United Rentals (north America), Inc. v. JERRY KEIZER, GRANT RENT- ALL, INC. and MULDER’S OUTDOOR POWER EQUIPMENT, INC.

*The Honorable William Stafford, United States District Judge for the
Northern District of Florida, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0005P (6th Cir.)
File Name: 04a0005p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED RENTALS (NORTH
AMERICA), INC.,
Plaintiff-Appellant,
v.
JERRY KEIZER, GRANT RENT-
ALL, INC. and MULDER’S
OUTDOOR POWER
EQUIPMENT, INC.,
Defendants-Appellees.
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No. 02-1580
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 00-00831—Douglas W. Hillman, District Judge.
Argued: October 28, 2003
Decided and Filed: January 7, 2004
Before: CLAY and COOK, Circuit Judges; STAFFORD,
District Judge.*
2 United Rentals v. Keizer, et al. No. 02-1580
_________________
COUNSEL
ARGUED: Robert H. Smeltzer, LOWIS & GELLEN,
Chicago, Illinois, for Appellant. Steven C. Berry, BIGLER,
BERRY, JOHNSTON, SZTYKIEL & HUNT, Zeeland,
Michigan, for Appellees. ON BRIEF: Robert H. Smeltzer,
Gerald Haberkorn, LOWIS & GELLEN, Chicago, Illinois,
Harold E. Nelson, BORRE, PETERSON, FOWLER &
REENS, Grand Rapids, Michigan, for Appellant. Steven C.
Berry, BIGLER, BERRY, JOHNSTON, SZTYKIEL &
HUNT, Zeeland, Michigan, Robert W. Smith, SILVERMAN,
SMITH, BINGEN & RICE, Kalamazoo, Michigan, for
Appellees.
CLAY, J., delivered the opinion of the court, in which
COOK, J., joined. STAFFORD, D. J. (pp. 27-28), delivered
a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff United Rentals (North
America), Inc. appeals from the April 5, 2002, district court
order granting summary judgment to Defendants Jerry Keizer,
Grant Rent-All, Inc. and Mulder’s Outdoor Power Equipment,
Inc. on Plaintiff’s claims for breach of contract; violation of
the Michigan Uniform Trade Secrets Act, Mich. Comp. Laws
Ann. § 445.1902; intentional interference with contract;
intentional interference with business relations; civil
conspiracy; and breach of a fiduciary duty of loyalty. The
Court AFFIRMS the district court’s order.

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No. 02-1580 United Rentals v. Keizer, et al. 3
I.
STATEMENT OF FACTS
A. Procedural History
On November 7, 2000, United Rentals (North America),
Inc. (“United”) filed a complaint against Defendants Jerry
Keizer, Grant Rent-All, Inc. and Mulder’s Outdoor Power
Equipment, Inc. (“Mulder’s”). Since the parties are
completely diverse and the amount in controversy exceeds
$75,000, the district court had subject matter jurisdiction over
the matter.
The complaint alleged that Keizer violated his covenant-
not-to-compete set forth in ¶ 7.2 of his employment
agreement by selling construction equipment and soliciting
United’s customers in a proscribed geographic area, the so-
called “Target Area.” The complaint further alleged that
Keizer, Grant Rent-All and Mulder’s continue to compete
with United in the Target Area and do so with United’s
proprietary information in violation of ¶ 7.3 of the agreement
and the Michigan Uniform Trade Secrets Act. The complaint
also alleged a claim for tortious interference with business
relations – i.e., Defendants allegedly interfered with the
business relationship between United and its customers; a
claim that Mulder’s tortiously interfered with Keizer’s
obligations under the employment agreement; and a civil
conspiracy by all Defendants to breach the restrictive
covenants of the employment agreement, interfere with
United’s business relations; misappropriate United’s
confidential information; and to improperly solicit and do
business with United’s customers.
United sought an injunction against Keizer and Grant Rent-
All (and Mulder’s, to the extent it is doing business with
Keizer or Grant Rent-All) from competing with United in the
Target Area for a specified period of time, disclosing United’s
confidential information and soliciting United’s customers in
the Target Area for a specified period of time. United also
4 United Rentals v. Keizer, et al. No. 02-1580
sought to affirmatively compel Defendants to locate and
return any and all of United’s confidential information. The
complaint also sought an accounting from Defendants for
Keizer’s alleged breach of the employment agreement and an
award of actual and punitive damages. On August 24, 2001,
United filed an amended complaint adding a claim against
Keizer for breach of a fiduciary duty of loyalty.
Defendants Keizer and Grant Rent-All answered the
complaint, and Keizer filed a counter-claim against United on
February 21, 2001, alleging that United breached the
employment agreement by terminating him without prior
notice and without cause on March 6, 2000; Keizer sought his
unpaid salary under the agreement from March 6, 2000
through May 31, 2003. Defendant Mulder’s answered the
complaint on August 13, 2001. United filed an answer to the
counterclaim on March 31, 2001. Keizer and Grant Rent-All
filed an answer and counterclaim to the amended complaint
on September 13, 2001.
On November 1, 2001, Keizer and Grant Rent-All moved
for summary judgment on United’s complaint. On
November 2, 2001, United moved for summary judgment on
Count I of its complaint for breach of the non-competition
and non-solicitation provision of the employment agreement
and on Keizer’s counterclaim.
On April 5, 2002, the district court granted Keizer and
Grant Rent-All’s summary judgment motion, denied United’s
motion for summary judgment on Count I, and granted
United’s summary judgment motion on Keizer’s
counterclaim. The district court also entered judgment in
favor of Mulder’s on all counts in United’s complaint, even
though Mulder’s had not moved for summary judgment.
For the district court, the crux of the dispute boiled down to
the interpretation of the prohibition in ¶ 7.2 of Keizer’s
employment agreement which, inter alia, prohibits Keizer
from “directly or indirectly … engag[ing] in the operation of

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No. 02-1580 United Rentals v. Keizer, et al. 5
any equipment sale, rental or leasing business” in the Target
Area, excluding Newaygo County. The district court held
that this language prohibited Keizer from operating such a
business only if it is physically located within the Target
Area. Accordingly, Keizer did not breach the agreement by
operating Grant Rent-All, which is physically located in
Newaygo County, but nevertheless does one-third of its
business with customers inside the Target Area. Assuming
arguendo that the above-quoted language from ¶ 7.2 is
ambiguous, the district court further held that there was no
parol evidence in the record to support United’s contrary
interpretation of the agreement.
The district court dismissed United’s claim for breach of
the confidentiality clause (¶ 7.3 of the agreement) because
United had failed to submit any evidence showing that Keizer
had taken or used any confidential information, as defined by
the agreement. The district court also dismissed United’s
claim under the Michigan Uniform Trade Secrets Act. The
district court dismissed the tortious interference with business
relations, tortious interference with contract and civil
conspiracy claims because there was no evidence that
Defendants had wrongfully interfered with United’s business.
Last, the district court dismissed the breach of fiduciary duty
of loyalty claim because there is no evidence that Keizer did
not devote his full efforts to United’s business.
United filed its notice of appeal on May 3, 2002. Keizer
did not appeal the district court’s dismissal of his
counterclaim against United.
B. Substantive Facts
United is a Delaware corporation with its principal place of
business in Greenwich, Connecticut. United is in the business
of renting and selling construction and industrial equipment
throughout the United States. United purchased all of the
stock of Kubota of Grand Rapids, Inc. (“KGR”) on June 9,
1998. KGR was then merged into United. United is in the
6 United Rentals v. Keizer, et al. No. 02-1580
business of renting and selling construction and industrial
equipment in the Western Michigan area.
Jerry Keizer is a Michigan resident, a former owner of
KGR and former general sales manager of United/KGR.
Grant Rent-All is a Michigan corporation, with its principal
place of business in Grant, Michigan, which is within
Newaygo County. Keizer has been the owner and president
of Grant Rent-All since December 1994. Keizer never
worked at Grant Rent-All until May 2000. Grant Rent-All is
managed by Keizer’s step-son and step-son-in-law.
Mulder’s Outdoor Power Equipment, Inc. (“Mulder’s”) is
a Michigan corporation, with its principal place of business in
Byron Center, Michigan; it is in the business of renting and
selling construction and industrial equipment. Jerry Keizer’s
brother, Ron Keizer, is employed by Mulder’s.
Prior to June 1, 1998, Jerry Keizer owned one-third of
KGR’s stock. The other two-thirds were owned by Grand
Valley Investments, LLC (“GVI”), a limited liability
company consisting of the four Grasman brothers (Larry,
Jack, Russ and Rick.) GVI also fully owned and operated an
equipment business in Hudsonville known as Grand Valley
Equipment Company, Inc. (“GVEC”); Keizer had no interest
in GVEC. KGR is located in Grand Rapids, Michigan and is
in the business of selling construction, farm and landscaping
equipment such as tractors and commercial mowers.
In April 1998, United approached GVI with a letter of
intent to purchase the stock of both KGR and GVEC for
$22,750,000. United’s letter did not acknowledge the fact
that Keizer owned a significant amount of KGR stock; among
other things, the letter proposed that at closing, United would
enter into employment agreements with the four Grasman
brothers and that the Grasman brothers would enter into a
five-year non-compete agreement, but there was no reference
to Keizer.

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No. 02-1580 United Rentals v. Keizer, et al. 7
GVI, by contrast, clearly was aware that it did not own all
of the KGR stock and that in order for the proposed sale with
United to proceed, GVI needed to control all KGR stock.
Accordingly, GVI forwarded a copy of United’s letter of
intent to Keizer, along with a proposed stock option
agreement through which GVI would buy Keizer’s stock in
KGR. The stock option agreement recited that Keizer owned
7,250 KGR shares compared to GVI’s 14,500. It further
acknowledged that United had approached GVI about
purchasing all of GVEC’s stock and that the KGR shares
would be included in the proposed transaction.
For $5,000, Keizer granted GVI an option to purchase his
KGR shares for $1,475,000. Keizer agreed that if GVI
exercised the option, Keizer would “enter into an agreement
not to compete with KGR or GVEC for five years (other than
in Newaygo County) and otherwise in form and substance
acceptable to [United], for which KGR shall pay Keizer”
$25,000. Further, upon exercising the option, KGR would
enter into a five-year employment agreement with Keizer that
could be terminated only for just cause.
At this time, GVI also was aware that Keizer owned or
partially owned Grant Rent-All, a competing equipment sale
and rental business in Newaygo County. GVI also was aware
that Grant Rent-All had sold equipment to customers in the
Grand Rapids area, outside of Newaygo County. It is
undisputed that over one-third of Grant Rent-All’s customers
were located outside Newaygo County both before and after
the sale of KGR stock to United.
According to Keizer, the Stock Option Agreement
mentioned that Newaygo County would be excluded from the
non-competition agreement because Keizer had so requested
at a meeting with the Grasmans and their attorney, Stephen
Kretschman, on April 29, 1998. Keizer wanted an assurance
incorporated into the non-competition provision that if things
did not work out with United as his new employer that he
could “do business as usual in Newaygo” with Grant Rent-
8 United Rentals v. Keizer, et al. No. 02-1580
1Keizer’s testimony was corroborated by Richard, Russell and Terry
Grasman. United cites to the affidavit of Larry Grasman, which states
that his understanding of the non-competition agreement “was to allow
Jerry Keizer to compete with United only in Newaygo County.” (J.A.
181 5.)
All.1 Keizer signed the modified stock option agreement later
that day.
On May 20, 1998, Kretschman, the Grasmans’ attorney,
wrote United’s attorney, John Arndts, about the anticipated
employment agreement with Keizer. Kretschman’s letter
stated that he anticipated that Keizer’s employment agreement
would be “along the lines required of the Grasmans, but, in
the case of the non-compete, excluding Newaygo County,
where his son operates a competing business.” (J.A. 173-74.)
On May 26, Arndts wrote back with a form employment
agreement for Jerry Keizer to sign. Arndts further stated,
“[W]ith respect to excluding Newaygo County from the non-
competition provisions of Jerry’s agreement with [KGR], we
need more information concerning what competitive activities
are contemplated in Newaygo County by his son and Jerry.”
(J.A. 183.)
Thereafter, United made little effort to get any additional
information regarding the competitive activities of Grant
Rent-All. United asserts that its inquiries were limited
because the Grasmans had informed it that Grant Rent-All
was a business in which Keizer and his son or son-in-law
were involved, but that it was a very small business with a
different product line from the Grasmans and that it did
business only in Newaygo County. United does not claim,
however, that Keizer misled it about Grant Rent-All prior to
purchasing KGR’s and GVEC’s stock. In fact, United never
made any inquiries of Keizer about Grant Rent-All until
months after Keizer had signed his employment agreement.
The final version of Keizer’s employment agreement
contained the non-competition provision with the Newaygo

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No. 02-1580 United Rentals v. Keizer, et al. 9
exclusion. The Grasmans’ attorney, Kretschman, had
incorporated the exclusion into the form employment
agreement that had been provided to him by United’s
attorney. Kretschman testified that he incorporated the
Newaygo County exclusion into Keizer’s employment
agreement with KGR to “reflect the fact that there was a
business in Newaygo County that would … otherwise fall
within the scope of the non-compete that should be excluded
from it.” (J.A. 596). On June 1, 1998, Keizer sold his KGR
stock to GVI. On the same day, he signed the employment
agreement with KGR.
Paragraph 7.2 of the employment agreement contains the
following non-competition and non-solicitation provisions:
7.2 Competition and Solicitation For a period
commencing on the Closing Date and terminating five
(5) years thereafter (the “Restricted Period”), neither
the Employee nor any of his Affiliates shall, anywhere
in the Target Area, (as herein defined), directly or
indirectly, acting individually or as the owner,
shareholder, partner, or employee of any entity,
(i) engage in the operation of any equipment sale,
rental or leasing business; (ii) enter the employ of, or
render any personal services to or for the benefit of, or
assist in or facilitate the solicitation of any business
engaged in such activities; or (iii) receive or purchase
a financial interest in, make limitation, as a sole
proprietor, partner, shareholder, officer, director,
principal, agent trustee or lender, provided, however,
that the Employee may own, directly or indirectly,
solely as an investment, securities of any business
traded on any national securities exchange or
NASDAQ, provided the Employee is not a controlling
person of, or a member of a group which controls such
business and further provided that the Employee and
his Affiliates do not, in the aggregate, directly or
indirectly, own two percent (2%) or more of any class
of securities of such business. Employee and the
10 United Rentals v. Keizer, et al. No. 02-1580
2The agreement is governed by M ichigan law (¶ 9) and also contains
an integration clause which reads:
This Agreement contains the entire agreement of the parties and
supersedes all prior or contem poraneous nego tiations,
correspondence, understandings and agreements between the
Company agree that the sum of Twenty Five Thousand
Dollars ($25,000) Price shall be paid by the Company
to Employee in consideration of this covenant not to
compete upon execution of this Agreement. For
purposes hereof, the term “Target Area” shall mean the
area within the state of Michigan west of I-75 and U.S.
Route 23, but shall exclude Newaygo County.
(J.A. 29, ¶ 7.2.)
Paragraph 7.3 of the employment agreement contains the
following confidentiality provision:
7.3 Confidential Information During the Restricted
Period and thereafter, the Employee shall keep secret
and retain in strictest confidence, and shall not use for
the benefit of himself or others, all data and
information relating to the Business (“Confidential
Information”), including, without limitation, know-
how, trade secrets, customer lists, supplier lists, details
of contracts, pricing policies, operational methods,
marketing plans or strategies, bidding information,
practices, polices or procedures, product development
techniques or plans, and technical processes; provided,
however, that the term “Confidential Information”
shall not include information that (i) is or becomes
generally available to the public other than as a result
of disclosure by the Employee, or (ii) is general
knowledge in the equipment rental, sales or leasing
business and not specifically related to the Business.
(J.A. 29, ¶ 7.3.)2

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No. 02-1580 United Rentals v. Keizer, et al. 11
parties, regarding the subject matter o f this Agreement. This
Agreement may not be amended or m odified except in writing
signed by both parties and supported by new consideration.
(J.A. 3 2, ¶ 12 .)
3The employment agreement continued in force. The employment
agreement provides that it cannot be terminated “by any voluntary or
involuntary dissolution, reorganization, merger, consolidation or transfer
of assets of the Co mpa ny … , if a surviving or resulting corporation or
other entity or person continues … the business of the Company.” (J.A.
28, ¶ 6.6.) The agreement binds and “inure[s] to the benefit of the
corporation or other entity” and provides that Keizer would be a general
sales manager at that surviving entity. (J.A. 28, ¶ 6.6 . )
On June 9, 1998, United purchased from GVI all of the
stock and assets of KGR and GVEC for $22,750,000. On
October 1, 1999, KGR and GVEC merged with United.3 In
March 2002, United replaced Keizer as the general sales
manager, although his salary and benefits continued per the
employment agreement. Keizer resigned effective April 27,
2002, believing that his demotion from general sales manager
was a constructive discharge.
United’s complaint alleges that during the term of Keizer’s
employment, Keizer maintained an active interest in the
affairs of Grant Rent-All, a competitor of United, and
affirmatively misrepresented his interest in that business to
United. Specifically, the complaint alleges that Keizer
maintained his position as president of Grant Rent-All and
actively obtained financing for its equipment purchases.
When United asked Keizer about his interest in Grant Rent-
All, Keizer allegedly said that it was his son’s business, with
which he had nothing to do.
United alleges that, after resigning from United, Keizer
took a customer list and began surreptitiously competing with
United in the Target Area under the aegis of Grant Rent-All.
Specifically, United alleges that Keizer began selling
equipment to United’s customers within the Target Area;
12 United Rentals v. Keizer, et al. No. 02-1580
offering equipment for sale to the general public within the
Target Area both directly and through Mulder’s; selling
equipment at auctions within the Target Area; selling
equipment and parts directly to United’s competitors within
the Target Area; advertising equipment for sale and/or rental
within the Target Area; soliciting United’s customers within
the Target Area; marketing Grant Rent-All in a way that
suggested it was affiliated with other business within the
Target Area; and giving Mulder’s a copy of KGR’s customer
list.
II.
ANALYSIS
A. Standard of Review
This Court reviews de novo a district court’s decision to
grant summary judgment. Cockrel v. Shelby County Sch.
Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). Summary
judgment must be granted if the pleadings and evidence
“show 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.” Fed. R. Civ. P. 56(c). A dispute over a material fact
is only a “genuine issue” if a reasonable jury could find for
the nonmoving party on that issue. Cockrel, 270 F.3d at 1048
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). In reviewing the district court’s grant of summary
judgment, this Court must view all the facts and the
inferences drawn therefrom in the light most favorable to the
nonmoving party. Id. (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
A special interpretive framework applies when a court
entertains a summary judgment motion in a breach of contract
case:
… [A] contract can be interpreted by the court on
summary judgment if (a) the contract’s terms are clear,
or (b) the evidence supports only one construction of

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No. 02-1580 United Rentals v. Keizer, et al. 13
the controverted provision, notwithstanding some
ambiguity.… If the court finds no ambiguity, it should
proceed to interpret the contract – and it may do so at
the summary judgment stage. If, however, the court
discerns an ambiguity, the next step – involving an
examination of extrinsic evidence – becomes
essential.… Summary judgment may be appropriate
even if ambiguity lurks as long as the extrinsic
evidence presented to the court supports only one of
the conflicting interpretations.
Gencorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 818
(6th Cir. 1999) (quoting Torres Vargas v. Santiago
Cummings, 149 F.3d 29, 33 (1st Cir. 1998) (internal citations
and quotations omitted by Gencorp)).
B. The Plain Language of Defendant Keizer’s Non-
Competition Agreement
As noted above, Keizer entered into an employment
agreement with United’s predecessor, KGR. Paragraph 7.2 of
the agreement contains a covenant not to compete; such
covenants are enforceable under Michigan law. See Mich.
Comp. Laws Ann. § 445.774a (a covenant that restricts an
employee from engaging in employment or a line of business
after termination of employment is enforceable “if the
agreement or covenant is reasonable as to its duration,
geographical area, and the type of employment or line of
business”). The covenant reads, in relevant part, as follows:
[N]either [Keizer] nor any of his Affiliates shall,
anywhere in the Target Area, (as herein defined), directly
or indirectly, acting individually or as the owner,
shareholder, partner, or employee of any entity … engage
in the operation of any equipment sale, rental or leasing
business.
The central question is: What does it mean to engage in the
operation of a competing business in the Target Area? United
14 United Rentals v. Keizer, et al. No. 02-1580
argues that soliciting business from and selling to customers
within the Target Area is tantamount to operating a business
in the Target Area. Defendants argue that to operate a
business in the Target Area the business must be physically
located in the Target Area. In this Court’s view, Defendants
are correct.
As the district court noted, “When ordinary speakers refer
to where a business is operated, they refer to the location of
the business.… For example, a retail store in Grand Rapids
would not be said to operate in Newaygo County simply
because a customer drives from Newaygo to purchase an item
at the Grand Rapids store, even if the store actively advertised
in Newaygo.” (J.A. 70) (emphasis in original). Indeed, this
proposition becomes clearer with a more extreme example.
If Keizer were to relocate Grant Rent-All to the North Pole
(e.g., the warehouse, inventory and employees), send direct
mailings and make telephone calls to potential customers in
the Target Area and then personally deliver the goods, the
common sense understanding of this set-up would be that
Keizer operates his business in the North Pole, even though
he sells to customers in the Target Area. Cf. Bianchi v. Auto.
Club of Mich., 467 N.W.2d 17, 20 (Mich. 1991) (holding that
“common sense” is a proper basis for contract interpretation).
See also Lozada v. Dale Baker Oldsmobile, Inc., 197 F.R.D.
321, 339 (W.D. Mich. 2000) (“When the contract terms are
plain and unambiguous, a court will construe the contract as
it is written and presume the parties’ intent is consistent with
the ordinary meaning of the terms in the contract.”) (citing
Pierson Sand & Gravel, Inc. v. Pierson Township, 851 F.
Supp. 850 (W.D. Mich.1994)); Britton v. John Hancock Mut.
Life Ins. Co., 186 N.W.2d 781, 782 (Mich. Ct. App. 1971)
(“Contracts which are unambiguous are not open to
construction and must be enforced as written.”) (citations
omitted).
United cites to a dictionary that defines “operation” as “a
process or series of acts aimed at producing a desired result or
effect; a method or process of productive activity.”

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No. 02-1580 United Rentals v. Keizer, et al. 15
Appellant’s Reply Br. at 5 (quoting Webster’s II, New College
Dictionary (1995)). United argues that the phrase “engage in
the operation of” in ¶ 7.2 is equivalent to “engage in a series
of acts,” such that Keizer’s acts of selling to customers in the
Target Area amounted to his engagement in a series of
prohibited acts in the Target Area. This Court has discovered,
however, that, with specific regard to a business, dictionaries
define operation to mean “a business activity or enterprise.”
Oxford English Dictionary Online Edition (from the second
print ed. 1989). The word “operate” is defined as “[t]o direct
the working of; to manage, conduct, work (a railway,
business, etc.)” Id. See also Webster’s Third New Int’l
Dictionary 1581 (1993) (“to manage and put or keep in
operation whether with personal effort or not <operated a
grocery store>”). Taken together, these definitions strongly
indicate that in the business context an operation requires a
discrete physical location, such as a railway or a grocery
store. But even assuming that an operation can transcend a
particular physical location, the definition of “operate”
indicates that management or oversight is an essential element
of a business operation. Here, there is no evidence that
Keizer has managed a competing enterprise in the Target
Area. Although Keizer allegedly carried out some sales and
deliveries in the Target Area, these transactions did not
involve management or oversight of Grant Rent-All’s
business.
United cites several cases that purportedly support its plain
meaning interpretation of the covenant-not-to-compete. On
the surface, the strongest case United cites is Collen v. Source
EDP, Texas, Inc., 576 S.W.2d 435 (Tex. Civ. App. 1978). In
that case, William Collen had agreed to a restrictive covenant
which stated that he would not “directly or indirectly, enter
into or be engaged as a sole proprietor, partner, stockholder,
or employee in any personnel placement business in the City
of Dallas, and within a 100-mile radius thereof.” Id. at 435-
36. Collen argued that the covenant restrained him only from
physically establishing a business in the proscribed area, and
therefore, he was not prohibited from working for a company
16 United Rentals v. Keizer, et al. No. 02-1580
whose office is located outside of that area, but soliciting
personnel placement business in Dallas. Id. at 436. In
affirming the lower court’s enforcement of the covenant
against Collen, the Texas court engaged in little analysis,
instead merely summarizing the facts and holdings of two
cases – Foxworth-Galbraith Lumber Co. v. Turner, 46
S.W.2d 663 (Tex. Comm’n App. 1932) and Hartung v. Hilda
Miller, Inc., 133 F.2d 401 (D.C. Cir. 1943). See Id. at 436.
This Court does not find Collen to be persuasive authority
for two reasons. First, the Texas court appeared to flout the
plain language of the restrictive covenant, which, on its face,
limited Collen only from working for a personnel placement
business “in” (i.e., physically located within) a defined area.
Collen abided by the plain terms of the covenant, and it is
inexplicable why the court read the covenant expansively to
include working for such a business located outside of the
defined area. Second, Collen was decided under Texas law,
not Michigan law, which commands the courts to narrowly
construe restrictive covenants. See Kelsey-Hayes Co. v.
Maleki, 765 F. Supp. 402, 406 (noting that the Michigan
Uniform Trade Secrets Act “does not remove such covenants
from disfavored status, and narrowly limits them to
‘reasonableness’ in protecting only a competitive interest,
duration, geographic area, and type of employment”), vacated
after settlement, 889 F. Supp. 1583 (E.D. Mich. 1991).
The two decisions relied upon by the Collen court in no
way advance United’s argument herein. In Foxworth-
Galbraith, the covenant restricted sales (“the business of
selling”) in Littlefield, Texas or within ten miles thereof.
Foxworth-Galbraith, 46 S.W.2d at 663. Keizer’s covenant,
in contrast, restricts the “operation of any … business” in the
Target Area. Had the drafters of Keizer’s covenant intended
to restrict sales or deliveries in the Target Area and not just
the presence of a business in that area, they easily could have
specified a sales limitation in the covenant. They did not. In
fact, it was because the covenant in Foxworth-Galbraith
additionally restricted shipments into the defined areas that

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No. 02-1580 United Rentals v. Keizer, et al. 17
the Texas court enforced the covenant against the defendants.
The court suggested that without this specific restriction, the
defendants’ conduct would have fallen outside of the more
general prohibition against engaging in the business of
selling in those areas. See id. at 666 (holding that the specific
restriction on deliveries into Littlefield “was designed to
prohibit sales which might not come strictly within the terms
of the former provisions, and to prevent an evasion of such
provisions”).
United’s reliance on the Alabama court’s decision in Dixon
v. Royal Cup, Inc., 386 So. 2d 481 (Ala. Civ. App. 1980), is
misplaced for the same reasons. In Dixon, a salesman agreed
not to “engage in the business of selling” particular items
within a defined geographic area. Id. at 481-82. He
specifically agreed not to “solicit or take orders for or sell or
deliver any such merchandise” in that area. Id. at 482. Again,
Keizer agreed to no such specific geographic restrictions on
selling construction equipment. Unlike the drafters of the
agreement in Dixon, the drafters of Keizer’s employment
agreement could have specified a prohibition on soliciting
orders from or delivering merchandise to customers in the
Target Area, but did not.
If anything, the Dixon case undermines United’s argument.
The Alabama court noted that “engaging in business, as used
in a restrictive covenant in an employment contract, involves
not only the servicing or soliciting of customers, but also
means the setting up of an office or place of business for
soliciting or servicing customers.” Id. at 483 (emphasis
added) (citing R.E. Harrington, Inc. v. Frick, 428 S.W.2d 945
(Mo. Ct. App. 1968)). Assuming arguendo that the phrase
“engage in business” is linguistically equivalent to “engage in
the operation of … any business,” on the facts of this case, it
is undisputed that Keizer did not set up an office in the Target
Area. Accordingly, under Dixon, Keizer did not run afoul of
the restrictive covenant because he did not engage in business
in the Target Area.
18 United Rentals v. Keizer, et al. No. 02-1580
4One other case United cites is inapposite because the covenant
language was far broader than the language in Keizer’s con tract. In
Sobers v. Shann on O ptical Co., 473 A.2d 1035, 1038 (P a. Sup er. Ct.
198 4), the d efendants had agreed to “not compe te” with the plaintiff.
The second decision cited by the Texas Court of Appeals in
Collen also does not support United’s plain language
argument. In Hartung, the sellers gave the buyers the
exclusive right to use the name Hilda Miller, Inc. The sellers
further agreed not to “engage in the furniture business under
[that name] nor any other name within the District of
Columbia.” Hartung, 133 F.2d at 401. The sellers opened up
a competing furniture business under the Hilda Miller name
in a nearby Maryland suburb, advertised the business in
District of Columbia newspapers and sold to District of
Columbia residents. Id. at 401-02. Although the court
enforced the covenant as to the sellers’ use of the Hilda Miller
name, the court refused, on vagueness grounds, to enforce the
more general prohibition against engaging in the furniture
business in the District of Columbia. Id. at 402. Since there
is no allegation in this case that Keizer co-opted the United
name, it is difficult to see how Hartung is relevant.
Regardless, the language of the Hartung covenant focused on
engaging in the furniture business (i.e., sales) within the
District of Columbia, unlike Keizer’s covenant which focuses
on the situs of the operation from which sales emanate.4
Even assuming that United’s broad interpretation of
operating a business is plausible, any ambiguity in the
language, which was crafted by United’s predecessor in
interest, must be construed against United and in favor of
Keizer. See Higgins v. Lawrence, 309 N.W.2d 194, 196
(Mich. Ct. App. 1981) (“It is well settled in the law of
contracts that language will be construed against the party
drafting the instrument.”) (citations omitted); see also De
Bruyn Produce Co. v. Romero, 508 N.W.2d 150, 156 n.4
(Mich. Ct. App. 1993) (“an ambiguous document must be
construed against the drafter of the document”). It is

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No. 02-1580 United Rentals v. Keizer, et al. 19
undisputed that United drafted the form employment
agreement; ¶ 7.2 was then modified by its predecessor-in-
interest to the contract (GVI). Under ¶ 6.6 of the employment
agreement, United succeeded to GVI’s rights and obligations
under the agreement. Accordingly, United stands in the same
position as GVI relative to Keizer with regard to how the
agreement must be interpreted. Just as ¶ 7.2 would have to be
construed against GVI, as the drafter, so too must it now be
construed against United, as GVI’s successor. For this reason
as well, the district court was correct in holding that Keizer
did not breach ¶ 7.2 of the employment agreement by
operating a business located outside of the Target Area, but
that conducts business inside the Target Area.
C. The Extrinsic Evidence
Assuming arguendo that the operative language from ¶ 7.2
is ambiguous, the Court can look to parol evidence to
construe it as long as that evidence is not inconsistent with the
written words. See Ditzik v. Schaffer Lumber Co., 360
N.W.2d 876, 880 (Mich. Ct. App. 1984) (“The ‘parol
evidence rule’ operates to exclude evidence of prior
contemporaneous agreements, whether oral or written, which
contradict, vary or modify an unambiguous writing intended
as a final and complete expression of the agreement.”);
Detroit Bank & Trust Co. v. Coopes, 287 N.W.2d 266, 269
(Mich. Ct. App. 1979) (noting that the test for the
admissibility of parol evidence “is whether the proffered parol
evidence is inconsistent with the written language”) (internal
quotation marks and citations omitted). When interpreting an
ambiguous contract with extrinsic evidence, summary
judgment is proper so long as the “extrinsic evidence
presented to the court supports only one of the conflicting
interpretations.” Gencorp, 178 F.3d at 818. As discussed
below, the extrinsic evidence supports only one interpretation
of the agreement, that of Keizer’s.
It is undisputed that United (via GVI) was aware of
Keizer’s ownership interest and personal involvement in
20 United Rentals v. Keizer, et al. No. 02-1580
Grant Rent-All before entering into the employment
agreement. During negotiations, United’s attorney was
explicitly advised that ¶ 7.2 would have to exclude Newaygo
County from the non-compete because Keizer’s “son operates
a competing business” in that county. (J.A. 74.) United had
the opportunity to conduct due diligence on the extent to
which Grant Rent-All competes with United, but chose to rely
on the verbal assurance of a GVI representative that Grant
Rent-All was not a competitor. United never corroborated
this assurance by requesting written substantiation or by
speaking with Keizer. Had United requested documentation,
it would have discovered that one-third of Grant Rent-All’s
customers were located in the Target Area and that Grant
Rent-All sells similar products. Thus, on this factual record,
there is no evidence that the parties meant to curtail Grant
Rent All’s business in any fashion. Indeed, the negotiation
history shows that the Newaygo County exclusion was meant
to protect Keizer’s interest in that business. Thus, the
extrinsic evidence shows that the parties intended to restrict
Keizer’s ability to compete by limiting the location of the
business which he might operate.
United counters that the most important piece of extrinsic
evidence is Keizer’s stock option agreement with GVI.
There, Keizer agreed that he would “enter into an agreement
not to compete with KGR or GVEC for five years (other than
in Newaygo County) and otherwise in form and substance
acceptable to [United], for which KGR shall pay Keizer”
$25,000. (J.A. 171.) (emphasis added). United argues that the
stock option agreement shows that the parties intended to
preclude Keizer from competing with United anywhere except
within Newaygo County. Appellant’s Br. at 34.
United’s argument is not persuasive. This language merely
labels the type of agreement to which Keizer would later
agree – an agreement not to compete; it does not even begin
to define the scope of that agreement. As the instant dispute
shows, a non-competition provision can be narrow or broad,

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No. 02-1580 United Rentals v. Keizer, et al. 21
5United also cites as parol evidence the affidavit of Larry Grasman,
a principal of GVI, who stated that his understanding of the non-
competition agreement “was to allow Jerry Keizer to compete with United
only in Newaygo County.” (J.A. 1815.) In contrast, the other three
principals of GVI, Richard, Russell and Terry Grasman, corroborated
Keizer’s interpretation of ¶ 7.2 – namely, that the provision was intended
to permit Grant Rent-All to operate as it always had been. Larry
Grasman’s testimony does not create a genuine issue of material fact on
the meaning of ¶ 7.2, in light of the overwhelming parol evidence which
supp orts Keizer’s interpretation. Specifically, both GVI and United were
aware of Keizer’s involvement with Grant-All, and United was on notice
that Grant-All was a com petitor. Despite this knowledge, United and GVI
did not draft ¶ 7.2 with language that explicitly precludes Keizer from
selling in the Target Area.
depending on the specific language of the agreement.5 Thus,
the stock option agreement does not create a disputed issue of
fact about the meaning of ¶ 7.2. Moreover, even assuming
that the stock option agreement somehow obligated Keizer
not to compete with United in the Target Area, as discussed
above, the other evidence shows that ¶ 7.2 of the employment
agreement creates no such obligation. Accordingly, the
employment agreement dictates Keizer’s non-competition
obligations, not the earlier-signed stock option agreement.
See CMI Int’l, Inc. v. Intermet Int’l Corp., 649 N.W.2d 808,
812 (Mich. Ct. App. 2002) (“When two agreements cover the
same subject matter and include inconsistent terms, the later
agreement supersedes the earlier agreement.”) (citation
omitted).
D. Defendant Keizer’s and Grant-All’s Alleged Breach
of Keizer’s Employment Agreement
United argues that Keizer has violated the non-competition
provision, even accepting the district court’s interpretation of
¶ 7.2. United cites to evidence that Keizer has been doing
business with Mulder’s and Grand Equipment Company,
competitors located in the Target Area. Appellant’s Br. at 13.
In the Target Area, Keizer has sold equipment at auctions,
placed two or three pieces of used equipment on a vacant lot
22 United Rentals v. Keizer, et al. No. 02-1580
with a “for sale” sign, attended a trade show, advertised his
business, solicited customers through mass mailings and
placed a few pieces of equipment for sale or rental at
Mulder’s. Id. at 13-14. This evidence, however, shows only
that Keizer has done some business (i.e., selling or renting
equipment) in the Target Area, not that he has operated a
business located in the Target Area.
In addition, United has not articulated a basis for holding
Grant Rent-All liable for breaching a contract to which it was
not a signatory, namely, Keizer’s employment agreement.
Since Grant Rent-All was not a party to the agreement,
summary judgment on the breach of contract claim was
proper for Grant Rent-All on this independent ground.
E. Defendant Mulder’s Alleged Violation of the
Michigan Uniform Trade Secrets Act.
United has not pressed its contract- and statutorily-based
breach of confidentiality claims against Keizer and Grant-All.
Accordingly, United has waived any challenge to the district
court’s dismissal of Count II (Michigan Uniform Trade
Secrets Act) with respect to Keizer and Grant Rent-All and
the portion of Count I which claims Keizer and Grant Rent-
All breached the confidentiality provisions of the employment
agreement. Instead, United takes issue with the district
court’s sua sponte entry of summary judgment in favor of
Mulder’s on United’s claim under the Michigan Uniform
Trade Secrets Act. (“MUTSA”). Although we agree with our
dissenting colleague that the district court should have
afforded United ten days’ advance notice and an opportunity
to respond, Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir.
1984), we believe that the court’s violation of Rule 56 was
non-prejudicial. Kistner v. Califano, 579 F.2d 1004, 1006
(6th Cir. 1978) (holding that noncompliance with Rule 56's
ten-day notice requirement does not deprive the court of the
authority to grant summary judgment when “there has been
no prejudice to the opposing party by the court’s failure to
comply with this provision of the rule”). On appeal, United

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No. 02-1580 United Rentals v. Keizer, et al. 23
has proffered whatever evidence and related argument it can
muster in opposition to summary judgment on the MUTSA
claim against Mulder’s. United has not argued that it was
denied critical discovery, thereby hampering its ability to
oppose summary judgment. Thus, the propriety of summary
judgment for Mulder’s is now ripe for a full and fair review.
Since we apply the same de novo standard of review that a
district court applies in the summary judgment context, it is
a better use of judicial resources for this Court to settle the
issue now rather than remanding and having to entertain
another appeal in the future.
In support of its MUTSA claim against Mulder’s, United
cites to the testimony of former employee Chad Alverson,
who went to work for Mulder’s. Appellant’s Br. at 15.
According to Alverson’s testimony, he brought a copy of a
customer list to Mulder’s, and Mulder’s owner, Art Mulder,
saw the list but told Alverson that Mulder’s “didn’t need it.”
(J.A. 447-48.) Alverson stated that he brought the list back
home and “it probably got thrown out.” (J.A. 448.) Mulder
testified that for “[a]bout three minutes” he perused a list that
he “assum[ed]” had been dropped at his store by Keizer. (J.A.
524-25.) He then “set it back down” and “then it was gone.”
(J.A. 526-28.) Mulder testified that it would have been
wrong to use the list and that the list is not in the possession
of anyone from Mulder’s.
The MUTSA gives a court the power to enjoin an actual or
threatened misappropriation of a trade secret, such as an
unauthorized disclosure or use of a trade secret. Mich. Comp.
Laws Ann. §§ 445.1902, 445.1903. A “misappropriation”
means either:
(i) Acquisition of a trade secret of another by a person
who knows or has reason to know that the trade secret
was acquired by improper means.
24 United Rentals v. Keizer, et al. No. 02-1580
(ii) Disclosure or use of a trade secret of another without
express or implied consent by a person who did 1 or
more of the following:
(A) Used improper means to acquire knowledge of the
trade secret.
(B) At the time of the disclosure or use, knew or had
reason to know that his or her knowledge of the trade
secret was derived from or through a person who had
utilized improper means to acquire it, acquired under
circumstances giving rise to a duty to maintain its
secrecy or limit its use, or derived from or through a
person who owed a duty to the person to maintain its
secrecy or limit it use.
(C) Before a material change of his or her position,
knew or had reason to know that it was a trade secret
and that knowledge of it had been acquired by accident
or mistake.
Id. § 445.1902(b).
There is no evidence that Mulder’s has misappropriated or
is likely to misappropriate United’s customer list. First,
Alverson’s acquisition of the list and delivery to Mulder’s
cannot be imputed to Mulder’s. There is no evidence that
Mulder’s solicited this conduct or condoned it once the list
appeared at the store. Alverson brought the list to Mulder’s
completely on his own accord without the knowledge of
anyone else at Mulder’s. The record shows that Alverson was
merely a salesman at Mulder’s, not an officer, director or
high-level manager whose conduct potentially could bind the
company. Cf. CMI Int’l, 649 N.W.2d at 813 (“to make a
claim of threatened misappropriation, … the party must
establish more than the existence of generalized trade secrets
and a competitor’s employment of the party’s former
employee who has knowledge of trade secrets”) (citation
omitted). Thus, Mulder’s never “acqui[red]” the list because
no one with any meaningful authority at Mulder’s either knew
or should have known that the list had been acquired through

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No. 02-1580 United Rentals v. Keizer, et al. 25
6Even if Mulder was aware that the list had come from Alverson or
Keizer, he would have had no reason to think that they had acquired the
list through improper means. To the contrary, Alverson and Keizer
acquired the list through proper means presumably because United gave
them the list when they were employed at United. The fact that Alverson
and/or Keizer perhaps should have returned the list after they left United
does not alter the fact that their acquisition of the list was proper.
improper means. In fact, Arthur Mulder testified that he was
not sure how the list ended up at his store.6
Second, there is no genuine issue of material fact that
Mulder’s disclosed or used the customer list. Mulder testified
that he glanced at the list for three minutes, determined that
it would be wrong to use the list, set it down and never saw
the list again. As far as anyone knows, the list that appeared
at Mulder’s existed for a day and then disappeared. Because
there is no evidence of a past disclosure or use of the list or
any likelihood of a future use or disclosure, summary
judgment for Mulder’s on the MUTSA claim was proper.
F. Claims for Intentional Interference with Business
Relations, Intentional Interference with Keizer’s
Employment Agreement and Civil Conspiracy
An essential element of a claim for tortious interference
with contract, tortious interference with business relations and
civil conspiracy is that the alleged tortious conduct be
wrongful. See Trepel v. Pontiac Osteopathic Hosp., 354
N.W.2d 341, 347 (Mich. Ct. App. 1984) (tort of intentional
interference with contract or with business relations requires
a showing of “illegal, unethical or fraudulent conduct in
addition to intentional interference”); Feaheny v. Caldwell,
437 N.W.2d 358, 365 (Mich. Ct. App. 1989) (tort of civil
conspiracy requires concerted action “to accomplish a
criminal or unlawful purpose, or to accomplish a lawful
purpose by criminal or unlawful means”). As discussed
above, there is no genuine issue of material fact that Keizer
and Grant Rent-All breached the non-compete or
26 United Rentals v. Keizer, et al. No. 02-1580
confidentiality provisions of his employment agreement, nor
is there a genuine issue of material fact that Mulder’s violated
the Michigan Uniform Trade Secrets Act. Accordingly, there
is no underlying contractual violation or violation of
Michigan common law or statutory law on which to premise
these torts. Summary judgment was therefore proper.
G. Defendant Keizer’s Alleged Breach of a Fiduciary
Duty of Loyalty
United argues that because the district court’s grant of
summary judgment on the breach of contract claim was
improper, it follows that dismissal of its claim for breach of
the fiduciary duty of loyalty also was improper. Appellant’s
Br. at 46-47. United has proffered no other argument on the
merits of this claim. As discussed above, the district court
properly granted summary judgment on the breach of contract
claim. Accordingly, the breach of fiduciary duty claim also
was properly dismissed.
III.
CONCLUSION
For all the foregoing reasons, the district court’s order
granting summary judgment to Defendants is AFFIRMED.

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No. 02-1580 United Rentals v. Keizer, et al. 27
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
WILLIAM STAFFORD, District Judge, concurring in part
and dissenting in part. While I agree that summary judgment
was properly entered in favor of Keizer and Grant Rent-All,
I write separately to address the district court’s entry of
summary judgment in favor of Mulder’s. Mulder’s did not
file a motion for summary judgment, nor was notice ever
given to United that it should introduce evidence to support
its claims against Mulder’s.
“The clearly established rule in this circuit is that a district
court must afford the party against whom sua sponte
summary judgment is to be entered ten days notice and an
adequate opportunity to respond.” Yashon v. Gregory, 737
F.2d 547, 552 (6th Cir. 1984). “We have underscored this
requirement of ‘unequivocal notice’ on numerous occasions.
Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir.2001) (en
banc) (citing Salehpour v. Univ. of Tenn., 159 F.3d 199, 204
(6th Cir.1998); Briggs v. Ohio Elections Comm'n, 61 F.3d
487, 493 (6th Cir.1995); Yashon v. Gregory, 737 F.2d 547,
552 (6th Cir.1984)). “Noncompliance with the [ten days
notice] provision...deprives the court of authority to grant
summary judgment, unless the opposing party has waived this
requirement, or there has been no prejudice to the opposing
party by the court’s failure to comply with this provision of
the rule.” Kistner v. Califano, 579 F.2d 1004, 1006 (6th Cir.
1978) (citations omitted).
On appeal, United states: “[I]f this Court reverses the
District Court’s ruling on summary judgment as to Count I
[breach of contract against Keizer], it follows that this Court
should also reverse the District Court’s rulings as to Counts
IV [tortious interference with Keizer’s employment/non-
compete covenant] and V [conspiracy to breach the restrictive
covenants contained in Keizer’s employment contract] as to
28 United Rentals v. Keizer, et al. No. 02-1580
Mulder’s.” Final Br. of Appellant at 47. United makes no
other argument with regard to Counts IV and V. Because
United appears to concede that Counts IV and Count V
against Mulder’s cannot survive the grant of summary
judgment to Keizer in Count I, I agree that we can affirm the
district court as to those two counts. Given our decision to
affirm the district court’s decision as to Count I, it would be
futile to remand Counts IV and V for further proceedings as
to Mulder’s.
The same is not true of Count II, however. In Count II,
United alleges that the defendants, including Mulder’s,
violated the Michigan Trade Secrets Act by misappropriating
United’s trade secrets. United argues that the district court’s
sua sponte entry of summary judgment in favor of Mulder’s
on Count II should be vacated regardless of the decision as to
the other counts. I agree. Unlike Counts IV and V, this claim
against Mulder’s stands on its own and does not fail simply
because the claims against Keizer and/or Grant Rent-All fail.
The majority claims that “United has proffered whatever
evidence and related argument it can muster in opposition to
summary judgment on the MUTSA claim against Mulder’s.”
Infra p. 22. United, however, cannot offer evidence on appeal
that was not part of the record before the trial court; and while
I recognize that United has not argued that it was denied
critical discovery, I cannot assume that United would not
have introduced additional evidence before the trial court had
it been given appropriate notice. Because United should have
been given notice of, and an opportunity to respond to, the
district court’s sua sponte consideration of summary
judgment on the trade secrets claim against Mulder’s, and
because I cannot conclude from this record that the district
court’s failure to provide appropriate notice was non-
prejudicial, I would vacate the district court’s entry of
summary judgment in favor of Mulder’s as to Count II and
would remand for further proceedings as to that claim.

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