Onb Ridge Villa One LLC v. Oil Nut Bay Inc ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ONB RIDGE VILLA ONE, LLC, UNPUBLISHED
June 27, 2019
Plaintiff-Appellant,
v No. 342371
Oakland Circuit Court
OIL NUT BAY, INC., and DAVID V. JOHNSON, LC No. 2016-153593-CB
Defendants-Appellees.
Before: BECKERING, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.
PER CURIAM.
Plaintiff, ONB Ridge Villa One, LLC, appeals as of right the trial court’s January 5, 2017
order granting defendant David V. Johnson’s motion for summary disposition and the court’s
January 23, 2018 order granting the two motions of defendant, Oil Nut Bay, Inc., (ONB), for
partial summary disposition. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff is a Michigan Limited Liability Company owned by the Jane E. Von Voigtlander
Irrevocable Trust No. 3. The Trust’s co-trustees, Gwen Haggerty-Bearden and Steven Bearden,
formed plaintiff to purchase a parcel of land in May 2009 from ONB. The parcel is located in
the British Virgin Islands and is known as Oil Nut Bay Ridge Villa 1 (RV1). According to the
terms of the sale and purchase agreement, plaintiff was to develop and build on the parcel a
vacation rental property called Brise de Mer. Defendant Johnson is the chairman and authorized
representative of ONB.
According to plaintiff, Johnson approached Bearden sometime in 2011 and asked for
permission to build a road across RV1 to facilitate easy access to transport building materials and
workers to two adjacent lots, Oil Nut Bay Ridge Villa 2 (RV2) and Estate Lot 23 (EL23).
Plaintiff contends that in return for its permission to build the road, ONB promised Bearden to
provide RV1 with a staging area for building materials, storage space for the development of
RV1, utilities, and the ability to use the access road for the construction of Brise de Mer.
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Providing a different account of the road, ONB contends that the original proposal for the
construction of Brise de Mer included a circular driveway. In addition to RV1, the two adjacent
lots also planned for circular driveways, but all three experienced problems with the circular
driveway design. ONB maintains that, in 2011, plaintiff asked ONB to construct a shared
driveway for the three lots as a solution. Thus, according to ONB, the road at issue is a shared
driveway, not an internal access road across RV1, and plaintiff requested the construction, not
ONB.
The road never materialized. Plaintiff filed a complaint against defendants on June 20,
2016, and a first amended complaint on August 8, 2016, alleging breach of contract, promissory
estoppel, and unjust enrichment against ONB, and promissory estoppel against Johnson. In
addition, plaintiff alleged a count against both defendants for “tortious interference with
contracts and business expectances” arising from plaintiff’s frustrated attempts to contract
independently with vendors who provided services to villas that had signed a property
management agreement with ONB. Under the agreement, ONB would provide landscaping
maintenance, housekeeping, and pest control services to unoccupied villas in return for a 15%
management fee of the total fees charged for the services provided. Dissatisfied with the 15%
management fee, plaintiff declined to sign the agreement and arranged for several vendors ONB
used to perform services for Brise de Mer apart from ONB’s property management program. In
response, ONB gave the vendors the choice of continuing to provide services in its program and
receive free transportation to the villas and other benefits, or provide services to plaintiff or other
property owners apart from the program and pay for its own transportation to ONB and other
needs itself. Alleging that this practice represented tortious interference with its contracts and
business expectations, plaintiff sought a temporary restraining order and a permanent injunction
against ONB. In each count of its complaint plaintiff included a claim for exemplary damages.
In lieu of filing answers to plaintiff’s first amended complaint, defendants filed separate
motions for summary disposition on August 29, 2016.1 Johnson sought summary disposition
pursuant to MCR 2.116(C)(8) and (10), arguing that the statute of frauds barred plaintiff’s claim
against him for promissory estoppel and that plaintiff’s claim for tortious interference fails as a
matter of law because plaintiff’s claim that he personally interfered with any of plaintiff’s
contracts or business expectancies lacked factual support. In a motion for summary disposition
pursuant to MCR 2.116(C)(1), ONB argued that the trial court lacked personal jurisdiction over
it because it is a foreign corporation with a registered office and agent in the British Virgin
Islands, and it neither owned property nor maintained any employees in Michigan. In its
response to Johnson’s motion, plaintiff argued that summary disposition was premature, that the
statute of frauds did not apply to agreements to develop property, and that Johnson could be held
liable for personally and maliciously damaging the business relationships between plaintiff and
various vendors. With respect to ONB, plaintiff relied on the affidavits of persons who had
attended numerous meetings with ONB’s representatives in Oakland County, Michigan, and on
an invoice from ONB that included a letterhead with an address located in Clarkston, Michigan
1
These were defendants’ second motions for summary disposition, both defendants having
previously filed motions for summary disposition in response to plaintiff’s original complaint.
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to argue that it had established that the trial court had both general and limited jurisdiction over
ONB. Both defendants filed reply briefs reasserting their positions.
Subsequent to a hearing on defendants’ motions, the trial court entered an opinion and
order granting Johnson’s motion for summary disposition with respect to plaintiff’s claims for
promissory estoppel and tortious interference, and denying ONB’s motion for summary
disposition pursuant to MCR 2.116(C)(1). With respect to Johnson, the court observed that
plaintiff alleged Johnson made promises in his capacity as the agent for ONB and for the benefit
of ONB. Consequently, the trial court granted Johnson’s motion for summary disposition of
plaintiff’s promissory estoppel claim pursuant to MCR 2.116(C)(8) because an agent for a
disclosed principal cannot be held personally liable for the principal’s obligation. See Huizenga
v Withey Sheppard Assoc, 15 Mich. App. 628, 633; 167 NW2d 120 (1969). With respect to
tortious interference, the trial court noted that plaintiff blurred the distinct causes of action of
tortious interference with a contract and tortious interference with a business relationship or
expectancy, and that under either theory, plaintiff had to establish that Johnson was a third party
rather than an agent of one of the parties. Having concluded that Johnson was an agent of ONB,
the trial court ruled that plaintiff could not maintain a cause of action against Johnson under
either theory of tortious interference.
On July 28, 2017, ONB filed a motion for partial summary disposition with respect to
plaintiff’s claims for breach of contract, unjust enrichment, and promissory estoppel pursuant to
MCR 2.116(C)(8) and (10). ONB argued that the statute of frauds barred all of these claims
because they all concerned an easement to build an access driveway, no written agreement
regarding the alleged easement exists, and there was no agreement regarding the essential terms
of the alleged agreement for an easement. On the same day, ONB filed a separate motion for
partial summary disposition with respect to plaintiff’s claim for tortious interference with
contracts and business expectancies, also pursuant to MCR 2.116(C)(8) and (10). ONB argued
that plaintiff failed to plead the necessary elements of either tortious interference claim, that
legitimate business reasons motivated its actions, and that plaintiff’s claim lacked support.
In opposition to ONB’s motions, plaintiff argued that the statute of frauds did not bar its
claims for breach of contract, promissory estoppel, and unjust enrichment because they did not
involve the establishment or enforcement of an easement, but the timely development of an
access road. Plaintiff argued that ONB made several clear and unequivocal promises upon
which plaintiff relied, and that there were genuine issues of material fact as to whether ONB was
unjustly enriched. With respect to plaintiff’s claim of tortious interference, plaintiff argued that
it had alleged a viable claim that ONB threatened to cease doing business with the vendors that
provided plaintiff services unless they stopped working for plaintiff, and that there were genuine
issues of material fact as to whether ONB’s actions were legitimate or a pretext for malicious
intent. Plaintiff further argued that discovery was not yet complete, and that the recent damage
inflicted by Hurricane Irma made it “impossible” for plaintiff to complete the necessary
discovery. In a reply brief, ONB generally reasserted its arguments in support of its motions for
partial summary disposition.
Subsequent to hearing oral argument and taking the matter under advisement, the trial
court entered an opinion and order granting ONB’s motions for partial summary disposition and
dismissing all four counts in their entirety. The trial court found that the access road constituted
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an easement and, therefore, that the statute of frauds barred plaintiff’s claim for breach of
contract because a written agreement did not exist. The trial court further found that summary
disposition would be appropriate even if there had been a form of writing because there was no
meeting of the minds regarding the essential elements of the alleged oral contract. Likewise, the
trial court found that the statute of frauds barred plaintiff’s claims for promissory estoppel and
unjust enrichment. The trial court concluded that the evidence established that the parties failed
to reach an agreement, and that plaintiff could not demonstrate that it was induced to act based
on an undefined promise. Similarly, plaintiff’s claim for unjust enrichment was untenable
because “no valid easement ever came to fruition,” and ONB never received a benefit. The trial
court dismissed plaintiff’s claim against ONB for tortious interference because plaintiff failed to
respond to ONB’s argument that plaintiff did not allege that ONB engaged in a per se wrongful
act or intentionally engaged in a lawful act with malice and without a proper purpose.
Accordingly, the trial court found that plaintiff’s claim was so deficient as a matter of law that no
factual development would justify recovery. 2
II. DISCUSSION
On appeal, plaintiff argues that the trial court erred by granting Johnson’s motion for
summary disposition and ONB’s motions for partial summary disposition. Specifically, plaintiff
contends that the statute of frauds does not apply to its claim for breach of contract, promissory
estoppel, and unjust enrichment, and material questions of fact exist with respect to each of these
claims, as well as to its claim for tortious interference. Plaintiff also argues that summary
disposition was premature because the destruction caused by Hurricane Irma made discovery
impossible to complete. We will address each argument in turn.
A. STANDARD OF REVIEW
This Court reviews a trial court’s decision whether to grant a motion for summary
disposition de novo. Kelly-Stehney & Assoc, Inc v MacDonald’s Indus Prod, Inc, 265 Mich. App.
105, 110; 693 NW2d 394 (2005). Johnson and ONB moved for summary disposition pursuant to
MCR 2.116(C)(8) and (10).
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings
alone. Bailey v Schaaf, 494 Mich. 595, 603; 835 NW2d 413 (2013). All factual allegations in
support of the claim are accepted as true, as well as any reasonable inferences or conclusions that
can be drawn from the facts and are construed in the light most favorable to the nonmoving
party. Johnson v Pastoriza, 491 Mich. 417, 435; 818 NW2d 279 (2012); Gorman v American
Honda Motor Co, 302 Mich. App. 113, 131; 839 NW2d 223 (2013). A motion under MCR
2.116(C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law
that no factual development could possibly justify recovery. Johnson, 491 Mich. at 435.
2
The trial court dismissed plaintiff’s claim for exemplary damages because it is not an
independent cause of action. The court did not address plaintiff’s arguments regarding discovery
and the impact of Hurricane Irma.
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A motion made under MCR 2.116(C)(10) tests the factual support of a claim, Joseph v
Auto club Ins Ass’n, 491 Mich. 200, 206; 815 NW2d 412 (2012), and should be granted when
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law, MCR 2.116(C)(10). The moving party has the initial burden of supporting its position by
affidavits, depositions, admissions, or other documentary evidence. Bronson Methodist Hosp v
Auto-Owners Ins Co, 295 Mich. App. 431, 440; 814 NW2d 670 (2012). The party opposing the
motion then has the burden of showing by evidentiary materials that a genuine issue of material
fact exists. Id. at 441. A genuine issue of material fact exists if, after viewing the record in a
light most favorable to the nonmoving party, reasonable minds could differ on an issue. West v
Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468 (2003). This Court reviews only the
evidence that was presented at the time the motion was decided, which, under MCR
2.116(C)(10), includes affidavits, pleadings, depositions, and other evidence that the parties
submitted. See Innovation Ventures v Liquid Mfg, 499 Mich. 491, 507; 885 NW2d 861 (2016).
“Similarly, ‘[t]his Court reviews de novo questions of law such as whether the statute of
frauds bars enforcement of a purported contract.’ ” Kelly-Stehney & Assoc, Inc, 265 Mich. App.
at 110, quoting Zander v Ogihara Corp, 213 Mich. App. 438, 441; 540 NW2d 702 (1995).
B. BREACH OF CONTRACT
Plaintiff first argues that the trial court erred by granting ONB’s motion for partial
summary disposition because the statute of frauds does not bar its claim for breach of contract.
Specifically, plaintiff contends that the oral agreement between the parties pertained to the
development of an access road, not the conveyance of an interest in the access road. We
disagree.
The record makes clear that the construction of the road at issue involved more than the
mere development of property, it involved the right to use the property of another for a specific
purpose. This is the classic definition of an easement. “An easement is the right to use another’s
land for a specified purpose.” Heydon v MediaOne, 275 Mich. App. 267, 270; 739 NW2d 373
(2007) (quotation marks and citation omitted). Plaintiff alleges that ONB wanted to build the
access road across plaintiff’s property so that it could easily access the lots on either side of
plaintiff’s property, RV2 and EL23. In its first amended complaint and in communications
between the parties, plaintiff indicated that an easement was at issue. In paragraph 20 of the first
amended complaint, plaintiff alleged as an example of Johnson’s unfulfilled promises that ONB
demanded that plaintiff pay its proportional costs of the access road and driveway “despite
Defendant Johnson’s clear and unequivocal promise that if Plaintiff granted the easement that
Defendant ONB would pay for that access road.” In paragraph 48 of its first amended complaint,
plaintiff alleged that ONB “has been unjustly enriched by receiving the easement without paying
for the access road, timely providing the access road, driveway, or staging area as agreed.”
In addition, numerous e-mails show that plaintiff understood that the access road
involved a shared easement. In a January 14, 2014 e-mail, Johnson responded to Bearden’s prior
concerns about the absence of a timeline or design for the access road by indicating that Jennifer
Merriman, legal counsel for one of the companies involved in ONB, would prepare “[l]egal
easements . . . for uninterrupted access to each property as it is effectively a shared driveway.”
Approximately two weeks later, Bearden e-mailed his architect asking for help in recalling the
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details of the “Shared Easement/Access Road for RV1.” In a February 10, 2014 e-mail, Bearden
asked Johnson to have drafted “legal easement agreements as previously discussed to provide us
a complete understanding of the costs, access, usage and maintenance related to the access road.”
On July 4, 2014, Doug Turnbull3 sent an e-mail to Merriman asking for a draft easement for
RV1. Merriman replied to Turnbull’s e-mail on July 11, 2014, attaching a generic draft
easement for Turnbull’s review. In light of the record before us, we conclude that the parties’
negotiations involved an easement.4
Because an easement is the transfer of a property interest, it is subject to the statute of
frauds. See Zaher v Miotke, 300 Mich. App. 132, 140; 832 NW2d 266 (2013). As codified in
MCL 566.106, the statute of frauds states in relevant part:
No estate or interest in lands . . . shall hereafter be created, granted, assigned,
surrendered or declared, unless by act or operation of law, or by a deed or
conveyance in writing, subscribed by the party creating, granting, assigning,
surrendering or declaring the same, or by some person thereunto by him lawfully
authorized by writing.
The statute summarizing the requirements for contracts concerning the transfer of an interest in
property, MCL 566.108, provides:
Every contract for the leasing for a longer period than 1 year, or for the sale of
any lands, or any interest in lands, shall be void, unless the contract, or some note
or memorandum thereof be in writing, and signed by the party by whom the lease
or sale is to be made, or by some person thereunto by him lawfully authorized in
writing . . . .
Thus, “[u]nder the statute of frauds, MCL 566.106 and MCL 566.108, an easement . . . must be
made in writing and signed by everyone with an interest in the property.” Zaher, 300 Mich. App.
at 138. At a minimum, the statute of frauds requires “ ‘a note or memorandum of the [alleged]
agreement’ ” that “is in writing and signed.” Kelly-Stehney & Assoc, Inc, 265 Mich. App. at 111,
quoting MCL 566.132(l). There was no such agreement between the parties, and therefore, the
3
Turnbull appears to be one of plaintiff’s representatives. Jaime Rae Turnbull, who was copied
on the e-mail exchange between Doug Turnbull and Jennifer Merriman, worked as an owner’s
representative for Luxe Partners and became involved in the development of RV1. She stated in
an affidavit that she often communicated with ONB on plaintiff’s behalf.
4
In a reply brief, plaintiff raises an issue concerning the doctrine of partial performance
and argues for the first time that the right to travel RV1 was a license, and therefore, was not
subject to the statute of frauds. This argument is not properly before this Court because reply
briefs are limited to “rebuttal of the arguments in the appellee’s or cross-appellee’s brief . . . .”
MCR 7.212(G). Further, “raising an issue for the first time in a reply brief is not sufficient to
present the issue for appeal.” Blazer Foods, Inc v Restaurant Props, Inc, 259 Mich. App. 241,
252; 673 NW2d 805 (2003).
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statute of frauds bars plaintiff’s claim for breach of contract. Accordingly, the trial court
properly granted ONB summary disposition because plaintiff’s claim for breach of contract fails
as a matter of law.5 Because the trial court properly granted ONB summary disposition on the
ground that the statute of frauds bars plaintiff’s claim, we need not address the trial court’s
alternative grounds for summary disposition, namely, that there was no meeting of the minds on
the essential elements of the alleged contract.
C. PROMISSORY ESTOPPEL
Plaintiff next argues that the trial court erred when it granted ONB partial summary
disposition with respect to its claims for promissory estoppel because the essential elements of a
claim for promissory estoppel were satisfied.6 We disagree.
The elements of promissory estoppel are: “(1) a promise (2) that the promisor should
reasonably have expected to induce action of a definite and substantial character on the part of
the promisee and (3) that, in fact, produced reliance or forbearance of that nature (4) in
circumstances requiring enforcement of the promise if injustice is to be avoided.” Zaremba
5
Plaintiff contends that the facts in the case at bar are nearly identical to those in Overstreet v
Brookland, 52 NC App 444, 454; 279 SE2d 1 (1981), wherein the North Carolina Court of
Appeals held that the defendant developer’s “promise to construct and maintain a road [to the
plaintiffs’ lot] does not come within the statute of frauds.” Although cases from foreign
jurisdictions are not binding, they may be persuasive. See Hiner v Mojica, 271 Mich. App. 604,
612; 722 NW2d 914 (2006). However, we do not find Overstreet persuasive. The plaintiff
homeowners in Overstreet had an easement in the streets shown on the plat leading to their lot.
The developer promised, both orally and in writing, to “cut a sixty foot right-of-way to plaintiffs’
lot, and [to] properly ditch, gravel and maintain a road to plaintiffs’ lot.” Overstreet, 52 NC App
at 451. Evidently, the developer had provided the road, but had failed to maintain it as promised.
Id. Thus, the plaintiffs’ suit was not to establish or enforce an easement, but to enforce the
developer’s promise to properly construct and maintain the road. In the present case, plaintiff
has failed to present a genuine issue of material fact that ONB promised what plaintiff alleges
that it promised. We are also unpersuaded by plaintiff’s reliance on Koffman v Mathews, 352
Mich. 390; 89 NW2d 756 (1958), and Summers v Hoffman, 341 Mich. 686; 69 NW2d 198 (1955),
both of which are factually distinguishable from the case at bar.
6
Although plaintiff’s statement of the issues refers to both defendants, plaintiff does not address
in its brief the trial court’s grant of summary disposition of plaintiff’s claim for promissory
estoppel to Johnson on the ground that an agent of a disclosed principal may not be held
personally liable for promises made on behalf of the principal. See Huizenga v Withey Sheppard
Assoc, 15 Mich. App. at 633 (“It is a well accepted rule that where the principal is disclosed and
the agent is known to be acting as such, the agent cannot be made personally liable unless he
agreed to become personally liable.”). Accordingly, we consider the issue abandoned. See
Woods v SLB Prop Mgt, LLC, 277 Mich. App. 622, 626-627; 750 NW2d 228 (2008) (indicating
that an appellant may not fail to address the basis of the trial court’s decision, and that failure to
properly address the merits of an assertion of error constitutes abandonment of the issue).
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Equip, Inc v Harco Nat’l Ins Co, 280 Mich. App. 16, 41; 761 NW2d 151 (2008). “A promise is a
manifestation of intention to act or refrain from acting in a specific way, so made as to justify a
promisee in understanding that a commitment has been made.” Id. (citation and internal
quotation marks omitted). The promise upon which the promisee relied must be definite and
clear, and the promisee’s reliance must be reasonable. Id. Even when all of the elements have
been satisfied, promissory estoppel must be cautiously applied, and only when “the facts are
unquestionable and the wrong to be prevented undoubted.” Novak v Nationwide Mut Ins Co, 235
Mich. App. 675, 687; 599 NW2d 546 (1999).
Plaintiff alleged in its first amended complaint that ONB “issued a series of clear and
definite promises” to plaintiff that included the provision of an access road, and that plaintiff
relied to its detriment on these promises and granted defendant access across its property.
Plaintiff’s allegations imply that it gave ONB an easement in exchange for provision at ONB’s
expense of an access road, but ONB has not fulfilled its promise. Promissory estoppel may not
be used to avoid the statute of frauds because “an interest in land cannot be established on the
basis of estoppel . . . .” Kitchen v Kitchen, 465 Mich. 654, 660; 641 NW2d 245 (2002). We have
already determined that the evidence indicates that the access road to which plaintiff refers
involved an easement, and that an easement “must be made in writing and signed by everyone
with an interest in the property.” Zaher, 300 Mich. App. at 138. Plaintiff may not use promissory
estoppel to circumvent the requirements of the statute of frauds. Kitchen, 465 Mich. at 660.
As evidence of the parties’ agreement, plaintiff points to Bearden’s affidavit, in which
Bearden states that he e-mailed Johnson on January 24, 2014 “to confirm and remind him of his
promises.” The e-mail states in relevant part:
Our plans were always to have a small drive and for our drive to be private but
back in 2011 you approached us requesting we give you an easement so that you
could build an access road for EL25 [sic] through our lot (and RV2). The benefit
presented to us would be an easier approach to our home and that the costs would
be covered by ONB. However, now you are telling us ‘Each property will be
responsible for its proportional cost for implementation.’ David, we are way over
budget already and to now be asked to spend more money on an access road is not
something we are keen about.
Plaintiff asserts that this e-mail offers confirmation of the parties’ 2011 agreement, “as does
Johnson’s conspicuous failure to ever deny receiving same.” However, Johnson did deny
plaintiff’s assertions. In a February 16, 2014 e-mail, Johnson wrote in relevant part:
The access road originated from [David] Snider [plaintiff’s former
contractor] because the proposed circular driveway for [RV1] would not work.
Fred Ball, who was at the time trying to purchase [EL23], encountered the same
issues. Therefore, the access drive evolved into a three party, three lot access
drive, and considerable effort, energy, and planning has gone into it. This access
road was not forced on you at any time. It is my understanding that the agreement
was and is that you would contribute to the access road an amount equal to that
which you would have spent for the proposed circular driveway that included
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entrance, access, walls, etc., and [ONB] and the adjoining lot owners would pay
their proportionate share. . . .
Other than assertions in plaintiff’s first amended complaint and Bearden’s affidavit,
nothing in the documents presented to the trial court indicate that ONB ever made a “definite and
clear” promise to provide an access road across plaintiff’s property at its own expense. See
Zaremba Equip, Inc, 280 Mich. App. at 41. To the contrary, the record evidence, viewed in the
light most favorable to plaintiff, shows that there was no agreement reached regarding costs,
construction schedules, financial responsibilities, or even the design of the proposed roadway.
Accordingly, notwithstanding the statute of frauds, plaintiff’s claim for promissory estoppel is
meritless.
D. UNJUST ENRICHMENT
Plaintiff next argues that the trial court erred when it granted partial summary disposition
to ONB because it established the essential elements of a claim for unjust enrichment. We
disagree.
The doctrine of unjust enrichment is the equitable counterpart of a claim for breach of
contract. AFT Michigan v Michigan, 303 Mich. App. 651, 677; 846 NW2d 583 (2014). Unjust
enrichment occurs when an individual has and retains money or benefits that belong to another in
both justice and equity. Id., citing McCreary v Shields, 333 Mich. 290, 294; 52 NW2d 853
(1952). To sustain a viable claim for unjust enrichment, the plaintiff must establish: “ ‘(1) the
receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to the
plaintiff because of the retention of the benefit by the defendant.’ ” AFT Michigan, 303 Mich
App at 677-678, quoting Morris Pumps v Centerline Piping Inc, 273 Mich. App. 187, 193; 729
NW2d 898 (2006).
Plaintiff’s claim for unjust enrichment is meritless because the easement never came to
fruition, and therefore, ONB never received a benefit from plaintiff. According to Johnson’s
affidavit, ONB did not benefit from using an access road; it developed RV2 and EL23 by using a
main access road that connected to the individual driveways. Plaintiff presents no evidence to
contradict this assertion. While plaintiff may have incurred additional expenses because of
construction delays, it provides no evidence that it did so because of a benefit that ONB unjustly
received. Accordingly, partial summary disposition was appropriate with respect to plaintiff’s
claim for unjust enrichment.
E. TORTIOUS INTERFERENCE
Plaintiff next challenges the trial court’s decision to grant Johnson summary disposition
with respect to its claim for tortious interference by arguing that Johnson is personally liable for
his individual tortious acts. We disagree.
Plaintiff alleges that Johnson personally and maliciously sabotaged its business
relationships with certain vendors because plaintiff refused to agree to the terms of ONB’s
property management service agreement. According to plaintiff, Johnson personally directed
ONB’s employees to threaten the vendors that plaintiff independently hired to service RV1 and
Brise de Mer.
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At the outset, plaintiff fails to differentiate between interference with a contract and
tortious interference with business relationships or expectancies, which are distinct causes of
actions. See Health Call of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich. App. 83,
89; 706 NW2d 843 (2005) (“In Michigan, tortious interference with a contract or contractual
relations is a cause of action distinct from tortious interference with a business relationship or
expectancy.”). “The elements of tortious interference with a contract are (1) the existence of a
contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the
defendant.” Id. at 89-90. For tortious interference with business relationships or expectancies,
the elements include: “(1) the existence of a valid business relationship or expectancy that is not
necessarily predicated on an enforceable contract, (2) knowledge of the relationship or
expectancy on the part of the defendant interferer, (3) an intentional interference by the
defendant inducing or causing a breach or termination of the relationship or expectancy, and (4)
resulting damage to the party whose relationship or expectancy was disrupted.” Id. at 90.
A corporate officer may be held individually liable when he or she personally causes their
corporation to act unlawfully. Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich. 1, 17-18;
779 NW2d 237 (2010). However, “[t]o maintain a cause of action for tortious interference, the
plaintiff must establish that the defendant was a ‘third party’ to the contract rather than an agent
of one of the parties acting within the scope of its authority as an agent.” Lawsuit Fin, LLC v
Curry, 261 Mich. App. 579, 593; 683 NW2d 233 (2004). Plaintiff fails to address this initial
hurdle to establish its claim for tortious interference. Without demonstrating that Johnson was a
third party, plaintiff’s claim for tortious interference under either legal theory fails as a matter of
law. Moreover, there is no evidence that Johnson personally directed ONB’s representatives to
make these threats. Emily Oakes admitted that she made the decision herself to inform the
vendors who independently serviced RV1 and Brise de Mer that it could not work for plaintiff
and ONB. Accordingly, there is no question of fact as to whether Johnson tortiously interfered
with plaintiff’s business relationships or expectancies or tortiously interfered with plaintiff’s
contracts.
Plaintiff next challenges the trial court’s decision to grant ONB partial summary
disposition with respect to its claim for tortious interference with a business relationship. We
disagree.
To sustain a viable claim for tortious interference with a business relationship, the
plaintiff must allege “ ‘the intentional doing of a per se wrongful act or the doing of a lawful act
with malice and unjustified in law for the purpose of invading the contractual rights or business
relationship of another.’ ” CMI Int’l, Inc v Intermet Int’l Corp, 251 Mich. App. 125, 131; 649
NW2d 808 (2002), quoting Feldman v Green, 138 Mich. App. 360, 378; 360 NW2d 881 (1984).
If the defendant’s actions were not wrongful per se, the plaintiff must establish specific,
affirmative acts that substantiate the unlawful purpose of the interference. CMI Int’l, Inc, 251
Mich. App. at 131. Although the plaintiff need not allege these specific acts until trial, the
plaintiff must sufficiently demonstrate specific, corroborative acts in order to raise a genuine
issue of material fact and avoid summary disposition. Id. at 132. However, if the defendant’s
actions were motivated by a legitimate business reason, its actions do not constitute improper
motive or interference. See Dalley v Dykema Gossett, 287 Mich. App. 296, 324; 788 NW2d 679
(2010).
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Plaintiff seemingly argues that ONB’s threats to the vendors whom plaintiff
independently retained were lawful acts with malice and without a legal justification. Plaintiff
claims that ONB threatened to terminate its contracts with those vendors that serviced RV1 and
Brise de Mer because plaintiff did not participate in the property management service program.
Notably, plaintiff does not respond to ONB’s argument that it had legitimate business
purposes—to limit its liability, reduce costs, and protect its relationship with its vendors—behind
its policy to only contract with vendors that exclusively service those villas that participate in the
property management service program. In order to survive a motion for summary disposition,
plaintiff must put forth some evidence to create a factual question as to whether ONB committed
a wrongful act that had no justification, and did so with malice and the intent to induce the
vendors to stop servicing RV1 and Brise de Mer. CMI Int’l, Inc, 251 Mich. App. at 131-132.
Plaintiff failed to do so by merely rejecting ONB’s justification for having exclusive vendor
relationships, which warranted partial summary disposition.
F. DISCOVERY
Finally, plaintiff argues that the trial court abused its discretion by declining plaintiff’s
request for additional discovery and erred by granting ONB summary disposition because
Hurricane Irma made it “impossible” to complete discovery. We disagree. We review for an
abuse of discretion a trial court’s decision to deny a request for additional discovery. Diem v
Sallie Mae Home Loans, Inc, 307 Mich. App. 204, 214-215; 859 NW2d 238 (2014). “An abuse of
discretion exists when the trial court’s decision results in an outcome that falls outside the range
of principled outcomes. Keinz v Keinz, 290 Mich. App. 137, 141; 799 NW2d 576 (2010).
“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 Trust v
Bloomfield Hills Country Club, 283 Mich. App. 264, 292; 769 NW2d 234 (2009). “However, the
fact that the discovery period remains incomplete does not automatically mean that the trial
court’s decision to grant summary disposition was untimely or otherwise inappropriate.” Id.
Summary disposition is appropriate if there is no fair chance that further discovery would
uncover factual support for the nonmoving party’s position. Id.
Under MCR 2.116(H)(1), “[a] party may show by affidavit that the facts necessary to
support the party’s position cannot be presented because the facts are known only to persons
whose affidavits the party cannot procure.” It is insufficient for a party opposing summary
disposition to simply state that summary disposition is premature without identifying an issue in
dispute and supporting that disputed issue with independent evidence. Marilyn Froling
Revocable Trust, 283 Mich. App. at 292, citing MCR 2.116(H)(1). The party opposing summary
disposition must proffer affidavits that name the persons whose affidavits cannot be procured,
why their testimony cannot be procured, the nature of their probable testimony, and “the reason
for the party’s belief that these persons would testify to those facts.” MCR 2.116(H)(1)(a) and
(b).
Plaintiff argues that the trial court should have denied ONB’s motions for partial
summary disposition under MCR 2.116(H)(1) because plaintiff was unable to take the
depositions of those vendors relevant to plaintiff’s claim for tortious interference. However,
plaintiff has not shown that there was a fair chance that further discovery would have revealed
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any evidence of ONB’s alleged tortious interference with plaintiff’s business relationships.
There is ample documentary evidence of ONB’s policy to contract with vendors that exclusively
service villas that participate in the property management service program as well as ONB’s
communication with those vendors after plaintiff declined to participate in the program.
Moreover, plaintiff fails to identify an issue in dispute that would warrant the trial court’s denial
of summary disposition under MCR 2.116(H)(1). Nor does plaintiff provide the nature of the
probable testimony that the vendors would give, or the reason why plaintiff believed the vendors
would testify to certain facts. Accordingly, the trial court did not err by granting ONB partial
summary disposition because there is no merit to plaintiff’s argument.
Affirmed.
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Amy Ronayne Krause
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