Vista Property Group LLC v. Debra Schulte ( 2020 )

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
VISTA PROPERTY GROUP, LLC, UNPUBLISHED
September 17, 2020
Plaintiff-Appellant,
v No. 347471
Kent Circuit Court
DEBRA SCHULTE, JUDY HAHN, JEREMY LC No. 16-011201-CB
KRESS, and TRISHA SCHEFFLER,
Defendants/Cross-Plaintiffs/Cross-
Defendants,
and
LARRY BARRY, WILLIAM DICKINSON,
MAXINE DUKES, ROBIN HUTTENGA, and
MARIANN ZOCK,
Defendants/Cross-Defendants,
and
NORTHWOOD HILLS CONDOMINIUM
ASSOCIATION,
Defendant/Cross-Plaintiff-Appellee,
and
JOHN DOE and JANE DOE,
Defendants,
and
CRAIG A. BLACK, LANDMARK REALTY
ADVISORS, INC., and LORI SEITLER,
Defendants-Appellees.
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Before: REDFORD, P.J., and BECKERING and M. J. KELLY, JJ.
PER CURIAM.
The present case involves a contract for property management services between plaintiff
Vista Property Group, LLC, and defendant Northwood Hills Condominium Association.
Northwood Hills board members—defendants Debra Schulte, Judy Hahn, Jeremy Kress, and
Trisha Scheffler—made the decision to contract with Vista for its property management services,
and Schulte—the board president—signed the agreement. The board also terminated the former
property management company: defendant Landmark Realty Advisors, Inc. Soon after, there was
an emergency recall of these board members and the election of new board members—defendants
Larry Barry, William Dickinson, Maxine Dukes, Robin Huttenga, and Mariann Zock. This new
board repudiated the Vista contract and retained Landmark to continue as property manager.
Relevant to the issues on appeal, Vista filed tortious interference and conspiracy claims
against Landmark, its owner Craig Black, and its employee Lori Seitler. The trial court dismissed
the claims against the Landmark defendants before trial under MCR 2.116(C)(10). Vista also
alleged breach of contract by Northwood Hills. Northwoods Hills defended against the breach-of-
contract allegations by claiming that Vista first breached the contract by failing to provide a copy
of the contract to Northwood Hills. The breach-of-contract claim proceeded to a jury trial, and the
jury returned a verdict of no cause of action, concluding that Vista first breached the agreement.
The trial court entered a judgment of no cause of action. Vista now appeals as of right.
For the reasons explained in this opinion, we affirm the grant of summary disposition to
the Landmark defendants. However, because Northwood Hills’s first-breach defense fails as a
matter of law and Northwood Hills instead anticipatorily breached the contract, we vacate the
judgment of no cause of action in favor of Northwood Hills, and we remand for entry of judgment
in Vista’s favor and a determination of Vista’s damages.1
I. BREACH OF CONTRACT
A. STANDARD OF REVIEW
Vista argues that the trial court erred by denying its motions for a directed verdict and
judgment notwithstanding the verdict (JNOV) because Northwood Hills’s first-breach defense
failed as a matter of law given that (1) nothing in the contract required Vista to provide a copy of
the agreement to anyone and (2) even assuming such an obligation, Vista fulfilled this obligation
by providing the contract to Schulte when she signed it. “We review de novo a trial court’s denial
1
In a motion to strike filed in this Court, Northwood Hills asserts that exhibit 3 to Vista’s brief on
appeal contains non-record evidence. Although we denied the motion to strike, Vista Property
Group LLC v Schulte, unpublished order of the Court of Appeals, entered August 25, 2020 (Docket
No. 347471), we have nevertheless not considered exhibit 3 as it contains non-record evidence.
See MCR 7.210(A)(1) (“Appeals to the Court of Appeals are heard on the original record.”).
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of a motion for a directed verdict or its denial of a motion for judgment notwithstanding the
verdict.” Abke v Vandenberg, 239 Mich. App. 359, 361; 608 NW2d 73 (2000). When considering
either motion, this Court views “the evidence, as well as any legitimate inferences, in the light
most favorable to the nonmoving party and decide whether a factual question exists about which
reasonable minds might have differed.” Id.
“The proper interpretation of a contract and the legal effect of a contractual clause are
questions of law that we review de novo.” Sherman-Nadiv v Farm Bureau Gen Ins Co of Mich,
282 Mich. App. 75, 78; 761 NW2d 872 (2008). “Whether a contract is ambiguous is a question of
law, while determining the meaning of ambiguous contract language becomes a question of fact.”
Bodnar v St John Providence, Inc, 327 Mich. App. 203, 220; 933 NW2d 363 (2019).
This Court’s main goal in the interpretation of contracts is to honor the intent of the
parties. The words used in the contract are the best evidence [of] the parties’ intent.
When contract language is clear, unambiguous, and has a definite meaning, courts
do not have the ability to write a different contract for the parties, or to consider
extrinsic testimony to determine the parties’ intent. [Auto-Owners Ins Co v
Campbell-Durocher Group Painting & Gen Contracting, LLC, 322 Mich. App. 218,
225; 911 NW2d 493 (2017) (quotation marks and citation omitted; alteration in
original).]
“A provision in a contract is ambiguous if it irreconcilably conflicts with another provision, or
when it is equally susceptible to more than a single meaning.” Royal Prop Group, LLC v Prime
Ins Syndicate, Inc, 267 Mich. App. 708, 715; 706 NW2d 426 (2005).
B. ANALYSIS
“A party claiming a breach of contract must establish (1) that there was a contract, (2) that
the other party breached the contract and, (3) that the party asserting breach of contract suffered
damages as a result of the breach.” Dunn v Bennett, 303 Mich. App. 767, 774; 846 NW2d 75 (2013)
(quotation marks and citation omitted). However, a contracting party “who first breaches a
contract cannot maintain an action against the other contracting party for his subsequent breach or
failure to perform.” Able Demolition v Pontiac, 275 Mich. App. 577, 585; 739 NW2d 696 (2007)
(quotation marks and citation omitted). This first-breach rule only applies if the initial breach was
“substantial.” Id. Not every “partial failure to comply” or “technical” breach justifies repudiation
or rescission of the contract. Rosenthal v Triangle Dev Co, 261 Mich. 462, 463; 246 N.W. 182
(1933).
What constitutes a substantial breach “must be given close scrutiny.” McCarty v Mercury
Metalcraft Co, 372 Mich. 567, 574; 127 NW2d 340 (1964).
Such scrutiny discloses that the application of such a rule can be found only in cases
where the breach has effected such a change in essential operative elements of the
contract that further performance by the other party is thereby rendered ineffective
or impossible, such as the causing of a complete failure of consideration or the
prevention of further performance by the other party. [Id. (citations omitted).]
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“One consideration in determining whether a breach is material is whether the nonbreaching party
obtained the benefit which he or she reasonably expected to receive.” Holtzlander v Brownell,
182 Mich. App. 716, 722; 453 NW2d 295 (1990). As more fully detailed by the Michigan Supreme
Court, relevant considerations include:
(a) The extent to which the injured party will obtain the substantial benefit
which he could have reasonably anticipated;
(b) The extent to which the injured party may be adequately compensated
in damages for lack of complete performance;
(c) The extent to which the party failing to perform has already partly
performed or made preparations for performance;
(d) The greater or less hardship on the party failing to perform in terminating
the contract;
(e) The wilful, negligent or innocent behavior of the party failing to
perform;
(f) The greater or less uncertainty that the party failing to perform will
perform the remainder of the contract. [Walker & Co v Harrison, 347 Mich. 630,
635; 81 NW2d 352 (1957) (quotation marks and citation omitted).]
Ultimately, “the injured party’s determination that there has been a material breach, justifying his
own repudiation, is fraught with peril, for should such determination, as viewed by a later court in
the calm of its contemplation, be unwarranted, the repudiator himself will have been guilty of
material breach and himself have become the aggressor, not an innocent victim.” Id.
In this case, Northwood Hills asserted that Vista substantially breached the contract by
failing to provide a second copy of the contract to the association. On appeal, Northwood Hills
continues to assert that Vista substantially breached the agreement by breaching implied covenants
of good faith and fair dealing. Northwood Hills accuses Vista of sowing “seeds of doubt, mistrust,
and betrayal” and failing to foster a “trusted partnership.” However, the trial court rejected this
good faith and fair dealing argument, declining to instruct the jury on such a theory and to a certain
extent preventing Vista from offering evidence relating to the issues of good faith and fair dealing.
In addition, Northwood Hills’s nebulous arguments relating to good faith and fair dealing also lack
merit on appeal. Michigan does not recognize the implied covenants of good faith and fair dealing
as independent contractual duties that would support a claim that Vista breached the contract. See
Gorman v American Honda Motor Co, Inc, 302 Mich. App. 113, 133-135; 839 NW2d 223 (2013);
Fodale v Waste Mgt of Mich, Inc, 271 Mich. App. 11, 35; 718 NW2d 827 (2006); Belle Isle Grill
Corp v Detroit, 256 Mich. App. 463, 476; 666 NW2d 271 (2003); Barber v SMH (US), Inc, 202
Mich. App. 366, 372; 509 NW2d 791 (1993). There is no merit to Northwoods Hills’s claim that it
could repudiate the contract because it deemed Vista untrustworthy or uncooperative.
Instead, the germane questions are whether Vista breached an actual provision in the
contract and whether such a breach can be considered substantial. Undisputedly, the contract
contains no provision expressly requiring Vista to provide a copy of the contract to anyone. In
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nevertheless submitting the first-breach issue to the jury, the trial court concluded that the contract
terms were ambiguous and could reasonably be read to impose a duty to provide a copy of the
contract.
Under the contract, the agreement for Vista’s management services had a term of
January 1, 2017 to December 31, 2019. In other words, Vista did not become the manager of the
property until January 1, 2017. Under § 24 of the agreement, during the transition period—i.e.,
the period between when Landmark received notice of its termination and the start date of the Vista
contract—Vista agreed to provide “oversight services.” The contract described Vista’s obligations
during the transition period as follows:
a) In the case the current management does not provide adequate
representation but still remains in their position, the new Manager will help the
Association take on any of the roles described in this contract to effectively
continue the operations of the Association at no additional cost to the Association.
b) If the current management forfeits their rights to manage the property for
the remaining period of the contract, then the new Manager will take immediate
responsibility, and fulfil the terms and conditions described above. At this time
then the start date will be effective immediately, including all compensation. To
clarify, at no time will the Association be paying for two management services.
c) The new Manager will also, alongside of the Association, properly notify
the current management concerning the Association[’s] decision to change
management services. The new Manager will work on obtaining all documentation,
files, and any other items to ensure that the transition between management
complies will go as flawless as possible.
These provisions are not ambiguous. See Royal Prop Group, LLC, 267 Mich. App. at 715.
There is nothing in the language used that can be read as requiring Vista to provide a copy of the
contract to anyone. Section 24(c), for example, requires Vista to work on obtaining documents
for a flawless transition, not to provide documents to anyone. Section 24(b) only applies if
Landmark forfeited its rights to act as manager, which it did not. And § 24(a) only applies if
Landmark “does not provide adequate representation.” Northwood Hills never contended or
presented evidence to establish that Landmark’s representation during the transition period was
inadequate so as to trigger § 24(a). Moreover, Northwood Hills’s renewal of Landmark’s contract
shows that it felt Landmark’s representation was adequate.
In sum, the contract language provides that during the transition period, Vista had very
limited obligations under the contract, and nothing in its duties during the transition period required
Vista to provide the contract to anyone. In arguing to the contrary, Northwood Hills essentially
maintains that it was “reasonable” to expect Vista to provide a copy of the contract during this
time. However, whether reasonable or not, Northwood Hills cannot unilaterally add to Vista’s
contractual duties during the transitional period because Vista’s duties during this time were
defined by the contract. See Wilkie v Auto-Owners Ins Co, 469 Mich. 41, 63; 664 NW2d 776
(2003) (“[T]he expectation that a contract will be enforceable other than according to its terms
surely may not be said to be reasonable.”) (quotation marks and citation omitted). Absent a duty
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in the contract requiring Vista to provide a copy of the agreement during the transition period,
Vista could not have substantially breached the agreement by failing to do so. Northwood Hills’s
first-breach defense fails as a matter of law.
Rather than considering Vista’s obligations during the transitional period, the trial court
looked to Vista’s management duties under § 2. However, when the contract is considered as a
whole—that is, when § 2, § 12, and § 24 are read in harmony—it is clear that the obligations under
§ 2 did not apply (1) unless Landmark forfeited its rights or provided inadequate representation
during the transition period or (2) until Vista became the manager in January 2017. See Hastings
Mut Ins Co v Safety King, Inc, 286 Mich. App. 287, 297; 778 NW2d 275 (2009) (recognizing that
contract terms are not ambiguous when they admit of but one interpretation when the terms are
considered in context according to their ordinary meaning). Consequently, even if § 2 is
considered ambiguous, or broad enough to include an obligation to provide a copy of the contract,
the obligations under § 2 were not in effect during the transition period. Instead, the undisputed
facts demonstrate that Northwood Hills anticipatorily breached the agreement by renewing
Landmark’s contract and repudiating Vista’s contract on December 4, 2016, before the time for
Vista’s performance under § 2 had arisen. See Stoddard v Manufacturers Nat’l Bank of Grand
Rapids, 234 Mich. App. 140, 163; 593 NW2d 630 (1999) (“Under the doctrine of repudiation or
anticipatory breach, if, before the time of performance, a party to a contract unequivocally declares
the intent not to perform, the innocent party has the option to either sue immediately for the breach
of contract or wait until the time of performance.”). Given the unambiguous terms of the contract,
there was no question of fact for the jury because Vista could not have first breached the contract
by failing to provide the agreement when Vista had no contractual obligation to do so during the
transitional period. Absent such a duty, the trial court erred by submitting the first-breach issue to
the jury and by denying Vista’s motions for a directed verdict and JNOV.
Additionally, Northwood Hills’s first-breach argument fails as a matter of law because,
even assuming Vista had an obligation to provide the contract to Northwood Hills, the undisputed
facts demonstrate that Vista did in fact provide the contract to Northwood Hills. That is, Schulte
undisputedly received a copy of the agreement from Vista when she signed it in October 2016.
She admitted this fact at the annual meeting in November 2016, and she admitted this fact at trial.
At the time she signed the contract and received a copy of it, Schulte was the president of the
Northwood Hills Condominium Association. Ignoring the legal realities of the corporate form,
Northwood Hills nevertheless maintains that, in providing the contract to Schulte, Vista somehow
failed to provide the agreement to Northwood Hills. However, Northwood Hills Association is
organized as a nonprofit corporation under the Nonprofit Corporation Act, MCL 450.2101 et seq.
A corporation can only act through its employees and, consequently, the acts of its
employees, within the scope of their employment, constitute the acts of the
corporation. Likewise, knowledge acquired by employees within the scope of their
employment is imputed to the corporation. In consequence, a corporation cannot
plead innocence by asserting that the information obtained by several employees
was not acquired by any one individual employee who then would have
comprehended its full import. Rather, the corporation is considered to have
acquired the collective knowledge of its employees and is held responsible for their
failure to act accordingly. [Upjohn Co v New Hampshire Ins Co, 438 Mich. 197,
213-214; 476 NW2d 392 (1991) (quotation marks and citation omitted).]
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Like employees, knowledge held by the board of directors may be imputed to the corporation. 18B
Am Jur 2d Corporations § 1417. And “[e]ven where there are changes in a corporation’s
personnel, i.e., a new president is appointed, a corporation, once charged with knowledge of a
particular transaction or event, continues to be affected by such knowledge.” Gordon Sel-Way,
Inc v Spence Bros, Inc, 177 Mich. App. 116, 125; 440 NW2d 907 (1989), aff’d in part, rev’d in part
on other grounds 438 Mich. 488 (1991). See also 19 CJS, Corporations, § 715 (“Once an agent’s
knowledge is imputed to a corporation, the imputed knowledge is not affected by changes in the
corporation’s personnel.”). Further, a contract entered into by the corporation is a contract of the
legal entity, not any individual member. 1 Fletcher Cyclopedia, Corporations § 29. “A corporation
is a legal person and is bound by its contracts regardless of internal disagreements or, for that
matter, internal agreements.” OD Silverstein, MD, PC v Servs, Inc, 165 Mich. App. 355, 359; 418
NW2d 461 (1987).
In this case, Schulte, acting as the board president, entered into a binding contract with
Vista on behalf of Northwood Hills. She received the contract when she signed it. Schulte’s act
of receiving the agreement constitutes the act of Northwood Hills. See Upjohn Co, 438 Mich. at
213-214. And Schulte’s knowledge of the contract and its terms is imputed to Northwood Hills,
regardless of the fact that she no longer serves as president of the association. See Gordon Sel-
Way, Inc, 177 Mich. App. at 125. Accordingly, as a matter of law, Northwood Hills received the
contract and is imputed to have knowledge of the contract and its terms, and for these reasons,
Northwood Hills cannot now claim that Vista breached a duty by failing to provide a copy of the
agreement to Northwood Hills.2
In sum, because Northwood Hills’s first-breach argument lacks merit as a matter of law,
the trial court erred by denying Vista’s motion for a directed verdict and its motion for JNOV.
Absent this first-breach defense, we remand the case for entry of judgment in favor of Vista
because there is no dispute that there was a binding agreement that was breached by Northwood
Hills.3 On remand, because the amount of damages under the contract is disputed, the issue of
Vista’s damages should be submitted to a trier of fact notwithstanding the fact that Northwood
Hills’s liability is clear. See Bias v Ausbury, 369 Mich. 378, 383; 120 NW2d 233 (1963).
II. TORTIOUS INTERFERENCE AND CONSPIRACY
A. STANDARD OF REVIEW
2
We note that subsequent internal strife—and the ouster of the old board—does not change these
facts or justify Northwood Hills’s repudiation of its contract with Vista. See Redinger v Standard
Oil Co, 6 Mich. App. 74, 80; 148 NW2d 225 (1967) (noting that “this case would never have arisen
were it not for a difference that developed subsequently in the corporate hierarchy of authority,”
but recognizing that “corporations are legal persons, and, as individuals in the eyes of the law, they
are bound by their contracts in spite of internal disagreements affecting policy.”).
3
Given our resolution, we need not consider Vista’s argument that the trial court erred by
instructing the jury on first breach and denying Vista’s request for an instruction on anticipatory
breach.
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Vista argues that the trial court also erred by granting summary disposition to Landmark,
Seitler, and Black (the Landmark defendants) under MCR 2.116(C)(10) on Vista’s claims for
tortious interference with a contract and civil conspiracy. We review de novo a trial court’s
decision to grant summary disposition. Hanlin v Saugatuck Twp, 299 Mich. App. 233, 239; 829
NW2d 335 (2013).
Summary disposition is proper under MCR 2.116(C)(10) if there is no
genuine issue as to any material fact, and the moving party is entitled to
judgment . . . as a matter of law. A motion under MCR 2.116(C)(10) tests the
factual support of a complaint. A court must consider the pleadings, affidavits,
depositions, admissions, and other documentary evidence in the light most
favorable to the nonmoving party. A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an
issue upon which reasonable minds might differ. [Id. (citations and quotation
marks omitted).]
“The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual
disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary
disposition under MCR 2.116(C)(10).” Pioneer State Mut Ins Co v Dells, 301 Mich. App. 368, 377;
836 NW2d 257 (2013).
B. ANALYSIS
“The elements of tortious interference with a contract are (1) the existence of a contract,
(2) a breach of the contract,[4] and (3) an unjustified instigation of the breach by the defendant.”
Health Call of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich. App. 83, 89-90; 706
NW2d 843 (2005). Further, to maintain an action for tortious interference, the plaintiff must
establish that the defendant was a “third party” to the contract. Reed v Mich Metro Girl Scout
Council, 201 Mich. App. 10, 13; 506 NW2d 231 (1993). Corporate agents may be liable for tortious
interference with the corporation’s contracts only when “they acted solely for their own benefit
with no benefit to the corporation.” Id.
“By definition, tortious interference with a contract is an intentional tort.” Knight
Enterprises v RPF Oil Co, 299 Mich. App. 275, 280; 829 NW2d 345 (2013). “One who alleges
tortious interference with a contractual . . . relationship 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 . . . of another.” Derderian v Genesys Health Care Sys, 263 Mich
App 364, 382; 689 NW2d 145 (2004). “A wrongful act per se is an act that is inherently wrongful
4
On appeal, the Landmark defendants assert that Vista’s arguments related to tortious interference
and conspiracy are moot because the jury determined that Northwood Hills did not breach the
contract. However, as discussed, the trial court erred by denying Vista’s motions for a directed
verdict and JNOV because Northwood Hills’s first-breach argument fails as a matter of law, and
absent this first-breach defense, Vista is entitled to judgment on its breach-of-contract claim. It
follows, relative to the Landmark defendants’ mootness argument, that the jury’s verdict does not
preclude a finding that Northwood Hills breached the agreement.
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or an act that can never be justified under any circumstances. If the defendant’s conduct was not
wrongful per se, the plaintiff must demonstrate specific, affirmative acts that corroborate the
unlawful purpose of the interference.” Knight Enterprises, 299 Mich. App. at 280 (quotation marks
and citation omitted).
Primarily at issue in this case is the third element of tortious interference—whether the
Landmark defendants engaged in an “unjustified instigation” of the breach of contract. This
element requires a showing of causation; that is, there must be “purposeful causation whether by
inducement or otherwise.” 1 Restatement Torts, § 766, comment d. See also Health Call of
Detroit, 268 Mich. App. at 101 (considering whether conduct was a “but for” cause of breach).
The essential thing is the purpose to cause the result. If the actor does not
have this purpose, his conduct does not subject him to liability under this rule even
if it has the unintended effect of deterring the third person from dealing with the
other. It is not necessary, however, that the purpose to cause the breach of contract
or failure to deal be the actor’s sole or paramount purpose. It is sufficient that he
designs this result whether because he desires it as an end in itself or because he
regards it as a necessary, even if regrettable, means to some other end. [Knight
Enterprises, 299 Mich. App. at 281 (quotation marks and citation omitted).]
In this case, the trial court did not err by granting summary disposition to the Landmark
defendants because there was no evidence that Seitler, Black, or Landmark induced or otherwise
instigated Northwood Hills’s breach of contract. There is evidence that Seitler and Black provided
assistance with the recall efforts, such as making or allowing Dukes to make copies, providing
Dukes with names of potential new board members, confirming names of co-owners, asking
residents to collect signatures, and providing Dukes with the name of the lawyer who drafted the
recall petition. Such conduct does not, however, appear to be the type of wrongful or unjustified
conduct that would support a tortious interference claim. See Derderian, 263 Mich. App. at 382.
Moreover, there is no evidence that this conduct by Seitler and Black caused the breach of
Vista’s contract. There is no evidence that Seitler and Black initiated the recall, that the recall was
initiated to cause a breach of Vista’s contract, or that, ultimately, Seitler and Black had any role or
influence whatsoever in the new board’s decision to terminate Vista. Rather, all the evidence
indicates that Dukes initiated the recall petition, that Dukes sought out Black and Seitler’s
assistance in the recall effort, that the recall was motivated by the co-owners’ dissatisfaction with
the “secretive” decision-making by the old board rather than any concerns about Vista, and that,
once in power, the new board made the independent decision—without any inducement or other
influence from Landmark—to terminate Vista because they did not receive a copy of the Vista
contract. Landmark certainly benefited from the new board’s anticipatory repudiation of Vista’s
contract, but this fact alone does not establish that the Landmark defendants engaged in an
unjustified instigation that caused the breach of contract. See McAlpine v AAMCO Automatic
Transmissions, Inc, 461 F Supp 1232, 1269 (ED Mich, 1978) (“It is not enough that they merely
have reaped the advantages of the broken contract after the contracting party has withdrawn from
it of his own motion.”).
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Aside from assistance provided by Seitler and Black in connection with the recall, Vista
notes the deposition testimony of its owner, Russell Richter, to the effect that he overheard Seitler
say something at the annual meeting about Vista raising fees and getting rid of the on-site manager.
One of the co-owners at Northwood Hills—Elaine Racy—also testified at her deposition that
Seitler told her that Vista had been hired because the owners were Schulte’s friends. However,
even if Seitler made these statements, there is no evidence that these statements caused Northwood
Hills to breach the Vista contract. Again, all evidence about the reasons for the breach indicated
that the new board decided to repudiate the Vista contract because they did not receive a copy of
the agreement. Thus, even viewed in a light most favorable to Vista, the evidence fails to show a
material question of fact regarding causation.
Vista contends that Dukes—and other members of the new board as well as the Landmark
defendants—may not be credible witnesses with regard to the events surrounding the recall and
the reasons for termination of the Vista contract. However, when responding to a motion for
summary disposition, Vista cannot rely on mere allegations and denials but must set forth specific
facts showing that a genuine issue of material fact exists. See Quinto v Cross & Peters Co, 451
Mich. 358, 362-363; 547 NW2d 314 (1996). Vista denies the stated reasons for the recall and
termination of Vista’s contract, but has offered no contradictory evidence—nor can reasonable
inferences be drawn from the evidence—to support Vista’s theory that the Landmark defendants
unjustifiably instigated the breach of Vista’s contract. And, although a cause of action may be
established with circumstantial evidence, Vista’s speculation and conjecture about the true reasons
for the recall is insufficient to survive a motion for summary disposition. See Karbel v Comerica
Bank, 247 Mich. App. 90, 97; 635 NW2d 69 (2001). The trial court did not err by granting summary
disposition to the Landmark defendants on Vista’s tortious interference claim under MCR
2.116(C)(10).
Aside from its tortious interference claim, Vista also alleged (1) conspiracy to commit
tortious interference and (2) conspiracy to breach a contract. Given that Vista’s tortious
interference claim lacks merit, it follows that Vista’s claim for conspiracy to commit tortious
interference fails. “[A] claim for civil conspiracy may not exist in the air; rather, it is necessary to
prove a separate, actionable tort.” Advocacy Org for Patients & Providers v Auto Club Ins Ass’n,
257 Mich. App. 365, 384; 670 NW2d 569 (2003) (quotation marks and citation omitted), aff’d 472
Mich. 91 (2005). Therefore, because the trial court properly granted summary disposition on the
tortious interference with a contract claim, summary disposition was also properly granted to the
Landmark defendants on the related civil conspiracy claim. See id. at 384-385.
We affirm the grant of summary disposition to the Landmark defendants. However, we
vacate the judgment of no cause of action on Vista’s breach-of-contract claim against Northwood
Hills, and we remand for entry of judgment in favor of Vista as well as a determination of Vista’s
damages. We do not retain jurisdiction. No taxable costs are awarded. MCR 7.219(A).
/s/ James Robert Redford
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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