HEALTH CALL OF DETROIT V ATRIUM HOME & HEALTH CAREAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
HEALTH CALL OF DETROIT, d/b/a JADELLS,
February 1, 2005
ATRIUM HOME & HEALTH CARE SERVICES,
INC., KATRINA JOHNSON, LPN, DWIGHT
ROBINSON, LPN, and DAMITA BORNER,
Wayne Circuit Court
LC No. 01-135282-CK
Official Reported Version
Before: Zahra, P.J., and Talbot and Wilder, JJ.
Plaintiff Health Call of Detroit appeals as of right from that portion of the trial court's
order granting partial summary disposition in favor of defendants pursuant to MCR
2.116(C)(10), which dismissed counts I and II in part.1 We reverse and remand for reinstatement
of plaintiff 's dismissed claims and, because we are required to follow the holding in Environair,
Inc v Steelcase, Inc, 190 Mich App 289; 475 NW2d 366 (1991), our remand is with instructions
that while plaintiff 's claims in counts I and II may proceed, plaintiff is to be limited to the
recovery of nominal damages to the extent its damages were caused by the loss of plaintiff 's atwill contract to provide home nursing services to Cierra Harris. Further, pursuant to MCR
7.215(J)(2), we declare a conflict with Environair and state that if we were not obligated to
follow Environair we would reverse and remand but would not limit plaintiff 's recovery of
damages on counts I and II to nominal damages as a matter of law.
The trial court also dismissed count III in its entirety, but the dismissal of that claim is not
before us on appeal.
Plaintiff is a Michigan corporation that provides nursing and medical services for home
care. Individual defendants, Katrina Johnson, Dwight Robinson, and Damita Borner, who are
licensed practical nurses, entered at-will independent contractor agreements with plaintiff in
which they agreed to provide home nursing services to plaintiff 's clients. The defendant nurses'
respective contracts contained a noncompetition clause, effective for two years following the
termination of the independent contractor agreements. As relevant to the instant case, Wendy
Williams, the mother of Cierra Harris, an infant, entered into an at-will contract with plaintiff for
the provision of twenty-four hour home nursing services to Harris. The defendant nurses
provided the contracted services to Harris under the independent contractor agreements between
the defendant nurses and plaintiff.
Plaintiff alleges that defendant Atrium Home & Health Care Services, Inc. (Atrium),
which was also in the business of providing home nursing care services, contacted defendant
Borner and urged her to terminate her contract with plaintiff and persuade defendants Johnson
and Robinson to also terminate their contracts with plaintiff, in order that Atrium could thereafter
provide home nursing care services to Harris. Plaintiff further alleges that the defendant nurses
terminated their respective independent contractor agreements with plaintiff, subsequently
contracted with Atrium, and continued to provide home nursing care services to Harris after
leaving plaintiff 's employ and contracting with Atrium.
In its complaint, plaintiff alleged in count I that Atrium tortiously interfered with
plaintiff 's contract with Borner, that Borner and Atrium tortiously interfered with plaintiff 's
contracts with Johnson and Robinson, and that Borner and Atrium tortiously interfered with
plaintiff 's contract, business relationship, and expectancies with Williams concerning Harris.
Count II alleged that the defendant nurses breached Paragraph 12 of their respective contracts,
which paragraph precluded solicitation of, or competition with, plaintiff 's clients for two years
after the expiration of their respective at-will agreements. Defendants moved for partial
summary disposition pursuant to MCR 2.116(C)(10), asserting that plaintiff as a matter of law
was limited to a recovery of nominal damages on its claims.
On count I, the trial court granted summary disposition in favor of Borner with regard to
plaintiff 's claim of tortious interference with the Harris contract, but permitted the tortious
interference claim to proceed against Atrium. Regarding count II, the trial court granted
summary disposition in favor of the defendant nurses "to the extent" "the damages [claimed by
plaintiff] are measured by the loss of the [Harris] contract." The trial court determined that such
damages were speculative because they were based on plaintiff 's loss of an at-will contract to
provide services to Harris. The parties stipulated the dismissal of all remaining claims without
prejudice, and this appeal ensued.
On appeal, a trial court's grant or denial of summary disposition is reviewed de novo.
First Public Corp v Parfet, 468 Mich 101, 104; 658 NW2d 477 (2003). This Court must review
the record in the same manner as must the trial court to determine whether the movant was
entitled to judgment as a matter of law. Morales v Auto Owners Ins Co, 458 Mich 288, 294; 582
NW2d 776 (1998). "A motion for summary disposition under MCR 2.116(C)(10) tests whether
there is factual support for a claim." Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp,
259 Mich App 315, 324; 675 NW2d 271 (2003). "When deciding a motion for summary
disposition, a court must consider the pleadings, affidavits, depositions, admissions and other
documentary evidence submitted in the light most favorable to the nonmoving party." Id.
We first note that the trial court erred in granting a partial dismissal of plaintiff 's claims
for tortious interference with contract and breach of contract. In Patillo v Equitable Life
Assurance Society of the United States, 199 Mich App 450, 457; 502 NW2d 696 (1992), this
Court held that a plaintiff may properly "maintain an action for tortious interference with an atwill employment contract." Similarly, an at-will contract may properly contain a noncompetition
clause. MCL 445.774a; see also Thermatool Corp v Borzym, 227 Mich App 366, 372; 575
NW2d 334 (1998). Nevertheless, under this Court's holding in Environair, even though plaintiff
may properly proceed with these claims, plaintiff may not recover more than nominal damages
for any proven breach.
In Environair, the plaintiff company alleged that defendant Steelcase, Inc., induced a
third company, Greenheck Fan Corporation (Greenheck), to terminate an agreement under which
the plaintiff acted as Greenheck's exclusive sales agent. The exclusive sales agreement between
Environair and Greenheck was terminable at will by either party on thirty days' notice.
Environair, supra at 290-291. Plaintiff filed a complaint alleging claims of tortious interference
with a business relationship and tortious interference with a contract against Steelcase. This
Court held that recovery for damages, accruing after the date the exclusive sales contract was
terminated, would be limited to nominal damages. Id. at 291. In reaching this conclusion, the
Environair panel relied on Sepanske v Bendix Corp, 147 Mich App 819, 828-829; 384 NW2d 54
(1985). Sepanske involved a plaintiff who was awarded damages for future lost earnings on the
basis of a breach of contract claim predicated on the breach of a promise that he would be
restored to either his former position or a similar position. Id. at 822-825. However, the
Sepanske panel concluded that, because the plaintiff 's expectation was to be returned to an atwill position, "one which the employer was free to alter or terminate without consequence," the
award of damages by the jury was "pure speculation," and it remanded the case for entry of only
nominal damages in favor of the plaintiff. Id. at 829.
The Environair panel concluded that Sepanske's holding should apply to the loss of an atwill contract outside the employment context, the matter at issue in Environair:
While Sepanske involved an employment relationship, its holding
regarding the speculative nature of damages is just as applicable to a
nonemployment situation also involving an at-will contractual relationship. Just
as the employment relationship in Sepanske could have been terminated at any
time without consequence, thereby providing "no tangible basis upon which
damages may be assessed," so could the exclusive sales contract between
Environair and Greenheck. Thus, in the present case, we agree with the trial court
that there could be "no tangible basis upon which damages may be assessed" that
would be any less speculative. [Environair, supra at 294.]
As in Environair, here, in counts I and II, plaintiff seeks damages from defendants for
their alleged improper role in facilitating the termination by Williams of the at-will contract
through which plaintiff provided health care services to Harris. We conclude, therefore, that
Environair requires this Court to find that plaintiff could not recover more than nominal damages
on its breach of contract and tortious interference claims, insofar as they pertain to the
termination of the at-will contract to provide home nursing services to Harris. Respectfully,
however, we disagree with this conclusion. While it is apparent that proving damages resulting
from the termination of the at-will nursing services agreement may be difficult, "damages are not
speculative merely because they cannot be ascertained with mathematical precision. It is
sufficient if a reasonable basis for computation exists, although the result be only approximate."
Hofmann v Auto Club Ins Assn, 211 Mich App 55, 108; 535 NW2d 529 (1995) (internal citations
omitted). Moreover, the "'law . . . does not require a higher degree of certainty than the nature of
the case permits.'" Body Rustproofing, Inc v Michigan Bell Tel Co, 149 Mich App 385, 390; 385
NW2d 797 (1986), quoting Allison v Chandler, 11 Mich 542, 554 (1863). Thus, "when the
nature of the case permits only an estimation of damages or a part of the damages with certainty,
it is proper to place before the jury all the facts and circumstances which have a tendency to
show their probable amount." Body Rustproofing, supra at 391.
Here, plaintiff has alleged in count I that Atrium persuaded Borner to terminate her
agreement with plaintiff and to begin working with Atrium, that Atrium and Borner together
persuaded Johnson and Robinson to leave plaintiff 's employ for Atrium; and that Atrium
thereafter persuaded Williams to end her contract with plaintiff and to instead contract with
Atrium for the provision of home nursing services to Harris. If the finder of fact were to
conclude that Williams discontinued the contract with plaintiff and entered into the contract with
Atrium only because she wanted the care provided by the defendant nurses to continue unabated,
such a finding would support the conclusion that the termination of the home nursing services
contract had no relation to the fact that the contract was at will. Under these circumstances,
damages for the tortious interference by Atrium and Borner with the independent nursing
contracts between plaintiff and the defendant nurses, and for interference by all defendants with
the nursing services contract between plaintiff and Williams, would be neither speculative nor
uncertain, as the time during which the defendant nurses continued to provide nursing services to
Harris would operate as a basis for measuring damages. Similarly, should the fact-finder
conclude regarding count II that the defendant nurses had breached the noncompetition clause of
their respective contracts by going to work for Atrium and that Williams terminated her contract
with plaintiff and entered an agreement with Atrium only to secure continuity of care, damages
might plausibly be measured on the basis of the continued provision of care for Williams by the
defendant nurses. Therefore, were we not constrained by the holding in Environair, we would
find that plaintiff is not limited merely to the recovery of nominal damages for tortious
interference with its independent contract agreements with the defendant nurses or for breach by
the defendant nurses of the noncompetition clause of the independent contract agreements.
For the reasons articulated, we reverse the trial court's ruling partly dismissing counts I
and II and remand the case for these claims to be reinstated with the instructions that should
plaintiff prevail on these claims, plaintiff shall recover no more than nominal damages to the
extent its damages were caused by the loss of plaintiff 's at-will contract to provide home nursing
services to Cierra Harris. Were we not bound by Environair we would not so limit the damages
on these claims on remand.
We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Michael J. Talbot
/s/ Brian K. Zahra