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03/10/95 JULIUS WRIGHT v. DOTHAN CHRYSLER PLYMOUTH

March 10, 1995

JULIUS WRIGHT
v.
DOTHAN CHRYSLER PLYMOUTH DODGE, INC., AND DINO VELASQUEZ



Appeal from Houston Circuit Court. (CV-92-748). Michael Crespi, TRIAL JUDGE.

The Name of this Case has been Corrected by the Court July 21, 1995. Released for Publication June 30, 1995.

Cook, Hornsby, C. J., and Maddox, Shores, and Kennedy, JJ., concur.

The opinion of the court was delivered by: Cook

COOK, JUSTICE.

Julius Wright filed a three-count complaint against both Dothan Chrysler Plymouth Dodge ("Dothan Chrysler") and Dino Velasquez, an employee of Dothan Chrysler. He alleges that he had had a permanent employment contract with Dothan Chrysler; that the defendants had breached that contract (Count 1);that they had wrongfully discharged him (Count 2); and that they had wrongfully interfered with his employment contract (Count 3). The trial court dismissed the complaint in its entirety as to Velasquez, and it dismissed counts 2 and 3 as to Dothan Chrysler leaving only Count 1 (the breach of contract claim) against Dothan Chrysler. The trial court later granted Dothan Chrysler's motion for a summary judgment as to count I. Wright appeals from the Disposition of his claims.

The first issue is whether the summary judgment was proper on Wright's claim alleging that Dothan Chrysler breached a contract for permanent employment. Rule 56, A. R. Civ. P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: l) that there is no genuine issue of material fact and 2) that the moving party is entitled to a judgment as a matter of law. "In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant." McAfee v. Baptist Medical Center, 641 So. 2d 265 (Ala. 1994). Given this standard, we find that the record suggests the following facts:

While Wright was employed at another automobile dealership as an assistant manager of its body shop, Velasquez approached him about managing the body shop at Dothan Chrysler. According to Wright, Velasquez agreed to employ him as manager of the Dothan Chrysler body shop "as long as everything was smooth" and as long as he did "no wrong." Wright signed an application for employment that contained the following provision:

"I understand and agree that, if hired, my employment is for no definite period and may, regardless of the date of payment of my wages and salary, be terminated at any time without prior notice."

However, it appears that Wright was told that the application was just a formality and that it was not even filled out until Wright had already been hired. After Wright had managed the body shop at Dothan Chrysler for approximately 13 months he began having problems with Velasquez and his employment was terminated. Wright contended that he had a contract with Dothan Chrysler that entitled him to permanent employment. This Court held as early 1939 that although "an indefinite hiring is presumed to be at the will of either party," Alabama Mills, Inc. v. Smith, 237 Ala. 296, 299, 186 So. 699, 702 (1939), "under some circumstances, ... 'permanent' employment will be held to contemplate a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily." Alabama Mills, 237 Ala. at 299, 1868 at 702 (quoting 18 ). In Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725 (Ala. 1987), this Court set out three elements that must be shown in order to establish that an employment contract is not terminable at will:

"(1) that there was a clear and unequivocal offer of life time employment or employment of definite duration, Bates v. Jim Water Resources, Inc., 418 So. 2d 903 (Ala. 1982); (2) that the hiring agent had authority to bind the principal to a permanent employment contract, Alabama Mills, Inc. [sic] v. Smith, 237 Ala. 296, 186 So. 699 (1939); and (3) that the employee provided substantial consideration for the contract separate from the services to be rendered, United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 201 So. 2d 853 (1967)."

512 So. 2d at 728.

According to Wright's own deposition testimony, the employment was to last "as long as everything was smooth" and "there was no problem." By the plaintiff's own evidence, it appears that there was no "clear and unequivocal offer of lifetime employment." Therefore, there was no genuine issue of material fact and Dothan Chrysler was entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. The summary judgment on the contract claim was proper.

Wright also argues that the trial court improperly dismissed his claim alleging that Dothan Chrysler had interfered with his employment contract (he says it interfered by requesting him to commit an illegal act) and that the court improperly dismissed his claim alleging wrongful discharge and/or bad faith termination (he claims Dothan Chrysler fired him because he failed to commit the alleged illegal act).

The standard of review applicable to motions to dismiss is set forth in Ex parte City of Birmingham, 624 So. 2d 1018, 1020 (Ala. 1993) (quoting Seals v. City of ...


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