REILLY, J.
¶ 1 Lawrence Ashker, D.O., was a radiologist employed by Aurora Medical Group, Inc. Ashker and Aurora entered into an employment contract that allowed Aurora to unilaterally terminate Ashker's employment in one of three ways: (1) termination immediately upon the occurrence of any one of seven specific events; (2) termination upon a material breach of the contract, provided Aurora gave Ashker written notice specifying the breach and gave Ashker thirty days to cure the breach; and (3) termination for any reason (i.e., "without cause") with ninety days' notice and ninety days' pay. Aurora terminated Ashker's employment without following any of the three contractual options. Aurora terminated Ashker, effective immediately, when it learned that Ashker was accused of trying to cover up medical malpractice by attempting to delete medical records. Ashker's action did not fall within the enumerated list of events that would allow Aurora to immediately terminate his employment, Aurora did not give Ashker thirty days to cure the breach, and Aurora did not provide Ashker with ninety days of pay.
¶ 2 The circuit court, on motions for summary judgment, awarded Ashker ninety days' pay per the "without cause" clause of his employment contract and dismissed Ashker's claims for breach of the duty of good faith and fair dealing, defamation, and tortious interference with contract. Aurora appeals the court's order on Ashker's breach of contract claim, and Ashker cross-appeals the court's remaining rulings. We affirm.
¶ 3 Ashker and Aurora entered into a written employment agreement effective October 1, 2007. The agreement provided specific means for its termination. Relevant to this appeal, the agreement provided:
The agreement also provided a list of seven specific occurrences that allowed Aurora to immediately terminate Ashker, none of which is applicable to this case.
¶ 4 Shortly after he began working for Aurora, Ashker misdiagnosed a patient when he failed to spot a lesion on an x-ray image. After another physician notified Ashker of his error, several Aurora employees reported that Ashker inquired about deleting images from the patient's medical file. One employee claimed that Ashker offered money to make the deletion. Following an investigation, Aurora's Management Committee voted to discharge Ashker. A letter of termination was given to Ashker the day of the vote, informing him that his employment was "terminated for cause under provision of article 5.1.4" of the employment agreement for behavior that "does not align with our values of accountability, teamwork and respect," which Aurora stated was "not curable."
¶ 5 Ashker sued Aurora for breach of contract or, alternatively, for breaching its duty of good faith and fair dealing by failing to abide by the termination provisions of the employment agreement. Ashker also alleged in the complaint that Aurora had defamed him by making "false and defamatory statements" and providing "false information" about him to others and that these statements had interfered with a "contractual relationship" and potential contracts for employment.
¶ 6 We review a decision on summary judgment employing the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-17, 401 N.W.2d 816 (1987). We will affirm a decision granting summary judgment if we find "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." WIS. STAT. § 802.08(2) (2011-12).
¶ 7 The interpretation of a contract presents a question of law reviewed independently on appeal. Tufail v. Midwest Hospitality, LLC, 2013 WI 62, ¶ 22, 348 Wis.2d 631, 833 N.W.2d 586. "Where the terms of a contract are clear and unambiguous, we construe the contract according to its literal terms." Id., ¶ 26. The contract at issue is clear and unambiguous.
¶ 8 Aurora appeals the circuit court's order that it pay Ashker for ninety
¶ 9 The contract expressly limited Aurora's ability to immediately terminate Ashker to seven, specific events, none of which the parties allege to have occurred. The contract further allowed Aurora to terminate Ashker for a "material breach or violation of its terms," provided that Aurora give Ashker thirty days' written notice and opportunity to cure the breach. Aurora did not do this. The only remaining manner in which Aurora could unilaterally terminate Ashker's employment was by resorting to the catch-all "without cause" section of the employment agreement, under which it was obligated to provide ninety days' notice or pay. Aurora provided notice when it told Ashker his employment was being terminated. The court properly ordered Aurora to pay Ashker for ninety days of work, which he was due under the "without cause" provision of the employment agreement.
¶ 10 As the court properly granted summary judgment on Ashker's breach of contract claim, we need not review the dismissal of Ashker's other, related contractual claim for breach of the duty of good faith and fair dealing.
¶ 11 Ashker sued Aurora for defamation related to allegedly false statements made by its employees about Ashker. Ashker did not specify in his complaint what statements were allegedly false, and his pleadings were not amended. The general allegation in his complaint that Aurora made false statements does not meet the statutory requirement that "the particular words complained of shall be set forth in the complaint" for a defamation claim. See WIS. STAT. § 802.03(6). The circuit court properly dismissed this claim.
¶ 12 Ashker also contended that Aurora had "intentionally interfered" with prospective contracts he had with potential employers by completing evaluations of him at others' request, the result of which he alleged had led at least one employer to "let [him] go." To prevail on a claim of tortious interference with contract based on statements made in an employment reference, Ashker has to overcome the presumption that the employer provided the statements in good faith. See WIS. STAT. § 895.487(2). This can be done "only upon a showing by clear and convincing evidence that the employer knowingly provided false information in the reference, that the employer made the reference maliciously or that the employer made the reference in violation of" state employment discrimination laws. Id. Ashker did not present any evidence that demonstrates he could meet this burden. The court properly dismissed this claim.
¶ 13 Aurora breached its contract with Ashker when it terminated Ashker in contravention
¶ 14 No costs to either party.
Order affirmed.
NEUBAUER, J. (concurring).
¶ 15 I write to address (1) Aurora's contention that it is entitled to terminate immediately for an incurable material breach,
¶ 16 As regards the parties' breach of contract claims, I agree that the detailed contractual provisions comprehensively address termination. I also agree that there is no unstated eighth "catch-all" right to terminate immediately in the event of an incurable material breach not listed in the contract. However, I disagree as to the contractual options available to Aurora in that event. The comprehensive contractual scheme addresses unlisted, incurable breaches like the one here. When such a breach occurs, Aurora could discharge Ashker immediately for an incurable material breach, but the effective "for cause" termination date would be the contractually required thirty days. See Sonotone Corp. v. Ladd, 17 Wis.2d 580, 585-86, 117 N.W.2d 591 (1962) (legal effect of a notice of cancellation that failed to comply with contract requirement that notice be given a specified number of days before the cancellation date is that contract continued in force until lapse of specified period).
¶ 17 However, rather than seeking to limit damages to thirty days, Aurora argues that, absent a right to terminate immediately, Ashker's damages should be limited to the ninety-day period provided in the "at-will" termination provision. Given Aurora's position, I agree that because Aurora could terminate Ashker at any time for any reason under the "without cause" provision, Ashker is limited to the ninety days' damages provided in the at-will termination provision in the contract. Freiburger v. Texas Co., 216 Wis. 546, 550, 257 N.W. 592 (1934) (when at-will contract is terminated without required notice, damages are limited to the notice period).
¶ 18 While the majority does not address the foreign rescission cases Aurora cites,
¶ 19 Under the circumstances, I concur with the majority's conclusion.