Citing to McCarthy v. Tobin, 429 Mass. 84, 88 & n. 3 (1999), the judge ruled that “[w]here the parties have agreed to all material terms during preliminary negotiations, the fact that they also agreed to execute a subsequent formal instrument does not preclude the finding of a binding contract.” That ruling is manifestly correct. Indeed, we made this point in our earlier opinion. See 79 Mass.App.Ct.
5. Dennis does not argue, nor could he on this record, that Kaskel ever agreed to the proposal that Dennis advanced for the creation of Boston Roadhouse. FN5. Dennis does not argue, nor could he on this record, that Kaskel ever agreed to the proposal that Dennis advanced for the creation of Boston Roadhouse.
The stock option plan itself is not part of the record. "-- 22.5% of any stock options which Rick Kaskel is granted by Texas Roadhouse. “We are grateful for the forward-looking leadership style our community leaders have exhibited which will allow us to take our company to the next level of performance and service,” stated Rick Kaskel, CEO and board chairman of EnCom. 6. Kaskel claims that even if the memorandum created a contract, Dennis's remedy for a breach was limited by the language in the memorandum giving Dennis the option either to demand his money back if he and Kaskel could not agree on a “legally binding agreement” within three weeks or to extend the time for doing so.
Here, plaintiff brings claims under the ADEA against defendant Texas Roadhouse, as well as Wisconsin common law claims against Texas Roadhouse and Hess for breach of contract, promissory estoppel and fraud. The court addresses each claim in turn below. The week prior to oral argument, Dennis filed a motion to dismiss this appeal based on Kaskel's alleged failure to comply with various postjudgment obligations. See Sommer v. Monga, 35 Mass.App.Ct. 761, 765 (1994), cert.
Unused portions of Kaskel's deposit were to be returned to him when his employment ended. The stock option plan itself is not part of the record.
Green then sent Maher an email with forms, including an employment application on December 20, 2013, which he completed that same day. For a reason Hess apparently did not explain, he told Maher to indicate that Maher was applying for a kitchen manager position, even though he was actually applying to be a managing partner. Hess contacted Maher to discuss working for Texas Roadhouse, and the two met in person on November 11, 2013. As part of his responsibilities as interim market partner, Hess was involved in the process to fill an open managing partner position at the restaurant in Waukesha, but he did not have the authority to actually hire the managing partner. The parties dispute whether Hess nevertheless told Maher that he did.
Among their many disagreements, the parties disagree whether the funds Dennis advanced were a loan. Kaskel says they were, but Dennis characterizes the advances as an equity investment in Kaskel's business relationship with Texas Roadhouse, which Dennis expected to produce a relatively small annual salary for Kaskel plus large bonuses and stock options in which Dennis would participate. “John Dennis shall wire funds in the amount of $25,000.00 from his personal bank account to the ․ account [of Rick Kaskel] for the sole purpose of entering into an agreement with Rick Kaskel whereby John Dennis shall enjoy a percentage of the benefits that shall accrue to Rick Kaskel as a result of his position as a market partner with Texas Roadhouse—those benefits are more fully described below.
at 742. 1. The employment agreement provided that the timing and amount of options available to Kaskel were committed to the Texas Roadhouse directors' sole discretion.
Servs., 416 Mass. 684, 691 (1993); Massachusetts Hous. Fin. Agency v. Whitney House Assocs., 37 Mass.App.Ct. 238, 241 (1994); Restatement (Second) of Contracts § 19. In deciding whether a contract was formed, however, "[w]ords and other conduct are interpreted in the light of all the circumstances," Restatement (Second) of Contracts § 202(1), because "[t]he parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning." Id. at § 202(1) comment g, at 90.
However, "language looking to execution of a final written agreement justifies a strong inference that significant items on the agenda of the transaction are still open and, hence, that the parties do not intend to be bound." Ibid., citing Rosenfield v. United States Trust Co., 290 Mass. 210, 216 (1935). Accord, Geo. W. Wilcox, v. Shell E. Petroleum Prods., , 283 Mass. 383, 387 (1933); Levenson v. L.M.I. Realty Corp., 31 Mass.App.Ct. 127, 130 (1991). See generally Restatement (Second) of Contracts § 27 (1981).
After Boston Roadhouse was created, Kaskel would deliver to Boston Roadhouse all the stock, dividends, and bonuses he received from Texas Roadhouse. There would be voting and nonvoting "members" of Boston Roadhouse, the former of which could be individuals, corporations, partnerships, or limited liability companies, and all memberships would be transferable. The "managers," not otherwise defined, of Boston Roadhouse could make calls for additional capital contributions. If a member did not respond, then any other member could make a loan to Boston Roadhouse to cover the member's share of the call, and Boston Roadhouse would be obliged to repay the loan at the rate of eighteen percent per annum. Boston Roadhouse would make periodic distributions to members in accordance with a complicated formula that stretched across two full pages of the agreement.
Spring Street in Evansville that it is currently leasing. In addition, EnCom will invest $8.3 million in state-of-the-art laboratory and production equipment to produce their custom formulations of high performance polymers in-house. The company plans to have its first production line in Evansville installed and operational during September of this year, with additional lines being installed soon thereafter.
In the first appeal, the defendant challenged the allowance of summary judgment in Dennis's favor. Because we agreed with Kaskel that there were material facts in dispute, we reversed. Dennis v. Kaskel, 79 Mass.App.Ct. 736, 740–744 (2011). Although our opinion, inter alia, identified certain points that provided support for Kaskel's contention that the parties had not entered into an enforceable contract, we did not rule that Kaskel was entitled to judgment as a matter of law.
On Kaskel's appeal, we affirm. This is the second time this matter has been before us.
“— 22.5% of any stock options which Rick Kaskel is granted by Texas Roadhouse. FN1.
The “managers,” not otherwise defined, of Boston Roadhouse could make calls for additional capital contributions. If a member did not respond, then any other member could make a loan to Boston Roadhouse to cover the member's share of the call, and Boston Roadhouse would be obliged to repay the loan at the rate of eighteen percent per annum.
(Dkt. # 20.) Because the court finds that plaintiff has failed to put forth sufficient evidence from which a reasonable juror could find in his favor on the ADEA or common law claims, the court will grant defendants' motion for summary judgment in its entirety and enter judgment in their favor. “— A continuing interest equal to 22.5% of the annual operating bonus payable to Rick Kaskel for each store in which Rick Kaskel is involved. "-- A continuing interest equal to 22.5% of the annual operating bonus payable to Rick Kaskel for each store in which Rick Kaskel is involved.
Classmate Rick Kaskel took his appreciation for Buchholz a step farther, featuring him in a talk about the importance of mentors in his life. 15 people named Rick Kaskel found in New York, West Virginia and 12 other states. Click a state below to find Rick more easily. Putting aside the issue of whether the managing partner position is an at-will position, the undisputed evidence demonstrates that there was no definite offer of a managing partner position at the Texas Roadhouse Waukesha location, or at the very least plaintiff has failed to put forth sufficient evidence from which a reasonable jury could find otherwise.
Federal Rule of Civil Procedure 56(c) requires that the court grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the court views all facts and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate only "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]" Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
See generally Restatement (Second) of Contracts § 27 (1981). That strong inference is made even stronger in this case by the language with which the memorandum ends, language stating that Dennis and Kaskel intended to “enter into a legally binding agreement” within three weeks and, if they did not, Dennis would have the option to extend the time for doing so or to demand immediate repayment of the $25,000 he had advanced. Such language is wholly inconsistent with the view that either party intended the memorandum itself to be a contract that bound them.
Kaskel sought to characterize this as a loan, while Dennis maintained that Kaskel specifically agreed to pay him a set percentage of any bonuses and stock options that Kaskel obtained from Texas Roadhouse. Dennis brought an action in Superior Court to enforce the contract that he alleged the two parties had forged. After a bench trial, the judge ruled in favor of Dennis and entered a judgment awarding him damages.
The agreement also prohibited Kaskel from engaging in any future business transaction with Texas Roadhouse except through Boston Roadhouse. Nor has the defendant demonstrated any error of law. Although our earlier opinion expressed some concern over whether any terms to which the parties had agreed were sufficiently definite to be enforceable, see 79 Mass.App.Ct.
denied, 513 U.S. 1169 (1995). As we are affirming the judgment on the merits, we deny the motion to dismiss as moot.
While the record certainly reflects ongoing, detailed negotiations, the evidence also establishes definitively that there was no offer that would not have required Maher to move to the Waukesha area. Indeed, this was the key sticking point in the negotiations. See MacHesky v. Milwaukee, 214 Wis. 411, 412, 253 N.W. 169 (Wis. 1934) ("[A]n offer must be so definite in its terms, or require such definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain."). While the parties again agree that Hess still did not offer Maher the position during that meeting, Hess did follow up afterward with Nicole Green, who worked in Texas Roadhouse's legal department, to begin the formal application process for Maher.
John J. Dennis sued Rick Kaskel in Superior Court to recover what he claimed were damages arising out of Kaskel's breach of contract. A judge of that court allowed Dennis's motion for summary judgment on liability, and after a separate hearing on damages, ordered entry of judgment in Dennis's favor. Kaskel appeals, claiming principally that genuine issues of material fact require a trial and that disposition by summary judgment was inappropriate. We agree and therefore reverse. Kaskel highlights a provision in the agreed-to memorandum that contemplated a second more complete agreement.
In 2013 and 2014, plaintiff Jack L. Maher and defendant David A. Hess, an employee of defendant Texas Roadhouse Management Corp., had discussions about Maher coming to work for Texas Roadhouse. Eventually, Maher resigned from his then-employer and began working for Texas Roadhouse, although not in the position he desired. In this lawsuit, plaintiff brings claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., as well as common law breach of contract, promissory estoppel and fraud, alleging that defendants (1) intentionally misled him about the position he would fill, (2) failed to fulfill their promises regarding his opportunity to obtain that position, and (3) denied him that position because of his age. Before the court is defendants' motion seeking summary judgment on all of plaintiff's claims.
Such conclusions are sound and supported by the record. 2.
Boston Roadhouse would make periodic distributions to members in accordance with a complicated formula that stretched across two full pages of the agreement. The agreement also prohibited Kaskel from engaging in any future business transaction with Texas Roadhouse except through Boston Roadhouse. In March, 2002, Dennis tendered to Kaskel a proposed agreement (agreement) ostensibly designed as the "legally binding agreement" contemplated by the memorandum. The agreement, fourteen single-spaced pages in length, called for creation of an entity called Boston Roadhouse, (Boston Roadhouse). Leading off with three pages of definitions, the agreement provided that Kaskel would own 77.5 percent of Boston Roadhouse and Dennis would own the balance.
Bank, 449 Mass. 119, 123, 865 N.E.2d 1091 (2007), quoting from Situation Mgmt. Sys., v. Malouf, , supra. Whether they have done so ordinarily is a question of fact, see David J. Tierney, Jr., v. T. Wellington Carpets, , 8 Mass.App.Ct. 237, 239, 392 N.E.2d 1066 (1979), and so it is here.
On February 2, 2002, about a year later, Dennis wired the second instalment of $25,000 to Kaskel. To fulfil his obligations under the employment agreement, Kaskel deposited both instalments with Texas Roadhouse. EnCom Inc, founded in 2001, has grown rapidly by serving a broad range of industries including telecommunications, medical, electrical and electronic, material handling, automotive and industrial. The company is confident their centralized Evansville location will allow them to both continue their accelerated growth and provide world class polymers with impeccable service.
That evidence takes the form of the proposal for the creation of Boston Roadhouse that Dennis tendered to Kaskel shortly after Dennis tendered the second $25,000 instalment. That proposal, which no reasoning person could view as the simple addition of detail to a structure the memorandum fully embodied, and the two years of negotiations that followed are strong evidence that Dennis himself viewed the memorandum as simply the first step in negotiations ultimately designed to yield a completed contract. Even if they had agreed, though, there is a genuine issue of material fact whether the memorandum was a binding contract, i.e., an expression of their agreement as to all material terms of their agreement or simply an agreement to principles that were to guide further negotiations.
The unresolved factual issues outlined above may mean that, in the end, Dennis and Kaskel never reached sufficient agreement to produce a contract. But whether they did is a question for resolution by a fact finder, not for resolution on summary judgment. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. First of all, there is a genuine issue of material fact whether Dennis and Kaskel ever agreed to the terms of the memorandum. Their deposition testimony differed on that question, and no signed copy of the memorandum ever materialized during the course of discovery.
Viewed in the light most favorable to Kaskel, see, e.g., Augat, v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), it appears that in early 2001, Kaskel was presented with an opportunity to become a “market partner” with Texas Roadhouse Holdings, (Texas Roadhouse), a national restaurant chain. The record does not fully reveal the duties of a market partner, but it appears that those duties centered on opening new Texas Roadhouse restaurants and ensuring that they ran smoothly.
In that regard, the memorandum states that “[i]t is the stated intent to enter into a legally binding agreement that shall be constructed by an attorney(s) on behalf of John Dennis and Rick Kaskel.” To be sure, a statement in an agreement that the parties intend to execute a subsequent agreement does not always mean that the initial agreement is unenforceable. See Goren v. Royal Invs. , 25 Mass.App.Ct. 137, 140, 516 N.E.2d 173 (1987).
That strong inference is made even stronger in this case by the language with which the memorandum ends, language stating that Dennis and Kaskel intended to "enter into a legally binding agreement" within three weeks and, if they did not, Dennis would have the option to extend the time for doing so or to demand immediate repayment of the $25,000 he had advanced. Such language is wholly inconsistent with the view that either party intended the memorandum itself to be a contract that bound them. In March, 2002, Dennis tendered to Kaskel a proposed agreement (agreement) ostensibly designed as the “legally binding agreement” contemplated by the memorandum. The agreement, fourteen single-spaced pages in length, called for creation of an entity called Boston Roadhouse, (Boston Roadhouse). Leading off with three pages of definitions, the agreement provided that Kaskel would own 77.5 percent of Boston Roadhouse and Dennis would own the balance.