Brucker v. McKinlay Transport, Inc.

571 N.W.2d 548 (1997) 225 Mich. App. 442 Wilber M. BRUCKER, Jr., Plaintiff-Appellee, v. McKINLAY TRANSPORT, INC., Defendant-Appellant, and Deloitte, Haskins & Sells, Defendant. Wilber M. BRUCKER, Jr., Plaintiff-Appellee, v. McKINLAY TRANSPORT, INC., and Deloitte, Haskins & Sells, Defendants-Appellants. Docket Nos. 202308, 202309. Court of Appeals of Michigan. Submitted April 8, 1997, at Lansing. Decided September 16, 1997, at 9:20 a.m. Released for Publication December 23, 1997. *549 Freeman McKenzie by George J. Freeman and Katherine Wheeler King, Mt. Clemens, for Wilber M. Brucker, Jr. Dykema Gossett P.L.L.C. by Craig L. John and Mary E. Royce, Bloomfield Hills, for McKinlay Transport, Inc. Before HOLBROOK, P.J., and JANSEN and O'CONNELL, JJ. ON REMAND JANSEN, Judge. These consolidated appeals are before us on remand from the Supreme Court "for consideration of the issues raised by the parties in their briefs on appeal." Brucker v. McKinlay Transport, Inc., 454 Mich. 8, 9, 19, 557 N.W.2d 536 (1997). We now reverse the June 8, 1992, order and judgment of the circuit court in plaintiff's favor in the amount of $2,880,898.99 and remand for judgment to be entered in favor of plaintiff in the amount of $100,000 as required by the parties' contract. This dispute involves a long and complicated factual and procedural history. The facts surrounding this case have been set forth in this Court's previous opinion[1] and our Supreme Court's opinion. We will set forth the facts necessary to resolve the issues raised by the parties. I In May 1982, McKinlay Transport, Inc., purchased U.S. Truck Company, Inc., and other smaller truck companies that were wholly owned by U.S. Truck. The sale was formalized with a stock purchase agreement dated May 13, 1982, and the parties executed a supplement to the agreement on November 1, 1982. Plaintiff Wilber M. Brucker, Jr., represents the shareholders of U.S. Truck. Under the terms of the stock purchase agreement, McKinlay Transport was to pay ninety percent of the "consolidated book value net worth" of U.S. Truck calculated on the "control date" set forth in the agreement. The agreement set forth the manner in which the accountants were to determine the figure. The agreement also provided for arbitration if there was a dispute regarding the accountants' findings. However, the agreement stated that "[a]ny questions of contract interpretation shall be determined by the Circuit Court for the County of Macomb." The first auditor, Arthur Young & Company, found the book value net worth to be $1,900,167, but McKinlay Transport did not accept this figure. It then exercised its right to arbitration as provided in the stock purchase *550 agreement. In August 1989, the parties ultimately agreed that BDO Seidman would be the arbitrator. In February 1991, BDO Seidman submitted questions of contract interpretation to the circuit court. Thereafter, the circuit court rendered its opinion regarding those issues. In December 1991, BDO Seidman submitted its thirteen-page findings and determined that the consolidated book value of U.S. Truck did not exceed $1,497,306. However, with regard to one portion of the stock purchase agreement (pension liability), BDO Seidman presented two alternative calculations, depending on the circuit court's interpretation of a paragraph in the agreement. Plaintiff filed a motion requesting that the circuit court adopt the second alternative, while defendant wanted the circuit court to adopt the first alternative. Basically, the question of contract interpretation for the circuit court was whether the phrase "any other benefits" as used in the stock purchase agreement was to include pension plan liabilities. The pension plan liabilities of U.S. Truck amounted to $8,336,600. If applied to the book value of the company, the net value would result in a negative figure. Under the terms of the stock purchase agreement, in such a situation, McKinlay Transport would have to pay $100,000 to the shareholders of U.S. Truck as the purchase price. The circuit court, however, adopted the second alternative calculation (the one requested by plaintiff). The effect of this was to not apply the pension plan liability of $8,336,600 to the consolidated book value of the company. The circuit court accordingly entered judgment in plaintiff's favor in the amount of $2,880,898.99. On appeal, defendant McKinlay Transport raises three issues. It argues that the circuit court erred in adopting the second alternative calculation because, under the clear and unambiguous terms of the stock purchase agreement, the phrase "any other benefits" includes pension plan liability. McKinlay Transport also argues that the circuit court erred in reversing the arbitrator's decision reducing the consolidated book value to reflect U.S. Truck's withdrawal liability for its subsidiary, Red Ball Trucking & Leasing, Inc. Finally, McKinlay Transport also argues that the circuit court erred in prohibiting the arbitrator from determining whether the equipment transferred by U.S. Truck pursuant to the stock purchase agreement comported with its representations regarding the condition of the equipment. We agree with defendant that the circuit court erred in interpreting the stock purchase agreement with respect to pension liability. II The posture of this case now requires us to review the circuit court's interpretation of the parties' stock purchase agreement.[2] The initial question whether contractual language is ambiguous is a question of law. Port Huron Ed. Ass'n v. Port Huron Area School Dist., 452 Mich. 309, 323, 550 N.W.2d 228 (1996). If the contractual language is clear and unambiguous, its meaning is a question of law. Id. Where the contractual language is unclear or susceptible to multiple meanings, interpretation is a question of fact. Id. Questions of law are reviewed de novo on appeal, Pakideh v. Franklin Commercial Mortgage Group, Inc., 213 Mich.App. 636, 640, 540 N.W.2d 777 (1995), while factual findings are reviewed under the "clearly erroneous" standard of review. MCR 2.613(C). III The first issue concerns the interpretation of the following paragraph in the stock purchase agreement: *551 2.2.3.3 Cancellation of Benefits. A reserve or credit, as the case may be, shall be established for all liabilities, costs, expenses or refunds for the cancellation of all insurance policies whatsoever (health, life, disability, or otherwise) and any other benefits as if the cancellation had occurred at the time Buyer assumed control on the Control Date. In the event the 1981 U.S. Truck Group Salaried Pension Plan Contribution is not paid by the Company in the full amount accrued as a liability by the U.S. at the Control Date, full credit therefore will be given to Seller on the closing hereof. The key question to be determined is whether the phrase "any other benefits" includes pension plans. The circuit court ruled that § 2.2.3.3 did not require an assumed cancellation of pension benefits. The circuit court stated that § 2.2.3.3 addressed the cancellation of current benefits, rather than withdrawal from a pension plan, which constituted a form of deferred compensation. In this case, the phrase "any other benefits" is subject to interpretation because the phrase is somewhat ambiguous and broad. When presented with a contractual dispute, a court must determine what the parties' agreement is and enforce it. G & A Inc. v. Nahra, 204 Mich.App. 329, 330, 514 N.W.2d 255 (1994). Contractual language is to be given its plain and ordinary meaning, and technical and constrained constructions are to be avoided. Id., p. 331, 514 N.W.2d 255. We find that the plain and ordinary meaning of the word "benefits" includes pension plans. The language of the stock purchase agreement is better understood in the context of the pension plans involved in this case. U.S. Truck participated in the Central States Pension Plan, a multiemployer pension plan. The Central States Pension Plan provided benefits for its Teamster union employees under a collective bargaining agreement. Pursuant to 29 U.S.C. § 1381, when a company cancels its participation in a multiemployer pension plan, a withdrawal occurs. When a withdrawal occurs, the company becomes immediately liable to the multiemployer pension fund for the unfunded vested pension benefits allocable to the employer as its proportional share of the pension plan's total unfunded vested benefits. 29 U.S.C. §§ 1383, 1391. Given this context, the language of § 2.2.3.3 becomes clear because it requires that a reserve be established for the cancellation of any other benefits as if the cancellation had occurred on the control date. Therefore, the unfunded vested proportional liability of U.S. Truck was easily calculated by two separate accounting firms. Further, the stock purchase agreement, when read as a whole, evidences an intent that "benefits" was to include pension plans. Section 2.2 of the agreement and the following subsections are an attempt to reflect all liabilities and credits in arriving at the consolidated book value of the company. Obviously, such liabilities, including pension plans, will be of utmost concern regarding the sale of any business. Moreover, § 3.18 of the stock purchase agreement provides: Employee Benefit Plans. There are not now, nor on the Control Date will there be, any commitments made for health insurance, life insurance, profit sharing, stock options, share purchase, retirement, or any other benefits whatsoever to which any shareholder, director, officer, employee or other person may be entitled for which [U.S. Truck] may be or become liable which cannot be terminated upon 30 days notice or less and without premium, penalty or liability, except to the extent of liability set forth in Exhibit "L." As noted by defendant, this warranty could only be true if the consolidated book value of U.S. Truck was reduced by the unfunded vested benefits existing on the control date such that defendant would not suffer a liability if the pension benefits were canceled. Therefore, under a plain reading of the contract as a whole, it is clear that the parties intended that "any other benefits" would include pension plans. Further, the circuit court's reasoning is faulty in that it mistakenly believed that only one pension plan existed, rather than many plans, because U.S. Truck was involved in many pension plans. The circuit court also erred in concluding that benefits did not include pension plans because pension plans are a form of deferred compensation. Although *552 a pension plan is deferred compensation from the standpoint of the employee, it is not deferred from the standpoint of the company, which must contribute periodically to the plan. Thus, a pension plan is always a liability from the standpoint of the company that is contributing to it. The value of the vested pension benefits at the time of the control date was calculated to be $8,336,600, which is a liability from the viewpoint of the company. The judgment granted plaintiff $2,880,898.99; however, the pension plan liability must be subtracted from that judgment. Pursuant to the supplement to the stock purchase agreement, defendant agreed to pay at least $100,000 for U.S. Truck. Therefore, we vacate the judgment of $2,880,898.99 and remand for judgment to be entered in the amount of $100,000. IV Next, defendant argues that the circuit court erred when it reversed BDO Seidman's determination that the consolidated book value of U.S. Truck should be reduced by $113,000 to account for U.S. Truck's pension plan liability with respect to Red Ball Trucking on the control date. Section 2.2.3.4 of the stock purchase agreement provides: Withdrawal liability of Red Ball Trucking & Leasing, Inc. Accountants shall accrue all costs and expenses necessary, including a stated withdrawal liability of Two Hundred Thirty-Six Thousand ($236,000.00) Dollars, to defend the asserted withdrawal from the Central States Southeast and Southwest Areas Health and Welfare and Pension Funds covering Red Ball Trucking & Leasing, Inc. (formerly Nashville Pool Car, Inc.) in excess of One Hundred Twenty-Three Thousand ($123,000.00) Dollars. The arbitrator properly read the stock purchase agreement as requiring a total of $236,000 to be recognized as a liability. Because the buyer assumed $123,000 as a liability, the arbitrator reduced the consolidated book value of U.S. Truck by $113,000. The arbitrator's determination was in accord with the stock purchase agreement. Accordingly, the circuit court erred in setting aside the arbitrator's determination in this regard. The circuit court was persuaded by the fact that no withdrawal liability was actually incurred; however, this is irrelevant under the clear and unambiguous terms of the contract. A $236,000 liability was presumed by the parties, of which $123,000 was assumed by defendant. Therefore, the arbitrator's determination was in accord with the plain terms of the contract and the circuit court erred in reversing the decision of the arbitrator with regard to this matter. The consolidated book value of U.S. Truck was properly reduced by $113,000 by the arbitrator. V Lastly, defendant argues that the circuit court erred in not allowing BDO Seidman to account for the cost to repair and replace U.S. Truck's property to "good and proper roadworthy condition" on the control date. Essentially, defendant contends that the circuit court erred in prohibiting the arbitrator from determining whether the condition of equipment transferred pursuant to the stock purchase agreement comported with plaintiff's representation regarding its condition. Under § 3.27 of the agreement, plaintiff was to maintain certain equipment in "good and proper operating and roadworthy condition" through the control date and assure that the market value of the equipment would not be less than its book value. Defendant contended that a significant amount of the equipment was not in the condition required by the agreement. Defendant now seeks to reduce the consolidated book value to comport with the true condition of the equipment. Defendant is not entitled to any relief in this regard. Section 4.0 of the agreement provides that should a material breach occur with respect to any of the representations, defendant would have the right to waive the breach for purposes of the sale of the company, then pursue its rights in court, or terminate the agreement. Section 4.0 does not *553 provide for the remedy that defendant seeks—reduction in book value. Accordingly, the agreement expressed the remedies available to defendant with respect to the equipment, and reduction in book value was not one of them. Therefore, the trial court did not err in not allowing defendant to pursue this remedy. In conclusion, we find that the trial court erred in entering judgment in favor of plaintiff in the amount of $2,880,898.99 because the pension liability for the unfunded vested pension plan of over $8 million and the withdrawal liability of Red Ball Trucking in the amount of $113,000 reduced the consolidated book value of U.S. Truck to a negative figure. The circuit court erred in not calculating those liabilities to figure the consolidated book value of U.S. Truck. Therefore, the judgment of $2,880,898.99 is vacated and we remand for the circuit court to enter judgment in the amount of $100,000. We do not retain jurisdiction. HOLBROOK, P.J., concurs. O'CONNELL, Judge, concurring. I concur only in the result reached by the majority in the third section of its opinion. In light of this, I believe it is unnecessary to reach the issues addressed in sections four and five of that opinion.[1] NOTES [1] Brucker v. McKinlay Transport, Inc., 212 Mich.App. 334, 537 N.W.2d 474 (1995). [2] Under any other circumstance, only the arbitrator can interpret the contract where the parties have agreed to arbitration. Kaleva-Norman-Dickson School Dist. No. 6 v. Kaleva-Norman-Dickson School Teachers' Ass'n, 393 Mich. 583, 591, 227 N.W.2d 500 (1975). However, our Supreme Court stated that "our analysis of the arbitration issue raised sua sponte by the Court of Appeals is prospective, and does not affect the stipulated manner of arbitration adopted by the parties in this case." Brucker, 454 Mich. at 18, 557 N.W.2d 536. We have also been ordered by the Supreme Court to address the issues raised by the parties in their briefs on appeal. We emphasize that this opinion cannot and should not be read for the proposition that courts may engage in contract interpretation of arbitration agreements. Only an arbitrator may do so. We are interpreting the terms of this contract only because of our Supreme Court's order. [1] But for the Supreme Court's edict in Brucker v. McKinlay Transport, Inc., 454 Mich. 8, 19, 557 N.W.2d 536 (1997), I would strike the clauses that are contrary to the statutory arbitration act, M.C.L. § 600.5001 et seq.; M.S.A. § 27A.5001 et seq., and remand to the arbitrator for further proceedings, Brucker v. McKinlay Transport, Inc., 212 Mich.App. 334, 344, 537 N.W.2d 474 (1995) (O'Connell, J., dissenting).