BISCAYNE CORNER DELI & BAKERY EAST LLC V CAPSTONE ADVISORS
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STATE OF MICHIGAN
COURT OF APPEALS
BISCAYNE CORNER DELI & BAKERY EAST,
LLC,
UNPUBLISHED
May 18, 2004
Plaintiff-Appellant,
v
No. 246743
Wayne Circuit Court
LC No. 01-109938-CK
MC OFFICE INVESTMENTS, LLC,
Defendant-Appellee,
and
CAPSTONE ADVISORS, and FARBMAN
MANAGEMENT GROUP OF DETROIT,
Defendants.
Before: Murray, P.J., and Neff and Donofrio, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s grant of summary disposition in favor of
defendant MC Office Investments, LLC, in this breach of contract action seeking recovery for
lost business because of inadequate heating, air conditioning, and ventilation (HVAC) in
commercial space plaintiff leased from defendant. We affirm.
I
In 1996, plaintiff entered into a lease of commercial space for the operation of a deli in
the First National Building in Detroit. During renovation for the deli, plaintiff redesigned the
leased space to eliminate an interior wall so that the deli opened into a common area of the main
building. Plaintiff installed a separate HVAC system in the leased space; however, the deli
allegedly was plagued with extreme hot and cold temperatures from the time of opening.
Plaintiff maintained that although its HVAC was adequate for the deli space, the inadequate
heating and cooling system in the adjacent common facilities caused the temperatures in the deli
to rise and fall to uncomfortable levels. Plaintiff allegedly complained to the landlord, but the
problem was not corrected.
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In May 1998, defendant purchased the First National Building and assumed the rights and
obligations of the original lessor. Plaintiff allegedly pursued the heating and cooling problems
with defendant to no avail. In March 2001, plaintiff filed this action against defendants, alleging
breach of contract and breach of the covenant of quiet enjoyment/nuisance.1 Plaintiff alleged
that defendant had failed to provide adequate heating and cooling of the premises as required by
the lease and that repair work in the common facilities had interfered with plaintiff’s business
because of odors, noise, and blocked entrances. Plaintiff sought damages of $413,500 for
injuries during 1998 and 1999 and specific performance of the lease.
Defendant filed a motion for summary disposition on several grounds, including that
plaintiff failed to present sufficient evidence to support its claims and that plaintiff was estopped
from claiming damages because the HVAC claim originated in 1996 and plaintiff’s
representative, Samuel Sesi, had signed tenant estoppel certificates in 1997 and 1998,
acknowledging the landlord’s satisfactory performance under the lease. The trial court granted
defendant’s summary disposition motion in part, finding that pursuant to the lease, plaintiff’s
damages were limited to rent abatement. However, the court denied summary disposition of the
HVAC claim on the basis that plaintiff “wishe[d] to submit the testimony of customers about
inadequate heating or cooling,” which was sufficient to create a genuine issue of material fact.2
Defendant submitted a motion for reconsideration, arguing that the court erred in denying
summary disposition on the basis of plaintiff’s promise to submit testimony from customers,
which was insufficient to survive a motion for summary disposition. The court agreed and on
reconsideration, granted summary disposition in full. The court subsequently denied plaintiff’s
motion for reconsideration.
II
This Court reviews de novo a trial court's grant of summary disposition pursuant to MCR
2.116(C)(10).3 Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
Summary disposition under MCR 2.116(C)(10) is properly granted when there is no genuine
issue of material fact and the movant is entitled to judgment as a matter of law. Smith v Globe
Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). The court considers the pleadings,
affidavits, depositions, admissions and other documentary evidence in the light most favorable to
the nonmoving party. Id.
1
Defendants Capstone Advisors, and Farbman Management Group of Detroit were dismissed
from the action and are not involved in this appeal.
2
The court also found that the estoppel certificates were not dispositive because plaintiff was
claiming damages after 1998.
3
Defendant moved for summary disposition pursuant to MCR 2.116 (C)(10) and (C)(8). The
court did not specify the subrule under which summary disposition was granted. Because the
court considered evidence beyond the pleadings, we review the motion pursuant to MCR
2.116(C)(10). Blair v Checker Cab Co, 219 Mich App 667, 670-671; 558 NW2d 439 (1996).
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A party moving for summary disposition has the initial burden of supporting its motion
by affidavits, depositions, admissions or other documentary evidence. Id. at 455. The opposing
party then has the burden of showing by evidentiary proofs that a genuine issue of material fact
exists. Id. “‘Where the burden of proof at trial on a dispositive issue rests on a nonmoving
party, the nonmoving party may not rely on mere allegations or denials in the pleadings, but must
go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact
exists.’” Id., quoting Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
III
Plaintiff argues that the trial court erred in granting summary disposition. We disagree.
Plaintiff challenges the trial court’s ruling on several grounds. We are not persuaded that any of
the grounds justify reversal.
Contrary to plaintiff’s argument, defendant carried its initial burden of presenting
evidence to support its motion for summary disposition. Defendant submitted substantial
documentary evidence, including the parties’ lease; the tenant estoppel certificates; depositions
of Sesi and plaintiff’s accountant, Robert Hittie; plaintiff’s estimate of damages; and plaintiff’s
tax returns. This documentary evidence supported defendant’s position. Quinto, supra at 362.
A moving party may either submit affirmative evidence that negates an essential element of the
nonmoving party’s claim or demonstrate that the nonmoving party’s evidence is insufficient to
establish an essential element of the claim. Id. At this point, the burden shifted to plaintiff to
present evidentiary proofs in opposition to the motion for summary disposition. Smith, supra at
455.
Again, contrary to plaintiff’s argument, plaintiff failed to carry its burden in opposing
defendant’s motion. A party opposing a motion for summary disposition must set forth specific
facts at the time of the motion to show a material factual dispute. Smith, supra at 455; Maiden v
Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). Plaintiff’s cursory argument in its
five-page response to defendant’s motion for summary disposition did not meet plaintiff’s
burden.
Although Sesi’s deposition is replete with references to documentary evidence that would
support Sesi’s allegations, plaintiff did not proffer this evidence in opposition to defendant’s
motion for summary disposition. Plaintiff presented no documentary evidence to support its
argument opposing summary disposition. Plaintiff’s statements such as “[t]he motion record
demonstrates that [plaintiff] will present evidence at trial do (sic) show both the heating and air
conditioning at the Premises are unreasonably deficient” are insufficient to survive a motion for
summary disposition. A litigant’s mere pledge to establish a genuine issue of material fact at
trial is insufficient to survive a motion for summary disposition. Id. at 121.
Plaintiff argues that its citations to Sesi’s deposition, submitted by defendant in moving
for summary disposition, sufficiently responded to defendant’s motion. We disagree.
In its response to defendant’s motion for summary disposition, plaintiff cited Sesi’s
deposition in a footnote as follows:
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The deposition testimony shows that temperatures range as low in 40s, 50s
and low 60s in the winter months [Sesi p 69-70; 114] to between 95 and 100
degrees for weeks at a time in the summer months [Sesi p 72]. Biscayne has
endured frozen pipes, oven equipment so called (sic “cold”) it took hours extra to
come up to useful cooking range, conditions where employees must work and
patrons must dine with their winter coats on. [Sesi p 67-68.]
This footnote was provided for plaintiff’s factual assertion that “[t]he Premises are excessively
hot in warm summer weather and excessively cold in cold winter weather.” Plaintiff further
stated that this was an extreme, ongoing problem, that defendant was not obeying the terms of
the lease, and therefore plaintiff was entitled to judicial remedy. These general statements were
insufficient to survive defendant’s motion for summary disposition. Plaintiff has the burden of
setting forth specific facts and admissible evidence in response to defendant’s motion for
summary disposition, including issues of breach, causation, and damages. Sesi’s speculation
regarding the periods of extreme heat and cold and promises to produce customer testimony
concerning the intolerable temperatures as well as other documentation of plaintiff’s injuries do
not meet this burden.
Plaintiff’s remaining arguments are also unpersuasive. Plaintiff argues that the issue of
damages is not the subject of a (C)(10) motion. While a motion under MCR 2.116(C)(10) does
not consider whether a dispute exists regarding damages, it does not follow that an alleged
failure to establish damages, where relevant, is beyond the purview of such a motion.
Plaintiff argues that the trial court failed to consider that plaintiff was entitled to damages
for defendant’s intentional refusal to remedy the HVAC inadequacies and other business
disruptions. Plaintiff argues that the limitations on damages in the lease are unenforceable under
Uniform Commercial Code principles because they fail of their essential purpose. Finally,
plaintiff argues that it would be unconscionable to limit plaintiff’s remedy for the inadequate
HVAC system to the lease provision for repair. With the exception of the claim of
unconscionablity, plaintiff failed to raise these issues before the trial court and they are therefore
unpreserved for appellate review. Higgins Lake Prop Owners Ass’n v Gerrish Twp, 255 Mich
App 83, 117; 662 NW2d 387 (2003). Nonetheless, we conclude that these arguments fail on the
merits.
Affirmed.
/s/ Christopher M. Murray
/s/ Janet T. Neff
/s/ Pat M. Donofrio
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