BISHOP v HENDRICKSON
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No. 84-445 I N THE SUPREME COURT OF THE STATE O F MONTAEJA 1985 ALFRED L . BISHOP, P l a i n t i f f and A p p e l l a n t , -vsROBERT E. HENDRICKSON , D e f e n d a n t and R e s p o n d e n t . D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of Y e l l o w s t o n e , T h e H o n o r a b l e Nat A l l e n , Judge p r e s i d i n g . APPEAL FROM: COUNSEL OF RECORD: For A p p e l l a n t : A l f r e d L. Bishop, B i l l i n g s , Montana For Respondent: R. P. Ryan, B i l l i n g s , Montana S u b m i t t e d on B r i e f s : Decided: , " 1, c- ' 4 J .' , if-- //( L, P Jan. 1 0 , 1 9 8 5 March 7, 1985 f - w - : r y J Clerk Mr. Justice William E. Hunt, S r . the Court. Alfred L. , d.elivered. the Opini-on of Bishop appeals an Order of the Yellowstone County District Court granting Robert E. Hendrickson's motion for summary iudgrnent. whether a constituted The issues raised. are two: first, conversation an between enforceable Bishop contract and to Hendrickson employ Bishop's daughter; and second, if so, whether Hendrickson breached that contract, proximately causing damage to Bishop. We find that Eishop has failed to raise a genuine issue of material fact to preclude entry of summary judgment. Accordingly, we affirm. Bishop was employed by the law firm of Earl V. Cline and Hendrickson in 1952. Bishop formed a After Cline's death, Hendrickson and partnership, in 1965. In 1976, the partnership was expanded to take in Gary Everson under the partnership name of Hendrickson, Bishop and Everson. In 1-978, the partners formed a professional corporation under the name of Hendrickson and Bishop, P.C. Both Hendrickson and Bishop had daughters who attended law school. Hendrickson's daughter worked for the firm for approximately one year as a law clerk, but not as a lahyer. For personal reasons, she left the firm. Debbie began gra.duation. working with the firm Bishop's daughter after law She worked for approximately one month. school When Debbie inquired about getting paid, she was told she would not be hired by the firm. Bishop filed an amended complaint in District Court on April 4, 1983, alleging that at some point during their period of association, he and Hendrickson contracted with each other that "in the event an~7 of their children ever became lawyers and wanted to practice law with the firm that there would be a place for such child or children in the Law firm," and that Hendrickson had breached the contract by refusing to hire Debbie. Hendrickson filed a motion for summary judgment. August 13, 1984, the District Court entered its On order granting Kendrickson's motion for summary iudgment, finding the alleged contract was highly uncertain, to-wit, "a plzce" in the law firm. Jt is well-settled that many contracts may he oral. Section 28-2-901, MCA, provides: "When contracts may be oral. A1.L contracts may be oral except such as are specially required by statute to be in writing." However, it is clear that a contract must be certain and that the words "a place" in the law firm for a person is not certain enough to meet the requirement. Restatement (Second) of Contracts S 33(1) (1979) states: Certainty. (1) Even though a "Section 33. manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain." This alleged contract fails to sa.tisfy that requirement. It is not certaj-n whether children who may be born in the future come within such a contract; it is neither clear nor certain whether someone coming to the firm must be hired, and if so, to what position; and factors such as salary and terms of employment are totally unknown. At best, the alleged contract is ambiguous. In his deposition of April 4, 1983, Rishop conceded the conversation took pl-ace "way back, many years ago, when the kids were little." Bishop asserted Hendrickson reaffirmed the agreement on December 13, 1981, in a conversation with himself (Bishop) "You know that A1 and I have an agreement." and others: is Bishop's position problem with It that this statement disposed of any the one-year requirement of the statute of Frauds for oral contracts. In support of his argument that there was a contract, Bishop cited Davis v. Davis (19721, 159 Mont. 355, 497 P.2d 315, which provides that oral contracts, fully executed by one of the parties represent a well-recognized exception to the statute of frauds. Bishop contended the hiring of Hendrickson's daughter as a law clerk completed the oral contract and statute of satisfied the frauds. That is inconsistent even with his own assertion that the alleged agreement was to hire their childrer as lawyers, not as law clerks. Hendrickson's daughter was not able to practice law with the firm at that time because she was not a member of the Rar, and thus her work as a law clerk could not perfect the alleged agreement. Therefore we do not reach the point at which the Davis rationale applies. In appeals from orders granting summary judgment, the standard of review is to resolve all factual disputes in favor of the appellant, against whom summary iudgment was granted. forward The party with opposing summary judgment must substantial material fact. evidence raising Stepanek v. Kober Const. an issue come of (Mont. 1981), 625 P.2d 51, 52, 38 St.Rep. 385, 386. Viewing the record in the light most favorable to Bishop, we do not find evidence to show the existence of an enforceable contract with Hendrickson to hire Debbie. Accordingly, we affirm the order of the District Court. We Concur:
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