MICHIGAN FIRST CREDIT UNION V AL LONG FORD INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MICHIGAN FIRST CREDIT UNION,
UNPUBLISHED
December 16, 2010
Plaintiff-Appellee,
v
No. 291146
Macomb Circuit Court
LC No. 2006-002548-CK
AL LONG FORD, INC.,
Defendant-Appellant.
Before: JANSEN, P.J., and SAWYER and O’CONNELL, JJ.
PER CURIAM.
Defendant Al Long Ford, Inc., appeals as of right from a judgment for plaintiff Michigan
First Credit Union, following a jury trial. We affirm.
Plaintiff brought this action for fraud and breach of contract to recover damages for
losses it sustained when defendant’s customers defaulted on car loans that plaintiff financed.
Plaintiff alleged that it approved the loans in reliance on misrepresentations allegedly made by
defendant in the borrowers’ loan financing applications. The jury determined that defendant
committed fraud and breach of contract and awarded damages to plaintiff. The trial court
entered a judgment awarding plaintiff damages of $360,776.13, consistent with the jury’s
verdict, and also statutory interest of $54,673.92, for a total judgment for $415,450.05.1
On appeal, defendant first argues that the trial court erred in allowing both the fraud and
breach of contract claims to be submitted to the jury. We disagree. We review this issue de
novo as a question of law. Cardinal Mooney High Sch v Mich High Sch Athletic Ass’n, 437
Mich 75, 80; 467 NW2d 21 (1991).
1
The court also directed that plaintiff be permitted to recover reasonable attorney fees and costs
as an additional component of contract damages in an amount to be determined. After a later
hearing, the trial court awarded plaintiff $11,060.39 in costs, and $230,000 in attorney fees. The
award of costs and attorney fees is not at issue in this appeal.
-1-
Defendant relies on the rule set forth in Fultz v Union-Commerce Assoc, 470 Mich 460;
683 NW2d 587 (2004). In Fultz, our Supreme Court held that a person injured in a parking lot
had no cause of action for negligence against the parking lot maintenance contractor because the
contractor had no duty to the injured person. Id. at 461-462. The Court explained, “a tort action
will not lie when based solely on the nonperformance of a contractual duty.” Id. at 466.
Here, in contrast, plaintiff asserted a fraud claim that required proof distinct from
plaintiff’s breach of contract claim. A plaintiff may proceed on these alternative theories when
the complaint alleges fraud extraneous to the contract. Huron Tool & Engineering Co v
Precision Consulting Serv, Inc, 209 Mich App 365, 373; 532 NW2d 541 (1995), citing Pub Serv
Enterprise Group, Inc, 722 F Supp 184, 201 (D NJ, 1989); see also Gen Motors Corp v AlumiBunk, Inc, 482 Mich 1080; 757 NW2d 859 (2008) (adopting dissenting opinion’s reasoning from
unpublished opinion per curiam of the Court of Appeals, issued July 24, 2007 [Docket No.
270430]). To establish the breach of contract claim, plaintiff was required to prove the existence
of a contract and a breach of one or more of the contractual terms. See Pawlak v Redox Corp,
182 Mich App 758, 765; 453 NW2d 304 (1990). To establish the fraud claim, plaintiff was
required to prove that defendant knowingly made a false material representation with the intent
that plaintiff rely on it, that plaintiff did in fact rely on the misrepresentation, and that plaintiff
incurred damages as a result. M&D, Inc v McConkey (On Rehearing), 231 Mich App 22, 27;
585 NW2d 33 (1998). The requirement of proving that defendant intentionally mislead plaintiff
regarding the borrowers’ qualifications was separate from the requirement of proving that
defendant failed to fulfill its contractual obligations. Accordingly, the trial court properly
allowed plaintiff to proceed on both theories.
Defendant next argues that the trial court abused its discretion by refusing to reopen the
proofs to allow defendant to introduce evidence that plaintiff lacked the license required by the
Motor Vehicle Sales Finance Act, MCL 492.101 et seq. Defendant contends the lack of license
rendered the contract at issue void. We review the decision on the motion to reopen proofs for
abuse of discretion. Bonner v Ames, 356 Mich 537, 541; 97 NW2d 87 (1959).
The trial court ruled that proofs should remain closed, reasoning that defendant could
readily have learned plaintiff’s licensing status before trial. We find no abuse of discretion in
this ruling. Although there had been discovery disputes concerning the release of certain
information, the record indicates that the licensing information is a public record. Defendant
apparently could have accessed the information prior to entering into the contract, or at any time
during the litigation. The trial court was within its discretion in refusing to reopen the proofs to
present information that had been readily available to defendant.
Defendant next argues that the testimony of Orlando Clements should have been
excluded because it was not based on his personal knowledge and because it was procured with
improper monetary inducements. We disagree.
MRE 701 provides:
If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences which are
-2-
(a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.
In this case, Clements testified that he had years of experience in the business, although he
denied being an expert. He worked for defendant from February 2003 until January 2004, and
was familiar with defendant’s policies, practices, and procedures. He estimated that he had
reviewed more than 70 loan files for plaintiff’s counsel. Clements explained what the documents
showed and explained defendant’s instructions and practices concerning loan applications.
Clements’s opinions were rationally based on his perceptions of the files in conjunction
with his work experience and familiarity with defendant’s policies and procedures. His opinions
were helpful to a clear understanding of the determination of a fact at issue, i.e., whether
defendant violated the contractual guarantee of accuracy or committed fraud or
misrepresentation in the loan applications. Under MRE 701, Clements was qualified to provide a
lay opinion concerning sales other than his own. The trial court properly permitted his
testimony.
As defendant argues, an attorney may not offer “an inducement to a witness that is
prohibited by law.” MRPC 3.4(b). The comment to rule 3.4 states:
With regard to paragraph (b), it is not improper to pay a witness’ expenses
or to compensate an expert witness on terms permitted by law. It is, however,
improper to pay an occurrence witness any fee for testifying beyond that
authorized by law, and it is improper to pay an expert witness a contingent fee.
In this case, Clements was a fact or occurrence witness to some transactions and a lay opinion
witness to others. Clements admitted that he was paid $100 an hour (or $1,500 total) to review
files and prepare two affidavits, in addition to being provided expenses such as plane fare,
lodging, and meals. He was also paid to discuss the files with plaintiff’s counsel on the
telephone. However, Clements denied being paid for his testimony or for his time to appear at
the three-day deposition, or being led to believe that he would be paid to testify.
In accordance with MRPC 3.4(b), Clements was compensated for his expenses, but was
not paid to testify. Defendant has failed to provide any binding Michigan authority holding that
the payments made for reviewing files were unethical or unlawful. Thus, defendant has not
shown that plaintiff’s counsel committed an ethics violation that justified excluding Clements’s
deposition testimony.
Furthermore, “[a]n error in the admission . . . of evidence is not ground for granting a
new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a
judgment or order, unless refusal to take this action appears to the court inconsistent with
substantial justice.” MCR 2.613(A); see also MRE 103(a). Regardless of the substance of
Clements’s testimony, defendant’s general manager and chief operating officer, Gary Marcicano,
admitted to the misinformation alleged by plaintiff, as did nine loan applicants. Considering that
testimony, which alone was sufficient to support the jury’s verdict, there is no basis for
disturbing the judgment. Thus, any error was harmless.
-3-
Defendant also argues that the trial court abused its discretion in limiting its presentation
of Clements’s videotaped cross-examination and in unduly limiting its cross-examination of
plaintiff’s collections manager at the time of trial, Robert LaPalme. Once again, we disagree.
The scope and duration of cross-examination is within the trial court’s sound discretion,
and this Court will not reverse the trial court’s decision absent a clear showing that the court
abused its discretion. Wischmeyer v Schanz, 449 Mich 469, 474-475; 536 NW2d 760 (1995).
MRE 611(a) provides, in pertinent part:
The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from harassment or
undue embarrassment.
However, questions seeking to elicit evidence of bias, prejudice, or interest, or inconsistent
testimony or statements, should not be unduly limited. Wischmeyer, 449 Mich at 475.
Defendant also relies on MRE 106, which provides:
When a writing or recorded statement or part thereof is introduced by a
party, an adverse party may require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
Clements’s deposition was approximately 14 hours long. However, it involved
questioning concerning 72 loans, only 48 of which were at issue at trial. The trial court ordered
each party to limit their presentation to three hours. The jury was informed that the deposition
had been edited due to its length and to not draw any adverse conclusions from the potentially
choppy presentation.
The record does not support defendant’s argument that the deposition was presented out
of order, or that cross-examination was interspersed with direct examination. Rather, after
plaintiff became aware of defendant’s selection of cross-examination, plaintiff used some of its
time to require that additional portions of the cross-examination and parts of the re-direct
examination be included and played for the jury. All the selections were played in their original
order, and nothing was interspersed.
Based upon the length of the unedited deposition and the fact that it covered 24 loans that
were not at issue at trial, it was not unreasonable for the trial court to direct the parties to pare
down their presentation of Clements’s deposition. Cf. Barksdale v Bert’s Marketplace, ___
Mich App ___; ___ NW2d ___ (August 31, 2010) (trial court abused its discretion by imposing
an arbitrary time limit unrelated to the issues in the testimony). Moreover, defendant has not
provided any basis for concluding that the three-hour limitation imposed by the trial court was
unreasonable. In particular, defendant does not identify any portions of the original deposition
that it was unable to present, or explain how it was prejudiced by not being able to present
certain portions. Thus, defendant has not demonstrated that the three-hour limitation was outside
-4-
the range of reasonable and principled outcomes. Accord, Alpha Capital Mgt, Inc v Rentenbach,
___ Mich App ___; ___ NW2d ___ (March 23, 2010, slip op p 17).
With respect to damages, defendant questioned LaPalme concerning the particulars of
four repossessions, e.g., whether there were negotiations with the debtor, why the car was held
for so long before it was sold, why so much was still owed, and similar questions. The court
then asked defendant how many other transactions it intended to address, and defendant
responded, “Every one. Every single one.” Noting that LaPalme was answering counsel’s
questions from plaintiff’s records, the trial court precluded further cross-examination on the selfhelp issue. The trial court reasoned that, now that defendant had explained some of the loans, the
jury could read the rest from the exhibits introduced by the parties (just as well as LaPalme could
read them). The court specifically stated that defense counsel could address each loan
individually during closing argument, including preparing a demonstrative exhibit summary, as
was done by plaintiff. Defendant chose not to do so and chose not to call its damages expert to
testify.
Under the circumstances, the trial court made a reasonable and principled decision to
limit the cross-examination of LaPalme. The desired information was already in the exhibits that
had been introduced at trial and would be available to the jury. Further, defendant was given
options to summarize and explain the information to the jury, but chose to forego those options.
The trial court did not err in curtailing defendant’s cross-examination.
Defendant lastly argues that the trial court erred in denying its motion for judgment
notwithstanding the verdict (“JNOV”) on the ground that plaintiff’s lawsuit was barred by a hold
harmless notice provision in plaintiff’s contract with the third-party loan processor, Aimbridge
Lending Solutions (“Aimbridge”). We disagree.
This Court reviews a trial court’s decision on a motion for JNOV de novo. Wilkinson v
Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). We review the evidence and all legitimate
inferences in the light most favorable to the nonmoving party. Id. We uphold the trial court’s
decision unless the evidence and inferences fail to establish plaintiff’s claims as a matter of law.
Id.
Paragraph 4 of plaintiff’s contract with Aimbridge contains the following hold harmless
clause:
A. Aimbridge shall act solely as the agent of the Credit Union in
processing loans pursuant to the terms of the Operations Manual. . . . If the loan
documents are incomplete or otherwise overtly inconsistent with the documents
approved by Credit Union, Credit Union must notify Aimbridge of such
irregularity within fifteen (15) business days after funding of the loan represented
by such loan documents. If Credit Union shall fail to so notify Aimbridge of any
such overt defects, Credit Union shall forever be deemed to have waived all such
overt defects. . . . [Emphasis added.]
Plaintiff’s agreement with Aimbridge also contains a clause requiring that disputes be submitted
to non-binding mediation, and if that proves unsuccessful, to binding arbitration. Id. at ¶ 15.
-5-
However, in ¶ 5(f) of defendant’s contract with Aimbridge, defendant warrants to
Aimbridge, as well as participating credit unions, that
[a]ll documents delivered by Dealer are true and correct, the cash down payment
and/or trade-in allowance and the total purchase price and the portion thereof
financed is as stated in such documents and, to the knowledge of Dealer, no
portion of the cash down-payment was borrowed by the customer.
The contract further provides that, “notwithstanding any other provisions of this Agreement,” a
breach of that warranty specifically makes defendant liable for damages and attorney fees to
Aimbridge “and participating credit unions.” Id. In addition, the contract provides that, upon
written demand by Aimbridge, defendant would re-purchase the loan from the credit union and
acquire the credit union’s interest in the collateral. Id.
We decline defendant’s invitation to decide as a matter of law that the alleged
“inaccuracies” in the loan applications involved in this case were overt inconsistencies (and
therefore barred by the notice provision). Rather, the character of the so-called inaccuracies was
one of the central factual issues in this case. Whether to characterize them as fraud,
misrepresentation, overt inconsistencies, or violations of the warranty provision was for the jury
to decide.
The trial court did not err in denying defendant’s motion for JNOV with respect to the
hold harmless clause.
Affirmed.
/s/ Kathleen Jansen
/s/ David H. Sawyer
/s/ Peter D. O’Connell
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.