United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
Dennis Saylor, IV United States District Judge
an action for breach of contract. Plaintiff WLC Commercial
Property Services, Inc., contends that it entered into an
oral contract with defendant Wal-Mart Stores, Inc., under
which it gave Wal-Mart a discount on a snow-removal contract
for the 2014-2015 snow season in exchange for a written
contract covering the next two seasons. Wal-Mart terminated
the written contract after the second season. Wal-Mart
contends that the written contract contained a termination
clause, which it properly invoked, and that therefore this
action must be dismissed.
the written contract controls, and because it did contain a
termination clause, Wal-Mart properly terminated the
contract. Furthermore, and in any event, the statute of
frauds bars enforcement of the claimed oral contract.
Defendant's motion to dismiss will therefore be granted.
following facts are set forth as alleged in the amended
2014, Wal-Mart Stores, Inc., opened a new store at 770
Broadway in Saugus, Massachusetts. (Am. Compl. ¶ 6). The
store manager at that time was Mark Gullotti. (Id.
¶ 7). At some point, Gullotti and WLC Commercial
Property Services, Inc., orally agreed that WLC would provide
snow and ice removal services for the store for the 2014-2015
snow season (that is, October 2014 through May 2015).
(Id. ¶ 7).
to the complaint, WLC offered Gullotti two payment options.
(Id. ¶ 11). Under Option 1, Wal-Mart could pay
on a “per event” basis for all the services it
actually used. (Id. ¶ 12). Under Option 2,
Wal-Mart could pay a flat fee of $140, 000 for the season if
Wal-Mart also agreed to retain WLC for the 2015-2016 and
2016-2017 seasons at $140, 000 per season. (Id.
¶ 13). Before Gullotti selected a payment option, and
before he could memorialize the agreement in writing (which
he had promised to do), he “went on a leave of some
nature and was unavailable” for the duration of the
2014-2015 season. (Id. ¶¶ 10-11).
WLC provided snow-removal services to Wal-Mart for that
season. (Id. ¶ 14). Gullotti returned in the
spring of 2015, and the parties resumed negotiations.
(Id. ¶ 15). Because the season had been
completed, the per-event price for 2014-2015 was known, and
came to $280, 000. (Id. ¶ 16). Gullotti
understandably chose pricing Option 2, paid WLC $140, 000 for
the 2014-2015 season, and agreed to contract with WLC for the
next two seasons. (Id.). No such contract, however,
was executed at that time.
store manager, Brendan Quirk, took over from Gullotti in the
summer of 2015. (Id. ¶ 17). WLC negotiated the
contract for the 2015-2016 and 2016-2017 seasons with
Stephanie Garman, the Facilities Manager at Wal-Mart's
headquarters. (Id. ¶ 18). Eventually, on
October 20, 2015, Wal-Mart awarded the contract to WLC.
(Id. ¶ 18, Ex. 1). The written contract was
executed by Michael Weiss for WLC on October 31, 2015, and by
Quirk for Wal-Mart on November 6, 2015. (Id. ¶
18, Ex. 2).
written contract provided, in part:
This Scope of Work shall begin on the first day of the Winter
Season, October 1st, 2015, and terminate on the last day of
the Winter Season, May 31st, 2017 (the “Term”).
This Scope of Work may be terminated by Walmart or by [WLC]
at any time upon 15 days' written notice to the other
party. If the Agreement or this Scope of Work is terminated
before the end of the Term, Walmart shall only be liable to
pay [WLC] for Services provided before the effective date of
(Id. Ex. 2 ¶ 1). The contract provided for a
price of $139, 000 per season. (Id. Ex. 2 ¶ 6).
January 25, 2016-that is, midway through the 2015-2016
season-Quirk sent a termination notice to WLC. (Id.
Ex. 3). Quirk later reaffirmed the contract through the end
of the 2015-2016 season, and WLC continued to perform
snow-removal services through the end of that season.
(Id. ¶¶ 21-22). Prior to the start of the
2016-2017 season, on September 19, 2016, WLC received ...