DAVID KOCENDA V CITY OF TROY
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID KOCENDA,
UNPUBLISHED
May 11, 2010
Plaintiff-Appellant,
v
CITY OF TROY, CHARLES CRAFT, EDWARD
MURPHY, RICHARD HAY, COLLEEN MOTT,
CHARLES PAPPAS, and RICHARD ROSSMAN,
No. 290346
Oakland Circuit Court
LC No. 2007-085524-CZ
Defendants-Appellees,
and
ELLEN LOVEJOY,
Defendant.
Before: CAVANAGH, P.J., and O’CONNELL and WILDER, JJ.
PER CURIAM.
Plaintiff appeals by leave granted1 an order denying his motion to amend his complaint
against defendants-appellees.2 We affirm.
Initially, we note that the only issue that plaintiff raises in his question presented is
whether the trial court should have permitted him to “amend his Complaint to include a claim of
tortious interference with prospective contractual relations.” However, this Court granted
plaintiff leave to appeal “limited to the issues concerning the circuit court’s denial of plaintiff’s
motion to amend his complaint to allege a claim for tortious interference with a business
relationship.” Accordingly, we are not required to consider plaintiff’s claim on appeal because
we did not grant plaintiff leave to address whether the trial court should have permitted him to
1
Kocenda v City of Troy, unpublished order of the Court of Appeals, entered May 21, 2009
(Docket No. 290346).
2
We will refer to defendants-appellees simply as “defendants” for the balance of this opinion.
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amend his complaint to include a claim of tortious interference with prospective contractual
relations. Further, because plaintiff failed to mention the issue for which he was granted leave to
appeal in his statement of questions presented, as required by MCR 7.212(C)(5), we are not
compelled to review the question whether the trial court should have permitted plaintiff to amend
his complaint to include a claim of toritous interference with a business relationship. Joerger v
Gordon Food Service, 224 Mich App 167, 172; 568 NW2d 365 (1997).
Regardless, we will briefly address on the merits the only issue for which leave to appeal
has been granted, namely, whether the trial court erred in refusing to grant plaintiff leave to
amend his complaint to add a claim for tortious interference with a business relationship. A trial
court’s decision regarding a party’s motion to amend his pleadings is reviewed for an abuse of
discretion. Wormsbacher v Phillip R Seaver Title Co, Inc, 284 Mich App 1, 8; 772 NW2d 827
(2009). “[W]e defer to the trial court’s judgment, and if the trial court’s decision results in an
outcome within the range of principled outcomes, it has not abused its discretion.” Id.
Leave to amend pleadings should be freely given when justice so requires. MCR
2.118(A)(2); Miller v Chapman Contracting, 477 Mich 102, 105; 730 NW2d 462 (2007)
(quotations omitted). Leave to amend should be denied only for particularized reasons, such as
undue delay, bad faith or dilatory motive on the movant’s part, repeated failure to cure
deficiencies by amendment previously allowed, undue prejudice to the opposing party, or
futility. MCR 2.118(A)(2); Miller, 477 Mich at 105. “The trial court must specify its reasons for
denying the motion; failure to do so requires reversal unless the amendment would be futile.”
Dowerk v Oxford Charter Twp, 233 Mich App 62, 75; 592 NW2d 724 (1998). “A determination
of futility must be based on the legal insufficiency of the claim on its face.” Liggett Restaurant
Group, Inc v Pontiac, 260 Mich App 127, 139; 676 NW2d 633 (2003). “An amendment is futile
where the paragraphs or counts the plaintiff seeks to add merely restate, or slightly elaborate on,
allegations already pleaded.” Dowerk, 233 Mich App at 76. In at least one case, this Court went
beyond the face of the complaint to uphold a trial court’s denial of a motion to amend the
complaint on the basis of futility, considering deposition testimony when determining that a
proposed amendment to a complaint would be futile. Boyle v Odette, 168 Mich App 737, 745;
425 NW2d 472 (1988). Also, this Court has found that a denial of a request to amend a
complaint after granting summary disposition pursuant to MCR 2.116(C)(8) was proper when
“the record indicates that any amendment would have been futile.” Allegheny Ludlum Corp v
Dep’t of Treasury, 207 Mich App 604, 605; 525 NW2d 512 (1994).
Tortious interference with a business relationship is the “‘intentional invasion of, or
interference with, property rights causing injury without just cause or excuse.’” Laurence G
Wolf Capital Mgt Trust v City of Ferndale, 269 Mich App 265, 272; 713 NW2d 274 (2005),
quoting 45 Am Jur 2d, Interference, § 1, p 273. “‘The elements of tortious interference with a
business relationship are [1] the existence of a valid business relationship or expectancy, [2]
knowledge of the relationship or expectancy on the part of the defendant, [3] an intentional
interference by the defendant inducing or causing a breach or termination of the relationship or
expectancy, and [4] resultant damage to the plaintiff.’” Mino v Clio Sch Dist, 255 Mich App 60,
78; 661 NW2d 586 (2003), quoting BPS Clinical Laboratories v Blue Cross & Blue Shield of
Mich, 217 Mich App 687, 698-699; 552 NW2d 919 (1996). A plaintiff must show that the
defendant intentionally committed a per se wrongful act or committed a lawful act “‘with malice
and unjustified in law for the purpose of invading the contractual rights or business relationship
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of another.’” CMI Int’l, Inc v Intermet Int’l Corp, 251 Mich App 125, 131; 649 NW2d 808
(2002), quoting Feldman v Green, 138 Mich App 360, 378; 360 NW2d 881 (1984). “‘Where the
defendant’s actions were motivated by legitimate business reasons, its actions would not
constitute improper motive or interference.’” Mino, 255 Mich App at 78, quoting BPS Clinical
Laboratories, 217 Mich App at 698-699. Expressions of opinion—those statements that cannot
reasonably be interpreted as stating actual facts—are protected from defamation and interference
with business claims, regardless of the plaintiff’s status as a public or private figure. Lakeshore
Community Hosp, Inc v Perry, 212 Mich App 396, 402; 538 NW2d 24 (1995).
We conclude that plaintiff’s motion to amend his complaint to add a claim of tortious
interference with a business relationship would be futile. On the face of the complaint plaintiff
has stated a valid claim for tortious interference with a business relationship. Plaintiff alleged in
the proposed amended complaint that he received a job offer from the city of Palm Beach
Gardens. Defendants were aware of the business relationship because Ellen Lovejoy of the Palm
Beach Gardens Police Department called defendants as part of the background check. Plaintiff
alleged that defendants acted with malice, intending to punish him for making other officers look
bad. Plaintiff further alleged that as a result of defendants’ actions, his offer of employment was
rescinded and he suffered damages. Therefore, on the face of the proposed amended complaint,
plaintiff’s claim for tortious interference with a business relationship was legally sufficient.
However, the record demonstrates that the trial court did not abuse its discretion in
finding that such a claim would be futile. Based on the record before us and before the trial
court, plaintiff was unable to demonstrate the requisite malice and causation to prove that
defendants committed tortious interference with a business relationship. The statements that
defendants made to Lovejoy were opinions, not facts. In addition, plaintiff failed to show that
defendants acted with any malice. Moreover, plaintiff could not prove that the statements and
disclosures by defendants caused the rescission of plaintiff’s offer of employment given that the
city of Palm Beach Gardens indicated that rescission occurred as a result of plaintiff’s own
misrepresentations.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Peter D. O’Connell
/s/ Kurtis T. Wilder
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