MUSTAFA MISSILMANI V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
MUSTAFA MISSILMANI, FATME MISSILMANI
and M & A PETROLEUM, INC.,
UNPUBLISHED
November 22, 1996
Plaintiffs-Appellees,
v
No. 178675
LC No. 93-302876-CC
CITY OF DETROIT and CITY OF DETROIT
WATER & SEWERAGE DEPARTMENT,
Defendants-Appellants.
Before: Markman, P.J., and Smolenski and G. S. Buth,* JJ.
PER CURIAM.
Defendants appeal by right a 1994 judgment for plaintiffs. We reverse.
Plaintiffs owned a gas station. In March 1990, defendants informed plaintiffs of a planned
sewer project and sought easements on the gas station property. On April 9, 1990, plaintiffs signed a
stipulation granting defendants a permanent easement to accommodate the sewer system, as well as a
temporary easement to accommodate the construction. In addition to a $5,560 compensation for the
easements, the stipulation provided:
An additional compensation for business disruption (if any) caused by the construction
project will be negotiated and offered within a reasonable time after completion of
construction.
Defendants began the construction project in December 1990. Pursuant to a request by
plaintiffs for interim business disruption compensation, defendants sent them an offer on December 19,
1991 in the amount of $32,091 for the period of January through September 1991. This offer stated
that review of plaintiffs’ claim “will continue as information becomes available.” Plaintiff Mustafa
Mussilmani testified that he closed the gas station in March 19921 and that he received the $32,091
payment from defendants in April 1992. Unsatisfied with the amount of this interim payment, plaintiffs
* Circuit judge, sitting on the Court of Appeals by assignment.
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filed the present complaint for mandamus, inverse condemnation and breach of contract on January 29,
1993. This matter was tried to a jury in April 1994. At the close of plaintiffs’ proofs and again at the
close of their own proofs, defendants moved for a directed verdict on the basis that plaintiffs had failed
to present evidence that defendants breached the contract. The trial court denied both motions. The
jury found the damages owing to plaintiffs to be $604,417.50, “plus the removal of the [gasoline]
tanks.”
On appeal, we first consider the trial court’s denial of defendants’ motions for directed verdict.
In Pakideh v Franklin Commercial Mortgage Group, Inc, 213 Mich App 636, 639; 540 NW2d
777 (1995), this Court set forth the applicable standard of review:
In reviewing the denial of a motion for a directed verdict, this Court examines the
evidence presented in the light most favorable to the plaintiff and gives the plaintiff the
benefit of every reasonable inference that may be drawn from the evidence. If
reasonable minds could differ in regard to whether the plaintiff has met the burden of
proof, a motion for a directed verdict should be denied.
Here, the stipulation between plaintiffs and defendants provided that “compensation for business
disruption (if any) caused by the construction project will be negotiated and offered within a reasonable
time after completion of construction.” (Emphasis added.) Plaintiffs produced evidence at trial
indicating that the parties considered quarterly business disruption compensation payments during the
construction period but never executed an agreement making such an arrangement. We understand
plaintiffs’ position that they needed interim business disruption compensation payments to sustain the
station during the construction period, but that is not the deal plaintiffs struck. According to the
unambiguous terms of the stipulation, defendants were not obligated to compensate plaintiffs for any
business disruption until a reasonable time after completion of the project. At the time plaintiffs filed the
present action, the construction project was not complete. While not contractually obligated to do so,
defendants chose to provide the $32,091 interim payment for the January through September 1991
period in response to plaintiffs’ requests. Defendants clearly indicated in its offer of the interim payment
that it would continue to review plaintiffs’ claims for business disruption compensation. According to
the stipulation, a final accounting of plaintiffs’ business disruption losses and compensation therefore was
not due until a reasonable time after completion of the construction project. Accordingly, as a matter of
law, defendants could not have breached the business disruption compensation terms of the contract as
of time plaintiffs filed the complaint.
Under the terms of the stipulation, reasonable minds could not differ regarding whether
defendants had breached the contract with respect to business disruption compensation. Accordingly,
the trial court erred in denying defendants’ motions for directed verdict. Our resolution of this issue
makes it unnecessary for us to address the other issues raised by defendants.
However, in order to guide the parties in resolving this matter, we note a legal error in the
proceedings below. At trial, plaintiff presented evidence regarding both plaintiffs’ business interruption
damages and plaintiffs’ going concern damages. “It should be clear that recovery for business
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interruption damages and recovery for going concern value are mutually exclusive since one assumes the
continuation of the business and the other assumes its loss.” Detroit v Michael’s Prescriptions, 143
Mich App 808, 819 n 2; 373 NW2d 219 (1985). See also Detroit v Larned Associates, 199 Mich
App 36, 42; 501 NW2d 189 (1993). This legal error undermines the validity of the jury determination
of plaintiffs’ damages even as a benchmark for settlement negotiations.
For these reasons, we reverse the trial court’s order denying defendants’ motions for directed
verdict. Plaintiffs’ breach of contract count is accordingly dismissed. Defendants are, of course,
ultimately bound to comply with the terms of the contract. If defendants fail to provide “compensation
for business disruption (if any) caused by the construction project . . . within a reasonable time after
completion of construction,” plaintiffs may then bring a breach of contract action. We remand this
matter for resolution of the remaining counts of plaintiffs’ complaint.2
Reversed and remanded. We do not retain jurisdiction.
/s/ Stephen J. Markman
/s/ Michael R. Smolenski
/s/ George S. Buth
1
He admitted that he suffered an accident shortly before closing the gas station.
2
Plaintiffs’ complaint includes inverse condemnation and mandamus counts. However, at trial, plaintiffs’
counsel stated, “We’re not talking about a taking case here.” The trial court decided not to instruct the
jury regarding the taking of property stating, “This Court feels and plaintiff contends that this is a
contract claim.” Accordingly, the current status of plaintiffs’ inverse condemnation and mandamus
counts is unclear from the record.
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