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Stout v. Fisher Industries12/1/1999
Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Allan L. Schmalenberger, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
[ ] Don Stout appealed a judgment dismissing his amended complaint against Fisher Industries, Inc., and Fisher Sand and Gravel Co. ("Fisher") for breach of an employment contract. We affirm.
[ ] In March 1995, Stout responded to an advertisement seeking a president of Fisher in Dickinson. He had an interview with Sheila Fisher, Ken Viall, and three other Fisher representatives in Minneapolis in June 1995. Stout had a second interview in July in Chicago, with Sheila Fisher, Viall, and two other Fisher representatives.
[ ] Stout came to Dickinson in August 1995 to begin employment with Fisher. He refused to go to the office, however, because he did not have a contract with Fisher. Stout, Sheila Fisher, and Viall met in Bismarck on August 30, 1995, and agreed on Stout's base salary of $160,000 per year and agreed to have an incentive program. Stout began working for Fisher.
On September 2, 1995, Stout, Sheila Fisher, and Viall executed a document providing in part:
The following is eight general terms that were agreed to in the employment of Don Stout by Fisher Industries:
3. An incentive bonus program will be entered into which be satisfactory to both parties. Based on our Discussions this program will either be similar to the program that you had at Dresser or a scaled-up bonus program based on the percentage of profits of the company. Also, the bonus pool concept will be investigated. Any profit-sharing contribution will be deducted from bonus paid on this program.
6. A salary deferral program will be investigated.
8. A severance pay package will be included in the agreement.
[ ] Stout unsuccessfully continued to attempt to obtain a final written employment contract with Fisher. On June 6, 1996, Stout received a termination letter signed by Gene Fisher, who had assumed control of Fisher when Gene Fisher and Sheila Fisher divorced.
[ ] Stout sued Fisher, alleging in part:
Stout was hired as President of Fisher Industries, Inc. and was given a contract wherein, among other things, he was to receive a salary of $160,000.00 per year; a bonus based on earnings which would amount to 10% of the increase in earnings over the 1995 earnings up to a 1 million dollar increase, 15% on the increase between 1 and 2 million dollars, and 20% on any increase over 2 million dollars; a severance package which would be three years base pay plus any incentives earned; and other benefits which include the use of a 4-wheel drive vehicle; $20,000.00 for moving and real estate closing expenses; normal company benefits to include Blue Cross health insurance and vacation and sick leave accrual.
Stout sought to recover "three years base pay of $160,000.00 per year, for a total of $480,000.00, plus three years incentive pay in the amount of 1.7 million dollars."
[ ] Fisher moved for summary judgment.
Stout opposed Fisher's motion and filed a counter motion for partial summary judgment:
He further moves the Court that, should the Court find that there is in fact a contract and that the terms are such that there are no issues of fact for a jury to find, that the Court grant him partial summary judgment holding that he is entitled to three years severance pay based on the oral contract which is supplemented by written memorandum thereof, and schedule the matter for a jury trial only as to the issue of the amount of bonus
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