Hennum v. City of Medina

Additionally, Josephine attended func- sponsored by

tions and for non-commis- encouraged officers’

sioned wives. She Ju- advantage oppor-

lio to take of educational military.

tunities while he in the After military, Josephine

Julio retired from the help support family

worked full time to completed

while Julio his education and nursing degree.

obtained a While the

record does not contain evidence that Jo-

sephine “put “belonged on teas” or Club,” hardly

Officers Wives it can be said Josephine did not contribute to Julio’s military.

career in the The trial court did Josephine

find that sacrificed her advance- by working get

ment so that Julio could facts,

education. Based on I these believe finding Josephine

the trial court’s did extensively assist Julio in his career clearly

advancement is erroneous and that assistance,”

the standard of “extensive if it something significant

means more than the homemaker,

contribution of a is incorrect

as a matter of law.

I would reverse and remand for a rede- equitable

termination of an distribution of Therefore, pension. I dissent.

MESCHKE, J., concurs.

Stanley HENNUM, Plaintiff, Appellant Cross-Appellee, MEDINA, Mayor Moser,

CITY OF Ernest

individually capacity his official Defendants, Mayor, Appellees

Cross-Appellants.

Civ. No. 11352.

Supreme of North Dakota. Court

March Bismarck, Little,

Dietz plaintiff, & for appellant cross-appellee; argued and Kathryn Dietz, appearance by Stephen L. D. Little.

Fleck, Mather, Mayer, Strutz & Bis- marck, defendants, appellees for and cross- appellants; argued Daniel L. Hovland. ERICKSTAD, Justice. Chief Stanley appeals judg- Hennum from the ment of limiting the district court his recov- ery damages breach for of an against City Medina, ment contract limiting recovery his for against tortious interference mayor Medina, Ernest Moser. Hen- appeals num also the district court’s dismis- sal of his claim for relief under 42 U.S.C. against Mayor Moser for terminat- ing employment his process. without due Mayor Moser of Medina cross-appeal judgment from the of the dis- trict finding court Moser termi- employment nated Hennum’s without au- thority, cross-ap- Moser further peals judgment from the district court’s that he had committed the tort of intention- al interference with contract when he ter- minated Hennum’s on Febru- ary 25, part 1985. We affirm that relating district judgment court’s to con- damages, contract, tractual breach of dismissal of the federal constitutional claim; however, reverse we holding district judgment justi- court’s fication for the dismissal immaterial in conjunction with the commission of the tort of intentional interference with contractual relations. July

On employed Hennum was action of the Medina Council as the person. On February 1985, Mayor Moser terminated Hennum’s city. passed affirming a motion Mayor Moser’s termination Hennum’s employment April on April 2,1985, On Hennum commenced an action damages resulting from his termination city employee. complaint dealing; In his

as a he continued to assert alleged relief which num several claims for his claims for breach of depriva- right privacy, violations of included tion of process, due and tortious interfer- contract, deprivation pro- of due ence with contractual relations. Hennum discrimination, cess, age inter- again partial and tortious for summary judgment moved ference with contractual relations. 24, on 1986. March damages in prayed general for the num 13, 1986, On June the is- district court $100,000 damages punitive and amount opinion, sued a memorandum granting par- $150,000. amount of in the judgment summary tial The Hennum. 30, 1985, April city and mayor On the district court concluded that there had been alleging, served an inter council answer the employment a breach of on contract alia, that was ter- employment Hennum’s 28, 1985, February when em- Hennum’s 28, 1985; February minated effective ployment Moser; was terminated Mayor job he without a written contract was court the also concluded that the description; performed that he City Council’s action ratified and city maintaining relative to the wa- duties affirmed termination the and became effec- streets, city system, city sewer ter and 27, 1985, April tive on the date of the laundromat, requested by and other duties passage ratifying motion and affirm- council; mayor and that he was the ing mayor. the termination the The was employed employment will and his district court further concluded that Hen- subject to termination or without num had established cause of action cause; fairly and that he and was treated tort for intentional interference with con- good faith and council. against tractual relations Moser because his unauthorized termination of Hennum’s 23, 1985, September mayor and On 28, 1985; February on how- judgment. summary council moved for ever, open left the court the determination partial summary judg- Hennum moved for as to damages of the claim for that tort. 17, ment on October 1985. On October finally court The district concluded that an the district court entered order was, by stipulation parties, Hennum dismissing Hennum’s claim relief for for employee an at will not entitled to federal age motions discrimination and denied the process. due An constitutional order summary judgment remaining for as to the granting partial summary judgment was issues. July on accordingly entered 12, 1986, par- stipulation March On 27, 1986, August On district court par- tial dismissal1 was entered into issued its and order stipulation agreed In the memorandum ties. Hennum orders, incorporated was elected that the earlier and that he an at will and pursue damages for breach of his claim for of an awarded $1,620.00, rep- good and implied covenant of faith fair Hennum for amount stipulation partial ployment plaintiff states: Further the does 1. The dismissal contract. wrongfully the defendants' not assert portions In accordance with "1. Action) (Second implied good covenant of faith breached an Breach of Contract Cause (Third dealing. complaint paragraphs Fifth and Fourteenth Amendment and fair See Action) plaintiff Therefore, allegations pled, the parties agree Cause that such 18-19. employment con- continues to claim that his claims are dismissed. City breached tract with the of Medina was "2. In accordance with the Tortious Interfer- City of Medina when Ernest (Fifth Action) Contract Cause of ence with plaintiffs employment terminated allegation plaintiff pled, to as- continues city although legal authority he lacked the sert that Ernest Moser induced or oth- so; violated the do and that such breach City its erwise caused Medina to breach rights plaintiffs federal constitutional under plaintiff contract with the Fifth and Fourteenth Amendments. the plaintiff actions, that, but for defendant Moser’s re- does not assert that ‘cause’ employment contract would not have been Medina, acting City through quired for the breached.” Council, the Medina to terminate his em- salary resents approximately Hennum’s for good “5. That mistake or faith on the one and one-half months. of defendant Mayor Ernest Moser as to the propriety of his act of tortious September On the district court interference with contract is not relevant concluded, judgment ordered part: proper for jury. consideration “1. Defendant Ernest Moser’s plaintiff “6. The is awarded plaintiff’s employment termination of the the defendant of Medina in contract on was with- $1,620 wages the amount of as lost legal authority out the Medina breach of representing one and respect Council’s inaction with one-half salary months’ and no offset for plaintiff’s termination breached the em- other income plaintiff earned from ployment contract City between the the date of April termination until plaintiff. Medina and the 1985. City That the Medina Council’s “2. “7. The period effective for the recov- 27, 1985, April resolution of affirming ery damages for the tort of intentional plaintiff termination of the is effec- interference with contract defendant only prospectively tive from the date of Mayor period Ernest Moser is for that resolution, i.e., April 27, 1985. As a time February 28, 1985, on or about result, damages for such con- April 27, 1985.” period tract are limited to that of time parties Both appeal judgment from the 28, 1985, between on February or about following raise the issues: April 1985. “3. plaintiff’s That the cause of ac- I tion for a violation of his federal consti- Whether or not the district court erred rights tutional under the Fifth and Four- in concluding Mayor that Moser’s termi- teenth Amendments is dismissed. The nation employment of Hennum’s plaintiff property has no interest legal without authority. employment that would entitle him to notice of the discharge reasons of his II opportunity respond before he Whether or not the district court cor- could deprived property that inter- rectly limited Hennum’s est. period breach of contract to that of time “4. That the Mayor defendant Ernest 28, 1985, April has, law, as a matter of committed the tort of intentional interference

contract as a result of his actions taken III on February to terminate the plaintiff. The tortiously defendant inter- Whether or not the district court erred plaintiff's fered employment by dismissing Hennum’s cause of action City of Medina in that: alleging process due failing violations for to state a claim upon which relief can be (a) there was a valid contractual em- granted. ployment relationship City between the plaintiff; of Medina and the IV

(b) Mayor the defendant Moser had knowledge of the employ- contractual Whether or not the district court erred relationship; ment concluding Mayor Moser commit- ted the tort of intentional inference with (c) Mayor defendant Moser intentional- by terminating contractual relations ly by inducing causing interfered or 28,1985. num’s on February breach of the contractual relationship; and The first issue is whether or not (d) resulting damages. there were Moser has expressly or provides him dinance impliedly upon ordinance section one conferred that “the City law by applicable or or appoint shall City and submit Council to terminate Hennum’s for approval confirmation, Council person. The ment as the following Auditor, City officers: As- is that: rule sessor, Attorney, City Engineer, and or powers and duties “[t]he may by such other officers as entirely upon chief rest almost executive expedi- deemed or of the charter proper construction ent.” Section one of the ordinance also bylaws munici- and the ordinances or provides of appoint- certificate “[a] passed pursuance pal regulations ment shall duly be issued to each of such authority, no authority. such He has appointed officers.” Section two of the except expressly impliedly or what “[a]ny provides ap- ordinance officer him or conferred charter pointed by Mayor may be removed law, gov- applicable by the council provided by Chapter 40-0819 acting erning body legislative within of the Revised Code of 1943.” scope of the law.” omitted.] [Footnotes McQuillin, Municipal Chapter 40-08, N.D.C.C., Corporations specif- does not (3d 1982). 12.43 ically powers mayor set forth the of the respect hiring city the firing to and of specific a ordi- City The of Medina has 40-08-19, employees; Section governs appointment of nance the which N.D.C.C., provides may that city pursu- “[t]he adopted officers the that was to any appointed by remove him when- 40-0819, 1943, predeces- ant to R.C. Section officer 40-08-19, is The or- ever he of the the interests sor Section N.D.C.C. perform pre- 2. IV. APPOINTIVE OFFICERS "Such officers shall the duties "CHAPTER by and scribed the statutes of North Dakota per- OFFICERS. No "Sec 1. APPOINTIVE by by the of this and the rules ordinances eligible by any son shall be to hold office regulations may time and which from time to appointment unless a the Unit- he is citizen of City prescribed by Mayor the and be Council. States; any person eligible ed nor be shall "Sec APPOINTIVEOFFI- 2. REMOVALOF any corpora- who is a defaulter to the office by Mayor Any appointed CERS. officer the City regular meeting tion. first of the At the provided by may by Mayor be as removed the the for aider- Council after men, biennial election Chapter of the Revised Code of 1943. 40-0819 thereafter, a or within reasonable time regular meeting the of the Council At next appoint to the the shall and submit officer, any after removal of the the confirmation, City approval and Council in writ- shall to the Council his reason submit Auditor, following City City the As- officers: officer, ing for and his the removal of said sessor, City City Engineer, Attorney, such successor, appointment whereupon the of a City may by be other as the Council officers appoint- proceed on Council to ballot the shall expedient; at the deemed original appoint- case ment as in the of an meeting September City first of the Council in provided. a In case of Assessor; ment as heretofore year City in a each odd numbered cause, vacancy any it be shall from other meeting City and at the first of Council original appoint- manner as an filled in like year April of each odd a Board numbered Officer, ment. consisting City Health of a Health Subject OF "Sec TERM OFFICE. Physician regular 3. competent who be a shall by Chapter Aldermen, provided power together of removal as practice, four who term 40-0819 the Revised Code of City Engineer shall a with the constitute Health, appointive a officer shall be of office of each such shall have and Board of and as years period the date of such powers of two from conferred law. exercise the Chapter appointment provided by City 40-1405 to con- case a failure of the Council 1943, except that appointment, Code of shall Revised firm such appointment out a immediately appointment is made fill to be where an vacancy, make another such City be remainder of it shall' acted in like manner is unexpired such officer proceed term. each case all of such offices and shall so until appointed is until his appointee rejected to hold office successor are An twice filled. Any qualified. appointive shall appointed officer time be Council cannot a third provided appointment and file a bond as Mayor. A take the oath certificate Chapter duly appointed of the Revised Code of 1943.” 40-1303 shall issued to each of such be Medina, Chapter Chapter of the provided by See Ordinances 40-14 officers IV, Sec. 1. Code of Revised by persons him employing demand such removal.” him under [Em- phasis express or implied though added.] persons such public themselves be offi- is term “officer” not defined cers, though be in 40-08, note, Chapter N.D.C.C. We how business, public or about a work or is ever, Legislature that the has authorized employee.’ mere Key State ex v. rel. city manager plan in a city manager Bond, 94 W.Va. 118 S.E. government to remove employees officers and in Sec 40-10-06(4), tion We further N.D.C.C.3 “We also have stated: apparently note that Hennum was hired ‘Among the criteria considered general pursuant power of munici determining position a whether is an palities contract and contracted “[t]o office a mere are 40-05-01(73), with.” Section N.D.C.C. See position whether the was created 40-01-02, also Section N.D.C.C. law; position desig- whether the municipal The distinction between offi- a office; qualifi- nated as an whether the explained cer and in Christo- appointee pre- cations of the have been Fairmont, pher 280 S.E.2d 284. scribed; tenure, duties, whether the (W.Va.1981), where court said: salary, pre- bond and oath have been a recognized “We have there is required; scribed or and whether the legal ‘public distinction a offi- position occupying one has been ‘public cer’ employee’ and a and that: representative a constituted of the sov- ‘As rule it be stated ereign.’ Syl. pt. ex rel. State Car- position public office when it Wood, son 154 W.Va. law, is created on with duties cast (1970).” S.E.2d 280 S.E.2d at 285. the incumbent involve an which exer- Municipal Corpora- See also 62 C.J.S. of portion sovereign cise some of the tions § power performance and the of which Hennum was hired public the of concerned, is and which are action of the continuing on their nature and not occa- city pers June as the sional or intermittent. But one maintenance who merely performs required of duties on.4 He was hired con- without written Minutes of the 4. 3. Section C.C., to authorize the removal of restrict the only the term officer in Section as officers. The fact that the moval of lows: Curtiss maintaince [sic] man for the "A Special This discloses that the of administrative department governing body.” ther shall have the "4. He shall civil service "Duties indicates that read: Mayhew, for the appoint ^[******] meeting city; provided, officers of 40-10-06(4), authority city manager. without first regulations was called to order by the Honorable appoint nor remove the Special Meeting following only. departments therein purpose N.D.C.C., and City Medina. Legislature Legislature if in duties: consulting employees remove, The granted Legislature effect, 40-08-19, dated June city manager reads as fol- head hiring he shall nei- knew how employees subject meant to the re- all heads as well a new used N.D. Alderman Gilbert MR HENNUM. ALDERMAN ERNEST MOSER AYE. July notice of two weeks. Mr Hennum would be motion agreed discussed and after “Mr Hennum “Interviewed and Stan Hennum and Duane Smith. Greg Moser, “The “The Curtiss ERNEST MOSER. "MEMBERS PRESENT: MAYOR "ALDERMEN: EMIL "ABSENT: ORVILLE NYE. $50.00 maintance meeting following Mayhew at Mr $825.00 hire Adolph Adolph Stan Hennum Duane Smith Rocky Reule Maynard Greg Moser was called to order Hennum would like to was called [sic] persons for the Aldermen Mr. GILBERT EVERDING AYE." EMIL SAM AYE Everding. a month with a raise in six months Moser, Moser Hennum, SAM, talking Link purpose were City. back [sic] Maynard GILBERT EVERDING AND VOTING IN FAVOR FOR present salary open of this was seconded by $ in and his Ernest Moser made a CURTISS MAYHEW. Mr Hennum hiring the Honorable 1000.00 950.00 725.00 950.00 880.00 Link, give a new man his employer Rocky salary interview. starting it Ruele, was was (1949) (“A description performed Corporations job municipal and he tract or maintaining the corporation may ratify duties relative to the unauthorized streets, city sewer city system, water acts of its officers where such acts are appar- city He and the laundromat. was scope corporate powers, within the supervised mayor ently directed otherwise.”). but city performance in the council argues certainly Hennum that “it these duties. questionable city governing whether a court “that Hen- district concluded body ratify can ever an unlawful act of a meaning not an officer within the num was city McQuillin, official” and relies of the State of North Dakota of the law (3d Municipal Corporations, 13.47 City of Medina.” Ordinances 1985), reads in which as follows: agree. We no legal “There can be confirmation or Hennum, city person, acts, ultra ratification of vires nor of acts not meet the criteria to be clearly does So, under a void law. where the charter as an officer articulated Chris- classified power upon exclusive the coun- conferred mainte- 280 S.E.2d 285. The topher, act, particular cil to execute the and it not a person position created nance officer, performed by was the act involving sovereign the exercise of law legally cannot be ratified.” Hennum, per- power. city maintenance municipal While it be true that a son, description fits of an appropriately acts, corporation ratify cannot ultra vires merely performs as “one who Basile, ex rel. Gaski v. 174 Conn. State him required by persons duties (1977), normally A.2d courts express implied him under an con- ing a distinction acts which are draw not ex- tract.” The ordinance does subject absolutely ultra vires because the remove pressly authorize completely beyond scope matter is employees.5 corporation’s powers municipal conclude We might only those acts which be considered Hen- without lawful to terminate gov sense ultra where the some vires approv num’s without council body jurisdiction has of the sub ernmental express such not al because was Greenway, v. 15 Wash. ject matter. State mayor ly impliedly conferred the or (1976); 216, P.2d C.J.S. App. 547 1231 63 by applicable by law the council. (1950). Municipal Corporations 761 issue is or not the The second whether correctly limited Hennum’s district court case, In Moser’s termi this damages for to that breach of contract employment Hennum was of the of nation 1985, 28, period of time between vires, the termination would but ultra that Moser terminated the date by vires if done the coun have been ultra 27, 1985, the employment, April num’s could, city by action taken cil. The council city approved the by the council date vote meeting, ratify duly a convened at mayor. action of the of Hen- unauthorized termination Moser’s employment because it was within num’s governmental general rule is that “a re municipal corporation’s authority to effectively it could the body may ratify what at him. As Hennum was an will 4 move lawfully have authorized.” previously the stipulated by parties, the Municipal employee, 13.47 as McQuillin, Corporations § 27,1985,6 Municipal city April (3d 1985). by action the council on See also 62 C.J.S. "Medina, City North Dakota 58467 mean Medina 5. This does not that the 27, April to re- could not authorize the 1985 Council city employee approval Nye by without move council, Orville "On motion made Alderman Headland, has not but that to date the council Ross and seconded Alerman Hennum, do so. acted to Stanley as termination affirm the of Medina, City engineer the of for City read: 6. The minutes 334 Ness, 244, sufficient

was and effective terminate N.W. 243. In 246 N.W. at this of Hennum’s as date. validity that Court affirmed the of the second Belen, 57, City See Sanchez v. 98 N.M. proceeding upheld the order of removal of (“Even (App.1982) city 644 P.2d 1046 if the city issued commission. manager’s discharge had un been invalid Thereafter, Ness commenced a third law- statutory authority, der his action salary during suit to recover his period city unanimously ratifying council wrongfully of time that he been had dis- discharge itself termi sufficient Ness, missed from his office. 251 N.W. employment.”). Sanchez’ nate Ness, 845, 843. In 251 N.W. this Court recognized city This Court has concluded Ness could recover his sala- governing body appropriate can take action city ry period from the of time ratify an earlier void act. See State ex wrongful dismissal subse- City rel. Ness v. Board City Com’rs of of quent generally lawful dismissal. See Fargo, 33, (1932), 63 N.D. 887 N.W. of and the Paul, Frain Saint 261 Minn. companion cases of State ex rel. 409, (1962) 795, (A city N.W.2d 796-97 v. Board Com’rs Fargo, Ness wrongfully who had been demot- 85, (1933), 63 N.D. N.W. and Ness payment ed “would be entitled to of his 231, 64 N.D. Fargo, 251 N.W. salary back foreman well as continu- (1933). ing compensation capacity in that until 887, Ness, city 245 N.W. commis- incapable perform- such time as he was city sion removed Ness as assessor without duties, ing his through was demoted lawful complying statutory existing pro- procedures, resigned.”); voluntarily cedures city for removal of officers. In City Tarpon Springs v. State ex rel. 1931, not, city commission could as Meister, 392 (Fla.App.1980); So.2d 1345 prescribed by statute, person ap- remove McQuillin, Municipal Corporations 12.- pointed to office unless there was cause for 184b opportunity the officer’s removal and an Accordingly, the district court cor for the officer to be heard. See Section rectly limited Hennum’s (1913).7 Ness, N.D.Comp.L. period breach of contract to that time statutory proce- N.W. removal between his dismissal Moser on Febru dures had not been followed ary April the date commission and this Court affirmed the affirming may- council’s action district court’s conclusion that the removal or’s unauthorized dismissal. of Ness from his office as assessor The third is whether or not was void. 245 issue N.W. at 892. properly district court concluded that Hen- Ness, After the city 245 N.W. com- alleging num’s third cause of action due again proceeded against mission Ness to process a violations failed to state claim office; however, remove him from in the upon granted. which relief can be proceeding complied second the commission statutory procedure process an and issued or- due clause of the United removing Ness, der Ness from “provides office. 246 States Constitution that certain 28, sioners, effectine [sic] 1985. Motion car- but no such officer shall be removed Aye ried on vote. except charges pre- for cause nor unless are “ROLL CALL: opportunity given ferred him and an Aye Vernon Heinle /s/ be him to heard in his defense. The board Nye Aye Orville /s/ may compel commissioners the attend- Aye Ross Headland /s/ production pa- ance of witnesses and the Betty Aye /%/’’ Ustanko pers purpose when of such hearing, proceed days 3808, and shall within ten (1913) N.D.Comp.L. provided 7. Section charges after the are filed with the audi- follows: tor hear and determine the case its "Every person appointed any office be merits.” by majority removed therefrom of votes of all the members the board of commis-

335 interests, course, “Property prop are not liberty, and rights life, substantive — they created the Constitution. Rather pursuant deprived except erty be —cannot created and their dimensions are de- are procedures.” constitutionally adequate existing understandings fined rules or v. Louder Board Education Cleveland 1487, independent from an source 532, that stem mill, 470 105 S.Ct. U.S. state law—rules or under- such as (1985). In Loudermill L.Ed.3d 1493, standings that secure certain benefits majority of 542, at 105 S.Ct. at U.S. support and that claims of entitlement to Supreme Court said: States the United those benefits.” process of due principle “An essential life, liberty, or deprivation of that a faced a similar constitutional issue We op preceded notice property ‘be 542, (N.D. Walstad, Lee v. 368 N.W.2d hearing appropriate to the portunity for 1985). Lee, determined that Lee we Mullane v. nature of the case.’ Central police employee, chief of and an at will Co., Trust 339 U.S. Hanover Bank & not entitled to notice of the reasons for his 656, 306, 313, 652, 94 L.Ed. 865 70 S.Ct. discharge opportunity respond and an (1950). ‘the root re have described We being deprived of his before Process Clause as quirement’ of the Due legislative intent to confer a absence given being ‘that an individual property interest in as chief of hearing he is opportunity for a 546, Lee, police. 368 N.W.2d we ex before in significant property deprived significance those plained the Connecticut, 401 U.S. Boddie v. terest.’ given some hired at and those who are will 379, 780, 786, 371, 28 L.Ed.2d 91 S.Ct. protection as follows: (1971) original); see Bell (emphasis posi- those “The distinction between 535, 542, Burson, 91 S.Ct. 402 U.S. given employee tions in which This 29 L.Ed.2d 90 posi- protection and those ‘at will’ some kind of a hear principle requires ‘some in a recent significant because tions are employ discharge of an ing’ prior to the decision, Education Board Cleveland constitutionally protected has a ee who Loudermill, 105 S.Ct. 470 U.S. employment. interest in his property (1985), majority of L.Ed.3d 494 Roth, [564], 408 U.S. Regents v. Board held Supreme Court the United States 569-570, [2701], at 2705 92 S.Ct. [33 supports the plainly a statute that where (1972)]; L.Ed.2d Perry v. Sinder possesses a that an conclusion man, 92 S.Ct. 408 U.S. employment, right in continued property (1972).” 2698, 33 L.Ed.2d 570 [Footnote the Four- Process Clause of the Due omitted.] States to the United teenth Amendment em- requires that before Constitution inquiry is critical whether Thus the right property ployee may be denied constitutionally pro- “has a not Hennum opportunity and an have notice he must requires that property interest” that tected as to determination respond prior to a kind of hear- given and “some he notice grounds to are reasonable there whether deprived of his being ing” before against the em- charges believe ment. ployee are true.” than a unilater- must have more Hennum correctly dis court The district employment; expectation of continued al for fail cause of action missed Hennum’s “must, instead, legitimate claim have a he relief can upon which ing to state a claim Regents Board entitlement to it.” of of of Hennum, at will as an 564, 578, granted Roth, because 408 U.S. Colleges v. State constitutionally (1972). not have a employee, does 2701, 2709, 548 33 L.Ed.2d 92 S.Ct. interest, the due under 2709, property 578, protected Roth, 92 S.Ct. at 408 U.S. Consti the United States clauses of process Supreme Court described the United States tution, in continued rights fol- as “property” creation of and a hear- requirement of notice which lows: 336

ing predicated, are and he has not shown or tractual justified relations is is basically a alleged even question that he was from his removed of fact.” employment for other unconstitutional or case, In this the district court concluded unconscionable reasons. partial summary judgment its that: The fourth issue is whether or not the “The [Mayor defendant tortiously Moser] correctly May- district plaintiff’s court concluded that interfered employ- or Moser had committed tort of inten- ment contract with of tional interference with contractual rela- that:

tions of result his actions taken on (a) there was a valid contractual em- terminating ployment relationship between employment. num’s plaintiff; of Medina and the (b) the defendant Folden, Moser had Realty Bismarck Co. v. 354 knowledge of the contractual 636, (N.D.1984), N.W.2d 642 we identified relationship; ment elements tortious interference with (c) contractual relations follows: defendant Moser intentional- ly by inducing interfered or causing a prima “In order to establish a facie case the contractual of tortious interference with contractual relationship; and relations, plaintiff must show that: (1) existed; (2) (d) a contract the contract resulting damages.” there were breached; (3) instigat was the defendant The district court also concluded that breach; (4) ed the the defendant did good mistake or part Mayor faith on the justification. so without Derosia v. Aus propriety Moser as of his actions tin, 647, Mich.App. 115 321 N.W.2d 760 was not relevant in the determination of Annot., generally See 34 A.L. tortious interference. The district court in (1970).” 720 R.3d its memorandum reasoned: 337, In Blair Boulger, 336 N.W.2d 341 “There can no doubt that a valid (N.D.1983), denied, 995, 464 cert. U.S. 104 employment relationship contractual ex- 491, denied, S.Ct. 78 L.Ed.2d Hennum, reh. 465 isted between Medina and U.S. 104 S.Ct. 79 L.Ed.2d 247 knowledge Moser had of this (1984), noting difficulty that courts contract. The intent element ap- also concept “justification” have had with the pears to be satisfied. The standard of we commented: (Moser) doing intent is that of the actor knowledge an act with the harm

“In our consideration of the first of reasonably issues, certain to be sustained concept these we note that the (Second) Hennum. See Restatement ‘justification’ clearly is not defined in the of Torts 8A and 766A comment law of e. § interference with § contractual rela- if ‘subjective Even Moser’s intent’ was Enterprises tions. See D. Seven Ltd. v. interfere, Fonzi, not but to exercise (E.D.Mich.1977); what he F.Supp. thought Am.Jur.2d, to be his valid fire Interference, 27. Yet it § Hennum, proper this is inquiry. generally conceded that the motive propriety Mistake as to the of the act is interfering defendant with contrac- inquiry not relevant. The must focus on highly tual relations is determinative certainty Moser’s reasonable of the re- the issue whether not his actions were (i.e. sult of his act termination of Hen- justification. without Stephenson See employment.) num’s Intent not deter- Corporation America, Plastics mined actor, mental state (1967); Minn. 150 N.W.2d 668 W. Prosser, consequences but the intended of his 2d, 2 Restatement Torts 4th Kitner, Ed., 942-943; Ill.App. act. Ranson v. Am.Jur.2d, pp. (1888).” Interference, 28.” Blair, In 336 N.W.2d at apparent we said that It is from the district court’s or not interference with con- memorandum “[w]hether the court relied Stores, interfere. Thus a contract at will is Toney Casey’s General upon, 1985), (Iowa protected Inc., usually N.W.2d not when defend- Corp. River Termi- Trading Westway any ant’s interference with it is based on 1982), (Iowa to 314 N.W.2d 398 Corp., nal im- legitimate purpose business and no support its conclusion. used, proper is as where one em- means ployer away employees of another hires in Supreme Toney, su- Court

The Iowa rights are terminable at Corp, supra, whose contract Trading Westway pra, and of tor- explain principle logically apply the elements fully will. The would did rela- with contractual interference agreement tious could not be en- court had because that apparently tions contract, agree- since such an forced as a pri- elements in sufficiently these discussed will, at as where a ment can be avoided Fisheries, Inc. v. or cases. See Stoller such mutuality. lacks all contract Co., 258 N.W.2d 336 Ins. Title American pro- interest plaintiff’s cases the Elevator, 1977); Co-op Inc. (Iowa Farmers tected, advantage prospective but as 1975); (Iowa Bank, 236 N.W.2d v. State corre- rather than as a with (Iowa Figge, 181 N.W.2d Clark v. greater freedom of action on spondingly 1970); Schaefer, 256 Co. v. Iowa Securities omit- part.” the defendant’s [Footnotes 219, 126 N.W.2d 922 Iowa Prosser and Keeton on Torts § ted.] the Iowa Toney, 372 N.W.2d (5th 1984). ed. held that Supreme Court a similar view. The Restatement takes against a de- to recover would be allowed (Second) of the Restatement Section 766A employ- inducing the breach of an fendant (1979) for intention- states the rule of Torts where the ment contract even performance al interference with another’s at will. The court was terminable contract follows: of his own contract as Keeton on part upon relied in Prosser and improperly intentionally and who “One 1984) (5th and the Restatement Torts of a con- performance interferes with (Second) The authors Prosser of Torts. marry) (except be- explain inter- tract tortious Keeton on Torts person, by in at will third ference contractual relations another and a with tween performing as follows: from preventing the other causing performance authority to the con- or “There is some the contract burdensome, contracts which trary expensive effect as to more to be. will, on the promissor may terminate at other for the liability to the subject to in- really nothing theory that there is resulting to him.”8 pecuniary loss per- option on his but an volved d, 766A, notes that Sec- comment Section However, legal eminent form or not. “contracts terminable applies to tion 766A notwithstanding, contrary writers to e, 766A, de- comment at will.” Section overwhelming majority of the cases purpose necessary intent and scribes have held that interference as follows: interference for intentional terminable at other contracts ment or this Section required for “The intent actionable, until it is termi- since will is The interference 8A. that defined subsisting rela- contract is a nated the his con- performance the other’s pre- tion, plaintiff, of value if actor desires intentional tract is possi- sumably to continue effect. if he knows that bring it about does, bear bility of termination substantially is certain or interference sustained, upon the issue of action. result of his occur certain to account taken into and it must be oas (See 766, Comment./). privilege to determining the defendant’s County City & Moser, In Trimble v. of Medina. the Re- pursuant Section 766A of (Colo.1985), Denver, the Colorado statement, qualify 697 P.2d 716 argues as a he does not However, it clear that Supreme Court makes of Sec- person.” in the context “third person. third is a person” case is the "third in this tion 766A the interference, However, ple “The must also of intent. the intent element improper. be to con- The factors in tortious interference with re- contractual determining inter- sidered in whether an requires greater culpability lations than is improper is are ference stated required principles. § under basic tort The One them is the actor’s motive Appeals United Court States sought to be ad- another is the interest explains Ninth Circuit this distinction in Together factors vanced him. these Fidelity Co., DeVoto Ins. Pacific Life purpose is of sub- mean that the actor’s (9th Cir.1980): 618 F.2d significance.” stantial ordinarily imputes “Tort law to ac- See also Prosser and Keeton on Torts tor to the intention cause the natural and (5th 1984) (“[I]t clear that is § probable consequences of his conduct. liability imposed only is to if the defend (Second) See 8A Restatement of Torts § plaintiff’s ant intends to interfere with the (1965). If case turned on the issue of relations, contractual at least the sense defendants’ intent in this sense of knowledge that he acts with that interfer term, say we would the trier of fact result, if, addition, ence will he acts find could defendants had the improper for an purpose.”); Guard-Life necessary state of mind to harm the bro- Corp. v. S. Parker Hardware Manufac kers, they were aware of the brokers’ turing Corp., N.Y.2d 428 N.Y.S.2d disruption business relation and knew its (1980) (“The 406 N.E.2d substantially certain to follow once keystone of the statement is the adverb principal contract with American was ”). ‘improperly.’ abrogated. Section 767 of the Restatement lists the requires “Tortious interference a state in determining factors whether or not inter- a purpose culpable mind and more improper ference is asor we have labeled than ‘intent’ under the Restatement defi- Folden, justification,” “without as fol- nition, however. The fact of lows: interfere, intent under a definition determining “In whether an con- actor’s imputed knowledge that includes of con- in intentionally interfering duct with a sequences, does not alone suffice im- prospective contract or a contractual re- pose liability. Inquiry into the motive or not, improper lation another is or con- purpose necessary. of the actor is The given following sideration is breach, therefore, inducement of does factors: always per- not vest third incidental (a) conduct, the nature of the actor’s sons with a tort action the one motive, (b) the actor’s who interfered. the actor’s Where con- (c) the interests of other with fraudulent, duct criminal or interferes, which the actor’s conduct aggravating absent some other circum- (d) sought the interests to be advanced stances, identify it those actor, specific whom the actor had a motive (e) protecting the social interests in purpose injure his interference and the freedom of actor and action liability accordingly. to limit The extent other, the contractual tort, interests of liability, in part for this is fixed (f) purpose the motive or proximity actor. or remoteness of the (Second) actor’s See Restatement of Torts conduct the interference and § j & d Comment 767 & Comment (g) parties.” relations between the (1979).” (Second) Restatement of Torts The affidavits of Moser and the court, arriving sug- district at the members the Medina gest intentionally conclusion that Moser inter that “Hennum was terminated be- properly perform fered with Hennum’s cause he failed to relied apparently upon princi- tort responsibilities concerning basic duties and WALLE, of the Justice, water sewer VANDE concurring city streets, system, specially. and other duties.” “[t]hat, Moser states in his affidavit I separately write to set forth I what dealings in Stanley at all times his with understand to be the rationale for what good Hennum he acted in faith and it was might appear otherwise to be an good understanding faith belief and which reaches conflicting inconsistent and Stanley job performance Hennum’s results. The majority opinion holds that was sub-standard and that his termination Moser’s act of dismissing Hennum was ul-

was in the best interests of tra vires. It further affirms the dismissal Medina.” of the Federal constitutional claim and re- portion verses that of the judg- trial court’s We believe whether or not ment which found tortiously that Moser “good Moser acted in faith” and in interfered with Hennum’s contract the “best interests of the of Medina” City and remands proceedings is relevant to the for further determination tortious to determine whether interference with contractual relations and or not Moser was justified in excluding terminating thus the district in court erred Hennum’s in ment. The conjunction majority opinion such evidence with this is affirms the sue. award of against to Hennum and for breach of contract. It is the give As the district court did not cre- may inconsistent, latter which seem if alleged dence to the fact that justified Moser was terminating in justified terminating in Hennum’s em- num, how can there be a breach of con- ployment, we reverse as to that issue and tract? The apparently answer lies in the remand for determination of that issue. action, i.e., various causes of in tortious determined, however, If Moser is on re- interference with contract the interference justification mand to have acted without requires greater must be intentional and terminating employment, Hennum’s culpability required than is under basic tort district court should then determine wheth- principles. Fidelity DeVoto Pacific Life immunity er or not Moser is entitled to as a Co., (9th Cir.1980). Ins. 618 F.2d 1340 public employee. immunity The law of Therefore, although the intent employees political subdivisions is set prove tortious interference con- 32-12.1-03, forth Section N.D.C.C. See dependent upon justifica- tract Moser’s Midway Township, McLain also termination, tion for Moser did not have (N.D.1982). N.W.2d 196 If this issue be- in- to terminate the contract material, comes the district court should sofar as the breach-of-contract action is pursue allow Moser to his claim of immuni- concerned, City’s liability under and the ty. of contract arises as a result of the Accordingly, part we affirm that City’s regard inaction to Moser’s ter- $1,620.00 judgment which awarded Although mination of Hennum. this city, judgment reverse that appear to be a tort rather than contract which held that a tortious interference with action, by the cause of it is not discussed occurred, remand for further majority; City’s but issue liabili- hearing justification as to for termination respect ty with to the breach-of-contract contract and for of immu- determination action- if Moser acted ultra vires was not nity justification if no for termination of separate I raised nor briefed as a issue. contract existed. concur in the result reached therefore majority opinion. LEVINE, J., PEDERSON, Justice, Surrogate concur.

MESCHKE, J., concurs the result.

PEDERSON, Justice, Surrogate sitting GIERKE, J., place disqualified.

Case Details

Case Name: Hennum v. City of Medina

Court Name: North Dakota Supreme Court

Date Published: Mar 2, 1987

Citation: 402 N.W.2d 327

Docket Number: Civ. 11352

Court Abbreviation: N.D.