Goldstein v. Kern , 82 Mich. App. 723 ( 1978 )

82 Mich. App. 723 (1978) 267 N.W.2d 165

GOLDSTEIN
v.
KERN

Docket No. 77-1769.

Michigan Court of Appeals.

Decided April 18, 1978.

Hiller, Howard, Larky & Hoekenga, for plaintiff.

Lawrence J. Stockler (by Barry D. Herbach), for defendant.

Before: R.M. MAHER, P.J., and V.J. BRENNAN and N.J. KAUFMAN, JJ.

PER CURIAM.

Plaintiff appeals from an order granting defendant's motion for summary judgment for failure to state a claim and failure to obey an order of the court requiring plaintiff to file a more definite statement.

The case arises out of the breach of an agreement to form a partnership. According to plaintiff's complaint, he had been offered employment with a competitor of defendant. When he told defendant he intended to accept the offer, defendant offered plaintiff a partnership interest in the new store he was opening. Plaintiff accepted, and the parties signed an agreement to form a partnership upon the purchase of the store. Plaintiff turned down the offer from defendant's competitor. After the store had been opened approximately 6 months, defendant, without consulting plaintiff, sold the store and terminated plaintiff's employment.

Plaintiff then commenced this lawsuit. The complaint was filed, defendant answered and moved for a more definite statement. The motion was granted. Plaintiff did not file a more definite statement but did file a more detailed complaint and a bill of particulars. Defendant moved for summary judgment which the trial court orally granted at the close of the hearing. Before the order was signed, however, plaintiff requested leave to file an amended complaint. The trial court denied the request, stating that summary judgment had already been granted. Plaintiff was informed that his sole basis for relief was a motion to set aside the judgment. That motion was also denied.

The first issue in this case is whether summary judgment had been granted before plaintiff made the motion to amend his complaint. Although a judgment may become effective merely upon its oral pronouncement by the trial court, the normal rule is that a judgment does not become effective until signed. Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977).^[1] In order for an oral pronouncement to become binding as a judgment, the terms of the judgment must be read into the record, and the judge must declare that such statement is to be given immediate effect as a judgment without any further action or signing of a written judgment. Tiedman, at 577. A review of the record in this case clearly shows that the trial court's oral pronouncement did not possess these characteristics. Summary judgment, therefore, did not become effective before plaintiff moved to file his amended complaint.

Motions to amend must be "freely given when justice so requires". GCR 1963, 118.1. Moreover, a denial of such a motion, although discretionary, must be supported by specific findings as to why justice would not be served by the amendment. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). No such findings were given in the present case. Therefore, the motion to amend the complaint should have been, and hereby is, granted. GCR 1963, 820.1(7).

An examination of this amended complaint, however, discloses that summary judgment is appropriate for various of the counts presented.

Count II, alleging that defendant tortiously interfered with plaintiff's contractual relationship, fails to state a cause of action because plaintiff never alleged that he actually entered into a contract with defendant's competitor. There was no contract: consequently, defendant could not have tortiously interfered with it.

Count III, alleging interference with plaintiff's prospective economic advantage, also does not state a claim. The cause of action in such a claim rests not with the person induced, but with the person losing the services of the one induced. See Restatement of Torts, § 766, Comment k. Therefore, defendant's competitor might conceivably have a cause of action against defendant for inducing plaintiff away from him, but plaintiff as the party induced, not the party protected, has no cause of action under this doctrine.

Plaintiff has no cause of action for wrongful discharge. The employment contract was terminable at will. An employee's detrimental reliance in foregoing another employment opportunity in order to accept the offered employment does not estop the employer from terminating his employment contract. The action of plaintiff in rejecting the offer of employment from defendant's competitor was only a necessary incident in placing himself in a position to accept defendant's offer. Lynas v Maxwell Farms, 279 Mich 684; 273 NW 315 (1937). Therefore, summary judgment is appropriate on the wrongful discharge count.

Summary judgment is not appropriate, however, on Counts I and V of plaintiff's complaint which seek damages for loss of partnership profits. The parties entered into an agreement to become partners upon the purchase of the clothing store mentioned in the agreement. Once the store was purchased, the partnership came into existence. Defendant's unilateral sale of the store, the sole property of the partnership, caused its wrongful dissolution, making defendant liable to plaintiff for damages caused by the dissolution. The amount of these damages, if any, is a question of fact and not an appropriate subject for summary judgment for failure to state a claim.

Finally, the defendant responded to plaintiff's complaint before moving for a more definite statement. GCR 1963, 115.1 clearly states that such motions must be made prior to responding to the objectionable pleading. Having failed to do this, defendant is precluded from filing the motion, and the granting of the motion by the trial court was therefore erroneous and will not serve as a basis for summary judgment.

Plaintiff is allowed to file his amended complaint. We reverse and remand for proceedings consistent with this opinion.

NOTES

[1] Defendant attempts to distinguish Tiedman, supra, by claiming that it involved a consent judgment which is not a judgment act but an act between the parties needing consent as to substance and form before becoming valid. See, Norton Shores v Carr, 59 Mich App 561; 229 NW2d 848 (1975). Defendant contends that although a written judgment was necessary in Tiedman because of its consensual nature, no such document is needed in the present case which involves a judicial decree. Defendant misconstrues Tiedman. Tiedman involved more than a consensual property settlement. Tiedman held that the divorce itself was not effective without a written judgment. Although property settlements may be consensual, the act of decreeing the parties divorced is not. The parties may not merely file for divorce and then consent to a divorce judgment without participation of the court. A decree of divorce needs judicial imprimatur to be effective. See GCR 1963, 728.2(2). Therefore, the judgment in Tiedman related to a judicial act, not merely an act between the parties. As such it is not distinguishable but instead controlling.