If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.



### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

JEFF A. MOYER, Chapter 7 Trustee for the

ESTATE OF CHARLES H. LEONARD and the

ESTATE OF SHANNON K. LEONARD

,

Plaintiff

- Appellant, UNPUBLISHED February 26, 2019

v No. 340678
Kent Circuit Court

OLD NATIONAL BANCORP and DAVID KINSMAN, LC No. 15

- 010557

- CZ

Defendants

- Appellees.

Before: M ETER

, P .J., and S AWYER and C AMERON , JJ.

P ER C URIAM

.

Plaintiff, Jeff A. Moyer

, as Chapter 7 Trustee for the E state of Charles H. Leonard and
the E state of Shannon K. Leonard, appeals as of right an order granting defendants’, Old National Bancorp and David Kinsman, motion for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact) and denying plaintiff’s motion to amend his complaint pursuant to MCR 2.116(I)(5). We affirm.

This case arises out of the sale of the Leonards’ closed captioning businesses in 2009.
The Leonards and their busin esses banked with Founders Bank 1 and worked closely with defendant David Kinsman, a loan officer and credit analyst with Founders. The Leonard s executed a purchase agreement on November 1, 2009. The purchasers of the Leonards’
businesses continued to bank with Founders, and the Leonards’ names were not immediately
removed from the businesses’ accounts and loans.

1 Defendant Old National Bancorp purchased Founders Bank on January 1, 2015. Old National Bancorp now stands in the shoes of Founders Bank. Old National Bancorp has acknowledged that it may be held legally responsible for any acts committed by Founders Ba nk.- 2

- Shortly after the purchase agreement with the Leonards was executed, the purchasers sold
the businesses’ assets to a third party and breached the p urchase agreement with the Leonards.

Plaintiff allege s that in doing so, the purchasers committed a number of fraudulent acts. Plaintiff brings this case alleging that defendants’ knowledge of these fraudulent acts was fraud in and of
itself : plaintiff a lleges that defendants were aware of all of the purchasers’ breaches but affirmatively assured the Leonards that everything was going to be fine. Plaintiff alleges that
this assurance amount s to common

- law fraud. Plaintiff further alleges that defendants owed the Leonards a fiduciary duty, that defendants’ intentional failure to disclose the purchasers’
breaches to the Leonards was a breach of this fiduciary duty

, and t hrough these actions
defendants have committed silent fraud.

At the close of discover y, defendants moved for summary disposition, arguing that plaintiff had failed to create a genuine question of material fact for trial. At the hearing on the motion for summary disposition, plaintiff orally moved to amend his complaint pursuant to MCR

2.1 16(I)(5) if the motion for summary disposition was granted in favor of defendants. Plaintiff
never filed a written amendment. The trial court issued an opinion and order granting defendants’ motion for summary disposition and denying plaintiff’s motion t o amend his

co mplaint. This appeal followed.

This Court reviews the trial court’s decision on a motion for summary disposition de

novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(10) tests the factual sufficie ncy of the claim in question. Id . at 120. This Court reviews the record in the same manner as the trial court, considering all record evidence in the light most favorable to the party opposing the motion. Id

.

MCR 2.116(C)(10) provides that the trial court may grant summary disposition in favor of the moving party when, “[e] xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of
law.” The movi ng party “must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact” and support its motion with documentary evidence. Maiden , 461 Mich at 120 , citing MCR 2.116(G)( 4). Then, the party opposing the motion must set forth specific facts establishing a genuine issue of material fact to survive a motion for summary disposition. Id . at 120

- 121, citing MCR 2.116(G)(4). A genuine
issue of material fact exists when the evi dence presented “leave[s] open an issue upon which reasonable minds might differ.” Debano

- Griffin v Lake Co , 493 Mich 167, 175; 828 NW2d 634 (2013) ( quotation marks and citation omitted). “Where the proffered evidence fails to establish a genuine issue r egarding any material fact, the moving party is entitled to judgment as a matter of
law.” Maiden , 461 Mich at 120. A “mere possibility” or “promise” that the claim will be supported by evidence produced at trial is insufficient to survive a motion for su mmary disposition. Id . at 121.

Plaintiff first argues common

- law fraud. The elements of common

- law fraud are: “(1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it reckl essly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he hereby suffered injury.” Titan Ins Co v Hyten

,- 3

- 491 Mich 547, 555; 817 NW2d 562 (2012) (citation omitted) . “[A]n action for fraud must be predicated upon a false statement relating to a past or existing fact; promises regarding the future are contractual and will not support a claim of fraud.” Cummins v Robinson Twp , 283 Mich App 677, 696; 770 NW2d 42 1 (2009).

Plaintiff’s argument on common

- law fraud is centered around two sentence s that
Kinsman said in a voicemail to Charles Leonard: “that’s all I know. And now you know it.” Plaintiff allege s that this statement is fraudulent because defendants had stated that “the Leonards should not be concerned” when the purchasers “had failed to assume financial responsibility for all of the accounts and debts by the deadline stated in the purchase agreem ent.” However, this is not a material misrepresentation of fact for two reasons: first, the material information was known to the Leonards, and second, it is a statement about the future.

Contained within plaintiff’s allegation is the Leonards’ knowledge that contrary to the purchase agreement, the purchasers of the company had not taken responsibility for all of the
accounts and debts yet . In fact, the Leonards reached out to Kinsman to see when this issue would be resolved: plaintiff states in his comp laint that “the Leonards asked Mr. Kinsman if they should be worried about the Purchasers’ failure to assume the debts by the deadline.” Therefore,

as t he trial court recognized, the Leonards had received the material information from
defendants. The Leo nards knew that the purchasers were not complying with their obligations as required under the purchase agreement. Th us , the Leonards were aware of the material facts, and Kinsman did not make a material misrepresentation about those facts. Further, this statement is not a present or existing fact. Rather, Kinsman’s statement that the Leonards “should not be
concerned” is a forward

- looking prediction. Therefore, this statement is not a present or existing

fact and cannot be the basis for common

- law frau d. See id. at 696.

P laintiff does not point to any other record evidence of possible misrepresentations, and
in fact stated to the trial court that sentence “is all the Court needs” to find in his favor. On appeal, p laintiff states that it is not any “ statements, taken separately, that the plaintiff argues

amoun ts to fraud.” Rather, plaintiff argues that the Leonards’ trust in Kinsman and their relationship with him was the “context” that made the statements fraudulent. This is a fatal flaw.

Plaintif f must show that defendants made a statement containing a material misrepresentation.

See Titan , 491 Mich at 555. Plaintiff has failed to do so, instead focusing on the reliance and relationship between the Leonards and Kinsman

.

Plaintiff has not provided any record evidence showing a material misrepresentation by either defendant. Therefore, plaintiff has not created a genuine issue of material fact, and the trial court properly granted summary disposition on the issue of common

- law fraud. See Lowrey v LMSP & LMPJ, Inc , 500 Mich 1, 9; 890 NW2d 344 (2016); Maiden , 461 Mich at 120

.

Plaintiff next argues that defendants have committed silent fraud. Silent fraud “ ‘ is based on a defendant suppressing a material fact that he or she was legally obligated t o disclose

. . . .’ ”
Barclae v Zarb , 300 Mich App 455, 476; 834 NW2d 100 (2013), quoting Alfieri v Bertorelli , 295 Mich App 189, 193

- 194; 813 NW2d 772 (2012). Silent fraud therefore requires a defendant to owe a duty to the plain tiff. Barclae , 300 Mich App at 477. A fiduciary duty “generally does not
arise withi n the lender

- borrower context

. . . . ” Farm Credit Serv of Michigan’s Heartland, PC A
v Weldon , 232 Mich App 662, 680; 591 NW2d 438 (1998), citing Ulrich v Fed Land Bank of St- 4

- Paul , 192 Mich App 194, 196

- 197; 480 NW2d 910 (1991)

, and Smith v Saginaw S&L Ass’n , 94 Mich App 263, 274; 288 NW2d 613 (1979). The court in Weldon made clear that for a fiduciary duty to arise, the relationship must be more than “[t]he borrower’s a llegations of inexperience
and reliance on the lender

. . . . ” Id ., citing Ulrich , 192 Mich App at 196. When a defendant does not have “ultimate control” over a plaintiff’s business decisions, no fiduciary duty arises.
Id

.

Plaintiff argues that the re lationship that Kinsman had with the Leonards was “different” from the typical lender

- borrower relationship, and relies heavily on Smith , 94 Mich App 263. In
Smith

, the Smiths borrowed money from Saginaw Savings & Loan Association to build a home.
Id . at 266. Because of Mr. Smith’s poor health, the branch manager of Saginaw Savings & Loan Association informed the Smiths that he would oversee the project and ensure the work was completed properly and within budget. Id . at 266

- 267. The branch manager hir ed a contractor that was headed for bankruptcy but failed to protect the Smiths from that risk. Id . at 267. Rather, the branch manager represented to the Smiths that everything was going smoothly. Id . at 268. Unfortunately, the Smiths completed their p roject at a much higher cost than anticipated
because of the branch manager’s failure to disclose the contractor’s potential for bankruptcy to
the Smiths. Id . at 267. The Smiths sued Saginaw Savings & Loan Association, alleging that the branch manager br eached a fid uciary duty owed to them. The C ourt found that the Smiths had placed “trust and confidence” in the bank manager when he oversaw the construction of their home, that a fiduciary duty existed because of these unique facts, and that the branch ma nager had breached that fiduciary duty. Id . at 275

- 276.

Plaintiff draws only one parallel between Smith and Kinsman’s relationship with the Leonards: “Kinsman took it upon himself to be the point of communication between” the purchasers and the Leonard s. Plaintiff reiterates that the Leonards placed “trust and faith” in Kinsman, but he points to no record evidence showing Kinsman having “ultimate control” over any aspect of the Leonards’ business decisions. Unlike in Smith , where the defendant made decisions about whom to hire, when to make payments, and oversaw construction, defendants in this case are simply the Leonards’ lender. Therefore, plaintiff has failed to demonstrate any facts that give rise to a special relatio nship between Kinsman and the Leonards. Without a special relationship, there is no fiduciary duty, and it follows that there can be no silent fraud. See
Weldon , 232 Mich App at 681.

Plaintiff has failed to demonstrate a genuine issue of material fact o n both the common

law fraud issue and the silent fraud issue. Therefore, we affirm the trial court’s grant of

sum mary disposition to defendants. See Lowrey , 500 Mich at 9.

Plaintiff next argues that the trial court improperly denied his motion to amend his complaint under M C R 2.116(1)(5).

When the trial court grants summary disposition to a party “based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that an amendment would not be justified.” MCR 2.116(I)(5). “Amendm ents must be file d in writing

. . . . ” MCR 2.118(A)(4). When a party make s an oral request to amend the complaint pursuant to MCR 2.116(I)(5), that party must also offer a proposed amendment in writing. Lown v JJ Eaton Place , 235 Mich App- 5

- 721, 726; 598 NW2d 633 (1999). Where a plaintiff fails to do so, plaintiff has failed to comply with the court rule and the trial court does not abuse its discretion in denying the request to
amend. Id

. , citing Burse v Wayne Co Med Examiner , 151 Mich App 761, 768; 391 NW2d 479 (1986).

In this case, plaintiff made an oral motion to amend his complaint to add a claim that defendants aided and abetted fraud committed by the purchasers of the Leonards’ businesses. Plaintiff did not file a pro posed written amendment. This C ourt has repea tedly held that the
failure to file a proposed amended complaint in writing is fatal to an oral motion for amendment.

Lown , 235 Mich App at 726; Burse , 151 Mich App at 768.

Plaintiff argues that this C ourt should do away with this interpretation of MCR 2.118 because it is inconsistent with the plain language of the statute. Plaintiff argues that under MCR 2.118(A)(4), only “[a]mendments must be filed in writing,” not proposed amendments. T his argument is without merit. MCR 2.118(A)(4) simply states th at amendments must filed in writing. It makes no distinction between proposed amendments and actual amendments. This Court has interpreted this to mean that all amendments, including proposed amendments, must be filed in writing. Lown , 235 Mich App at 7 26; Burse , 151 Mich App at 768. This Court’s jurisprudence does not add language to the statute, as plaintiff argues; it simply interprets the word “amendments” to include all amendments. Therefore, plaintiff’s argument is meritless. Because plaintiff f ailed to file a proposed amendment in writing, the trial court did not abuse its discretion when it denied plaintiff’s motion to amend. See Lown , 235 Mich App at 726.

Even if plaintiff’s failure to file a written motion to amend was not fatal, the motion is prejudicial to defendants and futile.

A court may deny a motion to amend if an adverse party suffered actual prejudice as a
result. Weymers v Khera , 454 Mich 639, 659; 563 NW2d 647 (1997). A trial court may properly “find prejudice when the moving party seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial, and the opposing party shows that he did not have reasonable notice, from any source, that the moving
party wou ld rely on the new claim or theory at trial.” Id . at 659

- 660. Plaintiff made an eleventh hour motion adding a new theory of liability with no notice to defendants. Plaintiff agreed with

t he trial court when it asked, “[W] e’re, essentially, going to have to start all over again on a whole new theory, right?” Therefore, the trial court properly found plaint iff’s motion to be prejudicial to defendants.

A court may also deny a motion to amend if amendment would be futile. “An
amendment would be futile if (1) ignoring the substantive merits of the claim, it is legally insufficient on its face; (2) it merely restates allegations already made; or (3) it adds a claim over which the court lacks jurisdiction.” PT Today, Inc v Comm’r of the Office of Fin & Ins S erv s , 270 Mich App 110, 143; 715 NW2d 398 (2006) (citations omitted) . Here, plaintiff seeks to change the theory of liability but has still failed to prove that any fraud occurred. Plaintiff points to no new record evidence to support the theory that def endants aided and abetted any fraud on behalf of the purchasers. Therefore, the addition of a claim that defendants aided and abetted the purchasers’ fraudulent actions would continue to be legally insufficient. See id. ; Hakari v Ski Brule, Inc , 230 Mich App 352, 355; 584 NW2d 345 (1998). Additionally, plaintiff has not- 6

- proven that Kinsman owed the Leonards a fiduciary duty. Therefore, to add a claim that defendants aided and abetted some breach of this duty is legally insufficient. See Hakari , 230
Mic h App at 355. Plaintiff’s proposed amendments are futile, so the trial court did not abuse its discretion in denying the motion to amend. See PT Today , 270 Mich App at 143.

Affirmed.

/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron