                          STATE OF MICHIGAN

                           COURT OF APPEALS



RKA PETROLEUM COMPANIES, INC.,                                     UNPUBLISHED
                                                                   April 14, 2016
               Plaintiff-Appellant,

v                                                                  No. 324172
                                                                   Wayne Circuit Court
JOSEPH KRATOCHVIL and ATLAS OIL                                    LC No. 13-000728-CK
COMPANY,

               Defendants-Appellees.


Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

JANSEN, J. (concurring in part and dissenting in part).

        I concur with the majority’s conclusion that summary disposition was proper with regard
to plaintiff’s tortious interference claim against Atlas Oil Company (Atlas). However, I disagree
with the majority’s conclusion that there exists a genuine issue of material fact with regard to
whether defendant Joseph Kratochvil breached the nonsolicitation agreement with plaintiff.

        A party claiming breach of contract must show “(1) that there was a contract, (2) that the
other party breached the contract, and (3) that the party asserting breach of contract suffered
damages as a result of the breach.” Doe v Henry Ford Health Sys, 308 Mich App 592, 601; 865
NW2d 915 (2014). With regard to damages, “[t]he measure of damages in relation to a breach of
contract is the pecuniary value of the benefits the aggrieved party would have received if the
contract had not been breached.” Id. (citation and quotation marks omitted). “ ‘The party
asserting a breach of contract has the burden of proving its damages with reasonable certainty,
and may recover only those damages that are the direct, natural, and proximate result of the
breach.’ ” Id. (citation omitted). The damages may not be conjectural or speculative. Id. at 602.

         I believe that plaintiff failed to present evidence showing that Kratochvil directly or
indirectly hired or solicited Laurie Lamphear, or encouraged Lamphear to leave plaintiff’s
employ. As noted by the majority, Kratochvil did not begin working for Atlas until November 5,
2012, which was three days after Lamphear was interviewed and approximately one month after
Sara Crooks began soliciting Lamphear to work at Atlas. Lamphear testified that she did not
remember having any conversations with Kratochvil during the time she was in meetings and
having conversations with Atlas employees. In fact, Lamphear was surprised to see Kratochvil’s
name on her offer letter since she did not interview with him and had not spoken with him during



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the interview process. Thus, it is clear that Lamphear and Kratochvil did not have any direct
contact before Lamphear accepted employment with Atlas.

        With regard to the actions Kratochvil took, Kratochvil signed an internal offer letter
request form, signed the written offer letter, and called Lamphear on the telephone to give her a
welcome aboard message. However, these actions did not constitute direct or indirect
solicitation or encouragement to leave plaintiff’s employ since Lamphear testified that she
received the offer letter and telephone call after she decided to work for Atlas and communicated
her acceptance. Therefore, I disagree with the majority’s conclusion that the offer letter inspired
Lamphear to join Kratochvil’s team as Lamphear had already made the decision to leave
plaintiff’s employ by the time she saw the letter. Furthermore, the evidence indicates that
Kratochvil took these actions as a mere formality and that Lamphear would in fact be working
under other employees of Atlas. There is no evidence that Kratochvil took part in formulating
the offer. Kratochvil testified that he was merely notified regarding the recommendation to hire
Lamphear, and Crooks testified that Kratochvil “had minimal, if nothing, to do with the
interviewing or the offer letter.” Thus, the fact that Kratochvil signed both documents and gave
Lamphear a “welcome aboard” message on the telephone after Lamphear had already accepted
employment did not constitute solicitation or encouragement to leave plaintiff’s employ.
Kratochvil and Lamphear also had a telephone conversation after Lamphear rescinded her
acceptance of Atlas’s employment offer, but neither Kratochvil nor Lamphear recalled the
specifics of the telephone conversation. Therefore, I disagree with the majority’s conclusion that
Kratochvil encouraged Lamphear to reconsider her decision to rescind her acceptance.

        Plaintiff also presented evidence indicating Kratochvil’s behind the scenes participation
with regard to Lamphear’s employment at Atlas. Plaintiff presented an e-mail from Crooks to
Kirk Haggarty, in which Crooks stated that she met with Dan Ravid and Kratochvil, and the
three of them discussed the objectives, structure, logistical requirements, and progress tracking
for Lamphear’s position. Plaintiff also presented an e-mail in which Kratochvil agreed to help
complete an IT user request form and a training schedule for Lamphear after she accepted
employment. The e-mails do not specify what decisions Kratochvil in particular made with
regard to the structure of Lamphear’s employment. There is no indication that Lamphear knew
about Kratochvil’s participation in structuring her position or that his participation influenced her
decision in any way. Thus, although the e-mails indicate that Kratochvil aided Ravid and Crooks
in structuring the details of Lamphear’s position, Kratochvil’s actions did not constitute
solicitation or encouragement for Lamphear to leave plaintiff since Kratochvil’s actions were not
designed to get Lamphear to switch jobs, and there is no indication that Lamphear was aware of
Kratochvil’s role in designing her job.

        Plaintiff also failed to present evidence that Kratochvil directly or indirectly hired
Lamphear. Although Kratochvil’s name appeared on the offer letter, a review of the record in
this case reveals that Crooks, Haggarty, and Sam Simon made the decision to hire Lamphear.
While Crooks was involved in the solicitation process from the outset, an e-mail from a woman
named Laila Powers to Crooks and Haggarty refers to the fact that Haggarty had to approve the
offer letter, and an e-mail from Simon to Haggarty gives approval to hire Lamphear. There is no
indication in the record that Kratochvil had any authority to hire Lamphear, and he only signed
the offer letter as a formality because he was the director of the department in which Lamphear
would work. Indeed, Lamphear accepted employment with Atlas before receiving the offer

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letter. Thus, Kratochvil did not directly or indirectly hire Lamphear in violation of his
nonsolicitation agreement. Accordingly, I do not believe that plaintiff presented evidence
establishing a genuine issue of material fact with regard to whether Kratochvil breached the
nonsolicitation agreement.

        Furthermore, even assuming that plaintiff could show that Kratochvil breached the
nonsolicitation agreement, plaintiff did not present evidence establishing that it suffered damages
because of the breach. In its responses to defendants’ request to admit with follow-up
interrogatories and request for production of documents, plaintiff indicated that its damages
included $50,000 in attorney fees and $52,000 to retain Lamphear for two years. However,
plaintiff is not entitled to damages on either ground. “ ‘Awards of costs and attorney fees are
recoverable only where specifically authorized by a statute, a court rule, or a recognized
exception.’ ” Holton v Ward, 303 Mich App 718, 734; 847 NW2d 1 (2014) (citation omitted).
Plaintiff failed to specify which statute, court rule, or recognized exception entitles it to an award
of attorney fees. See id.

         Plaintiff also did not establish that it is entitled to damages with regard to the costs to
retain Lamphear. Lamphear never left plaintiff’s employ. Although plaintiff increased
Lamphear’s salary by $25,000 after she informed her supervisor that she was leaving, Lamphear
testified that the increase in her salary was immaterial to her decision, and she communicated
this to her supervisor. Contrary to the majority’s assertion, Lamphear’s deposition testimony
was the only evidence in the record regarding the increase in her salary, and Lamphear’s
testimony was not contradicted by any other evidence in the record. Thus, plaintiff failed to
present evidence that Kratochvil’s actions caused plaintiff to incur damages with regard to the
increase in Lamphear’s salary since Lamphear communicated to plaintiff that the increase in her
salary was immaterial to her decision. Therefore, the trial court properly granted summary
disposition in favor of Kratochvil. See New Freedom Mtg Corp v Globe Mtg Corp, 281 Mich
App 63, 69-70; 761 NW2d 832 (2008) (“[I]f there are no damages, it is appropriate to grant
summary disposition on fraud, misrepresentation, breach of contract, and negligence claims.”)
(emphasis added). Accordingly, I would affirm the trial court’s order granting summary
disposition in favor of defendants.


                                                              /s/ Kathleen Jansen




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