JAMES PETROFF V GRAND BLANC TRACTOR SALES INC
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES PETROFF,
UNPUBLISHED
November 10, 2009
Plaintiff-Appellant,
v
GRAND BLANC TRACTOR SALES, INC. and
DAVID STEINER,
No. 288303
Genesee Circuit Court
LC No. 08-089103-CK
Defendants-Appellees.
Before: Stephens, P.J., and Cavanagh and Owens, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendants’ motion for
summary disposition. We reverse and remand for further proceedings consistent with this
opinion. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
This is a breach of contract suit. Plaintiff and defendant Grand Blanc Tractor Sales
(GBTS) entered into an “exclusive agency agreement” on December 9, 1996. Plaintiff was to
serve as GBTS’s agent and translator in Bulgaria during negotiations with a Bulgarian company,
HydroEngineering (“Hydro”), which was supposed to make backhoes for GBTS. The agreement
included the following terms:
1. Company grants Agent the exclusive right to contract, for the benefit of
Company, as its agent, with HydroEnengineering, for the fabrication of a tractor
attached backhoe, under terms and conditions agreed upon by Company and
HydroEngineering.
2. In consideration for the exclusive agency granted herein, Company agrees to
pay to Agent thirty dollars ($30.) per each backhoe in the first container, fourty
[sic] ($40.) per each backhoe in the second container, fifty ($50) per each backhoe
in the third container and thereafter, delivered from HydroEngineering to
Company or to a third party in the USA, Canada and Mexico. Payment of said
commission shall be due and owing by Company to Agent within sixty (60) days
of unit receipt at the destinations in the USA, Canada or Mexico.
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3. After commencement of the initial delivery of product[,] Company agrees to
provide a written account to Agent, on a quorterly [sic] basis, of all deliveries in
USA, Canada, Mexico.
4. Agent agrees not to disclose any information about pricing and customer lists
and not to enter into any agreements with a third party that involve Company.
5. Company agrees not to negotiate or do business with HydroEngineering
without Agent.
6. Company and Agent agree to maintain complete loyalty to each other.
7. This agreement shall endure as long as Company imports backhoes built by
HydroEngineering.
The agreement also stated:
Agent has the ability to speak, write and translate the Bulgarian language and is
able to assist Company in it’s [sic] negotiating a contract with HydroEngineering,
and subsequently assisting Company during the performance of any contract with
HydroEngineering, Company and Agent desire to enter into an agreement that
expressly enumerates the relationship between Company and Agent.
However, the only duties expressly imposed on plaintiff by the agreement are those identified in
paragraphs 4, 6, and 7. Defendant Steiner signed the agreement as GBTS’s president.
Plaintiff flew to Bulgaria at GBTS’s expense to negotiate with Hydro and monitor the
progress in building a prototype backhoe. Approximately six months later, Hydro shipped its
prototype to GBTS; it was not satisfactory. According to plaintiff, Steiner instructed him to
work with the Bulgarian engineers to fix the problems. However, Hydro was having its own
problems with bankruptcy, and on April 7, 1997, privatization of the company was ordered. In
June 1998, the company was ordered to liquidate eighty percent of its capital.
In early August 1998, plaintiff and Steiner met for the last time. Both parties agree that
Steiner told plaintiff there would be no immediate deal with Hydro. The parties do not dispute
that plaintiff did not do any more work for GBTS.
In March 1999, Hydro contacted GBTS, desiring to renew the companies’ relationship.
Steiner traveled to Bulgaria with a different translator and worked out a deal with Hydro.
Plaintiff did not learn of this until he saw an advertisement for the backhoes in September 2007.
He filed suit in July 2008, identifying eight counts in his amended complaint: (1) breach of
contract, (2) fraudulent misrepresentation, (3) innocent misrepresentation, (4) exemplary
damages, (5) unjust enrichment, (6) breach of non competition covenant, (7) promissory
estoppel, and (8) complaint for an accounting.
Defendants moved for summary disposition primarily based on expiration of the six-year
statute of limitations that applies to causes of action arising out of contracts. MCL 600.5807(8).
Plaintiff responded that this contract was analogous to a commission or installment contract, and
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that defendants repeatedly breached the contract with every shipment they received. GBTS’s
success would not have occurred but for plaintiff’s work.
The trial court agreed with defendants. The court distinguished the “commission
contract” case cited by plaintiff, HJ Tucker v Allied Chucker, 234 Mich App 550; 595 NW2d 176
(1999), because in HJ Tucker, the agent was to be paid for any work he performed within six
years of filing the lawsuit. Plaintiff, in this case, did not perform any work for GBTS in the past
six years, nor did the contract require him to perform work in order to be paid. The court thus
concluded that even if this was a commission contract, any work plaintiff did was well before the
six-year period.
The trial court then analyzed each of plaintiff’s counts. The court noted that plaintiff
alleged that defendants breached the contract when they ordered backhoes from Hydro in 1999
without notifying plaintiff. This occurred before the six-years-back time limit. The court quoted
Michigan Millers Mut Ins Co v West Detroit Building Co, Inc, 196 Mich App 367, 372 n 1; 494
NW2d 1 (1992): “A breach of contract claim accrues on the date of the breach, not on the date
the breach is discovered.” Because plaintiff did not perform any work for defendants in the past
six years, he was not owed anything under the contract and so defendants were not in breach.
For Counts II and III, fraudulent and innocent misrepresentation, the court noted that
plaintiff alleged these arose out of conversations held in 1998 or earlier. Under Boyle v General
Motors, 468 Mich 226; 661 NW2d 557 (2003), there is no tolling for fraud based on lack of
discovery. Thus, these counts were also time-barred. Count IV, for exemplary damages, was
dismissed because the underlying claims were dismissed. Count V, unjust enrichment, was
dismissed because the subject matter was covered by the contract, in accord with Barber v SMH
(US), Inc, 202 Mich App 366, 375; 509 NW2d 791 (1993). Count VI, for breach of non compete
covenant, was the same as the breach of contract claim, and time-barred for the same reasons as
Count I. The court found Count VII, promissory estoppel, was the same breach of contract
claim. Finally, because the other claims had all been dismissed, there was nothing to support
Count VIII, for accounting.
In this Court, plaintiff argues that the “threshold issue” is whether the agreement is a
commission contract. He points to the use of the word “commission” in the agreement, and cites
HJ Tucker for the rule that each failure to pay a commission constitutes a new breach and the
entire suit is not barred just because the initial breach occurred more than six years earlier.
Plaintiff asserts that this is a commission contract because he was to be paid periodically,
whenever shipments were made, and the rate of pay was proportional to the size of the shipment.
He also argues that his promissory estoppel claim should be allowed. He was promised
commissions in return for his work in Bulgaria. He performed that work in reliance on the
promise that he would be paid for it. However, defendants never paid him. Plaintiff makes no
argument that his other claims were wrongly dismissed.
Defendants first argue that plaintiff’s allegation in his first complaint that the agreement
was terminated in 1998 controls the outcome. There is no discovery rule for actions based on
contracts, and because plaintiff’s claim is at its core a claim for breach of contract, the statute of
limitations bars his suit. For the same reason, plaintiff’s promissory estoppel claim fails.
Defendants also argue that this is not a commission contract. “Commission” is defined in the
sales representative compensation act, at MCL 600.2961(1)(a), as “compensation accruing to a
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sales representative or payment by a principal, the rate of which is expressed as a percentage of
the amount of orders or sales or as a percentage of the dollar amount of profits [defendants’
emphasis].” The agreement here provides for a fixed amount, not a percentage as required by the
statute. Moreover, the trial court correctly found that plaintiff could not recover commissions for
work he did not perform; since no orders were shipped as a result of his efforts but only from
later efforts made without him, he is not entitled to commissions from those shipments. Tolling
could only occur if there were fraudulent concealment, but plaintiff did not plead that, nor do the
facts support it. Finally, defendants argue that plaintiff’s claims against Steiner personally are
barred because he was not a party to the contract. GBTS is a corporation, and so Steiner cannot
be held personally liable where he signed the contract not as an individual but as a representative
of the company.
We review de novo a trial court’s decision to grant or deny a motion for summary
disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
Although we must view substantively admissible evidence submitted at the time of the motion in
the light most favorable to the party opposing the motion, the non-moving party must come
forward with at least some evidentiary proof, some statement of specific fact upon which to base
his case. Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999); Skinner v Square
D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). Issues of contract interpretation are questions
of law, also reviewed de novo. Sweebe v Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006).
Plaintiff is correct that this case turns on whether the agreement was a commission
contract. If it was not, there is no question that his claim fails for being untimely. There is no
discovery rule for contracts claims, and under MCL 600.5827, “Except as otherwise expressly
provided, the period of limitations runs from the time the claim accrues. . . . [T]he claim accrues
at the time the wrong upon which the claim is based was done regardless of the time when
damage results.” For contracts, the period is six years. MCL 600.5807(8). Plaintiff’s equitable
claims would be subject to the same period. MCL 600.5815 (“The prescribed period of
limitations shall apply equally to all actions whether equitable or legal relief is sought”).
However, the trial court erred in concluding that this is not a commission contract. The
court quoted a dictionary definition of “commission”: “a fee paid to an agent or employee for
transacting a piece of business or performing a service.”1 The court went on to state,
“Accordingly, if this is a commission contract, it necessarily follows that Plaintiff is required to
perform at least some business or service on Defendants’ behalf.” The court failed to recognize
that plaintiff did perform some service for defendants; he traveled to Bulgaria to negotiate with
Hydro, and he refrained from working for another company, just as was contemplated by the
agreement. The trial court erred in interpreting the contract as requiring additional work from
plaintiff for each shipment. This is clearly not within its terms. Instead, under the dictionary
definition used by the trial court, plaintiff’s compensation, which was paid to him as GBTS’s
1
Defendants’ reliance on the statutory definition of “commission” is misplaced. Plaintiff is not a
sales representative, and so MCL 600.2961 does not apply to him or this contract.
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agent for performing a service, was a “commission.” The trial court’s interpretation incorrectly
considered the time of plaintiff’s performance when it should have looked at the time payment
was due from defendants.
This does not mean, however, that plaintiff is necessarily owed any commissions. First,
he cannot seek compensation for commissions that should have been paid more than six years
ago. As plaintiff notes, HJ Tucker indicates that each failure to pay begins a new period of
limitations. Moreover, as defendants point out, no shipments were made in immediate response
to plaintiff’s work; some further dealing had to be done. This does not preclude plaintiff’s claim,
though, because he performed as required by the contract, and there was no contractual
requirement that his efforts be successful. The appropriate common law that applies in this case
is clearly set forth in the seminal case, Reed v Kurdziel, 352 Mich 287, 294; 89 NW2d 479
(1958), which identifies “the basic principle of fair dealing, preventing a principal from unfairly
taking the benefit of the agent’s or broker’s services without compensation.” The Reed Court
explained:
In Michigan, as well as in most jurisdictions, the agent is entitled to recover his
commission whether or not he has personally concluded and completed the sale, it
being sufficient if his efforts were to procuring cause of the sale. In Michigan the
rule goes further to provide if the authority of the agent has been cancelled by the
principal, the agent would nevertheless be permitted to recover the commission if
the agent was the procuring cause. [Id. at 294-295 (citations omitted).]
This doctrine applies in non-sales situations as well. See, e.g., Muir v Kalamazoo Corset
Co, 155 Mich 624; 119 NW 1079 (1919) (commission paid for service provided to close a
department); Powers & Co v American Soc of Tool Engineers, 345 Mich 392; 75 NW2d 824
(1956) (commission paid for advertising solicited but not published until after the contract was
terminated); Meeuwsen v Clough & Warren Co, 207 Mich 697; 175 NW 408 (1919)
(commission paid for “talking machine” [phonograph] cabinets ordered but not shipped due to
necessary dyes not being available from Germany because of the war); Friedenwald v Welch,
174 Mich 399, 401; 140 NW 564 (1913) (quoting 19 Cyc p 249: “‘If a broker has brought the
parties together and as a result they conclude a contract, he is not deprived of his right to a
commission by the fact that the contract so concluded differs in terms from the one which he was
authorized to negotiate’”).
What remains is the question of whether plaintiff was the “procuring cause” of the
shipments. Plaintiff argues that the parties never would have made an agreement had he not
brought them together. However, since defendants already knew about Hydro before plaintiff
went overseas, they might be able to prove that plaintiff contributed little to the effort, and that
the second translator did all the real work. It is also possible that proofs might show that both
parties considered the agreement terminated without breach when Hydro appeared incapable of
producing a suitable backhoe. See Restatement Agency 3d, § 3.09: “An agent’s actual authority
terminates . . . upon the occurrence of circumstances on the basis of which the agent should
reasonably conclude that the principal no longer would assent to the agent’s taking action on the
principal’s behalf.” Because these issues have not yet been presented to the trial court, a remand
is necessary.
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Finally, the trial court did not err in dismissing plaintiff’s equitable and tort claims.
Plaintiff presented no facts supporting fraud; at the time defendants told him they would not be
ordering from Hydro, it was true. The equitable claims all arise from alleged contract breaches
occurring more than six years ago, and so are time-barred. MCL 600.5815. However, Count
VIII, for accounting, should not be dismissed.
We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Donald S. Owens
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