RICHARD D NEWSUM V WIRTZ MANUFACTURING CO INC
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD D. NEWSUM,
UNPUBLISHED
August 14, 2008
Plaintiff-Appellant,
v
WIRTZ MANUFACTURING COMPANY, INC.,
CONBRO, INC., PRECISION PLASTIC SHEET
COMPANY, AND OXMASTER, INC.,
No. 277583
St. Clair Circuit Court
LC No. 06-000534-CZ
Defendants-Appellees.
Before: Markey, P.J., and White and Wilder, JJ.
WHITE, J. (dissenting).
I respectfully dissent.
Precision Plastic Sheet Company (Precision), plaintiff’s employer under the employment
contract, ceased operations and plaintiff’s position was eliminated because of business conditions
before the five-year term of the contract was up. Once that happened, Wirtz was obligated under
the agreement as follows: “Wirtz shall use its best efforts to place the Employee in a position
with Wirtz or one of its affiliated companies under substantially the same duties and
responsibilities (compensation and benefits will remain unchanged) as set forth in this
Agreement.”
Plaintiff’s employment contract with Precision set forth four types of duties and
responsibilities for plaintiff’s position as Vice President of Business Development at Precision,
three of which were specifically sales and marketing: “Promoting the sale of and soliciting
orders for products manufactured, marketed, sold and delivered by Employer,” “Establishing,
maintaining, and servicing the accounts of Employer’s customers, and “Providing such reports,
market information, and forecasts to Employer as it may require from time to time.” The fourth
duty was “[s]uch other tasks as may be assigned . . . from time to time. . .”
A reasonable fact-finder could conclude on this record that Wirtz did not use its best
efforts to place plaintiff in a position with substantially the same duties and responsibilities.
Plaintiff testified, and a reasonable fact-finder could conclude from documentary evidence
submitted below that, despite a number of requests for clarification by plaintiff, Wirtz never
made clear what the new position, which was unnamed, would entitle. Wirtz’s communications
with plaintiff in April, August and September 2005 gave varied descriptions of the position: as
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dealing with “materials management,” a “management position, which may include
manufacturing, planning, purchasing, sales functions,” and a position “involv[ing] sales, account
management and working with the production side to coordinate the sales with production
planning and quality.” Documentary evidence plaintiff submitted below supports that defendant
Wirtz gave him varying descriptions of the position he was offered, and that Wirtz refused to
clarify what the actual responsibilities of the position would be. Beyond that, however, plaintiff
presented ample evidence from which a reasonable fact-finder could conclude that the position
descriptions Wirtz proffered were not substantially similar to the position plaintiff had held with
Precision. Plaintiff’s career, including at Precision, had been in high-level strategic sales.
Plaintiff’s counsel noted at oral argument before this Court that the position Wirtz offered
plaintiff differed from his position at Precision in that the latter had involved no production
planning, no production side work, or quality control. Plaintiff’s counsel reiterated that plaintiff
had no prior experience in these areas, and that the varied descriptions of the position at Wirtz
did include these responsibilities and thus were not substantially similar to his position at
Precision.
Plaintiff also submitted evidence below that in 2005, including in August and September,
Wirtz was in negotiations to hire a “Director of Sales and Marketing” based in Port Huron, and
that Ken Warshefski, a human resources manager at Wirtz, offered the position to John Sims, in
September or October 2005. Warshefski testified on deposition that the Director of Sales and
Marketing position with Wirtz required the same skills as the Vice-President of Business
Development position plaintiff had held with Precision. Warshefski agreed that plaintiff was
qualified for the position, and when asked why he did not offer plaintiff the position, answered
that he did not have a response.
Given this record, a reasonable fact-finder could conclude that Wirtz did not use its best
efforts to place plaintiff in a substantially similar position. A reasonable fact-finder could
conclude that the generalized position descriptions (with no title) Wirtz provided plaintiff were
not “substantially the same” as plaintiff’s duties and responsibilities as Vice President of
Business Development at Precision, notwithstanding defendant’s statement in an email to
plaintiff that “This is the type of work you performed for Conbro/Precision Plastics.”
I thus conclude that the circuit court erred in granting defendants summary disposition on
the basis that defendants offered plaintiff a substantially similar position. A genuine issue of fact
existed on this issue and the question was for a jury.
The circuit court also improperly concluded that plaintiff breached the employment
agreement by not taking the position in Port Huron. A reasonable jury could conclude that Wirtz
first breached the employment agreement, by failing to use its best efforts to place plaintiff in a
substantially similar position, and that plaintiff did not breach the agreement.
Nor do I agree with the circuit court that defendants were entitled to judgment as a matter
of law on the question whether they owed plaintiff the retirement benefits specified in the
employment contract. The employment contract does not state that plaintiff’s performance for
the full five years of the agreement was a condition precedent to entitlement of the retirement
benefits. The employment agreement states that plaintiff’s annual payment was to commence on
September 22, 2009, well after the five-year term of the agreement was to expire. On the other
hand, the agreement provides that defendants shall provide plaintiff with the retirement benefits
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“during the term of his employment,” i.e., October 12, 2002 to October 12, 2007. The two
provisions are at odds, and the contract is not unambiguous and thus susceptible to interpretation
as a matter of law. Therefore, the circuit court erred in concluding that the contract
unambiguously provides that plaintiff was to earn the payments over the course of the contract
and in granting defendants summary disposition on this issue.
I would reverse and remand for further proceedings.
/s/ Helene N. White
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