Opinion
No. 99-0428A
DATED: December 22, 2000
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT INTRODUCTION
Plaintiff Kathryn A. Cluff filed the present action against defendants Laureen O'Halloran, LKO Enterprises, Inc., Michael Barry and Overnight Advantage, Inc. alleging breach of contract, defamation, interference with contractual relations and violation of Chapter 93A arising out of Cluff's work as a sales representative for the Unishippers franchise. This matter is before the court on the defendants' motion for summary judgment pursuant to Mass.R.Civ.P. 56. For the reasons discussed below, defendant Laureen O'Halloran and LKO Enterprises, Inc.'s motion for summary judgment as to Counts II and III is ALLOWED. Further, defendant Michael Barry and Overnight Advantage, Inc's motion for summary judgment is ALLOWED with respect to Counts II and III of the complaint only.
BACKGROUND
The undisputed facts as revealed by the summary judgment record are as follows. Defendant Laureen K. O'Halloran (O'Halloran) is the president and sole shareholder of defendant LKO Enterprises, Inc. (LKO), which owns the Plymouth County franchise of Unishippers Association. As a Unishippers franchisee, LKO resells overnight, priority and freight services to small to medium size companies. On February 5, 1997, O'Halloran met with the plaintiff Kathryn Cluff (Cluff) about the possibility of Cluff becoming a sales representative for LKO. O'Halloran explained the Unishippers franchise and the duties of a sales representative, and gave Cluff a compensation proposal. Cluff began working as a sales representative for LKO in February of 1997. In May or June of 1997, O'Halloran asked Cluff to sign a standard "Non-Competition, Non-Disclosure Agreement" which Unishippers required all sales representatives to sign, but Cluff refused, stating that it was too far-reaching and one-sided.
On September 26, 1997, Cluff and O'Halloran executed a Sales Representative Agreement. Pursuant to the Agreement, the time and manner in which Cluff performed her duties as a sales representative were in her discretion, subject to and consistent with the business practices contained in the Franchise Operations Manual. The Agreement stated that it would continue until February 28, 1999 unless terminated by either party upon thirty days written notice, with LKO's determination to terminate based on failure to meet the performance standards set forth in the contract. The Agreement provided that Cluff "shall have a minimum performance standard which consists of an increase in shipment count by seventy five (75) shipments per month (four week billing period)." It further provided that Cluff would receive $250 per week, a commission of 30% of the shipment margin invoiced for enumerated carriers, and certain performance based bonuses. In addition, LKO agreed to pay $100 per month toward Cluff's health insurance as long as she met the monthly shipment minimums. The Agreement stated that all customer lists, rate schedules, franchise carriers, cost rate schedules and sales manuals were confidential and proprietary and shall not be disclosed to any party not covered under the agreement.
Cluff used a business card stating, "Kathryn Cluff, Freight Consultant" and bearing the Unishippers Association logo. She conducted correspondence on stationery imprinted with the Unishippers logo and the address 100 Ledgewood Place, Suite 301 Rockland, Massachusetts, which is LKO's business address. In December of 1997, O'Halloran told Cluff that she was unhappy with Cluff's performance because she had failed to meet the monthly minimum standards in the parties' Agreement. Cluff felt that there were extenuating circumstances in the business cycle and the fact that she did not have any prior knowledge about the freight industry. O'Halloran told her to keep working on it.
By letter dated January 2, 1998, O'Halloran notified Cluff that LKO was terminating the September 26, 1997 Sales Representative Agreement due to Cluff's failure to meet the performance standards contained therein. However, Cluff and O'Halloran met and O'Halloran agreed to give Cluff a second chance. On April 30, 1998, Cluff and O'Halloran entered into another Sales Representative Agreement (the 1998 Agreement). The 1998 Agreement had a termination date of February 28, 1999 unless terminated by either party upon thirty days' written notice. The 1998 Agreement was identical in all respects to the parties' 1997 Sales Representative Agreement except for the provision relating to commissions. Like the earlier agreement, the 1998 Agreement established a minimum performance standard of a 75 shipment per month increase. However, the 1998 Agreement provided that Cluff would receive $250 per week, but that if she did not meet the monthly minimum performance standard, $100 would be deducted for every ten shipment increase not met out of the seventy-five. Shortly after the parties signed the 1998 Agreement, O'Halloran again asked Cluff to sign a non-competition agreement. Cluff refused to do so.
On May 11, 1998, Cluff met with Ralph Tedeschi of Tedeschi Stores (Tedeschi) and proposed marketing flight ready pre-paid shipping envelopes through Tedeschi's 126 stores. Tedeschi agreed to begin by putting drop boxes in front of four stores. Unishippers agreed to send a direct mail piece supporting the pilot program and to set up retail displays showing the flight ready envelopes.
In June of 1998, Cluff made contact with David Parsons (Parsons), the chief financial officer of Bostek Computer Corp., Inc. (Bostek). Bostek was moving toward providing its product over the Internet and utilized UPS, FedEx and Airborne Express for its shipping needs. O'Halloran and Cluff met with Parsons to formulate a solution to a shipping and invoicing problem Bostek was having, with which UPS and FedEx had been unwilling to provide personnel to assist. For the next month, Cluff spent 3 to 5 hours per day at the Bostek premises, integrating a tracking numbers system into a reporting system for Airborne Express services. Cluff learned the company's shipping and product codes, worked with accounting personnel to ensure that billing and shipments were properly coordinated, and worked with inventory control to ship back orders. Around June 24, 1998, O'Halloran left Cluff a message on her answering machine that if she wanted to get paid, she needed to sign the non-competition agreement. Although O'Halloran continued to pay her, Cluff never signed the agreement.
On July 10, 1998, it was announced on Bostek's loud speaker that O'Halloran was on the phone for Parsons. Cluff heard part of the conversation on speakerphone. O'Halloran told Parsons that she was the president of Unishippers, that Cluff was her employee and that she wanted to remove Cluff from Bostek's premises because Cluff was a sales representative, not an administrator, and her resources could be better used elsewhere. O'Halloran stated that she wanted Cluff back on the road Monday, but would be happy to replace Cluff with someone else. Parsons then picked up the phone, and Cluff could not hear the remainder of the conversation. O'Halloran told Parsons that Cluff hadn't followed policy, that there were issues with the billing that had been conducted, that she was unhappy with Cluff, and that he would be happier with the new individual coming on board. Parsons told O'Halloran that a replacement would be fine as long as the replacement was qualified and there was no interruption in integrating the system. Following this conversation, Parsons told Cluff that he was disturbed by O'Halloran's actions and suggested that Cluff go out and find another freight consultant. Cluff told Parsons that she was leaving Unishippers but wanted to stay in the shipping business. Parsons stated that he would remain loyal to Cluff and send business her way. He also stated that if Cluff could find a shipper for Bostek's New Jersey warehouse, he would give Cluff that business as well.
Several days later, O'Halloran brought a new individual to Bostek to assist in the integration; however, that person, having no knowledge of Bostek's underlying systems, was not effective in continuing the level of service provided by Cluff. Parsons never told O'Halloran that in order for Bostek to continue utilizing Unishippers, Cluff would have to remain on the job. Bostek hired consultant Boston Systems and Solutions to move forward with an entirely new integration process, one which worked with many different shippers. Bostek would not have gained any substantial savings by using Unishippers, but it appreciated the quality service provided by Cluff. After O'Halloran pulled Cluff from Bostek's facility, Bostek returned to using UPS and FedEx for its shipping needs.
In mid-July, O'Halloran told Cluff that she wanted to fire her because she was upset over the situation with Bostek, because Cluff refused to sign a non-competition agreement, and because her minimums were off. Cluff told O'Halloran to put it in writing. On July 10, 1998, Cluff used the computer at LKO's office to print out her margin reports. By letter dated July 16, 1998, O'Halloran notified Cluff that she was terminating the April 30, 1998 Agreement based on Cluff's failure to meet the performance standards contained therein. LKO employed the defendant Michael Barry (Barry) as a subcontractor and consultant. Barry does business under the name Overnight Advantage, Inc. At the end of July, O'Halloran sent Barry to a meeting with Cluff to settle any amounts owed to her for commissions. Prior to the meeting, O'Halloran provided Barry with margin reports showing the commissions due. Barry told Cluff that he was taking over the administrative and operational aspects of O'Halloran's business and that she would have to deal with him. At the meeting, Barry presented the margin reports to Cluff, but Cluff believed that more commissions were owed to her than were shown on the reports provided by Barry.
Around the end of August or early September of 1998, O'Halloran introduced another of her sales representatives, Patricia McCarty, to Parsons. However, Bostek never did much further business with Unishippers after that date. Bostek placed a couple of shipments with Unishippers in 1999, which O'Halloran wrote off as bad debt because Bostek never paid for them.
In August of 1998, Cluff went to work as a sales representative for Freight Savers, another reseller of Airborne Express services. She had an oral agreement with Freight Savers' Brian Doyle (Doyle) under which she received a higher percentage of the margin than she had with Unishippers. In her new capacity as a sales representative for Freight Savers, Cluff called Parsons, proposing to provide Airborne Express freight services to Bostek. Parsons introduced her to Bostek's warehouse manager, Donald Mayer. However, Bostek was pleased with FedEx's services at that time and did not contract with Cluff. In October of 1998, Eastern Atlantic Mortgage Co., McGee Toyota, Capital Lease Group, Eastern Yacht Sales, Inc., Pilgrim Mortgage Co., On a Roll Sales, and Performance Textiles. Inc. wrote to Airborne Express, noting that Cluff had introduced them to Airborne when she was a representative for Unishippers, stating that they wished to continue to use Airborne but wanted Cluff to service their accounts, and requesting that Airborne assign their Airborne account numbers to Freight Savers Express with Cluff as the service representative. Cluff was unaware that Freight Savers and Unishippers each had franchisee agreements with Airborne Express that as resellers, they would solicit only new customers not having a pre-existing relationship with Airborne and would not encourage pre-existing Airborne customers to transfer programs.
In October or November of 1998, O'Halloran contacted some of her former customers to determine why they had stopped placing orders with Unishippers, and learned that they were using Airborne Express through Freight Savers with Cluff as their sales representative. O'Halloran called her franchisor, Heidi Hammond, at Unishippers' corporate office and informed her that Freight Savers, through Cluff, had violated its agreement with Airborne Express. In addition, O'Halloran contacted between five and ten customers, including Pilgrim Mortgage, Eastern Atlantic Mortgage and Hamilton Cornell, to inform them of the violation. Unishippers' corporate office contacted Freight Savers' corporate office and complained, whereupon Freight Savers' corporate office told Doyle that they would sever his agency relationship if he continued to employ Cluff. Accordingly, Doyle terminated Cluff's contract with Freight Savers. On March 3, 1999, Freight Savers sent a letter to "Airborne/Unishipper Customers" stating:
Kathy Cluff is no longer a representative of Freight Savers Express. She was not authorized to solicit any Airborne accounts from Unishippers over to Freight Savers Express. Our apologies for any confusion that was caused by this situation. You should call upon your Unishipper representative for any Airborne needs.
Cluff considered Bostek to be her customer; however, after she left Freight Savers she never attempted to bring Bostek to a non-Airborne reseller because she felt she had been "booted out of the business."
Thereafter, on April 5, 1999, Cluff filed the present action against O'Halloran, LKO, Barry and Overnight Advantage, Inc. alleging breach of contract in Count I, defamation in Count II, interference with advantageous contractual relations in Count III, and violation of General Laws Chapter 93A in Count IV.
DISCUSSION
Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
I. DEFENDANTS O'HALLORAN AND LKO Count II: Defamation
Defendants O'Halloran and LKO move for summary judgment on Count II of the complaint on the ground that Cluff has no reasonable expectation of proving defamation at trial. Cluff first contends that O'Halloran defamed her by telling Parsons that Cluff was her employee. A statement is defamatory if it tends to hold the plaintiff up to scorn, hatred, ridicule or contempt in the minds of any considerable and respectable segment of the community. Draghetti v. Chmielewski, 416 Mass. 808, 811 (1994); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975).
Whether a statement is defamatory is a question for the court in the first instance, but if a publication is susceptible of both defamatory and harmless meanings, it presents a question of fact for a jury.
Smith v. Suburban Restaurants, Inc., 374 Mass. 528, 530 (1978). In the present case, the statement that Cluff was O'Halloran's employee does not, on its face, hold Cluff up to scorn, hatred, ridicule or contempt in the minds of any considerable and respectable segment of the community. Cluff argues that the statement is defamatory because she was in fact an independent contractor and O'Halloran used the term "employee" to justify removing her from Bostek's premises. However, Cluff has simply failed to set forth facts suggesting that O'Halloran's statement was intended or could be understood to convey a defamatory meaning. See Sharratt v.Housing Innovations, Inc., 365 Mass. 141, 145 (1974). There is no evidence, for example, that Parsons interpreted the statement as having a negative connotation, nor is there any evidence that in the freight reselling industry generally, calling a sales representative an employee, as opposed to an independent contractor, would have such a connotation. Accordingly, O'Halloran's statement that Cluff was an employee is not susceptible of a defamatory meaning and is not actionable.
Cluff next contends that O'Halloran defamed her by telling Parsons that she was incompetent. Foremost, the summary judgment record is devoid of any admissible evidence that O'Halloran ever made such a statement. Cluff admitted during her deposition that she never heard O'Halloran state that she was incompetent. The only evidence of such a statement is Cluff's assertion that Parsons told her that O'Halloran called her incompetent. Parsons, in his deposition, testified that O'Halloran stated that Cluff hadn't followed policy and that there were issues with the billing that had been conducted. However, he never testified that O'Halloran called Cluff incompetent. At the hearing on the present motion for summary judgment, this Court gave Cluff the opportunity to submit supplemental materials to support her assertion, but Cluff has declined to do so, asking this Court to rule based on the materials already submitted. Summary judgment is appropriate where the only evidence that the allegedly defamatory statement was made is unreliable hearsay. Petsch-Schmid v. Boston Edison Co., 914 F. Supp. 697, 705 (D.Mass. 1996).
The court granted this opportunity despite the fact that no Rule 56(f) motion and affidavit were filed.
Even assuming, however, that O'Halloran did call Cluff incompetent, such a statement could not form the basis of a defamation claim. It is well established that statements of pure opinion are constitutionally protected and are not actionable. Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 379 (1988); King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987), cert. den., 485 U.S. 962 (1988). The determination whether a statement is a factual assertion or an opinion is a question of law if the statement unambiguously constitutes either fact or opinion. Friedman v. Boston Broadcasters, Inc., 402 Mass. at 379; King v. Globe Newspaper Co., 400 Mass. at 709. In determining whether a statement could reasonably be interpreted as fact or opinion, the court must examine the statement in its totality in the context in which it was published, giving weight to any cautionary terms used by the person publishing the statement and considering all of the circumstances surrounding the statement, including the medium by which it was disseminated and the audience to whom it was published. Lyons v. Globe Newspaper Co., 415 Mass. 258, 263 (1993); Cole v. Westinghouse Broadcasting Co., Inc., 386 Mass. 303, 309, cert. den., 459 U.S. 1037 (1982).
Where the meaning of statements is imprecise and open to speculation, and the statements cannot be proved as true or false, they cannot be characterized as assertions of fact. Cole v. Westinghouse Broadcasting Co., Inc., 386 Mass. at 312 (concluding that statements that a reporter was "sloppy and irresponsible" with "bad techniques" were opinions and could not reasonably be viewed as factual assertions). Thus, language that is "quintessentially subjective" cannot be the basis of a defamation claim. Levinsky's v. Wal-Mart Stores, Inc., 127 F.3d 122, 130 (1st Cir. 1997) (concluding that the statement that a store was "trashy" was subject to numerous interpretations and quintessentially subjective, so as to constitute pure opinion). O'Halloran's alleged statement that Cluff was an incompetent sales representative is imprecise, inherently subjective, and not readily capable of being proven true or false. Compare Petsch-Schmid v. Boston Edison Co., 914 F. Supp. 697, 705 (D.Mass. 1996) (concluding that an employer's statements that an employee was unprofessional, had a performance problem, and could not complete her work on time were protected opinions); Underwood v. Digital Equipment Corp., Inc., 576 F. Supp. 213, 217 (D.Mass. 1983) (concluding that an employer's statements that an employee's resignation was "a minor loss" and that he should not be rehired were protected opinions).
Nonetheless, a statement cast in the form of opinion is actionable if it implies the existence of undisclosed defamatory facts on which the opinion purports to be based. Friedman v. Boston Broadcasters, Inc., 402 Mass. at 380; King v. Globe Newspaper Co., 400 Mass. at 713. In the present case, Cluff has not identified any undisclosed facts implied in O'Halloran's statement, and it is not clear that any such facts would themselves be defamatory. See Cole v. Westinghouse Broadcasting Co., Inc., 386 Mass. at 313. Indeed, O'Halloran told Parsons that Cluff hadn't followed policy and that there were issues with the billing that had been conducted. These are disclosed facts on which an opinion of incompetence was presumably based, and Cluff does not argue that these disclosed facts are themselves defamatory. See Lyons v. Globe Newspaper Co., 415 Mass. at 264-265. Thus, O'Halloran's alleged statement concerning plaintiff's incompetence constitutes pure opinion and is not actionable.
Finally, even if O'Halloran's statement that Cluff was incompetent could reasonably be considered a factual assertion, it was conditionally privileged. It is well established that an employer has a conditional privilege to disclose defamatory information concerning an employee where the publication is reasonably necessary to serve the employer's interest in the fitness of the employee to perform her job. McCone v. New England Tel. Tel. Co., 393 Mass. 231, 235 (1984); Mullen v. Ludlow Hospital Society, 32 Mass. App. Ct. 968, 971 (1992). Cluff argues that this privilege cannot be the basis for summary judgment because there is a genuine issue of material fact with respect to whether she was an employee of LKO or an independent contractor. However, the employer privilege is merely a corollary of the general principle that there is a conditional privilege to publish defamatory material if publication is reasonably necessary to the protection or furtherance of a legitimate business interest. See Bratt v. IBM Corp., 392 Mass. 508, 509 (1984). In addition, there is a conditional privilege where the publisher of the statement and its recipient have a common interest in the subject and the statement furthers that interest. Foley v. McCone v. New England Tel. Tel. Co., 393 Mass. at 235; Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 133 (1984). In the present case, O'Halloran had a legitimate business interest in the performance of her sales representative, and O'Halloran and Parsons shared an interest in having the best possible representative working on Bostek's integration project. This is so even though they may have disagreed on whether Cluff was, in fact, the best person for the job. Compare Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. at 133-134 (concluding that a statement by an employee of a manufacturer that an employee of the manufacturer's representative was not a professional and dedicated salesman was conditionally privileged because the companies shared a common interest in the quality of the manufacturer's sales representation). Thus, the allegedly defamatory statement at issue was conditionally privileged.
A conditional privilege immunizes the defendant from liability unless she acted with actual malice or acted recklessly in publishing the statement unnecessarily, unreasonably or excessively. Mulgrew v.Taunton, 410 Mass. 631, 635 (1991); Bratt v. IBM Corp., 392 Mass. at 509;Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. at 134. In the present case, Cluff has failed to produce any evidence suggesting that O'Halloran did not believe or had reason to doubt the truth of her statement, nor has she produced evidence that O'Halloran published it unnecessarily or excessively. Accordingly, Cluff has no reasonable expectation of proving defamation based on this statement.
Finally, Cluff alleges that O'Halloran defamed her by calling various customers and stating that she was a thief. Foremost, the summary judgment record is devoid of any admissible evidence that O'Halloran ever stated that Cluff was a thief. The only evidence of such statements is Cluff's unsupported assertion that they were made. At the hearing on the present motion for summary judgment, this Court gave Cluff the opportunity to submit affidavits from the customers to whom the alleged statement was published, but Cluff has declined to do so, asking this Court to rule based on the materials already submitted. Summary judgment is appropriate where the only evidence that the allegedly defamatory statement was made is unreliable hearsay. Petsch-Schmid v. Boston Edison Co., 914 F. Supp. at 705.
Further, to the extent that Cluff's defamation claim is based on O'Halloran's statements to customers such as Pilgrim Mortgage, Eastern Atlantic Mortgage and Hamilton Cornell that Cluff had violated Freight Savers' franchisee agreement by bringing Airborne Express customers from Unishippers to Freight Savers, such statements were true. Truth is an affirmative defense to a claim of defamation. McAvoy v. Shufrin, 401 Mass. 593, 597 (1988). In addition, O'Halloran's statements would be conditionally privileged as reasonably necessary to the furtherance of her legitimate business interest in protecting her rights under the contract with Airborne Express. See Bratt v. IBM Corp., 392 Mass. at 509. Moreover, O'Halloran and the customers shared a common interest in ensuring that they did not contract for freight services in violation of industry agreements, and O'Halloran's statement furthered that interest. See Foley v. McCone v. New England Tel. Tel. Co., 393 Mass. at 235; Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. at 133. Cluff has failed to produce any evidence that O'Halloran acted with actual malice or acted recklessly in publishing the alleged statements unnecessarily, unreasonably or excessively, so as to overcome the conditional privilege. See Mulgrew v. Taunton, 410 Mass. at 635; Bratt v. IBM Corp., 392 Mass. at 509; Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. at 134. Thus, Cluff has no reasonable expectation of proving defamation at trial, and O'Halloran and LKO are entitled to judgment as a matter of law on Count II of the complaint.
Count III: Intentional Interference with Contractual Relations
O'Halloran and LKO further move for summary judgment on Count III of the complaint on the ground that Cluff has no reasonable expectation of proving intentional interference with contract at trial. Cluff alleges that O'Halloran interfered with her relationships with Bostek, Tedeschi, On a roll, Performance Textiles, Pilgrim Mortgage, Eastern Yacht Sales, Capital Lease Group, McGee Toyota and Eastern Atlantic Mortgage. To prevail on a claim of unlawful interference with contractual relations, the plaintiff must prove that she had a contract with a third party, that the defendant knowingly induced the third party to break that contract, that the defendant's interference was both intentional and improper in motive or means, and that the plaintiff was harmed by the defendant's actions. Shea v. Emmanuel College, 425 Mass. 761, 764 (1997); Draghetti v. Chmielewski, 416 Mass. at 816; G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).
Cluff alleges that O'Halloran interfered with her relationship with Bostek by removing her from Bostek's facility and by telling Parsons that she was an employee and was incompetent. The summary judgment record is devoid of evidence that in speaking to Parsons, O'Halloran acted for a spiteful purpose unrelated to her legitimate business interest in the performance of her sales representative and in having the best possible representative working on Bostek's integration project. See Shea v.Emmanuel College, 425 Mass. at 764; Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993); Wright v. Shriners Hospital for Crippled Children, 412 Mass. 469, 476 (1992). Even if, as alleged by Cluff, O'Halloran hoped to get Bostek's business for herself, it is well established that the motivation of personal gain, including financial gain, is not enough to establish improper interference. King v. Driscoll, 418 Mass. 576, 587 (1994); United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 817 (1990). Finally, although defamation would be an improper means for purposes of an interference with contract claim, as discussed supra, the use of the term employee was not defamatory, and Cluff has failed to establish that O'Halloran called her incompetent or that such a statement would constitute defamation despite being opinion and conditionally privileged.
Similarly, with respect to the remaining customers, Cluff has failed to raise a genuine issue of material fact concerning improper motive or means. Cluff alleges that O'Halloran improperly interfered with her relationship with various customers by informing them that Cluff had violated Freight Savers' franchisee agreement by bringing Airborne Express customers from Unishippers to Freight Savers, and by calling her a thief. The summary judgment record is devoid of evidence that in informing third parties about Cluff's violation, O'Halloran acted for a spiteful purpose unrelated to her legitimate business interest in enforcing Freight Savers' contractual obligation to other resellers. SeeShea v. Emmanuel College, 425 Mass. at 764; Boothby v. Texon, Inc., 414 Mass. at 487; Wright v. Shriners Hospital for Crippled Children, 412 Mass. at 476. Even if, as alleged by Cluff, O'Halloran hoped to get the customers at issue back to Unishippers, the motivation of personal gain, including financial gain, is not enough to establish improper interference. King v. Driscoll, 418 Mass. at 587; United Truck Leasing Corp. v. Geltman, 406 Mass. at 817. Finally, although defamation would be an improper means for purposes of an interference with contract claim, as discussed supra, Cluff has failed to establish that O'Halloran called her a thief or that such a statement would be actionable despite being conditionally privileged. Thus, Cluff has no reasonable expectation of proving an essential element of her interference with contract claim at trial, and O'Halloran and LKO are entitled to judgment as a matter of law on Count III of the complaint.
It is completely unclear what specific actions, if any, O'Halloran is alleged to have taken to interfere with Cluff's relationship with Tedeschi.
II. DEFENDANTS BARRY AND OVERNIGHT ADVANTAGE
Defendants Barry and Overnight Advantage seek summary judgment on Counts I, II and III of the complaint. The allegations in Cluff's complaint are sparse with respect to these defendants. The complaint alleges that on July 20, 1998, O'Halloran entered into a joint venture with Barry to deprive Cluff of commissions owed under her Sales Representative Agreement with LKO and to interfere with her relationship with her customers. It further alleges that on August 18, 1998, Barry and O'Halloran prepared false and fraudulent computer records showing the commissions to which she was entitled, but that when Cluff confronted Barry with the correct records, he withdrew the false records and paid her, demanding a release of all claims which she refused to sign.
Although defendants Barry and Overnight have moved for summary judgment on Count I of the complaint, they have not established the absence of a triable issue on the breach of contract claim, or that they are entitled to judgment as a matter of law. See Pederson v. Time, Inc., 404 Mass. at 16-17. Cluff alleges that while working as O'Halloran's office administrator, Barry breached the Sales Representative Agreement by using fraudulent margin reports to attempt to deprive her of commissions to which she was entitled. The agent of a disclosed principal is not ordinarily personally liable for his principal's breach of contract unless the breach is the result of the agent's own fraud. Cort v.Bristol-Myers Co., 385 Mass. 300, 305 n. 5 (1982); Carter v. Empire Mutual Ins. Co., 6 Mass. App. Ct. 114, 133 (1978) (Armstrong, J., concurring and dissenting). The present summary judgment record, viewed in the light most favorable to Cluff, raises factual issues as to whether Barry committed fraud so as to render him liable for breach of the Sales Representative Agreement.
Cluff appears to argue that a 12/23/99 letter written by Barry constitutes an independent contract between herself and Barry concerning commissions. This theory of breach of contract also presents factual issues to be resolved at trial.
With respect to Counts II and III of the complaint, however, the summary judgment record is devoid of evidence that Barry engaged in any conduct which could subject him to liability for defamation or intentional interference with contract. Cluff has been given every opportunity to produce materials relevant under Rule 56 to support the allegations of her complaint, but has failed to do so. Accordingly, Barry and Overnight Advantage, Inc. are entitled to judgment as a matter of law on Counts II and III of the complaint.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendant O'Halloran and LKO Enterprises, Inc.'s motion for summary judgment on Counts II and III of the complaint be ALLOWED . It is further ORDERED that defendant Barry and Overnight Advantage's motion for summary judgment be ALLOWED with respect to Counts II and III of the complaint but DENIED as to Count I.
_____________________________ Elizabeth M. Fahey Justice of the Superior Court