Mudd v. Occasions Caterers, Inc., 122321 DCCA, 19-CV-0644

Docket Nº19-CV-0644, 19-CV-1146
Opinion JudgeGlickman, Associate Judge
Party NameJohn Steven Mudd, Appellant, v. Occasions Caterers, Inc., et. al., Appellees.
AttorneyJeremy Greenberg, with whom Denise M. Clark was on the brief, for appellant. Philip Zipin for appellees.
Judge PanelBefore Glickman, Beckwith, and Easterly, Associate Judges. Concurring opinion by Associate Judge Easterly at page 27. Easterly, Associate Judge, concurring:
Case DateDecember 23, 2021

John Steven Mudd, Appellant,


Occasions Caterers, Inc., et. al., Appellees.

Nos. 19-CV-0644, 19-CV-1146

Court of Appeals of The District of Columbia

December 23, 2021

Argued February 4, 2021

Appeals from the Superior Court of the District of Columbia (CAB-3840-19 & CAB-3274-18) (Hon. Florence Y. Pan, Trial Judge)

Jeremy Greenberg, with whom Denise M. Clark was on the brief, for appellant.

Philip Zipin for appellees.

Before Glickman, Beckwith, and Easterly, Associate Judges.

Concurring opinion by Associate Judge Easterly at page 27.


Glickman, Associate Judge

Appellant, John Steven Mudd, challenges the trial court's award of summary judgment in favor of appellees on his claim arising


under the D.C. Wage Payment and Collection Law ("WPCL"), 1 as well as the court's denial of his motion to amend his complaint and its dismissal of his separately filed breach of contract action. We reverse in part and affirm in part.


Mr. Mudd was employed as the comptroller of appellee Occasions Caterers, Inc. ("Occasions") from April 8, 1999, until February 15, 2018. Occasions is a catering company whose CEO is appellee Mark Michael. Mr. Michael is also the President and 50% owner of appellee Protocol Staffing Services, Inc. ("Protocol"), which provides staff for events catered by Occasions.

Mr. Mudd worked for Occasions under a series of one-year contracts, executed in 2006, 2007, 2008, 2010, and 2013. He continued working for the company as its comptroller during the years for which he did not have a written employment agreement. Mr. Mudd's 2013 employment contract with Occasions, his last before he was terminated, specified his responsibilities as comptroller as follows:


Oversee financial administration for the organization to include: management of accounting staff, processing accounts payable/receivable, payroll for full-time staff and independent contractors, financial reporting and forecasting, tracking sales and commissions, preparing production and administration budgets, processing sales and income tax, as well as special projects as assigned by the owners.

Like Mr. Mudd's prior employment agreements, the 2013 contract provided that his compensation would include a profit-sharing bonus ("PSB") amounting to 3.33% of Occasions' pre-tax earnings, to be "determined at the end of the [c]alendar year and paid by the end of February the following year." Mr. Mudd received the PSB each year from 2000 through 2016, regardless of whether or not he had a written employment contract for the corresponding year. In addition to his duties as comptroller of Occasions, Mr. Mudd performed off-site staffing work on behalf of Protocol, for which he was paid hourly.

In August 2017, Occasions hired Joseph Gwozdz to serve as its first chief financial officer ("CFO"). Approximately six months after Mr. Gwozdz's arrival, Occasions sent Mr. Mudd a termination letter. The letter informed him that his position would be "eliminated," effective February 15, 2018, and that he was entitled to twenty-six weeks of severance pay ($57, 000), accrued paid time off ("PTO"), and


compensation for any hours worked through his last day of employment. The letter did not mention the PSB.

In May 2018, Mr. Mudd filed a complaint in Superior Court against Occasions, Protocol, and Mr. Michael.2 The complaint alleged that the defendants violated D.C. Code § 32-1303(1)3 by failing to pay Mr. Mudd (1) the 3.33% PSB, (2) the agreed-upon hourly rate for work that he performed on behalf of Protocol, and (3) his accrued PTO. The parties stipulated that the PSB for 2017, if it were owed, would be $75, 794.00. Mr. Mudd later amended his complaint to add Compass Group USA, the successor in interest to Occasions and Protocol, as a defendant.

Following an initial discovery period, the parties filed cross-motions for summary judgment. Occasions and Protocol requested summary judgment on all of Mr. Mudd's claims, while Mr. Mudd asked for summary judgment on only his PSB


and hourly rate claims. On April 30, 2019, the trial court held a hearing, at the close of which it granted summary judgment to the defendants on the PSB claim and to Mr. Mudd on the hourly rate claim, 4 but denied the defendants' motion for summary judgment on the PTO claim. With respect to the PSB claim, the trial court concluded that Mr. Mudd was not entitled to payment under § 32-1303(1) because the terms of his 2013 contract were no longer in effect once Occasions hired Mr. Gwozdz. The trial court reasoned that there was no genuine issue of material fact as to whether Mr. Gwozdz's hiring clearly and manifestly demonstrated that Occasions no longer wished to be bound by the 2013 contract. The trial court denied Mr. Mudd's subsequent motion to reconsider its summary judgment ruling.

At this point, the only issue that the trial court had not disposed of was Mr. Mudd's claim for accrued PTO. Prior to a second hearing in June 2019, Mr. Mudd filed a motion to amend his complaint, seeking to add a new count for breach of the 2013 employment contract. At the hearing, the trial court denied his motion. After the ruling, counsel for Occasions informed the trial court that Mr. Mudd had recently filed a separate breach of contract claim against his client in Superior Court. Mr. Mudd admitted that the breach of contract action was identical to the claim he had


unsuccessfully attempted to add to his existing complaint. The trial judge responded by issuing an order transferring the new breach of contract case to her own docket and dismissing it with prejudice sua sponte "because it is barred by the doctrines of res judicata and claim preclusion."5 Between June and October 2019, the trial court dealt with several motions filed by Compass Group USA. On October 31, 2019, all of the parties stipulated to the dismissal of the accrued PTO claim that was still pending. Thus, in November 2019, the trial court entered a final judgment in the case.

Mr. Mudd then took this appeal. In it he contends the trial court erred by (1) granting summary judgment for the defendants on his PSB claim and denying his own motion for summary judgment on that claim; (2) denying him leave to amend


his complaint to add a claim for breach of his 2013 employment contract; and (3) dismissing his breach of contract action.



We review entitlement to summary judgment de novo, applying the same standard as the trial court.[6] The threshold for summary judgment is well-established: A party is entitled to summary judgment if, when the facts are viewed "in the light most favorable to the non-moving party . . . there [are] no genuine issue[s] of material fact and [] the moving party is entitled to judgment as a matter of law." On appeal, this court is required to "conduct an independent review of the record . . . [to] determine whether any relevant factual issues exist by examining and taking into account the pleadings, depositions, and admission, along with any affidavits on file, construing such material in the light most favorable to the party opposing the motion."7


As an appellate court, "[o]ur role 'is not to act as factfinder and to resolve factual issues,' but rather to review the record to determine if there is 'a genuine issue of material fact on which a jury could find for the non-moving party.'"8 If such a dispute of material fact exists, then summary judgment is not appropriate, and an award of "summary judgment must be reversed."9


Occasions' main argument for affirmance of summary judgment on Mr. Mudd's PSB claim is that he was not entitled to receive the PSB because his 2013 employment contract expired in August 2017 when Occasions hired Mr. Gwozdz to serve as the company's chief financial officer. Occasions relies on the principle that: [W]hen a contract lapses but the parties to the contract continue to act as if they are performing under a contract, the material terms of the prior contract will survive intact


unless either one of the parties clearly and manifestly indicates, through words or conduct, that it no longer wishes to continue to be bound thereby, or both parties mutually intend that the terms not survive.[10]

Occasions argues that, by hiring Mr. Gwozdz in August 2017, it clearly manifested its intention not to be bound by the terms of its 2013 contract with Mr. Mudd.11 This is so, they argue, because Mr. Gwozdz assumed Mr. Mudd's "primary job responsibility" of overseeing financial administration for Occasions. According to Occasions, "[t]his fact is not in dispute, and it is dispositive of [Mr. Mudd's] claim that any profit-sharing compensation was due."

Mr. Mudd counters that Mr. Gwozdz's hiring did not clearly and manifestly indicate that Occasions no longer wished to be bound by the 2013 contract because


(1) he was never told the hiring would affect his own position, (2) he retained his title of comptroller for Occasions, and (3) he continued to perform the same duties. Mr. Mudd maintains that the "only change to [his] position as a result of the hiring was that he now reported to Mr. Gwozdz instead of Mr. Michael."

The trial court agreed with Occasions. It explained its reasoning as follows: I don't think that there is a genuine issue of material fact here because . . . the most important duty that Mr. Mudd had as comptroller was to oversee the financial administration of the organization. . . . And I don't think there's any genuine issue of material fact as to whether there's a manifest and clear intent to change the contract if they take away his key function and give it to somebody else . . . I just don't think that there's a jury question here. There's no dispute as to this fact that Mr. Gwozdz was hired in August of 2017. There's no dispute as to his title which was chief financial officer. And there's no dispute that Mr. Gwozdz took over the oversight of the financial administration of the organization and the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT