Cantell v. Hill Holliday Connors Cosmopulos, Inc.

772 N.E.2d 1078, 55 Mass. App. Ct. 550
CourtMassachusetts Appeals Court
DecidedAugust 2, 2002
DocketNo. 00-P-57
StatusPublished
Cited by22 cases

This text of 772 N.E.2d 1078 (Cantell v. Hill Holliday Connors Cosmopulos, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cantell v. Hill Holliday Connors Cosmopulos, Inc., 772 N.E.2d 1078, 55 Mass. App. Ct. 550 (Mass. Ct. App. 2002).

Opinion

Grasso, J.

We consider in this appeal the applicability of the Statute of Frauds, G. L. c. 259, § 7, to a claim by an employment agency for services. After a hearing on cross motions for summary judgment, a Superior Court judge granted the motion [551]*551of the defendant, Hill Holliday Connors Cosmopulos, Inc. (HHCC), ruling that the claims of Christopher Cantell and Linda Yancy Kidsley, doing business as Cantell Communications International (CCI), for breach of contract and quantum meruit were barred by the Statute of Frauds or, alternatively, that CCI was not the efficient or predominating cause of HHCC’s decision to hire CCI’s former candidate. The judge also dismissed CCI’s G. L. c. 93A claim of unfair business practices. We affirm.

1. Facts. Viewed in the light most favorable to CCI, see Transamerica Ins. Co. v. KMS Patriots, L.P., 52 Mass. App. Ct. 189, 192 (2001), the material facts are these. In May, 1996, CCI, an employment agency, more colloquially described as a “recruiter” or “headhunter,” faxed to Tom Woodard, HHCC’s director of human resources, a schedule of service charges, signed by both CCI partners. The schedule stated, in part, “Your acceptance of referrals from us shall be conclusive evidence of your acceptance of our schedule of charges, terms and conditions, unless we have signed a written modification.” There was no place on the document for signature signifying acceptance on behalf of HHCC, nor did Woodard sign on its behalf.

In July, 1996, CCI arranged an interview with Woodard for Nancy Lehrer, an employee of Holland Mark Martin advertising agency who was working with CCI to find new employment. The interview was an informal breakfast meeting, described by Lehrer as “informational,” from which no follow-up meetings, interviews, or job offer ensued. In November, 1996, CCI faxed a copy of Lehrer’s resume to an executive at HHCC, who informed CCI that recruitment needed to go through Rebecca Haag, the new director of human resources. CCI contacted Haag, who indicated that she was unaware of any relationship between HHCC and CCI. Haag requested that CCI furnish her with a fist of the candidates that CCI maintained it had referred to HHCC. On November 22, 1996, CCI faxed HHCC another schedule of service charges, together with a memorandum listing candidates, and requested that Haag initial the memorandum. Haag did not recognize any of the individuals listed, including Lehrer, nor did she initial the memorandum. Instead, Haag informed CCI that HHCC was working with too many recruiters and was not interested in dealing with CCI.

[552]*552In January, 1997, Lehrer asked a coworker, who was about to begin employment with HHCC, to inquire into whether HHCC needed anyone to work on its Fidelity Investments account. The friend gave Lehrer the name of another HHCC employee, Gina Fajardo. Lehrer sent Fajardo a copy of her resume, which Fa-jardo forwarded to Haag. On February 28, 1997, after a series of interviews, Lehrer was offered the position of vice-president/ management supervisor for the Fidelity account. She accepted the employment offer on March 4, 1997, and began work at HHCC at the end of that month. CCI later instituted suit to recover a commission based upon its referral of Lehrer to HHCC.

2. Applicability of the Statute of Frauds. As set forth in G. L. c. 259, § 7, “Any agreement to pay compensation for service as a broker or finder . . . shall be void and unenforceable unless such agreement is in writing, signed by the party to be charged therewith, or by some other person authorized. . . . The provisions of this section shall apply to a contract implied in fact or in law to pay reasonable compensation . . . .” CCI contends that the statute does not bar its action because an employment agency or “headhunter” is not a “broker” or “finder” within the meaning of the statute. Contrary to CCI’s contention, we conclude that the services for which CCI seeks compensation are those in which it acted either as a “broker” or a “finder” as those terms are used in the statute. We conclude that CCI’s contract and quantum meruit claims are thus barred by the Statute of Frauds because no contract was signed by HHCC.

The modern trend is to give statutes of frauds liberal interpretations. See 3A Singer, Sutherland Statutory Construction § 70.02, at 200 (5th ed. 1992).2 We have followed this trend previously in concluding that the precise section at issue, G. L. c. 259, § 7, should be interpreted broadly to further its policy determination that agreements for compensation for [553]*553certain services be in writing. See Bay Colony Mktg. Co. v. Fruit Salad, Inc., 41 Mass. App. Ct. 662, 665 (1996) (“we interpret the statute to require written agreements where there is to be compensation ‘for service as a broker or finder’”). Such an interpretation furthers the manifested legislative purpose “to discourage claims for commission based on conversation which persons heard differently or remembered differently.” Alexander v. Berman, 29 Mass. App. Ct. 458, 462 (1990).

Further fortifying our conclusion that the statute applies to employment agencies, such as CCI, that provide broker’s or finder’s services are the specified exceptions from the statute’s applicability for providers of services, such as attorneys, licensed real estate brokers, and real estate salesmen.3 “The fact that the Legislature specified one exception . . . strengthens the inference that no other exception was intended.” Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 620 (1997), quoting from LaBranche v. A.J. Lane & Co., 404 Mass. 725, 729 (1989).

The terms “broker” and “finder” are not technical terms and, when given their ordinary meanings and construed according to their common usage, encompass activities performed by CCI. See G. L. c. 4, § 6, Third; Casey v. Massachusetts Elec. Co., 392 Mass. 876, 880 (1984) (unless legislative use of a word indicates a specialized meaning, the Legislature is presumed to have intended the word in its ordinary sense); Baccanti v. Morton, 434 Mass. 787, 794 (2001) (where statutory language is plain and unambiguous, it is interpreted according to its ordinary meaning). A broker is “[a]n agent who acts as an intermediary or negotiator, especially] between prospective buyers and sellers; a person employed to make bargains and contracts between other persons in matters of trade, commerce, and navigation.” Black’s Law Dictionary 187 (7th ed. 1999). A finder is “[a]n intermediary who brings together parties for a business opportunity. ... A finder differs from a broker-dealer because the finder merely brings two parties together to make their own contract, while a broker-dealer usu[ally] participates in the negotiations.” Id. at 646. A finder locates, introduces, and brings [554]*554parties to a transaction together, while a broker does more, to bring the parties to an agreement. See Shinberg v. Bruk, 875 F.2d 973, 978 (1st Cir. 1989).

On the undisputed facts, CGI’s services are susceptible of be-ing viewed as those of either a “broker” or a “finder” within the ambit of the statute.

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Bluebook (online)
772 N.E.2d 1078, 55 Mass. App. Ct. 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cantell-v-hill-holliday-connors-cosmopulos-inc-massappct-2002.