If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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

CONIFER HOLDINGS, INC.,

Plaintiff-Appellee,

UNPUBLISHED

August 24, 2023

v No. 361868

Oakland Circuit Court

INNOVATIVE NETWORK SOLUTIONS, INC., LC No. 2021-187044-CB

Defendant-Appellant.

CONIFER HOLDINGS, INC.,

Plaintiff-Appellant,

v No. 362147

Oakland Circuit Court

INNOVATIVE NETWORK SOLUTIONS, INC., LC No. 2021-187044-CB

Defendant-Appellee.

Before: GADOLA, P.J., and MURRAY and MALDONADO, JJ.

PER CURIAM.

In Docket No. 361868, defendant, Innovative Network Solutions, Inc., appeals by right the 

trial court’s judgment for plaintiff, Conifer Holdings, Inc., entered after a bench trial. In Docket 

No. 362147, plaintiff appeals by right the trial court’s post-judgment order denying its motion for 

case evaluation sanctions pursuant to former MCR 2.403(O).1 We affirm the judgment for plaintiff 

 

1 These appeals were consolidated “to advance the efficient administration of the appellate 

process.” Conifer Holdings, Inc v Innovative Network Solutions, Inc, unpublished order of the 

Court of Appeals, entered July 20, 2022 (Docket Nos. 361868 and 36147).
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in Docket No. 361868, vacate the trial court’s order denying case evaluation sanctions in Docket 

No. 362147, and remand for additional proceedings consistent with this opinion. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 2018, plaintiff purchased from defendant three computer system firewalls: a 5516 Cisco 

firewall to be used as plaintiff’s primary firewall in its Birmingham office, as well as a 5506 Cisco 

firewall and a 5508 Cisco firewall for use in plaintiff’s other locations. Plaintiff also contracted 

with defendant for support services in connection with these firewalls, but plaintiff did not

subscribe to Cisco’s Smart Net support service. In June 2020, the 5516 Cisco firewall failed, so

plaintiff purchased a second 5516 Cisco firewall from defendant to replace it. At the end of June 

2020, plaintiff terminated its support contract with defendant and chose Enertron as its information 

technology service provider. According to plaintiff, Enertron reviewed the status of the Cisco 

firewalls and determined that plaintiff was not the licensed owner with Cisco. Plaintiff alleges that 

defendant wrongfully sold used firewalls that jeopardized the security of plaintiff’s clients’ data. 

Plaintiff brought suit against defendant for breach of contract, breach of express warranty, and 

fraud/misrepresentation.

At trial, plaintiff’s witnesses testified that Cisco informed plaintiff that the firewalls came 

from an unauthorized distribution system, or the “grey market.”2 In order to become properly 

licensed with Cisco, plaintiff would have to comply with Cisco’s recertification and inspection 

procedures. Plaintiff was unwilling to cooperate with this procedure because its systems would be 

exposed to intrusion while the firewalls were under inspection. 

In its defense, defendant asserted that plaintiff was properly licensed with Cisco through 

the devices’ serial numbers. Defendant’s president testified that it was normal for firewall 

hardware to pass through overseas distributors before defendant purchased them and sold them to 

customers. He stated that plaintiff received new firewalls in factory-sealed packages. When 

plaintiff completed the registration process, the firewalls were properly licensed. Defendant 

asserted that the firewalls are always licensed under the serial number, and never under the 

customer’s name. Defendant argued that Cisco’s recertification process was necessary only if 

plaintiff wanted to subscribe to Cisco’s Smart Net support services. 

The trial court found that defendant breached the parties’ sales contract by selling plaintiff 

improperly licensed firewall hardware. The court reasoned that plaintiff was not “named as the 

registered person, purchaser[,] or licensed purchaser” of the firewalls even though plaintiff 

bargained to receive these benefits. The court found that plaintiff’s understanding was that the 

firewalls “were going to be registered to them in their name,” and it awarded plaintiff damages in 

the amount of $15,607.12, the cost of the new firewalls that plaintiff purchased to replace the Cisco 

firewalls. With respect to plaintiff’s fraud/misrepresentation claim, the court granted defendant’s 

 

2 We note that this and other testimony regarding conversations with Cisco representatives appears 

to be hearsay, and we question why it was admitted at trial. However, hearsay testimony was used 

by both parties, neither party objected in the trial court, and neither party raises the issue on appeal. 
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motion for a directed verdict. The court did not make any findings with respect to plaintiff’s breach 

of express warranty claim. 

Plaintiff subsequently moved for imposition of case evaluation sanctions against 

defendant. Plaintiff asserted that the case evaluation panel awarded plaintiff $12,000, which 

plaintiff accepted, but defendant rejected. Plaintiff argued that, although MCR 2.403 had been 

amended after the parties participated in the case evaluation to eliminate liability for sanctions, 

denying sanctions in this case would work an injustice against plaintiff. The trial court denied 

plaintiff’s motion. 

In Docket No. 361868, defendant appeals the court’s judgment in favor of plaintiff. In 

Docket No. 362147, plaintiff appeals the court’s denial of its motion for sanctions.

II. DOCKET NO. 361868

A. DEFENDANT’S LIABILITY

Defendant argues that the trial court erred by finding that it sold plaintiff improperly 

licensed firewalls. We disagree.

“We review a trial court’s findings of fact in a bench trial for clear error and its conclusions 

of law de novo.” Chelsea Investment Group, LLC v City of Chelsea, 288 Mich App 239, 250; 792 

NW2d 781 (2010). “A decision is clearly erroneous when, although there may be evidence to 

support it, we are left with a definite and firm conviction that a mistake has been made.” Pioneer 

State Mut Ins Co v Michalek, 330 Mich App 138, 145-146; 946 NW2d 812 (2019) (quotation 

marks and citation omitted). “Because this case was heard as a bench trial, the court was obligated 

to determine the weight and credibility of the evidence presented.” Wright v Wright, 279 Mich 

App 291, 299; 761 NW2d 443 (2008). In reviewing this matter, we defer to such determinations 

because of “the trial court’s superior ability to judge the credibility of the witnesses who appeared 

before it.” Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 

531; 695 NW2d 508 (2004) (quotation marks and citations omitted).

The parties agree that this dispute arises from defendant’s sale of goods to plaintiff, and is 

therefore governed by the Uniform Commercial Code, MCL 440.1101 et seq. 

Plaintiff argues on appeal that defendant breached the warranty of rightful transfer free 

from encumbrance because the firewalls were not licensed to plaintiff, and plaintiff could not 

obtain licensing without undergoing a certification process with Cisco. The implied warranty of 

title is found in MCL 440.2312, which provides:

(1) Subject to subsection (2) there is in a contract for sale a warranty by the 

seller that

(a) the title conveyed shall be good, and its transfer rightful; and

(b) the goods shall be delivered free from any security interest or other lien 

or encumbrance of which the buyer at the time of contracting has no knowledge.
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(2) A warranty under subsection (1) will be excluded or modified only by 

specific language or by circumstances which give the buyer reason to know that the 

person selling does not claim title in himself or that he is purporting to sell only 

such right or title as he or a third person may have.

(3) Unless otherwise agreed a seller who is a merchant regularly dealing in 

goods of the kind warrants that the goods shall be delivered free of the rightful 

claim of any third person by way of infringement or the like but a buyer who 

furnishes specifications to the seller must hold the seller harmless against any such 

claim which arises out of compliance with the specifications.

We do not consider the merits of plaintiff’s warranty of title argument because it was not 

raised in the trial court and because the trial court’s judgment in favor of plaintiff was based on 

breach of contract, not breach of warranty. Plaintiff brought three claims against defendant: (1) 

breach of contract; (2) breach of express warranty; and (3) fraud. The warranty of title is an implied 

warranty that is recognized in all contracts, unless expressly disclaimed, by MCL 440.2312. 

Plaintiff’s claim was for the alleged breach of an express warranty premised on its contention that 

Defendant, in order to induce Plaintiff to purchase the firewalls, represented 

to plaintiff as follows:

a. the firewalls are new; and

b. the firewalls are supported by Cisco; and

c. Plaintiff would receive support from Cisco for three (3) years.

Plaintiff’s lower court pleadings have no reference to the implied warranty of title nor the statute 

in which this warranty is recognized. We decline plaintiff’s invitation to consider an entirely new 

cause of action for the first time on appeal. See Booth Newspapers, Inc v Univ of Mich Bd of 

Regents, 444 Mich 211, 234 n 23; 507 NW2d 422 (1993) (“This Court has repeatedly declined to 

consider arguments not presented at a lower level . . . . We have only deviated from that rule in 

the face of exceptional circumstances.” (citation omitted)).

The trial court’s judgment and assessment of damages was based wholly on plaintiff’s 

breach of contract claim; it made no findings with respect to plaintiff’s breach of express warranty 

claim. MCL 440.2202 provides:

Terms with respect to which the confirmatory memoranda of the parties 

agree or which are otherwise set forth in a writing intended by the parties as a final 

expression of their agreement with respect to those terms as are included in that 

memoranda or writing may not be contradicted by evidence of any prior agreement 

or of a contemporaneous oral agreement but may be explained or supplemented by 

any of the following:

(a) By course of performance, course of dealing, or usage of trade under 

section 1303.
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(b) By evidence of consistent additional terms unless the court finds the 

writing to have been intended also as a complete and exclusive statement of the 

terms of the agreement. 

The trial court’s finding that defendant breached its contract with plaintiff was premised 

on its finding that the parties agreed plaintiff would be registered with Cisco as the firewalls’ 

licensed purchaser and owner, but this did not happen. The evidence supports this finding, with 

the most compelling evidence being the invoices. As noted above, the primary firewall was located 

at plaintiff’s Birmingham office and the other two firewalls operated through this firewall. The 

Birmingham firewall was purchased in 2018, and it was replaced in 2020 when it ceased 

functioning properly. The invoices accompanying both the 2018 and 2020 purchases indicate that 

plaintiff purchased both licenses and three years of support services from Cisco. The invoices are

consistent with the testimony of plaintiff’s Chief Information Officer, Jason Brawner, which 

established that, at the time of purchase, he expected the products to be licensed with Cisco. 

Brawner testified that he was informed by Cisco that he could not obtain support from them 

without undergoing a recertification process involving an inspection, and Michael Green, 

Enertron’s director of IT, testified that plaintiff would not have needed to recertify the firewalls if 

they had been properly licensed in plaintiff’s name. Green further testified that the firewalls did 

not come through “normal channels” but that they instead came from “grey market” channels.

Defendant argues that the trial court and plaintiff mistakenly perceived the certification and 

inspection process as a requirement to resolve a defect in licensing status when it was really a 

requirement to establish a subscription for support. Neither party presented testimony from a Cisco 

representative. Therefore, the trial court was required to rely on the parties’ testimony regarding 

their understanding of Cisco’s relationship with the end-users of its products. Jason Brawner

testified that he tried to “obtain licenses” from Cisco, but defendant did not cooperate. He denied 

ever seeing a document establishing plaintiff’s license to use the firewalls. The documents plaintiff 

obtained from Cisco showed that plaintiff was not the original customer for the firewalls. 

Enertron’s service provider testified that he determined that the Cisco “account” was not in 

plaintiff’s name. As noted above, he learned that Cisco regarded the firewalls as coming from “the 

grey market” rather than through “normal channels.” He stated that he learned from Cisco that the 

“part numbers” or the “hard-coded serial numbers on the devices themselves” indicated that the 

parts were sourced from Asia. 

The trial court questioned Green as follows:

Q. You indicated . . . that the recertification was due to the registration 

of . . . the firewalls?

A. So in the communication, the recertification was required because . . . 

the hardware was . . . determined to be grey market. Which grey market means that 

the original place isn’t—it’s not black market, but it’s not due to normal channels. 

I don’t know the exact piece of that process, but it’s—the designation that they 

provide to it is grey market.

Q. Okay. Can you explain to me what you mean by grey market?
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A. So grey market would be that when you went through the process to—

grey market would be Cisco’s designation for something that when—when it was 

check on [sic] for the serial number, they expect to see a specific origin of it. And 

based on our communications with them, they said it would have come out of 

somewhere in Asia, which I believe to be where it was originally liked sourced. 

Because part numbers are sold on a regional basis, so U.S. and other place have 

their own parts that would be part of that—(undecipherable)—. So they had 

designated part numbers for various regions of what they sell.

Q. Okay so—but this was an item—then how did Cisco—even though—

whether the licenses were in plaintiff’s name or not, how did Cisco say that these 

were items that they would—

A. So there’s hard-coded serial numbers on the devices themselves and 

that’s what we used to reference to Cisco when we reached out. You know, we 

provided the—the license—or the serial numbers on the devices and—and just 

asked about what’s needed to get them transferred. And when we—when we asked 

to get them transferred, that’s when they responded they were—they were grey 

market and they were required to be inspected.

Q. Okay. Now, if plaintiff had the license, it wouldn’t have mattered to 

Cisco at that point? They would have just continued to service the product, upgrade 

it—I guess service might not be a good word —upgrade the—the product as need 

be?

A. So if the—if the licenses were available—I’m gonna answer in the 

manner that I believe. If—if they would have been licensed, then they wouldn’t be 

grey market cause they would have been properly licensed on the product itself. 

You have to link a license with the serial number. And because we couldn’t do that 

initial part, I don’t think that there could have been a license associated with it, if 

that makes sense.

Q. Okay. So you’re saying that these firewalls were not licensed at all. Is 

that—do I understand you correctly?

A. Cisco couldn’t provide that information and they required for them to 

be—but based on my understanding, no.

Q. Okay. So I don’t know that you actually answered my question—

A. I’m sorry—

Q. —maybe you can’t answer my question. That’s fine. But I kind of get 

the impression that you’re saying that if they were—if they were licensed, that’s 

not—there wouldn’t be an issue.

A. If they were licensed, we could have transferred the device into the 

account and that would have been the end of the process. 
-7-

This testimony established that Cisco informed plaintiff of a defect in plaintiff’s right to 

use the firewalls. The witness was clearly speaking about licensure and right of use, not merely 

eligibility to obtain a warranty or eligibility to subscribe to Cisco’s support services. His testimony 

contradicted defendant’s assertion that Cisco required recertification for the sole purpose of 

providing plaintiff technical support services and that plaintiff’s licensure status was never 

impaired or defective. His testimony that “[y]ou have to link a license with the serial number,” 

and his explanation that Cisco was unable to do this for plaintiff’s devices contradicted defendant’s 

president’s testimony that the serial number alone settled the license. His testimony also 

contradicted the testimony of defendant’s president that the only problem between plaintiff and 

Cisco was that plaintiff wanted Cisco’s technical support without having to go through the 

recertification and inspection process. Moreover, the trial court’s questions indicate that, contrary 

to defendant’s arguments on appeal, it understood the distinction between licensure and support. 

Therefore, we conclude that the trial court did not err by finding that defendant breached 

its contract with plaintiff.

B. DAMAGES

Defendant argues that the trial court improperly determined that plaintiff was entitled to 

damages for the cost of replacing the Cisco firewalls and that plaintiff breached its duty to mitigate 

damages.

3

 We disagree. 

MCL 440.2714(1) provides: “Where the buyer has accepted goods and given notification 

(subsection (3) of section 2607) he may recover as damages for any nonconformity of tender the 

loss resulting in the ordinary course of events from the seller’s breach as determined in any manner 

which is reasonable.”

Defendant argues that the court “mistakenly assessed damages.” However, the essence of 

defendant’s argument is essentially a rehash of its argument that it did not breach the contract. 

Defendant argues that plaintiff “got the benefit of its bargain—it paid for firewalls with licenses 

and got firewalls with licenses. Under MCL 440.2714(1), damages are therefore $0.” This 

argument is without merit because, as discussed above, plaintiff did not get firewalls with licenses.

Defendant also argues that plaintiff failed to mitigate damages. “Mitigation of damages is 

a legal doctrine that seeks to minimize the economic harm arising from wrongdoing.” Landin v 

Healthsource Saginaw, Inc, 305 Mich App 519, 538; 854 NW2d 152 (2014). “Specifically, when 

one has committed a legal wrong against another, the latter has an obligation to use reasonable 

means under the circumstances to avoid or minimize his or her damages and cannot recover for 

 

3

Isolated comments in defendant’s brief suggest that plaintiff was entitled only to a refund for the 

license fees rather than replacement costs because the latter would result in an impermissible 

windfall. However, to the extent defendant does raise this argument, it has been abandoned 

because it was not raised in the statement of questions presented nor was it developed in

defendant’s analysis. See MCR 7.212(C)(5); In re Warshefski, 331 Mich App 83, 87; 951 NW2d 

90 (2020).
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damages that could thus have been avoided.” Id. Defendant argues that plaintiff could have 

limited its damages by paying $2,400 for recertification by Cisco. It argues that the trial court 

erred by failing to limit plaintiff’s damages to that amount. Plaintiff argues that recertification was 

not a viable option because the hardware would have needed to be physically shipped to Cisco for 

an inspection, and this would have left plaintiff exposed, while defendant asserts that a 

representative from Cisco could have gone to plaintiff and performed the inspection on site without 

disconnecting the firewalls. However, the record before us is not clear regarding whether the 

firewalls would have needed to be disconnected and shipped.

Plaintiff relies primarily on the testimony of Michael Green, Enertron’s director of IT. In 

particular, plaintiff emphasizes the following excerpt:

Q. Mr. Green, are you familiar with—regarding the firewalls—are you 

familiar with what—at that point in time—what needed to be done if Conifer 

wanted to use those firewalls?

A. Due to the nature of how they were acquired, the firewalls would need 

to be recertified. So they’d have to be sent in and then go through the recertification 

process in order to be licensed.

Defendant’s position is likewise supported by testimony from Michael Green:

Q. You mentioned the recertification process. The recertification involves 

a physical inspection, correct?

A. Correct.

* * *

Q. All right. But it was available to Conifer to have somebody come out 

and do physical inspections of its firewalls on behalf of Cisco, correct?

A. In order to—to re-license the firewall and put them in an account on their 

own, it was required.

Green’s answer suggests that it was required that a representative of Cisco come to inspect the 

hardware in order to complete the recertification.

Plaintiff’s Chief Information Officer, Jason Brawner, testified that he did not know what 

the recertification process entailed:

Q. All right, you mentioned that when that happened, you had some ability 

to—with your existing Cisco firewalls to perform a recertification with an 

inspection, correct?

A. Yeah, it’s my understanding from Cisco that we—we—we could go 

through a recertification process.
-9-

Q. Which would have involved somebody coming out from Cisco to take 

a look, correct?

A. I’m not sure the exact process, if it—if they physically came on site or 

if we had to ship the machines. I don’t know exactly how that process works.

Q. All right. You decided personally, on behalf of Conifer, not to take that 

path in the road, correct?

A. Correct.

Q. With the understanding that if you had taken that path, you could have 

achieved certification from Cisco, correct?

A. Potentially.

Finally, defendant’s company President, Robert Roche testified that Cisco would have sent a 

representative out for what he referred to as a “field inspection” and that plaintiff balked at this 

option because it did not want to pay the fee.

On balance, it is unclear from the record whether plaintiff failed to mitigate damages. The 

only evidence suggesting that the firewalls would need to be disconnected to undergo 

recertification was a comment from Michael Green that they would need to be “sent in.” While 

there was evidence suggesting that, at a minimum, plaintiff failed to meaningfully explore the 

possibility of recertification, the evidence is conflicting. Importantly, the court was hamstrung by 

the fact that no representatives from Cisco testified, and it was therefore left to sort through 

secondhand accounts of their procedures. Because defendant, as the breaching party, had the 

burden to establish that plaintiff did not mitigate damages, see M & V Barocas v THC, Inc, 216 

Mich App 447, 449-450; 549 NW2d 86 (1996), and because we review for clear error, we decline 

to disturb the trial court’s findings. 

For these reasons, we conclude that the trial court did not err by deeming defendant liable 

for the cost of replacing the firewalls because defendant did not establish that plaintiff failed to 

mitigate damages.

In conclusion, the arguments raised by defendant on appeal are each without merit.

III. DOCKET NO. 362147

Plaintiff argues that the trial court erred by denying its post-judgment motion for case 

evaluation sanctions. Because the trial court failed to assess whether application of the new rules 

would work an injustice, we vacate the court’s order denying sanctions and remand for additional 

proceedings.

Issues concerning the application of a court rule are subject to de novo review. Safdar v 

Aziz, 501 Mich 213, 217; 912 NW2d 511 (2018). “However, a trial court’s decision whether the 

application of new court rules would ‘work injustice’ under MCR 1.102 entails an exercise of 

discretion.” Reitmeyer v Schultz Equipment & Parts Co, Inc, 237 Mich App 332, 336; 602 NW2d 
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596 (1999). A trial court abuses its discretion if its decision “is outside the range of reasonable 

and principled outcomes.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 604; 886 NW2d 

135 (2016). 

At the time the parties participated in case evaluation, MCR 2.403(O) provided for the 

imposition of sanctions against a party who rejected a case evaluation award and failed to obtain 

a more favorable verdict at trial. The case evaluation panel in this case unanimously awarded 

plaintiff $12,000. On November 4, 2021, the parties were notified that plaintiff had accepted this 

award and that defendant had rejected it by failing to file a response. Thereafter, on December 2, 

2021, MCR 2.403 was amended, effective January 1, 2022, to remove Subrule (O), thereby 

eliminating the sanction provisions. The bench trial was conducted on April 1, 2022. After 

receiving a favorable verdict at trial, plaintiff moved for case evaluation sanctions pursuant to

former MCR 2.403(O), but the trial court denied plaintiff’s motion, simply stating: “Plaintiff’s 

Motion to Assess costs is DENIED, pursuant to MCR 2.403(L).” 

MCR 1.102 provides:

These rules take effect on March 1, 1985. They govern all proceedings in 

actions brought on or after that date, and all further proceedings in actions then 

pending. A court may permit a pending action to proceed under the former rules if 

it finds that the application of these rules to that action would not be feasible or 

would work injustice.

With respect to amended court rules, the general rule is to apply newly adopted or amended court 

rules “to pending actions unless there is reason to continue applying the old rules.” Reitmeyer, 

237 Mich App at 337 (quotation marks and citation omitted). There is no bright-line rule for 

determining when an amended or previous version of a rule applies in a given case. Instead, “a 

court must look more closely to the particular circumstances of the case at issue and at the purpose 

of the amendment.” Id. at 342. 

In Reitmeyer, the plaintiff moved for sanctions and attorney fees pursuant to the offer-ofjudgment rule, MCR 2.405, which at that time, imposed sanctions against a party who rejected an 

offer of judgment and then received a less favorable verdict. Id. at 334-335. The trial court denied 

the plaintiff’s motion because it concluded that the amendment applied retrospectively. Id. at 335-

336. This Court vacated the trial court’s denial of the plaintiff’s motion for sanctions and attorney 

fees because there was “no evidence that the trial court relied on the language of MCR 1.102 to 

undertake an examination of whether application of the amended version of MCR 2.405 would 

‘work injustice.’ ” Id. at 336. Rather, “the trial court rested its determination that the amended 

court rule was to apply in this case on the fact that procedural rules are to operate retrospectively 

in the absence of a clear contrary intention.” Id. This Court concluded that this was “not the 

proper analysis” because the determination of whether a rule should be applied retroactively or 

prospectively is governed by MCR 1.102. Id. at 337.

Reitmeyer controls in this case. The trial court did not offer any reasons for its rejection of 

plaintiff’s motion, and it does not appear that it considered MCR 1.102 at all. However, this Court 

made clear in Reitmeyer that “a decision under MCR 1.102 requires an individual determination 

in this (and in every) case whether such ‘injustice’ would result from the application of the 
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amended” rule. Id. at 345. The court’s limited decision provides no indication that it recognized 

its discretion to consider whether application of the amended rule to deny sanctions to plaintiff 

would work an injustice under the circumstances of the case. Therefore, we vacate the trial court’s 

order denying sanctions and remand for consideration of the MCR 1.102 “injustice” exception as 

it pertains to MCR 2.403 as amended and the specific facts of this case. See Id.

IV. CONCLUSION

We affirm the judgment for plaintiff in Docket No. 361868, vacate the trial court’s order 

denying case evaluation sanctions in Docket No. 362147, and remand for additional proceedings

consistent with this opinion. We do not retain jurisdiction. 

/s/ Michael F. Gadola

/s/ Christopher M. Murray

/s/ Allie Greenleaf Maldonado