Storetrax.com, Inc. v. Gurland

KENNEY, Judge. Two appeals, No. 418, September Term 2004, and No. 1047 September Term 2004, involve the same parties and arose from the same dispute between Joshua Gurland (“Gurland”) and Storetrax.com, Inc. (“Storetrax”). The appeals were argued at the same time. Because the facts and issues are interrelated, we have addressed both appeals in a single opinion to be filed in each case.

In case number 1047 (“Case I”), Storetrax appeals the judgment of the Circuit Court for ⁵⁶ Montgomery County, granting Gurland’s motion for partial summary judgment. Storetrax poses one question, which we have slightly reworded: Did the circuit court err in granting Gurland’s motion for partial summary judgment because genuine disputes of material fact exist as to whether Gurland materially breached the terms the employment agreement? We answer that question in the affirmative and shall reverse the judgment of the circuit court. In case number 418 (“Case II”), Storetrax appeals the judgment of the Circuit Court for Montgomery County, finding that Gurland had not breached his fiduciary duties to the corporation.

Storetrax poses three questions for our review, which we have reworded as follows: A. Did the circuit court commit reversible error in applying the substantive law of Maryland to Storetrax’s breach of fiduciary duty claim, rather than the substantive law of the state of incorporation, Delaware? B. Did the circuit court err in finding that Gurland did not breach his fiduciary duties to the corporation? C. Did the circuit court err in denying Storetrax the opportunity to cross-examine Gurland regarding a statement he had made to another member of Storetrax’s board of directors? For the following reasons, we answer each of these questions in the negative and shall affirm the circuit court.

FACTUAL AND PROCEDURAL HISTORY In 1997, Joshua Gurland conceived of the idea for an Internet based computer database containing commercial property listings. In January 1998, he incorporated Storetrax.com, originally a Maryland corporation, for that purpose. Gurland operated Storetrax as its sole employee until 1999. Desiring to grow the corporation, in 1999, Gurland began discussing with potential investors the idea of issuing stock to raise capital.

Storetrax was reincorporated in Delaware, and ⁵⁷ on October 25, 1999, Storetrax, through Gurland as its president and CEO, entered into a stock purchase agreement with several investors. The stock purchase agreement provided for an Employment Agreement (“the Agreement”) between Gurland and Storetrax, which was also executed on October 25, 1999. The Agreement contained the following relevant provisions: 1. Employment and Term.

The Company agrees to employ the Employee and the Employee agrees to work for the Company, subject to the terms and conditions below, for a term of one (1) year, beginning on the date first written above and ending on the first anniversary of such date (the “Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods unless either party hereto shall notify the other in writing not less than (90) days prior to the expiration of the Initial Term or any renewal term.... 2. Compensation; Benefits. Subject to the terms and conditions of this Agreement the Company shall pay to the Employee a base salary as set forth on Schedule A (as the same may be increased from time to time, the “Base Salary”), attached hereto and made a part hereof, payable in accordance with the Company’s regular payroll policies....

On at least an annual basis, the Company shall review the Employee’s performance and may make increases to the Base Salary if the Executive Committee of the Company’s Board of Directors determines that any such increase is warranted.... 4. Title; Duties. The Employee shall initially be employed as President and Chief Executive Officer of the Company. The Employee shall diligently, conscientiously and exclusively devote his full time and attention and his best efforts to discharge the duties assigned to him by the Company---- The Employee acknowledges that his title and duties may change in the event that a prospective substantial investor in the Company specifically requires such a change as a condition to investment in the Company. ⁵⁸ 6.

Termination by the Company. (a) The Company shall have the right to terminate this Agreement, with or without Cause (as defined below), at any time during the term of this Agreement by giving written notice to the Employee. The termination shall become effective on the date specified in the notice, which termination date shall not be a date prior to the date ten (10) days following the date of the notice of termination itself. In the event that this Agreement is terminated by the Company for Cause (as defined below), the Company shall pay the Employee the Base Salary due him under this Agreement (plus all accrued and unpaid benefits and reimbursable expenses) through the day on which such a termination is effective, in accordance with the Company’s normal payroll practices.

In the event that the Employee is terminated without Cause, the Company shall, subject to the provisions of this Agreement and in lieu of any other payment, pay to the Employee compensation equal to twelve (12) months of the Employee’s Base Salary as of the date of termination (plus any earned bonuses and all accrued and unpaid benefits and reimbursable expenses), payable in accordance with normal payroll practices. (b) For purposes of this Section 6, “Cause” shall mean (i) a material continuing breach by the Employee of any covenant or condition hereunder or a material failure of performance by the Employee under this Agreement following written notice to Employee of such material continuing breach or material failure and failure by the Employee to cure the same within thirty (30) days of such notice; (ii) conviction of, or plea of nolo contendere by, the Employee of any federal, state or local felony; (iii) material violation by the Employee of the Company’s policies as set forth in the Company’s personnel handbook, if one has been adopted, or announced by Company management from time to time; (iv) the performance by the Employee of any material act or omission demonstrating an intentional or reckless disregard of the interests of the Company; (v) misappropriation or attempted misappropriation of a material business opportu ⁵⁹ nity of the Company for the benefit of the Employee; or (vi) repeated and deliberate failure to follow the direction of the Company’s Board of Directors of lawful instructions or actions. 15. Notices. Any notice expressly provided for under this Agreement shall be in writing, shall be given either manually or by mail and shall be deemed sufficiently given when actually received by the party to be notified or when mailed, if mailed by certified or registered mail, postage prepaid, addressed to such party, at their addresses as set forth below.... 16.

Governing Law. This Agreement shall be executed, construed and performed in accordance with the laws of the State of Maryland without reference to conflict of laws principles. The parties agree that the venue for any dispute hereunder will be the state or federal courts sitting in Maryland and the parties hereby agree to the exclusive jurisdiction thereof. 18. Entire Agreement; Amendments.

This Agreement constitutes and embodies the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings in connection with such subject matter. No covenant or condition not expressed in this Agreement shall affect or be effective to interpret, change or restrict this Agreement. In the event of a conflict or inconsistency between the terms of this Agreement and the Company’s policies regarding employees, the terms of this Agreement shall supersede the conflicting or inconsistent Company policies. No change, termination or attempted waiver of any of the provisions of this Agreement shall be binding unless in writing signed by the Employee and on behalf of the Company by an officer thereunto duly authorized by the Company’s Board of Directors (or its compensation committee, if one exists).

No modification, waiver, termination, rescission, discharge or cancellation of this Agreement shall affect the right of any party to enforce any other provision ⁶⁰ or to exercise any right or remedy in the event of any other default. Schedule A to the Agreement set Gurland’s initial salary at $135,000. Following execution of the Agreement, Gurland, in addition to serving as the corporation’s President and CEO, served as a director on Storetrax’s five member Board of Directors (“the Board”). In January 1999, one of the investors and co-chairman of the Board, Robert Rosenfeld, expressed interest in working for Storetrax on a full time basis and becoming Storetrax’s CEO.

Gurland agreed to relinquish that title and serve solely as the corporation’s president. In November 2000, after several of the company’s directors and officers requested an increase in compensation, a panel of four of the corporation’s vice presidents were entrusted to settle the salary requests and set a compensation schedule. Pursuant to that schedule, Gurland’s salary was decreased to $115,000, but he was provided the potential of earning an additional $50,000 worth of stock options. In early 2001, Rosenfeld resigned.

Tom McCabe was hired as Storetrax’s new CEO in April 2001, and Gurland was asked to relinquish the title of president so that McCabe could serve as both the president and CEO. Gurland agreed and assumed the title of Senior Vice President of Technology and Product Strategy. During the summer of 2001, McCabe was fired, and Beth Stewart, one of the investors and co-chairman of the Board, assumed the titles of president and CEO. Soon afterwards, Storetrax began to prepare for relocation to a new office facility.

Around that time, Gurland met with Stewart and requested an increase in salary to $150,000 per year. According to Gurland, he made the request because he thought that his salary did not reflect his value to the corporation or the number of hours he worked. He did not characterize his request for a higher salary as an ultimatum, but later said that he probably would have left the corporation had his request not been granted. ⁶¹ Through a series of emails, Stewart eventually granted Gurland’s request for an increase in salary. Stewart and Krista Di Iaconi, Storetrax’s vice president of finance and operations, however, maintain that Gurland’s demand for a salary increase came at a time when the corporation was relocating and in need of Gurland’s services to reconnect the corporation’s computer system.

Stewart claimed that the corporation acquiesced to Gurland’s ultimatum only because it could not have effectuated the move without him. As a result of Gurland’s untimely demand, the Board, in Gurland’s absence, decided to terminate Gurland upon completion of the move. After his salary was increased, Gurland requested that the Agreement be amended to reflect the change. Even though Storetrax had not notified Gurland, pursuant to sections 1 and 15 of the Agreement, that it did not wish to renew the Agreement, Stewart reported to Gurland in an email, “no one at Storetrax ([Stewart], Mark Spoto, Krista, Rob, Alan, Don) think you have a valid contract with the company, nor does any other employee have a contract.” Desiring to know if his contract was still valid, Gurland contacted several individuals at Storetrax, including the corporation’s counsel.

Counsel for Storetrax informed Gurland that he “had not draw[n] any conclusionfs] as to the current status of [the Agreement.]” In November 2001, Storetrax requested all of its employees to agree to a reduction in salary because the corporation was experiencing a cash shortage. According to Gurland, he agreed to a five to ten percent reduction in his salary, but he and Stewart never agreed on the amount of his new salary. Stewart maintains that Gurland agreed to reduce his salary to $135,000. On November 15, 2001, Stewart escorted Gurland to his car.

There, she stated: “I think it’s time for you to find a new job.” Upon further inquiry by Gurland, Stewart informed him that he was fired and instructed him to report to the office that weekend to gather his personal effects. Stewart contends that, at the time she fired Gurland, he informed her that he ⁶² “knew” that he was not entitled to severance pay. Gurland denies making that statement. Upon his termination, Gurland contacted Di Iaconi to request a letter detailing the reasons for his termination.

Gurland asked for the letter believing it was necessary to collect unemployment benefits. On November 19, 2001, Stewart sent Gurland a letter confirming his termination. The letter also stated, “as you acknowledged to me during our discussion on Thursday night, November 15, Storetrax does not owe you any other payments, including severance payments.” Moreover, Stewart reminded Gurland that, despite his termination, he was still a member of the Board, explaining: As you know your seat on the Board of Directors and the term of your service as a director is unaffected by the conclusion of your employment at Storetrax. I look forward to seeing you at the next Board meeting on December 11[ ] and remind you of your fiduciary obligations to Storetrax as a member of the Board of Directors.

Stewart did not remark on the reason for Gurland’s termination. In response, on November 30, 2001, Gurland wrote a letter to Stewart in which he acknowledged his termination. Gurland’s letter also stated, in pertinent part: I did not, on November 15[ ] or at any other time, advise you that I was not entitled to severance. In fact, quite to the contrary, I fully expect that Storetrax will honor its obligations under my employment contract—the contract that you presented to me and asked me to sign in October of 1999 in accordance with the closing of the Series A financing.

I further expect to receive my year-end bonus for 2001 that all salaried employees are receiving given that we met the goal before I was terminated. On December 11, 2001, Gurland sent a letter to the Board, in which he claimed that Stewart had not informed him of the reason for his termination. He also discussed the Agreement, indicating to the Board that he believed the Agreement was ⁶³ valid and that, under its terms, he was entitled to one year of severance pay because he had been terminated “without cause.” The December 11 letter, also stated, in relevant part: (On November 14, 2001 [Stewart] unilaterally reduced my Base Salary from $150,000 to $135,000 (retroactively to November 1, 2001) without my consent. This constitutes a breach of the Agreement and triggers the 12 months severance pay in accordance with [Section] 8b). * * * Accordingly, the Agreement is in full force and effect, and I am due the severance package set forth in [Section] 6(a).

Storetrax is in breach of the Agreement at this time, as I did not receive my regular paycheck on November 30, 2001. I regret that we have come to this point, and sincerely hope that we can resolve the severance issue amicably and in a timely fashion. However, I have consulted an attorney and will not hesitate to avail myself of every possible remedy in the event of a dispute. If the issue remains unresolved as of December 21, 2001 I will instruct my attorney to proceed.

On December 20, 2001, Storetrax responded to Gurland’s December 11 letter through counsel. Storetrax indicated to Gurland that, due to his change of job title and downward adjustments in salary, the corporation no longer believed that the Agreement was valid. The letter avowed: “[Storetrax] believes that it owes you no severance under the employment agreement because the course of dealing between you and the Company shows that the compensation aspects of the agreement are of no force and effect.” Moreover, .Storetrax announced to Gurland that, had the Agreement still been in effect, it would have informed him that he was fired for cause. The letter provided, in relevant part: If you had told Ms. Stewart that you believed that the employment agreement was in effect, and that you were owed a year’s severance (which could cripple the Company), Ms. Stewart would have informed you that you were being terminated for “cause” under the employment agreement.

In an effort to be sensitive to you, Ms. Stewart did not raise ⁶⁴ the issue of “cause” for your termination, because she did not think it was necessary. The Company desires to part with you graciously, and in a manner that allows the Company to give references to your prospective employers. While you were taking the position that no severance was owed there was no need to tell you that “cause” existed for your termination, and there was no reason to discuss the details of “cause” for termination. Again, the Company does not intend to belabor all of the facts bearing on your job performance.

You know that your job performance has been repeatedly called to your attention verbally and in emails, by various persons including Ms. Stewart. Many senior people at Storetrax have worked with you over the last 2 years. All of the downward revisions to your job description, title and salary have come at the request of senior management based upon your ability to successfully execute various tasks. Among other things, (1) you have refused to direct your energies in ways that would contribute to the Company (e.g., sales) insisting instead upon performing many menial technology tasks, (2) you disconnected the Company’s server in mid-August and refused to hook it up until the Company agreed to your demand of a salary increase, and (3) you have undermined employee morale and encouraged efforts detrimental to the Company (e.g., the November 16, 2001 employee letter to the Board).

Therefore, the Company believes that, even if the employment agreement were in effect, it has “cause” to terminate your employment under Sections 6(b)(i) (“material failure of performance”) and 6(b)(iv) (“reckless disregard of the interests of the Company”) of the employment agreement. ... If you desire to litigate this issue, the Company is prepared to defend itself, as well as to assert any counterclaims it may have against you for breach of your fiduciary duties as an executive and Director of the Company. The senior management of Storetrax and the Board of Directors (excepting yourself) have each reviewed this letter and the facts surrounding your demand for severance. Ev ⁶⁵ eryone concurs with the Company’s refusal to consider any severance package.

In January 2002, Alan Wurtzel, a member of Storetrax’s Board, reportedly spoke with Gurland in an effort to settle the dispute over the severance package. 1 According to Wurtzel, he tendered a settlement offer on behalf of Storetrax and Gurland assured him that he would consider the offer and would “call [Wurtzel] again to continue the discussions.” Gurland never responded to the settlement offer, and on January 31, 2002, he filed a complaint in the Circuit Court for Montgomery County, alleging that Storetrax breached the Agreement by failing to pay him severance after terminating him “without cause.” Gurland sought $150,000 in damages. The complaint indicated Storetrax’s current address and was mailed to the corporation’s resident agent in Maryland. Gurland also filed a motion for summary judgment along with the complaint. Afterwards, Gurland went to Storetrax’s Maryland office twice, but he never informed anyone there, including members of the Board, that he had filed the complaint.

In addition, even though the Maryland agent received the complaint and motion for summary judgment and properly forwarded it to the corporation’s resident agent in Delaware, Storetrax was not informed of the complaint and the motion for summary judgement in time to file a timely answer or opposition to the motion. As a result, on March 8, 2002, the circuit court granted Gurland’s motion for summary judgment by default and entered a judgment against Storetrax in the amount of $150,000. Ten days later, Gurland petitioned for writ of garnishment to attach Storetrax’s bank account. The writ was granted on March 19, 2002. ⁶⁶ Also on March 19, 2002, Storetrax received the notice of judgment, which was the first occasion the corporation received actual notice that Gurland had filed the breach of contract lawsuit.

The following day, Storetrax was contacted by its bank and informed that its account was being garnished for $150,000. On March 21, 2002, Storetrax wrote a letter to Gurland, requesting that he voluntarily set aside the default judgment and writ of garnishment in order to permit Storetrax to defend the cause of action on the merits. Gurland denied both requests. On April 3, 2002, Storetrax filed a motion for revision of judgment pursuant to Maryland Rule 2-535, requesting that the court set aside the summary judgment by default.

Storetrax also filed a motion in the circuit court to quash the writ of garnishment. Following a hearing, on April 29, 2002, the circuit court denied the motion for revision of judgment. The court also denied the motion to quash the writ of garnishment. Storetrax appealed, and in an unreported opinion, Storetrax.com, Inc., v. Gurland, No. 0561, September Term, 2002 (filed August 1, 2003), a panel of this Court held that the circuit court had abused its discretion in denying Storetrax’s motion to set aside the summary judgment by default.

The summary judgment by default was vacated and the case was remanded for further proceedings. On November 8, 2002, Storetrax filed a complaint in the Circuit Court for Montgomery County (Case II), alleging that, by failing to inform the corporation of his pending lawsuit and by obtaining a summary judgment by default and writ of garnishment against the corporation, Gurland breached his fiduciary duties that he owed to the corporation as a member of the Board. Storetrax also alleged that Gurland’s failure to consent to lifting the summary judgment by default and to relinquish the writ of garnishment, in spite of the Board’s requests to do so, constituted a continuing breach of his fiduciary obligations. Storetrax moved for summary judgment, seeking $250,000 in compensatory damages, among oth ⁶⁷ er relief.

Gurland timely filed an answer and opposition to Storetrax’s motion for summary judgment. A bench trial in Case II commenced on March 1, 2004. The circuit court found in favor of Gurland, and Storetrax noted a timely appeal to this Court on May 5, 2004. Meanwhile, on remand of the breach of contract action (Case I), the circuit court scheduled a jury trial to commence June 3, 2004.

On May 19, 2004, Gurland moved for partial summary judgment on Storetrax’s defense that it terminated him “for cause.” In support of his motion, he argued that it was undisputed that Storetrax never provided him with written notice that he was being terminated “for cause,” as required by the express terms of the Agreement. Storetrax opposed the motion, and in support of its opposition, attached as Exhibit A its December 20, 2001 letter to Gurland. The circuit court heard oral argument on the motion immediately before the trial began and granted Gurland’s motion for partial summary judgment. The case, thereafter, proceeded to trial.

The jury found that Gurland had not waived, and was not otherwise estopped from, asserting his rights under the Agreement, and returned a verdict in favor of Gurland in the amount of $150,000. The judgment was entered on June 10, 2004. This timely appeal of the court’s grant of Gurland’s motion for partial summary judgment followed. DISCUSSION I. Case No. 1047 Storetrax asserts that the circuit court erred in granting Gurland’s motion for partial summary judgment because genuine disputes of material fact exist as to whether Gurland was terminated “for cause” under the Agreement.

Storetrax does not dispute that, at the time Stewart terminated Gurland, she did not inform him that he was being terminated “for cause,” or that Gurland was not provided written notice or an opportunity to cure any alleged deficiency prior to his termi ⁶⁸ nation. Rather, according to Storetrax, under sections 6(b)(iv) and 6(b)(vi) of the Agreement, it had no obligation to provide Gurland with notice or an opportunity to cure. Even if the Agreement required that Gurland be provided notice prior to being terminated “for cause,” Storetrax claims that Gurland’s recovery is limited to the notification period. Finally, because the termination provisions of the Agreement were not exclusive and Gurland’s actions materially breached the terms of the Agreement, Storetrax asserts that it was relieved of its contractual obligation, if any, to provide Gurland with notice prior to terminating him.

Gurland maintains that, “in nearly every instance,” the Agreement “requires not only ‘a material and continuing breach’ ... but also ‘written notice’ to [the] [e]mployee of such material and continuing breach or material failure and failure by the [e]mployee to cure the same within (30) days of such notice.” Because he never received written notice, Gurland contends that, under the Agreement, he could not have been terminated “for cause.” Alternatively, he asserts that, because Storetrax argued that the contract was no longer in force and, in Stewart’s words, “no one at Storetrax thought Mr. Gurland had a [valid] contract,” Storetrax’s contention that it terminated him “for cause” is “fanciful” and “completely illogical.” Under Maryland Rule 2-501(f), a court “shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” We review “a trial court’s grant of a motion for summary judgment de novo.” Remsburg v. Montgomery, 376 Md. 568, 579 , 831 A.2d 18 (2003). See also Todd v. Mass Trans. Admin., 373 Md. 149, 154 , 816 A.2d 930 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359 , 800 A.2d 707 (2002); Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443 , 795 A.2d 715 (2002). “The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law.

The standard of appellate review, therefore, is whether the trial court was ⁶⁹ legally correct.” Williams v. Mayor of Baltimore, 359 Md. 101, 114 , 753 A.2d 41 (2000) (internal citations omitted). When reviewing a grant of summary judgment, we first determine whether a genuine dispute of material fact exists “and only where such dispute is absent will we proceed to review determinations of law.” Remsburg, 376 Md. at 579 , 831 A.2d 18 . “In so doing, we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.” Id. at 579-80 , 831 A.2d 18 . “[T]he mere presence of a factual dispute in general will not render summary judgment improper.” Remsburg, 376 Md. at 579 , 831 A.2d 18 . As the Court explained in Lippert v. Jung, 366 Md. 221 , 783 A.2d 206 (2001), “A dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” Id. at 227 , 783 A.2d 206 (quoting Salisbury Beauty Schs. v. State Bd. of Cosmetologists, 268 Md. 32, 40 , 300 A.2d 367 (1973)) (emphasis in Lippert). Here, the Agreement provided that Storetrax could, with a minimum of ten days written notice, terminate Gurland, at any time, with or without cause.

Termination became effective upon the date provided by the notice, but no earlier than ten days following the date of the notice of termination. In the event that he was terminated for “cause,” as defined by section 6(b), Gurland was entitled to his salary due “through the day on which such termination is effective, in accordance with [Storetrax’s] normal payroll policies.” If he was terminated “without cause,” however, Gurland .was entitled to twelve months salary as of the date of termination and any earned bonuses or accrued benefits. Section 6(b) provides three alternative definitions of “cause” relevant in the instant case. First, section 6(b)(i) defines “cause” as a continuing breach of any covenant or a material failure of performance of Gurland’s obligations under the Agreement, following witten notice and failure to cure within ⁷⁰ thirty days.

Second, under section 6(b)(iv), “cause” is defined as the performance of an act or inaction “demonstrating an intentional or reckless disregard of the interests of [Storetrax].” Finally, section 6(b)(vi) defines “cause” as a “repeated and deliberate failure to follow the direction of [Storetrax’s] Board of Directors of lawful instructions or actions.” Maryland adheres to the objective law of contract interpretation and construction. Taylor v. NationsBank, N.A., 365 Md. 166, 178 , 776 A.2d 645 (2001). Contract interpretation, like statutory interpretation, begins with the plain meaning of the contractual terms. Fister ex re.

Estate of Fister v. Allstate Life Ins. Co., 366 Md. 201, 210 , 783 A.2d 194 (2001). “The clear and unambiguous language of an agreement will not give way to what a party thought the agreement meant or was intended to mean.” County Comm’rs of Charles County v. St. Charles Assocs. Ltd. P’ship, 366 Md. 426, 444 , 784 A.2d 545 (2001). See also Hasten Constr.

Co., Inc. v. Rod Enters., Inc., 268 Md. 318, 329 , 301 A.2d 12 (1973). “The construction of contractual language is, in the first instance, ‘a question of law for the court to resolve.’ ” Lerner Corp. v. Three Winthrop Props., Inc., 124 Md.App. 679, 684-85 , 723 A.2d 560 (1999) (quoting Shapiro v. Massengill, 105 Md.App. 743, 754 , 661 A.2d 202 (1995)). The plain and unambiguous language of section 6 evidences that the definitions of “cause” are mutually exclusive. Moreover, aside from the section 6(b)(i) definition of cause, none of the other definitions requires notice and an opportunity to cure. Gurland was entitled to written notice of termination under section 6(a), but he was entitled to an opportunity to cure only under section 6(b)(i).

Upon written notice, Storetrax could have terminated Gurland for cause under sections 6(b)(ii)-(vi) without an opportunity to cure. Therefore, we reject Gurland’s contention that he could not have been terminated “for cause” because he was not provided written notice and an attendant opportunity to cure any performance deficiency. Although section 6(a) of the Agreement required Storetrax to provide, at a minimum, ten days notice of termi ⁷¹ nation, Storetrax was not required to state the reason for Gurland’s termination for cause and, if terminated “for cause” under sections 6(b)(ii)-(vi), he was not entitled to an opportunity to cure. The lack of notice could reflect on the credibility of Storetrax’s assertion that it terminated Gurland for “cause,” but does not preclude the argument.

We find Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle, Inc., 271 A.D.2d 636 , 706 N.Y.S.2d 724 (2000), instructive. At issue in Delvecchio was an employment contract giving the corporate employer the power to terminate the employee with cause, upon a minimum of five days written notice. The corporation was also permitted to terminate the employee without cause, at any time, but was required to pay $250,000 in liquidated damages if it did so. Approximately one year into the five year contract period, the employer terminated the employee without providing written notice.

Thereafter, the employee filed a breach of contract claim and asserted a right to recover pursuant to the liquidated damages clause. A trial court later granted the employee’s motion for summary judgment, concluding that, because the employee was not provided notice, he was, necessarily, terminated without cause and entitled to recover the $250,000. Reversing the trial court’s grant of summary judgment, the New York Supreme Court Appellate Division concluded that there were disputes of fact regarding whether the employee was terminated with or without cause. Moreover, the appellate court opined: Contrary to the [trial] court’s conclusion, the corporate defendants’ failure to provide written notice to the [employee] did not, under the circumstances of this case, render the termination for cause ineffective.

Although th[e] [employer] may be liable to the [employee] for certain damages for failing to provide notice, th[e] [employer] did not forfeit [its] right to terminate the agreement for cause.... [T]he contract in this case did not afford the [employee] an opportunity to cure and, for the most part, his alleged misfeasance ⁷² was not, in any event, curable. Thus, in this case, notice was not a material term of the contract. Id. at 726 (internal citations omitted). In opposition to Gurland’s motion for partial summary judgment, Storetrax attached the affidavits of Stewart and Di Iaeoni.

Both claimed that Gurland, who was in charge of reinstalling the corporation’s computer system following a move to a new office, refused to complete the installation if his demand for an increase in salary was not granted. In addition, Di Iaeoni stated that Gurland was asked to take part in “executive management calls on weekends,” but she estimated that Gurland “missed over 50% of the regular conference calls that were held, as he was only willing to work a standard 40 hour work week.” Furthermore, Di Iaeoni asserted that Gurland took credit for drafting an anonymous letter to the Board, which called for Stewart’s removal and decried her as incompetent, untrustworthy, and a liar. Viewing the evidence, as we must, in a light most favorable to Storetrax, we are persuaded that there is a genuine dispute of material fact concerning whether Gurland was terminated for “cause” under sections 6(b)(iv) and (vi) of the Agreement. It is undisputed that Storetrax did not provide Gurland with written notice prior to his termination.

However, even if Storetrax breached the Agreement by not providing written notice, so long as it terminated him for “cause” under any of the provisions of section 6(b)(ii)-(vi), Gurland’s damages for that breach would be limited to his salary for the duration of the notice period. See Enterprise Wheel & Car Corp. v. United Steelworkers, 269 F.2d 327, 331 , (4th Cir.1959), rev’d on other grounds, 363 U.S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 (1960) (“[W]here a contract of employment contains a provision allowing termination after a period of notice has been given[,] ... damages for wrongful discharge are limited to the notice period since at the expiration of the period the right of the employer to discharge the employee is unrestricted.”); Odell v. Humble Oil & Refining Co., 201 F.2d 123, 128 (10th Cir.1953) (“Where a contract of employment expressly empowers an employer to terminate the contract upon giving notice, ⁷³ recovery for wrongful breach is limited to the notice period.”); Reiver v. Murdoch & Walsh, P.A., 625 F.Supp. 998, 1010 (D.Del.1985) (“[A] ninety day notice provision in a termination clause limits the terminated party’s damages to benefits he is entitled to receive under the contract during the notice period.”). See also, 24 Williston on Contracts §§ 54:48, 66:6 (4th ed. 1990 & Supp. 2005). Storetrax also contends that there is a dispute of fact concerning whether Gurland materially breached the terms of the Agreement, thereby relieving Storetrax of its contractual obligations, including the obligation to provide written notice of termination.

The Court of Appeals has stated that, “[ujnless a contract provision for termination for breach is in terms exclusive, it is a cumulative remedy of termination for ‘a breach which is material, or which goes to the root of the matter or essence of the contract.’ ” Foster-Porter Enters., Inc., v. De Mare, 198 Md. 20, 36 , 81 A.2d 325 (1951) (quoting Williston on Contracts § 842(i) (Rev. ed.) (internal citations omitted)). It is well settled that, regardless of the inclusion of a non-exclusive termination clause in an employment contract, an employer is excused from performance, where the employee materially breaches the contract terms. See Regal Savings Bank, FSB v. Sachs, 352 Md. 356, 363 , 722 A.2d 377 (1999) (“For the breach of duty by an employee to extinguish the obligation of an employer to pay future compensation under a contract of employment, the breach, even if willful, must be material.”). In Chai Management, Inc., v. Leibowitz, 50 Md.App. 504 , 439 A.2d 34 (1982), this Court considered “[w]hether an employer who fires an employee for cause (upon a material breach of contract) must be required to pay the employee for the notice period designated by the employment contract!.]” Id. at 505 , 439 A.2d 34 .

In that case, Leibowitz was employed by Chai Management pursuant to an employment contract, under which either party could terminate the contract upon providing sixty days notice. Leibowitz was terminated, without notice, for “gross negligence, insubordination, and ... ⁷⁴ breach of contract.” Id. at 506 , 439 A.2d 34 . Leibowitz thereafter sued Chai Management for breach of contract and sought, as damages, the amount due for the sixty day notice period. The trial court granted Leibowitz’s motion for summary judgment.

On appeal, this Court determined that there were triable issues of fact concerning whether Leibowitz had breached the employment contract prior to his termination. We stated: Here, because we must accept as true the inference that the employee had breached the contract, we are faced with a situation where a breaching employee is subsequently seeking the benefit of one of the provisions of the contract. It is as if the employee has breached the provision that requires him to go to work and then sues under the provision which specifies his salary. Once an employee has breached the contract, he cannot subsequently force the employer to perform except in unusual circumstances, e.g., if the employee has a vested right to commissions which accrue at a date subsequent to his breach. “There must be compliance with a provision in a contract of employment ... for a stipulated notice of the termination of the employment, and a discharge or abandonment without the required notice is unlawful except where valid grounds authorizing the termination of the employment exist ...

A party claiming the benefit of a notice under the contract of employment must show compliance on his part with the terms of the contract.” 56 C.J.S. Master & Servant § 32(c) (emphasis added) (footnotes omitted). “Accordingly, an employee rightfully discharged for incompetency, misconduct, or other reason forfeits the balance of his pay which might have been due him after the fulfillment of the contract.” 53 Am.Jur.2d Master & Servant § 45 (footnote omitted). Id. at 509, 439 A.2d 34 . Thus, we concluded that, if Chai Management could demonstrate that Leibowitz had materially breached the contract, he would not be entitled to compensa ⁷⁵ tion for the sixty day notice period. Id. at 518-14 , 439 A.2d 34 .

As previously explained, the termination provisions in section 6 of the Agreement are mutually exclusive of one another, i.e., upon ten days written notice, Storetrax could terminate Gurland “for cause” under sections 6(b)(ii)-(vi), without providing Gurland with an opportunity to cure. Moreover, the termination provisions found in section 6(b) are not exclusive of the grounds for termination found at contract law generally. 2 See Tricat Indust., Inc., v. Harper, 131 Md.App. 89, 114 , 748 A.2d 48 (2000) (concluding that “the exclusivity requirement was not met by the Agreement in question,” which, among other things, “did not expressly purport to be exclusive”). If the statements alleged in the affidavits submitted by Storetrax in opposition to Gurland’s motion for summary judgment were believed, a reasonable finder of fact could conclude that Gurland materially breached the terms of the Agreement, thereby relieving Storetrax of its obligations to provide notice and severance compensation and permitting it to immediately terminate Gurland. Finally, we consider Gurland’s assertion that Storetrax is judicially estopped from arguing that it terminated him “for cause.” In support of his argument, Gurland directs our attention to Storetrax’s motion for a temporary restraining ⁷⁶ order staying the writ of garnishment.

In that motion, Storetrax alleged the meritorious defense of waiver and claimed that it “did not carry out the formality of terminating [Gurland] for ‘cause,’ ” because it did not believe there continued to be a valid contract. “ ‘ “Judicial estoppel,” sometimes known as the “doctrine against inconsistent positions,” and “estoppel by admission,” prevents “a party who successfully pursued a position in a prior legal proceeding from asserting a contrary position in a later proceeding.” ’ ” Vogel v. Touhey, 151 Md.App. 682, 707 , 828 A.2d 268 (2003) (quoting Gordon v. Posner, 142 Md.App. 399, 424 , 790 A.2d 675 (2002)). While there is no “exhaustive formula for determining the applicability of judicial estoppel,” the Supreme Court of the United States has articulated