Simonds v. City of Manchester, 95-761

• Decision Date: 16 April 1997
• Docket Number: No. 95-761,95-761
• Parties: , 12 IER Cases 1555 Ernest S. SIMONDS v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

Page 69

693 A.2d 69

141 N.H. 742, 12 IER Cases 1555

Ernest S. SIMONDS v. CITY OF MANCHESTER.

No. 95-761.

Supreme Court of New Hampshire.

April 16, 1997.

Wiggin & Nourie, P.A., Manchester (Dort S. Bigg and Michael S. Owen, on the brief, and Michael A. Delaney orally), for plaintiff.

Thomas I. Arnold, III, Assistant City Solicitor, Manchester, by brief and orally, for defendant.

BRODERICK, Justice.

The defendant, the City of Manchester (city), appeals a jury verdict for the plaintiff, Ernest S. Simonds, in a contract action against the city. The city contends that the Superior Court (Conboy, J.) erred in denying its motion for directed verdict, in failing to give certain jury instructions, and in denying its motions for judgment notwithstanding the verdict and to set aside the verdict. We reverse.

The following facts were developed at trial. In 1984, the city offered to hire the plaintiff as fleet manager. After the city offered him the position, but before he accepted, the plaintiff discussed the terms of employment with Leo Pepino, a member of the Manchester Board of Aldermen, and Wilbur Jenkins, city personnel director. The plaintiff asked how he could obtain "permanent" employment, and Pepino explained that if the plaintiff could show cost savings to the city, he could apply for a six-year appointment, which, if he received it, would be "as permanent as six years can be." The plaintiff subsequently accepted the position.

After two years as fleet manager, the plaintiff reported that he had saved the city in excess of a quarter of a million dollars and asked for a six-year commitment. According to the minutes of the December 16, 1986, meeting of the Manchester Board of Mayor and Aldermen (board), Alderman Henry Thibault moved "that the term of Office for the position of Fleet Manager be established at six years" and nominated the plaintiff to the position "for [a] term expiring February, 1993." Without discussion, the board voted to confirm the plaintiff's appointment as fleet manager for a term of six years.

Five months later, the board passed an ordinance creating the fleet management department. The ordinance provided in pertinent part that "[t]he head of the fleet management department shall be the fleet manager who shall be elected for an indefinite term by, and hold office at the pleasure of, the Board of Mayor and Aldermen." The board, however, did not elect anyone "for an indefinite term" as fleet manager, and the plaintiff continued in the position as before.

In December 1990, the board declined to fund the fleet management department for the fiscal year 1991, and the city formally terminated the plaintiff's employment effective December 31, 1990. In December 1993, the plaintiff initiated this action against the city, alleging that he had a contract of employment from February 6, 1987, to February 6, 1993, as fleet manager for the city and that the city wrongfully terminated his employment in December 1990. Following trial, the jury returned a verdict for the plaintiff.

On appeal, the city maintains that the plaintiff's employment as fleet manager was not contractually based but simply an appointment for a term of years, which the city could in good faith modify or abolish. With a municipal corporation's power to create an office comes the power to change or abolish it, see 3 E. McQuillin, Municipal Corporations § 12.118, at 552 (3d ed. rev. 1990), even if the term of office has not yet expired, see Williams v. City of New Bedford, 303 Mass. 213, 21 N.E.2d 265, 265 (1939). This power may be circumscribed by law, however, "as when the creation is contractual in nature." 3 McQuillin, supra § 12.118, at 552; see Corn v. City of Oakland City, 415 N.E.2d 129, 133 (Ind.Ct.App.1981). For purposes of this case, we assume, without deciding, that the position of fleet manager is one for which persons may contract. See 10A McQuillin, supra § 29.101, at 44 (discussing power of municipal boards to bind successors to employment contracts).

Whether the evidence in this case demonstrated that the plaintiff's employment as fleet manager was appointive or contractual in nature is an issue of fact, provided there was evidence from which the trier of fact could conclude a contract existed between the parties. See Harrison v. Watson, 116 N.H. 510, 511, 363 A.2d 204, 205 (1976). In denying the city's motions for directed verdict and judgment notwithstanding the verdict, the trial court necessarily determined there was evidence from which the jury could find a contract existed. "We will uphold a denial of these motions where sufficient evidence in the record supports the trial court's ruling." Weldy v. Town of Kingston, 128 N.H. 325, 330, 514 A.2d 1257, 1260 (1986). "Such motions should be granted only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand." Bronson v. The Hitchcock Clinic, 140 N.H. 798, 800, 677 A.2d 665, 667-68 (1996) (quotation omitted).

Though "[a] contract may be established by spoken or written words or by acts or conduct," Harrison, 116 N.H. at 511, 363 A.2d at 205, the fact of an appointment to a public office for a fixed term and salary is not itself a contract, see Lamborn v. Jessop, 631 P.2d 917, 919 (Utah 1981); Bowman v. Maine State Emp. Appeals Bd., 408 A.2d 688, 690 (Me.1979). Among the requirements for contract formation is a meeting of the minds about terms--"each party must have the same understanding as to the terms of the agreement." Appeal of Sanborn Regional School Bd., 133 N.H. 513, 518, 579 A.2d 282, 284 (1990). When a court determines whether such a mutual understanding...