Best Team Ever Inc v. Matthew K Prentice ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
BEST TEAM EVER, INC., COACH INSIGNIA, UNPUBLISHED
L.L.C., DELI UNIQUE WEST BLOOMFIELD, June 23, 2015
INC., MILK & HONEY DETROIT, INC., NO. VI
CHOPHOUSE DETROIT, INC., NORTHERN
LAKES SEAFOOD RESTAURANT, PLAZA
DELI SOUTHFIELD, INC., SOURDOUGH
BAKERY, INC., TROWBRIDGE
RESTAURANTS, INC., EPICUREAN GROUP,
INC., MORELS, INC., and PARR DELI, INC.,
Plaintiffs-Appellees,
v No. 319026
Oakland Circuit Court
MATTHEW K. PRENTICE, LC No. 2012-127444-PD
Defendant-Appellant,
and
MICHIGAN BISTRO, ASMAR COMPANY,
INC., INTERNATIONAL RESTAURANT
GROUP, NWH HOLDINGS, ASMAR CAPITAL,
MYKONOS TAVERNA, MORELS OF
FARMINGTON HILLS, and JIMMY ASMAR,
Defendants.
Before: STEPHENS, P.J., and BORRELLO and GADOLA, JJ.
PER CURIAM.
Plaintiffs allege that defendant-appellant, Mathew K. Prentice, breached various
noncompetition provisions in an employment agreement with plaintiff Trowbridge Restaurants,
Inc. (TRI), and that Prentice converted plaintiffs’ assets for his own business operations.
Prentice appeals as of right from a judgment, entered after a bench trial, granting plaintiffs’
request for injunctive relief and awarding damages to plaintiffs. We affirm.
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I. FACTS AND PROCEDURAL BACKGROUND
Prentice, a long-time chef, encountered financial difficulties in 2009 while operating
restaurant and catering businesses in Wayne and Oakland counties. Facing foreclosure of certain
restaurant assets by AMRESCO Commercial Finance, L.L.C.C. (AMRESCO), Prentice implored
Stanley Dickson, Jr., to acquire those assets from AMRESCO in order to save the jobs of his
employees and the reputation he had created through his business ventures. Dickson had met
Prentice before 2009 through the Young Presidents Organization. Dickson was a member of a
law firm and had an ownership interest in an accounting firm, but he also had business ventures
outside of law and accounting. Dickson agreed to purchase the assets that were the subject of the
foreclosure. He used TRI, which would transact business under the assumed name of Matt
Prentice Restaurant Group, to purchase the assets. TRI also assumed several liabilities as part of
the transaction with AMRESCO and Prentice. TRI also engaged in separate transactions to
acquire the interests of Prentice and General Motors at another restaurant in the Renaissance
Center in the Detroit.
The AMRESCO transaction did not involve Prentice’s catering businesses, but the
catering businesses were part of Dickson’s overall transaction with Prentice, which also required
Prentice to enter into an employment agreement with TRI. The employment agreement provided
that Prentice would serve as the chief executive officer for TRI, whose business was described as
“restaurants, catering, and all related goods and services.” Prentice was hired as an employee at
will, but agreed to several noncompetition provisions that would remain in effect during and
after his employment ended. In January 2011, the employment agreement was amended to
expand the meaning of the term “employer” to include TRI and “its successors and assigns, and
any of its present or future subsidiaries, or organizations controlled by, controlling, or under
common control with it.”
In March 2012, while plans were in the works for new restaurants, including a Morels
restaurant that would be opened under a lease being negotiated with Jimmy Asmar, Prentice
informed Dickson that he was resigning his employment and would be going forward on his own
with the new Morels restaurant and another restaurant, and that he would be assuming catering
businesses at Temple Israel and Adat Shalom. Prentice took several key employees from
plaintiffs after he resigned. He started operating under entities affiliated with Asmar. Dickson
was unable to retain the catering business at Temple Israel. After a chaotic period in April 2012
during which Temple Israel either released payments to Prentice or withheld payments owed for
catering services, Temple Israel obtained catering services only through Prentice.
This action was filed in June 2012. Pursuant to plaintiffs’ amended complaint, TRI and
other associated entities, including Epicurean Group, Inc., which had been formed to create a
new brand for business operations (hereafter collectively referred to as “plaintiffs”), sought
injunctive relief and money damages against Prentice, Asmar, and other business entities. By the
time of trial in July 2013, all defendants except for Prentice had been dismissed. Prentice was
then providing catering services at Temple Israel, but was operating through his own entity, Matt
Prentice Events. The Morels restaurant and a steakhouse that Prentice opened as part of his
association with Asmar had closed.
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The trial court found that Prentice breached the employment agreement with TRI and
converted plaintiffs’ assets. The court found that the agreement was blatantly and repeatedly
breached. It rejected Prentice’s claim that the agreement, or various noncompetition provisions,
were unenforceable. In addition to injunctive relief, the trial court awarded plaintiffs $500,000
in liquidated damages, $1 million for lost past and future profits for catering services at Temple
Israel over a five-year period, and $52,346 for catering jobs that were executed by plaintiffs for
Temple Israel, for which plaintiffs were never paid.
II. STANDARD OF REVIEW
“This Court reviews a trial court’s findings of fact following a bench trial for clear error
and reviews de novo the trial court’s conclusions of law.” Trader v Comerica Bank, 293 Mich
App 210, 215; 809 NW2d 429 (2011). An issue of contract interpretation is also reviewed de
novo. Id. A finding is clearly erroneous where it lacks evidentiary support or this Court is left
with a definite and firm conviction that a mistake was made. Chelsea Investment Group LLC v
City of Chelsea, 288 Mich. App. 239, 251; 792 NW2d 781 (2010). We give deference to the trial
court’s special opportunity to evaluate the credibility of witnesses who appear before it. MCR
2.613(C).
III. NONCOMPETITION AGREEMENT
Prentice challenges the enforceability of the noncompetition provisions that he agreed to
in October 2009, as part of his employment agreement with TRI. Prentice argues that the trial
court improperly relied on his acknowledgment in the employment agreement that the
noncompetition agreement was reasonable, and failed to recognize that the Antitrust Reform Act,
MCL 445.771 et seq., requires a judicial determination of reasonableness that trumps the parties’
freedom to contract. He requests that this Court determine whether the noncompetition
agreement is unreasonable and unenforceable.
Section 4a(1) of the Antitrust Reform Act, MCL 445.774a(1), expressly allows an
employer and an employee to enter into “an agreement or covenant which protects an employer’s
reasonable competitive business interests and expressly prohibits an employee from engaging in
employment or a line of business after termination of employment if the agreement or covenant
is reasonable as to its duration, geographical area, and the type of employment or line of
business.” MCL 445.774a(1). This statute was intended to revive common-law standards for
enforcing noncompetition agreements. Coates v Bastian Bros, Inc, 276 Mich. App. 498, 507; 741
NW2d 539 (2007). At common law, the reasonableness of a noncompetition agreement was
determined by the circumstances that existed when the agreement was made. Hubbard v Miller,
27 Mich. 15, 19 (1873). The agreement must (1) have an honest and just purpose, (2) protect
legitimate interests of the party in whose favor it is imposed, (3) be reasonable between the
parties, and (4) not be specially injurious to the public. St Clair Med, PC v Borgiel, 270 Mich
App 260, 266; 715 NW2d 914 (2006). “A court must assess the reasonableness of the
noncompetition clause if a party has challenged its enforceability.” Coates, 276 Mich. App. at
507-508. If the facts are undisputed, the reasonableness of a noncompetition provision is a
question of law. Id. at 508. The burden of establishing reasonableness is on the party seeking to
enforce the noncompetition provision. Id.
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In this case, §§ 5 to 9 of the employment agreement address the competitive interests of
the employer, who is defined as TRI,1 solicitations of the employer’s employees, disparaging
remarks, inventions, and trade secrets. Prentice’s substantive argument is directed only at his
agreement in § 6(a) that, for a five-year term2 after his employment ceases, he will not
have any interest in (whether as founder, proprietor, officer, director or otherwise)
enter the employment of, act as agent, broker, licensor or distributor for or adviser
or consultant to, or in any way assist (whether by solicitation of customers or
employees or otherwise) any individual, partnership, joint venture, corporation or
other business entity directly or indirectly engaged in any business or enterprise
which directly or indirectly competes with Employer in the business or the
restaurants, catering, and all related goods and services or other activities engaged
in by Employer at the time Employee ceases to be employed by Employer, to the
extent competitive with Employer in the markets in which Employer operates;
Contrary to what Prentice argues, the trial court did not rely solely on freedom-of-
contract principles to determine that the noncompetition provision was enforceable. The court
relied in part on Prentice’s acknowledgment in § 10 of the employment agreement that the
“duration, activities restricted and geographic scope of the provisions set forth in Sections 5
through 9 are reasonable, and are reasonably necessary to protect the business and good will of
Employer.” Although the court reasoned that Prentice should be bound by this unambiguous
language, see Rory v Continental Ins Co, 473 Mich. 457, 468; 703 NW2d 23 (2005), it also
independently determined that the noncompetition provision was reasonable. The record
supports the trial court’s decision.
The trial court rejected Prentice’s argument that he was duped into signing the
employment agreement by Dickson’s lies and deception. Rather, the court found that Prentice
had implored Dickson to acquire assets that would be lost in foreclosure, so that Prentice could
salvage his goodwill and business reputation. Further, that it was contemplated that Dickson
would invest additional money into the newly formed business, that it was believed that the new
business would be successful only if Prentice was an employee, and that it was understood that
Dickson would not move forward with this business venture without a five-year noncompetition
agreement. The trial court also found that the market in which the businesses operated consisted
of Wayne and Oakland counties. We find no clear error in the trial court’s findings, and
1
Section 12(d) provides that the agreement is binding on the parties and their respective
successors and assigns. Further, the 2011 amendment to the agreement expanded the definition
of “employer” to include other entities associated with TRI.
2
Section 6 also provides that the five-year term is subject to the following tolling provision, that
“[t]he running of the period during which the restrictions set forth in this Section 6 apply will be
tolled during the continuance of any breach or violation by Employee of his covenants and
agreements contained in this Section, and the period will be extended by the length of time
during which any such breach or violation continues.”
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accordingly, we will evaluate the reasonableness of the noncompetition provision in ¶ 6(a) in
light of those findings.
The five-year duration of the noncompetition provision after Prentice’s employment ends
is reasonable under the circumstances. Prentice was not a mere employee. Rather, his
involvement was critical to the success of the businesses, and provided a means of salvaging the
businesses and preserving his goodwill or “brand” as the chief executive officer of the
businesses. Although Dickson did not purchase business assets directly from Prentice, the
evidence supports the trial court’s finding that Prentice’s employment and continuation of the
“brand” were essential to the transaction. Five years was a reasonable period for restricting
Prentice’s competition following the termination of his employment, considering that the period
necessary to convert Prentice’s goodwill or “brand” would not commence until Prentice’s
employment ended. See Brillhart v Danneffel, 36 Mich. App. 359, 364-365; 194 NW2d 63 (1971)
(five-year covenant not to compete in a purchase contract for a restaurant business was
reasonable where it allowed the purchaser to convert the restaurant’s goodwill to the purchaser’s
own goodwill without direct competition from the seller).
We reject Prentice’s argument that the tolling provision in § 10 of the employment
agreement rendered the five-year duration unreasonable. The tolling provision in § 10 only
applies should the court find that “the duration, activities restricted and geographic scope” of the
provisions in § 6 are unreasonable and unenforceable. The court did not make that finding. The
tolling provision in § 6 is applicable where, as here, there was breach or a violation of § 6. It
ensures that there will actually be benefit from the five-year duration of the noncompetition
provision. In essence, it is a contractual remedy that a trial court could itself provide in the
absence of an agreement. See Thermatool Corp v Borzym, 227 Mich. App. 366, 375; 575 NW2d
334 (1998) (in appropriate circumstances, a court may extend the stated expiration date in a
noncompetition agreement). Thus, it is not unreasonable.
With respect to the geographic area of the location, § 6(a) of the employment agreement
limits it to “the markets in which Employer operates.” The trial court reasonably found that this
area was limited to Wayne and Oakland counties, which are the counties where Dickson’s
restaurants and catering services are located, and thus would be subject to competition from any
business established by Prentice. We find no record support for Prentice’s assertions that he
could not make a living in the restaurant or catering business outside of those counties.
Lastly, with respect to the scope of the agreement, § 6(a) limits the noncompetition
provision to “the business of restaurants, catering, and all related goods and services or other
activities engaged in by Employer at the time Employee ceases to be employed[.]” Because the
provision is limited to the type of activities engaged in by Dickson’s business entities, it is
reasonable. Further, considering that Prentice had been employed as the chief executive officer
for plaintiffs’ businesses, it was not unreasonable for the scope of the agreement to encompass
activities beyond just work as a chef for a competitor.
In sum, giving deference to the trial court’s findings, we conclude that the
noncompetition provision in § 6(a) is reasonable in duration, geographical area, and the type of
employment or line of business that is prohibited. Therefore, it is enforceable under MCL
445.774a(1).
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IV. DAMAGES — BREACH OF CONTRACT
A. LIQUIDATED DAMAGES
Prentice also argues that any damages for breach of the employment agreement should
have been limited to the liquidated damages of $500,000 set forth in § 11 of the agreement. We
disagree.
A court’s primary task in construing a contact is to determine the parties’ intent at the
time the contract was made. Miller-Davis Co v Ahrens Constr, Inc, 495 Mich. 161, 174; 848
NW2d 95 (2014). The parties’ intent is determined by examining the contract language
according to its plain and ordinary meaning. Id. Contractual words and phrases are also given
meaning by their context or setting. Bloomfield Estates Improvement Ass’n v City of
Birmingham, 479 Mich. 206, 215; 737 NW2d 670 (2007); see also Hastings Mut Ins Co v Safety
King, Inc, 286 Mich. App. 287, 294; 778 NW2d 275 (2009). If contract language is unambiguous,
it is applied as written. Coates, 276 Mich. App. at 503.
“A liquidated damages provision is simply an agreement by the parties fixing the amount
of damages in the event of a breach and is enforceable if the amount is reasonable with relation
to the possible injury suffered and not unconscionable or excessive.” St Clair Med, PC, 270
Mich. App. at 270-271. It is particularly appropriate where actual damages are uncertain and
difficult to ascertain or are speculative. Id. at 271. But this does not mean that the parties to a
contract must agree to a liquidated damages provision as an exclusive remedy for a breach of
contract. See Detroit Free Press v Miller, 223 Mich. 333, 335-336; 193 N.W. 779 (1923).
Nonetheless, under the election of remedies doctrine, a double recovery is not permitted for a
single injury. Barclae v Zarb, 300 Mich. App. 455, 486; 834 NW2d 100 (2013). “A plaintiff
may . . . simultaneously pursue all available remedies regardless of their legal consistency, if the
plaintiff does not obtain a double recovery.” Id.
Section 11 of the employment agreement provides:
The parties hereto recognize that the services to be rendered by Employee
under this Agreement are special, unique and of extraordinary character.
Employee acknowledges that breach by Employee of the terms and conditions of
any provisions of Section 5 through 9 of this Agreement will result in irreparable
harm to Employer and Employer’s Affiliates for which compensatory damages
are an inadequate remedy. Employee therefore agrees that in the event of such
breach, Employer will be entitled, if it so elects and in addition to all other
remedies available to Employer both at equity and at law, to institute and
prosecute proceedings in any court of competent jurisdiction, either in law or
equity, without the posting of any bond or security, to enjoin such breach and/or
to specifically enforce the performance of Sections 5 through 9 of this Agreement.
Employee further agrees to a liquidated damage clause in the amount of
$500,000.00. The waiver by the Employer of a breach of any provision of this
Agreement by the Employee shall not operate or be construed as a waiver or any
subsequent breach by the Employee. No waiver shall be valid unless in writing
and signed by an authorized officer of the Employer. Employee will reimburse
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Employer for all attorney’s fees and expenses incurred by Employer and
Affiliates of Employer in successfully enforcing such provisions. This remedy is
in addition to any other remedy available to Employer, by judicial proceedings or
otherwise, for breach of any provision of this Agreement, including Sections 5
through 9. Notwithstanding any breach by Employer of this Agreement, except if
Employer refuses without cause to pay Employee amounts to which Employee is
entitled hereunder, the provisions of Section 5 through 9 will remain in effect.
[Emphasis added.]
Examined in context, it is clear from the sentence, “Employer will be entitled, if it so
elects and in addition to all other remedies available to Employer both at equity an at law . . .”
preceding the sentence addressing liquidating damages, without any mention of exclusivity, that
the parties did not intend liquidated damages to be an exclusive remedy. Therefore, breach of
contract damages are not fixed at $500,000.
In addition, the trial court clearly found multiple breaches of the employment agreement.
It found repeated breaches of §§ 5, 6, and 7. It also found that § 1, which describes Prentice’s
employment position and responsibilities, was breached. Therefore, the trial court had a factual
basis for applying the liquidated damages provision and awarding other damages that would not
result in a double recovery for a single injury. Indeed, the court indicated that the difficulty in
ascertaining damages for the loss of goodwill and reputation supported the liquidated damages
award. Prentice has not established that the trial court awarded damages not contemplated by the
employment agreement, or that it awarded both liquidated damages and actual damages for the
same injury.
B. LOST PROFITS — TEMPLE ISRAEL
Prentice raises three challenges to the trial court’s award of $1 million for lost profits
relating to the loss of the catering business at Temple Israel over the five-year term of the
noncompetition agreement.
Prentice first argues that the award was unjustified because he was not the cause of the
end of plaintiffs’ contract with Temple Israel. “To recover in a breach of contract action, a
plaintiff must prove that the defendant’s breach was the proximate cause of the harm the plaintiff
suffered.” Chelsea Investment Group LLC, 288 Mich. App. at 254. “[T]he breach must be the
most direct, natural, and foreseeable cause of the plaintiff’s harm.” Id. The recoverable
damages are generally those that arise naturally from the breach and those damages
contemplated by the parties at the time that contract was made. Kewin v Massachusetts Mut Life
Ins Co, 409 Mich. 401, 414; 295 NW2d 50 (1980). Any damages must also satisfy a “but for”
test of causation. Miller-Davis Co, 495 Mich. at 178-179.
The trial court found that Prentice breached the noncompetition in many respects,
including by enticing catering employees to leave plaintiffs’ employment, by actively soliciting
the Temple Israel catering business, and by deciding to actually take over the Temple Israel
business. Prentice’s own testimony supports these findings. Prentice indicated that his catering
services for Temple Israel spanned the time period before and after he was employed by
plaintiffs. Prentice testified that he reached out to Temple Israel in late March 2012 in
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conjunction with his resignation from plaintiffs. He described the next month as a “rocky
month” during which plaintiffs tried to move him out of Temple Israel. He stated that plaintiffs
continued to pay for food bills and that catering staff received paychecks from both himself and
plaintiffs. As of May 1, 2012, however, Temple Israel went exclusively with Prentice’s catering
services and plaintiffs’ relationship with Temple Israel ended.
We find no clear error in the trial court’s finding that, but for Prentice’s breach of the
noncompetition agreement, profits from the catering business would have been earned by
plaintiffs, and that plaintiffs will not be able to reclaim the lost business at Temple Israel even if
the noncompetition provisions are enforced against Prentice. Both the “but for” test of causation
and proximate causation are supported by the evidence that Prentice caused the circumstances
that ultimately led to the severance of Temple Israel’s relationship with plaintiffs, and plaintiffs’
complete ouster as of May 1, 2012.
Prentice also argues that the amount of lost profits awarded to plaintiffs for the loss of the
catering business at Temple Israel, $1 million, is speculative and excessive. We disagree.
Where the record reflects that the trial court was aware of the issues and correctly applied
the law, and its award of damages is within the range of the evidence, clear error will not be
found. Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich. App. 165, 177; 530 NW2d
772 (1995). Damages in a common-law breach of contract action are intended to make the
plaintiff whole. Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich. 578, 586 n 4; 624
NW2d 180 (2001). Speculative damages are not recoverable. Chelsea Inv Group LLC, 288
Mich. App. at 255. “However, it is not necessary that damages be determined with mathematical
certainty; rather, it is sufficient if a reasonable basis for computation exists.” Id.
These rules apply equally to damages sought by a party for anticipated lost profits arising
from breach of a contract. Lost profits need only be established with reasonable certainty. See
Fera v Village Plaza, Inc, 396 Mich. 639, 644; 242 NW2d 372 (1976); Joerger v Gordon Food
Serv, 224 Mich. App. 167, 175; 568 NWW2d 365 (1997). Although lost profits may not be based
solely on conjecture or speculation, the type of uncertainty that bars a recovery for lost profits is
uncertainty as to the fact of the damages, not the amount. Bonelli v Volkswagen of America, Inc,
166 Mich. App. 483, 511; 421 NW2d 213 (1988). The law does not require a higher degree of
certainty than the nature of the case at hand permits. Id. at 511-512.
In this case, the trial court considered two approaches to determining damages for lost
profits, and arrived at the same amount under each approach. First, the trial court found that lost
profits were readily ascertainable by considering the past profits for the catering services, an
amount the court rounded down from $209,000 to $200,000, for the 12-month period ending in
March 2012. Past profits may be used to measure future profits, but all the various contingencies
by which such profits would probably be affected should be taken into account by the trier of
fact. Body Rustproofing, Inc v Mich Bell Tel Co, 149 Mich. App. 385, 391; 385 NW2d 797
(1986). The court also used a “business valuation multiplier” approach, which Dickson testified
is commonly used to value a business based on its income. Dickson testified that he applied a
conservative factor of five to the rounded 12-month income total of $200,000 to arrive at a value
of $1 million.
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Prentice does not address the reasonableness of the trial court’s methodology for
calculating damages in this appeal. To the extent that Prentice’s argument is directed at whether
there was proof of the fact of lost profits, we find no clear error in the trial court’s finding that
plaintiffs sustained such damages because it is clear from the evidence that the catering services
for Temple Israel were profitable. Contrary to what Prentice argues, the trial court did not base
the $1 million award on an assumption that Prentice had to continue working with plaintiffs.
Rather, the trial court found that Prentice’s interference with plaintiffs’ relationship with Temple
Israel, in violation of the noncompetition agreement, caused the end of that relationship. The
evidence supports the trial court’s finding.
Lastly, Prentice argues that the $1 million award should be reduced by $261,730 (5 times
$52,346) because the trial court allegedly made a duplicate award by separately awarding
damages of $52,346, which were described as “lost profits for payment for executed catering
jobs.” We find no merit to this argument because the trial testimony does not indicate that the
$52,346 amount was for lost profits in the sense used by the trial court to calculate the lost
profits of $1 million, but rather represented payments owed to plaintiffs for past catering jobs
from Temple Israel that plaintiffs never received because of Prentice’s interference. Those
damages were incurred in April when, according to Prentice’s own testimony, Temple Israel
refused to release payments to plaintiffs. While the $52,346 amount might contain some
component of profit, the trial court’s overall award of damages remains within the range of the
evidence. Considering that damages need not be determined with mathematical certainty and the
fact that the award of $1 million for lost profits was computed using only a rounded annual
amount of $200,000, Prentice has not established that the trial court clearly erred in its
determination of damages. Triple E Produce Corp, 209 Mich. App. at 177.
V. CONVERSION
Lastly, Prentice argues that there was insufficient evidence to support the trial court’s
award of treble damages for conversion under MCL 600.2919a(1). We disagree.
The decision whether to award treble damages under MCL 600.2919a(1) is discretionary
and, accordingly, is a question for the trier of fact. Aroma Wines & Equip, Inc v Columbian
Distribution Servs, Inc, 303 Mich. App. 441, 449-450; 844 NW2d 727 (2013), lv gtd 497 Mich.
864 (2014). Conversion is an intentional tort in the sense that the converter’s actions are willful.
Foremost Ins Co v Allstate Ins Co, 439 Mich. 378, 391; 486 NW2d 600 (1992). Conversion
consists of “any distinct act of domain wrongfully exerted over another’s personal property in
denial of or inconsistent with the rights therein.” Id. This definition applies to both common-
law conversion and statutory conversion under MCL 600.2919a. Aroma Wines & Equip, Inc,
303 Mich. App. at 447. Common-law conversion does not necessarily require a conversion of
property to one’s own use. Id. at 450. But a conversion of property for one’s own use is one of
the statutory requirements for treble damages in MCL 600.2919a(1). MCL 600.2919a(1)(a).
Prentice does not challenge the trial court’s finding that the various items from the
catering operations and the carpet for the Morels restaurant that the trial court found were
converted, and were subject to treble damages under MCL 600.2919a(1), had a value of
$158,015. In addition, Prentice’s mere assertion that there was insufficient evidence to establish
plaintiffs’ ownership interest in the various items is inadequate to invoke appellate review of that
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issue. Movie Mania Metro, Inc v GZ DVD’s Inc, 306 Mich. App. 594, 605-606; 857 NW2d 677
(2014); see also Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959).
We also reject Prentice’s reliance on the standards applicable to MCL 600.2919a(1)(b),
and our Supreme Court’s interpretation of the knowledge element in the former version of that
statute in Echelon Homes, LLC v Carter Lumber Co, 472 Mich. 192, 197; 694 NW2d 544 (2005),
to challenge the trial court’s determination that his wrongful control over the various items
supported an award of treble damages. Although the trial court cited MCL 600.2919a(1)(b), it
substantively relied on the language in MCL 600.2919a(1)(a) to award treble damages. The
relevant portion of MCL 600.2919a(1)(a) required plaintiffs to establish that Prentice converted
the property to his own use. The term “use” requires that a person employ the property for some
purpose. Aroma Wines & Equip, Inc, 303 Mich. App. at 447-448. Although the record indicates
that Prentice acted with the assistance of Asmar and various entities to take control of the assets,
we find no basis for disturbing the trial court’s finding that Prentice’s wrongful control over the
assets rendered him liable for statutory conversion under MCL 600.2919a(1)(a). Therefore, we
affirm the trial court’s award of treble damages.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Stephen L. Borrello
/s/ Michael F. Gadola
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