Robert S. Ohanian, Cross-Appellant v. Avis Rent a Car System, Inc., Cross-Appellee

Before KEARSE and CARDAMONE, Circuit Judges WYATT, District Judge.* CARDAMONE, Judge: Circuit Defendant Avis Rent A Car System (Avis) appeals from a judgment entered verdict in the Eastern District of (Weinstein, New York Ch.J.) awarding $304,693 in damages Robert S. Ohanian for wages lost pension bene- arising fits from defendant’s breach a lifetime orally made plaintiff. also awarded Ohani- $23,100 in bonuses moving expenses that did depend on the oral contract. argues Avis that the alleged oral contract is barred frauds, the statute of is inad- missible parol under the and, evidence rule any event, that the evidence is insuffi- cient to promise establish a of lifetime em- ployment. Plaintiff cross-appeals seeking solely a new trial on the of damages issue claiming in the damage confusion calculation resulted a miscarriage jus- Unpersuaded tice. argu- defendant’s appeal ments on its and plaintiff’s on his cross-appeal, we affirm.

I BACKGROUND Plaintiff began Ohanian working for Avis in Boston in 1967. Later he was appointed Manager District Sales in New York, and subsequently moved to San By Francisco. 1980 he had become Vice President of Sales for Avis’s Western Re- gion. Mahmarian, Robert a former Avis general manager, testified Ohanian’s performance region in that was excellent. During what Mahmarian characterized bad, very “a depressed period,” economic Goldblatt, David I. City New York (Barry Region Ohanian’s Western stood out as the Felder, G. Proskauer Rose & Men- Goetz region growing one that was profita- delsohn, City, counsel) New York for According witness, ble. Ohanian defendant-appellant-cross-appellee. directly responsible for this success. Wall, Patrick M. (Oren New City York In the fall of Avis’s Northeast Re- Jr., Root counsel) New York City, of gion region with profit po- the most —the plaintiff-appellee-cross-appellant. “dying.” tential —was Mahmarian and * Wyatt, Honorable Inzer B. sitting United by designation. States District Judge York, Southern District of New yet Sharp subsequently received. decided that but not

then President Calvano Region needed new leader- form letters to Ohanian: one from the Northeast sent two logical other, candidate. ship prepared and Ohanian was Sharp to Ohanian and the return to They thought should Avis, Sharp. The sec- from Ohanian President of Sales New York as Vice ond letter was a form with boxes for Oha- According Mah- Region. the Northeast signify cheek to his choice of reloca- nian to tough it marian, “nobody anticipated how expense plans. checked one tion guy.” get the Ohanian was be to boxes, form, signed and returned Region, and for sev- happy in the Western Sharp. it to First, want to move. eral reasons did not fоllowing language on the appeared good in the developed a “team” he had signed form that Ohanian and returned: second, family he and his Region; Western hereby my understanding I also confirm third, area; and he Francisco liked the San nothing contained herein or in con- he position in his where was was secure change my position nection with the in get not want to involved doing and did well to constitute with Avis shall be deemed Head- politics in of the Avis “World obligation part an on the of Avis to em- in located the North- quarters,” which was time, ploy any period me for of and both and Calvano Region. Mahmarian east my I company and can terminate bring to Ohanian east and determined out to overcome his reluctance. at will. they so set him, phone first from After several calls to agreements or under- There are no other McNamara, then Vice President Sales standings respect my change in in Calvano, Mahmarian, finally and then position moving my Avis or the accept job to in Ohanian was convinced except as is set forth or re- residence Region. In Mahmarian’s the Northeast herein, your and in confirma- ferred to words, changed mind he Ohanian’s April me tion letter to dated promise, good the basis of that a man On undertakings agreements and the and set man, gоod proven he has his is a or al- forth therein cannot be modified he ability, and it didn’t work out and except by writing instrument in tered field, go or had to back out back signed by me and an executive officer California, else, fine. As far whatever of Avis. concerned, I se- as was his future was trial, said that he did not be- At I company, cure in the unless—and al- to check he read the letter other than lieve ways qualify he had to screwed —unless plan desired. He testified the relocation he own, up badly. Then he is on his did not intend this letter to be a that he then I he even indicated that worst change prior of his or to the terms get his because there [severance] agreement with Avis. degree responsibility was some on my- part management, Calvano moved to Seven months after Ohanian self, making this man make this Region, promoted he was the Northeast change. began President of Sales and National Vice Headquarters in security were at Avis World Gar- Ohanian’s concerns about work assurance He soon dis- City, met Mahmarian’s den New York. became “[ujnless up badly, screwed no position and in June satisfied with [he] going get fired ... way request, returned to pursuant [he to his [he was] compa- get never hurt here in this position would] his as Vice President of former accepted the and be- ny.” Ohanian offer Region. A the Northeast month Sales for Region early gan in the Northeast work later, age, July years at 47 February 1981. pay. severance plaintiff was fired without Within instituted this action. Sharp, He then April 1981 Ohanian told Fred termination, plaintiff ob- Personnel, three months of that he needed President Vice of Sales for promised, job as Vice President money that had been tained a relocation A American International Rent Car. His jury The returned with a verdict in which year’s salary first at American Internation- found: $50,000 $20,000 plus al was (1) bonus. proven That Ohanian had that Avis Avis, year-

When Ohanian was fired agreed employ him until he retired $68,400, ly salary jury and the found unless he was just terminated for $17,100 cause; that he was owed a bonus that he being had earned before fired. (2) That proven Avis had not that Ohani- an was just cause; terminated for evidence, At the close of the the trial (8) That Ohanian judge proven instructed the that to had find for that he was wages entitled to lost pension plaintiff it had to find that Ohanian’s con- benefits; versations with Mahmarian amounted to an oral contract that would not be (4) present That the value of Ohanian’s cause, except fired and that he wages lost $245,409; paid pay would be severance no matter (5) present That the value of Ohanian’s the reason for termination. what pension lost $59,284; benefits was judge also instructed the if it (7) proved That Ohanian he was entitled exchanged Sharp found the letters between $17,100 an award representing a contract, and Ohanian were a it must find bonus; and in favor of defendant. was fur- (8) proved That Ohanian he was entitled ther instructed that it found a contract to an award representing incidental cause, except just not to terminate expenses $6,000. relocation proved had to determine if defendant had Finally, to obviate the need for a new trial just the termination had been for judgment in the case of a n.o.v. or a cause. If the just termination was not for appeal, reversal on the trial court instruct- cause, jury then the should if decide Ohani- jury ed the to deliberate on the amount of wages an was entitled to lost and benefits plaintiff severance to which would have and, so, in what If jury amount. jury been entitled if the had so found. The just decided that termination was for cause jury found that Ohanian would have been or that it just was not for cause but Ohani- entitled to a pack- three-month severance wages was not entitled to lost and bene- age. fits, it would plaintiff have to determine if challenge jury’s Avis does not find- and, so, was entitled pay to severance ing proved plaintiff that it had not was what amount. jury given spe- The was a tеrminated for cause. Neither has it cial verdict sheet so that the court would appealed the awards for the bonus and know its answers ques- to all of the above expenses. parties agree relocation Both tions. applies. that New York law If found that was enti- benefits, wages tled to lost it was II DISCUSSION compute instructed to them first multi- A. The Statute Frauds plying plaintiff’s yearly salary by the num- years ber he would have remained principal argument Defendant’s is that Avis had he not been fired. The the oral contract that the found exist- then directed to add to that amount the frauds, ed is barred under the statute of pension (subd. a, 1) amount of para. benefits Ohanian would 5-701 of the General § amount, Obligations have received. From that total provides Law. Section 5-701 part: amount had earned and relevant employment earn from other pen- and the Every agreement, promise or undertak- benefits from void, sion other ing is unless it or some note or to deducted. The sum be reached was then writing, memorandum thereof be in present party charged to be reduced to its value. subscribed to be therewith, agent, may or his lawful if such Whatever regard be fact with statute, agreement, promise undertaking history or of the ... and whatever may have been the [b]y performed arising its terms is not to be diffiсulties proof making agree brought that all sides year within one from the thereof about the enactment of the performance or the of which is not to statute frauds over be years ago, today. it is an anachronism completed the end of a lifetime. before The prompted passage reasons that its no long purpose It has held that the been longer And, exist. serving far from aas the statute is to raise a barrier to fraud barrier to fraud—in genuinely the case of a parties attempt prove legal certain when aggrieved plaintiff enforcing barred from particu- that are deemed to be transactions an oral contract—the actually statute mistake, deception, larly susceptible Note, shield fraud. The Statute Frauds perjury. Boening, D Inc. See & N Fraud, as Bar to an Action in Tort for 449, 453-54, Beverages, 63 N.Y.2d Kirsch (1985). 53 Fordham L.Rev. 1232-33 (1984). 472 N.E.2d 992 fact, perhaps New York courts provision making The void oral con- believing also application that strict performed tract “not within one prevents, statute causes more fraud than it year” injustice might prevent is to have warily. tended to construe it faulty memory from a result either or the one-year provision has been held not to absence of witnesses that have died or preclude an oral contract unless there is id.; moved. See Corbin Contracts slightest possibility “not ... that it can at 534 § fully performed year.” within one that inconsistent fact theories have 535; 444 at Corbin on Contracts War § explain been advanced the statute’s en ner v. Railway, Texas and 164 U.S. Pacific perhaps light actment sheds on modern 418, 434, 17 S.Ct. 41 L.Ed. 495 courts’ strict construction of it. Par (1896)(“The question proba is not what the liament An Act enacted for Prevention of ble, expected, performance or actual Perjuries Frauds required 1677 that was; the contract but whether the con certain contracts to be evidenced tract, according to interpre the reasonable signed writing. theory One for its enact terms, required tation of its that it should ment was that evidence of oral contracts performed not be year.”); within the Boen susceptible tended to be perjury 455, 164, ing, 63 N.Y.2d at 483 N.Y.S.2d inherently See, e.g., unreliable. Burns v. (“this 472 N.E.2d 992. court has continued McCormick, 233 N.Y. 135 N.E. analyze agreements if, to determine (1922) (Cardozo, J.) (passage 273 of the according terms, parties’ might statute of necessary frauds was because of any possible performance be means of “peril of perjury spo latent in ... year”). within one promise”). premised ken This view is long ago It was established that theory plaintiff an interested will meaning is not the of the statutе that [i]t testify untruthfully about the existence of performed the contract must be within a an oral contract. Another view derives year_ obligation of the con- [I]f century from the fact that in a seventeenth not, terms, by very tract is its or neces- parties trial the and all others interest construction, sary longer to endure for a ed in the incompetent outcome were period year, agree- than one it is ‍​​‌‌​​‌‌​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌​​‌​‌​​‌​‍a valid testify Plucknett, as witnesses. T. A Con ment, although may capable of an History Law, cise the Common 55-56 continuance. indefinite (2d 1936). hurdle, ed. To overcome that so theory goes, parties legal desiring pro Baptist Trustees First Church v. Co., 305, tection for their transactions Brooklyn had to em Fire Ins. 19 N.Y. 307 body (1859). Therefore, them in documents whose contents a contract to continue authenticity easily longer year, ascertainable. for than a that is terminable at at party against Id. 56. whom it is will enforced, being is not.barred the statute What defendant fails recognize is that capable being of frauds it is because under New York law cause” for ter performed year. one may within See North mination exist for reasons other than Bottling Sons, employee’s Thus, Shore Co. v. C. Schmidt & an breach. for example, Inc., 171, 176-77, 22 N.Y.2d in 292 N.Y.S.2d McGraw-Hill, Inc., Weiner v. 57 N.Y.2d 86, 458, Similarly, 460, 239 N.E.2d 189 193, it has 457 N.Y.S.2d 443 N.E.2d 441 provides (1982), been held that a which was induced to leave party may rightfully that either position terminate his former up take year within the falls outside the McGraw-Hill, statute. with defendant part by an 69, 72-73, Voigt, Blake v. 134 N.Y. 31 N.E. assurance from representative defendant’s (1892); see Corbin on Contracts that “since his company’s firm policy was at 564. not to terminate employees § ‘just without cause’, employment would, by it among When does an oral contract not to be other things, bring him the advantage of performed year within a fall within the job security.” company handbook de strictures of the statute? A contract is not scribing its policies stated, dismissal performed year” “to be within a if it is “ company will resort to dismissal ‘[t]he only upon terminable within that time just and only_ sufficient cause How parties. breach of one of the Boening, 63 ever, if the welfare of company indi 456, 164, N.Y.2d at 483 N.Y.S.2d cates that necessary, dismissal is then that N.E.2d 992. That rule logic derives from decision is arrived at and carried out forth “[performance, any- because if it means ” rightly.’ 460-61, 193, Id. at 457 N.Y.S.2d all, thing ‘carrying at out the contract 443 N.E.2d 441. The New York Court of doing requires permits’ what it and a ... Appeals arguably held that the oral con breach is the unexcused failure to do so.” question tract “whether terminable at (citing Voigt, Id. Blake v. 134 N.Y. at just cause, will or not one [was] 256). 31 N.E. The distinction is between an which, terms’, ‘by its pеr could not be provides oral contract that for its own ter- and, year therefore, formed within one hand, mination time on the one not one which barred.” Id. at [was] [was] an oral contract that is terminable within a 457 N.Y.S.2d 443 N.E.2d 441. year only upon its breach on the other. proved The former Later, *, in Boening, 63 N.Y.2d at 456 n. the latter is barred the statute. 472 N.E.2d the court noted that “the reference ... [Weiner ] Avis contends agree its oral to an ‘only terminable ment with Ohanian is barred the statute falling cause’ outside the Statute of Frauds performable frauds because it was not is not to including be construed as year. within a Avis claims that it could agreement ‘just where cause’ can only be only plaintiff fire if he breached the con party’s (emphasis the other breach.” add- tract, and breach of a per contract is not ed). Boening recognized court there- formance. Defendant further states that fore that some contracts terminable for option plaintiff an in alone to the terminate require cause” do not a in breach will, contract at if there in fact such an order to In Boening, terminate. the court option, agree also would not remove this supply determined that contract ment from coverage. the statute’s See question required plaintiff to “conduct its North 22 Bottling, Shore N.Y.2d at 177 n. subdistributorship satisfactorily, exerting 3, 86, 189; 292 N.Y.S.2d 239 N.E.2d acting good its best efforts and faith.” Belfert 753, Peoples Planning Corp., v. 22 Misc.2d 458, 164, Id. at 483 N.Y.S.2d 472 N.E.2d 755-56, (1959), 199 N.Y.S.2d 839 only 992. Defendant was allowed to termi- aff'd mem., 760, (1st 11 A.D.2d 202 N.Y.S.2d 101 nate satisfy the contract for failure to 1960), mem., Dep’t 11 requirements. N.Y.2d 226 those the only possi- Since aff'd (1962). N.Y.S.2d 181 plaintiff’s N.E.2d 630 ble cause termination was 108

breach, the contract was barred the B. The Parol Evidence Rule statute of frauds. urges Defendant next any that claims based on the oral be case, just In the instant cause for dis- tween Ohanian and Avis are barred by the missing plainly any Ohanian would include parol says evidence rule. Avis that contract, drinking breach of the such as on unambiguous clear and April letter of work, job refusing or to since the signed by plaintiff, 1981 was and it contra agreement contemplates plaintiff giving his plaintiff’s dicts prom assertion that he was But, noted, just best efforts. cause can ised lifetime and severance on may be broader than breach here there is, course, termination. It a fundamen just to cause dismiss without a breach. principle “that, tal of contract law where illustrate, To under the terms of the con- parties bargain, have reduced their any or possible tract it despite plain- would be it, writing, element of to parol evidence best efforts the tiff’s results achieved аpplies prevent rule its parol variance might prove poor because of adverse mar- Laskey evidence.” Corp., v. Rubel ket conditions. From defendant’s stand- 69, 71, (1951). N.Y. 100 N.E.2d 140 point that too would force Avis to make a argument Avis’s very fails for a basic change in its strategy, perhaps business reason: found April 21st reducing closing operation. is, or That letter did not constitute a contract between just plaintiff’s there would be cause for it and judge Ohanian. The trial had cor- occurred, dismissal. But if this is what rectly instructed the it found agree- would not constitute a breach the letter to be contract it could not find ment. Best efforts contemplated by plaintiff, plain- and the found for parties, results were not. Defendant tiff. Parol evidence is excluded when plaintiff was anxious to have relocate be- used as an attempt vary modify success, past cause of his plaintiff but existing terms of an written contract. See guarantee made no produce certain re- Abrams, Kirtley (2d 299 F.2d Thus, sults. this oral contract could have Cir.1962)(the preclude par- rule does not just been terminated for cause one within ty attempting “from to show that year, without plaintiff, breach any agreement never was such as the writ- is therefore not barred the statute of ing purported be”); Whipple v. Brown frаuds. Co., Brothers 225 N.Y. 121 N.E. (1919) (“One cannot made to stand Defendant’s further claim that a on a make.”); contract he never intended contract does escape statute it is 3 Corbin at 385 Contracts § only by terminable at negat will ed the fact that the provided contract quite This case is unlike Franzek v. Cal could be terminated for rea span Corp., 78 A.D.2d sons other than plaintiff’s breach. As (Fourth Dep’t. upon which de stated, defendant plain could fire the fendant plaintiff, relies. Franzek the tiff on account of conduct that would not about to embark on a hazardous “white constitute breach of contract. Where ei River, water” Niagara raft ride party rightful ther under the signed handed and a release form. He ly year, terminate within a the contract is later claimed he had not read it. Such outside the statute. See North Shore Bot part failure on his was held not to raise an tling, N.Y.2d at 292 N.Y.S.2d issue of fact to relieve of its effect (quoting 239 N.E.2d 189 approval against when the release was asserted Voigt, 256) Blake v. 134 N.Y. 31 N.E. injury. claim of Id. at 434 N.Y.S.2d 3; Stations, and 177 n. Nat Nal Services contrary 288. appears But in the Wolf, 332, 336-37, Inc. v. 304 N.Y. 107 present strong case where there is evidence (1952). N.E.2d 473 support jury’s in the record to finding writing was not only intended to be a found, cause is evidence of form; contract: the letter on a was promise that is not sufficiently definite and response sent to Ohanian in request to his for that reason cannot be enforced. It is expenses; for relocation “that, he testified true before the power of law can be that he did not believe he read the letter invoked to enforce a promise, it must be other than to check indicating a box sufficiently certain specific so that type of relocation reimbursement he want- promised what was can be ascertained.... ed. Most significantly, no Thus, evidence was definiteness as to material matters is presented suggests that that either Ohani- of very essence in contract law.” Jo Sharp, the Avis Vice President seph Martin, Jr., who Delicatessen v. Schu sent plaintiff, the form to macher, intended it to 52 N.Y.2d define the terms of Ohanian’s employment 247, (1981) (citations 417 N.E.2d 541 omit with Avis. ted); see also Housing Brookhaven Coali Solomon, tion v. (2d 583 F.2d C. The Sufficiency Evidence Regarding of Cir.1978)(“[t]o consummate an enforceable Employ- Avis’s Promise Lifetime of agreement, parties must not be ment they lieve that contract, have a they made must expressed also have their intent in a says Avis that inasmuch as the evi susceptible manner judicial of interpreta dence of an promise oral of lifetime em tion”). Yet, promises of lifetimе employ ployment was insufficient as a matter of ment long have been if enforced found to law, that issue gone should not have supported by sufficient consideration. jury. It relies on Safeway Brown v. See 9 Williston on Contracts Stores, 1017 at Inc., F.Supp. (E.D.N.Y. § (3d 132-35 1967); & nn. 17-19 ed. 3A Cor support as argument. De bin on Contracts 684 at 229 De § fendant can draw little solace from Brown. fendant does not contend that Ohanian’s In that case the claimed assurances were consideration for promise of lifetime ways made in several including meetings of employment relocation San Fran group a of employees purpose of — his —the cisco to inadequate. New York — was which was not to length employ discuss of during ment—or casual conversation. Id. D. Damage Defendant’s Arguments at 299-300. The conversations were not here, conducted in an atmosphere, as finally urges Defendant that Ohanian’s critical one-on-one negotiation regarding complaint alleges any the terms of employment. Further, future between Avis and liq- Ohanian contained a in Brown the district court found as a damage clause, uidated and that therefore matter of fact that alleged promise damages awarded excessive. De- employment lifetime was never made. portion fendant plaintiff’s rеfers to ‍​​‌‌​​‌‌​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌​​‌​‌​​‌​‍a contrast, in the instant case the complaint evidence which states: ample permit the jury to decide event, in any plaintiff’s if employment whether statements made to Ohanian with Avis should be terminated for defendant were more than casual com reason, he would be entitled to the nor- pep ments or mere talks delivered mal Avis Vice President’s severance com- management group employees. to a All pensation on the basis of one month of surrounding fully year employment benefits for each circumstances— related earlier —were sufficient for the the time of termination. in fact to find promise that there was a agree We the severance employment lifetime employee a “star” package liquidated was intended to be dam who, hoped, it was “dying” would revive a ages, it would set a maximum on the recov corporation. division of defendant ery. Nonetheless, correctly argues points out, liquidated further even damage clause promise of lifetime express agreement terminable must be the result of an

110 denied, 873, (2d Cir.), 95 cert. 419 U.S. not read 79 courts will parties; between (1974). 134, 42 112 Federal implication. L.Ed.2d S.Ct. into a contract such a clause Winkelman, 606(b)provides: 208 Rule of Evidence See, v. e.g., Winkelman (1st Dep’t 68, 70, 63 203 N.Y.S. Aрp.Div. testify any mat- juror may not [A] 1924). anything clear from It but is occurring during the ter or statement intended the severance plaintiff record or jury’s deliberations ... course of the damages regard- his package to constitute processes in con- concerning his mental terminated. he was therewith_ less of the reason may Nor his affi- nection suggests Quite contrary, the evidence of statement davit or evidence given package was to be that the severance he concerning a matter about which him up” in some only if he “screwed testifying precluded from would be a breach constitute manner that would purposes. these received for of life- his contract and defeat the contract this subject jury notes fall within employment. time to attack the thus not be used rule and finally contends that Defendant impeach jurors’ notes to To use verdict. jury to the on instructions the trial court’s would, Supreme as the Court verdict damages unreason compute how to feared, “make what McDonald v. Pless Allowing jury compute able. deliberation, private intended to be a have received until plaintiff would amount public investiga subject of the constant contract, according end of his the natural of all frankness the destruction tion—to But Avis, gives a windfall. and conference.” and freedom of discussion jury to sub also instructed the court 267-68, 35 S.Ct. at 784. See 238 U.S. anything Ohanian from this amount tract Refining & v. Humble Oil also Domeracki from other and would receive had received (3d Cir.), 1245, Co., 1247 cert. 443 F.2d reduce the amount ar and to 212, 883, 30 denied, 92 S.Ct. 404 U.S. Contrary to present to its value. rived at (1971); Polley, 689 v. L.Ed.2d 165 Carson view, is a reasonable and defendant’s Cir.1982). 562, (5th F.2d 581 determining future dam method of correct wages. Chesapeake & ages from lost See juror notes than the Other 485, 488, 36 241 Ry. Kelly, v. U.S. Ohio ordering a new trial is no basis for (1916); Doca 60 L.Ed. 1117 S.Ct. ordering trial on such a damages. Before S.A., Nicaraguense, v. Marina Mercante damages appeals inadequate account of Cir.1980), 30, (2d 37 cert. denied 634 F.2d the amount awarded court must find that “ Corp. Stevedoring v. nom. Pittston sub justice it would be a denial so low ‘that 2049, 971, 68 Doca, 451 U.S. 101 S.Ct. stand,’ hence, ‘an abuse permit it to L.Ed.2d discretion,’ every giving the ‘benefit ” judge.’ of the trial judgment doubt Cross-Appeal Plaintiff’s E. Nederlandsche Sto Koninklijke v. Yodice claiming cross-appeals Plaintiff F.2d 706- Maatschappij, 471 omboot in its hopelessly confused that the curiam), denied, Cir.1972) (2d (per cert. result damages, and the computation of 1902, 36 L.Ed.2d 393 93 S.Ct. U.S. as to consti damage award so low was a (1973) Long v. Island (quoting Dagnello miscarriage justice. Ohanian bas tute a (2d Company, 289 F.2d Rail Road analysis claim of confusion оn es the meet Cir.1961)). here does not The award deter made while the notes a new trial criteria needed to obtain damages. It is well-established mining inadequacy. because may not juror from a that evidence jury’s Mc impeach the verdict. used to Ill CONCLUSION 267-69, Pless, 238 U.S. Donald v. appealed Accordingly, judgment (1915); 783, 784-85, see 59 L.Ed. 1300 S.Ct. is affirmed. Dioguardi, 492 F.2d United States

m WYATT, dissenting: Judge, District that Avis was entitled to recover from him a sum to be determined. Believing employ- that the oral lifetime by as claimed is ment contract II York void under the New Statute Because of way the the case was tried Frauds, compelled I am to dissent. The and the form of questions put the to the only in appears decision not to be jury, appeal the decision of this turns on error, particularly unfair to but also to be meaning the “just cause” for the con- way light defendant in the case was tract here in suit. tried, judge the instructions of trial already noted, As “just words cause” ques- jury, special the form of the by parties never used in the oral jury. tions submitted to the they made. The actually words Although disagreement no there is used were that Avis would not terminate expressed majority opin- ably much of the employment Ohanian’s unless totally “he ion, us needs to be care- the issue between (Aup” 281-82); screws Avis told Ohanian: fully explained. you “unless up badly screwed there is no

way you going gеt (A 304). are fired” I Counsel for Ohanian has any avoided state- right ment of the of Avis to terminate in contract,” employment as “oral contract; the actual words of the counsel (Brief by claimed Ohanian in this Court for prefers for Ohanian “just to use cause” Ohanian, 7)p. at all times since the —and place actually of the words used. Counsel (A 6-18; began “A” action references are this, object for Avis did not apparently pages Appendix) I of volume of the Joint part always because Avis has claimed that employment —was a “lifetime contract” employment agreement written, was (Brief Ohanian, p. for which he could oral) and by was terminable either side {not time, any terminate at but which Avis time, part at and in because Avis rea- “just could terminate cause.” The sonably “just in- believed that cause” was “just evidence showed that the words synonym “totally tended as a screws cause” were never used. The evidence for up” up badly” or “screwed would be showed, believed, that Ohanian (and was) such; defined to guaranteed job his for life “unless he belief is reflected in the definition of (A 304), totally up” screws that Ohani- requested by cause” Avis as a instruc- an was told he fired “unless support tion and in the authorities cited to you (A 304). up badly” screwed “Just 23-24). (Court Exhibit A legal cause” was the term selected coun- question put which should have been sel for Ohanian as a translation of the view, jury, my to the is: Did Ohanian actually “totally up” words used: screws prove agreed employ him that Avis until up badly.” and “screwed he retired he was terminated unless be- The answer of Avis denied the existence “totally up” he or cause screws “screwed employment of the oral averred contract as up badly”? Ohanian, pleaded as an affirmative de- however, requested, employment governed fense question put jury using the ex- agreement April a written dated pression “just cause” instead of the con- 1981, under which both Avis and Ohanian “totally up” tract words will,” “can terminate [his] up badly,” objection “screwed and without pleaded as an affirmative defense the Avis, Judge from Chief Weinstein did so. (Jurisdiction New York Statute of Frauds. by plaintiff diversity had been based undisputed It that under the New Frauds, citizenship.) agreement The answer also contained a York Statute of if an alleging party solely counterclaim one Ohanian “fraud- be terminated ulently expense agreement by par- the other reports” submitted and breach of ¿fouls

ty, Avis is if totally up. is barred Statute he of Frauds. This is breach of the no issue because There’s here about whether or agreement not Mr. Mahmarian performance. is nоt told him or he under- stood that if Avis somehow needed to many ago years It had been determined reorganize or it was in the best inter- party might that where either terminate at est Avis for numerous reasons which year, rightful ter- will within the one this Boening were, specify they didn’t what performance and took mination was the they but said there could be other rea- contract out of the Statute. Blake v. sons employees other than the miscon- 69, 72, N.Y. 31 N.E. 256 Voight, 134 termination, duct which could lead to but But it is otherwise when the contract present those aren’t here. Mr. Ohani- only by be terminated for a breach the Page an’s own words on 54 of the tran- party. “Being only by other terminable that, script was I will stay at Avis un- breach, agreement alleged in plaintiffs the totally less I up. foul complaint by was not one which its possible So that the only reason year. performed terms could be within one for year to end is such, As it came within the ambit of the before grounds of defeasance on the being Frauds and is Statute of void grounds wrongful by conduct Mr. Boening Beverages, unwritten.” v. Kirsch Ohanian, type some cause. 63 N.Y.2d Now, prov- it is not a contract is (1984) which (emphasis in original). N.E.2d 992 by able because it’s barred the statute of contended, Avis has and does so in this again frauds. And we renew our motion Court, that the Statute Frauds makes to dismiss the lifetime claim on the agreement princi- the oral void under this grounds of the statute of frauds. That’s (Brief, 13; ple p. emphasis origi- because part the second of our motion. nal): The COURT: Decision reserved. plaintiff [general Both and Mahmarian rested, After sides both had the motions manager for Avis when contract was made; again Avis were renewed and decision dismissed about the same time as (Tr. 799). reserved the district court So testified that could re- Ohanian] record, far as can be found from the main at Avis until retirement unless he motions, totally Thus, was never decision up. fouled on the but only “just judgment terminating agreement cause” for the fact that was entered verdict, party’s [plaintiffs] would “be the other on the it must be assumed alleged agree- by implication they breach.” Plaintiffs that sub silentio and squarely denied; denial, it, ment holding falls within the in were as I see was Boening any event, and its enforcement barred erroneous. there is no indica- by the Statute of Frauds. tion in the record that counsel for Ohanian argued ever that Ohanian could be termi- argued Avis at trial the oral con- “if nated adverse market conditions.... tract to which Ohanian had testified trial would force change Avis make a in its deposition and Mahmarian had testified strategy” business or “for reasons other meant that Ohanian could bе dismissed plaintiff’s breach,” than as the him breach of the contract. contrary, now holds. To the Ohanian has trial, After the had rested at always insisted that he was induced to moved, motions, among other to dismiss on only by leave California an oral contract the Statute of Frauds. The discussion at giving him job security lifetime unless he point argument by ended with an coun- “totally up”. (Tr. 679-80; sel for Avis as follows “Tr.” pages references are to stenographic Ohanian therefore has never claimed that transcript; emphasis supplied): any right except Avis had to fire him for a So what did Mr. Ohanian tell us? He breach him of the oral contract. Coun- only way get urged entirely said he can sel for has fired dif- argument application ignored to defeat (Tr. the duties of his office” ferent Frauds, (Brief, pp. 16-17): that he Statute made “a against bid which is com- pany policy” and “refused to abide Here, by the clearly, description is a of Ohani- (Tr. 854), rules” that he taking admitted option an’s to discontinue the contract girlfriend charged to Boston and all ex- he were dissatisfied with how it was penses (Tr. 857), to Avis and that he admit- working option Boening, out—an which ted “a thousand dollars worth of false later, years say some two was to took (Tr. charges” 858). Counsel for Avis ended out of the Statute of (Tr. 863) the summation stating (if there). Frauds evеr it was “plaintiff has you told that he would not be Although party neither ever made the fired Avis unless totally up. he fouled court, claim in or in the this Court trial say We that he had no such 6717) majority (opinion, p. now holds Avis, did, but even if he the evidence under the oral contract here suit “there you have heard establishes conclusive- to cause dismiss without a ly July really that Mr. Ohanian in of 1982 reason, breach” For this Ohanian. up.” fouled majority rejects application of the Stat- The case for presented Ohanian as to the judgment ute of Frauds and affirms the jury in emphasized summation that Ohani- against being no Avis. There evidence that primarily an was job concerned about se- employment gave the oral Avis curity, that he must job have his for life any right to dismiss Ohanian unless he unless there part. was fault on his up badly,” totally “screwed unless “he proposal Mahmarian, through to up,” my screws the Statute of Frauds agreed, which quoted by Ohanian his void; view makes the oral contract counsel in summation to the from the clearly wrong. seems deposition Mahmarian, as follows: guarantee I job. would this man his Ill way, long There is no as he has done a presented The case for Avis as good job, totally up unless he screws jury in summation was that “Ohanian was somehow, get and even then he can’t employee a dishonest company who broke hurt, give because I him will the month policy neglected responsibilities” severance_ per year (A 281-82; em- (Tr. 823). beginning This was the phasis supplied). argument summation for Avis. The quoted Counsel for also Ohanian Mahmari- contract, also made for Avis that a written (Brief, 8): p. to this Court signed by parties, party both allowed either Q. explicitly did you And tell Mr. Ohani- governed terminate at will and their an that he would not be fired unless relationship. If the were to find that it was for cause? intended, no such written contract was up, A. I Unless he screwed didn’t use then the oral contract would using the word—I remember become the issue. Counsel for Avis re- you up screwed. Unless screwed ferred summation to evidence that Oha- badly, way you go- there is no are nian was told that he would not be fired (A 304; ing get fired_ empha- (Tr. 830), you totally up” “unless foul “un- supplied). sis up (Tr. 835), badly” less he screwed “if he argu- job, up, didn’t do the Counsel for Ohanian concludes his he screwed he (Tr. 836), asking security ment that go Ohanian was right out” “he has a (Brief, 9): p. stay at Avis the rest of his life he unless (Tr. 846), totally up” fouls that Ohanian had security Ohanian’s concern for “malfeasnace, was terminated for dishon- per- been satisfied. Mahmarian’s thus (Tr. 847), stealing firing anyone ors” that Ohanian was policy sonal of not without (Tr. 852), explicit from Avis that Ohanian was “a made just cause was Ohanian dishonest,” person person who was “a who of Avis. behalf argument The further for Ohanian to the Wasn’t that a thing sensible to offer jury in was that he summation a “hard I give you Ohanian? [my] word. You (Tr. 864), (Tr. worker” a “star salesman” say you going are to be out there 865), that responsible “he was for annual you going are [California] retire approximately $100,- revenues for Avis of company from the you because are a 000,000 (Tr. 865), year” that he had “ex- you here, star like it out [New ceptional mastery phases of all work” York], you going are to retire from the (Tr. 867), firing that his firing “was anot company you unless up. Right. foul for cause” management but “was a new That promise. was the promise he (Tr. 867), taking team over” that Avis couldn’t promise refuse. The he thought (Tr. “he was the best man we had” should have refused. 868),that Avis had a hard time to persuade The record is clear that the case on the Ohanian to California leave because he oral contract was tried to the on the job security wanted “doing good and was premise by both sides that Avis could dis- job stay (Tr. and he would rather there” miss “totally he 870), that Avis him “he told need not be up,” meaning “did job,” not do the violat- concerned get that he would never hurt ... ing his employment agreement. Counsel unless up totally, he screwed he was not argued for Avis that Ohanian “was a dis- going (Tr. get to burned” that Avis employee honest who company policy broke (Tr. 876): told him “If he job, did the he neglected and responsibilities” (Tr. his 823). place had a company. that If he didn’t Counsel for argued firing job, do the up, he screwed go he would cause,” was not “for and not because get out and at severance.”, worst that “somebody did something wrong,” but be- “expense report irregularities” were “a cause “this was a management new team sham,” pretext and was a and a “[t]his (Tr. 867). taking over” (Tr. 899-900), sham” that when Ohanian presented The issue as parties for the “up was in Boston he took his brother out was completely inconsistent with once with Nancy Edwards and then took holding that under the Nancy Edwards on one occasion. I am just “there be cause to telling you that ... commonly was a ac- dismiss without a [by breach Ohanian].” cepted practice by people (Tr. at Avis ...” 908), that Avis “tried to make Ohanian IV

appear to (Tr. be thief in front of you” 909), and that “came in parties here requests a lot their charge— with of reasons which were not the all other “just reasons for times—used cause” sacking (Tr. 915). him” It to express right was emphasized of Avis to dismiss ‍​​‌‌​​‌‌​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌​​‌​‌​​‌​‍to the jury that promise the oral Ohanian contained in Ohani- the words of the oral an job was the security sought “totally he contract: up” he screws or “screwed —that could not up badly.” dismissed unless “totally he up”. Plaintiff did not ask for instruction

Counsel for Ohanian on the jury (Tr. meaning told the “just cause.” 886): And what did it cost Avis? Think about be a going to best star. this. Think sure have ^[*] you star, they’re got If things go $ foul have ever had. he is a man that of the up, going ^[*] your he top logic as always going is an absolute go, you salesman, ^[*] he are it. is ^[*] fully You not 23): on whether whether defendant had other reasons for firing charged of establishing cause, however, you may not consider Counsel for Avis asked for an instruction “just Defendant bears him. cause” as follows plaintiff for Rather, just that cause. the burden of discharged plaintiff if you find that (Court Ex.2, In was dis- deciding for proof just A

H5 York, duty employ- as an In New a breach plaintiff employee breached an ground of the contract is comply ee or failed to with to defendant dismissal, not whether or there is a termi- instructions, you plaintiffs reasonable provision “just nation cause.” Grozek If return a verdict for defendant. must Foods, Inc., Ragu v. 63 A.D.2d employee has an where- an (1978)(“If, however, N.Y.S.2d terminated for under he could term, employment is for a definite the em- cause,” misconduct, neglect “just then ployer, justify discharge, in order to must duties, insubordination, dishonesty, pad- employee be able to show a breach accounts, ding expense and other such express implied of some provision “just disloyal supplies acts cause” contract.”) The York New cases and other employer and entitles the to terminate Avis, above, authorities cited as shown employee. accepted by judge, the trial all dealt judge gave request The trial sub- employee with breach of contract an part (making stantial some additions and meaning with the cause.” subtractions) (A 63): as follows a. proof the burden of Defendant bears instructions, duty “breached his establishing was dis- employee” an states a breach of contract charged you cause. If find that employee an justify which would dismissal. duty employ- breached his as an Ru dman Cowles Communica comply ee to defendant or failed to tions, Inc., 35 A.D.2d 315 N.Y. reasonable defendant’s instructions (1970)(“then the S.2d 409 disobedience is a he this was the reason was dis- breaches, duty breach of and like other charged or that otherwise employer entitles the employ to rescind the discharge, you valid reason for must re- contract”), other ment modified turn a If an em- verdict defendant. 1, 33, grounds, 30 N.Y.2d 330 N.Y.S.2d 280 ployee agreement providing an has (1972). N.E.2d 867 “just he could be terminated for b. cause,” misconduct, then substantial ne- charge, comply In the “failed to duties, insubordination, glect of dishon- paraphrase reasonable instructions” is a of аccounts, esty, falsifying expense quoted of orders” “disobedience reasonable “just disloyal supply other such acts by stated” of Williston as “well violation employer cause” termi- and entitle employment justifying its ter- an employee. really nate the But if he was by employer. mination 9 on Williston fired for another invalid reason and these 1012B, (3d 1967); at 30 ed. Contracts § merely pretexts, they were excuses or Queen Co., City Cycle v. accord Jerome constitute cause. 356, 351, (1900) (dis- 163 N.Y. 57 N.E. 485 “justifies obedience of reasonable orders instruction, it, clearly This Ias read rescission of the contract the master correctly equates “just for the oral cause” servant”). discharge and the of the 'contract in suit with breach of the contract Indeed, by Ohanian. the text from which c. judge charge jury, the trial read his to the definition, requested In the Avis one of at end of the section “breach of con- examples “just cause” was “miscon- tract” which contains the instruction on charge given, duct” of In the as Ohanian. above, “just quoted cause” lists the author- expres- misconduct” was the “substantial (A support charge given ities of the as sion. This was because counsel for Ohani- 53); they are the same authorities cited an wanted the told that it should bal- support request “just its good against prior years ance conduct (A 23), except of the (T. cause” for the addition by Avis. now claimed misconduct Jury 804; pages York Pattern New Instructions —Civil “T” references are to of Vol- 1984). joint appendix.) II The trial p. (Supp. 4:21 Comment 225 Nov. ume of the 116 judge this, but, declined to expense do without ob- accounts.” In charge

jection Ohanian, given, added the “falsifying word “sub- expense accounts” stantial” before “misconduct” in order to was the expression. by agree- This was (T. 804). point sides, meet the Either ment of approved by “miscon- both the trial (T. judge 803-04). duct” or clearly “Padding “substantial misconduct” of expense “falsifying states a breach of contract an accounts” or employee. expense ac- (which Co., dishonest) counts” seem Paper equally LaDuke v. International 258 375, 608, (1940) (em- A.D. would be a breach of the employment 610 con- tract. 3A ployer may discharge employee Corbin on “for Contracts mis- § (1960) dishonesty by states: “Fraud or conduct or if the work is not done an as direct- ed”). employee in employer relation to his is suf- ground ficient discharge. for his Obvious d. cases include padding expense ... ac- instructions, “neglect In the of duties” counts.” states a employee violation of an h. employment Farquhar contract. v. Amer instructions, In the Co., Inc., disloyal “other such App.Div. 408, ican Code 459, description acts” is a of acts employ- of an (1922) (“[I]f 194 N.Y.S. 492 ee which would be breaches of employ- perform failed to obey his duties or to ment contract because “such” refers to orders, reasonable the defendant was at “substantial misconduct” and the other liberty discharge him.”) (dictum), aff'd, violations, enumerated all of which are 234 N.Y. 138 N.E. 483 employment breaches of the contract. e. Co., Sunland v. 260 A.D. Korfund instructions, In the “insubordination” is (1940) N.Y.S.2d “disloyalty” example another of conduct which would stated to be a violation employment violation of an contract. contract. Williston states: “Disobedience which is i. accompanied with an element of insubor- judge The trial made some additions and dination” always justify ... will immediate subtractions “just definition of discharge. 9 Williston on Contracts requested cause” seen, Avis. As will be 1013B, 49; Speiden Innis, accord § certainly these purpose not for the Speiden Co., Inc., & 216 A.D. enlarging the definition to mean that (1926) N.Y.S. (discharge 515-16 of em- cause can be broader than breach and here ployee justified by his “insubordinate let- may just there be cause to dismiss without ters” and neglect obey refusal and to or- [by Ohanian],” a breach as the ders). now holds. f. The by additions made judge the trial instructions, In the “dishonesty” de by were caused a sentence in the Avis scribes conduct which would be a breach of (Court requested instruction A Exhibit an ground contract and for 23): deciding “In plaintiff whether was dis- discharge. Hadden v. Consolidated Edi cause, charged just however, for you may Co., son 45 N.Y.2d not consider whether defendant had other (1978) 382 N.E.2d (employ firing reasons for him.” Ohanian asked acceptance ee’s conceded bribes following for the contrary instruction on gifts doing from those em business with point (Requests charge p. 6): this to “In ployer grave “constituted such misconduct deciding discharged whether was dishonesty justify as to the servant’s cause, just however, you may for not con- discharge”). sider whether defendant had other reasons g- firing for him.” Ohanian asked for the definition, In the requested Avis following contrary one of point instruction on this examples “just 6): the cause” “padding (Requests Charge p. was deciding to “In

\y¡ by nothing explanation in the There just was for discharged plaintiff was whether “just jury to the cause” judge the trial consider however, may not cause, you justi- could suggest that Avis which would for reasons had other defendant whether proof discharge its of Ohanian fy follow- for the asked firing him.” Ohanian by him of a material breach anything short (Re- point on this contrary instruction ing is employment contract. There of the oral deciding 6): Charge, p, “In quests to “there jury the certainly nо hint to just discharged for plaintiff was whether just cause dismiss [Ohanian] may, not, however, but cause, you need him],” holding on [by a breach without rea- other had defendant whether consider majority decision based. which the firing him.” sons for requested Declining give either V for a dis- reasons” charges on “other to the judge the case The trial submitted real judge ruled trial charge, the (Fed. questions answers to written jury for discharge could be his fact for in reason questions, 49(a)). The first two R.Civ.P. reason if the real jury; considered relevant, were only ones now submitted as de- “just discharge cause” was for the substantially proposed as for Ohanian abe charge, then there should fined in the were these: defendant, real reason if the but for verdict prove that Avis “1. Ohanian Did as “just cause” discharge for the was until he agreed employ him retired charge, then Avis in the defined just for was terminated unless he discharge. To meet wrongful for a liable cause?” added alternative, judge the trial the first question. to this “Yes” jury answered “or that words request, Avis to the was prove “2. Did for reason valid an otherwise cause?” terminated reason and real If the other discharge.” question. to this “No” jury answered is, (that had reason” “valid were a job of his of these answers and performance light In the in fault been at against Avis jury, judgment than, charge seri- equally way but other some damages found for the amount employee or followed duty as, a breach of ous in other answers. instruc- comply reasonable a failure Avis) the real reason then tions of appeal is whether on The issue cause”, part; there was breach by the found agreement as —an return a verdict and the “must New York by the barred agreement —is defendant”. (N.Y.Gen.Oblig.Law Frauds Statute (1984)); cited (West.Supp. 5-701(a)(l) § alternative, the trial To meet second every part provides relevant section his defini- added the last sentence judge its terms to be is not agreement which really “But if he was “just cause”: tion of making its year one performed within invalid reason being fired another writing and subscribed is void unless pretexts, excuses or merely these were charged party to be therewith. If just cause.” they not constitute out, the pointed decisive As has been reason” reason an “invalid were the other is: is mean- this issue What question on misconduct, is, (that “substantial was not oral contract for the ing “just cause” insubordination, duties, dishon- neglect here in suit? accounts, oth- falsifying expense esty, acts”) reason then the real disloyal er such VI part, the real on his a breach was not applica- rejects the cause”, decision majority reasons “just not reason of Frаuds New York “merely excus- Statute discharge tion alleged for under majority holds liable because Avis would be pretexts”, and es or may in suit “there contract oral discharge. unlawful for an cause to dismiss without [by a breach Oha- forced “to make a change in its business nian],” and that could Avis fire Ohanian strategy” or for reasons other than fault “adverse market conditions ... would force part on the of Ohanian. Avis to make change a in its business strat- The majority opinion recognizes (op. p. egy 6717) ...” (op. p. and also “could fire 6708) promise made Avis to the plaintiff on account of conduct that meet “Ohanian’s concerns about security” would not constitute breach of contract” was: Avis would not fire him unless he (op. pp. 6717-18). From what words up badly.” “screwed holds, It then how- oral provisions contract these can be found ever, that, despite words, these told; we are never in a reading careful could be fired though even he had not done the testimony, have none been found. anything in violation of the employment The only explanation for the result contract. me, To it is inconceivable that reached in majority opinion seems to be demanding job security per- Ohanian— that “under New ‘just York law cause’ for suade him to leave agree California—would termination may exist for reasons other to leave California for an oral contract than an employee’s breach” (op. p. 6716; which could be terminated Avis without ‍​​‌‌​​‌‌​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌​​‌​‌​​‌​‍emphasis supplied) and “some contracts breach on part. give To Avis a ‘just terminable for cause’ require do not right to fire him even though he had not breach order to (op. p. 6716; terminate” up “screwed badly” or “totally” would de- emphasis supplied). precedent prive Ohanian of the very security on example given for the holding is Wein which he insisting. er Hill, Inc., McGraw 57 N.Y.2d It would serve no useful purpose to de N.Y.S.2d N.E.2d 441 bate the thesis of the majority opinion that There can disagreement be no with the “the Statute of Frauds is an anachronism statement “just today” and that the “reasons that prompt cause” for employment ed “may” its passage no longer exist” (op. pp. grounds include for termination “other 6713-14). The New York legislature has than an employee’s breach”; course, it not seen repeal fit to the Statute of Frauds depends on the “just definition of cause” in and the latest decision of the high state’s the contract and on all the court, circumstances est so far as reveals, research while under which the words of the contract were recognizing a interpretation” “narrow used. Similarly “some” do contracts the Statute of Frauds which holds some require a breach to be “just terminable for performable contracts within year one cause”; it depends on “just how cause” is be Statute, “saved” from the states: “... defined in the contract and on all the cir- clearly there are others which simply are cumstances under which the words of impossible of completion within that time contract were used. That “may” their own terms and are therefore void “some” cases, however, such guid- no if unwritten.” Boening v. Beverag Kirsch ance for particular es, contract here in N.Y.2d at 483 N.Y.S.2d suit, where the words cause” were N.E.2d 992. The contract then before the never defined they because were never Court late 1984 was found terminable used. “only by plaintiff’s breach” and “void for being unwritten.” Id. at In the suit, oral contract in had 164, 472 N.E.2d 992. right terminate Ohanian “totally up” up badly.” “screwed There The Statute of Frauds does not seem to is no evidence that these words referred to be an “anachronism” for such cases as that anything other than a breach Ohanian at bar. The oral lifetime con- of the duties and obligations of an employ- tract was claimed Ohanian to have been ee, a breach of contract. There is no evi- in telephone made а conversation between dence that the words included a right in him in and California Mahmarian for Avis Avis to terminate whenever Avis was in New York. The conversation not was

H9 right to terminate. The company the had a The made. recorded; no memoranda be, Appeals in its Weiner New York Court was, only testimony and could only “operative opinion made it clear that the only was Not Mahmarian. Ohanian and 460, but, emphasis.” at 457 Avis, deserve Id. facts to hostile a Ohanian witness 193, The 443 N.E.2d 441. differ by N.Y.S.2d given testimony was Mahmarian, whose provi 245), written termination 9, (A between the ence 1983 November deposition on the termination Au- in and by Avis on sion Weiner dismissed himself been had (if Ohanian in case at bar provision after the days (A a few 4, 1982 gust The New “totally up”) is crucial. dismissed, presum- and was was Ohanian de Appeals later itself Thus, at the York Court of Avis. ably hostile to as right to terminate Weiner scribed the the Mahmarian and mercy of Ohanian “determine could writing one where McGraw-Hill and no person that no sense ter them; any just for sufficient reason and contradict or to confirm available good for of the necessary the mination was oral con- the claimed made they alone had 458, 449, N.Y. 483 63 N.Y.2d business.” writing. no there was tract and (1984). 164, 992 472 S.2d N.E.2d VII important differences between Two other majority the “example” which The one be men- at should the case bar Weiner v. McGraw- holding is Weiner Weiner, for its the question cites no as to In tioned. N.Y.S.2d defendant, Hill, Inc., N.Y.2d Frauds was raised Statute such are There N.Y.2d pointed 443 N.E.2d out. as the Court itself facts as significant differences 441. enormous 443 N.E.2d at case at the irrelevant to York Weiner, to make Weiner reached the New case holding bar; support no pleading ques- it only affords a Appeals Court majority. complaint; sufficiency of the as to the tion trial. no there had been case, con- employment In the Weiner A writ- well as oral. tract was written VIII spe- signed by Weiner form application ten rejected the majority has Because the sub- that his cified of Frauds of the Statute defense of the McGraw-Hill provisions ject to the party, by either suggested never reason proce- policies and personal “handbook on specifically address does 193, 443 460, 457 N.Y.S.2d Id. dures.” at Statute against argument pertain- provision 441. The written N.E.2d urged by in fact has been Frauds which was: in the Handbook ing termination to (Brief, 12-18). pp. Ohanian dismissal resort company will only, advanced only argument cause just and sufficient (Brief, pp. rehabilita- steps of Frauds practical toward the Statute against after all had an he, plaintiff, have employee 12-18) salvage of the thаt since or tion However, time, the con- if the at failed. option taken and terminate been of Frauds. indicates the Statute company not within of the tract was welfare to show his that decision the record necessary, quoting then After dismissal is forthright- terminate, for Ohanian out counsel is carried option is arrived at (Brief, argument as follows summarizes ly- 16-17): pp. N.E.2d 460-61, 457 N.Y.S.2d Id. description of Ohani- Here, clearly, is in Weiner seen that Thus will be 441. discontinue option an’s -writing used the writing, the was a it was how cause,” he were dissatisfied prac- all sufficient “just and words Boening, option which working out—an salvage the steps rehabilitate tical later, say took towas years two some if these failed required, and employee were Statute of the out indi- company “if the welfare there). (if it was ever Frauds necessary,” then that dismissal cates [is] 120 It many years has for been the $327,693 law below for against Avis seems to New parties York that if both have the me be unjust and unfair. right to time, terminate any at contract The has questions: answered two the contract by is not barred Statute prove 1. Did Ohanian that agreed Avis Frauds. Voight, 69, Blake v. N.Y. 134 31 to employ him until he retired unless N.E. 256 This is because the con- he was terminated for just cause? tract can “performed” be year within a if 2. Did prove Avis that Ohanian was ter- party right either has a to terminate at just minated for cause? any time. The same “just definition of cause” But if plaintiff, the party to should, must, govern the determination charged, may be rightfully terminate questions. both time, the contract is A panel of a of this Court has void New York under the Statute of now question determined a of the New Frauds. North Bottling Shore v. Schmidt York Statute Frauds. The oral employ- Sons, 171, 3, & 22 N.Y.2d 177 n. 292 N.Y. ment gives right Avis a to termi- 86, (1968); S.2d 239 189 N.E.2d Harris v. if nate Ohanian “totally screws up” or Co., Indemnity Home 861, 6 A.D.2d 175 up badly,” “screwed words which were (1st N.Y.S.2d Dep’t 1958); v. Belfert translated “just into cause” ques- in the Peoples Planning Corp., 22 Misc.2d put tions to the jury. The majority has (1959), N.Y.S.2d aff'd, A.D.2d held that cause can be broader than (1st 202 N.Y.S.2d 101 Dep’t 1960), breach and may here there just cause to aff'd, 11 N.Y.2d 226 N.Y.S.2d 181 dismiss without a [by breach Ohanian]” (1962); N.E.2d 630 Abady Interco, v. 76 (op. p. 6717), that “there just would be A.D.2d (1st Dep’t cause for.... dismissal [of Ohanian]” 1980); Special Event Entertainment results by achieved “might Ohanian prove Ctr., (S.D.N.Y. 458 F.Supp. 72 Rockefeller poor because of adverse market conditions” 1978; J.). Duffy, may It be inferred from this forced “to make a change opinion

its that this principle would be ac in its strategy” business (op. p. 6717), and cepted by the majority. opinion states that Avis could fire Ohanian “on account of (pp. 6714-15; emphasis supplied): conduct that would not constitute breach of Therefore, a contract to continue for contract”(op. p. 6718). longer year, than a that is terminable at Because of the way the case was tried the will the party against whom it is and the understanding parties as to being enforced, is not barred the stat- the meaning of contract, the oral ute of frauds capable because it is of was instructed in substance that “just being performed year. within one cause”—as a “totally translation of It seems perfectly up” clear argu- up “screwed badly”—meant against ment the Statute of breach Frauds in fact the contract such made Ohanian is without breaches of duty merit. misconduct, substantial

dishonesty, and falsifying expense ac- counts, etc. the ques- answered IX tions based on the trial court’s instructions. For the given, reasons that, I would hold “ They were never told ‘just cause’ for law, under New York the oral lifetime em- may termination exist for reasons other ployment contract claimed by Ohanian is than an employee’s p. breach” (op. for being void unwritten. I “ reverse ‘just cause’ can be broader than and remand with instructions judg- to enter breach and here there cause to ment for defendant. dismiss without a breach” (op. p. 6717), if, Even as the majority holds, that “under the terms the contract it claimed oral contract is not barred possible would be dеspite [Ohanian’s] Frauds, Statute of to affirm judgment best efforts the might results achieved of contract but for un- con- breach Ohanian market of adverse poor prove because specified Avis to that would not consti- “would force “conduct this and that ditions” strategy, contract,” any in its business of or without change a tute breach make closing operation” reducing or perhaps “adverse “conduct” fault Ohanian just cause ... would be that “there to make a conditions ... force Avis market (op. p. dismissal (Op. Ohanian]” strategy_” [of change in its business could provided “the contract 6717). p. than other [Oha- be terminated reasons Avis, hand, placed is on the other 6717), or that Avis (op. p. breach” nian’s] position player of in the a majority decision of conduct on fire account “could [Ohanian] rules of the sporting contest where the a con- of constitute breach that would not changed game after the is over. game are 6717-18). pp. (op. tract” oral in suit meaning A of the contract the mean- realized that parties Had majority to having by the been determined they had made was ing of the contract acted from that heretofore be different Court, surely they would held this now substantial upon, it is “inconsistent with evi- and different further submitted have 61) (Fed.R.Civ.P. judg- a justice” affirm Had the jury. arguments to dence and meaning. rejected upon the ment based “just of explanation given jury been require at least Fairness seems now suit as oral contract in cause” trial, with for a new action be remanded Court, have surely would made jury consistent instruct directions to into material and different additional taken this Court. the-majority opinion of the result Whether consideration. but, par- speculative, is different have been “just Avis had ticularly as whether Ohanian, might the result to dismiss

cause” The burden different.

very well have been cause” Avis to show proof on meaning given now very broad

under the majority would by the

to the under lighter than very much been

have jury at the to the given America, Appellee, the instructions STATES UNITED explained trial. “Just cause” suit, the contract in the context of JONES, Defendant-Appellant. Ronald contract, in the actually used words parties. circumstances and the No. No. Docket 85-1232. deference, divorced has, with Appeals, operative facts States Court United “just cause” from constant, having a Circuit. legal Second treated it as has re- meaning without changeless fixed and 25, 1985. Oct. Argued gard to the facts. Dec. 1985. Decided course, Ohanian, now the best has claim of possible worlds. Under all right dismissal Avis limited (“totally by him of contract for breach heavy badly”), a up up,” “screwed at trial on Avis placed

burden On verdict. a substantial ‍​​‌‌​​‌‌​‌​‌​‌‌​‌‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌​​‌​‌​​‌​‍secured Statute he wins

appeal, now arguments he issue, not on the

Frauds dif-

made, the oral contract but because rightfully

ferently Avis could interpreted: Ohanian without dismissed

have

Case Details

Case Name: Robert S. Ohanian, Cross-Appellant v. Avis Rent a Car System, Inc., Cross-Appellee

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 25, 1985

Citation: 779 F.2d 101

Docket Number: 1385, 1466, Dockets 85-7284, 85-7330

Court Abbreviation: 2d Cir.