SAM'S CAFE INC V BUD'S PRO SHOP INC
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STATE OF MICHIGAN
COURT OF APPEALS
SAM’S CAFE, INC.,
UNPUBLISHED
August 19, 2003
Plaintiff-Appellee,
v
No. 235991
Oakland Circuit Court
LC No. 00-022299-CK
BUD’S PRO SHOP, INC.,
Defendant-Appellant.
Before: Donofrio, P.J., and Bandstra and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court order determining that defendant was
liable to plaintiff under an agreement guaranteeing the payment of a promissory note. Plaintiff
had filed a claim against defendant alleging that defendant was liable for damages due to its
failure to make payments under the terms of the guaranty agreement. We affirm.
The first issue is whether the trial court’s extensive questioning of witnesses during this
bench trial resulted in error mandating reversal. Reviewing this unpreserved issue for plain error
affecting defendant’s substantial rights, Kern v Blethen-Coluni, 240 Mich App 333, 336; 612
NW2d 838 (2000), error is not apparent.
A trial court may interrogate witnesses at trial, whether called by a party or the court
itself. MRE 614(b); Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 24; 436
NW2d 70 (1989). Further, in a bench trial, a trial judge has more discretion to question
witnesses than during a jury trial. People v Wilder, 383 Mich 122, 124; 174 NW2d 562 (1970);
In re Forfeiture of $1,159,420, 194 Mich App 134, 153; 486 NW2d 326 (1992); In re Forfeiture
of $53, 178 Mich App 480, 486; 444 NW2d 182 (1989).
In Wilder, the defendant was found guilty of felonious assault after a bench trial during
which the trial judge asked more questions than the defense counsel and the assistant prosecuting
attorney combined. Wilder, supra, 123-124. This Court had reversed the defendant’s conviction
and remanded the case for a new trial, stating that the court’s examination was “extremely
thorough and exhaustive” and that “the character of the judicial examination remove[d] the
adversary nature from the proceeding” constituting “reversible error.” Id. However, our
Supreme Court reversed this Court’s decision because none of the questions the trial judge asked
were unfair or prejudicial. Id. at 124. The Court emphasized that it is not the number of
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questions asked that determines error, but whether the trial court’s questions were “intimidating,
argumentative, prejudicial, unfair or partial” so as to prejudice a defendant. Id. at 124-125.
Since our Supreme Court’s holding in Wilder, we have required a showing of bias before
reversing a verdict based on a trial court’s questioning of witnesses in a bench trial. For
example, in People v Meatte, 98 Mich App 74, 78; 296 NW2d 190 (1980), the trial court in a
bench trial engaged in “unusually extensive questioning” of five witnesses, including the
defendant. Id. However, citing Wilder, this Court concluded that, because the trial court’s
questioning did not show bias, the defendant’s claim lacked merit. Id.
As with the questioning at issue in Wilder and Meatte, the trial court’s examination of
each witness in this case could easily be described as “extremely thorough and exhaustive” or
“unusually extensive.” The record reveals that the trial court conducted its own extensive
examination of each witness before turning the witness over to both attorneys for questioning.
However, fatal to defendant’s argument on appeal is its admission that the trial court’s
questioning “was applied to both sides equally” and the fact that defendant fails to classify any of
the court’s questions as “intimidating, argumentative, prejudicial, unfair or partial” pursuant to
Wilder.
Because defendant fails to identify any conduct other than unbiased, albeit exhaustive,
questioning by the trial court, we conclude that the trial court’s conduct did not constitute plain
error affecting defendant’s substantial rights.1 Ferguson v Gonyaw, 64 Mich App 685, 694; 236
NW2d 543 (1975).
Next, defendant argues that the trial court abused its discretion when it limited closing
arguments to five minutes for each side. Again, reviewing this unpreserved issue for plain error
affecting defendant’s substantial rights, we disagree.
A trial judge is charged with the duty “to control all proceedings during the trial, and to
limit the introduction of evidence and the argument of counsel to relevant and material matters,
with a view to the expeditious and effective ascertainment of the truth regarding the matters
involved.” MCL 768.29. Further, in Warden v Fenton Lanes, 197 Mich App 618, 625; 495
NW2d 849 (1992), this Court held that the trial court in that case did not abuse its discretion
when it limited closing arguments to ten minutes for each side in a two-day trial because defense
counsel was able to cover every aspect necessary for a decision in the case.
Here, defendant has not shown prejudice because defendant has not identified any
argument that defense counsel was prevented from making because of the court’s five-minute
time limitation. Rather, defense counsel’s closing argument was thorough and defense counsel
ended his statement without being cut off by the court. Absent any argument on how the court’s
decision to limit closing arguments to five minutes prejudiced defendant, this Court cannot
reverse under the plain error standard. Accordingly, defendant has not established a plain error
affecting its substantial rights.
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We note that we lack the authority to overrule decisions of our Supreme Court such as its
decision in Wilder.
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Defendant also argues that the trial court committed error mandating reversal when it
concluded that there was a written guaranty under which defendant is liable to plaintiff.
Although the guaranty at issue referenced a security agreement and promissory note signed on
February 28, 1998, between Tastebud’s and plaintiff, no such security agreement and promissory
note existed. The drafter of the guaranty had mistakenly referred to the wrong date, because the
Bogoevski note and security agreement were dated March 16, 1996, and not February 28, 1998.
February 28, 1998, was the date that Tastebud’s agreed to assume the March 16, 1996,
Bogoevski note. Accordingly, we review this issue of contract construction and interpretation de
novo. Bandit Industries, Inc v Hobbs Int’l, Inc, 463 Mich 504, 511; 620 NW2d 531 (2001).
Again, we conclude that no error occurred on this ground.
Contrary to defendant’s argument on appeal, plaintiff did request reformation in its trial
brief, even though it did not request this remedy in its complaint. Thus, reformation was
requested. In addition, the court’s decision to reform the agreement to reflect the true intent of
the parties was a proper one.
Reformation of an instrument is appropriate to reflect the parties’ actual intent where
there is clear evidence that both parties reached an agreement, but due to mutual mistake, or
mistake on one side and fraud on the other, the instrument does not express the true intent of the
parties. Mate v Wolverine Mut Ins Co, 233 Mich App 14, 24; 592 NW2d 379 (1998), quoting
Olsen v Porter, 213 Mich App 25, 29; 539 NW2d 523 (1995). In determining whether a mutual
mistake exists, one must discern the intent of the parties at the time that they reduced their
agreement to writing. 66 Am Jur 2d, Reformation of Instruments, § 21, p 246.
Furthermore, parol evidence is admissible to show a mutual mistake and to determine the
true intention of the parties. Schwaderer v Huron-Clinton Metro Auth, 329 Mich 258, 268; 45
NW2d 279 (1951); Scott v Grow, 301 Mich 226, 239; 3 NW2d 254 (1942). Here, uncontradicted
parol testimony established a mutual mistake in the language of the guaranty agreement. At trial,
Alan Miller, defendant’s CPA and the drafter of the guaranty agreement at issue in this case,
testified that he intended to draft the document so that it would guarantee the debt owed under
the Bogoevski promissory note. Likewise, Hussein Bazzi, plaintiff’s president, testified at trial
that it was his understanding that the guaranty agreement defendant’s president sent him was
guaranteeing payment of the Bogoevski promissory note. In addition, Wesley Mulholland,
defendant’s president, testified at trial that the guaranty agreement was a proposal in which
Mulholland offered to guarantee payment of the same debt that Kort was guaranteeing so that
Kort would be released as a guarantor.
Here, all parties believed that the debt to be guaranteed by the proposed agreement was
the debt owed under the Bogoevski promissory note rather than some other debt due under a
nonexistent note. Further, because a trial court may reform a contract containing a scrivener’s
error to reflect the true intent of the parties, Capitol Savings & Loan Ass’n v Przybylowicz, 83
Mich App 404, 408; 268 NW2d 662 (1978), the trial court’s act of reforming the contract to
reflect the intent of the parties at the time the agreement was drafted was proper.
Furthermore, contrary to defendant’s contention, the reformed agreement satisfied the
statute of frauds. MCL 566.132(1)(b) provides that a special promise to answer for the debt,
default, or misdoings of another person is void unless it is in writing and signed by the party to
be charged. For a writing to comply with the statute of frauds, the writing must be “certain and
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definite” as to all of its essential terms and no essential term can be supplied by parol evidence.
In re Skotzke Estate, 216 Mich App 247, 249; 548 NW2d 695 (1996); McFadden v Imus, 192
Mich App 629, 633; 481 NW2d 812 (1992).
Here, the court reformed the document so that the date of the promissory note matched
the date the note was issued, rather than the date the note was assigned. Given the court’s
reformation to eradicate the scrivener’s error, there is no question that the debt being guaranteed
under the writing is the very same debt owed under the Bogoevski promissory note.
Furthermore, it is undisputed that the agreement accurately reflects the guarantor, the obligee and
the principal, as well as the amount due on the note.
Even if we were to conclude that the trial court’s reformation of the guaranty agreement
was improper, the document still satisfies the statute of frauds because the “$86,144.73” figure
referenced in the guaranty agreement as the original amount due under the note is the same
figure due under the Bogoevski promissory note referred to in Kort’s guaranty agreement, as
well as the same amount credited to Bogoevski, Inc. for assigning the Bogoevski note during the
sale of the restaurant operation to Kort and Behrend. Thus, a careful review of these exhibits and
the guaranty agreement reveals the essential terms of the agreement without resort to parol
evidence. Therefore, regardless of whether the reformation of the agreement proper, because the
writing and the accompanying written exhibits provide the essential elements of the agreement
without resort to parol evidence, it complies with the statute of frauds. Accordingly, we find no
merit to defendant’s claim that the trial court erred in concluding that defendant is liable to
plaintiff under the guaranty agreement.
Affirmed.
/s/ Pat M. Donofrio
/s/ Richard A. Bandstra
/s/ Peter D. O’Connell
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