MICHAEL GEARIN V CINDY ROGERS
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL GEARIN,
UNPUBLISHED
March 13, 2007
Plaintiff-Appellant,
v
No. 272569
Wayne Circuit Court
LC No. 05-518133-CZ
CINDY ROGERS and LITTLE CAESAR’S,
Defendants-Appellees.
Before: Servitto, P.J., and Talbot and Schuette, JJ.
PER CURIAM.
In this action for intentional interference with a business relationship and intentional
interference with a contract, plaintiff appeals as of right from the trial court’s order granting
defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). We affirm.
This appeal is being decided without oral argument pursuant to MCR 7.214(E).
In 2002, plaintiff was discharged as an employee of Airborne Express (“Airborne”) for
being discourteous to defendant Cindy Rogers, an employee of defendant Little Caesar’s.
Plaintiff denied being discourteous to Rogers and claimed that he acted in a proper manner.
Plaintiff ’s complaint included a single count of intentional interference based on separate
theories of interference with his business relationship with Airborne and interference with
contractual relations. In particular, plaintiff alleged:
13. On the day in question Gearin delivered parcels from Airborne to
Little Caesar’s in his normal manner.
14. Gearin was in the process of delivering the parcels to Little Caesar’s
Detroit Business office when a guard working for Little Caesar’s asked him to
move his vehicle from the front of Little Caesar’s business office.
15. Since Gearin was in the process of delivering the parcels he chose to
immediately deliver the parcels and then promptly move his vehicle.
16.
delivery.
Gearin did move his vehicle immediately upon completing his
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17. Rogers became upset at Gearin delivering his parcels before moving
his vehicle and became abusive to Gearin in speaking to him in a loud and
aggressive manner.
18. Weeks before the incident alleged by Rogers she telephoned Airborne
personnel that if Gearin was not removed by Airborne Little Caesar’s would
“drop Airborne.”
19. Rogers did not like Gearin and decided to exercise her authority to
have him discharged by Airborne.
20. Rogers did not have a valid reason to demand that Airborne discharge
Gearin.
21. Rogers’ intent was to interfere with Gearin’s employment.
22. Rogers has a history of telephoning employers of individuals with
whom she has a dislike in an effort to create a problem for them with their
employers.
23. When Rogers telephoned Airborne she knew that Gearin had a valid
business and contractual relationship with Airborne.
24. When Rogers telephoned Airborne she intentionally caused Gearin’s
discharge, which resulted in Gearin losing his job and his wages and benefits.
The trial court granted defendants’ motion for summary disposition under MCR
2.116(C)(8) and (C)(10). This Court reviews a trial court’s summary disposition decision de
novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion
under MCR 2.116(C)(8) tests the legal sufficiency of the plaintiff’s complaint by the pleadings
alone. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). The motion should be
granted only if the claims are so clearly unenforceable as a matter of law that no factual
development could justify recovery. Id. at 431-432.
A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence
submitted by the parties. MCR 2.116(G)(5). Summary disposition should be granted if, except
“with regard to the amount of damages, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Babula v Robertson, 212 Mich App 45, 48; 536
NW2d 834 (1995).
A claim for tortious interference with a business relationship differs from a claim for
tortious interference with a contract. Badiee v Brighton Area Schools, 265 Mich App 343, 365367; 695 NW2d 521 (2005). Under both theories, however, the plaintiff must prove wrongful
conduct or malice:
In order to establish tortious interference with a contract or business
relationship, plaintiffs must establish that the interference was improper. Patillo v
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Equitable Life Assurance Society of the United States, 199 Mich App 450, 457;
502 NW2d 696 (1992). In other words, the intentional act that defendants
committed must lack justification and purposely interfere with plaintiffs’
contractual rights or plaintiffs’ business relationship or expectancy. Winiemko v
Valenti, 203 Mich App 411, 418 n 3; 513 NW2d 181 (1994) (citations omitted);
Feldman v Green, 138 Mich App 360, 369; 360 NW2d 881 (1984). The
“improper” interference can be shown either by proving (1) the intentional doing
of an act wrongful per se, or (2) the intentional doing of a lawful act with malice
and unjustified in law for the purpose of invading plaintiffs’ contractual rights or
business relationship. Id. [Advocacy Organization for Patients & Providers v
Auto Club Ins Ass’n, 257 Mich App 365, 383; 670 NW2d 569 (2003).]
Where a defendant’s actions are motivated by legitimate business reasons, its actions do not
constitute improper motive or interference, and are not wrongful per se under either theory.
Badiee, supra at 366; see also Michigan Podiatric Medical Ass’n v Nat’l Foot Care Program,
Inc, 175 Mich App 723, 736; 438 NW2d 349 (1989); Formall, Inc v Community Nat’l Bank of
Pontiac, 166 Mich App 772, 780; 421 NW2d 289 (1988).
Plaintiff correctly observes that summary disposition is not appropriate in cases involving
a witness’s credibility, intent, or state of mind, and that a trial court is not permitted to determine
disputed facts when deciding a motion for summary disposition. Downey v Charlevoix Co Bd of
Co Rd Comm’rs, 227 Mich App 621, 626; 576 NW2d 712 (1998); Arbelius v Poletti, 188 Mich
App 14, 18; 469 NW2d 436 (1991). Contrary to what plaintiff argues, however, the trial court
did not make an improper finding of fact whether Rogers asked Airborne to fire plaintiff. In her
deposition, Rogers testified that she specifically told plaintiff’s supervisor during their telephone
call, before he asked her to write out a statement, that she did not want anyone to lose their job
over the incident. Further, Rogers’s email, on which plaintiff relies, also discloses that Rogers
never made a request that Airborne fire plaintiff. In short, plaintiff failed to provide any factual
support for his claim that Rogers asked Airborne to fire plaintiff.
The submitted evidence disclosed that Rogers had legitimate business reasons for
complaining to Airborne about the quality of service Little Caesar’s was receiving from Airborne
through plaintiff.
Plaintiff argues that the trial court erred by rejecting his claim that his violation of Little
Caesar’s parking policy was a mere pretext to have him discharged. Plaintiff argues that there
was evidence that Little Caesar’s did not have a parking policy because other drivers were
permitted to park where he had parked before he was fired and have continued to park in front of
the building after he was discharged. Plaintiff’s argument misconstrues the record. In his
deposition, plaintiff testified that he and other drivers were permitted to park in a “no parking”
area before the incident. But plaintiff’s supervisor testified that he was aware of a parking policy
in effect for Little Caesar’s. Even if plaintiff was not personally aware of the policy, or of
anyone who was asked to adhere to the policy, this does not prove malice on the part of
defendants to have him fired from his position. And even if Little Caesar’s did not uniformly
enforce a parking policy, there is no evidence that Rogers used the policy as a pretext to have
plaintiff fired from his job with Airborne. As the trial court noted, the mere fact that Rogers
complained about plaintiff and that plaintiff was discharged does not alone prove that Rogers
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acted with malice, and the evidence otherwise established that Rogers had legitimate business
interests in complaining to plaintiff’s employer about plaintiff’s conduct.
The trial court properly dismissed plaintiff’s claim for intentional interference with a
business relationship under MCR 2.116(C)(10).
Plaintiff also argues that the trial court erred in dismissing his claim for intentional
interference with a contract under MCR 2.116(C)(8).
In his complaint, plaintiff combined this theory with his claim for intentional interference
with a business relationship and alleged that he had both a valid business relationship and
contractual relationship with Airborne. Because plaintiff’s contractual relationship claim was
not based on any new facts, we conclude that dismissal was warranted for the same reasons that
the business relationship claim was dismissed. Under either theory, plaintiff was required to
prove malice. Because there was no genuine issue of material fact whether Rogers acted with
malice or without justification in complaining to plaintiff’s employer about his conduct,
summary disposition of the contractual relationship claim was warranted under MCR
2.116(C)(10).1
Affirmed.
/s/ Deborah A. Servitto
/s/ Michael J. Talbot
/s/ Bill Schuette
1
The fact that the trial court dismissed plaintiff’s tortious interference with a contract claim
under MCR 2.116(C)(8), not MCR 2.116(C)(10), does not require reversal, because the right
result was reached. See The Detroit News, Inc v Policemen & Firemen Retirement Sys of the
City of Detroit, 252 Mich App 59, 66; 651 NW2d 127 (2002).
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