Friske v. Jasinski Builders, Inc., Docket No. 84193
| Citation | 156 Mich.App. 468,402 N.W.2d 42 |
| Decision Date | 31 March 1987 |
| Docket Number | Docket No. 84193 |
| Parties | David J. FRISKE, Plaintiff-Appellant, v. JASINSKI BUILDERS, INC., Defendant-Appellee. 156 Mich.App. 468, 402 N.W.2d 42, 4 Indiv.Empl.Rts.Cas. (BNA) 1114 |
| Court | Court of Appeal of Michigan — District of US |
[156 MICHAPP 469] Van Benschoten, Hurlburt & Tsiros, P.C. by Lawrence A. Hurlburt, Saginaw, for plaintiff-appellant.
Cook, Nash & Deibel by James Tiderington, Saginaw, for defendant-appellee.
Before KELLY, P.J., and HOLBROOK and GREEN *, JJ.
Plaintiff, David J. Friske, appeals by leave granted from an order entered in Saginaw Circuit Court affirming the decision of the 70th District Court granting summary judgment in favor of defendant, Jasinski Builders, Inc. We affirm.
Plaintiff had been employed by defendant since February 16, 1955. On or about December 30, 1968, defendant instituted a deferred compensation program covering its employees including plaintiff. The deferred compensation agreement entered into by plaintiff and defendant provided that, at plaintiff's retirement upon the first day of the month nearest his sixty-fifth birthday, he was [156 MICHAPP 470] to receive the payment of a sum equal to $330 for each year of continuous service performed for defendant. Plaintiff was given the election to receive the money in a lump sum or in monthly income. The agreement further provided:
The agreement was funded by two life insurance policies purchased by defendant.
Plaintiff's employment was terminated on February 28, 1980, when plaintiff was fifty-six years old, pursuant to defendant's Board of Directors' decision to cease operations as contractors and permanently discharge all of its employees connected with those operations. Plaintiff was given severance pay equal to four weeks' pay and the two insurance policies that funded his deferred compensation plan, which were prepaid by defendant. Plaintiff disputes defendant's assertion that the policies were given him in satisfaction of defendant's liability under the deferred compensation agreement.
Plaintiff brought suit in circuit court to recover the benefits allegedly due him under the deferred compensation agreement. The action was removed to the 70th District Court, which granted defendant's motion for summary judgment pursuant to DCR 117.2(3) on the basis that there was no genuine issue of material fact. The district court held that paragraph 6 of the agreement created a "satisfaction contract" and, there being no allegation by plaintiff that the closing of defendant's construction[156 MICHAPP 471] business was motivated by fraud, bad faith or subterfuge, that plaintiff's discharge because defendant ceased operations as a contractor was "sufficient cause."
On appeal, the circuit court affirmed. Although noting that the district court's analysis was less than satisfactory, the circuit court concluded, as a matter of law, that the termination of plaintiff's employment which followed an economically motivated business closing was "for sufficient cause", as provided in the agreement.
On appeal to this Court plaintiff contends that under the language of paragraph 6 of the deferred compensation agreement his employment may be terminated only for "sufficient cause", which must be interpreted as cause attributable to misconduct in the performance of his employment duties. We disagree.
This case appears before this Court as a result of the circuit court's affirmance of the district court's grant of summary judgment in favor of defendant pursuant to DCR 117.2(3). A motion for summary judgment on the ground that there is no genuine issue of material fact tests whether there is factual support for the claim. When passing upon such a motion the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Longley v. Blue Cross & Blue Shield of Michigan, 136 Mich.App. 336, 356 N.W.2d 20 (1984). The grant of a motion under this subrule is appropriate only if the court is satisfied...
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