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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UNPUBLISHED 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: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ. 

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

 I concur with the majority’s conclusion that summary disposition was proper with regard 

to plaintiff’s tortious interference claim against Atlas Oil Company (Atlas). However, I disagree 

with the majority’s conclusion that there exists a genuine issue of material fact with regard to 

whether defendant Joseph Kratochvil breached the nonsolicitation 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 asserting 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 damages, “[t]he measure of damages in relation to a breach of 

contract is the pecuniary value of the benefits the aggrieved party 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 damages 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 speculative. Id. at 602. 

 I believe that plaintiff failed to present evidence showing that Kratochvil directly or 

indirectly hired or solicited Laurie Lamphear, or encouraged Lamphear to leave plaintiff’s 

employ. As noted by the majority, Kratochvil did not begin working 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. Lamphear testified that she did not 

remember having any conversations with Kratochvil during the time she was in meetings and 

having conversations with Atlas employees. In fact, Lamphear was surprised to see Kratochvil’s 

name on her offer letter since she did not interview with him and had not spoken with him during 
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the interview process. Thus, it is clear that Lamphear and Kratochvil 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 Lamphear on the telephone to give her a 

welcome aboard message. However, these actions did not constitute direct or indirect 

solicitation or encouragement to leave 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 disagree with the majority’s conclusion 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 Lamphear would in fact be working 

under other employees of Atlas. There is no evidence that Kratochvil took part in formulating 

the offer. Kratochvil testified that he was merely notified regarding 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 Kratochvil signed both documents and gave 

Lamphear a “welcome aboard” message on the telephone after Lamphear had already accepted 

employment did not constitute solicitation or encouragement to leave plaintiff’s employ. 

Kratochvil and Lamphear also had a telephone conversation after Lamphear rescinded her 

acceptance of Atlas’s employment offer, but neither Kratochvil nor Lamphear recalled the 

specifics of the telephone conversation. Therefore, I disagree with the majority’s conclusion that 

Kratochvil encouraged Lamphear to reconsider her decision to rescind her acceptance. 

 Plaintiff also presented evidence indicating Kratochvil’s behind the scenes participation 

with regard to Lamphear’s employment at Atlas. Plaintiff presented an e-mail from Crooks to 

Kirk Haggarty, in which Crooks stated that she met with Dan Ravid and Kratochvil, and the 

three of them discussed the objectives, structure, logistical requirements, 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 Lamphear after she accepted 

employment. The e-mails do not specify what decisions Kratochvil in particular made with 

regard to the structure of Lamphear’s employment. There is no indication that Lamphear knew 

about Kratochvil’s participation in structuring her position or that his participation influenced her 

decision in any way. Thus, although the e-mails indicate that Kratochvil aided Ravid and Crooks 

in structuring the details of Lamphear’s position, Kratochvil’s actions did not constitute 

solicitation or encouragement for Lamphear to leave plaintiff since Kratochvil’s actions were not 

designed to get Lamphear to switch jobs, and there is no indication that Lamphear was aware of 

Kratochvil’s role in designing her job. 

 Plaintiff also failed to present evidence that Kratochvil directly or indirectly hired

Lamphear. Although Kratochvil’s name appeared on the offer letter, 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 that Haggarty had to approve the 

offer letter, and an e-mail from Simon to Haggarty gives approval to hire Lamphear. There is no 

indication in the record that Kratochvil had any authority to hire 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 before receiving the offer 
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letter. Thus, Kratochvil did not directly or indirectly hire Lamphear in violation of his 

nonsolicitation agreement. Accordingly, I do not believe that plaintiff presented evidence 

establishing a genuine issue of material fact with regard to whether Kratochvil breached the 

nonsolicitation agreement. 

 Furthermore, even assuming that plaintiff could show that Kratochvil breached the 

nonsolicitation agreement, plaintiff did not present evidence establishing 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, plaintiff indicated that its damages 

included $50,000 in attorney fees and $52,000 to retain Lamphear for two years. However, 

plaintiff is not entitled to damages on either ground. “ ‘Awards of costs and attorney fees are 

recoverable only where specifically 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 recognized exception entitles it to an award 

of attorney fees. See id. 

 Plaintiff also did not establish that it is entitled to damages with regard to the costs to 

retain Lamphear. Lamphear never left plaintiff’s employ. Although plaintiff increased 

Lamphear’s salary by $25,000 after she informed her supervisor that she was leaving, Lamphear 

testified that the increase in her 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 her salary, and Lamphear’s 

testimony was not contradicted by any other evidence in the record. 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 plaintiff that the increase in her 

salary was immaterial to her decision. Therefore, the trial court 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