40 Mass. App. Ct. 218 | Mass. App. Ct. | 1996
The plaintiff (Vezina) sold his insurance agency to the defendant Mahoney & Wright. He won verdicts for the breach by Mahoney & Wright of promises incident to the sale to employ him as manager of the sold agency and to provide
1. Vezina’s father in 1928 founded the company later called the Vezina Insurance Agency, Inc. (hereafter sometimes called the Gardner Agency), a business with customers largely in the town of Gardner. Vezina worked there continuously after 1964, becoming its sole stockholder. By August, 1984, the Gardner Agency had incurred debts of perhaps $173,000. Vezina discussed the sale of the agency with a number of possible buyers, but the discussions made no headway because Vezina was interested in longtime employment by the agency after the sale, which these persons were loath to ensure. Finally Mahoney & Wright
2. Two contracts were entered into as of August 1, 1984.
The second contract, between Mahoney & Wright and Vezina, employed him as vice president and manager-
3. Although the employment contract mentioned an end date of December 31, 1986, the parties evidently continued under that arrangement through 1989, with Vezina serving throughout as manager-salesman of the agency. Vezina had done well in the job, so a new contract was entered into (as promised) after negotiations between Vezina and Norman Wright, an important officer of Mahoney & Wright. (The negotiations centering in April, 1989, are mentioned at our point 6b below.)
The contract, executed on December 12, 1989, “modified” the terms of the 1984 employment contract. Vezina was to continue in his named capacities; his base salary was increased to $47,000 per year; and he was to participate in an incentive plan after a stated “base profit” was attained by the business. The incentive plan read thus:
“6. a. Herve Vezina, Jr. shall participate in the following Incentive Plan with Mahoney & Wright Insurance Agencies after a base profit of 20% of gross income is attained.
b. Herve Vezina shall receive 20% of the excess over the base profit due Mahoney & Wright Corporation referred to in Paragraph 6(a) above in the form of a bonus.
c. 50% of the bonus referred to in Paragraph 6(b) for the previous year shall be considered a salary ‘raise’ and added to Herve Vezina’s base salary for the following year. In the event that Herve Vezina, Jr. fails to generate the base profit referred to in Paragraph 6(a) for two years, Herve Vezina’s salary shall be adjusted accordingly by rescinding the previous year’s raise. In the event that Herve Vezina, Jr. fails to generate the base profit referred to in Paragraph 6(a) above for three years, Herve Vezina’s salary shall be adjusted by rescinding the previous two years’ raises.”
Finally, the agreement set out a right of first refusal:
“8. In the event that Vezina Insurance Agency, Inc. is offered for sale, Herve Vezina, Jr. shall have the right of first refusal to purchase following a refusal to purchase by Mahoney & Wright Insurance Agency, Inc. its affiliates and principals.”
4. We outline the events leading to Vezina’s being out of work and out of the agency by November, 1990, and his not being provided with first refusal when the agency was sold to another, one Robert Weiss, in spring 1992.
Weiss was a friend from college days of Norman Wright. Weiss had long been a football coach. After receiving a sum in settlement of a dispute (not described in our record) with his last employer, Weiss turned to Wright for assistance in gaining entree to the insurance field, in which he had no prior experience. Weiss in May, 1990, made an “assets only” purchase of the troubled David C. Wells Agency, Inc., in Fitchburg (hereafter the Fitchburg Agency). Around October, 1990, Weiss was introduced to Vezina as the prospective manager of the Gardner Agency. Vezina’s reaction was that Weiss had insufficient experience and that he, Vezina, would not be able to serve under Weiss.
After his severance from the Gardner Agency, Vezina engaged in activities in the insurance business that would violate the confidentiality and noncompetition covenants if those remained in force.
5. The present action resulted from the consolidation of a Worcester Superior Court action by Vezina against Mahoney & Wright and a Suffolk action by Mahoney & Wright against Vezina. Avoiding procedural entanglements, we may say that the set-up of the consolidated action, tried to a jury in Suffolk Superior Court, was in outline as follows. Vezina sued Ma-honey & Wright for breach of the first refusal and employment promises. Mahoney & Wright retorted with three claims, in effect for breach of the plaintiffs negative covenants — claims for unfair competition, interference with contractual relationships, and trade name violations. The jury brought in verdicts for Vezina for $60,000 for breach of the first refusal provision and $87,479 for breach of the employment undertaking. The jury found against Mahoney & Wright on its claims. These latter findings were responsive to the substance of the judge’s instruction (not objected to) that if Mahoney & Wright had violated their obligations, notably the employment undertaking, then Vezina would be released from his negative covenants. (We note in the margin a difficulty with inconsistent verdicts that was properly overcome.
6. It remains to consider the support in the evidence for the verdicts on the first refusal and employment matters.
a. First refusal. Comment is hardly necessary, for Mahoney
b. Employment. The agreement of December 12, 1989, on its face, raised but left unsettled and unclear whether it promised Vezina employment merely at will, so that he could be dismissed at whim, or employment for a definable period, so that dismissal could be only for cause (which was not shown on this record). The parties acquiesced in the admission in evidence of circumstances that might help the jury resolve the ambiguity .The contract did not fix express beginning and end dates of employment as the 1984 contract had done. But there could be other signs or indicia suggestive of a promised period of employment. Vezina, we know, was interested in a long-term connection (presumably as manager) with his Gardner Agency now owned by Mahoney & Wright. A reading of the contract as being at will, subject to unilateral termination at any moment, would seem at odds with Vezina’s desire for a steady job. So, too, it would seem inconsistent with the negative covenants Vezina had given: suppose a case where he was thrown out of work as manager within a short interval after December 12, 1989, and then had to face a prospect of compliance with his covenants which would in effect disable him to do independent insurance business.
The incentive plan quoted above according to its text was to run for three years. In the case of ordinary salesmen not otherwise assured work for a given period, the existence of a three-year bonus plan might not readily be construed as turning the relationship into firm employment for three years. But a different view could be taken with reason here, where an incentive plan had been tailored for a particular person who had served as manager of the business for five years and in fact had earlier been its owner.
Thus there was basis for a jury finding of promised employment for three years. There was also basis for a jury finding that Vezina was promised employment to age sixty-two (subject to conditions); and the judge charged, without objection, on both themes.
Contending under its motion for judgment n.o.v. that the verdict on employment was unsupported in the evidence, Ma-honey & Wright confronts the proposition that the verdict stands if “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff” who garnered the jury’s verdict. Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). The judge correctly denied the motion. A comparable case is Kravetz v. Merchants Distrib., Inc.., 387 Mass. 457 (1982). Kravetz, having owned and operated his tire company in Peabody for twenty-six years, sold it to Merchants, which had a tire business in Boston and in branches in surrounding places. The contract of sale also provided for Kravetz’s employment as manager of the Peabody unit at stated salaries for several successive periods with bonus features. Kravetz subscribed to a five-year
Judgment affirmed.
Order denying posttrial motions affirmed.
For purposes of the present appeal we need not mark a distinction between Mahoney & Wright Insurance Agency, Inc., and Mahoney & Wright Corporation, and we speak simply of “Mahoney & Wright.” Vezina sued Norman and Mary Jane Wright, personally, on a separate real property transaction which resulted in a judgment not appealed from.
We describe the salient features of these and a later contract omitting other details.
If the debts were liquidated for less than $200,000, Vezina would be owed the balance.
Norman Wright testified that he had put Weiss through a cycle of training, but there could be no doubt that he did not match Vezina.
Apparently he was paid no salary or a salary less than Vezina’s. Charles Hennigar, financial officer of Mahoney & Wright, said no salary; Norman Wright put it otherwise.
Vezina testified that Weiss assaulted him physically.
This price contrasts with the figure of $78,207 as of January 1, 1989, for twenty percent of the shares of the Gardner Agency quoted by Norman Wright to Vezina in April, 1989. See our point 6b below.
Mahoney & Wright criticizes some of Vezina’s methods of attempting to secure business after his dismissal from the Gardner Agency, but such vicarious vindication of the proprieties is without bearing on this lawsuit.
The jury first came in with verdicts for Vezina for breaches of the first refusal and employment agreements and verdicts for Mahoney & Wright on two of the covenants. The jury had overlooked the uncontested proposition that Mahoney & Wright could not recover on the covenants if it was in breach of the employment agreement. Without objection, the judge instructed again on the reciprocal relationships, and the jury returned their final verdicts.
At the same time, the jury also asked: “What are the Internal Revenue Code’s requirements, if any, about reporting affiliates’ income?’’ The judge answered (without objection), that there had been some testimony about consolidated balance sheets and so forth and they were to take that testimony in the context of all the other testimony and not to speculate about what the Code’s requirements might be — it was irrelevant.
Mahoney & Wright’s financial officer could not produce a shareholders list.
Again Vezina testified: “I was concerned about a contract someone showed me that only went to age 55, and' Mr. Wright said not to be concerned, that you should consider at least age 62, or even longer if you feel better . . . after age 62 if you still felt physically able.”
Richard Forrest, president of the Gardner Agency in 1989, describing the relationship between Vezina and Mahoney & Wright, said he could work “as long as he performed.”