HOWARD P LEVY V CORPORATE HEALTH SERV INC
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STATE OF MICHIGAN
COURT OF APPEALS
HOWARD P. LEVY, D.O.,
UNPUBLISHED
Plaintiff-Appellant,
v
CORPORATE HEALTH SYSTEM, INC., ROBERT
AMSLER, JOHN JOHNSON, ROBERTY
KILGORE, and MICHAEL TAWNEY, jointly and
severally,
No. 196300
Macomb Circuit Court
LC No. 96-001322-CK
Defendants-Appellees.
Before: Murphy, P.J., and Michael J. Kelly and Gribbs, JJ.
MICHAEL J. KELLY (concurring).
I concur in result only. While I agree that plaintiff’s case was properly dismissed because he did
not attempt to return any of the consideration defendants paid for the release, see Stefanac v
Cranbrook Educational Community (After Remand), 435 Mich 155, 164-165; 468 NW2d 56
(1990), I respectfully disagree with the majority’s conclusion that plaintiff was obligated to return to
defendants the $120,000 that had been paid for plaintiff’s Corporate Health Services (CHS) stock.
Pursuant to plaintiff’s decision to disaffiliate himself from defendants, the parties executed a
contract entitled “Settlement Agreement and Mutual Release,” which contained the following provision:
“CHS has delivered to [plaintiff] a promissory note in the amount of $120,000.00 . . . for the purchase
of his stock” (emphasis added). The contract also contained provisions whereby defendants agreed to
pay plaintiff severance pay of $330,000, and all parties agreed to a mutual release of liability. In light of
the contract’s specificity regarding the stock transaction, I believe that the $120,000 defendants paid for
plaintiff’s stock was not consideration for the release, but rather separate consideration for the stock
transaction. Moreover, because one of the primary purposes of the tender doctrine is to place the
opposing party in statu quo, Stefanac, supra at 164, tender of the stock purchase price i not
s
appropriate. If defendants were to recoup the money they paid plaintiff for his CHS stock, which
defendants subsequently sold to Occu-System at a substantial profit, defendants would obviously be
placed in a far better position than they were before the parties executed the release agreement. For
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these reasons, I would hold that plaintiff was not obligated to return the stock purchase price to
defendants as a prerequisite to commencing suit.
As to all other aspects of the majority opinion, I concur.
/s/ Michael J. Kelly
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