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Bessemer Trust Co. v. Branin

July 25, 2007

BESSEMER TRUST COMPANY, N.A., PLAINTIFF,
v.
FRANCIS S. BRANIN, JR., DEFENDANT.



The opinion of the court was delivered by: Sprizzo, D.J.

MEMORANDUM OPINION AND ORDER

At issue before the Court is plaintiff's Motion for Summary Judgment on defendant's counterclaims. Plaintiff, Bessemer Trust Company, N.A. ("Bessemer" or "plaintiff"), brought this action against defendant, Francis S. Branin, Jr. ("Branin" or "defendant"), alleging a violation of the rule of law set forth in Von Bremen v. MacMonnies, 200 N.Y. 41, 93 N.E. 186 (1910) and Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276, 419 N.E.2d 324, 437 N.Y.S.2d 646 (1981), which prohibits the impairment of good will which was transferred to a purchaser in connection with the sale of a business. Defendant counterclaimed for breach of contract, quantum meruit, and promissory estoppel based on the sale of the business and his offer of employment. Plaintiff filed a Motion for Summary Judgment on these counterclaims, dated February 8, 2007. The Court heard Oral Argument on May 3, 2007. For the reasons set forth below, the Court grants plaintiff's Motion.

BACKGROUND

Defendant Branin was a principal at the investment firm of Brundage, Story and Rose, LLC ("Brundage") from 1982 to 2000, when Bessemer Trust Company ("Bessemer") acquired Brundage. Pl.'s Rule 56.1 Stmt ("Pl.'s 56.1") ¶¶ 3, 9; Def.'s Response to Pl.'s Rule 56.1 Stmt ("Def.'s 56.1") ¶¶ 3, 9. Branin was substantially involved in the negotiations for this acquisition. Pl.'s 56.1 ¶ 7; Def.'s 56.1 ¶ 7.

Under the Purchase Agreement, each former owner of Brundage would receive a lump sum payment and would be eligible to receive up to four future incentive payments, two of which the former owners, including Branin, eventually earned. Pl.'s 56.1 ¶¶ 17, 20, 22; Def.'s 56.1 ¶¶ 17, 20, 22. The Purchase Agreement includes the following language:

"The obligation of Buyer to consummate the Purchase is subject to the satisfaction (or waiver by Buyer) as of the Closing of the following conditions: . . . (vii) As of the Closing Date, each of the Sellers . . . shall have accepted in writing the terms of employment offered by Buyer, substantially in the form attached hereto as Exhibit D, for a position generally comparable to which he or she holds with the Company as of the date hereof." Decl. of Michael P. Collins in Opposition to Pl.'s Renewed Motion for Summary Judgment (hereinafter "Collins Decl."), Ex. 4, BT 06539 -40 (emphasis added).

Similar language regarding a corresponding obligation on the part of the Seller follows:

"The obligations of Sellers and the Company to consummate the Transaction and the Purchase are subject to the satisfaction (or waiver) as of the Closing of the following conditions: . . . (iv) As of the Closing Date, each of the Sellers . . . shall have accepted in writing the terms of employment offered by Buyer, substantially in the form attached hereto as Exhibit D, for a position generally comparable to which he or she holds with the Company as of the date hereof." Collins Decl. Ex. 4, BT 06541 -42 (emphasis added).

The Purchase Agreement was executed on August 18, 2000. Pl.'s 56.1 ¶ 9; Def.'s 56.1 ¶ 9. This Purchase Agreement includes a merger clause. Pl.'s 56.1 ¶ 10, Def.'s 56.1 ¶ 10.

Exhibit D, referenced in the Purchase Agreement, is a template offer letter that provides that "The terms of this offer letter do not and are not intended to create either an expressed or implied employment contract. In fact, we do not offer any of our executives employment contracts." Collins Decl., Ex. 4, BT 06598. The actual offer letter given to defendant includes this template language. See Collins Decl., Ex. 22, BT 07295. It also provides that defendant would be given the title "Managing Director" and sets forth terms of defendant's salary, bonus, vacation, pension, etc. See id at 07294. No details regarding defendant's job description or the responsibilities of the position of Managing Director are included in the offer letter.*fn1 See id. The offer letter set forth a $350,000 salary, subject to review on an annual basis. See id. The paragraph dedicated to defendant's bonus package provides for defendant's eligibility to participate in the Incentive Cash Bonus Plan, the determination of the amount of his bonus "at the discretion of the Salary Committee," the range of his bonus as "0% to 250% of base pay," and various other terms.*fn2 See id.

The Incentive Cash Bonus Plan is the subject of an Office Memorandum dated October 15, 2001, which allows that "Performance Appraisal forms and recommended merit increase/incentive compensation schedules . . . should be completed" by the memorandum's recipient. Collins Decl., Ex. 14, BT 07832. This memorandum includes a compensation schedule which attaches performance categories to ratings and bonus ranges, see id. at BT 07837, and sets forth eleven categories of achievements to guide the review, see id. at BT 07844. The memorandum makes clear that this section "should reflect the 2001 performance that employees in your group should be evaluated on" and notes its purpose as "an attempt to make the appraisal form more objective." See id. at BT 07832.

Defendant accepted employment at Bessemer on September 29, 2000, and remained there until July 12, 2002, when he tendered his resignation. See Pl.'s 56.1 ¶¶ 39, 87; Def.'s 56.1 ¶¶ 39, 87. During his tenure at Bessemer, Branin received two of the incentive payments laid out in the Purchase Agreement--in September 2001 and May 2002. Pl.'s 56.1 ¶¶ 25, 28; Def.'s 56.1 ¶¶ 25, 28. He was also awarded an unexpected bonus in 2000, Pl.'s 56.1 ¶ 57; Def.'s 56.1 ¶ 57, and a bonus equal to 50.6% of his base salary in 2001. Pl's 56.1 ¶ 72; Def.'s 56.1 ¶ 72. Defendant alleges a series of grievances detailing his diminished responsibilities, exclusion from meetings, and effective demotion throughout his time at Bessemer. See Def.'s Mem. of Law in Opposition to Pl.'s Motion for Summary Judgment ("Def.'s Opp'n") 6-7. Upon his resignation from Bessemer, Branin accepted employment at Stein Roe. See Pl.' 56.1 ¶ 88, Def.'s 56.1 ¶ 88. This move to Stein Roe and the resultant transfer of some of Bessemer's former clients to Branin's new firm is the subject of the direct claim in this action and the Court's decision dated April 10, 2006, which held defendant liable for impairment of good will in one of these transferred accounts. See Bessemer Trust Company, N.A. v. Branin, 427 F. Supp. 2d 386, 397 (S.D.N.Y. 2006).

DISCUSSION

A court may only grant summary judgment when "there is no genuine issue as to any material fact and. . .the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). All ambiguities and factual inferences must be drawn in favor of the party opposing the motion. See Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999). The court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). ...


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