Cruz v. Visual Perceptions, LLC ( 2014 )

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CRUZ v. VISUAL PERCEPTIONS, LLC—DISSENT
McDONALD, J., dissenting. Only by resorting to an
act of linguistic origami could the written words of our
common language be sufficiently contorted to reach
the conclusion achieved by the majority today. While
the majority accurately observes that a reviewing court
applies plenary review to resolve the threshold question
of whether a contract is plain and unambiguous, in the
present case it has discerned shadows in the express
language of the contract1 between the plaintiff, Norma
I. Cruz, and the defendant Visual Perceptions, LLC,2 that
the clarity of bright light simply does not substantiate. I
am compelled, therefore, to dissent.
The document,3 entitled ‘‘Norma Cruz Employment
Contract,’’ provides: a specific term—a ‘‘[thirty-six]
month period’’; the dates of commencement and termi-
nation of this term—‘‘starting April 1, 2007 and ending
March 31, 2010’’; the number of paid personal days that
the plaintiff ‘‘will have’’ for vacation or sick time for
each year during this term—ten days in 2007, twelve
days in 2008, fourteen days in 2009, fifteen days in 2010;
and the defendant’s obligation to cover any increase in
the plaintiff’s health insurance premium ‘‘for the dura-
tion of the contract.’’ The agreement also sets forth
every essential term of the plaintiff’s employment—
title, responsibilities, schedule (hourly by day), com-
pensation (salary and bonuses), and the value of each
benefit provided (matching IRA, health and dental
insurance). The contract is signed by the plaintiff and
Robert W. Aube, Jr., the principal of the defendant. In
my view, it is abundantly clear that, with every salient
provision spelled out in detail, this document is an
employment contract for a definite term of thirty-six
months. Cf. Wilkerson v. Carriage Park Development
Corp., 130 N.C. App. 475, 477–78, 503 S.E.2d 138
(employment contract specifying compensation at
yearly, monthly, weekly, or daily rate is contract for
indefinite period unless it also specifies term of ser-
vice), review denied, 349 N.C. 534, 526 S.E.2d 478 (1998).
As such, it could be terminated only for good or just
cause. See Slifkin v. Condec Corp., 13 Conn. App. 538,
549, 538 A.2d 231 (1988) (‘‘[a]n employment contract
for a definite or determinable term . . . may be termi-
nated by either party only for good or just cause’’).
The majority’s summary conclusion that a document,
denominated by the parties as an ‘‘Employment Con-
tract’’ and that includes a specified term of thirty-six
months ‘‘starting from April 1, 2007 and ending March
31, 2010,’’ is somehow ‘‘ambiguous as to whether it was
intended to constitute a contract of employment for a
definite term,’’ strains the words used by the parties
in their contract beyond their natural meaning and is
unwarranted. Similarly, the majority can only reach its
conclusion that the language ‘‘providing that any
increase in health insurance premiums would be
absorbed by the defendant ‘for the duration of the con-
tract’ does not plainly and unambiguously indicate what
the parties intended the duration of the agreement to
be’’; (emphasis added); by speculating that the parties
could have been referring to some period other than
the thirty-six month term specifically provided in the
document captioned as their ‘‘[c]ontract.’’ The majority
has undertaken exactly the type of tortured interpreta-
tion of the contract’s language to discern an ambiguity
that this court previously has deemed improper. See
United Illuminating Co. v. Wisvest-Connecticut, LLC,
259 Conn. 665, 670, 791 A.2d 546 (2002). In achieving
that result, the majority has failed to read the contract
in its entirety and to give effect to every one of its
provisions if at all possible, most particularly the con-
tractual term of three years. See id., 670–71.
Indeed, almost as telling as what is included in the
contract is what is omitted. There is no language even
remotely implying a reservation of the defendant’s
right to terminate the plaintiff at will, any condition on
the rights provided therein, an intention to maintain
any preexisting employment arrangements, or an inten-
tion to resolve limited issues in dispute on a going
forward basis should the plaintiff’s employment con-
tinue to the defendant’s satisfaction. As the drafter of
the contract, Aube readily could have included such
terms. See Orr v. Westminster Village North, Inc., 689
N.E.2d 712, 717 (Ind. 1997) (‘‘[i]f there is an employment
contract for a definite term, and the employer has not
reserved the right to terminate the employment before
the conclusion of the contract, the employer generally
may not terminate the employment relationship before
the end of the specified term except for cause or by
mutual agreement’’); Cape v. Greenville County School
District, 365 S.C. 316, 319, 618 S.E.2d 881 (2005) (‘‘An
employment contract for an indefinite term is presump-
tively terminable at will, while a contract for a definite
term is presumptively terminable only upon just cause.
These are mere presumptions, however, which the par-
ties can alter by express contract provisions.’’).
Although the contract also does not specifically provide
that the plaintiff could be terminated only for good
cause, there was no need to so provide in light of well
settled law, previously cited, recognizing that such a
condition is implied in a contract for a definite term.
See also Taravella v. Wolcott, 599 F.3d 129, 134 (2d Cir.
2010) (‘‘Under Connecticut law, employment is at-will
by default, and parties must specifically contract a right
to be terminated only for cause. . . . An exception
exists for contracts that create employment for a fixed
period.’’ [Citation omitted.]).
Therefore, it is unnecessary and improper, in my
view, to remand the case to the trial court to allow
consideration of extrinsic evidence to ascertain
whether the parties intended to create a contract for a
specific term such that the plaintiff could not be termi-
nated except for good cause. The defendant should be
bound by its own unambiguous manifestation of intent.
By concluding to the contrary, the majority finds textual
ambiguity where there is none.
I respectfully dissent.
1
Throughout its opinion, the majority has chosen to characterize this
contract as a ‘‘letter agreement,’’ despite the fact that the document itself
is denominated as a contract. Because the majority analyzes the issue on
appeal under the law of contracts and in no way suggests that the terms
and conditions in the signed ‘‘letter agreement’’ would not be binding on
the parties irrespective of which interpretation the trial court deems proper
on remand, I refer to the agreement as a contract—as did the parties, the
trial court and the Appellate Court.
2
See footnote 2 of the majority opinion. All references to the defendant
herein are to Visual Perceptions, LLC.
3
See footnote 3 of the majority opinion for the full text of the contract
at issue.