KING DINING INC V TRIZEC NEW CENTER DEVELOPMENT
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STATE OF MICHIGAN
COURT OF APPEALS
KING DINING, INC.,
UNPUBLISHED
May 3, 2002
Plaintiff-Appellant,
v
TRIZEC NEW CENTER DEVELOPMENT, f/k/a
ALC ENTERPRISES, INC.,
No. 230584
Wayne Circuit Court
LC No. 99-924944
Defendant-Appellee.
Before: White, P.J., and Murphy and Fitzgerald, JJ.
PER CURIAM.
Plaintiff King Dining, Inc. (KDI) is a Burger King franchisee. Robert Asmar is the
majority shareholder and president of KDI. Asmar is also the majority shareholder and president
of Asmar Development, Inc. (ADI). On August 11, 1993, defendant Trizec, as landlord, and
ADI, as tenant, entered into a five-year lease for Suite 202 of the New Center One Building in
Detroit. In 1995, a dispute arising from the terms of the lease arose between Trizec and ADI,
which resulted in the filing of at least two lawsuits and, ultimately, an arbitration award in favor
of Trizec.
KDI thereafter filed the present action against Trizec, raising claims that are identical to
the affirmative defenses and requests for set-offs raised by ADI in the earlier proceedings against
Trizec that were rejected by the arbitrator. Trizec moved for summary disposition pursuant to
MCR 2.116(C)(7), arguing that KDI’s claims were barred by the doctrine of collateral estoppel.
Following a hearing, the circuit court ruled that KDI did not have a lease with Trizec and
therefore did not have standing to pursue the claims. MCR 2.116(C)(5). The court also noted
that even if KDI did have standing, the claims arose out of the relationship with ADI, whose
rights had already been adjudicated in two prior litigations.
This Court reviews a motion for summary disposition pursuant to MCR 2.116(C)(5) and
(7) de novo to determine whether the moving party is entitled to judgment as a matter of law.
Franklin Historic District Study Committee v Village of Franklin, 241 Mich App 184, 187; 614
NW2d 703 (2000).
The lease between Trizec and ADI clearly states:
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Without Landlord’s prior written consent, Tenant will not assign all or any
of its interest under this Lease, sublet all or any part of the Premises or permit the
Premises to be used by any parties other than the Tenant and its employees.
The lease also provides that if the tenant wishes to assign or sublease, written notice must
be given to the landlord and the landlord’s consent must be provided. There is no dispute that
ADI never gave notice to Trizec nor sought its consent to assign the lease to Asmar, Inc., King
Dining, or anyone else. Thus, ADI’s lease documents purporting to sublease the premises from
“Asmar, Inc.” to “ALC Enterprises” were invalid. See Wentworth v Process Installation, Inc,
122 Mich App 452, 462-464; 333 NW2d 78 (1983) (anti-assignment clause in lease prohibited
assignment without written consent). Given the lack of any enforceable lease agreement or other
contractual relationship between Trizec and plaintiff, the trial court correctly ruled that plaintiff
did not have standing to sue Trizec.1
Affirmed.
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
1
In light of our conclusion, we need not address the issue of collateral estoppel. We note,
however, that KDI’s interests were adequately represented in the earlier litigation and that the
claims raised by KDI were considered by the arbitrator in the earlier litigation and, therefore,
collateral estoppel does preclude this relitigation.
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