                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0115n.06

                                              No. 13-1239                                     FILED
                                                                                        Feb 10, 2014
                            UNITED STATES COURT OF APPEALS                          DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


MARK DIETRICH,                                               )
                                                             )         ON APPEAL FROM THE
         Plaintiff-Appellant,                                )         UNITED STATES DISTRICT
                                                             )         COURT     FOR      THE
v.                                                           )         WESTERN DISTRICT OF
                                                             )         MICHIGAN
BELL, INC.,                                                  )
                                                             )                           OPINION
         Defendant-Appellee.                                 )



BEFORE:         MOORE and McKEAGUE, Circuit Judges; HELMICK, District Judge.1

        JEFFREY J. HELMICK, District Judge. We are presented with a dispute over an

employment agreement between a manufacturer and its sales representative that is silent about

termination. We must decide whether a provision in that agreement providing two years of

commission payments on any new customer procured by the representative survives termination.

Applying Michigan’s rules of contract interpretation to the particular facts in this case, we find

this compensation agreement specified a finite period of commissions on new accounts and does

not have any conflicting termination provision, so the representative is entitled to commissions

for a period after his termination. We reverse the district court’s contrary decision.

                                                    I.

        Defendant-Appellee Bell, Inc. hired Plaintiff-Appellant Mark Dietrich as an Account

Executive in late 2009. Bell manufactures folding, corrugated cardboard cartons and Mr.
*
 The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of Ohio, sitting
by designation.
Dietrich’s role was to bring in new customer accounts. When it hired Mr. Dietrich, Bell provided

him with an offer letter that spelled out certain details of the employment arrangement. The

compensation portion is at issue here:

        Your starting compensation will be $85,000 (eighty-five thousand dollars)
        annualized base wages. In addition, you will receive a commission program as
        follows:

           New Business Sales - you will receive 1.25% commission on new business
            sales in the first year of the business contract. This rate will be adjusted to
            0.75% in the second year. Subsequent years will not be eligible for
            commission.

           Commissions will be paid on a quarterly basis on shipment dollars minus
            freight. Fifteen percent (15%) of the quarterly commission dollars will be
            retained by the company and paid at year end to be trued up for returned
            product, unpaid invoices and product over 90 days old (unless terms are
            negotiated separately in the supply agreement with the customers).

            o We will guarantee a commission of $1,000 per month to be paid quarterly
              for a maximum of 24 months with the qualifier that the guaranteed
              commission in the second year of your employment will only be paid if a
              minimum of $2MM (two million dollars) in new sales is booked in your
              first year.

            o The guaranteed commissions will be deducted from actual commissions
              earned as outlined above should actual commissions exceed the
              guaranteed commission.

(R. 1 at 13.)

        During his tenure, Mr. Dietrich brought in several new accounts for Bell and Bell paid

him according to the agreement while he remained employed. In 2011, Bell terminated Mr.

Dietrich’s employment and stopped paying commissions.

        Mr. Dietrich brought this suit against Bell to recover commissions for up to two years on

each of the accounts he procured. He alleges Bell breached their contract, violated Michigan’s

Sales—Representative Commission Act, and was unjustly enriched. He moved for summary




                                                2
judgment as to the first two counts and Bell cross-moved for summary judgment as to all of Mr.

Dietrich’s claims.

       Because it determined the parties’ agreement was silent about post-termination

commissions, the district court applied the “procuring cause doctrine,” a principle of fair dealing

created to protect salespeople, to determine whether Mr. Dietrich was entitled to commissions

after his termination. Reed v. Kurdziel, 89 N.W.2d 479, 483 (Mich. 1958) (“In Michigan, as well

as in most jurisdictions, the agent is entitled to recover his commission whether or not be has

personally concluded and completed the sale, it being sufficient if his efforts were the procuring

cause of the sale.”). Nevertheless, the district court found in Bell’s favor because it determined

this doctrine only applies to the acquisition of orders, not the acquisition of customers. See

William Kehoe Assocs. v. Ind. Tube Corp., 891 F.2d 293, *2 (6th Cir. 1989) (Table) (“Under

Michigan law announced in Reed v. Kurdziel, . . . this court must conclude that it is the

acquisition of orders, not the acquisition of the customer that is protected by the ‘procuring

cause’ doctrine.”).

       Citing Lilley v. BTM Corp., 958 F.2d 746, 751 (6th Cir. 1992), the district court noted the

distinction between “customer procurement” and “sales procurement” commission arrangements.

A sales procurement salesperson is paid only on those sales he personally brings in, but a

customer procurement salesperson is paid on every purchase made by a customer the salesperson

acquired for his employer. Id. The district court concluded that the contract’s “New Business

Sales” language put Mr. Dietrich into a sales procurement role and meant “Plaintiff must have

procured all sales, even all reorders, in order to receive commissions on those sales or reorders

that were procured after his termination.” (R. 43 at 8 (citing Jack Peddie & Assocs., Inc. v.

Whitmor Mfg. Co., Inc., 980 F.2d 729, *7 (6th Cir. Dec 2, 1992) (Table) (noting that sales




                                                3
procurement salespersons are not entitled to commissions on renewal order in which they do not

participate, but finding the plaintiff was a customer procurement agent who may be entitled to

commission on renewal orders); Roberts Assocs., Inc. v. Blazer Int'l Corp., 741 F. Supp. 650,

653 (E.D. Mich. 1990) (finding that salespeople are not entitled to commissions on customer

order renewals unless they have an express contract to that effect).)

       On this reasoning, the district court declined to extend the procuring cause doctrine to

Mr. Dietrich’s claim for payment of the commissions. The court denied Mr. Dietrich’s motion

and granted judgment in favor of Bell on all claims.

                                                II.

                                                A.

       Neither party has raised a question of jurisdiction, but we must nonetheless consider

whether we have subject matter jurisdiction to decide this appeal. Answers in Genesis of

Kentucky, Inc. v. Creation Ministries Intern. Ltd., 556 F.3d 459, 465 (6th Cir. 2009). Mr.

Dietrich originally filed this action in the Kent County, Michigan, Circuit Court. Bell removed

the matter to the District Court for the Western District of Michigan, asserting that Mr. Dietrich

was a citizen of Michigan, that Bell was incorporated under the laws of South Dakota and had its

principal place of business in South Dakota, and that the amount in controversy exceeded

$75,000. (R. 1 at 2.) Mr. Dietrich did not dispute these facts or otherwise contest removal. The

district court had jurisdiction pursuant to 28 U.S.C. § 1332(a) and removal was proper pursuant

to 28 U.S.C. § 1441.

       The district court’s decision granting judgment in Bell’s favor represented the final order

of that court and disposition of the case. (Judgment Entry, R. 45.) Mr. Dietrich timely filed a

notice of appeal. This Court has jurisdiction to consider the appeal. 28 U.S.C. § 1291.




                                                 4
                                                 B.

       We review a district court’s grant of summary judgment de novo. Cockrel v. Shelby

County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). A district court may grant summary

judgment only if no genuine issue of material fact exists and one party is entitled to judgment as

a matter of law. Id.

       “Questions of contract interpretation, such as those that formed the basis of the District

Court’s grant of partial summary judgment, generally are considered to be questions of law

subject to de novo review.” Meridian Leasing, Inc. v. Associated Aviation Underwriters, Inc.,

409 F.3d 342, 346 (6th Cir. 2005) (applying Michigan law). First, as a question of law, we must

determine whether a written contract’s language is ambiguous. Klapp v. United Ins. Group

Agency, Inc., 663 N.W.2d 447, 454 (Mich. 2003). Michigan courts read contracts as a whole and

give language its ordinary and natural meaning. City of Wyandotte v. Consol. Rail Corp., 262

F.3d 581, 585 (6th Cir. 2001) (applying Michigan law). “A contract is ambiguous if the language

is susceptible to two or more reasonable interpretations.” D’Avanzo v. Wise & Marsac, P.C., 565

N.W.2d 915, 918 (Mich. Ct. App. 1997); accord Wyandotte, 262 F.3d at 585.

       Next, where the contract is clear and unambiguous, it can be resolved as a matter of law,

leaving no question for a fact finder. Wyandotte, 262 F.3d at 585. On the other hand, if the

contract’s language is ambiguous, the contracting parties’ intent is a question of fact and

extrinsic evidence is relevant in this determination. Id.

                                                 C.

       At the threshold of this analysis is the question of whether the contract specifies Bell was

to pay Mr. Dietrich commission for customer procurement or for sales procurement. Lilley, 958




                                                  5
F.2d at 751. “Whether an agent is entitled to commissions on a customer procurement or sales

procurement basis is determined by the contract between the agent and the principal.” Id.

        Mr. Dietrich contends he was a “customer procurement” sales representative; that he

brought in new customers and Bell paid him on all sales from those customers, without regard to

whether he personally booked each order. In contrast, Bell argues the contract’s language puts

him squarely in the realm of sales procurement. It stresses the word “sales” in the sentence, “you

will receive 1.25% commission on new business sales in the first year of the business contract”

and claims this means Mr. Dietrich was a “sales procurement” sales representative and is not

entitled to post-termination commissions. Bell asserts the language of the contract is

unambiguous and examining extrinsic evidence to answer this question is inappropriate.

        To determine whether Mr. Dietrich was a sales procurement or a customer procurement

representative, we read the contract as a whole, giving ordinary and natural meaning to its

language. Wyandotte, 262 F.3d at 585. The contract contains several instructive terms. First, it

appoints Mr. Dietrich as “an Account Executive reporting directly to Tom Alton, Director of

New Business Development.” (R. 1 at 13.) Second, it compensates him by both base salary and

commission for “new business sales” and, when it compensates him by commission, it does so

only for two years from the inception of the customer’s contract (at 1.25% for the first year and

then at 0.75% for the second).1 (Id.) Third, it creates a minimum commission payment, but sets a

corresponding minimum sales threshold by saying: “the guaranteed commission in the second

year of your employment will only be paid if a minimum $2MM (two million dollars) in new

sales is booked in the first year.” (Id.) And, fourth, it says: “you will be expected to travel as

necessary to generate new business opportunities and support existing customers.” (Id. at 14.)

1
 The parties do not dispute that the term “business contract” refers to the newly procured customer’s contract with
Bell, so we give that term the agreed meaning. See Restatement (Second) of Contracts § 201 (1981).



                                                        6
       Reading the contract as a whole and giving ordinary meaning to its language, Mr.

Dietrich was a “customer procurement” salesperson. By paying Mr. Dietrich 1.25% commission

for the first year after he brought in a customer, 0.75% for the second year, and no commission

thereafter, Bell incentivized Mr. Dietrich to procure new business contracts and did not

incentivize him to sell anything to customers who had been with Bell for more than two years.

This language would compel a salesperson to bring new accounts to his employer, which is the

crux of the customer procurement model. In contrast, a sales procurement contract would

typically incentivize sales without regard to the age of the customer relationship, as long as the

salesperson was responsible for procuring the individual sale. Lilley, 958 F.2d at 751 (“Sales

procurement allows an agent to recover a commission only on the specific sales that the agent

procures.”); see also Militzer v. Kal-Die Casting Corp., 200 N.W.2d 323, 325 (Mich. Ct. App.

1972) (determining the plaintiff was a customer procurement salesperson because: “McCullough

testified that plaintiff was to receive 5% on everything sold to Eaton after plaintiff had procured

Eaton for a customer even if plaintiff had done nothing in selling a particular part.”).

       Where a manufacturer establishes a commission incentive program to reward procuring

new accounts, pays the sales representative for only a limited time after the customer

procurement as the award for procuring that account, and does not require the representative to

personally book every sale, it creates a customer procurement arrangement. See, e.g., Militzer,

200 N.W.2d at 494–95. (finding the sales representative was a customer procurement salesperson

where the defendant promised its sales representative 5% commission on all sales to new

customers he procured); Pfam, Inc. v. Ind. Tube Corp., No. 06-11015, 2006 WL 3313772, *7

(E.D. Mich Nov 15, 2006) (finding an agreement to pay 3% to 5% on sales to new customers

procured was a customer procurement agreement). Such is the case here.




                                                  7
       Bell’s contention that the word “sales” ends the inquiry is incorrect. Of course, in sales

procurement mode, commissions are only paid when sales are booked. Nevertheless, the same is

true in many customer procurement relationships; even where the agent need not be personally

involved in every transaction, commissions are generally still based on sales made. E.g., Lilley,

958 F.2d at 751; Jack Peddie & Assocs., 980 F.2d 729 at *7. Either way, “sales” is a necessary

ingredient and the inclusion of the word does not help discern whether Mr. Dietrich was to be

paid on all sales generated by a customer he brought in or only on those sales he personally

procured. We must take care to avoid creating ambiguity where none exists, Smith v. Physicians

Health Plan, Inc., 514 N.W.2d 150, 157 (Mich. 1994), and allowing Bell to turn the inclusion of

the word “sales” into ambiguity over how it was to compensate Mr. Dietrich would do just that.

       As an ancillary matter, the contract’s other terms also support this reading. Mr. Dietrich

worked for the director of new business development, and his second year commission minimum

was based on whether a minimum amount of sales “is booked” (presumably by anyone) rather

than based on whether Mr. Dietrich personally booked those sales. Finally, the fact that Mr.

Dietrich would have to travel not only to generate business but also to “support existing

customers” does not change this analysis; the focus is on the commission portion of the

compensation, and this statement does not change the nature of the commission compensation.

Read as a whole, the contract is unambiguously one for customer procurement.

       According to the terms of the written agreement, then, Mr. Dietrich would be entitled to

receive two years of commissions on new customers he procured if Bell had not terminated him.

We must determine, then, whether Bell’s termination of Mr. Dietrich extinguished the two-year

commission provision or whether it survives.




                                               8
                                                   D.

        To answer the question of whether Bell’s termination of Mr. Dietrich’s employment

ended its obligation to pay commissions, we again employ contract interpretation rules to

construe the contract governing their employment relationship. Our primary role in interpreting a

contract under Michigan law is to determine and enforce the parties’ intent. Stine v. Cont’l Cas.

Co., 349 N.W.2d 127, 137 (Mich. 1984). In cases where an otherwise valid contract is

completely silent about the parties’ intentions as to one point, courts must supply a term to

resolve a dispute. Restatement (Second) of Contracts § 204. Nevertheless, “[c]ourts may not

make a new contract for parties under the guise of a construction of the contract, if doing so will

ignore the plain meaning of words chosen by the parties.” Zahn v. Kroger Co. of Mich., 764

N.W.2d 207, 211 (Mich. 2009).

        The contract says nothing regarding termination; it provides no express answer to how

the parties intended to terminate their relationship. Since the commission provision is explicit

about its two-year termination, Mr. Dietrich argues the contract is complete and we need not read

in another term. Bell, on the other hand, points to the contract’s silence on termination and asks

that we infer the procuring cause doctrine to fill this gap.

        We note that Michigan law deems an employment contract that contains no duration as

presumptively providing employment at will. Rowe v. Montgomery Ward & Co., Inc., 473

N.W.2d 268, 271 (Mich. 1991). That is, with no termination provision, an employment contract

does not continue forever, and courts presume the parties intended that either party could

terminate it at will. Nevertheless, this “presumption may be overcome by proof of an express

contract for a definite term . . . .” Id. In this case, the parties agree the contract created an at-will

employment relationship between Bell and Mr. Dietrich; Bell could terminate Mr. Dietrich’s




                                                   9
employment at its will. Bell and Mr. Dietrich disagree on whether the termination of Mr.

Dietrich’s employment terminated the two-year commission payout.

       Both sides argue that the contract is unambiguous (although, they disagree as to what it

unambiguously says). To determine whether terms are ambiguous, we read the contract as a

whole in search of the contracting parties’ intent. Haring Charter Twp. v. Cadillac, 811 N.W.2d

74, 81 (Mich. Ct. App. 2010). “Terms are ambiguous only if they cannot possibly be read

together in harmony.” Id. (citing Cole v. Ladbroke Racing Mich., Inc., 614 N.W.2d 169 (Mich.

Ct. App. 2000)). Reading the contract as a whole yields two conclusions: First, the parties

unambiguously agreed to a two-year commission structure on new accounts Mr. Dietrich brought

in. Second, because it lacks any mention of it, the contract manifests no intent as to what will

happen in the event of Bell’s termination of Mr. Dietrich.

       The district court found “[t]he parties’ agreement in this case is silent about post-

termination commissions, and the necessity for applying the procuring cause doctrine—for

inferring a principle of fair dealing—is therefore present.” (R. 43 at 7.) We disagree; this

invocation of the implied covenant of good faith and fair dealing was inappropriate because the

contract contained an express term that would be altered by reading in this term. “An implied

covenant of good faith and fair dealing in the performance of contracts is recognized by

Michigan law only where one party to the contract makes its performance a matter of its own

discretion.” Stephenson v. Allstate Ins. Co., 328 F.3d 822, 826 (6th Cir. 2003). Thus, before the

court can utilize the implied covenant of good faith and fair dealing (and invoke the procuring

cause doctrine), it must determine that the contract deferred decision on a topic, that it lacked

clarity, or that it omitted a term. Id. (quoting Hubbard Chevrolet Co. v. Gen. Motors Corp., 873

F.2d 873, 876 (5th Cir. 1989) (applying Michigan law)). “The obligation of good faith cannot be




                                                10
employed, in interpreting a contract, to override express contract terms.” Cook v. Little Caesar

Enters., Inc., 210 F.3d 653, 657 (6th Cir. 2000); accord Stephenson, 328 F.3d at 826–27. If the

contract contains the parties’ expression of their agreement, we cannot invoke the doctrine of

good faith and fair dealing to supersede that expression. Stephenson, 328 F.3d at 827.

       This turns our analysis to whether the contract contained an express term that we must

enforce or whether it made one party’s performance discretionary by being unclear, omitting a

key term, or deferring a decision. Both sides agree that the agreement says nothing about

commission payments in the event of termination of employment. Nevertheless, the commission

provision does include its own durational provision: after one year, the commission rate drops

from 1.25% to 0.75% and, after two years, it terminates entirely.

       We must, of course, take care not to read in ambiguity where none exists. Smith, 514

N.W.2d at 157. Thus, while the contract lacks a durational term or a provision dealing with post-

termination commissions, we cannot insert a duty of good faith and fair dealing (and the resultant

procuring cause doctrine) because the contract contains an express termination for the

commission payments. To read in an extra term, even if it would provide clarity, would be to

dishonor the written agreement. “This approach, where judges divine the parties’ reasonable

expectations and then rewrite the contract accordingly, is contrary to the bedrock principle of

American contract law that parties are free to contract as they see fit, and the courts are to

enforce the agreement as written absent some highly unusual circumstance, such as a contract in

violation of law or public policy.” Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41, 51, 664

N.W.2d 776, 782 (2003).

       In Militzer the defendant corporation promised the plaintiff a commission on sales to new

customers he procured and then, after the plaintiff procured a customer who was producing




                                               11
significant sales and commission checks, altered the structure to reduce the plaintiff’s

commissions. 200 N.W.2d at 495. The court said, “[i]f defendant had desired to limit plaintiff's

commission in terms of time or amount it could have done so, preferably in writing, in the

original agreement.” The same is true here; the contract promised Mr. Dietrich two years of

commissions. If Bell wanted to limit that to the longer of two years or the time of termination, it

could have done so in the agreement. Id.; See also H.J. Tucker and Assocs. V. Allied Chucker

and Eng’g Co., 595 N.W.2d 176, 183–84 (Mich. Ct. App. 1999) (“[A]fter the plaintiff in the

present case had obtained substantial orders and accounts for the defendant and after much of

plaintiff’s time and energy had already been expended, defendant decided to make a downward

“adjustment” to the plaintiff's five-percent commission.”) Where the commission provision

contained a finite term and Bell did not opt to insert an expiration on termination provision, we

cannot read one in.

       We reverse the district court’s determination on Mr. Dietrich’s breach of contract claim;

the contract entitles him to commission payments for two years on those customers he procured

for Bell (at the rates specified in the contract). We return the matter to the district court for

further proceedings consistent with this opinion.

                                                E.

       After it read the contract as not providing for ongoing commission payments, the district

court determined that Mr. Dietrich could not maintain his claim under the Sales

Representatives—Commissions Act because the Act does not supersede agreements between

parties. See APJ Assocs., Inc. v. N. Am. Philips Corp., 317 F.3d 610, 616 (6th Cir. 2003).

Because we have determined that Mr. Dietrich is entitled to commissions under the agreement




                                                12
with Bell, we reverse the district court’s order as to this claim and return it to the court for further

proceedings consistent with this opinion.

                                                  F.

        The district court denied Mr. Dietrich’s third claim, for breach of an implied contract or

unjust enrichment. He does not, however, raise a claim on appeal regarding this, so we consider

it waived. Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir. 1995).

                                                  III.

        Having determined the district court’s interpretation of the agreement was incorrect, we

must consider the proper disposition of this case. Mr. Dietrich argues we should not only reverse

the district court’s ruling on Bell’s summary judgment motion, but also reverse its ruling on his

summary judgment motion and grant judgment in his favor. Bell does not address this question.

        We have made a de novo determination of the proper contract interpretation and

concluded that, as a matter of law, the contract entitles Mr. Dietrich to commissions on accounts

he procured for two years from each customer’s contract start date. On this question, Mr.

Dietrich is entitled to judgment in his favor on both his summary judgment motion and Bell’s

cross summary judgment motion. Even though this resolves the primary contention between the

parties, the cross summary judgment motions have daylight between them; we therefore return

the matter to the district court to implement our ruling by deciding a variety of remaining factual

issues, such as which customers Mr. Dietrich procured, each customer’s business contract’s

beginning date, the amount of eligible sales, and the appropriate measure of statutory damages.

        For the reasons stated herein, we reverse the order of the district court and remand the

matter for further proceedings consistent with this opinion.




                                                  13
MCKEAGUE, Circuit Judge, dissenting.


       The Majority finds that the contract between Dietrich and Bell—which provided for

commissions on “new business sales”—unambiguously provides Dietrich with customer-

procurement commissions. I disagree with the majority’s interpretation of the contract. I would

instead find that the contract provided for sales-procurement commissions. Because the contract

is silent on the issue of post-termination commissions, I would apply the procuring cause

doctrine and affirm the judgment of the district court. I respectfully dissent.

                                                 A.

       The first issue is whether the contract promises Dietrich sales-procurement commissions

or customer-procurement commissions. See Reed v. Kurdziel, 89 N.W.2d 479, 482 (Mich. 1958)

(noting that an agent’s right to recover commissions depends upon the contract between the

agent and the company). “Customer procurement allows an agent to recover a commission for

all sales to a customer that the agent procured regardless of whether the agent was involved in

the particular sale. Sales procurement allows an agent to recover a commission only on the

specific sales that the agent procures.” Lilley v. BTM Corp., 958 F.2d 746, 751 (6th Cir. 1992).

“Subsequent sales to the same customer that are not procured by the agent [under a sales-

procurement commission] do not yield a commission.” Id.

       The contract’s plain language indicates that Dietrich was promised sales-procurement

commissions. The contract states that commissions were to be provided to Dietrich for “new

business sales.” Id. at 13, PageID # 13. Contrary to the majority opinion’s assertion, Bell does

not “turn the inclusion of the word ‘sales’ into ambiguity over how it was to compensate”

Dietrich. Maj. Op. at 8. Bell simply relies on the fact that the contract uses the term “sales”

rather than customers in arguing that it compensates Dietrich for sales procured rather than



                                                 14
customers procured. See R. 1, Contract at 13, PageID # 13. The use of the word “sales” is

highly probative of the fact that these are sales-procurement commissions, just as use of the word

“customers” would have led to the opposite conclusion. See id.

        The relevant case law further demonstrates that Dietrich’s commissions were based on

sales procurement. In Lilley v. BTM Corp., an agent was promised “a five percent commission

on sales.” 958 F.2d at 749 (emphasis added). In determining whether the promised commission

was based on sales procurement or customer procurement, the Lilley court noted that the

company stated in its answer to its complaint that the “parties had a customer procurement

contract.” Id. at 752. Despite this admission, the Lilley court still found that the overall

discussion of the promised commission as well as the plain language of the parties’ contract

pointed to the fact that the promised commission was “based on sales procurement.” Id. Similar

to the contract in Lilley, Dietrich was promised “a [1.25% and then 0.75%] commission on

sales.” See id. at 749 (emphasis added). The relevant contractual language is identical, and

Dietrich points to nothing in the record suggesting any admission by Bell concerning customer

procurement. See id. at 752. Ultimately, Dietrich’s claim that his commissions were based on

customer procurement is less convincing than the similar claim that was rejected by this court in

Lilley. See id.

        Militzer v. Kal-Die Casting Corp., 200 N.W.2d 323 (Mich. Ct. App. 1972), is also of no help to

the majority opinion. In Militzer, the contract provided that the agent would be paid “a 5% Commission

on all sales to customers he procured . . . .” Id. at 324 (emphasis added). No such contractual language

concerning “customers” exists here. In Militzer, the plain meaning of the words “customers he procured”

drove the court to conclude that the contract provided for customer-procurement commissions. See 200

N.W.2d at 324. The plain meaning of the words “new business sales” should similarly drive this court to

the conclusion that Dietrich’s commissions were based on sales procurement. See id. at 13, PageID # 13.



                                                   15
       When the contract is read as a whole, there is only one conclusion: Dietrich’s

commissions were based on sales procurement. See City of Wyandotte v. Consol. Rail Corp.,

262 F.3d 581, 585 (6th Cir. 2001). According to the contract, Dietrich had to first book two

million dollars in “new sales” before he would be paid any commissions at all. R. 1, Contract at

13, PageID # 13 (emphasis added).         Like the provision discussing the level of Dietrich’s

commissions, this two-million provision does not mention customers and instead focuses on

sales. Other contractual provisions cited as support in the majority opinion, such as to which

employee Dietrich reported and the travel associated with the job, do nothing to advance

Dietrich’s claim that the commissions were customer-procurement commissions. Because the

plain meaning of the contract and the relevant case law indicate that the commissions were based

on sales procurement, I would find that the contract unambiguously provides for sales-

procurement commissions.

                                                 B.

       The second issue is whether the contract between Dietrich and Bell contemplated post-

termination commissions.      As the majority opinion concedes, the contract “says nothing

regarding termination[.]” Maj. Op. at 9; see also id. at 10 (noting that the contract “lacks any

mention” of what would occur in the event of termination). As the district court observed, even

Dietrich himself admits that the contract “does not explicitly discuss termination.” See R. 43,

Dist. Ct. Op. at 7 n.2 (internal citation omitted). The contract is thus “silent as to entitlement to

post-termination commissions.” Fernandez v. Powerquest Boats, Inc., 798 F. Supp. 458, 460

(W.D. Mich. 1992).

       Under Michigan law, when a “contract is silent [as to post-termination commissions], the

agent is entitled to recover a commission on a sale, whether or not he personally concluded it,




                                                 16
only where it can be shown that his efforts were the ‘procuring cause.’” Id. at 461 (quoting

Roberts Assocs., Inc. v. Blazer Int’l Corp., 741 F. Supp. 650, 652 (E.D. Mich. 1990)). The

procuring cause doctrine is implied in commission-sales contracts and is based on the principle

of fair dealing. See Reed, 89 N.W.2d at 482–83; see also Jack Peddie & Assocs., Inc. v. Whitmor

Mfg. Co., Inc., 980 F.2d 729 (6th Cir. 1992) (unpublished) (applying this doctrine).          The

procuring cause doctrine applies “when a sales agent’s authority or employment is terminated

and no explicit agreement had been reached over the payment of commissions in the event of

termination.” Hardy v. Reynolds & Reynolds Co., 311 F. App’x 759, 765 (6th Cir. 2009)

(emphasis added). As to the contract between Bell and Dietrich, it is clear that it does not

contain an “explicit agreement . . . over the payment of commissions in the event of

termination.”1 Id. Therefore the district court was correct in applying the procuring cause

doctrine. See id.

       It is well-settled that under Michigan law, “it is the acquisition of orders, not the

acquisition of the customer that is protected by the ‘procuring cause’ doctrine.” William Kehoe

Assocs. v. Ind. Tube Co., 891 F.2d 293 (6th Cir. 1989) (discussing Reed, 89 N.W.2d at 479).

“Where the agent does not participate in the negotiation of a given contract of sale, the agent is

not the ‘procuring cause’ of post-termination sales, even though he may have originally

introduced the parties.” APJ Assocs., Inc. v. N. Am. Philips Corp., 317 F.3d 610, 616 (6th Cir.

2003) (citing Roberts Assocs., 741 F. Supp. at 652).

       Applying that standard here, the district court’s analysis is unassailable. “Given the

‘New Business Sales’ language of their [contract], [Dietrich] must have procured all sales, even

all reorders, in order to receive commissions on those sales or reorders that were procured after
       1
           The contract specifies distinct levels of sales-procurement commissions for two
different years, but this language does not address what would occur in the event of termination.



                                               17
his termination.” R. 43, Dist. Ct. Op. at 8, PageID # 640 (internal citations omitted). But both

parties agree that Dietrich was already compensated for the commissions on the sales that he

obtained prior to Bell terminating his employment.2 And even if Dietrich introduced Bay Valley

to Bell, both parties agree that Bay Valley’s orders were placed six months after Dietrich’s

termination. See APJ Assocs., 317 F.3d at 616.

       Finally, the district court’s analysis of Dietrich’s claims of violations under the Michigan

Sales Representative Commissions Act, Mich. Comp. Laws § 600.2961(2), of breach of implied

contract and unjust enrichment was sound because the Act does not “supersede an agreement of

the parties regarding payment of post-termination commissions.” R. 43, Dist. Ct. Op. at 9,

PageID # 641 (citing APJ Assocs., 317 F.3d at 616). Here, there is a contract between Bell and

Dietrich concerning sales-procurement commissions, and thus the Act does not supersede the

agreement between the parties. See Barber v. SMH (US), Inc., 509 N.W.2d 791, 796 (Mich. Ct.

App. 1993) (noting that courts only imply contractual terms when there is “no express contract

covering the same subject matter”). Even viewing the evidence in the in the light most favorable

to Dietrich, all of Dietrich’s claims fail as a matter of law, and the district court’s grant of

summary judgment to Bell was appropriate. I respectfully dissent.




2
 The parties agree that Dietrich’s employment was terminated because he lied to one of his
superiors.


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