Appeal from the St. Joseph Superior Court; The Honorable Margot F. Reagan, Judge; 71D04-1212-PL-279.
ATTORNEYS FOR APPELLANT: John D. Ladue, Erin Linder Hanig, LaDue, Curran & Kuehn, LLC, South Bend, Indiana; Ronald L. Marmer, Marmer Law Offices, LLC, Chicago, Illinois.
ATTORNEYS FOR APPELLEE: James F. Groves, Lee, Groves & Zalas, South Bend, Indiana; Elkan Abramowitz, Thomas M. Keane, Daniel F. Wachtell, Morvillo, Abramowitz, Grand Iason & , Anello, P.C., New York, New York.
May, Judge. Friedlander, J., concurs. Vaidik, C.J., dissents with opinion.
[¶ 1] AM General LLC appeals summary judgment for James A. Armour. As AM General designated evidence to refute Armour's contentions in its response to Armour's motion for summary judgment, the summary judgment was in error. We reverse and remand for trial.
Facts and Procedural History
[¶ 2] The undisputed facts of this case, as iterated by the trial court, are:
Mr. Armour is the former President, CEO and Chairman of AM General. He retired on or about January 2, 2012. From 2007 until his retirement, Armour had worked for AM General pursuant to a written Employment Agreement, entered into as of November 14, 2007.
The Employment Agreement provides that AM General must " pay" Armour: (i) an annual salary; (ii) an annual bonus; and (iii) LTIP [Long-Term Incentive Payment] payments calculated according to a method set forth in Schedule A to the Employment Agreement. There is no dispute that the total amount of the LTIP payments yet owed to Armour under the Employment Agreement is $[redacted].
The LTIP provisions of the Employment Agreement further provide that the LTIP payment to Armour would be made " at the time bonus payments under Section 2(a)(ii) are paid to other employees of [AM General] with respect to the Employer's 2011 fiscal year." Armour was paid his annual bonus under Section 2(a)(ii) of the Employment Agreement for AM General's 2011 fiscal year on or about January 20, 2012. According to AM General officers, other AM General employees also received their 2011 bonuses on or about January 20, 2012.
Rather than pay Armour the LTIP payment at the time fiscal year 2011 bonuses were paid, AM General began paying him cash over three payments. During 2012, AM General paid Armour a total of $[redacted] of the $[redacted] due to him pursuant to the LTIP provisions of the Employment Agreement. Specifically, AM General paid Armour: $[redacted] (less taxes) by check dated March 14, 2012; $[redacted] (less taxes) by check dated May 15, 2012; and $[redacted] (less taxes) by check dated August 15, 2012. These payments were identified as LTIP payments on the
Earnings Statements accompanying the checks and in a reconciliation statement provided to Armour by the AM General human resources department. The difference between the $[redacted] due to Armour pursuant to the LTIP provisions of the Employment Agreement and the $[redacted] paid to him pursuant to the LTIP provisions of the Employment Agreement is $[redacted].
On or about December 14, 2012, Barry Schwartz, the Vice Chairman of [sic] the managing member of AM General's parent company, sent Armour a Promissory Note (" Note" ) from AM General, which Mr. Schwartz stated was " in satisfaction of remaining amounts owed to you under your November 2007 Employment Agreement." The Note stated that it was intended to reflect " all amounts due and payable to the Holder [Mr. Armour] pursuant to that certain Employment Agreement . . . dated as of November 14, 2007, between the Company [AM General] and the Holder, which is the gross amount of $[redacted] ...