Docket No. 86190.

152 Mich. App. 281 (1986)

393 N.W.2d 610


Michigan Court of Appeals.

Decided June 2, 1986.

Attorney(s) appearing for the Case

Parker, Adams, Mazur & Matyjaszek, P.C. (by Ronald J. Parker and James D. Adams), for plaintiff.

Varnum, Riddering, Schmidt & Howlett (by Thomas J. Mulder and Joseph J. Vogan), for defendants.

Before: MacKENZIE, P.J., and ALLEN and G.W. CROCKETT, III, JJ.


Plaintiff began working for defendant Michigan Oil Company (MOC) as vice president and general manager in 1981 after two interviews with defendant Smith, president and a director of MOC, regarding the position. This case arises from plaintiff's 1984 termination of employment. Plaintiff appeals as of right from an opinion and order granting summary disposition, apparently pursuant to MCR 2.116(C)(8) and (10). We affirm.

Plaintiff filed his first complaint on May 18, 1984. The complaint specified four claims: Count I, discharge by MOC without good or just cause; Count II, unjustifiable inducement by Smith, causing MOC to breach its agreement with plaintiff; Count III, unjustifiable interference by Smith with the agreement between plaintiff and MOC; and Count IV, publication by Smith of objectionable material which tended to place plaintiff in a false light, causing plaintiff embarrassment, humiliation and emotional stress. On October 10, 1984, defendants filed a motion for summary judgment as to all counts pursuant to GCR 1963, 117.2(1) and (3), now 2.116(C)(8) and (10). Before the motion was heard, however, the parties agreed that plaintiff would file a first amended complaint. Although defendants' motion was prepared in response to plaintiff's original complaint, on May 22, 1985, the trial court granted summary disposition as to all counts of plaintiff's first amended complaint.

On appeal, plaintiff first contends that the trial court improperly granted summary disposition pursuant to MCR 2.116(C)(10) as to Count I. A motion brought under this subrule tests whether there is factual support for plaintiff's claim. A court, in deciding such a motion, must consider the pleadings, affidavits, depositions, admissions, and documentary evidence available to it and give the nonmoving party the benefit of every reasonable doubt. The motion must not be granted unless the court is satisfied that it is impossible to support the claim at trial because of some deficiency which cannot be overcome. See Kortas v Thunderbowl & Lounge, 120 Mich.App. 84; 327 N.W.2d 401 (1982), discussing GCR 1963, 117.2(3).

Count I of plaintiff's amended complaint alleged that plaintiff was wrongfully discharged, without good or just cause. In our opinion, the trial court properly ruled, after reviewing plaintiff's amended complaint and all available depositions and affidavits, that plaintiff's claim was unsupportable since his employment was terminable at will.

Contracts for permanent employment are generally construed to be indefinite hirings terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich. 684, 687; 273 NW 315 (1937). Nevertheless, a provison making indefinite employment terminable only for cause may be expressed in an oral or written contract, or may arise from an employee's legitimate expectations grounded in an employer's established policies and procedures. See Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 598; 292 N.W.2d 880 (1980). A mere subjective expectancy of continued employment on the part of an employee will not justify an expectation of termination for just cause only. Schwartz v Michigan Sugar Co, 106 Mich.App. 471; 308 N.W.2d 459 (1981), lv den 414 Mich. 870 (1982).

In this case, it is undisputed that plaintiff was not hired pursuant to a written contract. The only established employment policies and procedures before the court neither stated nor implied that plaintiff (or any other employee) could be terminated by defendants only for cause. Plaintiff alleged in his complaint that when he accepted employment with MOC he was led to believe that he could be terminated only for just cause based upon statements made to him by Smith regarding his level of compensation and benefits, his possible future benefits, a possible future promotion, and the amount of time he should take to learn the business before deciding whether or not to stay with the company. These were promises of what plaintiff could expect if his employment continued; they were not statements regarding MOC'S termination policy. See Schwartz, supra, pp 478-479. Moreover, plaintiff's deposition testimony refutes such an understanding. Plaintiff testified that there were no promises that MOC would never ask for his resignation. He did not discuss during his interviews with Smith any restrictions on defendants' right to terminate his employment; in fact, plaintiff testified that he knew Smith had unrestricted authority to fire him. When asked to explain the basis for his belief that he could not be discharged except for cause, plaintiff said: "Because I came to do the job, and I did the job."

Plaintiff's expectation of continued employment with MOC is similar to that of the plaintiff in Schwartz, supra, p 479:

Plaintiff's deposition testimony made it clear that he felt he could only be discharged for cause not because of any representations or policies promulgated, but because of his own personal belief that an employee doing competent work would be retained as a company asset. Plaintiff considered this "a convenience in almost any company". Such a subjective belief is insufficient to establish a contract implied in fact. Thus, although plaintiff's complaint sufficiently pled a cause of action on this theory, in fact, plaintiff's basis for the claim is not the objective circumstances of his employment, but his own personal view of what the law should be.

As this Court held in Schwartz, the trial court's dismissal of plaintiff's wrongful discharge claim in the instant case was proper.

Plaintiff next contends that the trial court erred in granting summary disposition as to Counts II and III of plaintiff's amended complaint. In these counts, plaintiff claimed that Smith, for reasons personal to himself, induced MOC to breach its contract with plaintiff and tortiously interfered with that contractual relationship. The trial court ruled that because Smith was essentially a party to the employment contract he was privileged to terminate the relationship and thus could not be sued for wrongful interference. We affirm the trial court's ruling on slightly different grounds.

To maintain a cause of action for tortious interference with a contract, a plaintiff must establish a breach of contract caused by the defendant, Trepel v Pontiac Osteopathic Hospital, 135 Mich.App. 361; 354 N.W.2d 341 (1984), lv den 422 Mich. 853 (1985), and that the defendant was a "third party" to the contract or business relationship, Seven D Enterprises, Ltd v Fonzi, 438 F.Supp. 161 (ED Mich, 1977). In the instant case, there was no factual support for either element. First, since plaintiff's employment contract was terminable at will, there could be no breach arising from its termination. To the extent that Tash v Houston, 74 Mich.App. 566; 254 N.W.2d 579 (1977), lv den 401 Mich. 822 (1977), would lead to a different result, we reject the majority's reasoning in that case and adopt that of the dissent. Second, as the trial court concluded, Smith was not a third party to plaintiff's employment relationship with MOC. Plaintiff, in his complaint, states that his employment agreement was made by Smith on behalf of MOC. Smith is a director of MOC, its president, a controlling shareholder, and director and chief executive officer of its parent corporation. He had express authority and responsibility for hiring, evaluating, supervising, and terminating plaintiff on behalf of MOC. In short, Smith is the company on these facts. Summary disposition was therefore proper.

Plaintiff next challenges the trial court's ruling, apparently under MCR 2.116(C)(8), that plaintiff failed to state a cause of action for false light invasion of privacy against Smith. A motion under this subrule tests the legal sufficiency of the pleadings alone. All well pled allegations must be taken as true. The motion should be denied unless the alleged claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Hankins v Elro Corp, 149 Mich.App. 22; 386 N.W.2d 163 (1986). In the instant case, the court noted that "[e]ven an intentionally false comment is not actionable unless it results in unreasonable and highly objectionable publicity that attributes to the plaintiff characteristics, conducts [sic], or beliefs that are false so that he is placed before the public in a false position." This analysis was correct. See, e.g., Beaumont v Brown, 401 Mich. 80, 95, n 10; 257 N.W.2d 522 (1977); Ledl v Quik Pik Food Stores, Inc, 133 Mich.App. 583; 349 N.W.2d 529 (1984); Reed v Ponton, 15 Mich.App. 423, 426; 166 N.W.2d 629 (1968). Since plaintiff's amended complaint alleges incidents which occurred only in the presence of other employees or, at most, a handful of office visitors within hearing range, plaintiff failed to plead facts sufficient to establish that "the oral communication [was] broadcast to the public in general or publicized to a large number of people." Reed v Ponton, supra, p 426. Summary disposition was thus proper.

Finally, we reject plaintiff's argument that the trial court should have granted him leave to amend his complaint following its ruling on defendants' motion. Where summary disposition has been entered against a party, he can only amend his complaint by leave of the court. Steel v Cold Heading Co, 125 Mich.App. 199; 336 N.W.2d 1 (1983). In this case, we find no record evidence that plaintiff sought leave to file a second amended complaint. In any event, we note that plaintiff was allowed to amend his complaint after defendants filed their motion for summary judgment, and hence had a full and fair opportunity to draft his pleadings in response to the issues raised by defendants.



* Recorder's court judge, sitting on the Court of Appeals by assignment.


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