The opinion
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
THE BEST TEAM EVER, INC., UNPUBLISHED
September 30, 2025
Plaintiff-Appellant, 11:51 AM
v No. 368946
Oakland Circuit Court
CONLAN ABU, RYAN MOORE, and JAMES LC No. 2023-198922-CB
TERRENCE MOORE II,
Defendants-Appellees.
CONLAN ABU, RYAN MOORE, and JAMES
TERRENCE MOORE II,
Plaintiffs/Counterdefendants-
Appellees/Cross-Appellants,
v No. 370769
Oakland Circuit Court
STANLEY B. DICKSON, JR., THE EPICUREAN LC No. 2019-175483-CB
GROUP, EPIC CATERING & EVENTS, INC.,
TROWBRIDGE CATERING, INC., MILK &
HONEY DETROIT, INC., NO. VI CHOPHOUSE
DETROIT, INC., TROWBRIDGE CHOPHOUSE,
INC., NOMAD GRILL, INC., TROWBRIDGE
NOMAD, INC., NORTHERN LAKES SEAFOOD
RESTAURANT, INC., TROWBRIDGE
NORTHERN, INC., PLAZA DELI SOUTHFIELD,
INC., TROWBRIDGE DELIS SOUTHFIELD,
SOUL CAFÉ, LLC, TROWBRIDGE SOUL, and
THE BEST TEAM EVER, INC.,
Defendants/Counterplaintiffs-
Appellants/Cross-Appellees,
and
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MILLERS BIG RED ORCHARD, LLC, BROB,
LLC, BROF, LLC, and BROL, LLC,
Counterdefendants.
Before: LETICA, P.J., and RICK and BAZZI, JJ.
PER CURIAM.
These consolidated appeals1 arise from the sale of several restaurants and catering
businesses, the contractual obligations and assignments, and the promissory note. In Docket
No. 370769, defendants/counterplaintiffs,2 (collectively, “sellers”), appeal as of right the final
judgment entered after a jury verdict in favor of plaintiffs/counterdefendants,3 (collectively,
“purchasers”). Purchasers also cross-appeal as of right the final judgment. Sellers’ issues on
appeal contest the trial court’s rulings in posttrial orders, and purchasers’ cross-appeal relate to
pretrial orders, in the first case between these parties, Lower Court No. 2019-175483-CB (“the
2019 case”).
In Docket No. 368946, plaintiff, The Best Team Ever, Inc. (“Best Team”), appeals as of
right the trial court order granting defendants, Conlan Abu, Moore, and James (also “purchasers”),
summary disposition. In this appeal, Best Team claims a subsequent breach of the same
promissory note in the case filed in 2023, Lower Court No. 2023-198922-CB (“the 2023 case”).
In each appeal, we affirm.
I. FACTUAL BACKGROUND
These cases arise from the sale of a restaurant group from sellers to purchasers under an
asset purchase agreement (APA), executed January 1, 2019. Conlan Abu is a corporation, owned
by Moore and his wife. James is Moore’s father. Dickson is the owner or member of the business
1
The Best Team Ever, Inc v Conlan Abu, unpublished order of the Court of Appeals, entered
September 26, 2024 (Docket Nos. 368946 and 370769).
2
The defendants/counterplaintiffs are Stanley B. Dickson, Jr., The Epicurean Group, Epic Catering
& Events, Inc., Trowbridge Catering, Inc., Milk & Honey Detroit, Inc., No. VI Chophouse Detroit,
Inc., Trowbridge Chophouse, Inc., Nomad Grill, Inc., Trowbridge Nomad, Inc., Northern Lakes
Seafood Restaurant, Inc., Trowbridge Northern, Inc., Plaza Deli Southfield, Inc., Trowbridge Delis
Southfield, Soul Café, LLC, Trowbridge Soul, and the Best Team Ever, Inc. (“Best Team”) and
will be collectively addressed as “sellers.”
3
The plaintiffs/counterdefendants are Conlan Abu, a corporate entity, Ryan Moore (Moore), and
James Terrence Moore II (James) and will be collectively addressed as “purchasers.”
Counterdefendants, Millers Big Red Orchard, LLC; BROB, LLC; BROF, LLC; and BROL, LLC
are not direct participants in either appeal.
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entities that make up the restaurant group, The Epicurean Group. Dickson is the sole shareholder
of Best Team, an employee leasing company that provides employees to the restaurants and
catering businesses.
In 2017, while living in California, Moore was approached about purchasing Millers Big
Red Orchard, a farm and apple orchard in Michigan. Moore put together a business plan to acquire
a restaurant group, use the farm to make a farm-to-table operation, and produce hard cider. Moore
was introduced to Dickson and his son, Will Dickson (Will), in February 2018, and started
negotiating. Dickson did not own the brick-and-mortar locations of each restaurant or catering
company in the group; rather, he owned the management agreements between the restaurants and
the facilities where they were located. Moore wanted to purchase this infrastructure, so he moved
to Michigan in 2018, to pursue the opportunity.
Moore was aware that each management contract had an assignment clause requiring that
the facility owner give consent for the contract to be transferred by the manager, i.e., the restaurant
group, to a third party. But Moore did not see copies of the management contracts until
December 27 or 28, 2018. Moore was assured that Dickson would obtain the consents because he
was on good terms with all of the owners. Dickson countered that Moore did not want the consents
because Moore wanted to negotiate better terms. On December 31, 2018, Dickson e-mailed Moore
indicating that the consents to the assignments would be obtained after the closing. The parties
agreed to a $1 million purchase price, and closed on the APA on January 1, 2019. Relevant
provisions of the APA provided as follows:
1. Agreement to Purchase and Sell.
1.1 Assets Purchased and Sold. At the Closing (as defined in this Agreement),
subject to the performance of the duties set forth below, Purchaser shall buy, and
Seller shall sell, assign, convey, transfer, set over, and deliver (by appropriate
instrument of transfer) to Purchaser all of the assets, rights, and interests of every
conceivable kind or character whatsoever, whether tangible or intangible, that on
the Closing Date (as defined in this Agreement) are owned by Seller or in which
Seller has an interest of any kind in relation to the Business. These include, without
limitation, the following, (excluding, however, those assets specifically identified
in this Agreement as the “Excluded Assets”) (collectively, the “Purchased Assets”):
* * *
F. Contracts. All contracts and service agreements (“Contracts”) shall be
delivered and assigned by Seller to Purchaser at the Closing.
* * *
7. Representations, Covenants, and Warranties of Seller.
Seller and Owner (as evidenced by the signature of Owner) to the best of their
knowledge and with due inquiry, represent, covenant, and warrant the following to
be true, which representations, covenants, and warranties shall survive the Closing:
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* * *
7.7 Status of Contracts. Seller has, to the best of Seller’s knowledge, complied
with all of the provisions of contracts described in this Agreement and of all other
contracts and commitments to which Seller is a party.
Section 13 of the APA included an indemnity clause, and provided that each party would “defend,
indemnify, and hold harmless” the other party in the event of a breach of any warranty in the APA,
or for the failure to perform in full any covenant or condition under the APA. Moore signed the
APA on behalf of Conlan Abu, and Dickson signed it in his capacity as owner or member of each
individual entity.
On the day of closing, Moore wired a $550,000 down payment to Dickson, and a
promissory note was executed for the remaining $450,000. The promissory note was amended
shortly after closing to $750,000, after an inventory was taken of the food, wine, and alcohol at
the restaurants. The promissory note incorporated by reference a security agreement also dated
January 1, 2019, in which Conlan Abu, the purchased entities, and the orchard entities, granted
Best Team a security interest in substantially all of the assets sold under the APA. This note
required monthly payments of $9,911 with 10% interest to the note holder, Best Team.
Shortly after closing, Dickson asked Moore for additional funds to cover the payroll of the
restaurant and catering company employees from mid-December 2018, through the new year, and
Dickson would reimburse Moore. Moore agreed and paid the employees through Conlan Abu.
Moore testified that the amount was $180,000, but at trial, this amount was limited to $86,500,
based on purchasers’ pleadings.
Moore ran the businesses from January 2019 to July 2019. He testified that he personally
contributed approximately $400,000 for payroll, sales tax, and inventory. He tried to sell his
interests or obtain financing or other investors for the restaurant group, but was unsuccessful.
Moore testified that he never received the consents to assignment of the management contracts
and started having issues with the owners. He approached Dickson and Will in June 2019, to
obtain the consents, but Dickson and Will denied this.4 Thus, on July 15, 2019, Moore sent
Dickson a demand letter, informing sellers that they failed to deliver the consents and assignments
as required under the APA, and demanding that sellers fulfill this obligation within five days. In
response, Dickson provided two consents to assignments, although one had terms contrary to the
APA. Dickson did not provide the remaining consents. On July 18, 2019, purchasers sent sellers
another letter indicating they were tendering back the assets. On July 20, 2019, Moore e-mailed
all the restaurant and catering company employees, informing them that they were terminated.
4
In June 2019, Conlan Abu also purchased Big Red Orchard, and created entities BROB, BROF,
and BROL, as part of the expansion plan.
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II. PROCEDURAL HISTORY
A. THE 2019 CASE
Purchasers filed suit against sellers, alleging breach of the APA, entitlement to rescission,
and fraud, misrepresentation, and negligent misrepresentation against Dickson. Sellers
counterclaimed, alleging breach of the promissory note and security agreement on behalf of Best
Team, conversion, tortious interference, breach of the APA, and fraudulent inducement. When
sellers moved for a more definite statement of purchasers’ claims against Dickson individually,
the court limited purchasers’ fraud and misrepresentation claims to Dickson’s December 31, 2018
e-mail indicating he would obtain the consents to assignment postclosing. Purchasers then filed a
first amended complaint to expand these allegations against Dickson, and alleged the same counts
of breach of the APA and rescission against sellers, and fraudulent misrepresentation, estoppel,
negligent misrepresentation, and unjust enrichment against Dickson individually. Sellers also filed
a first amended counterclaim, raising the same claims as their original complaint.
Both parties moved for summary disposition. The court denied purchasers summary
disposition of their breach-of-contract claim based on § 1.1, and granted sellers summary
disposition for all of the contracts except one. The court found that questions of fact existed
whether § 7.7 of the APA was breached by sellers, denied purchasers summary disposition in that
regard, and declined to address purchasers’ estoppel argument.
The court granted Dickson summary disposition of purchasers’ breach-of-contract claim
against him personally because he did not sign the APA in his individual capacity. The court
granted Dickson summary disposition of purchasers’ fraud and misrepresentation claims because
they were barred by the merger clause of the APA, but denied sellers summary disposition of
purchasers’ unjust-enrichment claim. Both parties moved for reconsideration of the trial court’s
order, which the court denied.5
The trial court then entered an opinion and order granting in part and denying in part
purchasers’ motion for partial summary disposition on sellers’ counterclaims for conversion,
fraudulent inducement, and tortious interference. The court determined that questions of fact
existed regarding sellers’ conversion claim related to wine inventory at the restaurants, and sellers’
fraudulent-inducement claim related to entering the APA based on Moore’s business plan.
However, the court granted purchasers’ summary disposition of sellers’ tortious-interference claim
related to real estate leases between the restaurants and their landlords. To the extent they did not
prevail, purchasers moved for reconsideration of this order, but it was denied.
Purchasers then moved to file a second amended complaint, seeking, in part, to “expand
the scope” of their unjust-enrichment claim against Dickson individually regarding the advanced
payroll. Purchasers argued that the court had ruled Dickson was not a party to the APA, that
written agreement did not preclude their unjust-enrichment claim, and the court could pierce the
5
Purchasers applied for delayed leave to appeal the trial court’s summary-disposition order, which
this Court denied. Conlan Abu v Dickson, unpublished order of the Court of Appeals, entered
March 2, 2022 (Docket No. 360313).
-5-
corporate veil to find Dickson liable. The court denied purchasers’ motion, and denied purchasers’
motion for reconsideration of its decision. After the case was reassigned to another circuit court
judge in April 2022, purchasers sought to revisit certain rulings. The successor judge denied
purchasers’ motion as procedurally improper.
The 2019 case proceeded to a nine-day jury trial on the remaining issues: (1) purchasers’
breach-of-contract claim under § 7 of the APA, (2) purchasers’ unjust-enrichment claim against
Dickson individually, and sellers’ counterclaims for (3) breach of the APA, (4) breach of the
promissory note, (5) breach of the security agreement, (6) conversion of the wine inventory, and
(7) fraud. The court advised the jury that the management agreements were assigned as a matter
of law at closing under the APA, so breach of § 1.1 was not at issue. The jury found that purchasers
proved liability of sellers for breach of the APA and unjust enrichment, and awarded purchasers
$1,100,600 in damages. The jury found that sellers did not prove liability on their counterclaims
for breach of the APA, breach of the promissory note, breach of the security agreement,
conversion, or fraud, and awarded no damages.
Posttrial, sellers moved for judgment notwithstanding the verdict, and separately, in the
alternative, for a new trial or remittitur. Sellers argued that they were entitled to judgment of
purchasers’ breach-of-contract claim under § 7.7 of the APA because purchasers waived this claim
by proceeding to closing knowing the consents to assignments had not been obtained, and because
purchasers failed to prove that breach of § 7.7 caused any damages. Sellers also argued that
Dickson was entitled to judgment notwithstanding the verdict of purchasers’ unjust-enrichment
claim because the subject matter of the claim was covered by the APA, and the claimed damages
lacked evidentiary support. Sellers argued they were entitled to a new trial based on an alleged
instructional error regarding waiver, arguing that the instruction improperly provided that waiver
requires additional consideration. Sellers argued the damages award was excessive because
purchasers ultimately received $5 million in COVID-relief funds, and that purchasers’ damages
should be remitted to $0.
The court denied judgment notwithstanding the verdict, concluding that
(1) [purchasers] did not waive the breach of Section 7.7 of the APA, (2) there was
no evidence of waiver, (3) the APA preserved the claims for breach of warranty
and indemnity, and (4) the evidence showed [sellers’] post-closing obligation to
deliver consents for the assignments in accordance with Section 7.7 of the APA.
Furthermore, this Court did not err by using the standard jury instruction [M Civ
JI] 142.41 on waiver.
The court also concluded that purchasers proved they suffered damages as a result of the breach,
and that a reasonable jury could find that Dickson was unjustly enriched. The court denied sellers’
motion for a new trial, again finding no merit to sellers’ arguments regarding waiver or
instructional error, and further concluding that the damage award was supported by the evidence.
A final judgment in purchasers’ favor was entered, and sellers now appeal the trial court’s posttrial
rulings, and purchasers cross-appeal its pretrial rulings, in the 2019 case.
-6-
B. THE 2023 CASE
While the 2019 case was still pending but after the completed jury trial, Best Team filed
the 2023 case. On February 21, 2023, Best Team filed a complaint against purchasers alleging
that they breached the promissory note by failing to make the monthly payment in December 2022.
Purchasers had advised they would not be making additional payments because this issue was
litigated in the 2019 case. Best Team claimed this constituted a new breach because purchasers’
default occurred after the trial concluded.
Purchasers responded to the complaint by moving for summary disposition under
MCR 2.116(C)(6) (another action initiated between the same parties involving the same claim)
and (C)(7) (claim barred by res judicata). Purchasers argued the case should be dismissed because
this issue was already litigated in the 2019 case between the same parties. Purchasers also relied
on the jury conclusion that, because sellers breached the APA, no further amounts were owed
under the APA or the note, and the resolution of this claim would require examination of the same
operative facts. Purchasers further asserted that, once final judgment was entered in the 2019 case,
Best Team’s claim would be barred by res judicata.
In contrast, Best Team alleged the 2023 case was not based on the same operative facts as
the 2019 case and payment default of the promissory note was not litigated in the 2019 case, but
occurred after trial concluded. Best Team also asserted the court rejected the argument that if the
jury found sellers committed the first material breach then purchasers were excused from future
obligations on the note. The promissory note was a separate agreement from the APA.
The trial court granted summary disposition to purchasers under MCR 2.116(C)(6) because
the 2019 case was pending at that time and concerned the same parties and substantially the same
claims. The court concluded that the 2023 case did not arise out of different operative facts than
the 2019 case and that the promissory note incorporated by reference the APA. Because sellers’
rights were extinguished under the APA by committing the first material breach, Best Team had
no right to payment under the note. The court denied purchasers summary disposition under
MCR 2.116(C)(7) because the final judgment referenced above had not yet been entered in the
2019 case, so res judicata did not apply. Best Team moved for reconsideration, which the trial
court denied. Best Team now appeals.
III. DOCKET NO. 370769
A. DIRECT APPEAL
Sellers’ first two arguments on direct appeal arise from the trial court’s posttrial rulings on
their motion for judgment notwithstanding the verdict under MCR 2.610. A trial court’s decision
on a motion for judgment notwithstanding the verdict is reviewed de novo. Hecht v Nat’l Heritage
Academies, Inc, 499 Mich 586, 604; 886 NW2d 135 (2016). “The appellate court is to review the
evidence and all legitimate inferences in the light most favorable to the nonmoving party. Only if
the evidence so viewed fails to establish a claim as a matter of law, should the motion be granted.”
Id. (quotation marks and citation omitted). Judgment notwithstanding the verdict is “improper
where reasonable minds could differ on issues of fact.” Clemens v Lesnek, 200 Mich App 456,
461; 505 NW2d 283 (1993) (quotation marks and citation omitted).
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This Court reviews de novo claims of instructional error. Lewis v LeGrow, 258 Mich App
175, 211; 670 NW2d 675 (2003). For preserved claims of instructional error, reversal is only
warranted when the failure to do so would be inconsistent with substantial justice. Komendat v
Gifford, 334 Mich App 138, 149 n 2; 964 NW2d 75 (2020). MCR 2.512(D)(2) provides that the
trial court must give a jury instruction if a party requests it, and it is applicable to the case. This
Court reviews the trial court’s determination whether a standard jury instruction is applicable for
an abuse of discretion. Lewis, 258 Mich App at 211. “An abuse of discretion occurs when a trial
court’s decision is not within the range of reasonable and principled outcomes.” Law Offices of
Jeffrey Sherbow, PC v Fieger & Fieger, PC, 347 Mich App 533, 557; 15 NW3d 357 (2023)
(quotation marks and citation omitted).
1. BREACH OF CONTRACT
Sellers contend that the trial court erred by denying their request for judgment
notwithstanding the verdict, claiming that purchasers’ breach-of-contract claim was waived and
there was insufficient evidence that purchasers suffered damages. We disagree.
a. WAIVER
Specifically, sellers argue that purchasers waived their claim for breach of contract because
(1) Moore proceeded to closing knowing the consents to assignments were not obtained, (2) the
APA provision that its representations “survive the closing” did not revive any waived claims, and
(3) despite the court’s jury instruction to the contrary, purchasers’ waiver did not require separate
consideration.
A waiver is the intentional relinquishment or abandonment of a known right. Patel v Patel,
324 Mich App 631, 634; 922 NW2d 647 (2018). “Waiver is a mixed question of law and fact.
The definition of a waiver is a question of law, but whether the facts of a particular case constitute
a waiver is a question of fact.” Id. (quotation marks and citation omitted). The party asserting
waiver bears the burden of proof. Id. “Magic words are unnecessary to effectuate a valid waiver,
but a waiver must be explicit, voluntary, and made in good faith.” Id. To determine whether a
waiver occurred, the court must address whether a reasonable person would have understood that
he or she was waiving the interest. Id. “[A] valid waiver may be shown by express declarations
or by declarations that manifest the parties’ intent and purpose, or be an implied waiver, evidenced
by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” Id. (quotation
marks and citations omitted).
Under the APA, sellers were required to assign the management contracts with each
restaurant or catering business owner to purchasers. Section 1.1 provided that at closing, sellers
would sell, assign, convey, transfer, set over, and deliver all of its assets, rights, and interests in
relation to the restaurant and catering businesses, including all contracts and service agreements
under § 1.1(F). The court ruled before trial that the management contracts were assigned as a
matter of law under § 1.1 of the APA despite the lack of consent to each assignment by the owners.
Thus, purchasers’ sole breach-of-contract claim at trial was premised on § 7.7 of the APA, which
provides: “Status of Contracts. Seller has, to the best of Seller’s knowledge, complied with all
of the provisions of contracts described in this Agreement and of all other contracts and
commitments to which Seller is a party.” Section 7.23 provides that “[t]he foregoing
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representations and warranties are made by Seller with the knowledge and expectation that
Purchaser is placing complete reliance on them.” Thus, § 7.7 governed the effectual transfer of
the assignments, see § 1.1 and § 1.1(F), from sellers to purchasers reflecting that the consents from
the owners were acquired.
This Court addressed contractual waiver in Bissell v LW Edison Co, 9 Mich App 276, 279-
280; 156 NW2d 623 (1967).6 In Bissell, the defendant contracted with the state highway
commission to construct highway approaches along a bridge, and the defendant subcontracted with
the plaintiff to place fill along the right-of-way north and south of the bridge. After the plaintiff
started the work, the state placed a water main in the south right-of-way, it froze in the winter, and
the plaintiff had to stop his work. Id. at 280. A representative of the defendant testified that he
knew the state planned to place the water main there, but the plaintiff had no knowledge of such
when he entered the subcontract with the defendant. Id. at 280-281. When the plaintiff sued to
recover, the defendant counterclaimed for breach of contract, and the trial court found that the
defendant waived any breach claim. Id. at 279. This Court affirmed that ruling, indicating that
“ ‘[a] waiver may be shown by proof of express language of agreement or inferably established by
such declarations, acts, and conduct of the party against whom it is claimed as are inconsistent
with a purpose to exact strict performance.’ ” Id. at 287, citing Strom-Johnson Constr Co v
Riverview Furniture Store, 227 Mich 55, 67-68; 198 NW 714 (1924). In Bissell, 9 Mich App at
287, there was no “specific statement by a representative of defendant to the plaintiff that defendant
waived any claimed breach of the contract. However, we do have declarations, acts and conduct
of defendant which are inconsistent with the purpose to exact strict performance which constitutes
a waiver.” Because a representative of the defendant knew that the state planned to place a water
main in the right-of-way, the defendant acted inconsistently with the purpose to exact strict
performance by the plaintiff because the plaintiff would not be able to fill the area as required
under the subcontract. See id.
Here, the trial court did not err by concluding that purchasers failed to waive the breach of
§ 7.7 of the APA, and that there was no evidence of waiver, in denying sellers judgment
notwithstanding the verdict. There was no express declaration by Moore indicating he was
waiving this claim, or any evidence of an implied waiver indicating a decisive, unequivocal intent
to waive. Patel, 324 Mich App at 634. Although Moore knew that the consents to assignments
were not obtained at the time of closing, this does not constitute an act or conduct inconsistent
with exacting strict performance of the APA requiring sellers to provide the consents. See Bissell,
9 Mich App at 287.
Rather, Moore’s conduct indicated that he sought the consents to assignments when they
were not provided at closing, and then not provided for some time. He received final drafts of the
proposed assignments in January or February 2019, under the understanding that they would be
sent to each owner for signature, and countersigned by Dickson, but this never occurred. Moore
6
Decisions issued by this Court before November 1, 1990, are not precedentially binding,
MCR 7.215(J)(1). Nonetheless, published decisions by this Court decided before November 1,
1990, may be considered persuasive authority, In re Stillwell Trust, 299 Mich App 289, 299 n 1;
829 NW2d 353 (2012).
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testified he met Will in June 2019, to attempt to get the consents, though Will denied that Moore
asked Will to procure them at that time. Moore reached out to Dickson personally later that
summer, and Dickson proposed possible alternatives to obtaining the consents. When Moore
started to experience problems from the lack of consents, he sent sellers notice requesting the
assignments and then notice that they were in breach for failure to provide them. Dickson
responded by providing two of the assignments. Dickson also proposed amending the APA to
indicate that sellers “agree[d] to cooperate” in obtaining the consents, but Moore did not accept
the change because it would relieve sellers of their obligation to actually obtain the consents. The
evidence of what occurred postclosing in an attempt to obtain the consents establishes that Moore
did not waive his claim for breach by closing without the consents.
Moreover, the introductory paragraph of § 7 of the APA provides that sellers “represent,
covenant, and warrant the following to be true, which representations, covenants, and warranties
shall survive the Closing.” (Emphasis added.) “When contractual language is unambiguous,
courts must interpret and enforce the language as written because an unambiguous contract
reflects, as a matter of law, the parties’ intent.” Harper Woods Retirees Ass’n v Harper Woods,
312 Mich App 500, 508; 879 NW2d 897 (2015). Thus, sellers’ warranty in § 7.7 extended beyond
the date of the closing, and the fact that Moore proceeded to close voluntarily without the consents
does not establish that he waived breach of § 7.7 in the event the consents were not provided.
Thus, the trial court properly denied sellers judgment notwithstanding the verdict of purchasers’
breach-of-contract claim. There was record evidence for the jury to conclude that there was no
waiver of this claim by purchasers, despite Moore’s knowledge that the consents had not been
obtained at closing, and the representation guaranteeing the consents would be obtained survived
the closing.
Sellers nonetheless argue that M Civ JI 142.41 was improperly given because purchasers’
waiver of breach of § 7.7 does not require separate consideration. This jury instruction provides:
[Name of party being sued on contract] claims that [his/her/its] failure to execute
the promise was excused because [name of party] waived [his/her/its] performance.
To excuse nonperformance, [name of party being sued on contract] must prove that
[name of party] voluntarily and knowingly gave up [his/her/its] right to insist on
performance of [insert performance obligation]. In other words, [name of party]
must have known that [he/she/it] had the right to insist on the completion of [insert
performance obligation] by [name of party being sued on contract], but
nevertheless agreed to give up this right. A waiver may be expressly stated or it
may be implied by acts or conduct, indicating an intent not to enforce the
contractual right such that a reasonable person would think that performance was
no longer required. A waiver of a substantial right requires consideration. [M Civ
JI 142.41.]
On the fifth day of trial, after purchasers rested, sellers moved for directed verdict of
purchasers’ breach-of-contract claim, and sellers’ counsel actually stated, “[w]e both agree you
have to have separate consideration for the defendant to waiver,” and that separate consideration
had been met. Then, after reviewing caselaw, sellers’ counsel argued that additional consideration
was not required under Michigan law. Regardless, the trial court denied a directed verdict because
genuine issues of material fact existed whether there was a waiver. On the last day of trial, defense
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counsel again requested that the last sentence of M Civ JI 142.41 be removed because
consideration was only required in certain situations of waiver, and here, there was no such
requirement. The court denied the request, and gave the model instruction including the last
sentence. When sellers again made an argument about the jury instruction in their motion for
judgment notwithstanding the verdict, the court held that it did not err by reading the standard
instruction.
Jury instructions must include all the elements of the claims and should not omit any
material issues, defenses, or theories of the parties that the evidence supports. Lewis, 258 Mich
App at 211. If an instruction is not supported by the evidence, it should not be given. Id. If the
instructions adequately and fairly present to the jury all theories of the parties and the applicable
law, no error requiring reversal occurs. Id. “Reversal based on instructional error is only required
where the failure to reverse would be inconsistent with substantial justice.” Id. at 211-212; see
also MCR 2.613(A). When a jury is asked to render a general verdict without being asked to
identify specific findings, we cannot conclude that a party has been denied substantial justice.
Zdrojewski v Murphy, 254 Mich App 50, 64-65; 657 NW2d 721 (2003). A special verdict form
that requires the jury address particular issues assists the deliberative process and the task of
judicial review. See Peisner v Detroit Free Press, 421 Mich 125, 135-136; 364 NW2d 600 (1984);
see MCR 2.515(A).
A course of affirmative conduct combined with oral representations may result in the
waiver of written contract terms. Dunn v Bennett, 303 Mich App 767, 777; 846 NW2d 75 (2014).
But when the evidence conflicts regarding changes to a parties’ agreement, such as a waiver, the
issue presents a question for the trier of fact. See Case v Bowman, 265 Mich 106, 107; 251 NW
333 (1933).
Sellers did not demonstrate that the failure to reverse, premised on the court’s waiver
instruction, is inconsistent with substantial justice. Lewis, 258 Mich App at 211-212. M Civ
JI 142.41 states that a party may waive performance if it knowingly and voluntarily gave up the
right to insist it occur. This waiver may be expressly stated or implied by conduct. Id. Lastly, the
standard instruction that the waiver of a substantial right requires consideration. Id. The party
raising the issue of waiver has the burden of proof. Home-Owners Ins Co v Perkins, 328 Mich
App 570, 586; 939 NW2d 705 (2019).
Sellers failed to demonstrate a deprivation of substantial justice arising from the trial
court’s provision of the standard instruction. There is no indication that a special verdict form was
requested that asked the jury to find whether the sellers met their burden of proof, whether the
waiver was express or implied, and finally, whether the waiver was of a substantial right and
supported by consideration. In light of this failure to submit a special verdict form, it is speculative
whether sellers were deprived of substantial justice.7
7
In light of our disposition, we need not address the application of Babcock v Public Bank, 366
Mich 124, 135; 114 NW2d 159 (1962), and Fitzgerald v Hubert Herman, Inc, 23 Mich App 716,
717; 179 NW2d 252 (1970).
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Thus, sellers fail to establish instructional error requiring reversal based on the court giving
M Civ JI 142.41 at trial where there was no abuse of discretion in the court’s conclusion that the
standard instruction should be submitted to the jury. Case, 265 Mich at 107. As such, there was
no error by the trial court in denying sellers judgment notwithstanding the verdict on the basis of
waiver.
b. DAMAGES
Sellers argue that they were entitled to judgment notwithstanding the verdict of purchasers’
breach-of-contract claim because purchasers failed to show damages. To succeed on a claim for
breach of contract, the party must prove (1) the existence of a contract, (2) that the other party
breached its terms, and (3) that the breach caused damages. Van Buren Charter Twp v Visteon
Corp, 319 Mich App 538, 554; 904 NW2d 192 (2017). The party asserting breach of contract has
the burden to prove its damages with reasonable certainty, and may only recover damages that are
the direct, natural, and proximate result of the breach. Id. at 550. Damages cannot be conjectural
or speculative in nature, or “dependent upon the changes of business or other contingencies.” Id.
at 551 (quotation marks and citation omitted). Damages for breach of contract “need not be
precisely established;” however, “uncertainty as to the fact of the amount of damage caused by the
breach of contract is fatal.” Id. (quotation marks and citation omitted).
In denying sellers judgment notwithstanding the verdict, the trial court concluded that the
evidence was sufficient for the jury to conclude that purchasers suffered damages from breach of
§ 7.7 of the APA. The court referenced the trial testimony from fact and expert witnesses presented
to the jury to support the damages award. Contrary to sellers’ arguments on appeal, at trial,
purchasers acknowledged the trial court’s previous ruling that the management contracts had been
assigned as a matter of law. Purchasers argued that the assignments occurred without the owner
consents, which constituted a breach, and purchasers suffered damages. Viewing the evidence in
the light most favorable to purchasers, the testimony of Moore and purchasers’ expert, Michael
Kahaian, was sufficient for a jury to conclude that purchasers suffered damages from sellers’
breach.
When asked about the breach of the APA, Moore testified that, as a result of not receiving
the consents to assignments, he lost
the right to have a long-term security with those locations, with those owners. I
lost the ability to go get financing. I lost the ability to bring in partners. I lost a
couple other things as well. Put all the money into those restaurants to keep
operations going, improve them. Gave [Dickson] a loan for his payroll. It all starts
to add up to real money.
As to amounts, Moore claimed his costs included the $550,000 down payment, the payroll loan of
$180,000, the $400,000 he put into the business, and all of his monthly payments of $9,911 from
January 2019, to the month of trial, October 2022—approximately $460,000. Moore also testified
that he was unable to negotiate with the owners of any of the restaurants to modify or improve the
economic terms of the management contracts without having the assignments. The owners would
not talk to Moore because they did not recognize him “as the guy who belonged there.”
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Kahaian testified that, as an economic damages expert, he had to rely upon liability to
determine economic damages in order to “link the harm that’s being alleged to any legal
determination.” Accordingly, Kahaian’s damage calculation was premised on the outcome of a
legal determination. Kahaian explained “causation” as “the link between the actions or inactions
of a party that connect to what financial harm was done in a case.” He linked the terms of the APA
to the claim that the assignments were not received in order to quantify purchasers’ economic
harm. He explained:
My theory has always been to quantify the amount that would place [purchasers]
back in the position they would have been, but for the breach. And so according to
Mr. Moore, he was relying upon the representations and warranties that the parties
agreed upon when closing on the transaction, and therefore, in one of those
representations and warranties was that the owner consents within that the
management agreements would be provided. And so, therefore, Mr. Moore would
not have necessarily—he wouldn’t have closed on the transaction without those
representations and warranties. Therefore, you could say that the value that he put
on the consents was $1.3 million because that was the value of the deal.
Thus, there was sufficient evidence for the jury to conclude that purchasers suffered
damages, and that the damages were caused by sellers’ breach of the APA. As such, the trial court
properly denied sellers’ motion for judgment notwithstanding the verdict of purchasers’ breach-
of-contract claim in this regard.
2. UNJUST ENRICHMENT
The trial court also properly denied sellers judgment notwithstanding the verdict of
purchasers’ unjust-enrichment claim against Dickson.
To establish unjust enrichment, the plaintiff must prove “(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.” Landstar Express America, Inc v Nexteer Auto Corp, 319 Mich
App 192, 205; 900 NW2d 650 (2017) (quotation marks and citation omitted). The doctrine is
grounded in theory that the law will imply a contract to prevent the unjust enrichment of the other
party. Id. at 204. However, a contract cannot be implied where an express contract already exists
covering the same subject matter. Id. Moreover, the law will only imply a contract to prevent
unjust enrichment where the defendant was unjustly or inequitably enriched at the plaintiff’s
expense. Id. at 205. Not all enrichment is necessarily unfair; the key to determining unjust
enrichment is whether the party inequitably received and retained an independent benefit. Id. The
mere fact that a third party benefits from a contract between two others does not make the third
party liable for unjust enrichment. Id. In the absence of a misleading act by the third person, the
failure to perform by one of the contracting parties does not establish a right to restitution against
the third person. Id.
Before trial, the circuit court judge initially assigned to this case ruled that Dickson was
not a party to the APA because he did not sign the APA in his individual capacity. Because he is
not a party to the APA, the existence of that contract did not preclude purchasers’ unjust-
enrichment claim against him. Id. at 204. Purchasers’ unjust-enrichment claim was premised on
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a postclosing agreement in which purchasers agreed to pay payroll of the restaurant and catering
businesses’ employees in December 2018. The trial court clarified at trial that purchasers’ unjust-
enrichment claim was limited to $86,500, in light of purchasers pleading that amount in their first
amended complaint. Sellers now argue that they were entitled to judgment notwithstanding the
verdict of purchasers’ unjust-enrichment claim because there was no evidence that Dickson
benefited personally from the amount purchasers forwarded for the 2018 payroll. Viewing the
evidence in the light most favorable to purchasers, the trial court properly denied sellers judgment
notwithstanding the verdict of this claim.
Moore testified that shortly after closing, Dickson asked Moore for additional funds for
payroll from mid-December 2018, through New Year’s Eve, which were covered in the new year,
and Dickson would pay him back. Moore testified it was approximately $180,000. Moore agreed,
and paid the employees through Conlan Abu. Dickson testified that in an effort to support Moore
and make sure that his endeavors were successful, he gave Moore all of his inventory, his checking
account, and told Moore to keep what receivables were coming in. As for payroll, Dickson did
not want the employees to have two W-2s in the new year, he told Moore to pay the payroll through
the cash in the checking account and the receivables. Dickson testified the total was about $60,000,
not $180,000. He averred that Moore did not protest this plan, but rather, was grateful because it
was a benefit for which he had not bargained.
However, the money that purchasers provided to cover the payroll was paid to Dickson
personally, which Dickson did not deny. Rather, Dickson testified that any check Moore made
out to him personally was a choice made by Moore, and that Dickson would sign them over to
Best Team. There is no evidence in the record that the amount purchasers provided for payroll
was ever returned to purchasers from Dickson. Although Dickson may not have kept the amount
in his personal account, he still benefited from using the money to pay the December 2018 payroll.
The APA was not executed until January 1, 2019, so purchasers were not owners of the assets at
the time the employees worked in December 2018, the time for which they were receiving the
payroll. Thus, viewing the evidence in the light most favorable to purchasers, the evidence was
sufficient for the jury to find that Dickson was unjustly enriched from the payroll advance, and the
trial court properly denied judgment notwithstanding the verdict.
3. DAMAGES AWARD
Lastly, as to the direct appeal, we conclude that the trial court did not abuse its discretion
by denying sellers’ motion for a new trial or remittitur predicated on the verdict being excessive.8
“This Court reviews the trial court’s denial of a motion for new trial for an abuse of
discretion.” Detroit/Wayne Co Stadium Auth v Drinkwater, Taylor, & Merrill, Inc, 267 Mich App
625, 644; 705 NW2d 549 (2005). This Court also reviews the trial court’s decision to deny
8
Sellers also contend that a new trial or remittitur is warranted because of the alleged instructional
error in M Civ JI 142.41. In light of our conclusion that the instruction did not warrant judgment
notwithstanding the verdict, we similarly conclude that the trial did not abuse its discretion in
denying the requested relief in this context.
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remittitur for an abuse of discretion. Taylor v Kent Radiology, 286 Mich App 490, 522; 780 NW2d
900 (2009). “An abuse of discretion occurs when a trial court’s decision is not within the range of
reasonable and principled outcomes.” Law Offices of Jeffrey Sherbow, PC, 347 Mich App at 557
(quotation marks and citation omitted).
The sellers assert that the verdict was excessive and should be remitted to $0 because
purchasers were awarded COVID-relief funds. When the trial court is to decide a motion for
remittitur, it must examine the evidence in the light most favorable to the nonmoving party and
determine whether the evidence supported the jury award. Taylor, 286 Mich App at 522. “If the
award falls reasonably within the range of the evidence and within the limits of what reasonable
minds would deem just compensation, it should not be disturbed.” Id. (quotation marks and
citations omitted). In other words, “[t]he power of remittitur should be exercised with restraint.”
Id.
Sellers argue on appeal that purchasers were awarded reliance damages, rather than benefit-
of-the-bargain damages, and as such, the award should be offset or remitted to $0 by the COVID-
relief funds. Reliance damages are typically awarded in actions raising promissory estoppel, the
elements of which 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, (3) which
in fact produced reliance or forbearance of that nature, and (4) in circumstances
such that the promise must be enforced if injustice is to be avoided.
. . . The guiding principle in determining an appropriate measure of damages is to
ensure that the promisee is compensated for the loss suffered to the extent of the
promisee’s reliance. Damages awarded in promissory estoppel actions may include
an award of lost profits, and out-of-pocket expenses incurred in preparation for
performance or in the performing of the work that was induced by the promisor.
[Joerger v Gordon Food Serv, Inc, 224 Mich App 167, 173-174; 568 NW2d 365
(1997) (quotation marks and citations omitted).]
On the other hand, damages recoverable for breach of contract
arise naturally from the breach or . . . were in contemplation of the parties at the
time the contract was made. Application of this principle in the commercial
contract situation generally results in a limitation of damages to the monetary value
of the contract had the breaching party fully performed under it. [Lawrence v Will
Darrah & Assoc, Inc, 445 Mich 1, 6; 516 NW2d 43 (1994) (quotation marks and
citations omitted).]
Although purchasers’ expert, Kahaian, used the term “out-of-pocket” dollars to explain the
methodology he used to calculate purchasers’ damages, he otherwise clearly explained that the
theory of damages he used was to put purchasers, the harmed party, in the position they would
have been in had the APA not been breached. He clarified that he used this methodology because
it would be too speculative to reach a figure for lost profits based on future projections. It is
ultimately unknown what type of damages the jury contemplated when it awarded purchasers
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damages. Regardless, the award was not excessive, and sellers were not entitled to a new trial or
remittitur.
Moore testified that Conlan Abu applied for money from the Restaurant Revitalization
Fund. During opening argument, sellers’ counsel implied that Moore did not disclose in this
application that some of the restaurants had closed in 2019. Moore still had other restaurants in
operation in 2020 and 2021, and disclosed in the application which restaurants closed in 2019, i.e.,
Nomad, No. VI Steakhouse, MDC, and Soul Café. All of the financial information included in the
application came from Dickson’s companies. Moore received an award of $5.02 million in relief
funds, which could only be used in certain ways. Moore tracked how the money was appropriately
used. Moore testified that he was not reimbursed for any of his losses associated with sellers and
the APA from the relief-funds award. The award was based on revenue, and had Moore received
the assignments, he could have been awarded more; but he would have gotten the award whether
or not the consents and assignments were received.
Kahaian testified that purchasers’ receipt of the COVID-relief funds did not mitigate the
damages they suffered from breach of the APA because they were “mutually exclusive of one
another;” the received funds were “totally separate” from the harm caused from the breach of the
APA. The relief funds were not tied to purchasers’ economic damages or related in any way to
the losses purchasers incurred. Kahaian testified that had there been no breach of the APA,
purchasers still would have been entitled to relief funds if they qualified.
Purchasers sought $2.46 million in damages at trial. The jury only awarded a little over $1
million. Thus, the award was not “clearly or grossly inadequate or excessive” to justify a new
trial. MCR 2.611(A)(1)(d). Additionally, viewing the evidence in the light most favorable to
purchasers, the COVID-relief funds are separate from the claimed damages by purchasers and
irrelevant to the final award. Thus, the trial court did not abuse its discretion by denying sellers
remittitur of the jury’s verdict based on the award of COVID-relief funds.
B. CROSS-APPEAL
On cross-appeal, purchasers argue that the trial court erred by dismissing claims against
Dickson pretrial, and by refusing to permit amendment. We disagree. The trial court properly
dismissed purchasers’ claims for breach of contract, fraud and misrepresentation, and estoppel
against Dickson in his individual capacity. Additionally, the trial court did not err by denying
purchasers’ request to amend their unjust-enrichment claim against Dickson.
Sellers moved for summary disposition of all the claims in purchasers’ first amended
complaint under MCR 2.116(C)(10). This Court reviews a trial court’s decision to grant or deny
summary disposition de novo. Glasker-Davis v Auvenshine, 333 Mich App 222, 229; 964 NW2d
809 (2020).
A trial court may grant a motion for summary disposition under MCR 2.116(C)(10)
when the affidavits or other documentary evidence, viewed in the light most
favorable to the nonmoving party, show that there is no genuine issue as to any
material fact and the moving party is therefore entitled to judgment as a matter of
law. [Id. (quotation marks and citation omitted).]
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“The moving party must first specifically identify the issues as to which it believes there is no
genuine issue as to any material fact, and has the initial burden of supporting its position with
affidavits, depositions, admissions, or other admissible documentary evidence.” Innovative Adult
Foster Care, Inc v Ragin, 285 Mich App 466, 475; 776 NW2d 398 (2009) (quotation marks,
citations, and brackets omitted). When this burden is met, the burden then shifts to the nonmoving
party to establish a genuine issue of material fact for trial. Id. The nonmoving party may not rely
on mere allegations or denials in the pleadings, but must set forth specific facts showing that a
genuine issue of material fact exists. Id. “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. (quotation marks and citation omitted).
Decisions to grant or deny motions to amend pleadings are reviewed for an abuse of
discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). “An abuse of discretion
occurs when a trial court’s decision is not within the range of reasonable and principled outcomes.”
Law Offices of Jeffrey Sherbow, PC, 347 Mich App at 557 (quotation marks and citation omitted).
This Court also reviews the interpretation of a court rule de novo. Bint v Doe, 274 Mich App 232,
234; 732 NW2d 156 (2007).
As an initial matter, the trial court properly dismissed purchasers’ claim for breach of
contract against Dickson in his individual capacity because he was not a party to the APA. It is
well established that a corporation or other corporate entity “is a legal fiction,” i.e., “an artificial
being, invisible, intangible, and existing only in contemplation of law.” Green v Ziegelman, 310
Mich App 436, 450-451; 873 NW2d 794 (2015) (quotation marks and citations omitted). Absent
an abuse of corporate form, courts presume that the entity is separate and distinct from its owner
or owners, even when a single person owns and operates the entity. Id. at 451. The court may
“pierce the corporate veil” only when the corporation or other entity is being used to defeat public
convenience, justify wrong, protect fraud, or defend crime, in which case, the court may “look
through the veil of corporate structure . . . to avoid fraud or injustice.” Id. (quotation marks and
citation omitted).
The APA identified Dickson as the sole shareholder or owner of the corporations and LLC
owning the restaurants and catering businesses included in the restaurant group. Dickson signed
the APA as president of each corporation and the authorized member of Soul Café, LLC. Although
he was identified and referred to as “Owner” in the APA, he did not sign it on his own behalf, or
otherwise make any guarantees that he would be personally liable for sellers’ obligations under
the contract. Although the introductory paragraph of § 7 provides that “Seller and
Owner . . . represent, covenant, and warrant the following to be true . . . ,” § 7.7 excludes Dickson
as owner, and states that “Seller has, to the best of Seller’s knowledge, complied with” all the
provisions of the contract. Thus, the court properly dismissed purchasers’ breach-of-contract
claim against Dickson in his individual capacity as he was not a party to the APA, despite the
“Owner” language and his signing of the document.
As to purchasers’ claims for fraud, misrepresentation, and estoppel against Dickson
individually, the trial court properly dismissed them under the merger clause of the APA.
Section 16.4 of the APA provided:
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16.4 Entire Agreement. This Agreement sets forth the entire understanding of the
Parties; further, this Agreement shall supersede and/or replace any oral or written
agreement(s) relating to this subject matter entered into by the Parties before the
date of this Agreement.
When contract language is clear and unambiguous, parol evidence of contract negotiations or
previous or contemporaneous agreements that contradict the written contract is not admissible to
vary the contract’s terms. Barclae v Zarb, 300 Mich App 455, 480; 834 NW2d 100 (2013). Parol
evidence may be admissible to demonstrate fraud, but where a contract contains an express merger
clause, only certain types of fraud can invalidate the contract. Id.
[W]hile parol evidence is generally admissible to prove fraud, fraud that relates
solely to an oral agreement that was nullified by a valid merger clause would have
no effect on the validity of the contract. Thus, when a contract contains a valid
merger clause, the only fraud that could vitiate the contract is fraud that would
invalidate the merger clause itself, i.e., fraud relating to the merger clause or fraud
that invalidates the entire contract including the merger clause. [UAW-GM Human
Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 503; 579 NW2d 411
(1998).]
Purchasers’ fraud and misrepresentation claims purportedly arise from Dickson’s
statement on December 31, 2018, that he would obtain the consents to assignments, before the
parties closed on January 1, 2019. These claims fail because Dickson made the statements on
behalf of sellers, and under the merger clause, any previous oral statement was superseded by the
APA. See id. Dickson’s statements did not relate to the merger clause, and as such, did not
invalidate the entire contract. See id. Rather, the APA assigned the management contracts to
purchasers at closing, and the language provided that sellers would obtain the consents. Thus,
summary disposition of purchasers’ fraud and estoppel claims against Dickson individually was
proper.
Lastly, purchasers argue that the trial court should have permitted amendment of their
unjust-enrichment claim to “expand its scope.” The trial court rejected this argument three times.
First, purchasers moved to file a second amended complaint to expand their unjust-enrichment
claim against Dickson regarding the payroll advance. The trial court denied the motion based on
undue delay, repeated failure to cure deficiencies, and undue prejudice. Purchasers moved for
reconsideration of this order, asserting that they could not have amended their unjust-enrichment
claim against Dickson before the trial court ruled that Dickson was not a party to the APA in its
December 22, 2021 opinion and order. The trial court denied this motion. Then, on the eve of one
of the first-scheduled trial dates, purchasers moved to “amend and correct legal errors,” once again
seeking to amend their unjust-enrichment claim against Dickson. The court denied this motion as
procedurally improper and on the merits.
MCR 2.116(I)(5) provides that if summary disposition is asserted under MCR 2.116(C)(8),
(9), or (10), the court shall allow the parties to amend their pleadings under MCR 2.118, “unless
the evidence then before the court shows that amendment would not be justified.” In interpreting
a court rule, this Court “accord[s] every word or phrase of a [] court rule its plain and ordinary
meaning.” Brausch v Brausch, 283 Mich App 339, 348; 770 NW2d 77 (2009).
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Leave to amend “ ‘shall be freely given when justice so requires,’ ” unless amendment
would be futile. Weymers, 454 Mich at 658, citing MCR 2.116(I)(5) and MCR 2.118(A)(2). A
motion to amend should typically be granted, and only denied based on undue delay, bad faith or
dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to
the opposing party, and futility. VHS of Mich, Inc v State Farm Mut Auto Ins Co, 337 Mich App
360, 373; 976 NW2d 109 (2021). Delay, alone, does not warrant denial of amendment. Weymers,
454 Mich at 659. In this context, prejudice exists if amendment prevents the opposing party from
receiving a fair trial. Id.
Here, the trial court did not err when it denied purchasers’ many requests to amend its
claim. Purchasers’ motion to correct legal errors and seek amendment was clearly an attempt to
obtain a different ruling after the case was reassigned from one judge to another. Thus, it appears
that amendment was for a dilatory motive, VHS of Mich, Inc, 337 Mich App at 373, as the court
had already denied amendment in two prior orders. Moreover, a trial court has the inherent
authority to control its own docket and internal affairs to achieve an orderly and expeditious
disposition of cases. Baynesan v Wayne State Univ, 316 Mich App 643, 651; 894 NW2d 102
(2016). Under these circumstances, the trial court did not abuse its discretion by denying
purchasers the opportunity to amend their unjust-enrichment claim.9
IV. DOCKET NO. 368946
Lastly, in the 2023 case, the trial court properly granted purchasers summary disposition
of Best Team’s claim for breach of the promissory note under MCR 2.116(C)(6).10
This Court reviews de novo the trial court’s decision on a motion for summary disposition.
George v Allstate Ins Co, 329 Mich App 448, 454; 942 NW2d 628 (2019). “Summary disposition
cannot be granted under MCR 2.116(C)(6) unless there is another action between the same parties
involving the same claims currently initiated and pending at the time of the decision regarding the
motion for summary disposition.” Planet Bingo, LLC v VKGS, LLC, 319 Mich App 308, 323; 900
NW2d 680 (2017) (quotation marks, citation, and brackets omitted). This court rule “is a
codification of the former plea of abatement by prior action, the purpose of which was to protect
parties from the harassment of new suits.” Id. at 325 (quotation marks and citation omitted). It
seeks to prevent “litigious harassment involving the same question and claims as those presented
in pending litigation.” Id. When reviewing a motion brought under MCR 2.116(C)(6), the trial
9
Purchasers also argue on cross-appeal that the trial court erred by ruling that the management
contracts were assigned as a matter of law under § 1.1 of the APA. Purchasers, however,
acknowledge that this argument need not be addressed if we affirmed the final judgment in
purchasers’ favor and rejected sellers’ arguments on direct appeal. In light of our affirmance of
the final judgment and purchasers’ representation, we do not address this argument.
10
We question whether Best Team preserved the theory that, at trial, it was assumed that the
balance of the promissory note would be paid. This aspect was first raised in the motion for
reconsideration. We may overlook preservation requirements and do so with regard to this
argument. See George v Allstate Ins Co, 329 Mich App 448, 454; 942 NW2d 628 (2019).
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court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence
filed in the action or submitted by the parties. MCR 2.116(G)(5).
As an initial matter, the requirement that the two actions involve the “same parties” does
not require that all parties be identical. Fast Air, Inc v Knight, 235 Mich App 541, 545 n 1; 599
NW2d 489 (1999). Here, however, purchasers and Best Team were parties in both the 2019 and
the 2023 actions, satisfying this requirement.
Additionally, both actions must involve the same claims, though the claims need not be
identical. JD Candler Roofing Co, Inc v Dickson, 149 Mich App 593, 598; 386 NW2d 605 (1986).
Rather, “the two suits must be based on the same or substantially the same cause of action.” Id.
(quotation marks and citation omitted). A motion under MCR 2.116(C)(6) is properly granted
where resolution of the action will require examination of the same operative facts as the pending
action. Id. at 601.
First, Best Team argues that the 2023 case does not arise from the same operative facts as
the 2019 case. This argument is unpersuasive. Best Team claimed purchasers breached the
promissory note that was executed in conjunction with the APA, both of which were at issue in
the 2019 case. Best Team’s claim in the 2023 case arises from the same failed transaction between
sellers and purchasers for the purchase of the assets of the restaurant group. In sellers’
counterclaim filed in the 2019 case, sellers asserted, on Best Team’s behalf, a claim for breach of
the promissory note, arguing that purchasers and the orchard entities breached or repudiated the
promissory note by tendering back the assets and asserting that Best Team breached the APA.
Thus, although Best Team’s claim for breach of the promissory note in the 2023 case involves a
default claim under the note from purchasers’ failure to make a payment in December 2022, the
2023 case still arises from the same underlying operative facts as the 2019 case.
Next, Best Team argues that the trial court erred by concluding that the 2019 case resolved
the issue of whether any more payments were due on the promissory note because the note was a
separate and distinct contract from the APA. The trial court did not err by concluding that breach
of the promissory note was litigated in the 2019 case. Sellers asserted this claim on Best Team’s
behalf in the counterclaim, and the jury found that sellers failed to prove breach of the promissory
note at trial. Although Best Team’s breach claim was based on purchasers’ tendering back the
assets rather than defaulting on payment, this distinction does not preclude dismissal of Best
Team’s claim. The jury determined that sellers had breached the APA. “The rule in Michigan is
that one who first breaches a contract cannot maintain an action against the other contracting party
for his subsequent breach or failure to perform.” Michaels v Amway Corp, 206 Mich App 644,
650; 522 NW2d 703 (1994) (quotation marks and citation omitted). This rule only applies when
the initial breach is substantial; to determine whether a breach is material, the court considers
whether the nonbreaching party obtained the benefit it reasonably expected to receive. Omnicom
of Mich v Giannetti Investment Co, 221 Mich App 341, 348; 561 NW2d 138 (1997). Because the
jury determined that sellers breached the APA, their rights under the APA were extinguished.
Best Team’s argument that it still had rights to payment under the promissory note because
it was a separate contract from the APA is unpersuasive. Section 7 of the promissory note provided
that Best Team, as holder of the note, “shall have all of the rights and powers set forth in the [APA]
as thought [sic] there [sic] were set forth fully in this note.” “When a contract incorporates a
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writing by reference, it becomes part of the contract, and courts must construe the two documents
as a whole.” In re Estate of Koch, 322 Mich App 383, 399; 912 NW2d 205 (2017). Thus, because
sellers no longer had any rights under the APA, and the promissory note incorporated the APA by
reference, Best Team, as a holder of the note and an affiliate of sellers, had no right to further
payment under the note.
Best Team’s argument that the trial court’s decision on a jury instruction in the 2019 case
leads to a different conclusion is unpersuasive. The parties at trial disputed the jury instruction on
first material substantial breach as an affirmative defense, which, as proposed, provided:
If you find that [sellers] committed a substantial breach of the APA by failing to
deliver the Assignments through an appropriate instrument of transfer with owner
consents before [purchasers] committed a breach of the APA, then your verdict
should be in favor of [purchasers], and against all [sellers] on [sellers’] breach of
contract counterclaims, including their claims arising under the promissory note,
for any additional purchase price under Section 3 of the APA, and under the security
agreement.
Sellers objected to the instruction, arguing there was no basis that a first material breach by sellers
of the APA affected Best Team’s claims under the note. The court sustained the objection, and
struck from the instruction the last phrase, beginning with “including their claims arising under
the promissory note . . . .” Contrary to Best Team’s argument, this ruling on a jury instruction
does not equate to a ruling that purchasers had to keep making payments on the promissory note,
nor was it dispositive to this issue on summary disposition in the 2023 case.
Lastly, Best Team argues that because purchasers’ requested damages at trial to put them
in the position they would have been in had the contract been performed, and counsel indicated
this included the “remaining payments on the note,” purchasers could not now argue that they no
longer had to make payments on the promissory note after trial. However, a party is allowed to
plead alternate theories of recovery at trial, and to have those theories submitted to the jury, even
when those theories are potentially inconsistent. See MCR 2.111(A); Keywell & Rosenfeld v
Bithell, 254 Mich App 300, 328; 657 NW2d 759 (2002). During closing argument, purchasers’
counsel explained Kahaian’s testimony and how purchasers reached the number they were
requesting in damages. He said that Kahaian took the down payment, the payments made on the
promissory note, the amount Moore contributed to cover operating expenses plus interest, and “the
remaining payments on the note,” to come to a total of $2.4 million. Attorneys are given some
leeway during closing arguments, see Heintz v Akbar, 161 Mich App 533, 539; 411 NW2d 736
(1987), and the jury was instructed that “[e]vidence includes only the sworn testimony of
witnesses, the exhibits admitted into evidence, and anything else I tell you—I told you to consider
as evidence.” The closing argument of purchasers’ counsel explaining that the remaining
payments on the promissory note were included in purchasers’ calculation of their damages did
not preclude purchasers from arguing in the 2023 case that they were no longer required to make
payments on the note, or preclude summary disposition on Best Team’s breach claim.
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V. CONCLUSION
In Docket No. 370769, the final judgment entered in purchasers’ favor in the 2019 case is
affirmed because the trial court properly denied sellers’ motion for judgment notwithstanding the
verdict and motion for a new trial or remittitur. Additionally, purchasers are not entitled to any
relief in their cross-appeal. In Docket No. 368946, the trial court’s order in the 2023 case granting
purchasers summary disposition of Best Team’s claim for breach of the promissory note is
affirmed.
Affirmed.
/s/ Anica Letica
/s/ Michelle M. Rick
/s/ Mariam S. Bazzi
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