LIGGETT RESTAURANT GROUP INC V CITY OF PONTIAC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
LIGGETT RESTAURANT GROUP, INC.,
FOR PUBLICATION
December 18, 2003
9:10 a.m.
Plaintiff-Appellant,
v
No. 240495
Oakland Circuit Court
LC No. 01-036350-CZ
CITY OF PONTIAC and CITY OF PONTIAC
STADIUM BUILDING AUTHORITY,
Updated Copy
February 27, 2004
Defendants-Appellees.
Before: Gage, P.J., White and Cooper, JJ.
WHITE, J. (concurring in part and dissenting in part).
I respectfully dissent from the majority's conclusion that the circuit court correctly
dismissed plaintiff 's complaint for failure to state a claim. I do not agree that the contract
language precludes as a matter of law a claim of frustration of purpose or a claim of unjust
enrichment.
Plaintiff brought its two-count complaint in November 2001, alleging frustration of
purpose, as grounds for rescission, and unjust enrichment. Defendants filed a motion for
summary disposition under MCR 2.116(C)(8), failure to state a claim. The motion was heard in
January, 2002, and granted, solely on the pleadings, in February.
The original contract provision concerning the possibility that the Lions would play fewer
than eight home games addressed the amount of the minimum annual payment due from
plaintiff 's predecessor. Plaintiff does not seek to be relieved of, or to reform or rescind, this
provision. Under this provision, plaintiff is relieved of any minimum payment.
The 1990 contract amendment concerns, inter alia, provisions of the lease respecting the
percentages of gross proceeds due defendant authority. These amounts were significantly and
immediately increased by the 1990 amendment, although without the amendment the lesser
amounts would have been contractually binding until 2000. Plaintiff asserts that these increased
percentages were agreed upon in exchange for a provision granting plaintiff 's predecessor the
option to extend the contract from 2000 until 2005, the ending date of the Lions' agreement with
-1-
defendants. Plaintiff claims that its predecessor paid over $6 million dollars in additional
concession fees to defendants, from 1990 until 2000, over and above those required in the
original lease, in exchange for the option to extend the original lease for five years, from 2000 to
2005, until the end of the Lions' sublease. Although the option was exercised as anticipated,
plaintiff received, in effect, only a two-year extension, because the Lions departed after two
seasons.
The original terms of the lease were, indeed, continued. And, under those terms, plaintiff
was relieved of the $100,000 annual minimum payment once the Lions left the Silverdome.
However, the agreement was silent concerning the consequences of the Lions' departure before
the expiration of the option term. I do not agree that the agreement, on its face, precludes
application of the frustration of purpose doctrine to the instant circumstances.
Plaintiff alleged that its predecessor agreed to an increase in concession fees in exchange
for an extension of the lease to a date to be co-terminus with the Lions' sublease, and that the
additional payments were made on the "mutual understanding and premise that the Lions were to
play their home games at the Silverdome for the entire term of such extension." In the course of
negotiations, plaintiff 's predecessor requested verification of the term of the Lions' obligation to
the Silverdome. Plaintiff produced a letter from defendant stating:
In conjunction with the proposed Sixth Amendment to the Concession
Contract, you requested verification as to the term the Detroit Lions were
obligated to play football at the Pontiac Silverdome. . . . Although the Sublease
and License was entered into on April 23, 1973, the 30-year term began in 1975.
. . . . [Emphasis added.]
This response is consistent with plaintiff 's claim that both parties to the contract amendment
proceeded on the assumption, and with the intent and agreement, that the Lions were obligated to
play at the Silverdome through the 2004-2005 season, and that they would do so.
The presence of paragraph 37, addressing the minimum annual payment and the effect on
that payment of the Lions' failure to play at least eight games in the stadium, does not preclude a
finding that the Lions' early departure, and defendants' decision to accept monetary
compensation from the Lions, and apparently forgo whatever rights defendants may have had to
seek an injunction to restrain the Lions from abandoning the Silverdome,1 resulted in a
frustration of the purpose of the sixth amendment of the concession contract.
1
Plaintiff asserts that defendants had such a right under their sublease with the Lions.
-2-
I would hold that plaintiff properly pleaded a cause of action for rescission/frustration of
purpose,2 and the circuit court erred in granting defendants' motion for summary disposition
dismissing that claim.
I also disagree with the majority's determination that the contract provision precludes an
action for unjust enrichment. Plaintiff alleged that the increase in concession payments was
agreed to in exchange for the right to be the sole concessionaire at the Silverdome until the end
of the Lions' sublease, an additional five-year period, that defendants accepted $6 million in
additional payments from 1990 to 2000, and that defendants would be unjustly enriched if they
are permitted to retain the entire sum under the circumstances that the Lions only played for two
of the five years of the extension, and that, additionally, defendants were able to recover
damages from the Lions, including damages resulting from the loss of concession revenues. I do
not agree that the provision in the original concession contract precludes plaintiff 's claim for
unjust enrichment. As discussed above, that contract provision addresses the effect on the annual
minimum payment should the Lions fail to play eight games in the Silverdome. It does not
address the parties' rights and obligations in the event the Lions breach their agreement with
defendants to play in the Silverdome through the 2004-2005 season.
I would reverse the grant of summary disposition under MCR 2.116(C)(8),3 and remand
for further proceedings.
/s/ Helene N. White
2
The cause of action is described in the 3 Restatement of Contracts, 2d, ยง 377, p 224:
A party whose duty of performance does not arise or is discharged as a
result of impracticability of performance, frustration of purpose, non-occurrence
of a condition or disclaimer by a beneficiary is entitled to restitution for any
benefit that he has conferred on the other party by way of part performance or
reliance.
3
I concur in the majority's rulings with respect to plaintiff 's request to amend its complaint and
whether the case should be reassigned to a different judge.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
