Hord v. Environmental Research Institute of Michigan

• Decision Date: 17 March 1998
• Docket Number: Docket No. 200481
• Citation: Hord v. Environmental Research Institute of Michigan, 579 N.W.2d 133, 228 Mich.App. 638 (Mich. App. 1998)
• Parties: , 14 IER Cases 81 R. Michael HORD, Plaintiff-Appellee, v. ENVIRONMENTAL RESEARCH INSTITUTE OF MICHIGAN d/b/a ERIM, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 133

579 N.W.2d 133

228 Mich.App. 638, 14 IER Cases 81

R. Michael HORD, Plaintiff-Appellee, v. ENVIRONMENTAL RESEARCH INSTITUTE OF MICHIGAN d/b/a ERIM Defendant-Appellant.

Docket No. 200481.

Court of Appeals of Michigan.

Submitted Nov. 5, 1997, at Detroit.

Decided March 17, 1998, at 9:05 a.m.

Released for Publication June 17, 1998.

Green, Green & Craig, P.C. by Philip Green, Ann Arbor, for plaintiff.

Dickinson, Wright, Moon, Van Dusen & Freeman by Robert W. Powell, Detroit, for defendant.

Before HOEKSTRA, P.J., and WAHLS and GRIBBS, JJ.

WAHLS, Judge.

In this fraud action, a jury awarded plaintiff $175,000 in damages stemming from his decision to accept employment with defendant and his subsequent layoff. Defendant now appeals as of right. We affirm.

Many of the facts in this case are undisputed. Plaintiff was working in the aerospace division at General Electric in 1992 when he began looking for other employment. He interviewed for a job with defendant in September or October 1992. At that interview, he was given a copy of defendant's operating summary for the fiscal year ending September 30, 1991. The parties did not engage in further discussion of the operating summary or of defendant's financial condition at that time. Defendant was apparently interested in hiring plaintiff to develop a new program in high-performance computing. There was some discussion regarding the length of time defendant would be willing to support such a program before it became self-sustaining. However, neither party made any definite statements about how long they expected this process to take.

Defendant hired plaintiff in January 1993. Sometime between 1991 and 1994, defendant apparently suffered financial reverses. Plaintiff's employment was reduced to eighty percent in January 1994, and he was notified of an impending layoff in June of that year. He resigned a month later in exchange for a $10,000 consulting agreement. He then filed the current suit, alleging that defendant committed fraud in order to induce him to accept its offer of employment. He alleged that defendant made knowingly false representations regarding its disposition and ability to fund long-range product development. According to plaintiff, defendant's financial position had weakened significantly between the time of the 1991 operating summary and the time he was hired. He argued that he would not have accepted the job if he had known defendant's actual financial status. The case was submitted to the jury on theories of fraudulent misrepresentation and silent fraud. ¹ Using a simple verdict form that did not indicate which theory it was relying on, the jury awarded plaintiff $175,000 in damages.

On appeal, defendant first argues that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict (JNOV) with regard to plaintiff's fraudulent misrepresentation claim. Defendant contends that plaintiff failed to present any evidence of an affirmative misrepresentation that would allow the jury to hold defendant liable on that basis. We disagree. We have recently summarized the appropriate standards of review:

The standard of review for JNOV requires review of the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Only if the evidence, so viewed, fails to establish a claim as a matter of law, should a motion for JNOV be granted. Similarly, in deciding a motion for a directed verdict, the trial court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party. This Court reviews all the evidence presented up to the time of the motion to determine whether a question of fact existed. [Phinney v. Perlmutter, 222 Mich.App. 513, 524-525, 564 N.W.2d 532 (1997) (citations omitted).]

We review the trial court's decision de novo. Meagher v. Wayne State Univ., 222 Mich.App. 700, 708, 565 N.W.2d 401 (1997), lv. pending.

There are six essential elements of a fraud claim: (1) that the defendant made a material representation; (2) that it was false; (3) that when the defendant made it the defendant knew that it was false, or that the defendant made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that the defendant made it with the intention that it should be acted on by the plaintiff; (5) that the plaintiff acted in reliance on it; and (6) that the plaintiff thereby suffered injury. Candler v. Heigho, 208 Mich. 115, 121, 175 N.W. 141 (1919), overruled in part on other grounds in United States Fidelity & Guaranty Co. v. Black, 412 Mich. 99, 120-121, 313 N.W.2d 77 (1981); Clement-Rowe v. Michigan Health Care Corp., 212 Mich.App. 503, 507, 538 N.W.2d 20 (1995). "Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery." ' Candler, supra at 121, 175 N.W. 141 (citation omitted).

Defendant's contention that it made no affirmative misrepresentations ignores the fact that the jury could have found that defendant's presentation of its 1991 operating summary to plaintiff in September 1992 was a misrepresentation. Defendant repeatedly argues that the 1991 operating summary was clearly labeled "For the Fiscal Year Ending September 30, 1991," and, therefore, that it could not have constituted a misrepresentation regarding defendant's financial position in 1992, and that plaintiff could not have been misled by it. The flaw in this argument is exposed by simply asking: Why did defendant give plaintiff a copy of its 1991 operating summary? Clearly, the act of giving plaintiff the operating summary constituted an endorsement of its contents and a representation that the summary was somehow a reflection of defendant's current financial strength. ² This was obviously a material representation, and the act of giving the operating summary to plaintiff during a job interview allowed the jury to infer that defendant intended that plaintiff act on it. In addition, there was evidence that, at the time defendant gave plaintiff the 1991 operating summary, it had more current financial information that suggested that it was in a much weaker financial position than it was in September 1991. From this evidence, the jury could have concluded that the representation regarding defendant's financial strength was false and that defendant knew that it was false when made. Finally, plaintiff testified that he relied on this representation in making his decision to accept defendant's offer of employment, and there was evidence that plaintiff suffered injury. Consequently, we find no error in the trial court's decision to deny defendant's motions for a directed verdict and for JNOV regarding plaintiff's fraudulent misrepresentation claim.

Defendant next argues that plaintiff's claim for future lost wages was too speculative to be submitted to the jury. We disagree. Defendant contends that, because plaintiff was an at-will employee, he was only entitled to nominal damages. While this might be true in a breach of contract action, Sepanske v. Bendix Corp., 147 Mich.App. 819, 828-829, 384 N.W.2d 54 (1985), it is not the case in a tort action. Phillips v. Butterball Farms Co., Inc. (After Second Remand), 448 Mich. 239, 241-242, 253-254, 531 N.W.2d 144 (1995). While Phillips involved a retaliatory discharge claim, we believe the same logic applies here. Nominal damages would not provide a meaningful remedy for an employee who is defrauded, nor would they sufficiently deter unscrupulous employers. See id. at 254, 531 N.W.2d 144. Indeed, extending Sepanske to tort claims would allow a tortfeasor to avoid paying damages for future wage loss any time the injured party was an at-will employee. We decline to extend Sepanske beyond breach of contract actions. While the exact amount of future wage loss cannot be fixed with mathematical certainty, there was evidence from which the jury could estimate plaintiff's future wage loss. The trial court did not err in allowing the jury to consider plaintiff's claim for future wage loss.

Finally, defendant challenges one of the jury instructions. The trial court read the following instruction regarding the knowledge of a corporation: "The knowledge of an individual officer or employee at a certain level of responsibility will be deemed to be the knowledge of a corporation." We review jury instructions as a whole to determine whether the instructions adequately informed the jury of the applicable law, given the evidentiary claims of the case. Holland v. Liedel, 197 Mich.App. 60, 65, 494 N.W.2d 772 (1992).

While the challenged instruction was not necessary in this case, the instructions as a whole adequately presented the applicable law. Defendant relies on Adams v. Nat'l Bank of Detroit, 444 Mich. 329, 508 [228 Mich.App. 645] N.W.2d 464 (1993), for the proposition that this instruction was improper. Indeed, Adams does stand for the proposition that "collective knowledge" cannot be the basis for a finding of intent: "We hold that intent to commit tortious acts cannot be imputed to a corporation on the basis of disconnected facts possessed by various employees or agents of that corporation, where there is no evidence that any employee possessed the requisite state of mind." Id. at 368-369 (Brickley, J.), 343 (Boyle, J.), 508 N.W.2d 464. However, the instructions in this case did not permit the jury to find intent on the basis of collective knowledge. The jury was instructed as follows...