Higgins v. Lawrence

• Decision Date: 16 June 1981
• Docket Number: Docket No. 47171
• Citation: 107 Mich.App. 178,309 N.W.2d 194
• Parties: Ronald L. HIGGINS, Plaintiff-Appellee, Cross-Appellant, v. Kenneth R. LAWRENCE, D.P.M., P.C., a Michigan professional corporation, Defendant-Appellant, Cross-Appellee. 107 Mich.App. 178, 309 N.W.2d 194
• Court: Court of Appeal of Michigan — District of US

Page 194

309 N.W.2d 194

Ronald L. HIGGINS, Plaintiff-Appellee, Cross-Appellant, v. Kenneth R. LAWRENCE, D.P.M., P.C., a Michigan professional corporation, Defendant-Appellant, Cross-Appellee.

Docket No. 47171.

107 Mich.App. 178, 309 N.W.2d 194

Court of Appeals of Michigan.

June 16, 1981.

Released for Publication Aug. 26, 1981.

[107 MICHAPP 180] Timothy E. Baxter, Farmington Hill, for plaintiff-appellee, cross-appellant.

Michael H. Feiler, Allen I. Glass, Farmington Hill, for defendant-appellant, cross-appellee.

Before KELLY, P. J., and V. J. BRENNAN and T. M. BURNS, JJ.

V. J. BRENNAN, Judge.

Defendant appeals as of right from a trial court judgment finding it liable for breach of an employment contract in the amount of $4,484.70. Plaintiff has filed a cross appeal.

Negotiations concerning the terms of the employment contract were commenced in December, 1976, while plaintiff was employed by Podiatry Services, Inc. Prior to that time, Dr. Kenneth R. Lawrence was president of Podiatry Services and had hired plaintiff after he successfully completed his preceptership training. In November, 1976, Dr. Lawrence left Podiatry Services and formed defendant corporation. Terms were agreed to and on January 29, 1977, the parties executed an 18-month employment contract. The terms recited that plaintiff was to receive a yearly salary of $25,012 "plus such bonuses as shall be approved by the Board of Directors from time to time provided that if any such bonuses are approved, employee's bonus shall be equal to twenty-five (25%) percent of the total bonus so declared for all employees". Additionally, paragraph 2 of the contract provided that either party could terminate the contract at will upon 60 days written notice.

The employment relationship broke down within a few months and on June 27, 1977, plaintiff was terminated, effective immediately. Plaintiff recovered[107 MICHAPP 181] damages for 60 days salary, automobile rental and health insurance for his wrongful discharge.

Defendant has raised two issues on appeal and plaintiff has raised another issue on cross appeal. Defendant first questions whether the trial court correctly found that defendant failed to carry its burden of proof regarding plaintiff's duty to mitigate damages.

It is well established that a plaintiff must make every reasonable effort to mitigate damages. Edgecomb v. Traverse City School Dist., 341 Mich. 106, 115, 67 N.W.2d 87 (1954); Rich v. Daily Creamery Co., 296 Mich. 270, 282, 296 N.W. 253 (1941). Such a defense, however, is an affirmative one, and proof of plaintiff's failure to mitigate rests upon the defendant. Fothergill v. McKay Press, 374 Mich. 138, 132 N.W.2d 144 (1965); Froling v. Bischoff, 73 Mich.App. 496, 499, 252 N.W.2d 832 (1977). A wrongfully discharged employee is obligated to mitigate damages by accepting employment of a "like nature". Flickema v. Henry Kracker Co., 252 Mich. 406, 233 N.W. 362 (1930); Michigan Employment Relations Comm. v. Kleen-O-Rama, 60 Mich.App. 61, 230 N.W.2d 308 (1975). The criteria for determining "like nature" include the type of work, the hours of labor, the wages, tenure, working conditions, etc. Whether or not an employee is reasonable in not seeking or accepting particular employment is a question for the trier of fact. 2 Restatement Agency 2d, § 455, comment d, p. 373, Restatement Contracts, § 336, p. 537, 11 Williston, Contracts (3rd ed.), § 1359, p. 306.

In the instant case, the trial court made the following pertinent findings of fact: that the evidence gave no indication that if plaintiff sought employment he would have obtained it within the [107 MICHAPP 182] 60-day period; that the contract limited plaintiff to seeking employment in an area outside of a ten mile radius; that podiatry is a profession rather than a job; and that plaintiff required at least 60 days to find proper employment. Hence, the trial court concluded that the burden of proof on mitigation of damages had not been met by defendant.

An appellate court will set aside the findings of fact of a trial court sitting without a jury only when such findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Smith v. Michigan State Accident Fund, 403 Mich. 201, 267 N.W.2d 909 (1978). In making this determination, regard should be given to the special opportunity of the trial court to judge the credibility of those witnesses who appear before it. Ford v. Howard, 59 Mich.App. 548, 229 N.W.2d 841 (1975); Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976); Bergy Brothers, Inc. v. Zeeland Feeder Pig, Inc., 96 Mich.App. 111, 114, 292 N.W.2d 493 (1980); GCR 1963, 517.1.

Our review of the record discloses that the trial court's findings are not "clearly erroneous". The reasonableness of plaintiff's decision as to whom and where he could best form a professional association was a determination to be made by the trier of fact. We are not left with a firm and definite conviction that he erred.

Defendant next questions whether the trial judge correctly found that plaintiff did not have to reimburse defendant for hospital assessments paid by defendant pursuant to the employment contract.

At issue is the following provision:

[107 MICHAPP 183] "Upon the occasion of the EMPLOYEE terminating his employment with the CORPORATION either voluntarily or involuntarily, said EMPLOYEE shall reimburse the CORPORATION for any hospital assessments that have been advanced on his behalf."

At trial, testimony was adduced which established that defendant had made monthly payments of $55 for hospital assessments beginning with plaintiff's commencement of employment in January and continuing through June for a total of $330. Defendant wanted complete reimbursement, claiming the above provision should be interpreted by "standards of the industry" rather than the plain language of "advanced" as being a future outlay. It is well settled in the law of contracts that language will be construed against the party drafting the instrument. Bruno v. Detroit Institute of Technology, 51 Mich.App. 593, 215 N.W.2d 745 (1974); Washtenaw Asphalt Co. v. Michigan, 42 Mich.App. 132, 201 N.W.2d 277 (1972). Hence, we are in accord with the trial court's conclusion that since defendant drafted the contract, it must be construed against him.

Similarly, since the contract was silent as to reimbursement of paid associational and hospital dues, that claim is also without merit.

Finally, plaintiff questions whether the trial court properly denied plaintiff's claim that he was fraudulently induced to execute the employment contract because of certain representations made concerning the payment of bonuses. We think the trial court was correct.

The elements constituting actionable fraud or misrepresentation are well settled. In Candler v. Heigho, 208...