-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

JAMES ERIC MOORE and LISA MOORE,

Plaintiffs-Appellants, UNPUBLISHED March 17, 2016

v No. 324470 Wayne Circuit Court GLENDA MOORE, LC No. 14-000623-CH

Defendant-Appellee.

Before: K. F. K ELLY , P.J., and F ORT H OOD and B ORRELLO , JJ.

P ER C URIAM

. Plaintiffs appeal as of right the trial court’s order granting defendant’s motion for summary disposition. We reverse and remand.

This case arises from a disagreement between plaintiff James E ric Moore and his father, James M. Moore, over a 10-acre parcel of property in Romulus, M ichigan. 1 Father bought the property in 1990, and son moved onto the property and has lived and operated his business from there since that time. In late 1990, father and son drew up a handwritten purchase agreement for the property, akin to a land contract. Son also asked for a de ed to the property multiple times over the intervening years, but father either refused or failed to convey a deed. Relations eventually soured between son, his wife Lisa, father, and defen dant, father’s third wife, culminating in father’s quiet-t itle action filed in 2013 in the Wayne Circuit Court. While that action was pending, plaintiffs sue d defendant for tortious inte rference with a business expectancy and tortious interferen ce with a contract.

On appeal, plaintiffs contend that the trial court erred in gr anting defendant’s motion for summary disposition because genuine issues of material fact exi sted regarding whether defendant instigated father’s bre ach of the land contract and w hether defendant interfered with a valid business expectancy. We agree that the trial court erred in granting defendant’s motion for summary disposition, and remand for further proceedings.

1 In an effort to avoid confusion, we will hereafter refer to Ja mes M. Moore as “father” and James Eric Moore as “son.”-2- “This Court reviews de novo a trial court’s decision on a moti on for summary disposition.” Gorman v American Honda Motor Co, Inc , 302 Mich App 113, 115; 839 NW2d 223 (2013). A motion for summary disposition under MCR 2.116(C )(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012). 2 In deciding a motion under MCR 2.116(C)(10), we “review[] the entire record, including affidavits, depositions, admissions, or other documen tary evidence” in a light most favorable to the nonmoving party. Gorman , 302 Mich App at 115. To avoid dismissal on a motion for summary disposition under MCR 2.116(C)(10), the nonm oving party must “show[] by evidentiary materials that a genuine issue of disputed fact exists.” Auto Club Ins Ass’n v State Auto Mut Ins Co , 258 Mich App 328, 333; 671 NW2d 132 (2003). See also MCR 2.1 16(G)(4).

“In Michigan, tortious interfere nce with a contract or contrac tual relations is a cause of action distinct from tortious interference with a business rela tionship or expectancy.” Health Call of Detroit v Atrium Home and Health Care Servs, Inc , 268 Mich App 83, 89; 706 NW2d 843 (2005). The elements of a tortious interference with a bus iness relationship or expectancy

are
(1) the existence of a valid business relationship or expectanc y that is not necessarily predicated on an e nforceable contract, (2) knowledg e of the relationship or expectancy on th e part of the defendant interfe rer, (3) an intentional interference by the defendant inducing or causing a breach or termination of the relationship or expectancy, and (4) resultin g damage to the party whose relationship or expectancy was disrupted. [ Id . at 90.]

The elements of tortious interference with a contract, meanwhil e, are “(1) the existence of a contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the defendant.” Id . at 89-90.

In either case, “[o]ne who alleges tortious interference with a contractual or business relationship must allege the int entional doing of a per se wron gful act or the doi ng of a lawful act with malice and unjustified in law for the purpose of invading the contractual rights or business relationship of another.” Derderian v Genesys Health Care Sys , 263 Mich App 364, 382; 689 NW2d 145 (2004) (citation and quotation marks omitted). An act is wrongful per se if it is inherently wrongful or can neve r be justified under any circums tances. Badiee v Brighton Area Sch , 265 Mich App 343, 367; 695 NW2d 521 (2005). “To establish th at a lawful act was done with malice and without justifi cation, the plaintiff must demon strate, with specificity, affirmative acts by the defendant that corroborate the improper motive of t he interference.” Mino v Clio Sch Dist , 255 Mich App 60, 78; 661 NW2d 586 (2003) (citation omitted).

2 The trial court did not identify the specific legal grounds on which it granted defendant’s motion for summary disposition, but the comments at the hearing suggested that it considered material beyond the pleadings in reaching its decision. Accord ingly, review under the standards of MCR 2.116(C)(10) is appropriate in this case. See Besic v Citizens Ins Co of the Midwest, 290 Mich App 19, 23; 800 NW2d 93 (2010)

.-3- In the trial court, the judge s tated “. . . the [c]ourt has p reviously ruled that the father and son had no legal – there was no land contract, so there is no l egal relationship to interfere with. He was merely a tenant. That’s what this [c]ourt has ruled, so the [c]ourt will grant [d]efendant’s [m]otion for [s]ummary [d]isposition.” When plaintiffs attempt ed to assert that a landlord-tenant relationship was a business relationship, the court stated, “Ok ay. I’ve made a ruling. You can appeal. We have a jury trial.”

Here, we agree with plaintiffs that the trial court erred in i ts holding. The court’s holding was premised on its erroneous ru ling in father’s quiet-title ac tion that the purchase agreement violated the statute of frauds. However, the purchase agreemen t did not violate the statute of frauds because it was signed by father, the seller. Zurcher v Herveat , 238 Mich App 267, 277; 605 NW2d 329 (1999) (“Simply put . . . a contract for the sale of land must, to survive a challenge under the statute of frauds, (1) be in writing and (2 ) be signed by the seller or someone lawfully authorized by the seller in writing.”) Further, in th e quiet-title action, the trial court resolved a question of fact—whether son was father’s tenant—aga inst son, the nonmoving party, an impermissible judicial action on a motion for summary dispos ition. Manning v City of Hazel Park , 202 Mich App 685, 689; 509 NW2d 874 (1993). The trial judge then used that factual conclusion—which had not been c onclusively established—to dispe nse with plaintiffs’ claims in this case.

On appeal, defendant primarily asserts that there was no busin ess expectancy or contractual relationship on which to base plaintiffs’ claims. First, in regard to father’s quiet-title action, we declined to determine whether the alleged land contr act between father and son was valid, and remanded the issue to the trial court for further co nsideration. Likewise, here, we are not convinced at this point that summary disposition was proper on that basis alone, particularly given the trial court’s cursory determination. Second, we do n ot agree that, as a matter of law, that there was no evidence of a possible business expectancy be tween father and son. While there was no executed lease between the parties, son presented evidence that he made substantial improvements to the property and paid the taxes. Thus, there w as some evidence that son expected the relationship with hi s father as it related to the disputed property to continue.

Ultimately, we find the record in this case regarding the moti on for summary disposition, especially as it relates to th e trial court’s holding, lacking. This is especially true given the trial court’s erroneous conclusion. Thu s, we decline to decide wheth er the motion for summary disposition was proper, but rema nd for further determination by the trial court in light of our disposition, specifically our hol ding that the purchase agreeme nt did not violate the statute of frauds.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Kirsten Frank Kelly /s/ Karen M. Fort Hood /s/ Stephen L. Borrello