Dillon Energy Servs. v. Asaro

• Decision Date: 21 October 2021
• Docket Number: 355080
• Parties: DILLON ENERGY SERVICES, INC, Plaintiff-Appellant, v. ANGELA ASARO and JOSEPH BLAHUT, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

DILLON ENERGY SERVICES, INC, Plaintiff-Appellant, v. ANGELA ASARO and JOSEPH BLAHUT, Defendants-Appellees.

No. 355080

Court of Appeals of Michigan

October 21, 2021

UNPUBLISHED

Macomb Circuit Court LC No. 2019-004618-CK

Before: Rick, P.J., and Ronayne Krause and Letica, JJ.

PER CURIAM.

Plaintiff Dillon Energy Services, Inc (Dillon), appeals by right the trial court's order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendants, Angela Asaro and Joseph Blahut. We affirm.

I. BACKGROUND

Dillon "is a supplier of natural gas, electricity and related energy management services for industrial, commercial, public sector, and residential customers in Macomb County and throughout the State of Michigan." Asaro began working for Dillon in approximately 2003, and Blahut began working for Dillon in approximately 2016. Asaro and Blahut each signed an employment agreement that, in relevant part contained one-year anti-competition clauses. Asaro and Blahut both ended their employment with Dillon in July of 2017 along with numerous other Dillon employees, following Dillon's sudden and unexplained termination of Jan Rosso and the subsequent departure of Daniel ("Dan") Rosso. Less than one year later, Asaro and Blahut began performing part-time work for a new startup created by Dan Rosso, Transparent Energy (Transparent). Defendants eventually became full-time employees for Transparent. Plaintiff generally contends that Asaro and Blahut breached their non-competition agreements and harmed Dillon by going to work for Transparent. Plaintiff adduced an enormous amount of evidence in an effort to prove those contentions, and it is necessary to set forth much of that evidence. Far from favoring plaintiff, however, the evidence shows that although many of Dillon's former customers eventually transferred to Transparent, they did so for reasons unrelated to Asaro or Blahut, some of them because Dillon's remaining principals actively drove them away.

A. DEFENDANTS' EMPLOYMENT AT DILLON

Asaro's title at Dillon was "Director of natural gas and electric choice," but she characterized her role as "back office for gas and electronic choice." She further described that job as overseeing the programs, reading and understanding tariffs, and having a couple of people who reported to her. She explained that it was important to understand the tariffs to ensure that the company did not get into trouble with the utilities and have to pay a penalty. Asaro had some role in billing gas customers, creating and maintaining reports, and improving some aspects of a program involving management of gas choices. However, actual data entry was performed by someone else. Asaro was not involved in revising the company's handbook, tracking of commissions, billing or payroll, portfolio management, or development of systems and processes. Asaro's last position with Dillon did not include sending renewal letters to customers whose contracts were about to expire, but Asaro did train the person whose job it was to send those letters.

Asaro testified that she never did any of the following at Dillon: called customers, dealt with meter reads, dealt with nominating gas, or dealt with hedges.^[1] Asaro helped prepare some spreadsheets or databases for tracking customers, but she only knew generally that the databases would include the customers' name, address, contract date, and gas purchases. The only relevance of which she was aware to the contract date was renewal, but the customers' contracts "rolled over, so nobody ever paid attention to it." Gas purchase information would include volume, costs, sale price, and the utility that supplied the particular customer. Asaro saw transaction confirmations at Dillon, but did not recall such documents stating that they were confidential. Asaro received commissions, but she could not recall how those commissions were structured or calculated. Asaro was not involved at Dillon in assigning customers to employees or splitting commissions.

Blahut testified that he had known Dan Rosso since 2001, and they "were friends as children." Blahut explained that he came to Dillon because Jan and Dan thought Blahut would be a good fit to replace another person who was leaving, and Blahut also knew two of the other employees at Dillon since he had been a child. Blahut testified that Dan first talked to him about joining Dillon a few months before he joined, when Dan began sending him something called "the Rosso report." Blahut described the Rosso report as "like a natural gas market recap" and "just basic fundamentals of the markets, weather, supply, so broad overviews of just the general market condition;" which Dan sent Blahut to give Blahut "insight into the business, the basics of it." Employment at Dillon was simply presented to Blahut as "we think you would be a good fit" and that "it would be a good place to build a career." He also noted that the commute to Dillon was shorter than the commute to his then-current job. Before Blahut started at Dillon, Dan did not tell him anything negative about the leadership at Dillon. Dan did not show Blahut anything other than the Rosso report until after Blahut had joined Dillon.

Blahut's title at Dillon was "account analyst," and his title at Transparent was "gas scheduler." At Dillon, Blahut was being trained in managing energy usage, "a lot of data entry," and reading and analysis of meters. Blahut explained that his responsibilities at Dillon were "basically receiving meter reads, plugging them into the spreadsheets and making sure that the customer was either not using too much or not enough to stay within the utility threshold." Blahut opined that what he did was "really not that complicated[, i]f you're over the number they give you, I think it's a quarter, 25 cents per unit charge." Blahut noted that the customer using too much or too little energy was not necessarily anything Dillon could control.

Blahut did not recall seeing transaction confirmations or documents marked confidential while at Dillon. Blahut spent the "vast majority" of his time handling customer meter reads, which included a "small part of the day" spent on nominations. Blahut explained that gas nomination involved projecting how much gas a customer would probably use in a month. Penalties would be imposed if too much or too little was nominated. Blahut denied "mastering" nomination, but he also denied it being either complex or risky. Blahut stated that he helped his trainer prepare a guide for how to do nominations for when people were out of the office. Blahut explained that the utilities actually provided guides, and he did not take the guide with him when he left Dillon. Blahut testified that he nominated some of the customers, but he emphasized that he was "looking at the numbers on the spreadsheet" and did not "know the ins and outs of customers." Blahut denied creating any files while at Dillon, explaining that "there were already meter sheets that were created" and he worked within those sheets.

While at Dillon, Asaro and Blahut both signed employment agreements that each contained essentially-identical non-competition provisions. In relevant part, subject to a small number of inconsequential differences, those provisions were as follows:

5. Non-Competition During Employment. Employee agrees that for as long as he remains employed by Employer, he will devote substantially all of his time, skill, diligence and attention to the Business. Employee further agrees that during such period of employment he will not, directly or indirectly:

(a) make any statement or perform any act intended to advance any interest of an existing or prospective competitor of Employer that could reasonably be expected to injure Employer in its relationship with any existing or potential customer supplier, employee or creditor of Employer;

(b) do any act, or solicit or encourage any other employee of Employer to do any act, that is disloyal to Employer or inconsistent with Employer's interest or in violation of Employer's policies;

(c) participate in or assist with the formation or operations of, or solicit any other employee to participate in or assist with the formation or operations of, any business that competes with Employer or facilitate any discussions with respect to the possible future employment of such other employee by any such business;

(d) discuss with any customer of the Business or any existing or potential supplier or creditor of Employer that Employee intends to resign, or make any statement or do any act intended to cause any customer or an existing or potential supplier or creditor of Employer to learn of Employee's intention to resign; and

(e) discuss with any customer or any existing or potential supplier or creditor of Employer the present or future availability of services or products provided by a business that competes with or, where such services or products are competitive, with services or products that Employer provides.

6. Non-Competition During and After Employment. Employee agrees that during the Employment Term and until the expiration of one (1) year following the date that Employee ceases to be employed by Employer for any reason, he will not, directly or indirectly, either:

(a) solicit, divert or take away, or attempt to solicit, divert or take away any customer or the business of any customer with respect to the products or services of Employer sold (or offered for sale) to such customer;

(b) attempt to cause any customer to refrain, in any respect, from maintaining or acquiring any product or service provided or offered by Employer to such customer;

(c) render services to or share in the earnings of or invest in the stock, bonds or other securities of any other entity

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