PHILLIP D. REEVE v. DUNKIN' DONUTS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 5338-03T5 5338-03T5

PHILLIP D. REEVE,

Plaintiff-Appellant,

v.

DUNKIN' DONUTS, INC.,

Defendant-Respondent.

__________________________________

 

Argued January 19, 2006 - Decided February 6, 2006

Before Judges Stern, Grall and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2762-98.

Ellis I. Medoway argued the cause for appellant (Archer & Greiner, attorneys; Mr. Medoway and Arthur H. Jones, Jr., on the brief).

Peter V. Taylor, pro hac vice, argued the cause for respondent (Nixon Peabody, attorneys; Craig Tractenberg, on the brief).

PER CURIAM

Plaintiff Phillip D. Reeve appeals from the grant of a judgment notwithstanding the verdict on his claim of tortious interference with prospective economic advantage by defendant Dunkin' Donuts, Inc. Dunkin' Donuts is a franchisor which licenses franchisees to open and run retail Dunkin' Donuts stores. Dunkin' Donuts also owns and operates its own retail establishments.

Reeve was employed by Dunkin' Donuts Mid-Atlantic Distribution Center, Inc., as its Vice President and General Manager--the highest corporate operational position at the Distribution Center. The Distribution Center is a Delaware corporation authorized to conduct business in New Jersey with its principal place of business in Thorofare. The Distribution Center is an independent, not-for-profit, non-stock corporation cooperatively owned by approximately 825 Dunkin' Donuts franchisees that pay a membership fee and sign a membership-commitment agreement in order to become members of the Distribution Center. The Distribution Center is engaged in the business of bulk purchases of products for use in Dunkin' Donuts stores owned by members of the Distribution Center, including Dunkin' Donuts. The members, in turn, purchase products from the Distribution Center. The Distribution Center is operated by a Board of Trustees, all of whom are members, or employed by members, of the Distribution Center. One position on the Board is always held by someone employed by Dunkin' Donuts.

The theory of Reeve's case was that Dunkin' Donuts wrongfully complained about Reeve, urged the termination of his employment to the Distribution Center Board of Trustees, and thus tortiously interfered with his prospective economic advantage of continued at-will employment by the Distribution Center. We need not recite the facts at length here. After the return of a verdict in favor of Reeve, the trial court concluded that he had not proven malice, a requisite element of a tortious interference claim, and entered a judgment of no cause for action. We affirm that result substantially for the reasons expressed by the trial judge in her written opinion of March 23, 2004.

In addition to those reasons, we note that Reeve was required to prove that the conduct of Dunkin' Donuts was outside the realm of a reasonable exercise of an equal or superior right. Ass'n Group Life, Inc. v. Catholic War Veterans, 120 N.J. Super. 85, 98 (App. Div. 1971), aff'd as modified on other grounds, 61 N.J. 150, 153 (1972). "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty." Raymond v. Cregar, 38 N.J. 472, 481 (1962). Certainly, Dunkin' Donuts, as a member and customer of the Distribution Center, had an equal or superior right to present to the Board of Trustees of the Distribution Center whatever complaints it had about Reeve and his performance as the Distribution Center's vice president and general manager. It also had a right to seek his removal from that position so long as it was not motivated by sheer malice or acting unreasonably. Leslie Blau Co. v. Alfieri, 157 N.J. Super. 173, 189 (App. Div.), certif. denied, 77 N.J. 510 (1978). There is not a scintilla of evidence of sheer malice, and thus we turn to the issue of reasonableness.

Reeve was required to demonstrate that the conduct of Dunkin' Donuts was transgressive of generally accepted standards of law or morality. Harper-Lawrence, Inc. v. United Merchants and Mfrs., Inc., 261 N.J. Super. 554, 568 (App. Div.), certif. denied, 134 N.J. 478 (1993). If the conduct is not contrary to the "rules of the game," it is not tortious. Ibid. Stated otherwise, the conduct must fall below the behavior of fair men similarly situated. Ass'n Group Life, supra, 120 N.J. Super. at 98. The presence of unreasonable action is determined on an individualized basis, and the standard is flexible, viewing the defendant's actions in the context of the facts presented. Lamorte Burns & Co., Inc. v. Walters, 167 N.J. 285, 306 (2001); Ideal Dairy Farms v. Farmland Dairy Farms, 282 N.J. Super. 140, 199 (App. Div.), certif. denied, 141 N.J. 99 (1995). Applying that standard to the particular facts before the court, viewing them in a light most favorable to Reeve, there is nothing in the record which would support a conclusion that given Dunkin' Donuts' relationship with the Distribution Center, including the fact that it was a member and customer of the Distribution Center presenting its complaints to the Distribution Center's Board of Trustees, did anything illegal, immoral, or outside the "rules of the game." A fair business similarly situated, if concerned about the conduct of an employee of a cooperative in which it was a member, would present those concerns to a company such as the Distribution Center here.

 
Affirmed.

No appeal was taken from the verdict of no cause for action with respect to Reeve's claims against defendant Fred Lincoln, an employee of Dunkin' Donuts, Inc. Reeve also has not appealed the dismissal of his claims of tortious interference with contract against both Lincoln and Dunkin' Donuts. All other claims were resolved by agreement.

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A- 5338-03T5

February 6, 2006