Ashker v. Aurora Med. Grp., Inc., No. 2012AP2245.

CourtCourt of Appeals of Wisconsin
Writing for the CourtREILLY
Citation841 N.W.2d 297,2013 WI App 143,352 Wis.2d 193
Docket NumberNo. 2012AP2245.
Decision Date20 November 2013
PartiesLawrence J. ASHKER, D.O., Plaintiff–Respondent–Cross–Appellant, v. AURORA MEDICAL GROUP, INC. and Aurora Health Care, Inc., Defendants–Appellants–Cross–Respondents.

352 Wis.2d 193
841 N.W.2d 297
2013 WI App 143

Lawrence J. ASHKER, D.O., Plaintiff–Respondent–Cross–Appellant,
v.
AURORA MEDICAL GROUP, INC. and Aurora Health Care, Inc., Defendants–Appellants–Cross–Respondents.

No. 2012AP2245.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 19, 2013.
Opinion Filed Nov. 20, 2013.


[841 N.W.2d 298]


On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Mary P. Jacoby, Sean M. Scullen and Courtney R. Heeren of Quarles and Brady, LLP, Milwaukee.

On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the brief of Christopher D. Wolske, Robert N. Duimstra and Brenton D. Teeling of Menn Law Firm, Ltd., Appleton.


Before NEUBAUER, P.J., REILLY and GUNDRUM, JJ.

REILLY, J.

¶ 1 Lawrence Ashker, D.O., was a radiologist employed by Aurora Medical Group, Inc. Ashker and Aurora entered into an employment contract that allowed Aurora to unilaterally terminate Ashker's employment in one of three ways: (1) termination immediately upon the occurrence of any one of seven specific events; (2) termination upon a material breach of the contract, provided Aurora gave Ashker written notice specifying the breach and gave Ashker thirty days to cure the breach; and (3) termination for any reason (i.e., “without cause”) with ninety days' notice and ninety days' pay. Aurora terminated Ashker's employment without following any of the three contractual options. Aurora terminated Ashker, effective immediately, when it learned that Ashker was accused of trying to cover up medical malpractice by attempting to delete medical records. Ashker's action did not fall within the enumerated list of events that would allow Aurora to immediately terminate his employment, Aurora did not give Ashker thirty days to cure the breach, and Aurora did not provide Ashker with ninety days of pay.

¶ 2 The circuit court, on motions for summary judgment, awarded Ashker ninety days' pay per the “without cause” clause of his employment contract and dismissed Ashker's claims for breach of the duty of good faith and fair dealing, defamation, and tortious interference with contract. Aurora appeals the court's order on Ashker's breach of contract claim, and Ashker cross-appeals the court's remaining rulings. We affirm.

BACKGROUND

¶ 3 Ashker and Aurora entered into a written employment agreement effective October 1, 2007. The agreement provided specific means for its termination. Relevant to this appeal, the agreement provided:

5.1 Termination. This Agreement shall terminate if any of the following events occur:

5.1.1 By [Aurora] or, with [Aurora's] consent by a two-thirds vote of the members of the Management Committee of the Division to which [Ashker] is assigned, without cause, if it shall provide written notice to [Ashker] at least ninety days prior to the date of termination. In the event of termination for this reason, [Aurora] may elect to pay [Ashker] for the period through the termination date based on [Ashker's] average monthly production for the last 12 months prior to the notice and require that [Ashker] no longer provide services

[841 N.W.2d 299]

or appear for work through the last day of employment (i.e. ninety days after the notice) but with the employment otherwise continuing through the ninety days after such notice.

....

5.1.4 By either party, upon the material breach or violation of the terms of this Agreement by the other party, provided the breaching party has been given written notice specifying the nature of the breach or violation and a period of 30 days in which to cure such breach or violation....

The agreement also provided a list of seven specific occurrences that allowed Aurora to immediately terminate Ashker, none of which is applicable to this case.


¶ 4 Shortly after he began working for Aurora, Ashker misdiagnosed a patient when he failed to spot a lesion on an x-ray image. After another physician notified Ashker of his error, several Aurora employees reported that Ashker inquired about deleting images from the patient's medical file. One employee claimed that Ashker offered money to make the deletion. Following an investigation, Aurora's Management Committee voted to discharge Ashker. A letter of termination was given to Ashker the day of the vote, informing him that his employment was “terminated for cause under provision of article 5.1.4” of the employment agreement for behavior that “does not align with our values of accountability, teamwork and respect,” which Aurora stated was “not curable.”

¶ 5 Ashker sued Aurora for breach of contract or, alternatively, for breaching its duty of good faith and fair dealing by failing to abide by the termination provisions of the employment agreement. Ashker also alleged in the complaint that Aurora had defamed him by making “false and defamatory statements” and providing “false information” about him to others and that these statements had interfered with a “contractual relationship” and potential contracts for employment.

STANDARD OF REVIEW

¶ 6 We review a decision on summary judgment employing the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315–17, 401 N.W.2d 816 (1987). We will affirm a decision granting summary judgment if we find “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Wis. Stat. § 802.08(2) (2011–12).1

DISCUSSION
Breach of Contract and Breach of Duty of Good Faith and Fair Dealing

¶ 7 The interpretation of a contract presents a question of law reviewed independently on appeal. Tufail v. Midwest Hospitality, LLC, 2013 WI 62, ¶ 22, 348 Wis.2d 631, 833 N.W.2d 586. “Where the terms of a contract are clear and unambiguous, we construe the contract according to its literal terms.” Id., ¶ 26. The...

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3 practice notes
  • Duncan v. Woodlawn Mfg., Ltd., No. 08–14–00025–CV
    • United States
    • Court of Appeals of Texas
    • 17 juin 2015
    ...paying percentages to franchisor; breach went to the heart of trust and loyalty issues); but see Ashker v. Aurora Medical Group, Inc., 352 Wis.2d 193, 841 N.W.2d 297 (2013) (radiologist discharged for destroying medical records to cover up malpractice claim entitled to "termination without ......
  • Hwag, LLC v. Racine Car Dealer LLC, Case No. 17-CV-821
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 19 décembre 2017
    ...the particular words complained of must be set forth in the complaint. Ashker v. Aurora Medical Group, Inc., 2013 WI App 143, ¶ 11, 352 Wis. 2d 193, 841 N.W.2d 297 (citing Wis. Stat. § 802.03(6)). In a motion to dismiss, the court determines whether a communication is capable of a defamator......
  • Sando v. Wood River Pharmacy, Inc., 17-cv-640-jdp
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 25 mai 2018
    ...employment reference, the plaintiff must also overcome Wis. Stat. § 895.487. Ashker v. Aurora Medical Group, 2013 WI App 143, ¶ 12, 352 Wis. 2d 193, 841 N.W.2d 297. That statute creates a presumption of good faith that can be rebutted with evidence "that the employer knowingly provided fals......
3 cases
  • Duncan v. Woodlawn Mfg., Ltd., No. 08–14–00025–CV
    • United States
    • Court of Appeals of Texas
    • 17 juin 2015
    ...paying percentages to franchisor; breach went to the heart of trust and loyalty issues); but see Ashker v. Aurora Medical Group, Inc., 352 Wis.2d 193, 841 N.W.2d 297 (2013) (radiologist discharged for destroying medical records to cover up malpractice claim entitled to "termination without ......
  • Hwag, LLC v. Racine Car Dealer LLC, Case No. 17-CV-821
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 19 décembre 2017
    ...the particular words complained of must be set forth in the complaint. Ashker v. Aurora Medical Group, Inc., 2013 WI App 143, ¶ 11, 352 Wis. 2d 193, 841 N.W.2d 297 (citing Wis. Stat. § 802.03(6)). In a motion to dismiss, the court determines whether a communication is capable of a defamator......
  • Sando v. Wood River Pharmacy, Inc., 17-cv-640-jdp
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 25 mai 2018
    ...employment reference, the plaintiff must also overcome Wis. Stat. § 895.487. Ashker v. Aurora Medical Group, 2013 WI App 143, ¶ 12, 352 Wis. 2d 193, 841 N.W.2d 297. That statute creates a presumption of good faith that can be rebutted with evidence "that the employer knowingly provided fals......

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