Garvey v. Buhler
| Citation | 146 Wis.2d 281,430 N.W.2d 616 |
| Decision Date | 31 August 1988 |
| Docket Number | No. 87-2044,87-2044 |
| Parties | , 3 IER Cases 1479 Christine GARVEY, Plaintiff-Appellant, v. Robert W. BUHLER, individually, and as an officer, agent or employee of Open Pantry Food Marts of Wis., Inc., and Open Pantry Food Marts of Wis., Inc., a domestic corporation, Defendants-Respondents. * |
| Court | Court of Appeals of Wisconsin |
Steven M. Lucareli, Racine, for plaintiff-appellant.
Constantine, Christensen, Krohn & Kerscher, S.C., Racine, for defendants-respondents.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
Christine Garvey's causes of action against her former employer, Open Pantry Food Marts of Wisconsin, Inc. (Open Pantry), for wrongful discharge and intentional infliction of emotional distress were dismissed by the trial court for failure to state a claim. Garvey's breach of contract claim against Open Pantry was also dismissed on summary judgment. Garvey appeals. We conclude that Garvey has failed to state a cause of action for either wrongful discharge or intentional infliction of emotional distress. Therefore, we affirm the trial court's dismissal of these claims. However, we conclude that summary judgment as to the breach of contract claim was improvidently granted, as genuine issues of material fact remain in dispute. Therefore, we reverse the trial court's grant of summary judgment and remand Garvey's breach of contract claim for further proceedings.
Garvey was fired from her position as manager of an Open Pantry store on June 2, 1986. The evening before her termination, Robert Buhler, president of Open Pantry, made a purchase at the store Garvey managed and became upset when the clerk on duty failed to offer him stamps that were being used in a promotion. Garvey was not present in the store that evening, but was responsible for the training and supervision of all the clerks at that store. When Garvey arrived at work the next morning she was told that both she and the clerk were fired. Her supervisor told Garvey that she was being fired to make an example of her to other store managers.
Garvey first began working as a clerk for Open Pantry in February of 1978. By the date of her termination she had been promoted to store manager. The summary judgment record shows that during her tenure with Open Pantry, Garvey signed a form which outlined the company's alcohol sale policy and contained the statement that conviction under any alcohol sale law would result in termination of employment. Additionally, there existed a company polygraph policy, a standard of conduct form and two company manuals.
Garvey's affidavit stated that her supervisors had communicated to her that there was a company policy whereby an employee would be terminated after the receipt of three pink disciplinary slips within a six-month period and that she had come to rely on this policy as a condition of her employment. Affidavits of two of her past supervisors corroborate this. However, an affidavit of Grover Stock, vice president and secretary of Open Pantry, states that this was not an official company policy anytime during Garvey's employment with the company.
Following her termination, Garvey filed suit against both Robert Buhler, individually, and Open Pantry. An amended complaint was later filed, alleging (1) breach of contract; (2) wrongful termination; (3) intentional infliction of emotional distress; and (4) conspiracy in violation of sec. 134.01, Stats., or, in the alternative, defamation. The parties then stipulated to dismissal of the breach of contract claim against Buhler as an individual, and the trial court ruled that it would dismiss the conspiracy/defamation allegation against both Buhler and Open Pantry unless Garvey amended her complaint within twenty days. Garvey failed to further amend her complaint within the time limit and the trial court dismissed the conspiracy/defamation claim in its entirety.
Open Pantry then moved for summary judgment on Garvey's breach of contract claim and both Buhler and Open Pantry moved for dismissal of the emotional distress and wrongful termination claims on the ground that a claim for relief was not stated. The trial court granted these motions. Garvey appeals the order.
In support of her breach of contract claim, Garvey contends that her understanding of the pink slip policy, the alcohol policy form she signed, a list of employee rules, an owner/operator manual and an interviewing and hiring manual served to convert the employment at will relationship into one that could only be terminated for cause. See Ferraro v. Koelsch, 124 Wis.2d 154, 157-58, 368 N.W.2d 666, 668 (1985). In Ferraro, the Wisconsin Supreme Court held that an express contract was created when the employee indicated his acceptance of an employee handbook that set up the conditions of employment and which promised that discharge would only be for "just cause." Id. at 165, 368 N.W.2d at 672. This contract, the supreme court held, abrogated the employment at will relationship. Id.
Garvey apparently concedes that the facts of this case do not create an express contract like the one found in Ferraro. However, she argues that the company policies did create an implied contract and that under Ferraro an implied contract also serves to convert an employment at will relationship into one that can only be terminated according to the terms of the contract.
We originally certified to the supreme court the question of whether the holding of Ferraro embraces implied as well as express contracts. The certification was rejected. Thus, we are called upon to answer this further and open question. Although the Ferraro decision is not all encompassing, we conclude that its logic travels to all types of contracts, including implied ones. Id. at 166, 368 N.W.2d at 672. Similarly, to ask whether an implied contract will be enforced begs the question. The ultimate rule of Ferraro, we conclude, is that contracts--regardless of their ilk--will be enforced in Wisconsin. Therefore, we will consider Garvey's claim in this light.
On appeal, Garvey contends that the trial court's grant of summary judgment was inappropriate. In support, she extensively argues the law of unilateral contracts, an approach which we do not find particularly helpful. Moreover, Garvey fails to enlighten this court as to the precise nature of the factual dispute, although she does correctly state that the question of whether an implied contract exists is a question of fact. See Theuerkauf v. Sutton, 102 Wis.2d 176, 183, 306 N.W.2d 651, 657 (1981). We agree with Garvey that an issue of fact does exist which renders the trial court's summary judgment order inappropriate.
In reviewing the trial court's grant of a motion for summary judgment, we must independently apply the standards of sec. 802.08(2), Stats., in the same manner as did the trial court. Schaller v. Marine Nat'l Bank, 131 Wis.2d 389, 394, 388 N.W.2d 645, 648 (Ct.App.1986). We will reverse only if the record shows that material facts are in dispute or if the trial court incorrectly applied the law. Id.
The summary judgment methodology applied by the trial court, and likewise applied by this court, first requires an examination of the pleadings to determine whether the plaintiff has stated a claim upon which relief can be granted. Henning v. General Motors Assembly Div., 143 Wis.2d 1, 6, 419 N.W.2d 551, 552 (1988). If a claim for relief has been stated, we must then determine whether there exists any dispute as to the material facts. Id. If no factual issue exists, then we must decide whether, as a matter of law, the moving party is entitled to summary judgment. Id.
Both parties concede, and we agree, that Garvey has stated a valid breach of contract claim. This brings us to the second step of the summary judgment analysis and a determination of whether there exists a genuine issue of material fact. Id. This court must...
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