Michigan Supreme Court 

# Order

Lansing, Michigan

February 1, 2008 Clifford W. Taylor,
Chief Justice
132540 & (82)(83)(87) Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. BERO MOTORS, INC., Stephen J. Markman, Plaintiff-Appellee, Justices

v SC: 132540 COA: 257675 Delta CC: 98-014256-CK GENERAL MOTORS CORPORATION, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the motion to f ile brief amicus curiae and miscellaneous motions are GRANTED. The application fo r leave to appeal the August 10, 2006 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

C ORRIGAN , J., dissents and states as follows:

I dissent from the order deny ing leave to appeal. I woul d grant leave to appeal to address whether plaintiff’s theo ries of breach of oral cont ract and promissory estoppel were properly questions fo r the jury on this record.

The parties entered into a dealer’s sales and servi ce agreement allowi ng plaintiff, Bero Motors, Inc. (Bero), to sell Pontiac and Buick cars a nd General Motors (GM) parts at Bero’s dealership. Bero wanted to also sell GMC trucks , but another dealership, Town and Country Motors, had the franchise to sell GMC trucks in that area. After the Town and Country Motors dealershi p was offered for sale, two GM employees allegedly made an oral promise that Bero wo uld have the opportunity to match any offer other potential buyers made for Town and Co untry Motors. After GM approved a sale between Town and Country Motors and a third party without giving Bero the opport unity to exercise the right of first refusal, Bero sued defendant GM, alleging four th eories of relief: breach of oral contract, promissory estoppel, negligence, and breach of fiduciary duty. The trial court granted GM’s motion fo r summary disposition on all fo ur counts. In a split decision, the Court of Appeals, in an unpub lished opinion per curiam, Sawyer, P.J., and Smolenski, J. (Whitbeck, J., conc urring in part and dissenting in part), issued October 2,2

2001 (Docket No. 224 190), affirmed the dismissal of the negligence and breach of fiduciary duty counts, but reversed on the breach of oral contract a nd promissory estoppel counts. This Court denied leave to appe al on an interlocutory basis. 467 Mich 868 (2002). I dissented from the or der because I would have grante d leave to appeal at that time. At the trial after remand, the trial court instructed the jury th at the oral promises could support a jury verdict, as the first Court of Appeals opinion essentially directed. The jury entered a verdict of over $3 million for Bero on the breach of oral contract

count. 1 The Court of Appeals affirmed. Unpu blished opinion per cu riam, Murphy, P.J., and White and Meter, JJ., issued Augu st 10, 2006 (Doc ket No. 257675).

The issue that the jury co nsidered is before us on final review. The problem persists from the first app eal. The breach of oral cont ract and promissory estoppel theories are not properly jury questions. The written cont ract between Bero and GM includes the following provision, entitle d “Sole Agreement of the Parties”:

No agreement between Division [GM] and Dealer [Bero] which relates to matters covered herein, and no change in, add ition to (except for the filling in of blank lines) or erasure of any printed portion of this Agreement, will be binding unless pe rmitted under the terms of this Agreement or related documents, or approved in a written agreement

executed as set forth in Division’s Dealer Sales and Service Agreement. [Emphasis added.]

The agreement further states that all rel ated agreements are valid only if signed on behalf of GM by its general sales and service manager or his authorized representative. An agreement regarding Bero’s right of first refusal to purchase another dealership appears to be a matter covered in the written contract that must be reduced to writing and signed by a GM-authorized rep resentative. The written co ntract is comprehensive in nature and expressly provides that it “state s the terms under which Dealer and Division agree to do business together” and “states th e responsibilities of Dealer and Division to each other . . . .” The contract governed all aspects of the B ero dealership from its formation to its sale. For example, the contract provides, “No change in location or in the use of Premises, including a ddition of any other vehicle lines, will be made without Division’s prior written author ization.” This provision ga ve GM significant authority over decisions concerning the Bero dealership. Under th is provision, for example, the Bero dealership was prohib ited from selling GMC trucks without GM’s prior written authorization. Additionally, the written cont ract contained a section entitled “Right of

First Refusal to Purchase—Creation and Cov erage,” which gave GM the right of first refusal to purchase the B ero dealership if it were to be o ffered for sale. It appears that

this written contract was meant to govern all aspects of the Bero dealership and its

1 The jury did not decide th e promissory estoppel clai m because it found that GM

breached the oral contract._______________________________________ __ 3

dealings with GM, includin g an agreement regarding Be ro’s purchase of another dealership. Thus, an agreemen t regarding Bero’s right of fi rst refusal to purchase another dealership appears to be a matt er covered in the written contract that must be reduced to a writing and signed by a GM-authorized represe ntative. No record evidence establishes that a GM-authorized representative agreed to waive the writing requirement for the

modifications to the written contract. 2

We have issued some significant opi nions regarding written/oral contracts and promissory estoppel since 2002. For example, in Quality Products & Concepts Co v Nagel Precision, Inc , 469 Mich 362, 373 (20 03), this Court held that a party who seeks to prove that a written agreement pr ohibiting oral modifi cations was orally modified must prove by clear and convincing evidence “that the p arties mutually inte nded to modify the particular original contract, including its res trictive amendment clau ses such as written

modification or anti-waiver clause s.” (Emphasis deleted.) W ith such decisions to guide us, I would grant leave to a ppeal to consider this case.

M ARKMAN , J., joins the statement of C ORRIGAN , J.

2 Neither of the GM employees who allegedly ma de the oral promise to Bero regarding a right of first refusal, Jim Dalbec and Dick Loughman, was a general sales and service manager or his authorized representative.

s0129 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

February 1, 2008

Clerk