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### STATE OF MICHIGAN

COURT OF APPEALS

RKA PETROLEUM COMPANIES, INC.,

Plaintiff-Appellant, UNPUBLISHED April 14, 2016

v No. 324172 Wayne Circuit Court

JOSEPH KRATOCHVIL and ATLAS OIL COMPANY, LC No. 13-000728-CK

Defendants-Appellees.

Before: G LEICHER , P.J., and J ANSEN and S HAPIRO , JJ.

J ANSEN

, J. ( concurring in part and dissenting in part ).

I concur with the majority’s conclusion that summary dispositi on was proper with regard to plaintiff’s tortious interference claim against Atlas Oil Co mpany (Atlas). However, I disagree with the majority’s conclusion t hat there exists a genuine issu e of material fact with regard to whether defendant Joseph Kratochvil breached the nonsolicitatio n agreement with plaintiff.

A party claiming breach of contract must show “(1) that there was a contract, (2) that the other party breached the contract, and (3) that the party asser ting breach of contract suffered damages as a result of the breach.” Doe v Henry Ford Health Sys , 308 Mich App 592, 601; 865 NW2d 915 (2014). With regard to dama ges, “[t]he measure of dam ages in relation to a breach of contract is the pecuniary value of the benefits the aggrieved p arty would have received if the

contract had not been breached.” Id . (citation and quotation marks omitted). “ ‘The party asserting a breach of contract has the burden of proving its da mages with reasonable certainty, and may recover only those damages that are the direct, natural , and proximate result of the

breach.’ ” Id . (citation omitted). The damages may not be conjectural or sp eculative. Id . at 602.

I believe that plaintiff failed to present evidence showing t hat Kratochvil directly or indirectly hired or solicited Laurie Lamphear, or encouraged La mphear to leave plaintiff’s employ. As noted by the majorit y, Kratochvil did not begin wor king for Atlas until November 5, 2012, which was three days after Lamphear was interviewed and approximately one month after Sara Crooks began soliciting Lamphear to work at Atlas. Lamphe ar testified that she did not remember having any conversations with Kratochvil during the ti me she was in meetings and having conversations with Atlas employees. In fact, Lamphear w as surprised to see Kratochvil’s

name on her offer letter since she did not interview with him a nd had not spoken with him during-2- the interview process. Thus, it is clear that Lamphear and Kra tochvil did not have any direct contact before Lamphear accepted employment with Atlas.

With regard to the actions Kratochvil took, Kratochvil signed an internal offer letter request form, signed the written offer letter, and called Lamph ear on the telephone to give her a welcome aboard message. However, these actions did not constit ute direct or indirect solicitation or encouragement to l eave plaintiff’s employ since Lamphear testified that she received the offer letter and telephone call after she decided to work for Atlas and communicated her acceptance. Therefore, I di sagree with the majority’s conc lusion that the offer letter inspired Lamphear to join Kratochvil’s team as Lamphear had already made the decision to leave plaintiff’s employ by the time she saw the letter. Furthermore , the evidence indicates that Kratochvil took these actions as a mere formality and that Lamp hear would in fact be working under other employees of Atlas. There is no evidence that Krat ochvil took part in formulating the offer. Kratochvil testified that he was merely notified re garding the recommendation to hire Lamphear, and Crooks testified that Kratochvil “had minimal, if nothing, to do with the interviewing or the offer letter.” Thus, the fact that Kratoch vil signed both documents and gave Lamphear a “welcome aboard” message on the telephone after Lamp hear had already accepted employment did not constitute solicitation or encouragement to leave plaintiff’s employ. Kratochvil and Lamphear also ha d a telephone conversation after Lamphear rescinded her acceptance of Atlas’s employment offer, but neither Kratochvil nor Lamphear recalled the specifics of the telephone convers ation. Therefore, I disagree with the majority’s conclusion that Kratochvil encouraged Lamphear to reconsider her decision to re scind her acceptance.

Plaintiff also presented evide nce indicating Kratochvil’s behi nd the scenes participation with regard to Lamphear’s employment at Atlas. Plaintiff prese nted an e-mail from Crooks to Kirk Haggarty, in which Crooks stated that she met with Dan Rav id and Kratochvil, and the three of them discussed the objectives, structure, logistical r equirements, and progress tracking for Lamphear’s position. Plaintiff also presented an e-mail in which Kratochvil agreed to help complete an IT user request form and a training schedule for La mphear after she accepted employment. The e-mails do not specify what decisions Kratochv il in particular made with regard to the structure of Lamphear’s employment. There is no indication that Lamphear knew about Kratochvil’s participati on in structuring her position or that his participat ion influenced her decision in any way. Thus, although the e-mails indicate that Kratochvil aided Ravid and Crooks in structuring the details of La mphear’s position, Kratochvil’s actions did not constitute solicitation or encouragement for Lamphear to leave plaintiff s ince Kratochvil’s actions were not designed to get Lamphear to switch jobs, and there is no indica tion that Lamphear was aware of Kratochvil’s role in designing her job.

Plaintiff also failed to present evidence that Kratochvil dire ctly or indirectly hired Lamphear. Although Kratochvil’s name appeared on the offer let ter, a review of the record in this case reveals that Crooks, Haggarty, and Sam Simon made the decision to hire Lamphear. While Crooks was involved in the solicitation process from the outset, an e-mail from a woman named Laila Powers to Crooks and Haggarty refers to the fact th at Haggarty had to approve the offer letter, and an e-mail from Simon to Haggarty gives approv al to hire Lamphear. There is no indication in the record that Kratochvil had any authority to h ire Lamphear, and he only signed the offer letter as a formality because he was the director of the department in which Lamphear would work. Indeed, Lamphear accepted employment with Atlas be fore receiving the offer-3- letter. Thus, Kratochvil did not directly or indirectly hire L amphear in violation of his nonsolicitation agreement. Accord ingly, I do not believe that plaintiff presented evidence establishing a genuine issue of material fact with regard to wh ether Kratochvil breached the nonsolicitation agreement.

Furthermore, even assuming that plaintiff could show that Krat ochvil breached the nonsolicitation agreemen t, plaintiff did not p resent evidence e stablishing that it suffered damages because of the breach. In its responses to defendants’ request to admit with follow-up interrogatories and request for production of documents, plaint iff indicated that its damages included $50,000 in attorney fees and $52,000 to retain Lamphea r for two years. However, plaintiff is not entitled to d amages on either ground. “ ‘Awar ds of costs and attorney fees are recoverable only where specifica lly authorized by a statute, a court rule, or a recognized exception.’ ” Holton v Ward , 303 Mich App 718, 734; 847 NW2d 1 (2014) (citation omitted). Plaintiff failed to specify which statute, court rule, or recog nized exception entitles it to an award of attorney fees. See id

.

Plaintiff also did not establish that it is entitled to damage s with regard to the costs to retain Lamphear. Lamphear never left plaintiff’s employ. Alth ough plaintiff increased Lamphear’s salary by $25,000 after she informed her supervisor that she was leaving, Lamphear

testified that the increase in h er salary was immaterial to her decision, and she communicated this to her supervisor. Contrary to the majority’s assertion, Lamphear’s deposition testimony was the only evidence in the record regarding the increase in h er salary, and Lamphear’s testimony was not contradicted by any other evidence in the rec ord. Thus, plaintiff failed to present evidence that Kratochvil’s actions caused plaintiff to incur damages with regard to the increase in Lamphear’s salary since Lamphear communicated to pl aintiff that the increase in her salary was immaterial to her decision. Therefore, the trial co urt properly granted summary disposition in favor of Kratochvil. See New Freedom Mtg Corp v Globe Mtg Corp , 281 Mich App 63, 69-70; 761 NW2d 832 (2008) (“[I]f there are no damages, it is appropriate to grant summary disposition on fraud, misrepresentation, breach of contract , and negligence claims.”) (emphasis added). Accordingly, I would affirm the trial court’ s order granting summary disposition in favor of defendants.

/s/ Kathleen Jansen