                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0185n.06
                            Filed: March 9, 2009

                                         No. 07-2416

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


CONVERGE, INC.,                                )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
TOPY AMERICA, INC.,                            )   EASTERN DISTRICT OF MICHIGAN
                                               )
       Defendant-Appellant.                    )




        Before: DAUGHTREY and McKEAGUE, Circuit Judges; VAN TATENHOVE,*
District Judge.




       PER CURIAM.           The litigation in this case arises directly from a settlement

agreement entered into by the parties, plaintiff Converge, Inc., and defendant Topy

America, Inc., and indirectly from a contract under which Converge was to provide

consulting services to Topy America and to solicit sales orders for the steel and aluminum

wheels that Topy America produced for use in the automotive industry. The consulting

agreement also contemplated that if Converge secured orders from two particular

automotive companies, Ford Motor Company and Daimler Chrysler, Topy America would



       *
       The Hon. Gregory Van Tatenhove, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 07-2416
Converge, Inc. v. Topy America, Inc.

pay Converge additional fees. Although Converge procured orders from both companies,

no fees were paid. As a result, Converge filed suit alleging breach of contract and claiming

damages under theories of quantum meruit and estoppel. The district court dismissed the

contract claim but allowed Converge to move forward with its quantum meruit and estoppel

claims. The parties then entered into a settlement agreement purporting to resolve those

claims and dismissing the underlying complaint. That settlement agreement forms the

basis for the instant action, in which Converge claimed that Topy America underpaid

commissions under the terms of the agreement because in calculating the amount due, it

did not include certain “surcharges” paid by Ford Motor Company on orders obtained by

Converge. In addition to alleging breach of contract, Converge also sought damages

under the Michigan Sales Representative Commission Act, Michigan. Comp. Laws

§600.2961, which permits the award of double damages to sales representatives whose

commissions are withheld beyond the termination of a sales commission contract. Topy

America counterclaimed for specific performance of a provision in the settlement

agreement calling for the exchange of mutual releases. Upon cross-motions for summary

judgment, the district court granted Converge’s motion in full, finding that under the clear

terms of the contract, Topy America had underpaid Converge and that Topy America was

also liable for double damages under the Act. The district court also denied Topy

America’s cross-motion. Topy America now appeals both decisions of the district court.


       We conclude that the district court was correct in holding that, under the terms of

the settlement agreement, Topy America underpaid the commissions due. We also agree

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that because Topy America was the first party to breach the underlying contract, Topy’s

cross -claim for specific performance was properly dismissed. We cannot agree, however,

that the Michigan Sales Representative Commissions Act is applicable to the settlement

agreement at issue in this case. For that reason, we affirm the district court’s order in part,

reverse in part, and remand for a recalculation of damages.


                    FACTUAL AND PROCEDURAL BACKGROUND


       The following facts are not in dispute. The plaintiff, Converge, Inc., does business

as a manufacturer’s representative, procuring contracts with automobile manufacturers for

companies like Topy America that supply the automobile industry. In 1998, Topy America

and Converge entered into a consulting agreement that called for Topy America to pay

Converge a monthly fee for its marketing services. The consulting agreement also

provided that if, during its term, Topy America entered into sales contracts with either

Daimler Chrysler or Ford Motor Company to supply wheels, Topy America would enter into

a further “agreement with [Converge] to pay [Converge] a fee in such amount as [the

parties] agree.”


       During the term of the consulting contract, Topy America secured sales contracts

with both Chrysler and Ford, but no further agreement was made between Topy America

and Converge regarding additional fees. Consequently, in 2004, Converge filed suit

against Topy America seeking fees related to the Chrysler and Ford sales contracts and

alleging breach of contract, estoppel, and quantum meruit theories of recovery. Topy

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America filed a motion for summary judgment, and the district court granted it as to the

contract claim, holding that the relevant portion of the consulting agreement was an

unenforceable “agreement to agree,” but the court allowed the quantum meruit and

estoppel claims to proceed.


       Converge and Topy America then successfully undertook to settle the remaining

quantum merit and estoppel claims in an agreement approved by the district court. The

settlement agreement provided, in relevant part, that:


       1. The [underlying] case is dismissed with prejudice with each party to bear
       its own costs and expenses.
       2. Written mutual releases of all claims related to the issues in this suit will
       be drafted and executed in good faith.
       3. Defendant will pay Plaintiff a commission of one percent (1.0%) of gross
       sales on the sales of certain wheels during a certain time period as follows:
              a. The time period begins in 2003 at the inception of the Defendant’s
       provision of wheels to Ford (FMC) and Daimler Chyrsler (DCX).
                                             ...
              e. As to both FMC and DCX wheels:
                    i. The gross sales price upon which the commission is
       calculated shall be measured by the price of the “base steel wheel” sold . .
       ..
                                             ...
       9. This agreement supercedes all earlier commission agreements or
       arrangements between the parties.


(Emphasis added.) As a result of the settlement agreement and in the absence of any

objection to it, the district court dismissed the underlying suit.


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       Subsequently, the parties exchanged communications regarding the mutual

releases contemplated by the settlement agreement and, in connection with the releases,

they also exchanged drafts of a more detailed settlement agreement. Topy America also

paid Converge what Topy America deemed to be the full amount of “past due”

commissions. The payment, however, was less than Converge thought was correct under

the terms of the settlement agreement and, as a result, the parties never executed mutual

releases or further executed an additional settlement agreement. Instead, after some

back-and-forth communication regarding the amount of the “past due” payment, Converge

filed the instant suit against Topy America alleging breach of the settlement agreement,

as well as a statutory claim under the Michigan Sales Representative Commission Act,

Michigan. Comp. Laws § 600.2961, which provides special protections, including double

damages, to sales representatives seeking to collect commissions from a principal.


       The parties’ dispute relates to whether or not certain payments that Ford Motor

Company made to Topy America to compensate Topy America for a market increase in

the price of steel should be calculated into the commissions called for under the settlement

agreement. In 2004 and 2005, a general market increase in the price of steel, the major

component of Topy America’s wheels, caused the company to seek increased

compensation from Chrysler and Ford. Both customers agreed to pay the additional cost

but, initially, they structured the increased payments differently. Chrysler incorporated the

cost of the supplements into the contract price for the base steel wheel, while Ford simply

paid Topy America a lump sum in the form of a “surcharge” but did not increase the per-

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piece contract price. In 2007, Ford changed its method of payment to mirror Chryslers’s,

i.e., instead of a surcharge, Ford increased the per piece contract price for the base steel

wheel.


         Topy America and Converge agree that the “commission of one percent (1.0%) of

gross sales on the sales of certain wheels” specified in the settlement agreement included

the per-piece increase in the contract price set by Chrysler and, starting in 2007, by Ford,

but they disagree as to whether the surcharges Ford paid in 2005 and 2006 should be

included in the calculation of the commissions. Converge contends that the surcharge is

part of the “gross sales” for the wheels and therefore should be included, whereas Topy

America contends that such a reading is precluded by the provision of the settlement

agreement that “[t]he gross sales price upon which the commission is calculated shall be

measured by the price of the ‘base steel wheel’ sold.” According to Converge’s calculation,

the actual amount in dispute (excluding damages under the Michigan Sales Representative

Commission Act and attorneys’ fees, costs, and interest) is $ 60,303.78.


         In response to Converge’s complaint, Topy America filed a counterclaim seeking a

declaration of rights as to amounts due under the settlement agreement and specific

performance of the provision calling for the exchange of mutual releases. Upon cross-

motions for summary judgment, the district court granted summary judgment to Converge

and denied summary judgment to Topy America. The court held that under the clear terms

of the settlement agreement, the Ford surcharges should be included in the “gross sales”


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calculation. The court further held that the Michigan Sales Representative Commission

Act was applicable to the settlement agreement and that Converge was due to collect

damages under the Act in twice the amount of commissions owed or $100,000, whichever

was less, as well as attorneys’ fees and costs. Topy America now appeals that decision.


                                           DISCUSSION


       We review a district court’s grant of summary judgment de novo.1 See Michigan Bell

Tel. Co. v. MFS Intelenet of Michigan, Inc., 339 F.3d 428, 433 (6th Cir. 2003). Summary

judgment is appropriate where “there is no genuine issue as to any material fact and ... the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).




       1
           Although the district court clearly decided the instant case on cross-motions for summary
judgment, Converge urges this court to review the decision for abuse of discretion, pointing to our
decision in Therma-Scan v. Thermoscan, 217 F.3d 414 (6th Cir. 2000). In Therma-Scan, the parties
to a trademark infringement suit came to a verbal agreement settling the case at the urging of the
district judge presiding over the case. See 217 F.3d at 416-418. After the parties informed the judge
of the agreement, the judge orally outlined the agreement on the record and directed the parties to
formalize the agreement in writing. See id. But, when the parties attempted to reduce the agreement
to writing, they were unable to agree on the terms. See id. Upon a motion to enforce the settlement
agreement, the district judge granted the motion, forced the objecting party to sign a written
agreement that it contended was not representative of its understanding of the verbal agreement, and
dismissed the trademark infringement suit with prejudice. See id. We reviewed the district court’s
decision for an abuse of discretion and reversed. See id. at 421.
         Thus, the procedural posture of Therma-Scan is clearly distinguishable from the instant case.
The decision at issue there was upon a motion for enforcement of a settlement agreement made
within the context of the original suit that gave rise to the settlement. By contrast, the decision here
was in response to a motion for summary judgment in a breach of contract suit separate from the suit
that gave rise to the settlement agreement at issue. There simply is no question that the correct
standard of review in this case is the same as that for any grant of summary judgment – de novo.
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       The district court succinctly summarized the law governing interpretation of the

settlement agreement, as follows:


       Under Michigan law, which the parties have agreed governs the instant
       dispute, “[a]n agreement to settle a pending lawsuit is a contract and is to be
       governed by the legal principles applicable to the construction and
       interpretation of contracts.” Kloian v. Domino’s Pizza L.L.C., 273 Mich. App.
       449, 452 (2006). “The primary goal of contract interpretation is to honor the
       intent of the parties.” Old Kent Bank v. Sobczak, 243 Mich. App. 57, 63
       (2000). This entails a reading of the contract as a whole and an application
       of its clear language. Id. “If the provision is clear and unambiguous, the
       terms are to be taken and understood in their plain, ordinary, and popular
       sense.” Michigan Mut. Ins. Co. v. Dowell, 204 Mich. App. 81, 87 (1994).
       “Courts are governed by what the parties said and did, and not merely by
       their unexpressed subjective intent.” Fletcher v. Bd. of Educ. of Sch. Dist.
       Fractional No. 5, 323 Mich. 343, 348 (1948).


       We agree with the district court’s conclusion that, on its face, the language of the

contract is unambiguous and allows for the inclusion of the Ford surcharge payments for

steel in the calculation of the “commission of 1% of the gross sales of certain wheels,”

measured by the “price of the base steel wheel sold.” As the district court explained, the

ordinary meaning of “gross sales” is total sales. BLACK’S LAW DICTIONARY (8th ed. 2004).

Nevertheless, Topy America insists on appeal that the caveat that “[t]he gross sales price

upon which the commission is calculated shall be measured by the price of the ‘base steel

wheel’ sold” modifies the common definition of gross sales such that the per piece price

governs. We find this argument unpersuasive. The “price” of the “‘base steel wheel’ sold”

is not limited to the per-piece price alone. On the contrary, “price” is generally defined as

“the amount of money or other consideration asked for or given in exchange for something


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07-2416

else.” Black’s Law Dictionary (8th ed. 2004).2 Here, the Ford surcharge payments fit easily

into this definition – the surcharges are part of the amount of money that was asked for and

given in exchange for the base steel wheels. This conclusion is underscored by the

inclusion of the word “sold.” The price of the wheel that was in fact sold to Ford certainly

includes the surcharges negotiated in order to compensate Topy America for the increased

price of the steel used in the manufacture of the wheels.


       Topy America points to extrinsic evidence that, it argues, tends to show that at the

time the settlement was agreed upon,“price” was understood by the parties to be limited

to the per-piece price. We conclude, however, that the district court was correct in holding

that because this evidence would contradict the clear terms of the contract, specifically by

narrowing the broad terms “gross sales” and “price” to the much narrower term “piece

price,” it is barred by the parol evidence rule. See UAW-GM Human Resource Center v.

KSL Recreation Corp., 579 N.W.2d 411, 414 (Mich. App. 1998) (“The parol evidence rule

may be summarized as follows: parol evidence of contract negotiations, or of prior or

contemporaneous agreements that contradict or vary the written contract, is not admissible




       2
         Topy America argues that referencing dictionary definitions is improper, but it is clear that
a court may refer to a dictionary to ascertain the ordinary meaning of a term. See Cole v. Auto-
Owners Ins. Co., 723 N.W. 2d 922, 924 (Mich. App. 2006) (“Unless otherwise defined, contractual
language is given its plain and ordinary meaning. To determine the ordinary meaning of a term, [the
court] may refer to a dictionary.”).
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to vary a contract which is clear and unambiguous.”) (internal quotations, citation and

alteration omitted).3


III. Michigan Sales Representative Commission Act


       The Michigan Sales Representative Commission Act reads in relevant part:


       (1) As used in this section:
       (a) “Commission” means compensation accruing to a sales representative
       for payment by a principal, the rate of which is expressed as a percentage
       of the amount of orders or sales or as a percentage of the dollar amount of
       profits.
                                            ...
       (d) “Principal” means a person that does either of the following:
              (i) Manufacturers, produces, imports, sells or distributes a
              product in this state.
              (I) Contracts with a sales representative to solicit orders for or
              sell a product in this state.




       3
         The defendant’s reliance on the Michigan Supreme Court’s somewhat relaxed application
of the parol evidence rule in Goodwin, Inc. v. Coe, 220 N.W.2d 664, 671 (Mich.), vacated in
part on other grounds, 224 N.W.2d 53 (Mich. 1974) (“Where an ambiguity may exist in a
contract, extrinsic evidence is admissible to prove the existence of an ambiguity.”), is
unavailing. In Union Oil Company v. Newton, 245 N.W. 2d 11, 12 (Mich. 1976), the
Michigan Supreme Court retreated from its broad ruling in Goodwin by holding that when
facing a parol evidence issue, “the real question is whether the proffered parol evidence
is inconsistent with the written language. If there is no inconsistency, the parol evidence
is admissible.” See also Michigan Nat’l. Bank of Detroit v. Holland-Dozier-Holland Sound
Studios, 250 N.W.2d 532, 533 (Mich. App. 1977) (observing that Newton is a “surreptitious
reversal” of Goodwin); County of Oakland v. City of Detroit, 265 N.W.2d 130, 134 (Mich.
App. 1978) (same). The Michigan courts later explained that by “inconsistent” the Newton
court meant “contradictory.” See Michigan Nat’l. Bank, 250 N.W.2d at 534.
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Converge, Inc. v. Topy America Corp.
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       (e) “Sales representative” means a person who contracts with or is
       employed by a principal for the solicitation of orders or sale of goods and is
       paid, in whole or in part, by commission . . . .
       (2) The terms of the contract between the principal and sales representative
       shall determine when a commission becomes due.. . .
       (4) All commissions that are due at the time of termination of a contract
       between a sales representative and principal shall be paid within 45 days
       after the date of termination. Commissions that become due after the
       termination date shall be paid within 45 days after the date on which the
       commission became due.
       (5) A principal who fails to comply with this section is liable to the sales
       representative for both of the following:
              (a) Actual damages caused by the failure to pay the
              commissions when due.
              (b) If the principal is found to have intentionally failed to pay
              the commission when due, an amount equal to 2 times the
              amount of commissions due but not paid as required by this
              section or $100,000.00, whichever is less.


       (6) If a sales representative brings a cause of action pursuant to this section,
       the court shall award to the prevailing party reasonable attorney fees and
       court costs . . . .


Michigan. Comp. Laws § 600.2961.


       The district court reasoned that the statute was applicable to the case at hand

because, in the underlying lawsuit, “Plaintiff and Defendant enjoyed a sales

representative/principal relationship” and “the parties were contemplating entering into a

commission agreement to satisfy the ‘agreement to agree’ provision in the original contract”

and, also, because the settlement agreement, an outgrowth of the quantum meruit claim




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Converge, Inc. v. Topy America Corp.
07-2416

remaining from the original lawsuit, provided for specific commission rates and timetables

for past and future sales resulting from Converge’s solicitation work.


       On appeal, Topy America strenuously challenges this conclusion, based on four

arguments. First, it contends that under the express terms of the statute, the Act is

inapplicable in this case because the settlement agreement is not a contract employing

Converge to solicit orders or sell products but, instead, is a settlement of past litigation in

which the amount of the settlement happens to be expressed as a commission. As a result,

Topy America contends, there is no principal/sales representative relationship between the

parties. Second, the defendant argues that the underlying contract has no import in the

analysis, both because the court has already held that the only contractual provision

arguably relating to commissions is an unenforceable agreement to agree and because

the settlement agreement specifically indicates that it supercedes all previous agreements.

Third, Topy America asserts that even if there was a principal/sales representative

relationship created in the original contract, the Act is inapplicable because it applies only

when commissions remain unpaid at the “termination” of the contract, and the settlement

agreement has not “terminated.”        Finally, Topy America makes a policy argument,

contending that the application of the Act to the instant case is inconsistent with a policy

encouraging settlements.


       The application of the statute to a settlement agreement of the type at issue here

is a novel situation and, therefore, there is no controlling case law from the Michigan courts


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upon which to rely in our review of the district court’s ruling on this issue. However, we

agree with the defendant that the district court’s consideration of the parties’ past contract

was unjustified, given that the settlement agreement specifically “supercede[d]” the original

contract. Moreover, because the district court held that commissions were not due under

the terms of the original contract, it was error to rely on the original contract for the finding

that Converge is a “sales representative” within the meaning of the statute, i.e., one who

is “paid, in whole or in part, by commission.” Mich. Comp. Laws § 600.2961(1)(e).


       Likewise, we find no basis for applying the Act to the settlement agreement,

because the statute clearly contemplates a contract that sets up a principal/sales

representative relationship and defines when commissions are due and in what amounts.

In contrast, the settlement agreement here has an entirely different purpose: specifically,

to settle a quantum meruit claim without the need for further litigation. Because the

quantum meruit claim is based on Converge’s solicitation of sales on behalf of Topy

America, and because the settlement amount is expressed in terms of a commission, there

may appear to be an overlap between the terms of the settlement agreement and the type

of contract contemplated in the statute. But the distinctions between the two create an

uneasy, if not impossible, fit between the terms of the settlement agreement and the

statutory language.


       The most obvious example of this misfit is the statutory requirement that “[a]ll

commissions that are due at the time of termination of a contract between a sales


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representative and principal shall be paid within 45 days after the date of termination.”

Mich. Comp. Laws § 600.2961(4). One does not speak of a “termination” in connection

with a settlement agreement precisely because it is not the type of contract contemplated

by the statute. In addition, the terms of the settlement agreement do not clearly establish

that Converge is a “sales representative,” that is, one who is paid for his work by

commission. Mich. Comp. Laws § 600.2961(1)(e). Although there are “commissions” due

Converge under the settlement agreement, they are not, strictly speaking, in payment for

the successful solicitation of orders but as the quid pro quo for settlement of the lawsuit.

Hence, based on the plain language of the Act and in the absence of any authority for the

proposition that the Michigan legislature intended the Act to apply to such instruments as

a court-approved settlement agreement, we conclude that the district court erred in its

determination that Topy America was liable under the Act and reverse that portion of the

court’s judgment.


IV. Cross-Claim


       Finally, Topy America contends that the district court erred in failing to address its

counterclaim for specific performance of the exchange of mutual releases under the

settlement agreement. But, because we have found that Topy America had wrongfully

withheld payment due to Converge under the terms of the settlement agreement, clearly

there is no basis upon which Topy America can pursue its claim for specific performance

of the agreement. See Jones v. Berkey, 148 N.W. 375, 378 (Mich. 1914) (“He who


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commits the first substantial breach of contract cannot maintain an action against the other

contracting party for a subsequent failure on his part to perform.”). Thus, there was no

error in the district court’s omission of a ruling on this claim.


                                       CONCLUSION


       For the reasons set out above, we VACATE the order of the district court, entered

on October 30, 2007, awarding attorneys’ fees and costs in favor of Converge; we AFFIRM

in part and REVERSE in part the judgment entered by the court on October 7, 2007; and

we REMAND for a redetermination of the damages awarded in Converge’s favor.




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