to its hiring procedures . The record establishes that the position of executive director had been so submitted; that the Council performed its duties under the memorandum in good faith; that the defendant Zenni did not receive the recommendation of a majority of the hiring committee as a “qualified candidate”; and that the Authority hired him nevertheless, over three recommended candidates, despite its binding undertaking to make its selection from among those applicants who received a majority recom
So ordered.