Innovation Ventures LLC v. Liquid Manufacturing LLC ( 2014 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    INNOVATION VENTURES, L.L.C., d/b/a                                   UNPUBLISHED
    LIVING ESSENTIALS,                                                   October 23, 2014
    Plaintiff-Appellant,
    v                                                                    No. 315519
    Oakland Circuit Court
    LIQUID MANUFACTURING, L.L.C., K & L                                  LC No. 2012-124554-CZ
    DEVELOPMENT OF MICHIGAN, L.L.C., LXR
    BIOTECH L.L.C., ETERNAL ENERGY, L.L.C.,
    ANDREW KRAUSE, and PETER PAISLEY,
    Defendants-Appellees.
    Before: STEPHENS, P.J., and TALBOT and BECKERING, JJ.
    PER CURIAM.
    In this action, plaintiff, Innovation Ventures, LLC, d/b/a Living Essentials, raises several
    tort and breach of contract claims against defendants Liquid Manufacturing, LLC, K & L
    Development of Michigan, LLC, and Peter Paisley and Andrew Krause, the presidents and
    owners of Liquid Manufacturing and K & L Development, respectively. Plaintiff, who produces
    and sells a product known as 5 Hour Energy, alleges that defendant Liquid Manufacturing, the
    former bottler of plaintiff’s product, and defendant K & L Development, which acted as an
    independent contractor for plaintiff, breached non-competition and confidentiality provisions in
    various contractual agreements, misappropriated trade secrets, and engaged in other tortious
    conduct by forming defendants, Eternal Energy, LLC, and LXR Biotech, LLC, to produce and
    sell a product called “Eternal Energy,” a competitor to 5 Hour Energy. The trial court granted
    summary disposition to defendants on all of plaintiff’s claims. We affirm.
    I. PERTINENT FACTS AND PROCEDURAL HISTORY
    This case primarily concerns plaintiff’s business dealings and contracts with two entities,
    defendant K & L Development and defendant Liquid Manufacturing.
    A. AGREEMENTS WITH DEFENDANT LIQUID
    MANUFACTURING AND PAISLEY
    Concerning defendant Liquid Development, on May 18, 2007, plaintiff entered into a
    contract entitled “Amended Manufacturing Agreement” (AMA) whereby plaintiff hired
    -1-
    defendant Liquid Manufacturing to bottle 5 Hour Energy. Defendant Peter Paisley is the
    president and CEO of Liquid Manufacturing. In June 2010, plaintiff terminated its agreement
    with defendant Liquid Manufacturing, and the parties entered into an agreement to formalize the
    termination and to formalize plaintiff’s exercise of its option to purchase the equipment that
    defendant Liquid Manufacturing used to bottle plaintiff’s product. Plaintiff was to purchase the
    equipment one year later. The agreement (Termination Agreement) contained various non-
    disclosure and non-compete provisions, but permitted defendant Liquid Manufacturing to
    produce a list of 36 “Permitted Products” on the equipment that was formerly used to bottle
    plaintiff’s product; that permission could be revoked for violation of the Termination Agreement.
    Plaintiff agreed, though, to give defendant Liquid Manufacturing 30 days to cure any violation of
    the agreement. For all Permitted Products that defendant Liquid Manufacturing produced, it was
    required to obtain from the company for which it produced the products a confidentiality
    agreement verifying that the company would not disclose that its product was bottled using the
    same equipment that had been used to bottle plaintiff’s products.
    On March 8, 2011, plaintiff sold the beverage production equipment that it purchased
    from defendant Liquid Manufacturing pursuant to the option to purchase back to defendant
    Liquid Manufacturing.
    B. AGREEMENTS BETWEEN PLAINTIFF AND DEFENDANTS
    K & L DEVELOPMENT AND KRAUSE
    In approximately 2008, plaintiff reached an oral agreement with defendant Krause and
    defendant K & L Development whereby those defendants would act as consultants to help
    design, manufacture, and install certain beverage production and packaging equipment for
    plaintiff. Defendant Krause was the managing member of K & L Development, a company that
    is no longer in existence. Among other matters, defendants Krause and K & L installed
    equipment at defendant Liquid Manufacturing’s facility. They also made certain equipment that
    was specific to plaintiff’s packaging needs. In addition, defendant Krause developed a leak-
    proof cap for plaintiff’s 5 Hour Energy bottles.
    On April 27, 2009, plaintiff and defendants Krause and K & L Development entered into
    a written agreement entitled “Equipment Manufacturing and Installation Agreement” (EMI); this
    was the first written agreement between these parties. The EMI referenced the work that
    defendants Krause and K & L Development previously performed, and stated that those
    defendants wished to perform certain manufacturing, designing, and installation services for
    plaintiff once again, and that plaintiff wished to retain their services once again. The EMI
    contained non-disclosure and non-compete provisions.
    The same day the parties entered into the EMI, defendant K & L Development and
    plaintiff entered into an agreement entitled “Nondisclosure and Confidentiality Agreement”
    (NCA) that contained non-disclosure and non-compete clauses. The NCA noted that defendant
    K & L Development had received and would continue to receive confidential information during
    the course of its business relationship with plaintiff, and prohibited defendant K & L
    Development from using or disclosing such information.
    -2-
    On or about May 10, 2009, less than two weeks after the signing of the EMI and the
    NCA, plaintiff terminated the parties’ business relationship.
    C. FORMATION OF DEFENDANTS ETERNAL ENERGY AND LXR BIOTECH
    On September 10, 2010, defendant Eternal Energy, which produces a liquid energy shot
    known as “Eternal Energy” was formed. On May 9, 2011, defendant LXR Biotech was formed;
    its registered agent is the same as that of defendant Eternal Energy. Defendant LXR Biotech
    markets and distributes Eternal Energy in approximately 2-ounce bottles, which is approximately
    the size of 5 Hour Energy bottles. Defendants Krause and Paisley are members of defendants
    Eternal Energy and LXR Biotech; defendant Krause is the president of defendant LXR Biotech.
    Defendant Liquid Manufacturing bottles Eternal Energy. Although Eternal Energy was initially
    sold in tattoo and piercing parlors, it soon began to be sold in Wal-Mart, which is one of
    plaintiff’s largest retail customers.
    On September 20, 2010, ten days after the formation of defendant Eternal Energy, John
    P. Criso, defendant Liquid Manufacturing’s Chief Financial Officer, contacted Andrew M.
    Kulpa, plaintiff’s associate counsel, and requested that Eternal Energy be added to the list of
    Permitted Products that defendant Liquid Manufacturing could, pursuant to the Termination
    Agreement, produce. In an e-mail dated September 21, 2010, plaintiff agreed to add Eternal
    Energy to the list of Permitted Products. Without citing any agreement between the parties,
    Kulpa stated that any change in Eternal Energy’s formula would require plaintiff to seek re-
    approval of Eternal Energy.
    D. PROCEDURAL HISTORY
    On January 27, 2012, plaintiff filed a complaint against defendants, alleging breach of
    various contractual provisions regarding confidential information and non-compete agreements,
    as well as separate tort claims for the disclosure of its confidential information. The crux of
    plaintiff’s allegations was that defendant Eternal Energy and/or defendant LXR Biotech
    wrongfully obtained plaintiff’s confidential information and/or trade secrets from defendants
    Liquid Manufacturing, Paisley, Krause, and/or K & L Development. Plaintiff alleged that one or
    more defendants used plaintiff’s confidential information or trade secrets in marketing,
    manufacturing, and distributing Eternal Energy, and by representing to Wal-Mart that defendant
    Liquid Manufacturing previously bottled 5 Hour Energy for plaintiff. Concurrent with the filing
    of its first amended complaint, plaintiff sent a letter to defendant Paisley alleging a violation of
    the Termination Agreement. The letter included a demand to cure any and all violations of the
    Termination Agreement by ceasing the disclosure, if any, of its confidential information or trade
    secrets, and by assuring that defendant Paisley ensure compliance with the non-disclosure
    provisions set forth in the Termination Agreement with regard to the companies for which
    defendant Liquid Manufacturing produced Permitted Products.
    On February 19, 2012, defendant Paisley sent a letter to Matthew S. Dolmage, plaintiff’s
    Chief Financial Officer, in response to the January 27, 2012 letter from plaintiff informing
    defendant Liquid of the alleged violations of the Termination Agreement. The letter noted that
    the Termination Agreement, to the extent it was enforceable, permitted defendant Liquid
    Manufacturing 30 days to cure a breach of the agreement. Defendant Paisley concluded that
    -3-
    defendant Liquid cured any breach of the agreement by ceasing to bottle all products that had not
    been approved as Permitted Products by plaintiff, and by—for the first time—requiring
    defendant Eternal Energy to execute the requisite confidentiality agreement, as provided in the
    Termination Agreement.
    After being allowed to tour defendant Liquid Manufacturing’s facility, plaintiff filed a
    second amended complaint against defendants, clarifying its allegations and adding new causes
    of action. In total, plaintiff alleged eight counts against defendants, including: (1) breach of
    contract against defendants Paisley, Krause, Liquid Manufacturing, and K & L Development for
    breaches of their respective confidentiality and non-compete agreements with plaintiff; (2)
    violation of the Michigan Uniform Trade Secrets Act (MUTSA), MCL 445.1901 et seq. against
    all defendants; (3) tortious interference with contract and business relations against all
    defendants; (4) civil conspiracy against all defendants; (5) unjust enrichment against all
    defendants; (6) statutory and common law conversion against all defendants; (7) fraud in the
    inducement against defendants Paisley and Liquid Manufacturing for inducing plaintiff to enter
    into an agreement whereby defendant Liquid Manufacturing purchased the production equipment
    that was originally used to bottle plaintiff’s products; and (8) declaratory relief that the sale of
    certain energy drink products violated the parties’ various agreements. Plaintiff alleged that
    defendant Liquid Manufacturing was continuing to produce two liquid energy shots products:
    Eternal Energy and Perfectly Petite. Perfectly Petite had never been added to the Termination
    Agreement as a Permitted Product.
    Defendants moved for summary disposition in March 2012 on all of plaintiff’s claims
    pursuant to MCR 2.116(C)(8) and (C)(10), and asked the trial court to stay discovery, which the
    trial court did. In June 2012, the trial court denied the motion in all respects, save for dismissing
    plaintiff’s claims for tortious interference against defendants Krause and Paisley, finding that
    there were no allegations that either defendant had acted for his own benefit, as opposed to the
    benefit of the corporate entities at issue. With respect to all other claims, the trial court ruled that
    plaintiff stated claims upon which relief could be granted, and that, where discovery was
    incomplete, the trial court concluded that plaintiff presented enough evidence to show that a
    factual dispute existed.
    In the following months, the parties exchanged written discovery requests, and plaintiff
    sought discovery from third parties, including customers and business associates of defendants.
    Because of plaintiff’s requests to conduct discovery on third parties, defendants moved the trial
    court for a protective order and to decide their renewed motions for summary disposition, which
    were forthcoming, before authorizing further discovery. On December 7, 2012, the trial court
    granted defendants’ motions for protective orders and once again stayed discovery pending
    defendants’ motions for summary disposition.
    Thereafter, defendants moved for summary disposition on all of plaintiff’s claims, and
    the trial court granted their respective motions. Concerning the breach of contract claims against
    defendants Liquid Manufacturing and Paisley, the trial court noted that plaintiff’s allegations
    with regard to the confidentiality provisions in the Termination Agreement were essentially that,
    defendant Liquid Manufacturing’s use of the production equipment previously owned by
    plaintiff inevitably involved the use or disclosure of plaintiff’s confidential information; thus,
    according to plaintiff, it was inevitable that defendant Liquid Manufacturing would use or
    -4-
    disclose its confidential information. The trial court ruled that, because plaintiff expressly
    authorized the use of the equipment for bottling the 36 original Permitted Products and Eternal
    Energy, it could not maintain a claim for the use or disclosure of confidential information related
    thereto. In addition, the trial court found that the non-compete provision contained in the
    Termination Agreement was unenforceable because it was an unreasonable restraint on trade.
    Concerning the contractual liability of defendants Krause and K & L Development, the
    trial court concluded that the NCA lacked consideration, and therefore, was invalid. It also
    found that the non-compete provisions contained in the NCA were unreasonable. Further, the
    trial court found that defendant Krause could not be personally liable under the EMI because the
    EMI expressly excluded from the definition of “confidential information” used therein any
    information that defendant Krause learned before the signing of the EMI.
    Upon granting summary disposition to defendants on plaintiff’s breach of contract
    claims, the trial court found that defendants were entitled to summary disposition on plaintiff’s
    remaining claims, ruling that: (1) plaintiff failed to establish the existence of a trade secret; (2)
    plaintiff failed to establish a genuine issue of material fact concerning tortious interference
    because the NCA lacked consideration and because it expressly authorized the disclosures by
    defendants Liquid Manufacturing and Paisley about which it complained; (3) there could be no
    claim for unjust enrichment because there were express contracts between the parties; (4)
    plaintiff failed to plead fraud with particularity so it failed to state a claim for fraudulent
    inducement; (5) where there was no genuine issue of material fact concerning the use or
    disclosure of plaintiff’s confidential information, plaintiff’s conversion claim must fail; (6)
    plaintiff’s claim for civil conspiracy must fail where plaintiff failed to establish any of its tort
    claims; and (7) defendants, rather than plaintiff, were entitled to declaratory relief.
    II. SUMMARY DISPOSITION AS TO PLAINTIFF’S CONTRACT CLAIMS
    A. LIABILITY OF DEFENDANTS PAISLEY AND LIQUID MANUFACTURING UNDER
    THE NON-COMPETE PROVISION OF THE TERMINATION AGREEMENT
    Plaintiff first argues that the trial court erred by granting summary disposition to
    defendants Paisley and Liquid Manufacturing with regard to plaintiff’s claims that those
    defendants breached the non-compete provision contained in the Termination Agreement. This
    Court reviews the trial court’s decision to grant summary disposition de novo. Latham v Barton
    Malow Co, 
    480 Mich. 105
    , 111; 746 NW2d 868 (2008). Defendants moved for summary
    disposition on this claim pursuant to MCR 2.116(C)(8) and (C)(10). Although the trial court did
    not state the subrule under which it granted summary disposition, we consider the motion to have
    been granted under MCR 2.116(C)(10) because the record reveals that the trial court relied on
    information outside of the pleadings. See Hughes v Region VII Area Agency on Aging, 277 Mich
    App 268, 273; 744 NW2d 10 (2007). Resolution of this issue also requires interpretation of the
    Termination Agreement. Contract interpretation is a question of law this Court reviews de novo.
    Citizens Ins Co v Secura Ins, 
    279 Mich. App. 69
    , 72; 755 NW2d 563 (2008). Additionally, “[t]he
    reasonableness of a noncompetition provision is a question of law when the relevant facts are
    undisputed.” Coates v Bastian Bros, Inc, 
    276 Mich. App. 498
    , 506; 741 NW2d 539 (2007).
    -5-
    Under the Termination Agreement, plaintiff was permitted to produce certain,
    enumerated Permitted Products. Other than those products, the Termination Agreement
    provided that:
    for a period of 3 years from the Effective Date, Liquid shall not produce or
    formulate other than for [plaintiff] (i) an Energy Drink (as defined in Section 24
    below), in packaging of 4 fluid ounces or less, or (ii) any other Energy Drink
    containing glucuronolactone or tyrosine (in all its forms) regardless of package
    size.
    Plaintiff contends that defendants Liquid Manufacturing and Paisley violated the Termination
    Agreement’s non-compete provision by bottling Eternal Energy and Perfectly Petite.
    “As a general matter, courts presume the legality, validity, and enforceability of
    contracts.” 
    Coates, 276 Mich. App. at 507
    . However, “noncompetition agreements are
    disfavored as restraints on commerce and are only enforceable to the extent they are reasonable.”
    
    Id. See also
    Thermatool Corp v Borzym, 
    227 Mich. App. 366
    , 372; 575 NW2d 334 (1998).
    Thus, a restrictive covenant must protect an employer’s reasonable competitive
    business interests, but its protection in terms of duration, geographical scope, and
    the type of employment or line of business must be reasonable. Additionally, a
    restrictive covenant must be reasonable as between the parties, and it must not be
    specially injurious to the public. [St Clair Med, PC v Borgiel, 
    270 Mich. App. 260
    ,
    266; 715 NW2d 914 (2006).]
    In order to be reasonable, “a restrictive covenant must protect against the employee’s
    gaining some unfair advantage in competition with the employer, but not prohibit the employee
    from using general knowledge or skill.” 
    Coates, 276 Mich. App. at 507
    (quotation omitted). In
    addition, “[b]ecause the prohibition on all competition is in restraint of trade, an employer’s
    business interest justifying a restrictive covenant must be greater than merely preventing
    competition.” St Clair Med, 
    PC, 270 Mich. App. at 266
    . “The burden of demonstrating the
    validity of the agreement is on the party seeking enforcement.” 
    Coates, 276 Mich. App. at 508
    .
    As an initial matter, we find that defendant Paisley cannot be personally liable under the
    Termination Agreement because, although he signed the agreement, he did so in his capacity as a
    corporate officer, and not as an individual. A corporate officer generally is not liable for the
    obligations of the corporation. See Duray Dev, LLC v Perrin, 
    288 Mich. App. 143
    , 151; 792
    NW2d 749 (2010); Livonia Bldg Materials v Harrison Const Co, 
    276 Mich. App. 514
    , 523-524;
    742 NW2d 140 (2007). Moreover, although the Termination Agreement purports to bind the
    employees of defendant Liquid Manufacturing, one of whom is defendant Paisley, where the
    Termination Agreement, which imposed a three-year restraint on competition, could not be
    performed within one year, the statute of frauds required that in order to be enforceable, the
    Termination Agreement had to be signed by the party to be charged. MCL 566.132(1)(a).
    Where enforcement is sought against defendant Paisley, who did not sign the contract, MCL
    566.132(1)(a) precludes enforcement of the contract against defendant Paisley.
    -6-
    Concerning defendant Liquid Manufacturing, the trial court did not err by finding that
    there was no genuine issue of material fact related to the production of Eternal Energy. Plaintiff
    expressly approved the bottling of Eternal Energy as a Permitted Product in a September 21,
    2010 e-mail. Although defendant Liquid Manufacturing initially breached the Termination
    Agreement by failing to have defendant Eternal Energy execute the requisite non-disclosure
    agreement, defendant Liquid Manufacturing cured that breach within the time specified by the
    contract after receiving notice of the breach from plaintiff. In reaching this conclusion, we reject
    plaintiff’s arguments that it only granted provisional or conditional approval of Eternal Energy
    based on its then-existing formula or distribution strategy because the record belies plaintiff’s
    claims, and because the Termination Agreement never provided for the type of provisional or
    conditional approval allegedly granted by plaintiff in this case.
    Furthermore, we find the trial court correctly granted summary disposition to defendant
    Liquid Manufacturing with regard to its production of any product, including Perfectly Petite,
    because we agree that the non-compete provision contained in the Termination Agreement was
    unreasonable and unenforceable. See 
    Coates, 276 Mich. App. at 507
    (a noncompetition
    agreement is only enforceable to the extent it is reasonable). The non-compete provision
    contained in paragraph 1 of the Termination Agreement contains a broad provision preventing
    defendant Liquid Manufacturing from bottling any energy drink in packaging of four ounces or
    less without prior approval from plaintiff. The burden of demonstrating the validity of a non-
    compete agreement is on the party seeking its enforcement. 
    Id. at 508.
    When asked to identify
    the legitimate business purposes furthered by the non-compete provision, plaintiff stated the
    following in its October 24, 2012 fourth supplemental response to defendant Liquid
    Manufacturing’s request for interrogatories:
    Under the Agreement to Terminate, Plaintiff had the right to evaluate, on a case-
    by-case basis, each brand of energy drink that Liquid Manufacturing proposed to
    bottle. Products that were approved by Plaintiff were limited in distribution and
    production, such that Plaintiff believed that the bottling of the product would not
    infringe on Plaintiff’s legitimate business interests. Contingent on Plaintiff’s
    approval, each proposed energy drink manufacturer was required to execute a
    confidentiality agreement with Liquid Manufacturing and to follow other
    contractual specifications. In the event that Liquid Manufacturing or the product
    did not follow these procedural safeguards embodied in the Agreement to
    Terminate, such as failing to execute a confidentiality agreement, Plaintiff’s
    legitimate business interest in protecting its goodwill and confidential information
    was harmed. For example, Plaintiff’s legitimate business interests in protecting
    its goodwill and confidential information are harmed by Liquid Manufacturing’s
    bottling of Eternal Energy because it was ultimately distributed to a significantly
    broader area than originally proposed and provisionally approved, Eternal
    Energy failed to execute a confidentiality agreement, and Liquid Manufacturing
    failed to seek authorization when the formula changed. [Emphasis added.]
    By plaintiff’s own admission, plaintiff used the non-compete provisions to approve the
    bottling of those products that were “limited in distribution and production,” thereby allowing
    plaintiff to handpick the competing products that defendant Liquid Manufacturing could bottle.
    While preventing unfair competition is a legitimate business purpose that can be protected by a
    -7-
    non-compete agreement, the prevention of fair competition is not. St Clair Med, PC, 270 Mich
    App at 266. Where defendant Liquid Manufacturing only bottled products and did not produce
    its own products, such a broad restraint on defendant Liquid Manufacturing was unreasonable.
    See 
    Coates, 276 Mich. App. at 506
    (examining the totality of the circumstances in determining
    reasonableness). Indeed, this is particularly so where plaintiff subsequently sold the bottling
    equipment to defendant Liquid Manufacturing, then sought to use the non-compete provisions to
    control what defendant Liquid Manufacturing could do with its own equipment. Further, we
    reject plaintiff’s claim that the non-compete provision was reasonable because it was intended to
    prevent the disclosure of its confidential information. Preventing the anti-competitive use of
    confidential information is a legitimate business interest. Rooyakker & Sitz, PLLC v Plante &
    Moran, PLLC, 
    276 Mich. App. 146
    , 158; 742 NW2d 409 (2007). Here, though, as discussed
    infra, plaintiff expressly authorized any alleged use of confidential information in bottling
    products when it granted defendant Liquid Manufacturing express approval to bottle competing
    products on the same equipment that was used to bottle plaintiff’s product.
    Moreover, we reject plaintiff’s argument that the non-compete provision was reasonable
    because it was intended to protect plaintiff’s goodwill. Protecting the goodwill that a party has
    built up with clients is a legitimate purpose. St Clair Med, 
    PC, 270 Mich. App. at 268
    . However,
    plaintiff’s argument ignores the fact that the non-compete provision was a broad, all-
    encompassing provision that plaintiff admitted was designed to allow it to handpick the
    competitors for whom defendant Liquid Manufacturing could bottle products. Despite plaintiff’s
    representation of the non-compete provision as a provision protecting its goodwill, the broad
    nature of the provision demonstrates that it is unreasonable.
    In addition, we reject plaintiff’s contention, made in passing, that defendant cannot be
    heard to complain about the non-compete provision when the Termination Agreement contained
    a provision stating that the provision was reasonable. Our Supreme Court has recognized that
    courts, not parties to a contract, are to determine the reasonableness of a contract that contains a
    restraint on trade. See Rory v Continental Ins Co, 
    473 Mich. 457
    , 475 n 32; 703 NW2d 23
    (2005).
    Lastly, plaintiff argues that even if the non-compete provision is unreasonable, this Court
    should reform the provision and strike any unreasonable terms. Courts may reform a
    noncompetition agreement if it is found to be unreasonable. See, e.g., Hopkins v Crantz, 
    334 Mich. 300
    , 304; 54 NW2d 671 (1952). Here, however, plaintiff makes no effort to argue whether
    any portions of the provision are reasonable and could be enforced, nor does plaintiff suggest
    how the provision could be reformed in a manner that would be reasonable. Thus, plaintiff
    abandoned the claim. Berger v Berger, 
    277 Mich. App. 700
    , 712; 747 NW2d 336 (2008) (“A
    party abandons a claim when it fails to make a meaningful argument in support of its position.”).
    Moreover, we have found no authority stating that a court must reform an unreasonable non-
    compete provision.
    -8-
    B. LIABILITY OF DEFENDANTS PAISLEY AND LIQUID MANUFACTURING
    UNDER THE TERMINATION AGREEMENT
    Next, plaintiff argues that the trial court erred by granting summary disposition to
    defendants Liquid Manufacturing and Paisley with regard to alleged breaches of the
    confidentiality provisions contained in the Termination Agreement. We review this issue de
    novo. 
    Latham, 480 Mich. at 111
    .
    The Termination Agreement contains confidentiality and non-disclosure provisions that
    provide, among other matters, that defendant Liquid, and/or its employees “shall not disclose to
    representatives from any company or any other person or entity at any time or in any manner any
    of [plaintiff’s] confidential information relating to the formulation, manufacture, production, sale
    or distribution of [plaintiff’s] products . . . .” The Termination Agreement also restricts the use
    of any confidential information that defendant Liquid and/or its employees learned from
    plaintiff.
    Plaintiff maintains that defendants Liquid and Paisley1 “must necessarily use
    Plaintiff/Appellant’s confidential information in bottling liquid energy shots.” As 
    discussed supra
    , plaintiff expressly authorized defendant Liquid to bottle a number of Permitted Products,
    including liquid energy shots such as Eternal Energy. Additionally, plaintiff did so knowing that
    defendant Liquid Manufacturing would be using the same equipment that was used to bottle 5
    Hour Energy. Indeed, the Termination Agreement anticipated such use, stating, “[plaintiff] shall
    have priority over any other parties for which [defendant] Liquid provides services on the
    Manufacturing Equipment.” And, plaintiff eventually sold the bottling equipment to defendant
    Liquid Manufacturing. In light of these facts, defendants Liquid Manufacturing and Paisley are
    entitled to judgment as a matter of law with regard to plaintiff’s claim for breach of the above-
    noted confidentiality provisions because plaintiff expressly authorized the disclosure about
    which it now complains. Where plaintiff expressly approved defendant Liquid Manufacturing’s
    bottling of 37 Permitted Products, which included liquid energy shots, plaintiff authorized the
    disclosure of the alleged confidential information, and cannot be heard to complain about such
    disclosure. See Landelius v Sackellares, 
    453 Mich. 470
    , 481; 556 NW2d 472 (1996) (explaining
    that once disclosure of certain information is authorized, the party authorizing the disclosure
    cannot assert a claim based on the disclosure). Indeed, although plaintiff required the companies
    for whom defendant Liquid Manufacturing produced Permitted Products to enter into
    confidentiality agreements regarding where the product was made, it never took any steps to
    protect the alleged confidential information that it claims was “necessarily use[d]” by defendant
    Liquid Manufacturing in bottling liquid energy shots. Thus, based on plaintiff’s express
    approval of defendant Liquid Manufacturing’s bottling of liquid energy shots, it waived
    enforcement of the confidentiality provisions in this regard. See Quality Prods & Concepts Co v
    Nagel Precision, Inc, 
    469 Mich. 362
    , 372-374; 666 NW2d 251 (2003).
    1
    Again, as 
    discussed supra
    , we find that defendant Paisley cannot be personally liable under the
    contract where he only signed in his capacity as an officer.
    -9-
    Citing an anti-waiver provision in the Termination Agreement, plaintiff argues that it
    could not have waived enforcement of the confidentiality provisions in this regard. This
    argument is meritless. Even when a contract contains an anti-waiver provision, the parties may
    still waive or modify the contract by their subsequent actions. 
    Id. at 372.
    “This is because the
    parties possess, and never cease to possess, the freedom to contract even after the original
    contract has been executed.” 
    Id. In order
    to establish waiver in light of an anti-waiver or anti-
    modification provision, there must be “a mutual intention of the parties to waive or modify the
    original contract.” 
    Id. One way
    to show a mutual intent to waive a contract or term is by express
    agreement of the parties. 
    Id. at 373.
    Here, plaintiff expressly agreed, in writing, to allow
    defendant Liquid Manufacturing to bottle the 37 Permitted Products, some of which constituted
    liquid energy shots. Thus, there is no genuine issue of material fact that plaintiff, by expressly
    authorizing the bottling of those products, waived any claim that bottling liquid energy shots on
    the production equipment constitutes a violation of the confidentiality provisions contained in the
    Termination Agreement.
    C. CONTRACTUAL LIABILITY OF DEFENDANTS KRAUSE
    AND K & L DEVELOPMENT
    Next, plaintiff argues that the trial court erred by granting summary disposition to
    defendants Krause and K & L Development concerning plaintiff’s claims that those defendants
    violated the non-disclosure and non-compete provisions of the EMI and NCA. We review this
    issue de novo. 
    Latham, 480 Mich. at 111
    . Again, because the trial court considered information
    outside the pleadings when it granted summary disposition, we consider the motion to have been
    granted under MCR 2.116(C)(10). 
    Hughes, 277 Mich. App. at 273
    .
    Both the EMI and NCA contained non-disclosure and non-compete provisions. We find
    that defendants Krause and K & L Development were entitled to summary disposition as to all of
    plaintiff’s claims arising out of these contracts because the contracts were unenforceable for a
    failure of consideration. In order to be valid, a contract must have, among other matters, legal
    consideration. Calhoun Co v Blue Cross Blue Shield of Mich, 
    297 Mich. App. 1
    , 13; 824 NW2d
    202 (2012). Here, defendants Krause and K & L Development performed work for plaintiff as
    independent contractors whose work was terminable at the will of any of the parties, without
    cause. Both the EMI and NCA stated that the consideration for the respective agreements was
    the promise of a continuing business relationship and employment. We have held that “[m]ere
    continuation of employment is sufficient consideration to support a noncompete agreement in an
    at-will employment setting.” QIS, Inc v Indus Quality Control, Inc, 
    262 Mich. App. 592
    , 594; 686
    NW2d 788 (2004). Thus, the agreements, on their face, contained valid consideration for the
    execution of the NCA and EMI. See 
    id. Nevertheless, although
    the agreements purported to provide valid consideration, there
    was no genuine issue of material fact that the discontinuation of the business/employment
    relationship within two weeks of the signing of the agreements constituted a failure of
    consideration. In general, a complete or substantial failure of consideration may justify the
    rescission of a written instrument.” In re Rudell Estate, 
    286 Mich. App. 391
    , 403; 780 NW2d 884
    (2009). In Adell Broadcasting v Apex Media Sales, 
    269 Mich. App. 6
    , 12-13; 708 NW2d 778
    (2005), this Court described a “failure of consideration” as a situation where consideration may
    -10-
    have existed, but has either ceased to exist or was not given. This Court further described a
    failure of consideration as a failure of performance. 
    Id. at 13.
    This Court added that “rescission
    is permissible when there is failure to perform a substantial part of the contract or one of its
    essential items, or where the contract would not have been made if default in that particular had
    been expected or contemplated.” 
    Id. at 13-14
    (quotation omitted).
    The agreement at issue in Adell Broadcasting involved a business relationship between
    the plaintiff, a television station, and the defendant, Apex Media Sales, Inc., who served as
    plaintiff’s exclusive media representative for broadcast spot and program sales. 
    Id. at 7-8.
    When
    both parties became dissatisfied with the other’s performance, they agreed to amend their
    working agreement, and agreed, rather than ending the business relationship, to continue
    engaging the other’s services. 
    Id. at 8-9.
    This Court explained that “the consideration for the
    amended agreement was the continuation of the parties’ business relationship.” 
    Id. at 14.
    Where
    the parties thereafter continued their business relationship and performed work for the other, this
    Court found that there was no question of material fact that there was not a failure of
    consideration. 
    Id. (“The parties
    continued their business relationship, so there is no question of
    material fact that there was no failure of consideration.”).
    In contrast to Adell Broadcasting, the parties’ business relationship ended soon after they
    entered into the EMI and NCA. Accordingly, defendants Krause and K & L Development never
    received that which they were promised under the agreements. Although continued employment
    would serve as consideration, see QIS, 
    Inc, 262 Mich. App. at 594
    , where that continued
    employment was offered, but never given, the termination of the business relationship constitutes
    a failure of consideration, cf. Adell 
    Broadcasting, 269 Mich. App. at 14
    . Indeed, consideration
    requires a bargained-for exchange. General Motors Corp v Dep’t of Treasury, 
    466 Mich. 231
    ,
    239; 644 NW2d 734 (2002). “There must be a benefit on one side, or a detriment suffered, or
    service done on the other.” 
    Id. (quotation omitted).
    Here, the consideration purported to be that
    plaintiff, who employed defendants Krause and K & L on an at-will basis, would forego its right
    to immediately terminate the employment relationship in exchange for defendants signing the
    NCA and EMI. Where plaintiff terminated the business relationship within two weeks after the
    agreements were signed, plaintiff’s forbearance in terminating the relationship amounted to a
    nullity. Other jurisdictions have held that the continued employment promised in exchange for
    signing a non-compete agreement must be “for a substantial time after the covenant was signed.”
    See, e.g., Lucht’s Concrete Pumping v Horner, 
    255 P.3d 1058
    , 1063 (Colo, 2011); Brown &
    Brown, Inc v Mudron, 379 Ill App 3d 724, 728; 887 NE2d 437 (2008); Summits 7, Inc v Kelly,
    178 Vt 396, 405; 886 A2d 365 (2005); Curtis 1000, Inc v Suess, 24 F3d 941, 946 (CA 7, 1994)
    (citations omitted) (explaining that Illinois law requires “that for continued employment to count
    as consideration it must be for a ‘substantial period.’ ”); Zellner v Stephen D Conrad, MD, PC,
    183 Ad2d 250, 256; 589 NYS2d 903 (1992) (explaining that, although an employer has the right
    to terminate the employment of an at-will employee at any time, and forbearance of that right is a
    legal detriment that can constitute consideration, “[i]t is certainly true that this detriment would
    have little meaning if the employer exercised his right to terminate the employment shortly after
    the execution of the agreement.”); Central Adjustment Bureau, Inc v Ingram, 
    678 S.W.2d 28
    , 35
    -11-
    (Tenn 1984); Simko, Inc v Graymar Co, 55 Md App 561, 567; 464 A2d 1104 (1983).2 As such,
    neither the confidentiality provisions nor the non-compete provisions at issue are enforceable,
    and there is no genuine issue of material fact with regard to plaintiff’s claim for breach of
    contract related thereto. Although the trial court did not articulate a failure of consideration as its
    reason for granting summary disposition, this Court can nevertheless affirm the trial court’s
    decision, albeit for alternate reasons. Gleason v Mich Dep’t of Transp, 
    256 Mich. App. 1
    , 3; 662
    NW2d 822 (2003).
    III. SUMMARY DISPOSITION AS TO PLAINTIFF’S NON-CONTRACT CLAIMS
    Next, plaintiff challenges the trial court’s grant of summary disposition with regard to its
    claims for violation of the MUTSA, tortious interference with a contract and/or business
    expectancy, conversion, civil conspiracy, unjust enrichment, and fraudulent inducement. We
    review plaintiff’s claims de novo. 
    Latham, 480 Mich. at 111
    . With the exception of plaintiff’s
    claim for fraudulent inducement, the trial court either expressly cited MCR 2.116(C)(10) as the
    grounds pursuant to which summary disposition was appropriate, or it relied on information
    outside the pleadings in granting defendants’ motions for summary disposition. Thus, this Court
    considers the trial court’s grant of summary disposition as to those claims to have been pursuant
    to MCR 2.116(C)(10). See 
    Hughes, 277 Mich. App. at 273
    . Concerning plaintiff’s claim for
    fraudulent inducement, the trial court expressly granted summary disposition pursuant to MCR
    2.116(C)(8). “A motion brought under [MCR 2.116(C)(8)] tests the legal sufficiency of the
    complaint solely on the basis of the pleadings.” Dalley v Dykema Gossett, 
    287 Mich. App. 296
    ,
    304; 788 NW2d 679 (2010). “A court may grant summary disposition under MCR 2.116(C)(8)
    if ‘[t]he opposing party has failed to state a claim on which relief can be granted.’” 
    Id., quoting MCR
    2.116(C)(8).
    As an initial matter, plaintiff notes that defendants did not raise any specific arguments
    with regard to the non-contract claims in their respective motions for summary disposition, and
    protests the trial court’s ability to grant summary disposition on arguments that were not raised
    by defendants. There is no merit to plaintiff’s claim because MCR 2.116(I)(1) provides that “[i]f
    the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or
    other proofs show that there is no genuine issue of material fact, the court shall render judgment
    without delay.” “Under MCR 2.116(I)(1), the trial court is affirmatively required to ‘render
    judgment without delay’ when ‘the pleadings show that a party is entitled to judgment as a
    matter of law.’” Sobiecki v Dep’t of Corrections, 
    271 Mich. App. 139
    , 141; 721 NW2d 229
    (2006) (quotation omitted). Moreover, because plaintiff had the opportunity to, but did not,
    move for reconsideration, we find nothing amiss about the trial court’s decision to sua sponte
    grant summary disposition on those claims. See Al-Maliki v LaGrant, 
    286 Mich. App. 483
    , 489;
    781 NW2d 853 (2009).
    2
    Although decisions from other jurisdictions are not binding, they may be considered for
    persuasive value. Hiner v Mojica, 
    271 Mich. App. 604
    , 612; 722 NW2d 914 (2006).
    -12-
    A. PLAINTIFF’S TRADE SECRET CLAIM
    Under the MUTSA, a “trade secret” means information, including a formula, pattern,
    compilation, program, device, method, technique, or process” that derives independent economic
    value from not being generally known or readily ascertainable, and that is the subject of
    reasonable efforts to maintain its secrecy. MCL 445.1902(d). The party claiming that a trade
    secret has been misappropriated “bears the burden of pleading and proving the specific nature of
    the trade secret.” Dura Global Technologies, Inc v Magna Donnelly Corp, 662 F Supp 2d 855,
    859 (ED Mich, 2009) (quotation omitted).3 “A party alleging trade secret misappropriation must
    particularize and identify the purported misappropriated trade secrets with specificity.” 
    Id. (quotation omitted).
    In granting summary disposition, the trial court noted that plaintiff failed to allege any
    trade secrets beyond the bottling process for liquid energy shots. As the trial court correctly
    recognized, the bottling process cannot constitute a trade secret where plaintiff disclosed it by
    expressly authorizing defendant Liquid Manufacturing to bottle for 37 companies, and by not
    requiring defendant Liquid Manufacturing to maintain the secrecy of the bottling process. See
    MCL 445.1902(d) (explaining that a trade secret must be “the subject of efforts that are
    reasonable under the circumstances to maintain its secrecy.”). In addition, although plaintiff
    claims that it alleged a variety of other trade secrets, it has, on several occasions, failed to state
    any trade secrets that were allegedly violated. Therefore, summary disposition was appropriate.
    See Dura Global Tech, 662 F Supp 2d at 859. Further, plaintiff does not state how those trade
    secrets were misappropriated in violation of MCL 445.1902(d). And, defendant Krause stated in
    an affidavit that he did not receive any confidential information from plaintiff regarding Five
    Hour Energy’s formula, ingredients, pricing, or customers. Based on defendants’ evidence, that
    plaintiff did not make any effort to keep the bottling process a trade secret and that defendant
    Krause did not obtain any confidential information from plaintiff, and on plaintiff’s conclusory
    allegations that defendants misappropriated trade secrets, summary disposition was appropriate.
    See Quinto v Cross & Peters Co, 
    451 Mich. 358
    , 371-372; 547 NW2d 314 (1996) (explaining
    that conclusory allegations are not sufficient to survive a properly supported motion for summary
    disposition).
    B. PLAINTIFF’S TORTIOUS INTERFERENCE CLAIMS
    In its complaint, plaintiff alleged tortious interference with a contract as well as tortious
    interference with a business expectancy against all defendants. We find that plaintiff abandoned
    this claim on appeal by simply alleging, without elaboration, that it “adequately pled each of the
    elements of tortious interference.” See 
    Berger, 277 Mich. App. at 712
    . Moreover, we have
    reviewed plaintiff’s claims and found that defendants were entitled to judgment as a matter of
    law because there was no genuine issue of material fact that defendants did not tortiously
    3
    Because the purpose of the MUTSA is to “make uniform the law” with respect to other
    jurisdictions, see MCL 445.1909, we look to the law of other jurisdictions when interpreting the
    act, see Power Press Sales Co v MSI Battle Creek Stamping, 
    238 Mich. App. 173
    , 180; 604 NW2d
    772 (1999).
    -13-
    interfere with any of plaintiff’s contractual agreements, nor was there a genuine issue of material
    fact concerning defendants’ use or disclosure of confidential information beyond the bottling
    process, which was not wrongful because it was authorized by plaintiff. See Dalley, 287 Mich
    App at 323-324 (explaining that a plaintiff, in alleging tortious interference, must establish that
    the defendant’s conduct was either improper or without justification).
    C. PLAINTIFF’S UNJUST ENRICHMENT CLAIM
    “A claim of unjust enrichment requires the complaining party to establish (1) the receipt
    of a benefit by the other party from the complaining party and (2) an inequity resulting to the
    complaining party because of the retention of the benefit by the other party.” Karaus v Bank of
    New York Mellon, 
    300 Mich. App. 9
    , 22-23; 831 NW2d 897 (2012). “Not all enrichment is unjust
    in nature, and the key to determining whether enrichment is unjust is determining whether a
    party unjustly received and retained an independent benefit.” 
    Id. at 23.
    “If this is established,
    the law will imply a contract in order to prevent unjust enrichment.” Belle Isle Grill Corp v
    Detroit, 
    256 Mich. App. 463
    , 478; 666 NW2d 271 (2003).
    The trial court concluded that because there were express contracts between the parties,
    plaintiff could not maintain a claim for unjust enrichment. In general, “a contract will be implied
    only if there is no express contract covering the same subject matter.” 
    Id. However, “[t]he
    application of this rule presupposes the existence of a valid, enforceable contract.” Biagini v
    Mocnik, 
    369 Mich. 657
    , 659; 120 NW2d 827 (1963). Where the parties’ contract is found to be
    invalid or unenforceable, the general rule barring recovery in the face of an express contract does
    not apply. 
    Id. The trial
    court’s reasoning was correct with regard to plaintiff’s claims against defendants
    Paisley and Liquid Manufacturing, but incorrect as to defendants Krause and K & L
    Development. As discussed above, the Termination Agreement between defendants Paisley and
    Liquid Manufacturing was not held to be invalid or unenforceable with regard to provisions
    relating to confidential information; rather, the trial court aptly noted that any claim based on the
    disclosure of confidential information related to the bottling process was without merit because
    plaintiff expressly authorized such disclosure. Thus, contrary to plaintiff’s contentions on
    appeal, there was an express, valid contract between defendants Paisley and Liquid
    Manufacturing that pertained to the disclosure of confidential information, and plaintiff could not
    maintain a claim for unjust enrichment related thereto. Belle Isle Grill 
    Corp, 256 Mich. App. at 478
    .
    However, as plaintiff correctly recognizes, the trial court’s reasoning concerning
    defendants Krause and K & L Development was erroneous. Where the EMI and NCA were
    found to be invalid and unenforceable, plaintiff’s unjust enrichment claims do not fail simply
    because there were express contracts concerning plaintiff’s confidential information. See
    
    Biagini, 369 Mich. at 659
    .
    Nevertheless, although the trial court’s reasoning with regard to these claims was
    incorrect, we can affirm the trial court’s decision, albeit on different grounds. See 
    Gleason, 256 Mich. App. at 3
    . Plaintiff’s allegations are based on the use or misappropriation of confidential
    information. In order to maintain a claim for unjust enrichment, there must be a benefit
    -14-
    conferred upon a party. 
    Karaus, 300 Mich. App. at 23-24
    . Here, defendant Krause averred that
    he did not receive any confidential information from plaintiff regarding Five Hour Energy’s
    formula, ingredients, pricing, or customers. Although plaintiff presented affidavits from two of
    its executives in which they averred that defendants must have used plaintiff’s confidential
    information, plaintiff’s conclusory allegations do not constitute a genuine issue of material fact.
    See 
    Quinto, 451 Mich. at 371-372
    (noting that conclusory allegations are not sufficient to survive
    a properly supported motion for summary disposition). Thus, plaintiff’s claim must fail because
    there was no genuine issue of material fact regarding a benefit received. See Karaus, 300 Mich
    App at 23-24. Moreover, even assuming defendants Krause and K & L Development possessed
    such confidential information, there is no evidence that either defendant requested this benefit or
    that they engaged in any effort to acquire the same. Therefore, even assuming they received
    confidential information, there was no enrichment that was unjust. See Morris Pumps v
    Centerline Piping, Inc, 
    273 Mich. App. 187
    , 196; 729 NW2d 898 (2006) (explaining that not all
    enrichment is unjust).4
    D. PLAINTIFF’S CONVERSION CLAIM
    The trial court did not err by finding that there was no genuine issue of material fact
    concerning plaintiff’s claims for statutory and common law conversion. Concerning statutory
    conversion, MCL 600.2919a(1) provides a cause of action for “[a]nother person’s stealing or
    embezzling property or converting property to the other person’s own use.” “Statutory
    conversion consists of knowingly buying, receiving, or aiding in the concealment of any stolen,
    embezzled, or converted property.” Lawsuit Fin, LLC v Curry, 
    261 Mich. App. 579
    , 592-593; 683
    NW2d 233 (2004). Common law conversion “consists of any distinct act of domain wrongfully
    exerted over another's personal property in denial of or inconsistent with the rights therein.”
    Dep’t of Agriculture v Appletree Mktg, LLC, 
    485 Mich. 1
    , 13-14; 779 NW2d 237 (2010)
    (quotation omitted).
    Plaintiff’s conversion claims were premised on defendants’ alleged use or disclosure of
    plaintiff’s confidential information and/or trade secrets. As an initial matter, plaintiff’s claims
    must fail with regard to defendants Liquid Manufacturing and Paisley because plaintiff expressly
    authorized the disclosure about which it complains, i.e., using the equipment to bottle liquid
    energy shots. Thus, there is no genuine issue of material fact regarding whether defendants
    Liquid Manufacturing and Paisley exercised dominion and control over plaintiff’s property. See
    
    id. Additionally, as
    noted above, defendants Krause and K & L Development produced evidence
    refuting plaintiff’s allegations that they used or disclosed confidential information and/or trade
    secrets, and plaintiff has failed to present any evidence, beyond its mere speculation, that any
    defendants used or disclosed confidential information or trade secrets. As such, there was no
    4
    Lastly, we note that although plaintiff’s complaint raised a claim for unjust enrichment against
    defendants Eternal Energy and LXR Biotech, it never alleged that those defendants received a
    benefit from plaintiff. Thus, plaintiff’s claim must fail with regard to those defendants. See
    
    Karaus, 300 Mich. App. at 23-24
    (explaining that there must be a benefit conferred upon the other
    party).
    -15-
    genuine issue of material fact with regard to whether these defendants wrongfully exerted
    dominion and control over plaintiff’s property, and plaintiff’s claim must fail with regard to
    those defendants. See 
    id. E. PLAINTIFF’S
    FRAUDULENT INDUCEMENT CLAIM
    Plaintiff alleged that defendants Liquid Manufacturing and Paisley fraudulently induced
    plaintiff into selling the equipment that defendant Liquid Manufacturing used to bottle Permitted
    Products, including liquid energy shots. Plaintiff alleged that those defendants made material
    misrepresentations concerning whether they were producing or formulating “any other Energy
    Drink containing glucuronolactone or tyrosine” and that those defendants made those
    representations with the intent to induce plaintiff to rely thereon. In addition, plaintiff alleged
    that it relied on those representations when it decided to sell the bottling equipment to defendant
    Liquid Manufacturing in 2011.
    A plaintiff must plead fraud with particularity. MCR 2.112(B)(1); State ex rel Gurganus
    v CVS Caremark Corp, __ Mich __; __ NW2d __ (Docket Nos. 146791, 146792, and 146793,
    June 11, 2014). General allegations and “conclusory statements that are unsupported by
    allegations of fact on which they may be based will not suffice to state a cause of action.” 
    Id. See also
    LaMothe v Auto Club Ins Ass’n, 
    214 Mich. App. 557
    , 586; 543 NW2d 42 (1995). Here,
    plaintiff failed to plead its allegations of fraud with particularity. Although plaintiff alleged that
    defendants Paisley and Liquid Manufacturing made material misrepresentations concerning
    whether they were producing or formulating “any other Energy Drink containing
    glucuronolactone or tyrosine,” plaintiff made no allegations as to when the allegations were
    made, to whom they were made, or how the allegations were false, i.e., which other drinks
    defendant Liquid Manufacturing was producing. Indeed, it is unclear from plaintiff’s complaint
    whether Eternal Energy—a drink that plaintiff expressly approved—was one of the drinks about
    which plaintiff complained, or if plaintiff complained about other liquid energy shots. As such,
    plaintiff’s allegations of fraud were not pleaded with particularity, and summary disposition was
    appropriate pursuant to MCR 2.116(C)(8). Gurganus, slip op at 19-20; 
    LaMothe, 214 Mich. App. at 586
    .
    F. PLAINTIFF’S CIVIL CONSPIRACY CLAIM
    Summary disposition was also appropriate regarding plaintiff’s claim for civil
    conspiracy. “A civil conspiracy is a combination of two or more persons, by some concerted
    action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by
    criminal or unlawful means.” Advocacy Org for Patients & Providers v Auto Club Ins Ass’n,
    
    257 Mich. App. 365
    , 384; 670 NW2d 569 (2003), aff’d 
    472 Mich. 91
    (2005) (quotation omitted).
    “[A] claim for civil conspiracy may not exist in the air; rather, it is necessary to prove a separate,
    actionable tort.” 
    Id. (quotation omitted).
    As 
    discussed supra
    , each of plaintiff’s tort claims
    failed; thus, there was no separate, actionable tort. “Because plaintiff[ ] failed to establish any
    actionable underlying tort, the conspiracy claim must also fail.” 
    Id. -16- G.
    OPPORTUNITY TO AMEND
    Plaintiff argues that summary disposition as to its non-contract claims was inappropriate
    because the trial court should have given it the opportunity to amend its complaint in order to
    cure any deficiencies that may have existed in its pleadings. Plaintiff never moved the trial court
    to amend its pleadings; thus, the issue is unpreserved and we could decline to consider it.
    Richard v Schneiderman & Sherman, PC (On Remand), 
    297 Mich. App. 271
    , 273; 824 NW2d 573
    (2012); Nuculovic v Hill, 
    287 Mich. App. 58
    , 63; 783 NW2d 124 (2010). Moreover, we note that
    despite arguing that it should have been given the opportunity to amend its complaint, plaintiff
    does not allege how it could have amended its complaint in a way that would not have been
    futile. Instead, plaintiff simply makes cursory claims that summary disposition was
    inappropriate because it was never given the opportunity to amend its pleadings. Where plaintiff
    has not made a meaningful argument in support of its claim, we will not make arguments for
    plaintiff. See 
    Berger, 277 Mich. App. at 712
    . Plaintiff’s cursory treatment of this issue
    constitutes abandonment. 
    Id. IV. DISCOVERY
    Lastly, plaintiff argues that the trial court’s grant of summary disposition was premature.
    We note that the trial court granted summary disposition before the close of the discovery period.
    “We review a trial court’s decision on a motion for summary disposition de novo.” VanVorous v
    Burmeister, 
    262 Mich. App. 467
    , 476; 687 NW2d 132 (2004). “We review a trial court’s decision
    regarding discovery for an abuse of discretion.” 
    Id. “Generally, summary
    disposition under MCR 2.116(C)(10) is premature if it is granted
    before discovery on a disputed issue is complete.” Marilyn Froling Revocable Living Trust v
    Bloomfield Hills Country Club, 
    283 Mich. App. 264
    , 292; 769 NW2d 234 (2009). However, that
    the discovery period remained open “does not automatically mean that the trial court’s decision
    to grant summary disposition was untimely or otherwise inappropriate.” 
    Id. Instead, “[t]he
    question is whether further discovery stands a fair chance of uncovering factual support for the
    opposing party’s position.” 
    Id. The party
    contending that summary disposition is premature
    because of incomplete discovery is not entitled to relief without providing “some independent
    evidence that a factual dispute exists.” 
    VanVorous, 262 Mich. App. at 477
    (quotation omitted).
    Although the discovery period remained open at the time the trial court granted summary
    disposition, the trial court’s grant of summary disposition was appropriate. Despite claiming that
    additional discovery would produce more facts in support of its claims, plaintiff fails to provide
    any independent evidence that a factual dispute exists. Instead, plaintiff simply makes broad,
    unsupported allegations of what additional discovery could demonstrate. Plaintiff’s claim that
    further discovery will lead to factual support for its claims is based on nothing more than
    conjecture. Plaintiff’s argument is meritless. 
    Id. Affirmed. /s/
    Cynthia Diane Stephens
    /s/ Michael J. Talbot
    /s/ Jane M. Beckering
    -17-