United States Court of Appeals
For the First Circuit
No. 01-1248
WILLIAM A. McCARTHY,
Plaintiff, Appellant,
v.
RICHARD KYLBERG, JR.,
COMMUNICOM COMPANY OF MASSACHUSETTS, LP,
CCA, INC., KYLBERG INVESTMENT COMPANY, LLC,
and MUZTAGH, LLC,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Gertner,* District Judge.
Jeffrey M. Graeber with whom Graeber, Davis & Cantwell, P.C. was
on brief for appellant.
Peter J. Korneffel, Jr. with whom Brownstein, Hyatt & Farber,
P.C., Richard J. McCarthy and Edwards & Angell, LLP were on brief for
appellees.
*Of the District of Massachusetts, sitting by designation.
March 13, 2002
Per Curiam. William McCarthy brought this suit against
Communicom Co. of Massachusetts, CCA (Communicom's general and managing
partner), Richard Kylberg (CCA's president), and others, seeking
payment based on an alleged $1 million oral contract. Because the
district court granted summary judgment for defendants, we credit
McCarthy's version of events and draw reasonable inferences in his
favor and our review is de novo. Lennon v. Rubin, 166 F.3d 6, 8 (1st
Cir. 1999). This is a diversity suit governed by Massachusetts law.
McCarthy was hired by Communicom in February 1995 as an at-
will administrative consultant at a Boston radio station Communicom
owned. He was originally paid an hourly rate of $9.00 but in May 1995
was given an annual salary of $20,000. On October 6, 1996, Kylberg
offered McCarthy the position of station manager. McCarthy accepted it
the next morning; later that day, he accompanied Kylberg to the
airport.
McCarthy claims that while the pair was waiting at an airline
ticket counter, he asked Kylberg whether the station would be sold.
Kylberg responded that Communicom had no present intention of selling
the station, but might if someone were "crazy enough to offer $7
million" for it. According to McCarthy, Kylberg then added:
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"And I'll say to you guys, I have this offer. What do
you think about it? Should we sell the radio station?
Shouldn't we sell the radio station?" And he indicated
that when push comes to shove, when it comes right down
to it, it doesn't matter because he owns the radio
station and he'll make the decision, but he indicated
in quotes, "I don't think you'll have a problem with
this if I go to Bill [McCarthy] and say Bill, here's
your million dollars, Carl [DiMaria, CCA's vice
president of operations] here's your million dollars,
Neil [Gloude, CCA's vice president of finance], here is
your million dollars. Are you going to have a problem
with the fact that I sell the radio station and you get
a million dollars out of it?" And I [McCarthy] said
"No, I certainly won't." He said "Then don't worry
about it."
Kylberg also told McCarthy that they would address his compensation at
a later date.
On December 26, 1996, McCarthy received a written
compensation plan from defendants. The plan supplemented McCarthy's
annual salary of $20,000 with incentive bonuses tied to the station's
advertising sales. Although the parties dispute whether plaintiff ever
formally accepted the plan (he never rejected it), McCarthy never
qualified for any bonus.
A few months later, in early 1997, McCarthy alleges that he
again discussed the $1 million bonus with Kylberg, this time over
dinner at a Legal Seafoods Restaurant. When asked to describe this
conversation at his deposition, McCarthy said that it was "a repeat in
essence, not verbatim" of what was said at the airport. He continued:
It was almost, almost like a record, a stuck record
where he indicated if somebody were crazy enough to pay
him seven million dollars . . . [he] might consider it.
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And he indicated that, again, the Neil Gloude
statement, the Carl DiMaria statement, the Bill
McCarthy statement about a million dollars. You're not
going to have a problem if I hand you a million dollars
and give you a million dollars as a result of the sale.
. . .
[Counsel] . . . Did he tell you . . . "If I sell the
station for over seven million dollars, I promise you
that you will receive one million dollars."
[McCarthy] No. "You'll get a million dollars."
In September 1997 Communicom agreed to sell the station to
One-on-One Sports for $8 million. Kylberg informed McCarthy of the
deal, including the sale price; neither mentioned the $1 million bonus.
When the deal closed in December 1997, a $200,000 bonus was given to
DiMaria and Gloude, and a $5,000 bonus to McCarthy and another
employee. Communicom paid McCarthy an additional $50,000 severance to
secure his services until the end of January 1998; in February 1998,
Communicom also agreed to pay McCarthy to help collect accounts
receivable. On March 22, 1998, McCarthy sent a postcard to Communicom
sending his "greetings" to the company, once again not raising the
issue of the alleged $1 million bonus.
The next month, however, McCarthy sent a letter to Kylberg
at CCA demanding the $1 million bonus. Kylberg refused and McCarthy
brought this suit in the district court, claiming breach of contract.
(Other claims were also made but have now been abandoned.) After
discovery, the court granted summary judgment in favor of defendants.
In rejecting the breach of contract claim, the court reasoned that
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Kylberg's statements did not constitute an offer; that plaintiff had
failed to provide any consideration for the promise; and that plaintiff
never accepted the offer. McCarthy has now appealed.
To create an enforceable contract, the parties must agree on
material terms and manifest a present intention to be bound by the
agreement. Situation Mgmt. Sys., Inc. v. Malouf, Inc., 724 N.E.2d 699,
703 (Mass. 2000); Salem Laundry Co. v. New England Teamsters & Trucking
Indus. Pension Fund, 829 F.2d 278, 280-81 (1st Cir. 1987) (applying
Massachusetts contract law); see generally Farnsworth, Contracts § 3.6
(2d ed. 1990). Summary judgment is appropriate when the evidence about
the parties' intentions gleaned from their words and actions is so
one-sided that no reasonable jury could find a contract. See Bourque
v. FDIC, 42 F.3d 704, 708 (1st Cir. 1994).
McCarthy now concedes Kylberg's first statement is too
indefinite to constitute a promise and instead focuses on the statement
("you'll get" a million dollars) allegedly made at the Legal Seafoods
Restaurant. It is not clear that the "you'll get" statement was a
direct quote, as opposed to McCarthy's characterization of what Kylberg
said. We note that its recitation followed McCarthy's admission that
the two conversations were "like a broken record." Cf. Hernandez-
Loring v. Universidad Metropolitana, 233 F.3d 49, 54 (1st Cir. 2000).
And McCarthy said Kylberg had repeated the statement made at the
airport that "[y]ou're not going to have a problem if I hand you a
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million dollars and give you a million dollars as a result of the
sale."
In any event, the outcome is the same even if the word "get"
was used somewhere in the alleged conversation (Kylberg denies that it
occurred). Taking the whole body of alleged statements together, they
suggest little more than a casual reassurance that McCarthy and others
would gain in the unlikely event of a station sale. There were no
words approximating a formal offer and none whatever of acceptance.
This alone is not conclusive but two other contextual facts reinforce
the inference.
First, no effort was ever made to reduce the alleged promise
to writing. By contrast, other far less extraordinary promises were
reduced to writing; the advertising sales incentive bonus plan, for
instance, was detailed in the December 1996 compensation plan which
made no mention of the $1 million promise. In fact, the company had a
written policy stating that all employment agreements, including
compensation terms, had to be in writing, although McCarthy says the
policy was not strictly followed.
Second, McCarthy failed to raise the issue of a $1 million
bonus when the circumstances obviously called for it, namely, when the
sale occurred in December 1997. Nor did he make a claim later when he
accepted his $5,000 bonus and $50,000 severance payments from
Communicom. His delay in waiting until he left the company hardly
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suggests that he believed from the outset that he had been promised $1
million.
All of these circumstances taken together, including words
used and surrounding events, persuade us--as they persuaded the
district judge--that no reasonable jury could find that the parties
intended to create a contract. If Kylberg made the statements
attributed to him, he may have encouraged hope of a reward; but he did
not create a contractual obligation to provide one. That is the end of
the matter.
Affirmed.
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