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DECEMBER 22, 2006; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2005-CA-002557-MR

DR ROBERT D. HILGERS AND J. MARK AHEARN

APPELLANTS

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE F. KENNETH CONLIFFE, JUDGE ACTION NO. 04-CI-004771

INTERNATIONAL GYNECOLOGIC CANCER SOCIETY, INC.; GILLIAN M. THOMAS, M.D.; AND EDWARD L. TRIMBLE, M.D.

APPELLEES

OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; ACREE, JUDGE; KNOPF,1 SENIOR JUDGE. Robert D. Hilgers, M.D. and J. Mark Ahearn,

COMBS, CHIEF JUDGE:

III, appeal from an adverse summary judgment entered in their employment contract action against International Gynecologic Cancer Society and two of its members, Gillian M. Thomas, M.D., and Edward L. Trimble, M.D. We affirm.

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Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

The material facts of this case are undisputed. International Gynecologic Cancer Society ("IGCS") is a non-

The

profit organization formed in 1986 and incorporated under the laws of Canada. It was established to promote the expertise of

its members in preventing, treating, and studying gynecologic cancer. IGCS has an international membership of physicians and

scientists and is governed by a council comprised of a rotating set of elected officers and members who serve on a volunteer basis. Dr. Thomas is a resident of Toronto, Canada. She

served as president of IGCS from October 2002 until October 2004. Dr. Trimble is a resident of Maryland and has served as

the IGCS secretary-treasurer since January 2001. Dr. Hilgers is a resident of Louisville. He served as In

the IGCS secretary-treasurer from 1993 until January 2001.

July 2000, during Hilgers's tenure as secretary-treasurer, ICGS opened an administrative office in Louisville. decided to hire a part-time executive director. for that new position and was selected. The IGCS council Hilgers applied

He began his part-time Prior to

employment as executive director on January 1, 2001.

2001, IGCS had no paid staff positions; it was led and operated entirely by volunteers from its international membership. Mark Ahearn, a Kentucky resident, was hired by Hilgers in November 2002 to serve as the IGCS director of development.

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Hilgers also hired an administrative secretary, Erica Riley, to work in the Louisville office. By early 2003, IGCS was facing a financial deficit that required its operating expenses -- including employee salaries -- to be paid out of the organization's reserve account. The IGCS financial committee met to discuss the

deteriorating financial condition and decided to undertake a formal performance evaluation of the employees. On January 16, 2004, the IGCS council met in Atlanta to discuss the results of the employee evaluations. Hilgers's

performance as executive director was soundly criticized, and the council members assessed his work for the organization as being wholly unacceptable. Hilgers from his position. They voted unanimously to terminate The council also reviewed Ahearn's Ahearn had failed to

performance as director of development.

meet his modest fund-raising goal for 2003 -- having raised no funds whatsoever. The council voted unanimously to terminate However, it decided to retain Erica

his employment as well.

Riley in the Louisville office. On January 20, 2004, Trimble sent letters to Hilgers and Ahearn to advise them of the council's decision to terminate their employment. Within a few days, Hilgers requested a former

IGCS president, Robert C. Young, M.D., to prepare correspondence summarizing the discussions in which the two of them had

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participated concerning Hilgers's employment.

On February 2,

2004, Young complied with that request and wrote a detailed letter to Hilgers, "confirming what I understand to be in the good faith agreement that was negotiated with you on behalf of the Society." On June 7, 2004, Hilgers and Ahearn filed a complaint in Jefferson Circuit Court in which each alleged a breach of his employment contract against IGCS. Attached to the complaint as

an exhibit was the correspondence that Hilgers had received from Young in February 2004. Hilgers alleged that this

correspondence confirmed the existence of a five-year employment contract with IGCS. Hilgers and Ahearn also named Trimble and

Thomas as individual defendants asserting against them several claims: tortious interference with contractual relations,

interference with prospective business advantage, intentional interference with proper job performance, and violation of a fiduciary duty owed to IGCS. IGCS, Trimble, and Thomas moved for summary judgment on August 2005. They contended that the plaintiffs' breach of

contract claims had to fail as a matter of law because they were unable to demonstrate the existence of any employment agreement with IGCS. Even assuming the existence of an employment

agreement, IGCS claimed that it had good cause to terminate their employment. They argued that the separate tort claims

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asserted against Trimble and Thomas individually were not recognized in Kentucky under the circumstances involved in this case. In response, Hilgers contended that although he had no formal, written agreement with IGCS, his evidence established the existence of an oral employment agreement for a five-year term. Ahearn argued that while his written employment agreement

failed to provide for a definite term as to duration, the parties had expected his employment to continue for at least two years. Additionally, Hilgers and Ahearn contended that

outstanding issues of material fact regarding their work performance precluded entry of summary judgment on their breach of contract claims. Finally, Hilgers and Ahearn argued that the

separate tort claims asserted against Thomas and Trimble were viable under the circumstances. Citing the provisions of Kentucky's Statute of Frauds, the Jefferson Circuit Court concluded that IGCS, Trimble, and Thomas were entitled to judgment as a matter of law and dismissed the complaint. On November 21, 2005, the trial court This appeal

denied the motion to alter, amend, or vacate. followed.

On appeal, Hilgers contests the court's adverse ruling against him with respect to his breach of contract claim. In

conjunction with Ahearn, he also contests the court's ruling

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dismissing their claims that Thomas and Trimble are individually liable for alleged tortious interference with contractual relations. We shall address each issue in turn. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56.03 The trial court must

view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Serv. Ctr., On appeal, the standard

Inc., 807 S.W.2d 476, 480 (Ky. 1991).

of review is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996). It is undisputed that a written employment agreement between IGCS and Hilgers was never executed by the parties. Nevertheless, Hilgers contends that he had an oral agreement with IGCS for a period of employment extending from January 2001 until January 2006. The Statute of Frauds renders an oral contract unenforceable if it is impossible to perform that contract

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within one year from the time of its making. Statutes (KRS) 371.010.

Kentucky Revised

The purported agreement upon which

Hilgers relies undoubtedly could not have been performed within one year. Accordingly, the agreement would be unenforceable

unless evidenced by a writing sufficient to satisfy the specific requirements of Kentucky's Statute of Frauds, which provides as follows: [n]o action shall be brought to charge any person . . . [u]pon any agreement that is not to be performed within one year from the making thereof . . . unless the . . . agreement or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent. KRS 371.010(7). Hilgers contends that the documentary evidence attached to his complaint adequately satisfies the writing requirement. He relies primarily upon the February 2004 letter

written in response to his request by former IGCS president, Dr. Robert Young. The letter contains statements indicating that

the parties had reached a general understanding regarding Hilgers's role at IGCS. It anticipates that Hilgers's salary

would increase in proportion to the probable increase in his commitment of time to the activities of IGCS over a five-year term. However, even if the document were deemed to satisfy the

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writing requirement, it was not "signed by the party to be charged therewith, or by his authorized agent." In order to bind IGCS for statements made by Young, a former IGCS president, it must have appeared that he had the authority to bind the organization at the time that he signed the letter and that he intended to act pursuant to that authority. Hilgers has not alleged that Young was authorized to The letter was not

sign a letter on behalf of IGCS in 2004.

written on IGCS letterhead, and there is no indication that Young intended to act as an agent of IGCS in responding to Hilger's request. Consequently, there is no evidence that the

letter was signed by the party to be charged (IGCS) or by an authorized agent. Computer Servicenters, Inc. v. Beacon It does not

Manufacturing Co., 328 F.Supp. 653 (D.S.C. 1970).

constitute a writing sufficient to satisfy the requirements of the Statute of Frauds as Young had no authority to bind IGCS as its agent. Hilgers contends that other correspondence from Young (prepared by Young during his term as president) -- along with other documents -- also confirm the existence of his employment contract. He urged the trial court to consider the other

documents both independently and in conjunction with the correspondence of 2004.

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It is true that multiple documents may be considered together to satisfy the Statute of Frauds. However, the rule in

Kentucky is that several writings may be considered together only when the documents clearly refer one to the other without recourse to parole evidence to establish a connection. See

Antle v. Haas, 251 S.W.2d 290 (Ky. 1952) and Nicholson v. Clark, 802 S.W.2d 934 (Ky.App. 1990). Further, the contract terms must Nicholson,

be ascertainable independently of parole evidence. supra at 938.

Two of the additional documents that Hilgers relies upon were authored by Hilgers himself. None of the documents

presented by Hilgers refers to the correspondence dated 2004; they neither independently nor adequately reference the essential terms of the purported contract with reasonable certainty. One of the documents is unsigned, and one of them

explains that the council believed that an employment contract would be appropriate only after the executive director achieved full-time status

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