ANTOINETTE BEUCHE KEMP V HOWARD & HOWARD PC
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STATE OF MICHIGAN
COURT OF APPEALS
ANTOINETTE BEUCHE KEMP,
UNPUBLISHED
January 18, 2002
Plaintiff-Appellant,
v
No. 220884
Oakland Circuit Court
LC No. 98-009817-NZ
HOWARD & HOWARD, P.C.,
Defendant-Appellee.
Before: Hood, P.J., and Murphy and Markey, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s orders denying her motion to amend her
complaint, denying her motion to extend discovery, and granting defendant’s motion for
summary disposition. We affirm.
Plaintiff, an attorney since 1973, joined defendant law firm in 1984. Approximately two
years later, plaintiff married the law firm’s president and chief executive officer (CEO), John
Michael Kemp (Kemp). In 1993, plaintiff signed an at-will employment agreement which
provided, among other things, for an annual base salary commensurate with duties assigned,
bonuses to which plaintiff may be entitled, and provisions for termination of employment that
included regular salary up to the date of termination. The agreement provided for no further
compensation upon termination of employment except as specifically authorized by the firm and
further provided that any modifications or changes must be in writing and signed by plaintiff and
the firm.
In June 1998, plaintiff and Kemp announced their plans to retire at the end of 1999. A
transition committee was established to select a new CEO and negotiate plaintiff’s role and
compensation following her retirement. Following a period of failed negotiations, plaintiff was
terminated on September 14, 1998, by defendant’s new CEO. Plaintiff filed a complaint alleging
violation of the Michigan Business Corporation Act, promissory estoppel, and violation of public
policy.
Defendant filed a motion for summary disposition. After the filing of the dispositive
motion, plaintiff filed a motion to extend discovery. At the motion to extend discovery,
plaintiff’s new counsel indicated that a short time was needed to take one or two more
depositions and “clean up.” The trial court denied the motion to extend discovery, noting that
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substitution of counsel had no impact on the scheduling order. After the denial of the motion to
extend discovery, plaintiff moved to amend her complaint. In this proposed amendment,
plaintiff alleged that Kemp, in 1994, promised benefits to her in exchange for transitioning
clients to other members of defendant law firm prior to her retirement. This complaint alleged
promissory estoppel and unjust enrichment based on Kemp’s 1994 promise, promissory estoppel
and unjust enrichment based on the 1998 promise, breach of contract, violation of public policy,
and gender discrimination. In support of the motion to amend her complaint, plaintiff merely
alleged that the amendment clarified the allegations and added two claims, breach of contract
and discrimination, that would not prejudice defendant. The trial court denied plaintiff’s motion
to amend complaint based on the timeliness of the motion, following the close of discovery, and
prejudice to defendant. In a written opinion, the trial court granted defendant’s motion for
summary disposition.
Plaintiff first argues that the trial court abused its discretion by denying her motion to
amend the complaint. We disagree. A motion to amend a complaint may be denied for the
following particularized reasons: “(1) undue delay, (2) bad faith or dilatory motive on the part of
the movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4)
undue prejudice to the opposing party by virtue of allowance of the amendment, or (5) futility of
the amendment.” Lane v Kindercare Learning Centers, Inc, 231 Mich App 689, 697; 588 NW2d
715 (1998). The prejudice must stem from the fact that new allegations are offered late, not from
the fact that they might cause the defendant to lose on the merits. Amburgey v Sauder, 238 Mich
App 228, 247; 605 NW2d 84 (1999). An amendment that restates the counts and allegations in
the first complaint or adds allegations that fail to state a claim presents an exercise in futility.
Lane, supra; Dowerk v Oxford Charter Twp, 233 Mich App 62, 76; 592 NW2d 724 (1998).
At the hearing regarding the motion to extend discovery, plaintiff did not object to
defendant’s assertion that the parties agreed to submit the motion to quash subpoenas and motion
to hold plaintiff in contempt to the court after the hearing regarding the motion for summary
disposition. Defendant then objected to any extension of discovery, noting that twenty
individuals had been deposed and plaintiff chose not to pursue an additional twenty members of
defendant law firm. In response, plaintiff requested additional time for discovery to take a
deposition or two and “maybe” request additional documentation. Plaintiff did not move to
amend her complaint prior to or at this hearing. After the motion to extend discovery was
denied, plaintiff moved to amend her complaint. This amendment merely further extended and
subdivided the theory of promissory estoppel into unjust enrichment and breach of contract and
added the new theory of gender discrimination. Under these circumstances, we conclude that the
trial court did not abuse its discretion. The amendment to the complaint merely restated and
reclassified the allegations contained in the original complaint and presented an exercise in
futility. Lane, supra. Defendant also was prejudiced by the late addition of the claim of gender
discrimination following the close of discovery. Amburgey, supra. Apart from prejudice to
defendant, the circumstances showed undue delay and dilatory motive, in that plaintiff’s
substitute counsel acknowledged that an extension of discovery was necessary to prepare the
case. It was only after the court denied plaintiff’s request for an extension of discovery that the
motion to amend was filed.
Plaintiff next argues in her statement of questions presented that the trial court abused its
discretion by denying her motion to extend discovery. However, plaintiff abandoned this issue
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by failing to discuss it in her brief. Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d
834 (1999).
Lastly, plaintiff argues that the trial court erred by granting summary disposition of
plaintiff’s promissory estoppel claim. We disagree. “The elements of promissory estoppel 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, and (3) that in fact produced
reliance or forbearance of that nature in circumstances such that the promise must be enforced if
injustice is to be avoided.” Novak v Nationwide Mutual Ins Co, 235 Mich App 675, 686-687;
599 NW2d 546 (1999). To determine whether a requisite promise existed, this Court shall
objectively examine the words and actions surrounding the transaction in question as well as the
nature of the relationship between the parties and the circumstances surrounding their actions.
Id. at 687. We apply the doctrine of promissory estoppel only where the facts are unquestionable
and the wrong to be prevented undoubted. Id.
After examining the facts and circumstances surrounding plaintiff’s retirement
negotiations, we conclude that the trial court properly granted summary disposition of the
promissory estoppel claim. Plaintiff’s employment agreement provided that she was an at-will
employee. Any changes to the terms of the employment agreement had to be in writing. Thus,
plaintiff’s status as an at-will employee was not altered by identification of a retirement date.
Plaintiff alleged that she was to receive a separation and retirement package in exchange for the
transfer of plaintiff’s good will and client relationships. However, in the employment agreement,
defendant retained the right to define, extend, and curtail services as it deemed necessary.
Additionally, the terms of any separation and retirement package were not without question.
While Kemp attempted to negotiate a written agreement for plaintiff with allies of the firm prior
to a formal retirement announcement, an agreement was not reached. Upon announcement of
plaintiff’s upcoming retirement, the issue of a benefits package was sent to the transition
committee. Plaintiff categorically rejected defendant’s last attempt at reaching an agreement.
Accordingly, the trial court properly granted defendant’s motion for summary disposition of the
promissory estoppel claim.1 Novak, supra.
Affirmed.
/s/ Harold Hood
/s/ William B. Murphy
/s/ Jane E. Markey
1
We note that plaintiff has not taken issue with the disposition of the two remaining claims in
her initial complaint.
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