ETV INC V JEFFREY ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
ETV, INC.,
UNPUBLISHED
August 13, 1999
Plaintiff-Appellant,
v
No. 209093
Kent Circuit Court
LC No. 97-002742 NI
JEFFREY ANDERSON, JIM H. HULST, and
KOLEASCO, INC.,
Defendant-Appellees.
Before: Gage, P.J., and White and Markey, JJ.
WHITE, J. (concurring in part and dissenting in part).
To the extent that the majority affirms the dismissal of plaintiff’s claims for damages relating to
the historical costs of developing rates, a process embodied in documents wrongfully appropriated by
defendants, I respectfully dissent. As to this claim, the majority concludes that plaintiff presented only its
own allegations to substantiate its entitlement to damages. Given the procedural posture of the case, I
conclude that regarding historical-costs damages, plaintiff made a sufficient showing that a record might
have been developed that would leave open an issue on which reasonable minds might differ. Skinner
v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994).
Defendants’ motion for summary disposition addressed the character of the documents
involved, defendants’ alleged solicitation of drivers and customers and, regarding damages, was
confined to arguing that plaintiff had not established lost business or revenue due to defendant’s
conduct. Plaintiff’s brief in response to defendants’ motion asserted that plaintiff had suffered damages
in several areas not addressed by defendants, including “[h]istorical cost invested in building, negotiating
and formulating the rates, tariffs and records thereof [, w]hich were then copied and made use of
outside the company;” and “[h]istorical cost invested internally to cost analyze each run in order to bid.
This was then used by outside sources without reimbursement.” Plaintiff argued these costs at the
hearing on defendants’ motion and stated that the experts it had listed on its expert-witness list would
address those damages.1 When the circuit court granted defendants’ motion, plaintiff argued that the
historical costs sought to be recovered were separate from the elements of damage ruled on and should
thus survive the motion. I conclude that given this posture, if the issue was simply the adequacy of the
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evidentiary support for plaintiff’s historical-costs claim, the court should have allowed plaintiff a short
time to produce affidavits or deposition testimony of the experts.
I would remand to the circuit court on the issue of historical costs.
/s/ Helene N. White
1
Plaintiff’s counsel noted that experts had not been deposed because he and defense counsel had an
informal agreement to extend discovery beyond the deadline of October 1, 1997.
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