BERO MOTORS INC V GENERAL MOTORS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
BERO MOTORS, INC,
UNPUBLISHED
October 2, 2001
Plaintiff-Appellant,
v
No. 224190
Delta Circuit Court
LC No. 98-014256-CK
GENERAL MOTORS CORPORATION,
Defendant-Appellee.
Before: Sawyer, P.J., and Smolenski and Whitbeck, JJ.
WHITBECK, J. (concurring in part and dissenting in part).
I concur in the majority opinion to the extent that it affirms the portion of the trial court’s
order granting summary disposition with respect to plaintiff Bero Motors’ claims that defendant
General Motors Corporation was negligent and breached its fiduciary duty. I respectfully dissent
from the majority opinion to the extent that it reverses the portion of the trial court’s order
granting summary disposition with respect to Bero Motors’ claims involving breach of oral
contract and promissory estoppel. I would affirm summary disposition for those claims as well.
They are the only claims I address in this opinion.
I. Basic Facts And Procedural History
General Motors’ Year 2000 Plan, a national program designed to restructure and relocate
General Motors dealerships, as well as take other steps to improve their competitiveness,
precipitated this case. In the 1990s, there were three automobile dealerships in Delta County
selling General Motors products and parts. Bero Motors sold the Pontiac and Buick product
lines, Town and Country Motors sold Oldsmobile, Cadillac, and GMC vehicles,1 and Coyne was
the dealer for Chevrolets. Under the Year 2000 Plan, one dealership would sell Pontiac, Buick
and GMC vehicles and the other would sell the Chevrolet, Oldsmobile, and Cadillac product
lines. Thus, because Town and Country Motors intended to sell its business, this plan presented
Bero Motors with an opportunity to pursue its longstanding goal of acquiring a GMC franchise.
Though Bero Motors and Town and Country Motors engaged in negotiations, they were unable
to reach an agreement on an appropriate purchase price.
1
Town and County Motors also sold Toyota vehicles.
-1-
Representatives from Bero Motors and General Motors met in October 1996 to discuss
the Year 2000 Plan. Allegedly, General Motors’ representatives made an oral promise that Bero
Motors would have the opportunity to match any offer other potential buyers made for Town and
Country Motors. General Motors was in a position to allow this intervention into a transaction
between Town and Country Motors and a third party because General Motors had a right of first
refusal regarding any sale of Town and Country Motors’ franchise, which it reportedly intended
to allow Bero Motors to exercise in its stead.2 Unbeknownst to Bero Motors, in December 1997,
General Motors approved a sale between Town and Country Motors and a third party for the
dealership’s franchise, stock, and assets. Bero Motors, therefore, never had an opportunity to
exercise General Motors’ right of refusal with regard to that sale, contrary the alleged oral
promise General Motors’ representatives made.
In March 1998, Bero Motors sued General Motors, seeking recovery under four distinct
legal theories: breach of oral contract, promissory estoppel, negligence, and breach of fiduciary
duty. General Motors moved for complete summary disposition pursuant to MCR 2.116(C)(10).
General Motors argued that the terms of its dealer sales and service agreement (dealer
agreement) with Bero Motors was binding in this situation, and prevented Bero Motors from
enforcing anything but a written agreement. General Motors also pointed to a December 11,
1997, letter between it and Bero Motors clarifying that their discussions were preliminary, that
no agreements existed at that time, and that no agreements would exist unless written. The trial
court concluded that “[t]he plain language of the contract unambiguously indicates that it is
intended to regulate the entirety of the business relationship of the parties executing the
[dealership] Agreement.” Accordingly,
[General Motors] properly relies on the last paragraph in Section 17.11 of the
Agreement as being a prohibition on prospective oral promises as it expressly
mandates that any changes must meet two conditions to be biding or enforceable.
First, the change or addition must be in writing, and second, it must be signed by
certain GM and Bero Motors representatives.” The promise made in October,
1996 was not in writing nor was it signed.
The trial court also held that the dealer agreement controlled the promissory estoppel claim
because it arose out of the same oral promise. Thus, the trial court held that summary disposition
was appropriate for that claim as well.
II. Standard Of Review
Appellate courts review de novo whether a trial court properly granted or denied a motion
for summary disposition.3
2
For purposes of the motion for summary disposition, General Motors accepted the allegation as
true.
3
Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
-2-
III. Legal Standards
A motion for summary disposition under MCR 2.116(C)(10) tests the factual
underpinnings of a claim other than an amount of damages, and the deciding court considers all
the evidence, affidavits, pleadings, admissions, and other information available in the record.4
The deciding court must look at all the evidence in the light most favorable to the nonmoving
party, who must be given the benefit of every reasonable doubt.5 Only if there is no factual
dispute, making the moving party entitled to judgment as a matter of law, would summary
disposition be appropriate.6
Of course, the nature of this appeal requires this Court to consider the effect the written
dealer agreement had on the breach of oral contract and promissory estoppel claims. Thus, the
standards this Court applies when construing contracts are also relevant:
The primary goal of contract interpretation is to honor the intent of the
parties. UAW-GM Human Resource Center v KSL Recreation Corp, 228 Mich
App 486, 491; 579 NW2d 411 (1998). If the contract language is clear and
unambiguous, then its meaning is a question of law for the court to decide. Id.
“As a general rule, where terms having a definite legal meaning are used in a
written contract, the parties to the contract are presumed to have intended such
terms to have their proper legal meaning, absent a contrary intention appearing in
the instrument.” Nationwide Mut Fire Ins Co v Detroit Edison Co, 95 Mich App
62, 64; 289 NW2d 879 (1980); 17A Am Jur 2d, Contracts, § 362, pp 384-385.[7]
Further, to interpret a contract, courts may not look at small pieces of the agreement divorced
from the context of the contract as a whole; rather, it is a “well-established principle that
contracts are to be construed in their entirety.”8 Overall, these standards for contract
construction ordinarily intersect with the analytical framework for summary disposition at the
place where the court considering the motion must determine whether a question of material fact
exists, that is, whether the contract is clear, binding, and dispositive of the claims at issue.9
IV. Binding Dealer Agreement
As the trial court recognized, the lengthy dealer agreement between Bero Motors and
General Motors includes more than one section relevant to defining the scope of their business
relationship, including the way in which they could enter other agreements. For instance, the
parties took the wise step of memorializing the purpose of the dealer agreement. After
4
MCR 2.116(G)(5); Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
5
Atlas Valley Golf & Country Club, Inc v Village of Goodrich, 227 Mich App 14, 25; 575 NW2d
56 (1998).
6
See Auto Club Ins Ass’n v Sarate, 236 Mich App 432, 437; 600 NW2d 695 (1999).
7
Conagra, Inc v Farmers State Bank, 237 Mich App 109, 132; 602 NW2d 390 (1999).
8
Perry v Sied, 461 Mich 680, 689; 611 NW2d 516 (2000).
9
See Henderson v State Farm Fire & Casualty Co, 460 Mich 348, 353; 596 NW2d 190 (1999).
-3-
acknowledging the close relationship between General Motors’ dealers, like Bero Motors, and its
divisions,[10] like the Pontiac Division that worked with Bero Motors, the dealer agreement
indicated that it
(i) authorizes Dealer to sell and service Division’s Products and represent itself as
a Division dealer, (ii) states the terms under which Dealer and Division agree to
do business together, (iii) states the responsibilities of Dealer and Division to
each other and to customers; and (iv) reflects the mutual dependence of the
parties in achieving their business objectives.[11]
While some may question the prudence of having such all-encompassing language in a dealer
agreement, the plain language in this section purports to establish, without limitation, a binding
framework for Bero Motors’ whole relationship with General Motors.
The contract reflects its comprehensive nature in several sections of Article 4. Section
4.4.1, entitled “Facilities-Locations,” limits Bero Motors to operating only from locations and
facilities that General Motors approves. This provision granted General Motors significant
authority concerning how Bero Motors established itself. Section 4.4.2, entitled “FacilitiesChanges in Location or Use of Premises,” states:
If Dealer wants to make any change in location(s) or Premises, or in the
uses previously approved for those Premises, Dealer will give Division written
notice of the proposed change, together with the reasons for the proposal, for
Division’s evaluation and final decision in light of dealer network planning
considerations. No change in location or in the use of Premises, including
addition of any other vehicle lines, will be made without Division’s prior written
authorization.
Before Division requires any changes in Premises, it will consult with
Dealer, indicate the rationale for the change, and solicit Dealer’s views on the
proposal. If after such review with Dealer, Division determines a change in
Premises or location is appropriate, the Dealer will be allowed a reasonable time
to implement the change. Any such changes will be reflected in a new Location
and Premises Addendum or other written agreement executed by Dealer and
Division.
Nothing herein is intended to require the consent or approval of any dealer
to a proposed relocation of any other dealer.[12]
These provisions clearly gave General Motors authority over future decisions concerning the
Bero Motors dealership, even if those decisions were not specifically contemplated at the time
10
According to General Motors, “Division” refers to one of its internal divisions designated to
administer the dealer agreement. Thus references to “Division” include General Motors itself.
11
Emphasis added.
12
Emphasis added.
-4-
the parties entered into the dealer agreement. Such an approach fit well with the purpose of the
agreement as establishing an all-embracing contractual relationship between the parties.
Article 12, which addresses changes in management and ownership, only reinforced the
overarching role the dealer agreement played in the relationship between General Motors and
Bero Motors. Section 12.3.1, entitled “Right of First Refusal to Purchase-Creation and
Coverage,” states:
If a Dealer submits a proposal for a change of ownership under Article
12.2, Division will have a right of first refusal to purchase the dealership assets
regardless of whether the proposed buyer is qualified to be a dealer. If Division
chooses to exercise this right, it will do so in its written response to Dealer’s
proposal. Division will have a reasonable opportunity to inspect the assets,
including real estate, before making its decision.
This provision, which is likely standard in General Motors’ agreements with its dealers, could
have facilitated Bero Motors’ purchase of Town and Country Motors. More importantly, this
right of first refusal demonstrates the cradle-to-grave nature of the contract. Not only did the
contract govern the formation of the dealership and its changes while in existence, the binding
nature of the contract also persisted through its sale.
As the majority correctly observes, § 17.11 limits the scope of the dealer agreement to
“matters covered herein.” However, as the portions of the contract that I have referred to
demonstrate, the dealer agreement covers a great many matters. Section 17.11 makes no attempt
to specify what those matters are. In particular, the dealer agreement does not specify that it
concerns only Bero Motors’ business dealings concerning the Buick and Pontiac vehicle lines.
In light of the contract read as whole, I conclude that Bero Motors and General Motors intended
to bind themselves to the terms of the dealer agreement in their dealings with each other so long
as the dealer agreement was effective. Thus, from my perspective, if the dealer agreement
includes provisions relevant to the claims in this case, they must be applied as written. This can
only be what the parties intended.
V. Breach Of Oral Contract And Promissory Estoppel
From my perspective, the dispositive issue concerning Bero Motors’ breach of oral
contract claim and promissory estoppel claim is whether the dealer agreement permitted the
parties to enter into a binding agreement concerning the Town and Country Motors franchises
without memorializing such an agreement in writing. Both oral contracts and oral promises
enforceable on an estoppel theory require the existence of an oral pledge.13 Consequently, it is
possible to examine the dealer agreement for language that would prevent an oral pledge from
being enforceable without distinguishing between whether the theory of liability at issue is
breach of contract or promissory estoppel.14
13
See, generally, Rood v General Dynamics Corp, 444 Mich 107, 118-119; 507 NW2d 591
(1993); State Bank of Standish v Curry, 442 Mich 76, 83-86; 500 NW2d 104 (1993).
14
See State Bank of Standish, supra at 87-88.
-5-
Given the comprehensive nature of the dealer agreement, it is not surprising that several
of its provisions explicitly require General Motors’ assent to certain decisions in writing, thereby
excluding the possibility of binding oral promises. The most significant provision is § 17.11,
entitled “Sole Agreement of Parties,” which states:
Except as provided in this Agreement, Division has made no promises to
Dealer, Dealer Operator, or dealer owner and there are no other agreements or
understandings, either oral or written, between the parties affecting this agreement
or relating to any of the subject matters covered by this Agreement.
Except as otherwise provided herein, this Agreement cancels and
supersedes all previous agreements between the parties that relate to any matters
covered herein, except as to any monies which may be owing between the parties.
No agreement between Division and Dealer which relates to matters
covered herein, and no change in, addition to (except for the filling in of blank
lines) or erasure of any printed portion of this Agreement, will be binding unless
permitted under the terms of this Agreement or related documents, or approved in
a written agreement executed as set forth in Division’s Dealer Sales and Service
Agreement.[15]
This provision unambiguously requires agreements between Bero Motors and General Motors to
be in writing. Either the agreement in dispute is in writing within the dealer agreement itself, or
related documents, or the parties must render additional agreements in a new writing. This is a
logical requirement given the complexities of a franchise relationship and the relative size of the
parties. It requires no citation to authority to suggest that General Motors is an extraordinarily
large corporation, with many agents, officers, and representatives. General Motors would have
virtually no knowledge of or control over its operations if it did not require its agreements with
dealers to be in writing. As this case proves, Bero Motors also has a significant business interest
in having its agreement rendered in writing so that it can enforce its contractual rights against a
corporation as large as General Motors. At a lesser level, Bero Motors also has an interest in
writing its agreements because of the number of different individuals it may have to work with
within General Motors’ many divisions. For example, by having its agreements in writing, Bero
Motors would have no problem proving to its different contacts in both the Buick and Pontiac
divisions that it was permitted to take some action. There is nothing implicit in the nature of
these two businesses and their workings that would contradict the requirement that other
agreements be in writing.
Nevertheless, the majority holds that this writing requirement applies only to Bero
Motors’ dealings with General Motors concerning its Buick and Pontiac franchises
because of the language referring to “matters covered herein.” However, as I noted
above, the dealer agreement covers many matters. In particular, § 4.4.2 prohibits Bero
Motors from changing the location of its dealership or the way it used its premises,
“including addition of any other vehicle lines,” without first receiving General Motors’
15
Emphasis added.
-6-
permission in writing. This put to rest any question concerning whether the dealer agreement
solely affected Bero Motors’ relationship with General Motors concerning the Buick and Pontiac
product lines. The dealer agreement, though initially drafted to guide Bero Motors’
acquisition of Buick and Pontiac franchises, explicitly recognized and addressed what
must happen if Bero Motors ever decided to expand or change its operations in a way
that added a new product line to the dealership. In this regard, it is important to remember
that Bero Motors’s representatives were not meeting with General Motors’
representatives solely because they wished acquire Town and Country Motors’
franchises by exercising General Motors’ right of first refusal.
Bero Motors’
representatives met with General Motors’ representatives because they had to acquire
General Motors’ written permission to acquire those franchises. Thus, whether an
agreement concerning Town and Country Motors had to be in writing was a “matter
covered” in the dealer agreement.
Bero Motors has not provided any evidence that it received a written promise
concerning the right to purchase Town and Country Motors’ franchises, from which this
Court could then also infer General Motors’ assent to the transaction. In fact, the
breach of contract and promissory estoppel theories Bero Motors advanced in its
complaint rely on unwritten promises. Thus, I conclude that summary disposition of
these claims was proper.
VI. The Michigan Dealer Act And Pung
To support their narrow view of the dealer agreement’s scope, the majority looks to the
Michigan dealer act16 (MDA) and Pung v General Motors.17 This, I submit, misconceives of our
obligation to read contracts as a whole.18 Additionally, I suggest that the majority misinterprets
the MDA’s19 scope to stretch Pung’s conclusion regarding standing to sue under the MDA to fit
these very different circumstances.
I agree with the majority’s implicit conclusion that General Motors is a “manufacturer”
under the MDA.20 I also agree with the majority’s determination that, pursuant to Pung and the
plain language of the MDA, Bero Motors is an existing “new motor vehicle dealer”21 with
16
MCL 445.1561 et seq.
17
Pung v General Motors, 226 Mich App 384; 573 NW2d 80 (1997).
18
See Perry, supra at 689.
19
The amendments of the Michigan dealer act took effect after the trial court granted summary
disposition, making them irrelevant in this case. See 1998 PA 456. Thus, I cite the statutes as
they appeared at the time relevant to this case.
20
MCL 445.1564(2) (“‘Manufacturer’ means any person who manufactures or assembles new
motor vehicles; or any distributor, factory branch, or factory representative.”).
21
MCL 445.1565(2) (“‘New motor vehicle dealer’ means a person who holds a dealer agreement
granted by a manufacturer or distributor for the sale of its motor vehicles, who is engaged in the
business of purchasing, selling, exchanging, or dealing in new motor vehicles and who has an
(continued…)
-7-
respect to its Buick and Pontiac vehicle sales, while it was concurrently a “proposed new motor
vehicle dealer”22 with respect to the GMC franchise it was attempting to acquire from Town and
Country Motors. Nor do I have any quarrel with the majority’s conclusion that the existing
dealer agreement between Bero Motors and General Motors concerning the Buick and Pontiac
vehicle lines is a “dealer agreement.”23 Consequently, the majority’s conclusion that the MDA
generally governed the business relationship between the parties does not disturb me in the least.
Nevertheless, the majority fails to explain what portion of the MDA limits the terms of a
dealer agreement to the vehicle lines at issue when the parties executed the dealer agreement.
MCL 445.1562(2) simply states that a “dealer agreement” is
the agreement or contract in writing between a manufacturer, distributor, and a
new motor vehicle dealer, which purports to establish the legal rights and
obligations of the parties to the agreement or contract with regard to the purchase
and sale of new motor vehicles and accessories for motor vehicles.
This statute in no way attempts to define what those “legal rights and obligations” are, much less
limit them to a particular product franchise. Rather, the parties must define those “legal rights
and obligations.” Here, General Motors and Bero Motors did just that, including the obligation
to put their agreements in writing. If another provision within the MDA would create this
limitation on the substance of a dealer agreement, the majority has not identified it.
The majority reaches out to Pung to fill this gap and impose a limit on the scope of the
dealer agreement between General Motors and Bero Motors. Pung presents facts that are almost
opposite from the circumstances in this case. In Pung, M&M Chevrolet, Inc., and Archie
Oldsmobile/AMC, Inc., both of which held General Motors franchises, entered into an agreement
whereby M&M would buy Archie’s assets, essentially acquiring Archie’s Oldsmobile
franchise.24 However, General Motors had a contractual right with respect to both franchisees to
approve or disapprove the transaction.25 When General Motors refused to approve the asset sale,
M&M and Archie sued General Motors for violating a provision of the MDA that is not
explicitly mentioned in the appellate opinion.26 The sole issue concerning the MDA on appeal
was whether M&M and Archie had standing to sue under the MDA.27 This Court determined
(…continued)
established place of business in this state.”); see also MCL 445.1565(3) (“‘Person’ means a
natural person, partnership, corporation, association, trust, estate, or other legal entity.”).
22
MCL 445.1565(4) (“‘Proposed new motor vehicle dealer’ means a person who has an
application pending for a new dealer agreement with a manufacturer or distributor. Proposed
motor vehicle dealer does not include a person whose dealer agreement is being renewed or
continued.”).
23
MCL 445.1562(2).
24
Pung, supra at 385.
25
Id.
26
Id. at 384-386.
27
Id. at 386-388.
-8-
that M&M was acting as a “proposed new motor vehicle dealer” with respect to the assets it was
attempting to acquire from Archie, and thus lacked standing to sue because MCL 445.1580(2)
limited the right to sue to “new motor vehicle dealers.”28 In explanation of the distinction
between existing and proposed dealers for the purposes of standing that it was acknowledging,
the Court remarked:
Such a distinction by the Legislature is reasonable. First, there is no right
to be a dealer for defendant, or any other manufacturer for that matter. Unless
defendant is engaging in discriminatory conduct prohibited by a civil rights
statute, an issue not present here, defendant is free to decline to extend a
dealership to an applicant. Simply put, defendant is not obligated to allow
someone to sell its vehicles merely because the applicant desires to do so.
An existing dealership, on the other hand, is not quite in the same position.
The existing dealership has made an investment, of both time and money, in an
existing business. Furthermore, while the dealership is wholly dependent on the
franchise from the manufacturer, the manufacturer can easily exist without any
individual dealership. Because of this economic domination, the MDA is
designed to protect dealerships.
However, because prospective dealerships have not yet made that
investment, it is reasonable for the Legislature to determine that they do not need
to be protected. In other words, the MDA is designed to prevent a manufacturer
from abusing those with whom it has chosen to do business, but does not abrogate
the manufacturer's right to choose with whom to do business.
With respect to M & M in this situation, we believe that M & M must be
treated as a prospective new dealership. The fact that it is an existing dealership
has nothing to do with its proposed purchase of Archie Oldsmobile's assets. M &
M would be in the same position that it otherwise would be had Archie
Oldsmobile never decided to sell. Defendant's decision in no way restricts or
impedes M & M's ability to exercise and enjoy its existing franchise agreement.
The fact that it cannot expand its business by taking over the Archie Oldsmobile
dealership is no different than if another company, not currently a vehicle dealer,
sought to purchase Archie Oldsmobile and defendant declined to grant it the
franchise. In short, the MDA provides no remedy to an unsuccessful proposed
purchaser, regardless of whether it is an existing dealership or not.
In sum, because the transaction at issue here does not involve M & M's
rights under its existing dealership agreement with defendant, its status as a new
vehicle dealer under that existing dealership agreement is irrelevant to this case.
Rather, it is in the same situation as any other prospective new vehicle dealer, a
28
Id. at 386.
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group that has no standing under the MDA and to whom the MDA grants no
remedies.[29]
I grant that the dealer-manufacturer relationship in Pung and this case appears similar. It
is possible, if not probable, that the dealer agreements between General Motors and the
dealerships in Pung and the dealer agreement in this case are substantially alike. However, there
are sufficient distinctions between this case and Pung that lead me to conclude that Pung does
not require this Court to interpret every dealer agreement into which General Motors enters as
irrelevant to subsequent business transactions between General Motors and its franchisees.
First, and most obviously, this case does not involve a standing question related to the
MDA. Bero Motors has not sued under the MDA, which is what happened in Pung. Second,
unlike M&M and Archie, Bero Motors and Town and Country Motors never consummated an
agreement. Therefore, here, General Motors was never presented with an opportunity to exercise
its right to veto such an agreement.
Third, the Pung opinion does not reveal any provisions of the existing dealer agreement
that were at issue in that case. Courts relying on the Pung opinion must take at face value the
Pung panel’s representations that M&M’s existing dealer agreement “had nothing to do with its
proposed purchase of Archie Oldsmobile’s assets” and that General Motors’ decision to veto the
transaction “in no way restrict[ed] or impede[d] M&M’s ability to exercise and enjoy its existing
franchise agreement.”30 Yet, these assertions are telling in their own way. They revealed the
central premise of the Court’s reasoning in Pung. This premise was that M&M’s rights under
the specific terms of the existing dealer agreement for the Chevrolet franchise were not
implicated in the attempted Oldsmobile asset sale. Presumably, had M&M’s rights or General
Motors’ rights under the existing dealer agreement been implicated in the proposed asset sale,
the Court would have concluded that those express terms controlled the outcome of the case,
thereby recognizing M&M’s standing under the MDA. Having reviewed the terms of the dealer
agreement between Bero Motors and General Motors, I am convinced that there are terms in the
dealer agreement that are relevant and applicable to this action because they address the
circumstances presented. Consequently, I see no reason for this Court to look to the analysis in
Pung while ignoring the terms of the dealer agreement in this case.
More importantly, if Pung does apply, it does so for a reason or in a way that the majority
does not acknowledge. Specifically, in Pung this Court allowed General Motors to exercise veto
power established in an existing dealer agreement over a transaction not directly related to the
franchise granted in that agreement. In other words, M&M’s existing dealer agreement in Pung
evidently gave it the right to sell Chevrolet products while allowing General Motors to control its
expansion into other product lines, like the Oldsmobile franchise Archie attempted to sell M&M.
The Pung panel concluded that the Chevrolet franchise dealer agreement had no relationship to
M&M’s proposed move to selling Oldsmobile products. Nevertheless, the Court still allowed
General Motors to exercise the veto right it had solely because it was established within the
29
Id. at 386-388 (emphasis added and citations omitted).
30
Id. at 387.
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context of the Chevrolet franchise dealer agreement and even though that veto right was
exercised over the supposedly unrelated Oldsmobile transaction.
This is exactly what I perceive to be allowed under the plain language of the dealer
agreement between Bero Motors and General Motors here. I grant that the issue in this case is
whether General Motors can be bound by an oral pledge concerning expanding the vehicle lines
Bero Motors could sell, not the ultimate approval or disapproval of a transaction. Yet General
Motors’ right to insist on written agreements appears in the portions of the dealer agreement that
expressly give it authority over this sort of product line expansion by Bero Motors. This Court in
Pung concluded that General Motors was entitled to summary disposition31 because the existing
dealer agreement gave it the “right to choose with whom to do business”32 even when a product
line franchise not created in the existing dealer agreement was at issue. I do not see how it can
now limit General Motors’ similar rights in this case. General Motors’ right to insist that its
agreement be in writing stems every bit as much from the existing dealer agreement with Bero
Motors as its right to veto a product line expansion stemmed from the existing dealer agreement
in Pung.
In summary, I cannot join the majority concerning breach of oral contract and promissory
estoppel because the opinion: (1) ignores the controlling language in the existing dealer
agreement between Bero Motors and General Motors, (2) has not explained which portion of the
MDA would limit the rights of the parties to set the terms of existing dealer agreement so that it
would govern their business relationship in a comprehensive manner, and (3) misapplies Pung to
read such a limitation into the MDA.
VII. Conclusion
We live in a day and age in which business is so complex that a shake of the hand or a
spoken promise is not enough to prevent confusion or misinterpretations, even when all parties
act in good faith. Consequently, it makes perfect sense that General Motors and Bero Motors
would choose to require that all agreements within the context of their business relationship as
established in the original dealer agreement should be written. Had Bero Motors been in a
position to insist that General Motors could not enforce the terms of an alleged oral pledge, I
would be equally committed to what I perceive to be the simple enforcement of the parties’
intent as clearly expressed in the dealer agreement. Thus, I would affirm the trial court’s
decision to grant summary disposition to General Motors on the breach of oral contract and
promissory estoppel claims.
/s/ William C. Whitbeck
31
Id. at 388.
32
Id. at 387.
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