Slifkin v. Condec Corp.

• Citation: 538 A.2d 231,13 Conn.App. 538
• Decision Date: 01 March 1988
• Docket Number: No. 5544,5544
• Court: Appellate Court of Connecticut
• Parties: Irving SLIFKIN v. CONDEC CORPORATION.

Page 231

538 A.2d 231

13 Conn.App. 538

Irving SLIFKIN v. CONDEC CORPORATION.

No. 5544.

Appellate Court of Connecticut.

Argued Oct. 7, 1987.

Decided March 1, 1988.

Alan Neigher, Westport, for appellant (plaintiff).

William A. Phillips, Greenwich, for appellee (defendant).

Before DUPONT, C.J., and BIELUCH and NORCOTT, JJ.

BIELUCH, Judge.

This is an appeal by the plaintiff from a judgment rendered in favor of the defendant in a suit for wrongful discharge from employment in violation of a contract between the parties. The action was heard by an attorney state trial referee who found in favor of the defendant on all counts in his report to the court. The plaintiff's motion to correct the referee's report was granted as to the request for clarification, but denied insofar as it sought to strike certain findings and to add others. Upon accepting the referee's report after overruling the plaintiff's objections, the court rendered judgment for the defendant. We find error.

The plaintiff's amended complaint was in four counts: (1) breach of contract; (2) promissory estoppel; (3) tortious discharge; and (4) breach of an implied covenant of good faith. The third count was withdrawn at trial.

The first count alleged that on August 24, 1977, the defendant agreed to employ the plaintiff as general counsel, for which he would receive an annual salary and bonuses and would participate in the company's pension, profit sharing and stock incentive plans for "a minimum of twelve years ... in order to qualify for 100% vesting in each of the benefit plans offered by the defendant"; that on June 4, 1979, the parties "signed a written memorandum which set forth defendant's obligation to employ plaintiff until such time as plaintiff qualified for 100% vesting in each of the benefit plans offered by the defendant"; and that on or about October 1, 1980, the corporate president, without giving a reason, informed the plaintiff that he would be terminated on December 31, 1980, which date was later extended to April 17, 1981. Since the plaintiff suffered no monetary loss after his discharge, his damage claim was limited to the loss of vested benefits in the defendant's pension, profit sharing and stock incentive plans.

The second count sought the same damages on the ground of promissory estoppel and alleged that the plaintiff, age 55 in 1977, was then offered relocation in Houston, Texas, by his employer, Shell Oil Company; that he was unwilling to give up his employment benefits accrued over twenty-nine years unless he was assured of sufficient employment by the defendant to qualify for 100 percent vesting in all of its benefit plans; that these facts were known to the defendant, the president of which therefore agreed to employ the plaintiff as counsel for twelve years.

The fourth count alleged a breach of an implied covenant of good faith through the defendant's false inducement that the plaintiff leave his former employment. In this count the plaintiff additionally sought punitive damages and attorney's fees.

The controversy focuses on the plaintiff's employment contract as it began as an oral agreement and was subsequently put in writing during his employment. The plaintiff, an attorney since 1948, was employed in the corporate legal department of Shell, but did not desire to relocate with that company to Houston. Wishing to remain in the New York City area, he was put in contact with the defendant. Within a period of weeks, the parties reached an agreement by which the plaintiff was employed by the defendant as its general counsel. The plaintiff thereupon terminated his employment with Shell. At the time of his departure from Shell, the plaintiff was fully vested in its pension, profit sharing and stock incentive plans. Had he continued there, these benefits would have increased directly with his salary.

The attorney trial referee found that the oral understanding at the time of employment was that the plaintiff was to start at an annual salary of $55,000, with periodic revaluation and bonuses. In addition, he was to participate in the employer's pension, profit sharing and stock purchase plans. All of this was impliedly conditional upon satisfactory service by the plaintiff. The attorney trial referee did not find, as the plaintiff claimed, that the defendant agreed to a definite term of employment for twelve years, the minimum period required for the vesting of the plaintiff's rights in the defendant's benefit plans.

In 1978 and 1979, the plaintiff's salary was successively increased, and he was also given bonus payments. On January 5, 1979, a memorandum was prepared for the defendant's president, with copy to the plaintiff, outlining the plaintiff's retirement benefits. Becoming concerned that he had no written contract guaranteeing employment until the vesting of his retirement benefits, the plaintiff, on May 19, 1979, drafted a memorandum agreement for execution by the defendant's president, Gerald Rosenberg. It read as follows: "This will confirm our discussions, both prior and subsequent to my employment, relating to my completion of sufficient years of service during my employment as General Counsel of Condec Corporation to qualify for 100% vesting in each of the employee benefit plans currently offered, as they now exist or may be modified or amended in the future, and any such plans which may hereafter be adopted. It is agreed that I shall be employed by Condec Corporation at a competitive and adequate compensation for at least such period of years as is required to accomplish 100% vesting in the employee benefit plans referred to above, unless discharged for due cause, i.e., dishonesty, or criminal conduct injurious to Condec."

The defendant's president, Gerald Rosenberg, refused to sign the proposed agreement as "too detailed." In its place, he had the plaintiff modify the agreement to state: "At the time of my employment, it was agreed, in view of my age being in excess of 55 years, that I would be afforded an opportunity to continue in the employ of Condec Corporation for a sufficient number of years to qualify for 100% vesting in each of the employer benefit plans currently offered, or as modified or amended or as adopted, in the future." This revision was then signed by the parties on June 4, 1979, and the plaintiff continued in the defendant's employ.

In 1980, the plaintiff was elected assistant secretary of Condec by its board of directors. That fall, however, he failed to obtain a salary review. Upon his inquiry about this, he met in October with Rosenberg, who informed him that his services were unsatisfactory because "he hadn't grown with the job," and that he was being terminated. In the meantime, the defendant had hired the plaintiff's replacement. The plaintiff left the defendant's employ on April 17, 1981. Upon his termination he received no benefits under the defendant's pension, profit sharing or stock incentive plans. The plaintiff has since obtained other employment, but he is ineligible to participate in this employer's benefit plans because of his age.

The attorney trial referee found that the plaintiff's proposed agreement of May 29, 1979, implied an absolute agreement for employment in the terms, "[i]t is agreed that I shall be employed," but this draft was not accepted by the defendant. The provision thereafter dictated by the corporate president and accepted on June 4, 1979, by the plaintiff, "that I would be afforded an opportunity to continue in the employ of Condec Corporation," was found by the trial referee, however, to imply "that [plaintiff's] employment would be subject to the performance of satisfactory service."

The referee made three additional relevant findings: (1) the plaintiff offered no evidence of a standard of service, which if performed by him, would have put the defendant in breach of the agreement; (2) the duties of general counsel "are varied and vague of precise definition and are thus necessarily required to meet the reasonable demands of management"; and (3) the plaintiff was terminated by reason of his failure to provide services to the reasonable needs of management. On the basis of his findings, the attorney trial referee concluded in his report to the court that judgment should be rendered for the defendant.

The plaintiff's motion to correct the report was denied by the referee, except for the following clarifications: The original employment contract was entirely oral. The writing submitted several years later contained language at the express direction of the defendant, which, when coupled with the prior writing of the plaintiff and reviewed by the defendant, "must be read to include satisfactory performance by the plaintiff." The original oral agreement, the rejected writing and the executed writing are ambiguous and their ordinary meaning requires that a party being paid for service must render satisfactory service within the context of his employment. The writing relied upon is at best a partial memorialization of an agreement that was initially oral and continued so for a period of years and included review annually to determine the level of service. Rosenberg told the plaintiff what he wished the writing to contain and the plaintiff in fact returned to his office and drew the document. The signed document was the understanding of both parties when read in light of Rosenberg's review of the original submission.

The plaintiff excepted to the referee's response to the motion to correct his report and objected to its acceptance. The trial court, however, rendered judgment on the referee's report.

The plaintiff has appealed from that judgment. He claims that the court erred (1) in finding that the phrase "afforded an opportunity to continue in the employ of Condec Corporation" in the employment agreement "clearly implies that employment would be subject to the performance of satisfactory service," (2) in not finding that the plaintiff...