ROBERT BACKIE V COMERICA INC
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT BACKIE,
UNPUBLISHED
November 16, 2010
Plaintiff/Counter-DefendantAppellant,
V
No. 293602
Oakland Circuit Court
LC No. 2008-094529-CZ
COMERICA, INC.,
Defendant/Counter-Plaintiff/ThirdParty Plaintiff/-Appellee,
and
ROBERT L. BACKIE LIVING TRUST,
Third-Party Defendant-Appellant.
Before: SERVITTO, P.J., and ZAHRA and DONOFRIO, JJ.
PER CURIAM.
Plaintiff and third-party defendant (hereinafter “appellants”) appeal as of right from a
circuit court judgment entered in favor of defendant for $537,488.38 on defendant’s
counterclaim for breach of contract based on a guaranty. Because the trial court correctly
granted defendant’s motion for summary disposition with respect to plaintiff’s claim for
intentional interference with a business relationship and because appellants have presented no
grounds for this Court to interfere with the trial court’s judgment, we affirm. This appeal has
been decided without oral argument pursuant to MCR 7.214(E).
The relevant facts are set forth in the trial court’s February 19, 2009, opinion and order
granting defendant’s motion for summary disposition.
This action arises from two loans (hereinafter the “Ancon Loan” and the
“H.E. Services Loan”) that were issued on November 1, 2002 to two companies
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owned by Plaintiff. On the same day, Plaintiff,[1] Third Party Defendant and H.E.
Services executed a Guaranty that “unconditionally and absolutely” guaranteed
payment to Comerica of all existing and future indebtedness of Ancon to
Comerica. A Security Agreement for the Ancon Loan was also executed by
Plaintiff. The Security Agreement defines indebtedness to include any and all
obligations or liability whether absolute or contingent, direct or indirect, voluntary
or involuntary, liquidated or un-liquidated, joint or several, known or unknown.
Both loans went into default and Plaintiff and H.E. Services entered into a
settlement agreement with Defendant, which required the set up of a [McTevia]
Trust [the “Trust”] to dispose of the assets of H.E. Services and use of the
proceeds to pay off “any outstanding secured indebtedness” owed by H.E.
Services to Comerica, then payments would be made to Plaintiff. Comerica
received payments from the Trust that were used to pay, in full, the H.E. Loan.
After the H.E. Loan was satisfied, Comerica then applied the payments from the
Trust to the Ancon Loan. Plaintiff filed the instant lawsuit alleging tortuous [sic]
interference with contract and seeking an accounting. Plaintiff argues that
Comerica was not entitled to apply the payments to the Ancon Loan because the
Ancon Loan was not a secured indebtedness of H.E. Services based on the
inadequate description of the collateral in the relevant documents. Comerica filed
the Counter/Third Party Complaint alleging breach of the guaranty.
The trial court granted defendant’s motion for summary disposition pursuant to MCR
2.116(C)(10) with respect to plaintiff’s claims and with respect to liability on defendant’s
counterclaim and third-party claim. The trial court stated:
The Court finds that the Ancon Guaranty is unambiguous and requires
Backie, the Backie Trust and H.E. Services’ repayment of all indebtedness that
was guaranteed to Comerica. This guaranteed indebtedness includes the Ancon
Loan, which states on its face that it constitutes a “secured” indebtedness. The
Court finds that the Security Agreement is further evidence that the Ancon Loan
is a secured debt of H.E. Services. Therefore, the Court finds that summary
disposition is appropriate on the Counter and Third Party Complaints because
there is no defense as to their liability under the Guaranty. The Court finds that
Defendant is entitled to dismissal of the Complaint because the elements of
tortuous [sic] interference cannot be established as there was no breach by
Defendant and Comerica has [sic] submitted documents that evidence an
accounting was provided to Plaintiff.
Defendant moved for entry of judgment on damages, which the trial court initially denied
without prejudice in an order dated March 18, 2009, because discovery was still open. After
1
The parties do not dispute that plaintiff was a guarantor. The guaranty shows that plaintiff
signed the guaranty as C.E.O. of H.E. Services and HES, Co., and as the sole trustee of thirdparty defendant.
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discovery closed, defendant filed a renewed motion for entry of judgment. Following a hearing
on July 22, 2009, the trial court granted the motion for entry of judgment against appellants.
Appellants now appeal as of right.
Summary disposition may be granted under MCR 2.116(C)(10) when “there is no
genuine issue of material fact, and the moving party is entitled to judgment . . . as a matter of
law.” This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
In Dalley v Dykema Gossett, PLLC, 287 Mich App 296, 323-324; 788 NW2d 679 (2010),
this Court recently explained:
The elements of tortious interference with a business relationship are the
existence of a valid business relationship or expectancy, knowledge of the
relationship or expectancy on the part of the defendant, an intentional interference
by the defendant inducing or causing a breach or termination of the relationship or
expectancy, and resultant damage to the plaintiff.
To fulfill the third element, intentional interference inducing or causing a
breach of a business relationship, a plaintiff must demonstrate that the defendant
acted both intentionally and either improperly or without justification. To
establish that a defendant’s conduct lacked justification and showed malice, the
plaintiff must demonstrate, with specificity, affirmative acts by the defendant that
corroborate the improper motive of the interference. Where the defendant’s
actions were motivated by legitimate business reasons, its actions would not
constitute improper motive or interference. [Citations and internal quotation
marks omitted.]
Appellants contend that defendant interfered with the settlement agreement because
defendant falsely represented to the McTevia Trust (the “Trust”) that it was a “secured” creditor
with respect to monies owing on the Ancon Term Note. Appellants rely on statutory
requirements for establishing a security agreement, including the identification of specific
collateral, and contend that the Ancon Term Note and the guaranty lacked the specification of
collateral necessary to create an enforceable security interest. However, defendant also relied on
a separate “Security Agreement.” In that security agreement, H.E. Services granted a “security
interest” in specified collateral to secure payment “of all existing and future indebtedness” to
defendant of Ancon “and/or” H.E. Services. Appellants do not explain why this security
agreement was inadequate for defendant to be deemed a “secured” creditor.
Even if appellants could identify some technical flaw in the creation of a security interest,
there was no question of fact concerning intentional interference inducing or causing a breach of
a business relationship between appellants and the Trust. “Where the defendant’s actions were
motivated by legitimate business reasons, its actions would not constitute improper motive or
interference.” Dalley, 287 Mich App at 324 (citation and internal quotation marks omitted). In
light of the applicable agreements, defendant’s identification of itself as a “secured” creditor in
pursuit of payment from the Trust for monies owed by H.E. Services to defendant as a result of
the guaranty does not constitute interference. The trial court correctly granted defendant’s
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motion for summary disposition with respect to plaintiff’s claim for intentional interference with
a business relationship.
Appellants also have not shown that the trial court erred in granting summary disposition
to defendant with respect to the breach of contract counterclaim based on the guaranty.
Defendant presented an affidavit stating that the Ancon Term Note was in default and the
amount of indebtedness. Defendant also presented a guaranty that applied to “all existing and
future indebtedness” to defendant. Appellants do not dispute their liability under the guaranty.
Rather, they claim that defendant failed to show a breach because it did not “acknowledge” that
defendant “took possession” of an industrial facility in 2004 worth over $437,000 as payment on
the amount owed by Ancon, and defendant’s documents did not show that any credit was given
for the “transfer” of the property to defendant. However, appellants did not present evidence that
the ownership of the property was transferred to defendant. In fact, deposition testimony
presented by appellants indicated that although defendant exercised authority with respect to
offers made to purchase the property, defendant’s authority was because defendant held a note
on the property, not because defendant owned it. Thus, appellants did not show that the
ownership of the property was transferred to defendant, much less refute the evidence presented
by defendant that the Ancon Term Loan was in default and that appellants were liable under the
guaranty. We are not persuaded by appellant’s argument that defendant’s evidence was deficient
because it did not show a credit on the Ancon debt for the property.
Also, appellants have not presented a persuasive reason to overturn the judgment entered
by the trial court. Appellants’ argument focuses on the industrial facility discussed in the
previous issue. They claim that the amount of indebtedness was not established because there
were questions concerning whether credit was given for the value of the facility. However,
questions concerning the value of that facility did not preclude entry of the judgment because, as
previously explained, there was no evidence that the ownership of the property had been
transferred to defendant. Furthermore, appellants have not provided any legal basis for asserting
that defendant’s ability to enforce the guaranty against them was limited because of this
collateral. As the trial court stated, “Comerica is not obligated to an either or decision.
Comerica does not have to sell the property and deduct that amount from what Mr. Backie owes
on the guarantee.”
Appellants address the effect of a waiver in the guaranty. The guaranty includes a waiver
(“to the extent not expressly prohibited by applicable law”) of any right to require defendant to
“proceed against any person or property . . . .” Appellants assert that this waiver applies only to
the decision whether to proceed against collateral, not to the disposition of the collateral after the
decision. Appellants cite MCL 440.9602 and assert that a secured debtor may not waive his
rights to the disposition of collateral.
Appellants’ arguments are not persuasive. First, they do not cite any authority to support
their position that the waiver only concerns the decision whether to proceed against the
collateral. As this Court observed in Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100
(1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959):
[A] mere statement without authority is insufficient to bring an issue
before this Court. It is not sufficient for a party “simply to announce a position or
assert an error and then leave it up to this Court to discover and rationalize the
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basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position.” Accordingly, we need
not address this issue, and therefore, decline to do so.
Second, with respect to their argument that a secured debtor may not waive his rights to
disposition of collateral, appellants cite MCL 440.9602. As defendant points out, however,
article 9 of the Uniform Commercial Code does not apply to “[t]he creation or transfer of an
interest in or lien on real property” with certain exceptions that are not applicable here. MCL
440.9109(4)(k)(i). See In re Estate of Moukalled, 269 Mich App 708, 715-716; 714 NW2d 400
(2006) (addressing a similar, predecessor provision in former MCL 440.9104[j]). Third, even if
appellants had presented a basis for concluding that the waiver was ineffective, they have not
presented any basis for concluding that defendant was obligated to proceed against the collateral
before enforcing the guaranty. In sum, appellants have not presented any grounds for this Court
to interfere with the trial court’s judgment.
Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Deborah A. Servitto
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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