Ashker v. Aurora Medical Group, Inc.
841 N.W.2d 297
Wis. Ct. App.2013Background
- Ashker and Aurora entered into a written employment agreement effective October 1, 2007 with termination provisions.
- Terminations could occur (a) immediately for seven listed events, (b) for material breach with 30 days to cure after written notice, or (c) without cause with ninety days' notice and ninety days' pay.
- Aurora terminated Ashker immediately after learning of accusations Ashker attempted to delete a patient’s medical records; none of the listed events occurred and no cure period or pay was provided.
- Ashker sued for breach of contract, and for breach of the duty of good faith and fair dealing; he also alleged defamation and tortious interference with contract.
- The circuit court granted summary judgment ordering ninety days' pay under the without-cause provision and dismissed the other claims; Aurora appealed and Ashker cross-appealed.
- The court affirmed, concluding Aurora breached the contract by terminating outside the contractual terms and Ashker was entitled to ninety days' pay; other claims were properly dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May Aurora terminate immediately for incurable breach under the contract? | Ashker: contract has no uncaptured right to immediate termination. | Aurora: implied right to terminate for incurable breach exists outside enumerated terms. | No immediate termination right; only enumerated events, cure, or ninety-days payoff. |
| Damages for termination without cause under the contract? | Ashker entitled to ninety days' pay under without-cause clause. | Aurora disputes the scope of without-cause damages given alleged cause and cure issues. | Ashker awarded ninety days' pay; contract language controls. |
| Defamation claim sufficiency under Wisconsin pleading rules? | Ashker asserts false statements harmed reputation. | Aurora: statements not specified and pleadings insufficient. | Defamation claim properly dismissed. |
| Tortious interference with contract based on references? | Ashker contends references interfered with prospective contracts. | Aurora argues presumptions of good faith and lack of proven malice or falsity. | Tortious interference claim properly dismissed. |
Key Cases Cited
- Green Spring Farms v. Kersten, 136 Wis.2d 304 (Wis. 1987) (summary judgment standard; no genuine issues of material fact)
- Sonotone Corp. v. Ladd, 117 N.W.2d 591 (Wis. 1962) (notice affects contract continuation and damages)
- Freiburger v. Texas Co., 257 N.W. 592 (Wis. 1934) (damages when at-will termination occurs without notice)
- Seidling v. Unichem, Inc., 191 N.W.2d 205 (Wis. 1971) (distinction between termination and rescission)
- Manpower Inc. v. Mason, 377 F. Supp. 2d 672 (E.D. Wis. 2005) (rescission vs. cancellation/damages context in contract law)
- Larken, Inc. v. Larken Iowa City Ltd. P'ship, 589 N.W.2d 700 (Iowa 1998) (distinction between right to cancellation and termination)
- Young Travelers Day Camps, Inc. v. Felsen, 287 A.2d 231 (N.J. Dist. Ct. 1972) (cancellation vs. termination concepts in contract law)
- LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639 (Pa. 2009) (good faith and references in contract relations)
- Entzminger v. Ford Motor Co., 177 N.W.2d 899 (Wis. 1970) (material breach and its effect on performance)
- Lyon v. Pollard, 87 U.S. 403 (U.S. 1874) (general contract termination principles)