E LLWYD ECCLESTONE V RICHARD BLOUGH
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STATE OF MICHIGAN
COURT OF APPEALS
E. LLWYD ECCLESTONE, JR., IBIS LANDING
VENTURE, LTD., and IBIS CLUB
OPERATIONS, INC.
UNPUBLISHED
December 18, 2001
Plaintiffs-Appellants,
V
No. 225425
Oakland Circuit Court
LC No. 99-014613-CZ
RICHARD BLOUGH, DOUGLAS EBERT,
JOHN CARTON, and ROBERT MYLOD,
Defendants-Appellees.
Before: Cooper, P.J., and Cavanagh and Markey, JJ.
PER CURIAM.
Plaintiffs appeal by right the trial courts’ orders granting defendants’ motion for a change
of venue, denying plaintiffs’ motion for reconsideration, and granting defendants’ motion for
summary disposition. We affirm.
Plaintiffs first assert that the trial court improperly transferred venue from Wayne County
to Oakland County. Plaintiffs argue that venue in Wayne County was proper because at least
three defendants conduct business and had sufficient contacts in Wayne County. This Court
reviews a trial court’s decision to change venue under the clearly erroneous standard. Massey v
Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000). “Clear error exists when the reviewing
court is left with a definite and firm conviction that a mistake has been made.” Id.
The instant parties dispute whether defendants “conduct business” in Wayne County for
purposes of determining proper venue in this matter.1 Defendants assert that venue was proper in
1
Because this action involves claims of fraud and tortious interference, venue is governed by
MCL 600.1629(1). Because the original injury did not occur in Michigan, MCL 600.1629(1)(c)
applies, which provides that venue is proper in the county in which both the plaintiff and
defendant reside, have places of business, conduct business, or have their corporate registered
offices. There is no dispute that plaintiff Ecclestone conducts business in Wayne County. There
is also no claim that defendants reside, have places of business, or corporate registered offices in
Wayne County. Thus, the only inquiry involves whether defendants “conduct business” in
Wayne County.
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Oakland County because three of the four defendants reside in Oakland County and the contacts
with which defendants have in Wayne County do not establish that defendants “conduct
business” in Wayne County. Plaintiffs claim that three of the four defendants’ contacts with
Wayne County, which primarily include attending meetings, entertaining, and socializing in
Wayne County, serving on various organizational boards, soliciting contributions for various
organizations, and employing Wayne County accountants, are sufficient to establish that
defendants “conduct business” in Wayne County.
In Michigan, plaintiffs bear the burden of demonstrating the propriety of their venue
choice. Gross v Gen’l Motors Corp, 448 Mich 147, 155; 528 NW2d 707 (1995). The purpose
behind the venue statute is that an action should be instituted in a county in which defendant has
some “real presence,” as might be shown by systematic or continuous dealings inside the county.
Chiarini v John Deere Co, 184 Mich App 735, 737; 458 NW2d 668 (1990); Saba v Gray, 111
Mich App 304, 315; 314 NW2d 597 (1981). “Conducting business does not include the
performance of acts merely incidental to the business in which the defendant is ordinarily
engaged.” Chiarini, supra at 737.
After reviewing the evidence in this case regarding whether defendants conduct business
in Wayne County, we are not left with a definite and firm conviction that the trial court’s change
of venue to Oakland County was clearly erroneous. Massey, supra at 379. Defendants’
numerous contacts cited by plaintiffs are merely incidental to the business in which defendants
are ordinarily engaged and do not constitute a “real presence” in Wayne County. Moreover,
even if the trial court did improperly transfer venue to Oakland County, the Michigan Legislature
has provided that “[n]o order, judgment, or decree shall be void or voidable solely on the ground
that there was improper venue.” MCL 600.1645; Bass v Combs, 238 Mich App 16, 22; 604
NW2d 727 (1999); see, also, Nat’l Bank of Rochester v Meadowbrook Heights, Inc., 80 Mich
App 777, 785; 265 NW2d 43 (1978) (“[i]mproper venue alone may not be the basis for
disturbing a judgment”). Therefore, the Oakland Circuit Court’s orders granting summary
disposition in favor of defendants and denying plaintiffs’ reconsideration motion cannot be set
aside merely on the basis that the Wayne Circuit Court improperly transferred venue. Bass,
supra at 22-23.
Plaintiffs further argue that the trial court erred in granting summary disposition in favor
of defendants pursuant to MCR 2.116(C)(7) and (C)(10). We disagree. On appeal, a trial court’s
decision regarding a motion for summary disposition is reviewed de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
In this case, the November 1, 1995 Supplemental Agreement between the parties states
that the agreement “sets forth the entire agreement between the parties . . . and supersedes all
prior and contemporaneous negotiations, understandings and agreements, written or oral,
between the parties . . . .” The Release states in relevant part that plaintiffs released defendants
“from any and all claims, defenses, demands, actions, and claims for relief of whatsoever kind or
nature, whether in law or in equity, from the beginning of time to the date of this Release, which
Releasing Party now has or may claim to have, whether known to it or not, against Released
Party.” Under MCR 2.116(C)(7), summary disposition is appropriate when a party’s claim is
barred because of a release.
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With respect to plaintiffs’ claim alleging fraud against defendants because defendants
allegedly told plaintiffs on or about October 31, 1995, before the November 1, 1995 agreement
was executed that plaintiffs would have an additional reasonable time to purchase the project
after October 31, 1995, we conclude that the trial court properly granted summary disposition in
favor of defendants. Generally, parol evidence of prior or contemporaneous agreements that
contradict or vary the written contract is not admissible to vary the terms of an agreement that is
clear and unambiguous. UAW-GM Human Resource Center v KSL Recreation Corp, 228 Mich
App 486, 492; 579 NW2d 411 (1998), quoting Schmude Oil Co v Omar Operating Co, 184 Mich
App 574, 580; 458 NW2d 659 (1990). In this case, the supplemental agreement is clear that it
represented the final agreement of the parties, and there is no mention in the agreement that
plaintiffs would have a right to reacquire the property after the agreement was executed.
However, parol evidence is admissible to demonstrate fraud, as alleged by plaintiffs in this case.
UAW-GM, supra at 493, 502, 503. However, if a contract contains an integration clause that
releases all antecedent claims, as is true in the instant case, “only certain types of fraud would
vitiate the contract.” Id. at 503.
[F]raud that relates solely to an oral agreement that was nullified by a valid
merger clause would have on effect on the validity of the contract. Thus, when a
contract contains a valid merger clause, the only fraud that could vitiate the
contract is fraud that would invalidate the merger clause itself, i.e., fraud relating
to the merger clause or fraud that invalidates the entire contract including the
merger clause. [Id.]
As defendants point out, plaintiffs do not claim in this case that they were defrauded
regarding the existence of the integration clause contained in the Supplemental Agreement or
defrauded into believing that the written contract included a provision permitting them more time
to purchase the project. Further, plaintiffs do not deny that they were aware of the clear and
unambiguous terms of the November 1, 1995 agreement, which specifically states that the
agreement represents the entire agreement between the parties. Thus, the trial court did not err in
granting defendants’ motion for summary disposition regarding plaintiffs’ fraud claim. Further,
because the integration clause and release contained in the Supplemental Agreement are valid,
any claim of tortious interference occurring before November 1, 1995 is also without merit.
Plaintiffs also assert that the trial court erred in granting summary disposition with
respect to their claim of tortious interference with a business relationship that occurred after the
November 1, 1995 agreement was executed. Specifically, plaintiffs claim that defendants
tortiously interfered with their relationship with Blackstone, one of the ultimate purchasers,
because defendants indicated to Blackstone that they did not want plaintiffs involved in the
project. Plaintiffs’ claim fails.
With regard to this issue, the trial court stated that
the Defendants had no obligations to the Plaintiffs with respect to any future
business opportunity or expectancy since the subject development was transferred
to MNB. Once MNB became the owner of the development, it was up to MNB to
determine the disposition of the property and whether it wanted to have the
Plaintiffs involved in the development.
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“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.” BPS
Clinical Laboratories v Blue Cross & Blue Shield of Michigan (On Remand), 217 Mich App
687, 698-699; 552 NW2d 919 (1996), cert den 522 US 1153; 118 S Ct 1178; 140 L Ed 2d 186
(1998). Further, a party who claims tortious interference “must allege the intentional doing of a
per se wrongful act or the intentional doing of a lawful act with malice and unjustified in law for
the purpose of invading plaintiff’s contractual rights or business relationship.” Feldman v
Green, 138 Mich App 360, 369; 360 NW2d 881 (1984). To establish that a lawful act was done
with malice and without justification, the plaintiff must establish with specificity affirmative acts
by the defendant that corroborate the improper or unlawful motive of the interference. BPS
Labs, supra at 699; Feldman, supra at 369-370. However, where the defendant’s actions were
“motivated by legitimate business reasons, its actions would not constitute improper motive or
interference.” BPS Labs, supra at 699.
In the present case, defendants’ advising Blackstone that they did not want plaintiffs
involved in the IBIS development did not constitute improper interference because it was
motivated by legitimate business reasons. Id. Plaintiffs had already defaulted on the loan MNB
had provided them for the IBIS project, and as owner of the IBIS development after November 1,
1995, MNB could determine, as the trial court in this case opined, the disposition of the property
and whom it wanted involved in the project. Plaintiffs’ tortious interference claim is without
merit, and the trial court properly granted summary disposition to defendants on this issue.
With regard to plaintiffs’ contention that the November 1, 1995 agreement contemplates
plaintiff’s continuing involvement in the IBIS project because it states that MNB agrees to
provide Ecclestone Signature Homes the same benefits and cooperation given to any other
builder on the projects, we disagree that this provision gives plaintiffs any rights or expectancy
of reacquiring the project. First, as defendants correctly state, Ecclestone Signature Homes is not
a party to this action, nor is there any allegation that it was involved with plaintiffs’ attempts to
reacquire the property. This provision is merely a commitment to treat a separate Ecclestone
entity the same as other builders at the project.
We affirm.
/s/ Jessica R. Cooper
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
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