Bell v. Edward D. Jones & Co.
| Decision Date | 26 August 1996 |
| Docket Number | No. 95-C-855-S.,95-C-855-S. |
| Citation | 962 F.Supp. 1188 |
| Parties | Robert BELL, Plaintiff, v. EDWARD D. JONES & COMPANY and Wayne Riegler, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Michael R. Fox, Fox & Fox, S.C., Madison, for Robert Bell.
Timothy G. Costello, Krukowski & Costello, S.C., Milwaukee, for Edward D. Jones & Company and Wayne Riegler.
Plaintiff Robert Bell commenced this civil action in Jefferson County Wisconsin Circuit Court. Defendants Edward D. Jones & Company and Wayne Riegler removed the case to this Court. In his amended complaint plaintiff claims that the defendants violated the Age Discrimination in Employment Act, breached a contract and made fraudulent representations to him.
On June 24, 1996 defendants filed a partial motion for summary judgment on plaintiff's state law claims pursuant to Rule 56, Federal Rules of Civil Procedure, submitting proposed findings of fact, conclusions of law, affidavits and a brief in support thereof. This motion has been fully briefed and is ready for decision.
Defendants move to strike paragraph numbers 10, 14, 22, 23, 23, 27, 30, 35, 39, 40 and 42-48 of plaintiff's affidavit. This motion has been fully briefed. Defendants contend that paragraphs 42-48 should be stricken because they are not relevant to the pending motion. These paragraphs are relevant and will not be stricken. Defendants contend that paragraphs 10, 14, 22, 23, 24, 27, 30, 25, 39 and 40 should be stricken because they are based on plaintiff's subjective and conclusory opinions. A review of these paragraphs indicates that they are based on plaintiff's personal knowledge and beliefs and will not be stricken. Defendants' motion to strike will be denied.
On a motion for summary judgment the question is whether any genuine issue of material fact remains following the submission by both parties of affidavits and other supporting materials and, if not, whether the moving party is entitled to judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. An adverse party may not rest upon the mere allegations or denials of the pleading, but the response must set forth specific facts showing there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
There is no issue for trial unless there is sufficient evidence favoring the non-moving party that a jury could return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
For purposes of deciding defendants' motion for partial summary judgment the Court finds that there is no genuine dispute as to any of the following material facts.
Plaintiff Robert Bell who is over 40 years of age resides in Fort Atkinson, Wisconsin. Defendant Edward D. Jones & Company (Jones) is licensed to do business in the State of Wisconsin but maintains its headquarters and principal place of business in the County of St. Louis, State of Missouri. Jones is in the retail investment brokerage business which operates small offices staffed with one investment representative (IR) and one branch office administrator (BOA). Defendant Wayne Riegler is a resident of the City of Ironwood, Michigan and was employed by Jones as an IR in its Fort Atkinson office until he retired in January 1994.
On April 30, 1992 plaintiff signed an Investment Representative Employment Agreement with Jones. Jack Cahill signed on behalf of defendant Jones on May 2, 1992. The agreement provided as follows:
26. This Agreement shall be deemed to be a Missouri contract and governed by the laws thereof. A waiver of any provision hereof by Jones shall not be deemed a waiver of any other provision and no waiver shall be effective unless the same is in writing over the signature of a principal officer of Jones. Any provision of this Agreement prohibited by the laws of any state shall as to such state be ineffectual only to the extent of such prohibition and shall not invalidate the remaining provisions of this Agreement.
29. The parties hereto hereby acknowledge that no oral or written representations were made with respect to this Agreement or the relationship between the parties, and the rights of the parties are governed only by this Agreement and any other subsequent written agreements or riders entered into between the parties and signed by a principal officer of Jones.
In May 1993 defendant Riegler and plaintiff drafted two handwritten documents setting forth an income and expense sharing arrangement between them. Neither Bell nor a principal officer of Jones signed these agreements. Defendant Riegler was not a principal officer of Jones.
It is disputed whether plaintiff and Riegler had an oral agreement that plaintiff would take over Riegler's business when he retired after a year to three years. It is also disputed whether defendant Riegler misrepresented to plaintiff his authority to bind Jones to an agreement and whether plaintiff was justified in relying on this representation.
MEMORANDUMDefendants move for partial summary judgment on plaintiff's breach of contract and fraud claims against both defendants Jones and Riegler. Plaintiff contends that he had an oral contract with defendant Riegler for plaintiff to assume Riegler's clients at the Fort Atkinson office when he retired after one year and that Jones was bound by this agreement. He further contends that both defendants breached the agreement.
Plaintiff had a written employment contract with defendant Jones which by its terms was all inclusive except for subsequent written agreements signed by a principal officer of Jones. No such subsequent agreements exist.
Plaintiff argues that according to Reimer v. Badger Wholesale Co. Inc., 147 Wis.2d 389, 392, 433 N.W.2d 592 (Ct.App.1988), his oral agreement modified the written agreement. In Reimer there was no fully integrated written employment contract which included a merger clause. In the instant case a fully integrated agreement exists between plaintiff and defendant Jones. Accordingly, evidence of a party's contrary prior oral agreement is not admissible. In re Spring Valley Meats, Inc., 94 Wis.2d 600, 607, 288 N.W.2d 852 (1980); Durkee v. Goodyear Tire and Rubber, 676 F.Supp. 189, 191 (W.D.Wis.1987). The undisputed facts do not support a breach of contract claim against defendant Jones because the written employment agreement was the only contract between Bell and Jones and it was not breached. Neither was there any waiver of this merger clause prior to any oral agreement. Accordingly, defendant Edward D. Jones & Co. is entitled to summary judgment on the contract claim against it.
Having concluded that the alleged oral agreements between Riegler and plaintiff could not have the effect of modifying the written employment agreement the issue becomes whether the oral business takeover...
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