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### STATE OF MICHIGAN

COURT OF APPEALS

LEONARDO HARPER LLC,

Plaintiff-Appellant, UNPUBLISHED March 21, 2017

v No. 329338

Macomb Circuit Court

LANDMARK COMMERCIAL REAL ESTATE SERVICES INC., JOHN KELLO, and CLINTHARP LLC, LC No. 2014-000805-CB

Defendant-Appellees.

Before: T ALBOT , C.J., and M URRAY and B OONSTRA , JJ.

P ER C URIAM

.

Plaintiff Leonardo Harper LLC (Harper) appeals as of right an order denying its motion for summary disposition and gran ting summary disposition pursua nt to MCR 2.116(C)(10) to

defendants Landmark Commercial R eal Estate Services, Inc., John Kello, and Clintharp, LLC. For the reasons stated herein, we affirm.

I. FACTS AND PROCEDURAL HISTORY

This case arises from a real estate development deal that culm inated in a property sale. Nicholas Lavdas, the owner of Harper, owned two parcels of vaca nt land in Clinton Township. Kello, a real estate broker with whom Lavdas had previously wor ked, approached Lavdas about the possibility of developing Lavdas’s vacant land into a Famil y Dollar Store (FDS). Kello, on behalf of his employer Landmark, entered into an agreement with Lavdas. In the agreement, Landmark stated that it “represen ts and has procured [FDS] as a prospective tenant” for Lavdas’s vacant land. The agreement also specified that in the event FD S signed a lease for the property, Lavdas agreed to pay Landmark “a leasing/brokerage commission.”

Kello provided Lavdas with FDS’ prototypical store plans, but Michael Gordon— Lavdas’s architect for the development project—concluded that a store with FDS’ prototypical layout would not fit on Lavdas’s two parcels of land and that a n additional parcel of land was necessary to accommodate the store. Gordon advised Kello of th at fact, and Kello asked Lavdas to prepare a site plan using his two parcels of land as well as an adjacent parcel of land. Lavdas attempted to buy an adjacent parcel of land, but after months o f negotiations, Lavdas was unable to acquire an adjoining parcel of land for an economically feas ible price. Accordingly, Kello discussed with Lavdas a potential sale of his two parcels to an other party that was interested in-2- entering into a lease with FDS on the property and introduced L avdas to the interested buyer, Isam Yaldo, Clintharp’s principal.

Lavdas and Clintharp entered into an agreement for the sale of Lavdas’s two parcels of land and signed a purchase agreement that provided, in part, th at “the intended use of the Property and other property which Buyer may acquire shall be a retail building for the operation of a Family Dollar store.” The agreement also specified that “ [Lavdas] shall be responsible for paying a broker commission of six percent (6%) of the gross sal es price at Closing to Landmark [] who represents only [Clintharp] in this transaction.” Furth er, pursuant to the agreement, Clintharp had 180 days to inspect the two parcels of land and t he sale was to be closed 30 days after Clintharp provided written notice that it was going to pu rchase. During the inspection period, Clintharp sought variances f rom the Clinton Township Bo ard of Appeals in order to build a store for FDS utilizing only Lavdas’s two parcels of land, an d Lavdas was advised that Clintharp was seeking a variance and that the variance had been approved. Clintharp eventually exercised its right under the purc hase agreement, and the sale of Lavdas’s two parcels of land was completed.

On March 6, 2014, plaintiff file d its complaint asserting that Kello made several material misrepresentations to plaintiff while acting as its agent “and/ or fiduciary” during the real estate transactions. Plaintiff alleged that in an effort to induce pl aintiff into selling the property so that Clintharp, rather than plaintiff, could secure the benefit of F DS as a lease tenant, Kello falsely represented to plaintiff that: (1) plaintiff’s property was not large enough to lease to FDS, (2) plaintiff had to acquire adjacent property in order to develop an FDS store, (3) and that Clintharp intended to acquire a third parce l of land in order to develop an FDS store on plaintiff’s property. Plaintiff claimed to have relied on these alleged misrepresenta tions when it attempted to acquire the adjacent property and agreed to sell the two parcels to Cli ntharp. Based on these allegations, plaintiff made claims of: fraud/ misrepresentation against Landm ark and Clintharp, respondent superior against Landmark, neglig ent supervision against Landma rk, fraud in the inducement against Kello, Landmark, and Clintharp, silent fraud against La ndmark and Kello, breach of fiduciary duties against Landmark and Kello, tortious interfere nce with a business relationship or expectancy against Kello, Landm ark, and Clintharp, statutory an d/or common law conversion against Kello, Landmark, and Clin tharp, and civil conspiracy an d/or concert of action against Kello, Landmark, and Clintharp.

Defendants subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(10), asserting “[t]he nexus of Plaintiff’s claims is t hat Landmark and Kello breached their duties owed to the Plaintiff as its alleged agents by mis representing” certain information to plaintiff. However, defendants ar gued that, “Plaintiff’s claim s fail because Landmark and Kello were never the Plaintiff’s agent s.” In response, plaintiff fil ed a motion for partial summary disposition on its fraud, breach of fiduciary duty, and tortiou s interference with a business expectancy claims, arguing “there is no question of fact under Michigan law that Kello was, in fact, the broker for [plaintiff] at all relevant times” and “th ere is no question of fact on liability for fraud.” Plaintiff argued that Kello’s actions clearly indi cated an agency relationship existed between the parties, and pointed to documentary evidence and Ke llo’s deposition testimony to support its contention.-3- The trial court held a hearing on the motions and issued a wri tten opinion and order denying plaintiff’s partial moti on for summary disposition and granting summary disposition to defendants pursuant to MCR 2.116(C)(10). In its opinion, the t rial court found that “there is no genuine issue of material fact t hat Defendant Kello was not Pla intiff’s agent,” so held that defendants were entitled to summary disposition on plaintiff’s claims of respondent superior, negligent supervision, breach of fiduciary duties, and silent f raud, as they were “based [on] the premise that Landmark/Defendant Kello were its agent” or broker . The trial court also found that plaintiff failed to establish that Kello made the alleged misrepresentation, so granted defendants’ motion for summary disposition as to plaintiff’s cl aims for fraud/misrepresentation and fraud in the inducement. For similar reasons, the trial co urt found defendants were entitled to summary disposition of plaintiff’s claims for tortious inter ference, conversi on, and conspiracy

and concert or action.

Plaintiff filed a motion for reconsideration asking the court to reconsider its order granting defendants’ motion for summary disposition and denying plaintiff’s motion for partial summary disposition, but the cour t entered a written opinion an d order denying plai ntiff’s motion for reconsideration. This appeal then resulted. 1

II. ANALYSIS

A. AGENCY

Plaintiff argues the trial court erred in concluding that ther e was no genuine issue of material fact regarding whether an agency relationship existed between the parties or whether Kello made the alleged misrepresentations.

This Court reviews a trial court’s decision on a motion for su mmary disposition de novo.

Johnson v Recca , 492 Mich 169, 173; 821 NW2d 520 (2012). Summary disposition may be granted when, “[e]xcept as to the amount of damages, there is n o genuine issue as to any material fact, and the moving party is e ntitled to judgment or partial j udgment as a matter of law.” MCR 2.116(C)(10). To determine whether the movant was entitled to judgment as a matter of law, this

Court reviews the record in the same manner as the trial court. Morales v Auto-Owners Ins , 458 Mich 288, 294; 582 NW2d 776 (1998). Review is limited to the e vidence that had been presented to the trial court at t he time the motion was decided

. Innovative Adult Foster Care, Inc v Ragin , 285 Mich App 466, 476; 776 NW2d 398 (2009). A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds could differ. Debano-Griffin v Lake County , 493 Mich 167, 175; 828 NW2d 634 (2013).

Whether an implied agency exists is a factual determination. AFP Specialties, Inc v Vereyken , 303 Mich App 497, 505; 844 NW2d 470 (2014). If the record is conflicting, the existence of an agency relationship is for a jury to decide. Meretta v Peach , 195 Mich App 695, 697; 491 NW2d 278 (1992). However, “where the relationship of the parties has been defined

1 On appeal, plaintiff does not cha llenge the trial court’s deni al of its motion for reconsideration.-4- by written agreement, it is the province of the trial judge to determine the relationship.” Birou v Thompson-Brown Co , 67 Mich App 502, 506-507; 241 NW2d 265 (1976), citing Keiswetter v

Rubenstein , 235 Mich 36, 42; 209 NW 154 (1926).

An agency relationship is “a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions.” Breighner v Mich High Sch Athletic Ass’n , 255 Mich App 567, 582-583; 662 NW2d 413 (2003). “[W]hether an agency ha s in fact been created is to be determined by the relations of the parties as they exist und er their agreements or acts, with the question being ultimately one of intention.” Van Pelt v Paull , 6 Mich App 618, 623-624; 150 NW2d 185 (1967). “An agency relationship may arise when there is a manifestation by the principal that the agent may act on his account,” and “[t]he te st of whether an a gency has been created is whether the principal has a right to control the act ions of the agent.” Meretta , 195 Mich App at 697-698; see also Tax Serv, LLC v Detroit Pub Schs , 485 Mich 69, 80; 780 NW2d 753 (2010) (“Fundamental to the existence of an agency relation ship is the right of the principal to control the conduct of the agent.”).

“ ‘An implied agency must be an agency in fact ; found to be so by reasonable deductions,

drawn from disclosed facts or circumstances.’ ” AFP Specialties, Inc , 303 Mich App at 507, quoting Weller v Speet , 275 Mich 655, 659; 267 NW 758 (1936). “ [T]he facts and circu mstances giving rise to an implied agency must be (1) known to the alleg ed principal, (2) within the control of the alleged principal, and (3) either explicitly ack nowledged or at least acquiesced in by the alleged principal.” Id . In determining whether an agency relationship exists, a cour t considers “every relation in which one person acts for or repre sents another by his authority.” St

Clair Intermediate Sch Dist v Intermediate Ed Ass’n/Mich Ed Ass’n , 458 Mich 540, 557; 581 NW2d 707 (1998).

Plaintiff did not present evidence sufficient to create a genu ine issue of material fact that an agency relationship existed be tween it and defendants. Firs t, both the commission agreement and purchase agreement clearly state that Landmark and Kello re presented FDS and Clintharp. Plaintiff presented Lavdas’s d eposition testimony to support th e contention that, notwithstanding that language, its agreement to pay Landmark a lease commission and Lavdas’s personal relationship and course of dealing with Kello created an agency relationship between them. However, plaintiff presented no evidence that in seeking to fac ilitate the deal to develop plaintiff’s land for F DS, Kello held himself out as plaintiff’s agent. On the other hand, defendant presented evidence in the for m of deposition testimony from Kel lo, that Kello held himself out as only FDS and Clintharp’s agent.

Second, plaintiff provided no evidence establishing it manifes ted an intention to have Kello act on its behalf. In fact, the evidence submitted to th e trial court supports the opposite conclusion, as plaintiff only sough t Kello’s assistance in dete rmining the adjacent land owner’s information in order to purchase a third parcel of land, but di d not send Kello to facilitate the purchase of the land or negotiate the purchase on plaintiff’s b ehalf. Additionally, while plaintiff asserted that Kello acted on its behalf by acting as an interme diary between it and FDS and-5- assisting plaintiff in its attempt to acquire an adjacent parce l of land, those actions were consistent with Kello acting as FDS’ agent. 2

Last, plaintiff offered no evidence demonstrating that it exer ted control over Kello, nor is there evidence that Kello had the authority to bind plaintiff. In fact, the evidence presented to the trial court shows the contrary, as the documentary evidence demonstrates that Kello repeatedly sought plaintiff’s assent to move forward and had no authority to bind plaintiff to the deal. Thus, considering the fact s in a light most favorable to plaintiff, the evidence does not create a factual question regarding the existence of an agency relationship between the parties. Accordingly, the trial court did not err in granting summary di sposition on plaintiff’s claims of respondent superior, negligent s upervision, breach of fiduciary duties, and silent fraud on that

basis.

B. FRAUD ISSUES

Both fraudulent misrepresentation and fraud in the inducement require proof that the defendant made a false representation. See Bergen v Baker , 264 Mich App 376, 382; 691 NW2d 770 (2004) (“A claim for fraudulent misrepresentation or action able fraud generally requires a showing” in part, that, (1) “the defendant made a material repr esentation; [and] (2) the representation was false.”); Custom Data Sols, Inc v Preferred Capital, Inc , 274 Mich App 239, 242-243; 733 NW2d 102 (2006) (“To establish a fraud in the indu cement, a party must show [in part] that (1) the defendant made a material representation; [a nd] (2) the representation was false.”). Tortious interference with a business relationship r equires proof of an intentional interference by the defendant, Mino v Clio Sch Dist , 255 Mich App 60, 78; 661 NW2d 586 (2003), and conversion requires th e defendant to have wrongfull y exerted domain over another’s personal property, Aroma Wines & Equip, Inc v Colu mbian Distribution Servs, Inc , 303 Mich App 441, 447; 844 NW2d 727 (2013), aff’d a nd remanded sub nom Aroma Wines & Equip, Inc v
Columbian Distribution Services, Inc , 497 Mich 337 (2015).

Here, plaintiff asserted that Kello falsely informed plaintiff that: (1) additional property was required in order to secure the lease with FDS, and that (2 ) without additional land FDS would not sign as a lease tenant on plaintiff’s land. Accordin g to plaintiff, these alleged misrepresentations served as the bases of its fraud claims and constituted proof that Kello intentionally interfered with plaintiff’s potential FDS lease and wrongfully exerted domain over plaintiff’s property by fraudulen tly inducing him into the sale of the land. To support these

2 Plaintiff asserts that none of the written agreements indicate that Kello was exclusively FDS’ or Clintharps’ agent, indicating Kello was acting as a dual agent. “[D]ual agency occurs when two persons or entities agree to share the services of an individua l for a single act.” Vargo v Sauer

, 457 Mich 49, 69; 576 NW2d 656 (1998). While dual agency can ex ist, it arises “only with the knowledge and informed consent, in writing, of both the seller and the buyer.” MCL 339.2517(2). Thus, while Kello was not prohibited from acting as a dual agent, he could do so only with the knowledge and informed consent of plaintiff and F DS and Clintharp. However, there was no written agreement to share Kello or Landmark’s ser vices in the development or sale of the subject property.-6- claims, plaintiff offered Lavda s’s deposition testimony where h e asserted that Kello made the misrepresentations to him. The documentary evidence presented to the trial court demonstrates that Kello provided plaintiff w ith FDS’ prototypical plans, andindicated that, “FDS is very particular about site plan layouts.” However, plaintiff offere d no evidence demonstrating that Kello represented to plaintiff th at FDS required any potential development to strictly comply with the prototypical specifications or that FDS was unwilling to accept a variance if proposed by the developer.

Further, the evidence presented to the trial court demonstrate s that it was Gordon—rather than Kello—who concluded that pla intiff’s two parcels of land w ere not large enough for a prototypical FDS store and determined that a third parcel of la nd was necessary to move forward with the development project. T he record shows that Kello left the execution of the store layout and planning to plaintiff and Go rdon, encouraged plaintiff to c ome up with a development plan utilizing just two parcels of land even after Gordon concluded they were too small, and attempted to aid in the development of the property utilizing the third parcel of land only after Gordon concluded the two parcels were insufficient for the deve lopment. Thus, the evidence

shows that it was Gordon who concluded the FDS would not fit on Lavdas’s two parcels of land and that a third parcel of land was required. Further, the evi dence demonstrates that Kello merely parroted that conclusion in an effort to move the deal f orward utilizing the development plan devised by plaintiff’s architect. Accordingly, the trial court did not err in granting summary disposition on plaintiff’s clai ms of fraudulent misrepresentati on, fraudulent inducement, tortious interference, and conversion.

Plaintiff also argues the trial court erred in granting summar y disposition to defendants on its silent fraud claim, as Kello was under a duty to disclos e even absent an agency relationship. Generally, absentmanifest injustice an issue no t raised and considered before the trial court is not preserved for appeal. See Herald Co, Inc v City of Kalamazoo , 229 Mich App 376, 390; 581 NW2d 295 (1998); Adam v Sylvan Glynn Golf Course , 197 Mich App 95, 98; 494 NW2d 791 (1993). Here, during the summary disposition proceedi ngs plaintiff did not make the arguments it now asserts on appeal—that the Real Estate Broker’ s Act (REBA) and National Association of Realtors (NAR) pr ofessional rules of conduct imp osed a duty of disclosure on Kello, and that Kello’s alleged violation of those duties provi ded grounds to void the purchase agreement between plaintiff and Clintharp—and the trial court n ever addressed the arguments. Therefore, this issue is unpreser ved and we decline to review t his unpreserved issue because our review is not necessary to preven t a manifest injustice, as the trial court did not err in granting summary disposition to defendants on plaintiff’s silent fraud c laim.

Plaintiff also argues that the trial court abused its discret ion in failing to permit plaintiff to amend its complaint. Generally, this Court reviews a trial court’s decision on a motion to amend a complaint for an abuse of discretion. Diem v Sallie Mae Home Loans, Inc , 307 Mich App 204, 215-216; 859 NW2d 238 (2014). “ ‘The trial court abus es its discretion when its decision results in an outcome that falls outside the range of reasonable and principled

outcomes.” ’ Sulaica v Rometty , 308 Mich App 568, 589-590; 866 NW2d 838 (2014) (citation omitted).

Trial courts generally grant motions to amend a complaint. Diem , 307 Mich App at 216. “Except as provided in [MCR 2.118(A)(1)], a party may amend a p leading only by leave of the-7- court or by written consent of the adverse party.” MCR 2.118(A )(2). The rule also directs that “[l]eave shall be freely given when justice so requires.” Id . “Because a court should freely grant leave to amend a complaint when justice so requires, a motion t o amend should ordinarily be denied only for particularized r easons” that “include undue del ay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the defendant, or futility.” Wormsbacher v Seaver Title Co , 284 Mich App 1, 8; 772 NW2d 827 (2009). A trial court “must spe cify its reasons for denying [a ] motion” to amend a complaint, and “failure to do so requires reversal, unless amendment would be futile.” Kincaid v Flint , 311 Mich App 76, 95; 874 NW2d 193 (2015) ( citation and quotation ma rks omitted).

The appellant is responsible fo r securing and filing the trans cripts of the lower court proceedings. MCR 7.210(B)(1)(a). Here, the register of action s indicates that a hearing on plaintiff’s motion to amend was held on the record on July 21, 2014. Following the hearing, the trial court entered an order denying plaintiff’s motion to file an amended complaint “without prejudice for the reasons stated on the record.” However, plai ntiff has failed to provide this Court with a transcript of the July 21, 2014 hearing, nor has a certificate been filed by the court reporter verifying that the transcript was ever ordered. Furth er, plaintiff did not move for less than the full transcript or sti pulate with defendants to file l ess than the full transcript. MCR 7.210(B)(1)(c) and (d). Thus, plai ntiff is in violation of MCR 7.210(B)(1)(a), “which constitutes

a waiver of the issue.” Shinn v Michigan Assigned Claims Facility , 314 Mich App 765; 887 NW2d 635 (2016), citing People v Wilson , 196 Mich App 604; 615, 493 NW2d 471 (1992); see

also Universal Gym Equip, Inc v Vic Tanny Intern, Inc , 209 Mich App 511, 512; 531 NW2d 719 (1994) (“The question regarding th e circuit court’s denial of [ plaintiff]’s motion to amend its complaint was abandoned on appeal” where plaintiff “failed to o rder the full transcript of proceedings” and did not “stipulate with defendants to file som e portion less than the full transcript.”).

Affirmed.

/s/ Michael J. Talbot /s/ Christopher M. Murray

/s/ Mark T. Boonstra