John W. Evans v. Evans Cooling Systems, Inc. et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 173)

Preliminary Statement

This action arises out of the severance of ties between the plaintiff, John W. Evans (“Evans”) and the defendant Evans Cooling Systems, Inc. (“ECS”).  Evans filed an eleven-count complaint against ECS and J. Thomas Light (“Light”) stemming from a series of transactions and events spanning almost 30 years.   Count one alleges a breach of contract;  count two alleges unjust enrichment;  count three alleges breach of contract;  count four alleges breach of contract;  count five alleges unjust enrichment;  count six alleges violation of the Connecticut wage statutes by ECS;  count seven alleges violations of the Connecticut wages statutes by Light;  count eight alleges unjust enrichment;  count nine alleges breach of a rental contract;  count ten alleges unjust enrichment and count eleven alleges a breach of the covenant of good faith and fair dealing as to each of the contracts or agreements identified in the previous ten counts.   The defendants filed a motion for summary judgment as to all counts, with the exception of count eight, on various grounds.   The plaintiff opposes summary judgment.   For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

Facts/Allegations

The plaintiff, Evans, invented and patented a number of products, primarily coolants, cooling systems and components used in motor vehicles and other apparatus.   Beginning in 1979, in order to develop, exploit and market these products and technologies, Evans created and served as an officer or principal in various entities to include Mecca Development, Inc. (MDI);  Evans Cooling Associates Limited Partnership (ECA) and Evans Engineering Company (EEC).   In 1979, Evans signed an employment agreement with MDI. The 1979 employment agreement contemplated that Evans would be the Chairman and President of MDI and that his compensation would be a “base salary of $75,000.00 annually, payable over twenty-six (26) equal pay periods ․”

Prior to 1993, Evans had invested his own money into the various entities.   Between 1985 and 1990, Evans advanced monies to MDI as evidenced by promissory notes dated at diverse times between August 1985 and August 1990.   And although the employment contract with MDI called for an annual salary, he did not receive any salary because the company was struggling financially.

National Technologies, Inc. (NTI) is an entity formed, at least in part, by Light, and which provided investment and investors to the entities identified above.

In 1993, all of these entities were combined into the current ECS pursuant to the terms of a Consolidation Agreement dated December 30, 1993.   In connection with the consolidation, Evans executed an “Investment Letter” in which he states:

Furthermore, upon consummation of the conditions of the Consolidation Agreement, and with the exception of an indebtedness owed to me and reflected on the balance sheets of ․ MDI ․ as of the effective date of the Consolidation Transaction, I hereby release, remise and discharge forever any and all claims and/or causes of action that I have, may have, or may have had against ECS ․ MDI, their respective assets, and their respective officers, directors and partners from the beginning of time to the date of this Investment Letter.

In conjunction with the consolidation, Evans entered into an employment agreement with ECS dated September 30, 1993.   The agreement contemplated a salary “at the annual rate of $150,000, payable in substantially equal semi-monthly installments.”

In 1998, ECS and Evans executed a modification to the 1993 employment agreement which increased annual salary to $175,000.00 and otherwise addressed various outstanding obligations of ECS to Evans.   It is in dispute whether the majority of these modifications were implemented as the letter was drafted and executed in contemplation of a certain investor group advancing funds to ECS, an event which apparently never occurred.   The court does not need to resolve this dispute in deciding this motion for summary judgment.   In any event, the 1998 modification did not otherwise alter the terms of the 1993 employment agreement quoted above.

However, because ECS continued to struggle financially, Evans did not receive any salary as contemplated under the 1993 employment agreement nor the 1998 modification.

Also following the consolidation, Evans continued to loan monies to ECS, though these advances or loans were not always evidenced by promissory notes or other documentation.¹

Evans also owned the building in which ECS and the various entities which had been consolidated into ECS in 1993, was located.   Beginning in 1979, Evans, as landlord, entered into a number of lease agreements with some or all of these entities.   The rent for the building from March 1979 through March 1995, as contained in the pertinent lease agreements was $2,000.00 per month.   No rent was paid during this time period.   From March 1995 through February 2003, the lease agreements called for a monthly rental of $2,100.   No rent was paid during this time.   From March 2003 through March 2010, the lease agreement called for monthly rental called for in the lease agreements was $2,500.00 per month.   Partial rental payments for this period were made but others remain unpaid.

Through this lawsuit, Evans now seeks the salary he was never paid, interest thereon, return of the funds advanced to the company, as evidenced or not, by promissory notes and the rent payments he never received.

Standard of Review

A party seeking summary judgment has the very heavy burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law.  PB § 17–49;  Appleton v. Board of Education, 254 Conn. 205 (2000).   Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact.  Id. This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence.  Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997).   A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form.  Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).

Supporting and opposing affidavits must be made on personal knowledge and must set forth such facts as would be admissible in evidence.  PB § 17–46.   Indeed, only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.  Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997).

Litigants have a constitutional right to have issues of fact decided by a jury.  Michaud v. Gurney, 168 Conn. 431, 434 (1975).   Thus, the applicable standard for assessing motions for summary judgment disfavors arguments premised on the plaintiff's alleged lack of evidence.   Indeed, until the moving party comes forward with evidence which would establish that he is entitled to judgment as a matter of law, the non-moving party is under no obligation to produce any evidence.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11 (2008).  “The function of the trial court is to determine whether an issue of fact exists but not to try that issue if it does exist.”   Michaud v. Gurney, supra, 168 Conn. at 433.

“Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806 (1996).   Summary judgment is appropriate on statute of limitation grounds when the material facts concerning the statute of limitations are not in dispute.”  Burns v. Hartford Hospital, 192 Conn 451, 452 (1984).

Count One—Breach of Contract as Against ECS

Count one alleges a breach of the various promissory notes to the plaintiff issued by MDI between 1985 and 1990.   The defendant's argument as to count one is twofold:  (1) that the claim is barred by the applicable statute of limitation, Conn. Gen.Stat. § 42a–3–118(b);  and (2) that ECS, as a matter of law, is not liable on promissory notes issued by MDI. As to the statute of limitations, Evans argues that the debt was acknowledged within the applicable statute of limitations, tolling the statute.   At the very least Evans argues a genuine issue of material fact in this regard.   As to the question of MDI's liabilities, Evans argues that a question of fact exists as to the scope of the release contained in the Investment Letter on which ECS relies.

These notes are each payable on demand as defined under § 42a–3–108.   ECS asserts that this count is barred by the applicable ten (10) year limitations period contained in Section § 42a–3–118(b) which provides:  “Except as provided in subsection (d) or (e), if demand for payment is made to the maker of a note payable on demand, an action to enforce the obligation of a party to pay the note must be commenced within six years after the demand.   If no demand for payment is made to the maker, an action to enforce the note is barred if neither principal nor interest on the note has been paid for a continuous period of ten years.”

There is no claim that this breach of contract claim for failure to pay these notes was brought within the limitations period set forth therein.   Evans claims, however, that the debt on these notes was acknowledged by ECS within ten years from the filing of this lawsuit.   He offers, by way of evidence, ECS documents which purport to document outstanding debts to Evans, which, he argues, include these promissory notes.   ECS responds that the so-called acknowledgements are not specific enough to constitute acknowledgment under the law.

The Statute of Limitations creates a defense to an action.   It does not erase the debt.   Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account ․ Whether partial payment constitutes unequivocal acknowledgment of the whole debt from which an unconditional promise to pay can be implied thereby tolling the statute of limitations is a question for the trier of fact ․

A general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute.   The governing principle is this:  The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute ․ But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the Statute of Limitations ․ [A] general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor's presence and he did not contradict the assertion ․

Zatakia v. Ecoair Corp., 128 Conn.App. 362, 369–70 (2011).   This is a fact intensive inquiry.   See e.g. Alarmax Distributors, Inc. v. New Canaan Alarm Co., Inc., 141 Conn.App. 319 (2013) (court examined a series of events and transactions over time and determined that debtor had acknowledged the debt for purposes of tolling the statute of limitations).

As indicated, Evans offers a series of documents, some of which are dated after January 31, 2002,² in which loans and indebtedness to Evans are referenced.   Whether the documents relate to these specific promissory notes or whether they are adequate to establish an acknowledgement of these debts, is not for the court to decide on a motion for summary judgment.   Evans is not required to establish his plea in avoidance of the statute of limitations.   He is only required to point to sufficient evidence that raises a question of material fact to be tried.   Here, there is a genuine issue of material fact as to whether the statute of limitations was tolled.

ECS also argues that when Evans signed the Investment Letter in connection with the execution of the Consolidation Agreement, he released any claim for these promissory notes because they were not listed on MDI's balance sheets.   Whether these notes were released under the terms of the “Investment Letter” is the subject of disputed testimony and/or documentation.   A genuine issue of material fact exists as to this special defense.

The motion for summary judgment as to count one is denied.

Count Two—Unjust Enrichment as to ECS

Count two alleges unjust enrichment as a result of various loans made by Evans to both ECS and its predecessor companies beginning in 1981 and continuing through 2008.   As to count two, the defendants seek partial summary judgment.   For any loans allegedly made prior to 2006, the defendant asserts such claims are barred by the applicable statute of limitations.   For loans made in excess of $50,000.00 the defendant asserts that such transactions violate the statute of frauds and cannot therefore be enforced.   For loans advanced to any predecessor company to ECS, ECS argues that there is no issue of material fact that such obligations were not assumed by ECS. Again, Evans argues that the statute was tolled by ECS' acknowledgement of the debts and at the very least, a question of fact as to this claim exists;  that the statute of frauds is not a defense to an unjust enrichment claim;  and that there is an issue of material fact as to whether these liability for these loans was assumed by ECS. As to the first and third of these issues, for the same reasons set forth as to count one, a genuine issue of material facts exists.

With respect to the statute of frauds defense, CGS § 52–550 provides in pertinent part:  “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party or the agent of the party to be charged:  ․ (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.”   Two of the loans encompassed within count two exceeded $50,000.00.

“Claims of unjust enrichment and quantum meruit are forms of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties.”  Burns v. Koellmer, 11 Conn.App. 375, 385, 527 A.2d 1210 (1987).   These claims are non-contractual claims, and they do not fall within the application of the statute of frauds.   The statute of frauds only applies to counts of a civil action in which a party seeks to enforce the terms of a contract.  Willow Funding Co., L.P. v. Grencom Associates, 63 Conn.App. 832, 847–48, 779 A.2d 174 (2001).

Jay v. A & A Ventures, LLC, 2008 WL 726357, 4 (Conn.Super., 2008).   See also, Doran Const.   Co., Inc. v. Finkelstein, 2003 WL 22204998, 5 (Conn.Super., 2003) (defendants' argument that the plaintiff's claim was barred by the statute of frauds failed where plaintiff's unjust enrichment claim did not seek to enforce any oral agreement that would run afoul of the statute of frauds);  Gianetti v. Gerardi, 2002 WL 377523, 2 (Conn.Super., 2002) [31 Conn. L. Rptr. 409] (unjust enrichment claim not barred by the statute of frauds.)

Count two does not seek to enforce an oral agreement, but rather claims that the defendant has been unjustly enriched by the receipt and retention of the monies advanced.   The statute of frauds is not a defense to these claims.

The motion for summary judgment as to count two is denied.

Count Three—Breach of Contract as to ECS

Count three alleges a breach of contract for failure to pay a promissory note in the amount of $194,496.00 which was dated June 30, 1996.   This note is payable on demand as defined under § 42a–3–108.   ECS avers that the claim is barred by the 10–year statute of limitations.   Again, Evans responds that there is a genuine issue of material fact as to whether ECS made partial payment on this note and acknowledged this debt within the applicable statute of limitations, thereby tolling the statute.   The documents and testimony submitted raise a genuine issue of material fact as to whether the statute was tolled through partial payment and/or acknowledgment of the debt.

The motion for summary judgment as to count three is denied.

Counts Four and Six—Breach of Employment Contract and Statutory Wage Claims

Count four alleges a breach of Evan's employment agreements for failure to pay his compensation earned over the course of almost 30 years.   Count six alleges violations of the Connecticut wage statutes, Conn. Gen.Stat. § 31–71c and § 31–71e for failure to pay these sums as well.   ECS seeks summary judgment as to these counts on several bases:  (1) both the contractual and statutory wage claims are barred by the applicable two-year statute of limitations, Conn. Gen.Stat. § 52–596;  (2) ECS did not assume liability for wages allegedly owed to Evans by MDI;  (3) the plaintiff's claim for interest on the wages owed is unsupported by any evidence;  (4) as to amounts claimed for wages earned in 2009 and 2010, there is no issue of material fact that the plaintiff was paid all wages to which he was entitled.

Evans contends that there were oral agreements, subsequent to the signing of the employment agreements, which modified the agreements to provide that any salary not paid would be deferred and paid at an unspecified date in the future, with interest.   As a result, his first argument is that Section 52–596 has no application because he does not seek payment of wages to be made on a “periodic basis.”   See, Duplissie v. Devino, 960 Conn.App. 673 (2006).   He further argues that the statute of limitations for the wage claim on this deferred compensation did not begin to run until a demand for payment was made, and that this suit was commenced shortly after his demand was made and refused and thus, is timely.   Alternatively, he argues that if the court does not find that the statute runs from the time of demand, whichever statute is ultimately applied, was tolled by the defendant's acknowledgement of this debt.³

Whether a modification of the employment contracts occurred is a factual inquiry for the trier.  Lavelle v. Ecoair Corporation, 74 Conn.App. 710 (2003).

For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense ․ Modification of a contract may be inferred from the attendant circumstances and conduct of the parties ․

Whether the parties to a contract intended to modify the contract is a question of fact ․ The resolution of conflicting factual claims falls within the province of the trial court ․ (Citations omitted;  internal quotation marks omitted.)  Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 761–62, 674 A.2d 1313 (1996).

Id. at 716–17.   In Lavelle, it was only after reviewing all of the conduct of the parties and the attendant circumstances of the claimed modification, that the court, as the trier of fact, was able to determine that the claimed modification had not occurred.⁴  Whether and to what extent the modification and agreement to defer compensation is proven will determine the applicable statute of limitations.   Insofar as the question of the modification is a material issue of fact, summary judgment is inappropriate.⁵

The motion for summary judgment as to counts four and six is denied.

Count Five—Unjust Enrichment

Count five alleges unjust enrichment as a result of the unpaid wages from 1979 through 2008.   The defendant seeks summary judgment as to any claims arising out of the alleged failure to pay wages between 1979 and 2008, on two grounds:  (1) the unjust enrichment claim is precluded, as a matter of law, by the existence of written contracts;  and (2) the claim is barred by the applicable statute of limitations.

A claim for unjust enrichment is not available in the situation where there is an enforceable express contract between the parties.  Rosick v. Equipment Maintenance & Service, Inc., 33 Conn.App. 25, 37 (1993).   See also, Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517 (1999) (employee could not recover in unjust enrichment against his employer for its failure to pay him incentive compensation when there existed an express, enforceable employment contract that set the terms of the employee's salary but did not provide for such compensation, and the employee did not claim that he had performed services not contemplated by that contract);  H.B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 347 (1982) (“parties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied contract obligations”);  Lightfoot v. Union Carbide Corp., 110 F.3d 898, 905–06 (2d Cir.1997) (employer's enrichment by retention of profits realized from former employee's inventions was not unjust because employment contract provided for assignation of employee's inventions to employer).

However, while “lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment,” Paulsen v. Kronberg, 66 Conn.App. 876, 878 (2001), the existence of a contract, in itself, does not preclude equitable relief which is not inconsistent with the contract.  Rent–A–PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 605–06 (2006).

‘[W]hen an express contract does not fully address a subject, a court of equity may impose a remedy to further the ends of justice.’  Klein v. Arkoma Production Co., 73 F.3d 779, 786 (8th Cir.), cert, denied sub nom.  Jones v. Klein, 519 U.S. 815, 117 S.Ct. 65, 136 L.Ed.2d 27 (1996);  ․ Porter v. Hu, 116 Hawaii 42, 54, 169 P.3d 994 (Ct.App.2007) (‘[w]hile it is stated that an action for unjust enrichment cannot lie in the face of an express contract, a contract does not preclude restitution if it does not address the specific benefit at issue’), cert. denied, 117 Hawaii 321, 179 P.3d 263 (2008);  66 Am.Jur.2d 622, supra, at § 25 (‘[a]lthough there can be no implied contract on a point fully covered by an express contract and in direct conflict therewith, there may be an implied contract on a point not covered by an express contract’);  1 G. Palmer, Restitution (1978) § 1.2, p. 8 (‘[s]ome of quasicontract's most important work is done in cases in which there was an express contract between the parties').

Town of New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 454–55 (2009).

Here, the basis for the unjust enrichment claim is the non-payment of salary under the terms of the plaintiff's employment contracts.   The contracts at issue, whether found to have been modified or not, fully cover the issue of the plaintiff's compensation.   In this court's view, the Supreme Court's holding in Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 517 (1999) is controlling and precludes the claims made in count five.   The motion for summary judgment as to count five is granted.

Count Seven—Violation of the Wage Statutes as to Light Individually

Count seven asserts a statutory wage claim against Light individually.   Light argues that the claim is barred by the applicable statute of limitations and is substantively without merit to the extent it seeks to hold him personally liable under the wage statutes.   Evans responds that there is a genuine issue of material fact as to whether Light acknowledged the debt in such a manner as to toll the applicable statute and further, that a genuine issue of fact exists as to Light's role in the failure to pay the wages.   As with counts four and six, Evans's claim is premised upon an oral modification of the contracts to provide for deferred compensation.   The outcome of this issue will dictate the applicable statute of limitations.   The determination of the applicable statute of limitations will inform the issue of acknowledgment.   Only upon resolution of these issues, which the court has determined above to involve genuine issues of material fact, might the trier reach the question of Light's personal liability under Butler v. Hartford Technical Institute, Inc., 243 Conn. 454 (1997).   Indeed, depending on the outcome of these issues, the trier might never reach the question of Light's personal liability.   As such, summary judgment is not appropriate.

Count Nine—Breach of Contract (the Lease Agreements)

Count nine alleges a breach of the Lease Agreements for failure to pay rent for the years 1979 through 2010.   It also seeks damages for moneys advanced for alterations and improvements to the property.   It is unclear whether these advances were made by Evans as landlord, to his tenant, ECS or whether these advances were made by Evans much the same way other monies were allegedly provided to ECS. ECS seeks partial summary judgment for any alleged failure to pay rent which occurred prior to February 3, 2006, as such claims are barred by the applicable statute of limitations, Conn. Gen.Stat. § 52–576.   As with the other alleged debts of ECS owed to Evans, he claims that the statute was tolled.   In his memorandum in opposition to the motion for summary judgment Evans avers:  “When the Company made partial payments on account of its outstanding rent from 1995–2000, the statute of limitations was tolled for all rent due under the written lease agreements acknowledged by the Company.”   This statement is unaccompanied by any authority, analysis or citation to evidence.

Of the myriad of records, minutes, checks, spreadsheets submitted by the parties, the court has located nothing that mentions, in any fashion, back rent owed for the period 1979 through January 31, 2006.   While Evans' claim of acknowledgement with respect to promissory notes, loans and wages was put in issue, his claim of acknowledgment as to the rent for the period 1979 through January 31, 2006 was not.   The court does not grant summary judgment as to count nine as portions of the breach of contract claim remain viable.   Evans' damages claim will, however, be limited to damages incurred after January 31, 2006.

Count Ten—Unjust Enrichment for Nonpayment of Rent

Evans withdrew count ten in its memoranda in opposition to the motion for summary judgment.

Count Eleven—Breach of the Covenant of Good Faith and Fair Dealing

Count eleven incorporates essentially all of the allegations of the previous ten counts and then alleges a violation of the breach of the covenant of good faith and fair dealing with respect to the various contracts and agreements referenced therein.   ECS seeks summary judgment as to this count on the grounds that there is no evidence of bad faith on the part of ECS. Evans responds that there are many issues of material fact as to whether ECS acted in bad faith.   This court agrees.   The motion for summary judgment as to count eleven is denied.

Kari A. Dooley, Judge

FOOTNOTES

FN1. During this time, ECS was also embroiled in litigation with General Motors.   The litigation was costly, further straining the corporate finances.   Evans alleges that he advanced almost $200,000 to ECS to help fund this litigation.   Non-payment of the promissory note evidencing this debt is the basis of count three..  FN1. During this time, ECS was also embroiled in litigation with General Motors.   The litigation was costly, further straining the corporate finances.   Evans alleges that he advanced almost $200,000 to ECS to help fund this litigation.   Non-payment of the promissory note evidencing this debt is the basis of count three.

FN2. The lawsuit was commenced by service of the writ summons and complaint on or January 31, 2012.   In Connecticut, an action is “commenced” for purposes of the statute of limitations when service upon the defendant is made.  Rocco v. Garrison, 268 Conn. 541, 553 (2004)..  FN2. The lawsuit was commenced by service of the writ summons and complaint on or January 31, 2012.   In Connecticut, an action is “commenced” for purposes of the statute of limitations when service upon the defendant is made.  Rocco v. Garrison, 268 Conn. 541, 553 (2004).

FN3. The defendant argues the application of the two-year statue under Section 52–596.   The plaintiff, arguing in the alternative, claims that the 6–year statute of limitations under Section 52–576 applies to his claim for deferred compensation..  FN3. The defendant argues the application of the two-year statue under Section 52–596.   The plaintiff, arguing in the alternative, claims that the 6–year statute of limitations under Section 52–576 applies to his claim for deferred compensation.

FN4. The facts of the Lavelle case are similar to those presented here.   In Lavelle, the plaintiff sued his former employer for wrongful termination in breach of his employment contract.   The plaintiff had a written employment agreement from 1993 which included a provision by which, on an annual basis, and upon notice, either party could terminate the employment relationship.   The agreement did not have any provision for termination without cause and did not provide for severance pay.   In 1995, in connection with a request that the plaintiff resign from the Board of the defendant, a new employment agreement was drafted by plaintiff's counsel, circulated and thereafter negotiated.   On February 17, 1995, the defendant sent a letter in which the defendant agreed to modify the employment agreement to provide for severance pay in the event of termination without cause.   In 2000, the defendant exercised the annual nonrenewal option, terminating the employment agreement.   The plaintiff sued for wrongful termination in breach of the 1995 employment agreement.   At trial, no executed copy of the draft 1995 employment agreement was introduced though the plaintiff testified that the agreement had been executed.   The defendant denied ever entering into the proposed 1995 employment agreement.   The trial court found that the only modification to the 1993 employment agreement was the February 17, 1995 letter.   It rejected the claims that the 1995 agreement had been executed as not credible and denied the claims brought under the 1995 employment agreement.   It did so after reviewing all of the interactions between the parties to determine whether, for example, the parties were acting in conformity with the 1995 draft agreement, as well as for other indicia that the agreement had been entered into by the defendant..  FN4. The facts of the Lavelle case are similar to those presented here.   In Lavelle, the plaintiff sued his former employer for wrongful termination in breach of his employment contract.   The plaintiff had a written employment agreement from 1993 which included a provision by which, on an annual basis, and upon notice, either party could terminate the employment relationship.   The agreement did not have any provision for termination without cause and did not provide for severance pay.   In 1995, in connection with a request that the plaintiff resign from the Board of the defendant, a new employment agreement was drafted by plaintiff's counsel, circulated and thereafter negotiated.   On February 17, 1995, the defendant sent a letter in which the defendant agreed to modify the employment agreement to provide for severance pay in the event of termination without cause.   In 2000, the defendant exercised the annual nonrenewal option, terminating the employment agreement.   The plaintiff sued for wrongful termination in breach of the 1995 employment agreement.   At trial, no executed copy of the draft 1995 employment agreement was introduced though the plaintiff testified that the agreement had been executed.   The defendant denied ever entering into the proposed 1995 employment agreement.   The trial court found that the only modification to the 1993 employment agreement was the February 17, 1995 letter.   It rejected the claims that the 1995 agreement had been executed as not credible and denied the claims brought under the 1995 employment agreement.   It did so after reviewing all of the interactions between the parties to determine whether, for example, the parties were acting in conformity with the 1995 draft agreement, as well as for other indicia that the agreement had been entered into by the defendant.

FN5. If the jury rejects the claim that the employment agreements were modified to permit a deferral of compensation, by their express terms, they contemplate payment on a “periodic basis” and Section 52–596 would apply.   See, Duplissie v. Devino, supra..  FN5. If the jury rejects the claim that the employment agreements were modified to permit a deferral of compensation, by their express terms, they contemplate payment on a “periodic basis” and Section 52–596 would apply.   See, Duplissie v. Devino, supra.

Dooley, Kari A., J.