The opinion
[FILED AND ENTERED |
STATE OF MAINE SUPERIOR COURT — cupERIOR COURT
PENOBSCOT, ss. cep 2? 2002 CIVIL ACTION
IDOCKET NO. CV-00-214
AMM- FEN- AAT Bdoe
STUART SACHS, et al., .
F
Plaintiffs “™ )
) ORDER AND DECISION
Vv. )
) DONALD . CARBRECHT
FRIENDLY’S ICE CREAM __ ) LAW! LIBRARY
CORPORATION, )
Defendant ) MAR 2 2002
The matter is before the court on the defendant’s motion for summary
judgment on all counts, or partial summary judgment.
BACKGROUND
The record demonstrates the following. The plaintiffs, Stuart Sachs
(“Sachs”) and Barbara Lawrence (“Lawrence”), run a partnership named Silent
Partners, a vending machine business. As part of its business, Silent Partners
installs vending machines, such as gumball and candy machines, at various
locations and pays commissions to those locations for the use of the space. The
defendant, Friendly’s Ice Cream Corporation (“Friendly’s”), is a corporation
organized under the laws of the Commonwealth of Massachusetts, and operates
numerous restaurants in Maine.
On or about February 11, 2000, the plaintiffs entered into an oral
agreement by phone with Michael Tisdale (“Tisdale”), who, at the time, worked as a
district manager for Friendly’s. Under the agreement, Silent Partners placed
vending machines in several restaurants in Tisdale’s district. Tisdale’s district
included restaurants in Maine, New Hampshire, and Massachusetts. According to
Sachs, the only reason Silent Partners agreed to this arrangement with Tisdale was
because Tisdale said he had corporate approval to get the machines into the
restaurants. The agreement, as understood by the plaintiffs, was “long-term,” but
had no specified duration. As time progressed, Silent Partners placed machines in
all of Tisdale’s restaurants, and started placing machines in other Friendly’s
restaurants in other districts.
At some point in May 2000, one of Tisdale’s supervisors observed the
vending machines in one of the restaurants. Tisdale and the other district managers
were directed to remove them. On June 2, 2000, Tisdale informed Silent Partners
that they needed to remove the machines as soon as possible. After removing the
machines, the plaintiffs instituted this action, claiming they incurred damages,
including those for machines they specifically bought for this agreement, and loss of
income.
The plaintiffs also claim they suffer physical proviems cirectly 8 related to
the agreement with Friendly’s. Lawrence claims she suffers severe emotional
distress as a result of the defendant’s conduct, including dizzy spells, forgetfulness,
distress, irritability, head aches, panic attacks, chronic fatigue, insomnia, recurring
nightmares and cold sweats, stiff neck, anxiety and loss of memory. Sachs claims he
has been distraught, disengaged and forgetful, and suffers from recurring
indigestion.
The plaintiffs brought this action on November 14, 2000, alleging breach of
contract (Count I), negligent infliction of emotional distress (Count II), intentional
infliction of emotional distress (Count III), and negligent misrepresentation (Count
IV). Friendly’s now moves this court for summary judgment on all, or some, of the
plaintiffs’ counts. For the following reasons, the motion is allowed.
DISCUSSION
LSummary Judgment Standard
A party is entitled to summary judgment when there are no genuine issues of
material fact, and that party “is entitled to judgment as a matter of law.” MR. Civ.
P. 56 (c); In Re Estate of Davis, 2001 ME 106, ¥ 7, 775 A.2d 1127, 1129. “A fact is
material when it has the potential to affect the outcome of the suit.” Kenny v. Dep’t
of Human Services, 1999 ME 158, J 3, 740 A.2d 560, 562 (citation omitted). “An issue
is genuine if sufficient evidence supporting the claimed factual dispute exists to
require a choice between the parties’ differing versions of the truth at trial.” Id.
(citation omitted).
“To survive a defendant’s motion for summary judgment, a plaintiff must
produce evidence that, if produced at trial, would be sufficient to resist a motion
for a judgment as a matter of law.” Kenny, 1999 ME 158, { 3 (citation omitted).
“[T]o avoid a judgment as a matter of law at a trial, a plaintiff must establish a prima
facie case for each element of his cause of action.” Barnes v. Zappia, 658 A.2d 1086,
1089 (Me. 1995). In other words, the plaintiff must produce evidence that
demonstrates that the existence of each element is “highly probable rather than
merely likely.” Id.
I.Breach of Contract (Count I)
The breach of contract claim is premised on the plaintiffs’ ability to enforce the
oral agreement with Tisdale against Friendly’s. Friendly’s makes several arguments
as to why it is entitled to summary judgment as a matter of law on this count. First,
Friendly’s argues that there is no evidence that the parties entered into a contract
with a definite duration; second, there is no contract because the parties did not
mutually agree to be bound to a term of years; third, the lack of either a period of
duration or termination clause in the contract made the contract one that was
terminable at will; fourth, there is no evidence that Tisdale or any of the other
district managers had the authority to bind Friendly’s to the contract; and fifth, even
if there were a factual dispute as to whether a contract existed, the term of the
contract must be for a term of one year or less.
The parties agree that their agreement, such as it was, contained no clearly stated
term. The only language which the plaintiffs claim related to the length of the term
was “long term” - an clearly ambiguous term with no legal enforceability. As any
contract for a term in excess of one year must be in writing, this circumstance
delimits the plaintiffs’ contract claim to lost income for a maximum of one year for
each location running from the date of the installation of the machine at that
location.! Accordingly, partial summary judgment is granted in favor of the
defendant on the breach of contract claim limiting damages to a maximum of one
year only. The remainder of the defendant’s defenses are fact-driven and may be
submitted to the jury. [NOTE: the plaintiffs still bear the burden of proving the
existence and length of the contract and the entitlement to, and amout of, damages. ]
1 - The claimed damages for emotional distress and such are not
within the scope of damages for such an alleged breach.
II .Negligent Infliction of Emotional Distress (Count II)
Despite plaintiff's arguments to the contrary, they advance no meritorious
argument that the defendant’s actions were negligent. This is a matter rooted in
contract law, and the court record suggests no actions upon the part of the
defendants which were not intentional. Summary judgment is granted on Count II
to the defendants.
Iv.Intentional Infliction of Emotional Distress (Count IID
In Count III, the plaintiffs claim that Friendly’s acted with conduct “so extreme
and outrageous, it exceeded all possible bounds of decency, thereby inflicting serious
emotional distress ....” Again, the plaintiffs’ claim is based on the fact of the breach
or repudiation of a claimed contract. The record establishes no basis for the tort of
intentional infliction of emotional distress. On the contrary, it would appear that a
lower level employee’s actions were simply overridden based upon company policy.
Accordingly, the defendant’s motion for summary judgment is allowed as to Count
Il.
v.Negligent Misrepresentation (Count IV)
In Count IV, the plaintiffs allege that Friendly’s “through its Agents, gave
false information of material facts to the plaintiffs and failed to exercise reasonable
,
care or competence.” The plaintiffs also allege that they “relied on said information
in their business transactions and suffered severe economic loss . . . .”
To prevail on a motion for summary judgment on a claim of negligent
misrepresentation, a plaintiff must demonstrate facts tending to show that
Friendly’s, through Tisdale, “supplied[d] false information for the guidance of [the
plaintiffs] in their business transactions,” that the plaintiffs justifiably relied on that
information, and that Tisdale “fail[ed] to exercise reasonable care or competence in
obtaining or communicating [the] information.” McCarthy v. U.S.I. Corp., 678 A.2d
48, 53 (Me. 1996) (quotation and citation omitted). “[A] principal is liable for
fraudulent misrepresentations made by his agent within the scope of the agent's
authority whether or not the principal knows or is unaware of his agent's
misconduct.” Arbour v. Hazelton, 534 A.2d 1303, 1306 (Me. 1987) (emphasis added);
Crowley v. Dubuc, 430 A.2d 549, 552 (Me. 1981); RESTATEMENT (SECOND) AGENCY § 257
(1958).
The record establishes conclusively that the plaintiffs undertook various
investments upon the presumption that they would have a continuing business
relationship with Friendly’s - despite the fact that their unwritten contract contained
utterly no definitive term of the relationship. The record discloses no
misrepresentation of a material fact to the plaintiffs. At the times when plaintiffs
were allowed to install their machines at the restaurants, Tisdale anticipated that the
machines would be left there for an indefinite period. At some point, that indefinite
period was declared to have concluded by the defendants. iffs were without a
legal basis to expect more. As such, defendants are entitled to summary judgment
on Count IV.
THE DOCKET ENTRY IS:
The defendant’s motion for summary judgment is GRANTED as to counts
IL II, and IV. Partial summary judgment is GRANTED on count I to the
extent that damages are limited to lost income and are capped for each
location to a maximum of one year from the installation of any machine
there.
The clerk is directed to incorporate this order into the docket by reference.
i ul of)
JUSTICE, SUPERIOR COURT
Dated: February 27, 2002
11/14/2000 PENOBSCOT
Date Filed
Docket No. CcV-2000-214
County
Action ___ CONTRACT
ASSIGNED TO JUSTICE FRANCIS C. MARSANO
RE-ASSIGNED TO JUSTICE ANDREW M. MEAD
STUART H. SACHS,
BARBARA L. LAWRENCE and
SILENT PARTNERS
FRIENDLY'S ICE CREAM CORPORATION
Plaintiff's Attorney
DONALD BROWN ESQ
6 STATE STREET SUITE 308
Defendant’s Attomey
Farrell, Rosenblatt & Russell
P O Box 738
an onT
BANGOR ME 04401 044
BY: Gregory P.
Date of
Entry
11/14/00} Complaint filed.
11/14/00} Notice of Service of Summons and Complaint and Acknowledgment of Receipt
of Summons and Complaint filed (s.d. 11/2/00 by Aaron Parker, Esq.)
11/14/00 Case File Notice Postcard forwarded to Plaintiff's counsel.
11/17/00 Answer and Affirmative Defenses filed by Defendant.
11/20/00 Scheduling Order filed. Discovery deadline is August 1, 2001.
(Marsano, J.) Copy forwarded to attorneys of record.
12/8/2000 Jury Trial Fee $300.00 PAID by Plaintiff.
1/31/01 Notification of Discovery Service fildd by Deft. Friendly's
Ice Cream Corporation, Deft. Interrogatory No.s 1 - 20 propounded
to Plaintiff Silent Partners; Deft.'s Interrogatory Nos. 1 -
15 propunded to Plaintiff Stuart H. Sachs; Deft.'s Interrogatory
Nos. 1 -15 propounded to Plaintiff Barbara L. Lawrence; Deft.
Request for Production of Documents Propounded to Plaintiff
Silent Partners.
2/2/01 Notification of Discovery Service filed by Defendant, Request for
Entry upon Property of Plaintiffs.
2/21/01 Motion for Extension of Time to File Designation of Expert Witnesses filed
by Plaintiff. (no obj.)
2/22/01 Order filed. Plaintiff's Motion to Extend Time is hereby Granted
in part. Expert Witness Designation is due on or before March 2,
2001. (No basis for enlargement provided) (Hjeln, J.) Copy forwarded
to attorneys of record.
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