Opinion
No. 97 C 2082
June 20, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Glen Bommelman ("Bommelman") filed suit against defendant Transfer Print Foils, Inc., a division of Holopak Technologies, Inc. ("Transfer Print") arising from Bommelman's employment with Transfer Print. In Count I, Bommelman alleges that Transfer Print's Chief Executive Officer Harry Parker ("CEO Parker") made a series of misrepresentations in order to induce him to accept employment with Transfer Print. In Count III, Bommelman alleges that Transfer Print breached an oral employment contract by reducing his salary, suspending his travel budget, and not paying him a commission. Transfer Print has filed a motion for summary judgment on these two remaining counts of Bommelman's complaint. For the following reasons, Transfer Print's motion for summary judgment is GRANTED.
On July 9, 1997, this court dismissed Counts II and IV of Bommelman's complaint.
STATEMENT OF FACTS
The following statement of facts comes from the defendants' Local Rule 56.1(a) statement of material facts and accompanying exhibits and plaintiff's Local General Rule 12(N) statement of material facts and accompanying exhibits. Effective September 1, 1999, the Local Rules were renumbered and now refer to such statements as 56.1(a) and (b) statements.
In April of 1992, Transfer Print, through James Parker ("James Parker"), contacted Bommelman, then a National Accounts Manager for Van Leer Metallized Products, Inc. ("Van Leer'"), to express an interest in hiring Bommelman as their National Account Representative for their new Metallized Diffraction and Holographic Paper division. Bommelman traveled to New Jersey to meet with Transfer Print's representatives at their headquarters in East Brunswick, New Jersey. During the visit, Bommelman met with Transfer Print's CEO Parker. At that time, CEO Parker told Bommelman that Transfer Print could produce metallized paper in the size, quantity, and price range that Bommelman thought would be competitive because Transfer Print was just entering the holographic and metallized paper market CEO Parker showed Bommelman a representative sample of the products Transfer Print could manufacture.
Parker held various management level positions at Transfer Print, including Regional Sales Manager and Vice President of Sales. In 1992, when he contacted Bommelman, James Parker was in charge of hiring at Transfer Print.
At the meeting, CEO Parker also informed Bommelman that Transfer Print would initially price its products below the then market price of 34 cents MSI. CEO Parker stated that they would gradually raise the price to 34 cents MSI. CEO Parker also informed Bommelman that it could produce the volume of orders needed to satisfy Bommelman's customers, which at that time was eight million dollars at 34 cents MSI, and the metallized paper would be processed using the direct method. In addition, CEO Parker stated that Transfer Print had the ability to produce metallized paper in widths up to 60 inches.
Following the meeting, Bommelman accepted a position with Transfer Print and started working for Transfer Print in May of 1992. Bommelman never signed an employment contract, but was an at-will employee of Transfer Print. Initially, Transfer Print paid Bommelman a salary of $6,250.00 per month. In addition, Transfer Print paid Bommelman's travel expenses, including his automobile expenses. Bommelman claims he should have received a commission based on his sales. While Bommelman was never paid a commission during his employment with Transfer Print, he claims he orally requested a commission. In February of 1993, Transfer Print reduced Bommelman's salary to $4,166.00 per month. At that point, Transfer Print also asked Bommelman to submit all reimbursement requests before paying his travel expenses. Bommelman did seek approval for certain travel thereafter and was never denied an travel expense request.
During early 1992 through early 1993, Transfer Print would fill orders for hot stamp foils prior to fillings its orders for metallized paper because hot stamp foils had a higher profit margin than metallized papers. Bommelman was selling orders for the metallized paper at a pace which Transfer Print could not fill because Transfer Print chose to fill the other more profitable product lines. Eventually Transfer Print decided to lease machinery from another company called Unifoil to produce metallized paper and board so Transfer Print could meet its production needs. Transfer Print never manufactured metallized paper using the direct method, but instead used the transfer method, which was more expensive to produce metallized paper.
Defendant Transfer Print merely denies the statement without support to the record. Under Local Rule 56.1(b)(3), "in the case of any disagreement," the opposing party must provide specific reference to the record which supports their denial. Local Rule 56.1(b)(3).
After Bommelman obtained orders of metallized paper, but prior to delivery, Transfer Print would raise the price of the metallized paper substantially higher than what Bommelman quoted the customer. Transfer Print told Bommelman that it had to raise the price because it could not make a profit at the lower price. Thus, Transfer Print told Bommelman to tell the customers to "take it or leave it." One customer did not take the price increase and canceled the order. In April of 1993, Transfer Print purchased Alubec, Inc. ("Alubec"), a manufacturer of diffractional and metallized paper, for approximately nine million dollars. Transfer Print then invested in upgrading Alubec's manufacturing capabilities, including the purchase of a new vacuum metallizer at a cost of nearly two million dollars.
On July 2, 1993, Transfer Print fired Bommelman. Bommelman filed this action on March 26, 1997, claiming, among other things, Transfer Print fraudulently misrepresented Transfer Print's manufacturing capabilities to induce him to resign his previous employment and accept employment at Transfer Print. In addition, Bommelman claims that Transfer Print breached an oral employment agreement by reducing his salary, suspending his travel budget, and failing to pay him a commission.
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1996). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
DISCUSSION
I. Choice of Law Issue
As an initial matter, the parties dispute which state law applies in this case. Transfer Print argues that New Jersey law applies with respect to the fraudulent misrepresentation claim in Count I, but concedes that Illinois applies with respect to the breach of contract claim in Count III. Bommelman contends that Illinois law applies to both counts. In a diversity of citizenship action such as this, the court must apply the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020 (1941). Illinois applies the "most significant relationship" test from the Restatement (Second) of Conflict of Laws in determining the applicable state law.Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 844 (7th Cir, 1999) (citing Illinois law). Generally, the following factors govern which state has the more significant relationship with an issue: (1) the place of the injury; (2) the place where the injury-causing conduct occurred; (3) the parties' domiciles; and (4) the place where the relationship between the parties is centered. Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 503 (7th Cir. 1998). Where as here, Bommelman's action in reliance took place in a state other than that where the misrepresentations were made, the Restatement (Second) of Conflict of Law sets forth six contacts to be taken into consideration when determining the state with the "most significant relationship":
This court does not need to look behind the parties' agreement that the substantive law of Illinois applies to the breach of contract claim in Count III because it is reasonable. Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 849 (7th Cir. 1999). The contract was made and performed in Illinois and the disruption of the contractual relationship between the parties occurred in Illinois as well.
(a) the place, or places, where the plaintiff acted in reliance upon the defendant's representations,
(b) the place where the plaintiff received the representations,
(c) the place where the defendant made the representations,
(d) the domicil, residence, nationality, place of incorporation and place of business of the parties,
(e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and
(f) the place where plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant.
Restatement (Second) of Conflict of Law § 148(2).
In the case at bar, Bommelman was injured in Illinois, his domicile, yet the injury-causing conduct occurred in New Jersey, where Transfer Print's headquarters and principal place of business is located. Bommelman does not dispute that Transfer Print made most of their alleged misrepresentions to him in New Jersey. Bommelman does argue, however, that he relied on these alleged misrepresentations and eventually terminated his previous employment relationship in order to begin working for Transfer Print from his domicile in Illinois. Thus, while Transfer Print made the alleged misrepresentations in New Jersey, Bommelman did not understand the import of those misrepresentations until much later, after he began employment with Transfer Print. It was at that point that Bommelman realized the alleged egregious nature of the representations.
Transfer Print argues that the most significant relationship test presumes that the law of the place whether the defendant allegedly made the misrepresentations governs. A review of relevant law and that which is cited by Transfer Print does not support such a presumption. Rather, the case cited by Transfer Print, National Bank of Boston v. Heuer, 702 F. Supp. 173, 175 (N.D. Ill. 1988), merely places less emphasis on the place of injury because, in other tort cases, the place of injury governs a tort dispute. See Miller v. Long-Airdox Co., 914 F.2d 976, 978 (7th Cir. 1990). Thus, this court will examine each of the factors to determine which state has the most significant relationship.
Furthermore, the parties' relationship, while it does not have a specific center, in that Bommelman worked for Transfer Print out of his domicile in Illinois and thereby communicated with Transfer Print in New Jersey via telephone, Bommelman's work for Transfer Print was nevertheless primarily centered in Illinois. Bommelman worked only out of his Illinois domicile and traveled to other areas of the nation to conduct business on behalf of Transfer Print. There is no evidence in the record before the court that Bommelman regularly traveled to New Jersey to work or meet with Transfer Print's executives. Still, it remains undisputed that Bommelman was to render performance under the terms of his employment out of Illinois where he would maintain an office at his home.
Therefore, based on this record and weighing all the appropriate factors, the court finds that Illinois has the most significant relationship to this issue. Although New Jersey is where Transfer Print is principally located and where CEO Parker made the alleged misrepresentations, Illinois is not only Bommelman's domicile as it was at the time the parties entered into the contract, but Illinois was also where the parties contemplated Bommelman would primarily render performance and, therefore, would act in reliance on CEO Parker's representations. Accordingly, this court will apply Illinois law to both the fraudulent misrepresentation claim in Count I and the breach of contract claim in Count III.
II. Fraudulent Misrepresentation Claim (Count I)
To succeed on a claim for fraud under Illinois law, a plaintiff must prove: (1) a misrepresentation of material fact, (2) known or believed by the speaker to be false, (3) made with the intent to induce action, (4) action in reliance on the misrepresentation, (5) justifiable reliance or the right to rely, and (6) resultant harm to the claimant. Soules v. General Motors Corp., 79 Ill.2d 282, 286, 402 N.E.2d 599 (1980). Illinois law requires a plaintiff to prove each of the elements of fraudulent misrepresentation by clear and convincing evidence. LaScola v. U.S. Sprint Communications, 946 F.2d 559, 567 (7th Cir. 1991) (citingWest v. Western Cas. and Sur. Co., 846 F.2d 387, 393 (7th Cir. 1988)). Generally, the fraudulent statement must relate to a past or present fact. A "statement which is merely an expression of opinion or which relates to future or contingent events, expectations or probabilities . . . ordinarily does not constitute an actionable misrepresentation."Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1298 (7th Cir. 1993) (citations omitted). The exception to this general rule states that where a false promise of future conduct "is the scheme or device to accomplish the fraud" such a promise can be actionable as fraud. Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992) (citations omitted).
Bommelman claims that CEO Parker made a number of misrepresentations of fact during their meeting in New Jersey in April of 1992. Specifically, Bommelman asserts CEO Parker made the following misrepresentations: (1) Transfer Print had in place a manufacturing process that allowed it to manufacture holographic and diffractional paper at a price competitive with the market; (2) Transfer Print had in place a manufacturing process that allowed it to produce sufficient quality of holographic and diffractional paper to compete in market; (3) Transfer Print had in place a manufacturing process that allowed it to manufacture holographic and diffractional paper to satisfy Bommelman's existing customer base; and (4) Transfer Print was committed to the long-term success of holographic and diffractional paper product line. Transfer Print does not specifically dispute that CEO Parker made these statements, but argues that each of these alleged fraudulent statements are vague, immaterial, and do not concern presently existing facts. Transfer Print further argues that these statements were not false. Moreover, Transfer Print claims, even assuming such statements were misrepresentations of fact, Bommelman could not have reasonably relied on these facts because he acknowledges that Transfer Print was just entering the metallized paper market. Each alleged fraudulent statement must be dealt with separately.
A. Competitive Pricing of Parer
Bommelman first argues that Transfer Print fraudulently misrepresented that it had in place a manufacturing process that allowed it to manufacture holographic and diffractional paper at a market competitive price. Transfer Print argues that this statement was not false. Bommelman does not dispute that Transfer Print did in fact initially sell the metallized paper for 34 cents PSI, the competitive market rate. Bommelman, however, asserts that they started raising the prices too quickly. First of all, Bommelman does not dispute CEO Parker stated during their initial conversation that he would definitely meet or beat the 34 cents PSI to get into the marketplace but that the price would go up to match or possibly exceed the competitor's price. In fact, Bommelman acknowledged in his deposition that it was Transfer Print's call to raise the price. Thus, the court falls to see any falsity in CEO Parker's statement about the price of the metallized paper.
Second, Bommelman's assertion that Transfer Print raised the price too quickly refers to a predication of future conduct or happenings which is not actionable under Illinois law. See Continental Bank, 10 F.3d at 1298-99 (citing Illinois law). Bommelman readily acknowledges that it was within Transfer Print's purview to raise the prices. Thus, this statement could not have been a representation of a pre-existent or present fact. Accordingly, without more, this statement is not actionable and summary judgment on this statement is warranted.
B. Quality of Paper
Bommelman also argues that Transfer Print fraudulently misrepresented that it had in place a manufacturing process that allowed it to produce sufficient quality of holographic and diffractional paper to compete in the market. During the meeting between Bommelman and CEO Parker, it is undisputed that Bommelman was shown a representative sample of the product Transfer Print was producing. Bommelman has failed to show or present a shred of evidence that Transfer Print did not ultimately produce the same quality product as he was shown during the initial meeting. Without specific evidence that Transfer Print did not produce the same quality, this alleged misrepresentation is not actionable under Illinois law.
Furthermore, such a statement by CEO Parker was nothing more than puffery about the quality of the product and such statements have consistently been held as not actionable under Illinois law. Spiegel v. Sharp Electronics Corp., 125 Ill. App.3d 897, 902 (1984). Thus, even viewing the evidence in the light most favorable to Bommelman, as this court must do in dealing with a motion for summary judgment, the court finds that this statement is not actionable as a matter of law and summary judgment in favor of Transfer Print is warranted.
C. Quantity of Production of Paper
Next, Bommelman asserts that Transfer Print misrepresented it had in place a manufacturing process that allowed it to manufacture holographic and diffractional paper to satisfy Bommelman's existing customer base. Specifically, Bommelman argues that Transfer Print was unable to meet the demands of Bommelman's customers with respect to quantity and capacity to produce 60 inch widths. Transfer Print argues that the statement regarding the ability to satisfy Bommelman's existing customer needs was merely an opinion of future intent or conduct. Under Illinois law, however, when a party states a matter which might otherwise be considered an opinion, but fails to state it is an expression of an opinion, the other party may reasonably treat it as a fact and rely upon it as such. Buttitta v. Lawrence, 346 Ill. 164, 173, 178 N.E. 390, 393 (1931); Duhl v. Nash Realty, Inc., 102 Ill. App.3d 483, 489, 429 N.E.2d 1267, 1273 (1981).
This statement by CEO Parker regarding Transfer Print's ability to meet Bommelman's customer demands could be considered a statement of present fact under this exception to the general rule if the statement is taken out of context. The undisputed evidence shows, however, that CEO Parker's statement was followed by an explanation of how Transfer Print had a forecast system in place for fulfilling order volumes. Therefore, this court finds that CEO Parker's statement that it could fill Bommelman's specific customer's needs is not actionable because it was an opinion of future conduct. CEO Parker was merely stating his opinion that it could fill the orders if Bommelman complied with the forecast system. Moreover, Bommelman readily acknowledges that Transfer Print was just entering the metallized paper market. Thus, this further shows that the statement was merely an opinion of Transfer Print's potential future conduct, not a statement of an existing present fact.
Finally, Bommelman has failed to raise a genuine issue of material fact that Transfer Print was unable to produce paper in 60 inch widths. Rather, the evidence before the court shows that Transfer Print had leased Unifoil's machinery to produce wide width paper in order to fill the orders Bommelman obtained. In addition, Transfer Print was modifying its machines in order to produce the wide width paper at the time CEO Parker and Bommelman met. Accordingly, the court finds that the statement regarding the quantity of production is not actionable and summary judgment is warranted in favor of Transfer Print.
D. Long-Term Success
Lastly, Bommelman argues that Transfer Print misrepresented that it was committed to the long-term success of holographic and diffractional paper product line. The undisputed evidence in the record shows, however, that Transfer Print was committed to the success of the metallized paper product line and did in fact commit resources to pursue success. In April of 1993, Transfer Print purchased Alubec, Inc., a manufacturer of diffractional and metallized paper and board, for approximately nine million dollars. In addition, Transfer Print purchased a new vacuum metallizer for Alubec at a cost of two million dollars. Bommelman has not presented a shred of evidence which would suggest that Transfer Print was not committed to the success of the metallized paper product line. Moreover, this statement relates to future expectations of Transfer Print. These types of statements are not actionable as fraud. Continental Bank, N.A., 10 F.3d at 1298.
As previously stated, in ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all reasonable inferences must be drawn in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986). However, while the court's function is not to weigh the evidence and determine the truth of the matter, it is clear that no genuine issue of material fact exists regarding the fraudulent misrepresentation claim. Thus, because there no genuine dispute of a material fact, Transfer Print's motion for summary judgment on the fraudulent misrepresentation claim must be granted in its entirety.
E. Reasonable Reliance
Even assuming that Bommelman had presented sufficient evidence of a material misrepresentation of fact, this court finds that Bommelman failed to establish justifiable reliance on the misrepresentations. In determining whether there was justifiable reliance, it is necessary to consider all of the facts within a plaintiff's actual knowledge as well as those which he could have discovered by the exercise of ordinary prudence. Marino v. United Bank of Illinois, N.A., 137 Ill. App.3d 523, 527, 484 N.E.2d 935, 938 (1985) (citing Soules v. General Motors Corp., 79 Ill.2d 282, 286, 402 N.E.2d 599 (1980)). If ample opportunity existed to discover the truth, then reliance is not justified. Central States Joint Board v. Continental Assurance Co., 117 Ill. App.3d 600, 607, 453 N.E.2d 932 (1983). Whether a plaintiff's reliance was reasonable is usually a question of fact and should be properly decided by the trier of fact, but "where it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court." Witherell v. Weimer, 85 Ill.2d 146, 156, 421 N.E.2d 869, 874 (1981), rev'd on other grounds, 118 Ill.2d 321, 515 N.E.2d 68 (1987).
Here, Bommelman's own admissions establish that his reliance was unreasonable as a matter of law. Bommelman admits that he had never heard of Transfer Print before he received a call from James Parker. Bommelman also admits that, after asking a few people in the market prior to his meeting with CEO Parker, he became aware of the fact that Transfer Print was not a "major-player" in the market. In addition, during his meeting with CEO Parker, Bommelman was sufficiently made aware of the fact that Transfer Print was attempting to enter the market, as Bommelman and CEO Parker actively spoke of competitive pricing of the paper in order to enter the market. Moreover, Bommelman does not deny that he did little investigation into Transfer Print, other than to look at the stock price of Transfer Print. Rather, Bommelman admits he relied only on the statements of CEO Parker in deciding to accept employment with Transfer Print. Yet, Bommelman was an experienced salesman in the metallized paper industry who had never heard of Transfer Print and knew at the time he had accepted employment that Transfer Print was just entering the market. Bommelman does not assert that he was unable to inquire further about Transfer Print nor that he was unable to speak with other salesman at Transfer Print regarding its capabilities to compete in the metallized paper market. More importantly, Bommelman accepted employment with Transfer Print without speaking to another employee of Transfer Print. Based on these undisputed facts, this court finds no genuine issue of material fact exists regarding justified reliance. It is rather apparent that this is the only conclusion that could be drawn. Thus, summary judgment in favor of Transfer Print would be warranted on this basis as well.
III. Breach of Contract Claim (Count III)
In Count III, Bommelman alleges that Transfer Print breached an oral employment contract by reducing his salary, by suspending his travel budget, and by failing to pay him a commission based on his sales. Under Illinois law, Bommelman must prove each of the following elements of a breach of contract claim: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of the contract by the defendant; and (4) resulting injury to the plaintiff Gallagher Corp. v. Russ, 721 N.E.2d 605, 611 (Ill.App.Ct. 1999). Transfer Print argues that Bommelman cannot establish a material factual issue to survive the motion for summary judgment because it is undisputed that Bommelman was an at-will employee and Transfer Print was free to change the terms and conditions of Bommelman's employment at anytime, for any reason. Transfer Print further argues that Bommelman's breach of contract claim falls as a matter of law because he continued to work despite the changes in the terms and conditions of employment.
"`The common law doctrine that an employer may discharge an employee-at-will for any reason or for no reason is still the law in Illinois, except for when the discharge violates a clearly mandated public policy.'" Fisher v. Lexington Health Care, 188 Ill.2d 455, 467, 722 N.E.2d 1115, 1121 (1999) (quoting Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 525, 478 N.E.2d 1354 (1985)); see also Kalush v. Deluxe Corp., 171 F.3d 489, 492 (7th Cir. 1999) (citing Illinois law). In this case, Bommelman does not dispute that he was an at-will employee of Transfer Print. Moreover, Bommelman does not present any evidence to establish the existence of a clear and definite promise to employee him for a specific duration. Thus, Transfer Print cannot be held liable for Bommelman's termination. Bommelman, however, claims that Transfer Print breached his oral employment contract when it reduced his salary from $75,000 a year to $50,000 a year, denied him a commission which should have been based on a graduated scale of sales, and suspended his travel budget. Transfer Print does not dispute that Bommelman had an oral employment contract. Rather, Transfer Print argues that Bommelman accepted and gave adequate consideration for Transfer Print's modifications to the oral employment contract. Transfer Print citesSchoppert v. CCTC Int'l Inc., 972 F. Supp. 444 (N.D. Ill. 1997) as support for its proposition that Bommelman accepted the modifications in the contract, the reduced salary, change in entitlement to travel expenses, and failure to receive commission, when he continued employment.
In Schoppert, the court, applying Illinois law, found that an employment agreement that is terminable at will may be unilaterally modified by the employer "as a condition of its continuance." Id. at 477 (citing Doyle v. Holy Cross Hosp., 289 Ill. App.3d 75, 79, 682 N.E.2d 68, 71-72 (Ill.App.Ct. 1997)). In other words, "an employee's continuation constitutes consideration for the employer's offer to modify the employment contract." Doyle, 289 Ill.App.3d at 79, 682 N.E.2d at 71 (citing Ohlemeier v. Community Consolidated School District, 151 Ill. App.3d 710, 717, 502 N.E.2d 1312 (1987)). Thus, the court found in Schoppert that the unilateral change by the employer was valid because employee continued his performance without making restoration of his prior employment terms. Schoppert 972 F. Supp. at 477-78.
Here, the facts remain undisputed that Bommelman continued performing after Transfer Print unilaterally reduced his salary and put additional restrictions on Bommelman's travel reimbursement procedures. It is also undisputed that Bommelman performed under the original contract terms and new modified terms without ever receiving a commission. Thus, under Illinois law, Bommelman's continued performance for over three months under the new terms was sufficient acceptance and consideration. Schoppert, 972 F. Supp. at 477-78. Bommelman claims, however, that he attempted to restore his prior employment contract terms when he raised objection to the new salary with James Parker. Yet, Bommelman only inquired once about the modification in employment terms. In fact, the records shows that Bommelman only complained orally about the reduction in salary and did not inquire further why he had never received a commission. Thus, even viewing all the evidence in a light most favorable to Bommelman, the court finds that Bommelman's continued performance under the new terms was sufficient consideration and acceptance of Transfer Print's modification. Therefore, summary judgment in favor of Transfer Print is warranted on this issue because no breach of a contract existed.
Bommelman alleges in his complaint that Transfer Print suspending his travel budget. The evidence before the court, however, is undisputed that Transfer Print merely put additional restrictions on his travel budget. The evidence further establishes that Transfer Print never denied an expense request submitted by Bommelman after it put the additional restrictions on his travel budget.
As noted, Bommelman never received a commission as an employee of Transfer Print. Thus, the record is unclear whether Bommelman was entitled to a commission under the original at will contract terms. Nevertheless, Transfer Print does not specifically deny that Bommelman was to receive a commission under the original employment agreement. Consequently, the court finds that Bommelman was to receive a commission under the original contract terms.
Bommelman also argues that Transfer Print breached his employment contract by failing to exercise its best efforts to produce metallized paper in sufficient volume and at the specifications that Bommelman's customers demanded. Transfer Print first claims that no such contract existed. Nevertheless, even accepting the fact that such a contract term to his at-will oral employment contract existed, the undisputed evidence in the record shows that Transfer Print was committed to the success of the metallized paper product line and did in fact commit resources to pursue success. In April of 1993, Transfer Print purchased Alubec, Inc., a manufacturer of diffractional and metallized paper and board, for approximately nine million dollars. In addition, Transfer Print purchased a new vacuum metallizer for Alubec at a cost of two million dollars. Bommelman has not presented a shred of evidence which would suggest that Transfer Print was not committed to the success of the metallized paper product line. Accordingly, summary judgment in favor of Transfer Print is warranted on this breach of contract claim.
Bommelman's reliance on statements in CEO Parker's deposition testimony is unavailing. The undisputed evidence before the court shows that Transfer Print did expend considerable money in pursuit of entering and undoubtably succeeding in the metallized paper market.
CONCLUSION
For the above stated reasons, defendant Transfer Print's motion for summary judgment is GRANTED. This case is dismissed in its entirety. All other pending motions are MOOT.