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

revision until final publication in the Michigan Appeals Reports.

-1-

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

VASCULAR MANAGEMENT SERVICES OF 

NOVI, LLC, and VCOA MANAGEMENT, LLC,

Plaintiffs-Appellants,

UNPUBLISHED

March 9, 2023

v No. 360368

Oakland Circuit Court

EMG PARTNERS, LLC, ENVISION MEDICAL 

GROUP, PLLC, and VILLAGEMD EASTERN 

MICHIGAN, LLC,

LC No. 2021-191539-CB

Defendants-Appellees.

Before: K. F. KELLY, P.J., and MURRAY and SWARTZLE, JJ.

PER CURIAM.

Plaintiffs, Vascular Management Services of Novi, LLC, and VCOA Management, LLC, 

appeal as of right an order compelling plaintiffs and defendants, EMG Partners, LLC; Envision 

Medical Group, PLLC; and VillageMD Eastern Michigan, LLC, to participate in binding 

arbitration. Plaintiffs also challenge a prior order denying their first motion for preliminary 

injunctive relief. We affirm but remand to the circuit court for further proceedings regarding 

arbitrability.

I. BACKGROUND

In January 2017, plaintiffs and EMG Partners entered into an operating agreement through 

which EMG Partners and VCOA Management became 50% members of Vascular Management 

Services of Novi, and Mordechai Grun was named manager of Vascular Management Services of 

Novi. The operating agreement contained an arbitration clause. Later that month, Vascular 

Management Services of Novi and Envision Medical Group entered into a management services 

agreement. Under the management services agreement, Vascular Management Services of Novi 

was required to “select and furnish the Practice with such space, fixed and mobile, as [was] 

reasonably required for the proper operation of the Practice’s business, based on its volume and 

service contracts, including any necessary build-out, repair or replacement of such space. . . .” 
-2-

Envision Medical Group was required to operate the Practice “at least three (3) days per week.” 

The management services agreement did not contain an arbitration clause.

VillageMD eventually expressed an interest in acquiring certain assets of Envision Medical 

Group. While VillageMD was not interested in purchasing the management services agreement, 

VillageMD and Grun engaged in negotiations concerning “a new Management Services 

Agreement” with Vascular Management Services of Novi. The negotiations were ultimately 

unsuccessful. VillageMD’s negotiations with Envision Medical Group proceeded forward. The 

acquisition between VillageMD, Envision Medical Group, and others was finalized on December 

2, 2021, through an Asset Purchase Agreement, wherein VillageMD “acquired certain of Envision 

[Medical Group’s] assets.” The management services agreement was “specifically excluded from 

the Asset Purchase Agreement.” Because VillageMD does not consider vascular services to be 

part of its business model, the vascular services that were once provided by Envision Medical 

Services were discontinued. 

Plaintiffs filed suit that same month. In the 10-count complaint, plaintiffs requested

injunctive relief and monetary damages. Plaintiffs also filed an emergency motion for injunctive 

relief, requesting the trial court enter an ex parte order or schedule a show cause hearing as to why 

a preliminary injunction should not issue.

In opposing the motion for preliminary injunctive relief, defendants’ argued that plaintiffs 

had an adequate remedy at law and were unlikely to succeed on the merits of their claims, while

VillageMD also argued that plaintiffs’ claims were subject to arbitration under the operating 

agreement. The initially scheduled show cause hearing was adjourned several times for reasons 

that will be discussed later in this opinion. In the meantime, in lieu of filing an answer to the 

complaint, defendants filed a joint motion for summary disposition under MCR 2.116(C)(7) 

(dismissal proper because of binding arbitration agreement). 

The show cause hearing was held in late January, 2022. At the beginning of the hearing, 

plaintiffs’ counsel requested the trial court consider documentation that was not attached to their 

motion for preliminary injunctive relief. After defendants’ counsel objected because they had not 

been provided with the documentation before the hearing, the trial court held it would not consider 

the documentation. The trial court expressed a willingness to adjourn the hearing, but plaintiffs 

wanted to move forward. During oral arguments, plaintiffs requested the trial court “tell the 

doctors who are now Village MD employees that they have to renew their obligations of operating 

the Vascular Services clinic at least three days a week and they have to actually do it in good faith.” 

Plaintiffs also requested the trial court “direct Village MD [sic] to put any monies that they’re 

going to pay” in the future “into the court.” After hearing oral arguments from defendants, which 

included defendants referencing the pending motion for summary disposition, the trial court ruled:

The motion before the court is for preliminary injunction in this matter but 

from what I’ve heard from all sides, specifically the plaintiff[s], it’s really a matter 

of money damages, and money damages do not equate into this court issuing an 

injunction of any kind, so as it relates to the request for a [temporary restraining 

order] and/or a preliminary injunction the court is denying that request.
-3-

As it relates to the request to escrow monies, that wasn’t part of the motion 

and the court is not going to deal with that at this time. And the court will certainly 

review the summary disposition motion and see whether or not we can advance the 

hearing on that [sic] expedited matter.

The trial court entered orders that same day (1) denying plaintiffs’ motion for injunctive relief and 

(2) requiring defendants to file a motion to compel arbitration by February 2, 2022, and setting a 

briefing schedule and oral arguments for February 9, 2022.

On February 2, 2022, plaintiffs filed a second motion for preliminary injunctive relief.

Plaintiffs renewed their requests that the trial court order defendants to continue to perform medical 

services and procedures at the clinic pursuant to the management services agreement, and also 

requested the trial court “direct that any unpaid funds from the sale of the Envision Defendant’s 

assets be transferred to the registry of th[e] Court or direct the Envision Defendants not to distribute 

any of the asset sale proceeds. . . .” 

As ordered, defendants also filed a timely joint motion to compel arbitration. The motion 

was essentially identical with the motion for summary disposition, with the exception that it 

provided authority concerning a trial court’s authority to compel arbitration under the Uniform 

Arbitration Act, MCL 691.1681 et seq., and MCR 3.602(A). Plaintiffs opposed the motion, 

arguing there was not an enforceable arbitration agreement between the parties, and that

defendants should be judicially estopped from relying on the arbitration clause contained in the 

operating agreement because defendants had argued in response to plaintiffs’ motion for 

preliminary injunction that the operating agreement was not enforceable against them. 

The court granted defendants’ joint motion to compel arbitration, dismissed plaintiffs’ 

complaint, and ordered all claims into arbitration. The trial court did not rule on plaintiffs’ second 

motion for preliminary injunctive relief. This appeal followed. After filing the claim of appeal, 

plaintiffs filed an arbitration demand. Defendants moved to dismiss this appeal, arguing plaintiffs’ 

voluntary action rendered this appeal moot, but the motion was denied. Vascular Mgt Servs of 

Novi, LLC v EMG Partners, LLC, unpublished order of the Court of Appeals, entered August 9, 

2022 (Docket No. 360368).

II. MOOTNESS

VillageMD continues its argument that plaintiffs’ arguments on appeal are moot. We again 

reject that argument. 

“Michigan Courts exist to decide actual cases and controversies. . . . A matter is moot if 

[a] Court’s ruling cannot for any reason have a practical legal effect on the existing controversy.” 

Bailey v Antrim Co, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 357838); slip op 

at 3 (alterations in original; quotation marks and citation omitted). “A voluntary satisfaction of a 

judgment may render a case moot. If, however, the judgment is involuntarily satisfied, the appeal 

is not moot.” Trahey v Inkster, 311 Mich App 582, 591; 876 NW2d 582 (2015) (citation omitted). 

Plaintiffs filing an arbitration demand was an involuntary act taken to comply with a court 

order. “A person may not disregard a court order simply on the basis of his [or her] subjective 

view that the order is wrong or will be declared invalid on appeal.” In re Contempt of Dudzinski, 
-4-

257 Mich App 96, 111; 667 NW2d 68 (2003). Rather, “[a] party must obey an order entered by a 

court with proper jurisdiction, even if the order is clearly incorrect, or the party must face the risk 

of being held in contempt and possibly being ordered to comply with the order at a later date.” Id. 

at 110 (quotation marks and citation omitted). Accordingly, a party that “believes that [an] order 

is incorrect [has] the remedy [] to appeal, but absent a stay, [must] comply promptly with the order 

pending appeal.” Id. at 112 (quotation marks and citations omitted). By initiating arbitration, after 

filing their claim of appeal, plaintiffs merely complied with the mandatory provision of the trial 

court’s order. This involuntary action did not render the issues raised on appeal moot.

III. PLAINTIFFS’ FIRST MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

Plaintiffs argue that the trial court (1) abused its discretion by denying their first motion 

for injunctive relief, and (2) made several procedural errors on the way to that decision.

A. STANDARDS OF REVIEW

“[A] trial court’s decision to grant injunctive relief is reviewed for an abuse of discretion. 

An abuse of discretion occurs when the court’s decision falls outside the range of reasonable and 

principled outcomes.” Johnson v Mich Minority Purchasing Council, ___ Mich App ___, ___; 

___ NW2d ___ (2022) (Docket No. 357979); slip op at 3 (alteration in original; quotation marks 

and citations omitted). “The factual findings that a trial court makes in the process of deciding 

whether to grant a preliminary injunction are reviewed for clear error.” Slis v State, 332 Mich App 

312, 335; 956 NW2d 569 (2020) (quotation marks and citation omitted). “A finding is clearly 

erroneous where, after reviewing the entire record, this Court is left with a definite and firm 

conviction that a mistake has been made.” Smith v Straughn, 331 Mich App 209, 215; 952 NW2d 

521 (2020) (quotation marks and citation omitted). A trial court’s decision to adjourn a proceeding 

is reviewed for an abuse of discretion, Pugno v Blue Harvest Farms, LLC, 326 Mich App 1, 27; 

930 NW2d 393 (2018), while its interpretation of court rules is reviewed de novo. Ligons v 

Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011).

B. ANALYSIS

1. MERITS OF PLAINTIFFS’ FIRST MOTION FOR INJUNCTIVE RELIEF

“The purpose of a preliminary injunction is to preserve the status quo pending a final 

hearing regarding the parties’ rights,” and “[t]he moving party has the burden of demonstrating 

that a preliminary injunction should be issued.” Johnson, ___ Mich App at ___; slip op at 3-4 

(quotation marks and citation omitted). When determining whether to grant a preliminary 

injunction, the trial court must evaluate four factors, which are:

(1) the likelihood that the party seeking the injunction will prevail on the 

merits, (2) the danger that the party seeking the injunction will suffer irreparable 

harm if the injunction is not issued, (3) the risk that the party seeking the injunction 

would be harmed more by the absence of an injunction than the opposing party 

would be by the granting of the relief, and (4) the harm to the public interest if the 

injunction is issued. [Id., slip op at 4 (quotation marks and citation omitted).]
-5-

“Economic injuries generally are not sufficient to demonstrate irreparable injury because such

injuries typically can be remedied by damages at law.” Sandstone Creek Solar, LLC v Twp of 

Benton, 335 Mich App 683, 706; 967 NW2d 890 (2021).

While plaintiffs are correct that the trial court did not directly address each of the four 

preliminary injunction elements, it remains true that “a preliminary injunction should not issue 

where an adequate legal remedy is available.” Johnson, ___ Mich App at ___; slip op at 4 

(alteration omitted; quotation marks and citations omitted). 

Here, the trial court did not err in concluding that an adequate remedy at law existed. While 

“[t]he threat of bankruptcy and the possibility of going out of business can constitute irreparable 

harm,” Slis, 332 Mich App at 361, plaintiffs did not provide evidence to support the argument that 

their business enterprise would be compromised or destroyed if a preliminary injunction did not 

issue. Importantly, “[w]hether the loss of customer goodwill amounts to irreparable harm often 

depends on the significance of the loss to the plaintiff’s overall economic well-being.” Id. at 362 

(quotation marks and citation omitted). Because plaintiffs failed to provide sufficient evidence to 

show they would suffer an injury “both certain and great,” i.e., irreparable harm if a preliminary 

injunction did not issue, the trial court did not err in its conclusion. Id., at 361. Importantly, it was 

plaintiffs’ burden to establish “that a preliminary injunction should be issued,” see MCR 

3.310(A)(4), and “[t]he mere apprehension of future injury or damage cannot be the basis for 

injunctive relief,” Johnson, ___ Mich App at ___; slip op at 4 (quotation marks and citations 

omitted).

To show that irreparable harm would have occurred absent an injunction, plaintiffs cite

provisions in the operating agreement and the management services agreement where the 

contracting parties agreed plaintiffs were not required to establish irreparable harm in order to 

obtain equitable relief. However, plaintiffs, as the moving parties, were required to “demonstrate 

a noncompensable injury for which there is no legal measurement of damages or for which 

damages cannot be determined with a sufficient degree of certainty.” See Slis, 332 Mich App at 

361 (quotation marks and citations omitted). Plaintiffs failed to do so for the reasons already 

discussed, and we are unaware of any binding authority providing that a contractual provision 

alone entitles plaintiffs to a finding of irreparable harm. 

While plaintiffs argue they should have been granted an evidentiary hearing, plaintiffs were 

granted a show cause hearing, which was held 47 days after plaintiffs filed their first motion for a 

preliminary injunction. Plaintiffs did not offer testimony at the show cause hearing, and they

rejected the trial court’s offer to adjourn so testimony and other evidence could be offered to 

support a showing of irreparable harm. We do not permit parties to harbor their own error as an 

appellate parachute. See In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011). 

Additionally, we fail to see how plaintiffs would have been entitled to relief on their request 

for specific performance. Specific performance is an equitable remedy that permits a court to 

enforce a contract when the plaintiff does not otherwise have an adequate remedy at law. 

Continental & Vogue Health Studios, Inc v Abra Corp, 369 Mich 561, 567; 120 NW2d 835 (1963); 

Zurcher v Herveat, 238 Mich App 267, 300; 605 NW2d 329 (1999). “[A] [p]laintiff seeking 

specific performance of [the] contract has [the] burden of proving all the elements to establish a 

contract.” Fisk v Fisk, 328 Mich 570, 574; 44 NW2d 184 (1950) (quotation marks and citation 
-6-

omitted). “The essential elements of a valid contract are the following: (1) parties competent to 

contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and (5) 

mutuality of obligation.” Hess v Cannon Twp, 265 Mich App 582, 592; 696 NW2d 742 (2005)

(quotation marks and citation omitted). 

Plaintiffs argued at the show cause hearing the trial court should “tell the doctors who are 

now Village MD employees that they have to renew their obligations of operating the Vascular 

Services clinic at least three days a week and they have to actually do it in good faith.” Under 

§ 3.1 of the management services agreement, Envision Medical Group was required to operate 

“[t]he Practice . . . at least three (3) days per week.” While the management services agreement

acknowledges Envision Medical Group “provides professional services through its employed 

and/or contracted osteopathic and allopathic physicians,” there is no evidence plaintiffs contracted 

with individual doctors to provide vascular procedures at Vascular Management Services of 

Novi’s facility. Indeed, individual physicians are not even named in the management services 

agreement. Rather, Envision Medical Group and Vascular Management Services of Novi agreed 

Envision Medical Group would “have the sole and exclusive authority to employ or contract with 

Physicians, including the authority to promote, discipline, suspend and terminate Physicians.” 

Because plaintiffs failed to present evidence of a contractual agreement between plaintiffs and the 

individual doctors who once worked for Envision Medical Services, plaintiffs were not entitled to 

that specific performance. See Zak v Gray, 324 Mich 522, 526; 37 NW2d 550 (1949) (“[S]pecific 

performance will be decreed where its effect will be to give to each party that for which he 

contracted and will work no wrong or injustice to either.”).1

The trial court did not abuse its discretion by denying plaintiffs’ first motion for 

preliminary injunctive relief. Nor did it abuse its discretion when it refused to address plaintiffs’

“request that the remaining 40% of the purchase price be placed in escrow,” as plaintiffs raised 

this argument for the first time at oral arguments, which is why the trial court declined to consider 

it. It is not an abuse of discretion for a trial court to decline to consider a new, complex argument 

raised for the first time during a show cause hearing. Baynesan v Wayne State Univ, 316 Mich 

App 643, 651; 894 NW2d 102 (2016).

2

 

1

Jurisdiction to order specific physicians to comply with the Management Services Agreement

likely would prove difficult, as the physicians were not parties to the complaint, nor served with 

the complaint. Lawrence M Clarke, Inc v Richco Constr, Inc, 489 Mich 265, 274; 803 NW2d 151 

(2011) (trial courts “cannot adjudicate an in personam controversy without first having obtained 

jurisdiction over the defendant by service of process”) (alterations, quotation marks, and citation 

omitted). For this same reason, requiring physicians to comply with a contract to which they were 

not parties would have harmed the physicians more than it would have harmed plaintiffs by not 

entering the order. Depriving the physicians of their right to be heard would undoubtedly be 

against the public interest, as would requiring them to perform medical services even though they 

were not contractually obligated to do so.

2 Plaintiffs incorrectly argue in a footnote that “the Trial Court ignored [their] claim that their trade 

secrets and confidential information will fall into the hands of a competitor intending to operate in 
-7-

2. PROCEDURAL ISSUES

Plaintiffs argue the trial court twice improperly adjourned the show cause hearing on 

plaintiffs’ first motion for preliminary injunctive relief, which resulted in the hearing not being 

held until 47 days after the motion was filed, and resulted in a change in the status quo. We 

conclude that even if plaintiffs could establish an error on the part of the trial court, the error was

harmless. See MCR 2.613(A). At the time plaintiffs’ first motion for injunctive relief was filed, 

the Asset Purchase Agreement had already been executed. Thus, the fact that most of the relief 

requested in the motion had already been rendered moot at the time the show cause hearing was 

held cannot be attributed to the trial court. Additionally, for the reasons already discussed, 

plaintiffs were not entitled to injunctive relief because they failed to establish irreparable harm and 

could not establish they were likely to prevail on their request for specific performance. We fail 

to see how the trial court’s purported decision to delay the show cause hearing impacted the 

outcome. See Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, 507 Mich 272, 307; 

968 NW2d 367 (2021).3

IV. DEFENDANTS’ MOTION TO COMPEL ARBITRATION

A. THE TRIAL COURT’S JANUARY 26, 2022, ORDER

Plaintiffs argue the trial court’s January 26, 2022 order improperly ordered defendants to 

file a motion to compel arbitration and improperly expedited the briefing schedule on the motion 

in violation of MCR 2.116(G)(1)(a)(i).

1. STANDARDS OF REVIEW

Whether the trial court violated MCR 2.116(G)(1)(a)(i) is a question of law which we

review de novo. Ligons, 490 Mich at 70. A trial court’s decision to exercise its inherent authority 

to manage its own affairs “may be disturbed only upon a finding that there has been a clear abuse 

of discretion.” Baynesan, 316 Mich App at 651.

2. ANALYSIS

While plaintiffs’ first motion for preliminary injunctive relief was pending, defendants 

moved for summary disposition under MCR 2.116(C)(7), arguing plaintiffs’ claims were subject 

to binding arbitration. After the trial court denied plaintiffs’ first motion for preliminary injunctive 

relief, it entered a January 26, 2022 order, requiring defendants to file a motion to compel and 

 

the same industry and region.” However, the hearing transcript supports that plaintiffs abandoned 

their arguments concerning the alleged misappropriation of trade secrets and confidential 

information. 

3

It was within the trial court’s discretion to prohibit plaintiffs from filing a reply brief. MCR 

2.119(A)(2)(b). While plaintiffs argue the trial court was unable to “adequately assess all of the 

elements necessary to grant injunctive relief” as a result of this decision, plaintiffs were provided 

the opportunity to adjourn the hearing. 
-8-

setting out an abbreviated briefing schedule. Part of the reason for treating the arbitration issue 

this way was because of the court’s dispositive motion schedule.

While plaintiffs are correct in that they were only given five days to respond to the motion 

to compel arbitration, the trial court acted within its discretion. First, the issue had already been 

raised, so plaintiffs were aware of it. Second, the court was attempting to balance the urgency of 

the matter with the other cases pending before the court, and had the authority to set a different 

time period. MCR 2.116(G)(1)(a). Particularly here, where the Uniform Arbitration Act intended 

for trial courts to determine arbitrability in an expeditious manner, see MCL 691.1687(1)(b), MCR 

3.602(B)(2), and Madison Dist Pub Sch v Myers, 247 Mich App 583, 591; 637 NW2d 526 (2001), 

the trial court did not abuse its discretion.

4

B. JUDICIAL ESTOPPEL

Plaintiffs also argue that compelling the parties to submit to binding arbitration was in error

because defendants were judicially estopped from enforcing the arbitration agreement.

1. STANDARD OF REVIEW

“Judicial estoppel is an equitable doctrine,” and this Court reviews “equitable actions” de 

novo. Spohn v Van Dyke Pub Sch, 296 Mich App 470, 479; 822 NW2d 239 (2012). 

2. ANALYSIS

“Judicial estoppel is an equitable doctrine, which generally prevents a party from prevailing 

in one phase of a case on an argument and then relying on a contradictory argument to prevail in 

another phase.” Spohn, 296 Mich App at 479 (quotation marks and citations omitted). The 

doctrine is invoked “to preserve the integrity of the courts by preventing a party from abusing the 

judicial process through cynical gamesmanship.” Id. at 479-480 (quotation marks and citations

omitted). But, “[t]he doctrine of judicial estoppel is to be applied with caution.” Opland v 

Kiesgan, 234 Mich App 352, 363-364; 594 NW2d 505 (1999) (quotation marks and citation 

omitted). Judicial estoppel “is not meant to be a technical defense for litigants seeking to derail 

potentially meritorious claims. . . .” Id. at 354 (quotation marks and citations omitted).

While VillageMD did argue in response to plaintiffs’ first motion for preliminary 

injunctive relief that it was “not a party to any contract with Plaintiffs,” VillageMD argued it was 

still entitled to enforce the arbitration clause even though it was a nonsignatory. Envision Medical 

Group and EMG Partners, on the other hand, argued plaintiffs could not establish they breached 

the operating agreement because VCOA Management was “the only Member of Vascular 

 

4 Moreover, any error would have been harmless. See MCR 2.613(A). As noted, the issue had 

already been properly raised, and whether plaintiffs’ claims were subject to binding arbitration 

was a matter of contract interpretation. See Altobelli v Hartmann, 499 Mich 284, 295; 884 NW2d 

537 (2016). Plaintiffs do not explain or rationalize what additional arguments they would have 

presented if they had been provided additional time to respond to the motion to compel binding 

arbitration. 
-9-

[Management Services of] Novi and VCOA [Management] [was] the only entity with the power 

to effectuate any of the actions in Section 5.1.2. of the operating agreement.” However, Envision 

Medical Group and EMG Partners never asserted the arbitration clause did not apply to plaintiffs’ 

claims against them. Instead, defendants sought to enforce the arbitration clause against plaintiffs. 

And although VillageMD and Envision Medical Group did not argue they were parties to the 

operating agreement, they did argue the language of the arbitration clause was broad enough to 

encompass plaintiffs’ claims against them. 

Defendants did not rely on a contradictory argument to prevail on their motion to compel 

arbitration. See Spohn, 296 Mich App at 480. There is no indication defendants sought to 

deliberately manipulate the court through gamesmanship, and defendants never argued the 

arbitration clause did not apply to them. Indeed, EMG Partners acknowledged it was a party to 

the operating agreement for a period of time. VillageMD and Envision Medical Group made it 

clear they were not parties to the operating agreement, but argued the clause was broad enough to 

encompass all of plaintiffs’ claims. Given these facts, the trial court did not err by failing to apply 

judicial estoppel.

C. TRIAL COURT’S DECISION TO COMPEL ARBITRATION

Plaintiffs’ final substantive argument is that the trial court erred by compelling arbitration 

because a binding agreement to arbitrate did not exist between all the parties.

1. STANDARDS OF REVIEW

“Arbitration is a matter of contract.” Altobelli v Hartmann, 499 Mich 284, 295; 884 NW2d 

537 (2016) (quotation marks and citation omitted). The interpretation of contract language is 

reviewed de novo. VHS Huron Valley Sinai Hosp v Sentinel Ins Co (On Remand), 322 Mich App 

707, 715; 916 NW2d 218 (2018). “Whether an issue is subject to arbitration is also reviewed de 

novo.” Beck v Park West Galleries, Inc, 499 Mich 40, 45; 878 NW2d 804 (2016).

2. ANALYSIS

The Uniform Arbitration Act outlines different responsibilities of the trial court and the 

arbitrator in an arbitration action. Specifically, MCL 691.1686 states, in relevant part:

(1) An agreement contained in a record to submit to arbitration any existing 

or subsequent controversy arising between the parties to the agreement is valid, 

enforceable, and irrevocable except on a ground that exists at law or in equity for 

the revocation of a contract.

(2) The court shall decide whether an agreement to arbitrate exists or a 

controversy is subject to an agreement to arbitrate.

(3) An arbitrator shall decide whether a condition precedent to arbitrability 

has been fulfilled and whether a contract containing a valid agreement to arbitrate 

is enforceable. 
-10-

Thus, “[t]he existence of an arbitration agreement” is a “judicial question[ ] for the court, 

not the arbitrators.” Ferndale v Florence Cement Co, 269 Mich App 452, 458; 712 NW2d 522 

(2006). While “[t]he general policy of this State is favorable to arbitration,” Detroit v AW Kutsche 

& Co, 309 Mich 700, 703; 16 NW2d 128 (1944), “a valid agreement must exist for arbitration to 

be binding,” Ferndale, 269 Mich App at 460.

Of the two contracts, only the operating agreement, which was entered into by plaintiffs 

and EMG Partners, contains an arbitration clause. Contracts are interpreted “in accordance with 

their ordinary meaning[.]” VHS Huron Valley Sinai Hosp, Inc, 322 Mich App at 715. “This 

Court’s main goal in the interpretation of contracts is to honor the intent of the parties.” Id.

(quotation marks and citations omitted). “When contract language is clear, unambiguous, and has 

a definite meaning, courts do not have the ability to write a different contract for the parties, or to 

consider extrinsic testimony to determine the parties’ intent.” Id. (quotation marks and citations 

omitted).

Contractual terms can only be characterized as ambiguous if equally susceptible to 

more than a single meaning or if in irreconcilable conflict with other provisions of 

the contract. . . . [T]his Court must read the contract as a whole, and the words in 

the contract are to be understood in context. Courts must give effect to every word, 

clause, and phrase, and a construction should be avoided that would render any part 

of the contract surplusage or nugatory. An unambiguous contract is to be enforced 

as written, and the mere fact that contractual terms are [i]nartfully worded or 

clumsily arranged will not necessarily lead to a finding that a contract is ambiguous 

if it fairly admits of one interpretation. [Lebenbom v UBS Fin Servs, Inc, 326 Mich 

App 200, 216; 926 NW2d 865 (2018) (quotation marks and citations omitted; 

alteration in original).]

As an initial matter, VillageMD argues the operating agreement contemplates an arbitrator 

would decide whether claims are subject to arbitration. While the Uniform Arbitration Act states 

it is generally for the trial court to determine arbitrability, MCL 691.1686(2), there is an exception 

to this rule. See MCL 691.1684(1) (“[T]he parties may vary the effect of the requirements of this 

act to the extent permitted by law.”). Thus, as under federal law, parties may agree to delegate to 

the arbitrator the question of arbitrability, provided it is clearly stated in the agreement. Rent-ACenter, West, Inc v Jackson, 561 US 63, 69 n 1; 130 S Ct 2772; 177 L Ed 2d 403 (2010). As we 

have said before, if such an agreement is not apparent from the face of the agreement, a reviewing 

court should presume that the parties intended that the court decide the “gateway question” of 

arbitrability. Bienenstock & Associates, Inc v Lowry, 314 Mich App 508, 516; 887 NW2d 237 

(2016). These gateway questions include “whether an arbitration clause in a concededly binding 

contract applies to a particular type of controversy.” Id. (quotation marks and citation omitted).

VillageMD points to § 10.3 of the operating agreement, which states that if a dispute was 

submitted to binding arbitration, the dispute would be “exclusively resolved in accordance with 

the then prevailing Commercial Arbitration Rules . . . of the American Arbitration Association. . . 

.” The 2013 Commercial Arbitration Rules and Mediation Procedure, Rule 7(a), states: “The 

arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with 

respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any 

claim or counterclaim.” The Rule does not provide the arbitrator with exclusive authority to decide 
-11-

arbitrability, and the Rule does not prohibit a trial court from ruling on the issue. Importantly, 

§ 10.4 of the operating agreement incorporates MCR 3.602’s “provisions,” and MCR 3.602(A) 

states courts “have all powers described in” the Uniform Arbitration Act, part of which states that 

a “court shall decide whether . . . a controversy is subject to an agreement to arbitrate.” MCL 

691.1686(2). We conclude that because EMG Partners and plaintiffs did not clearly agree to 

delegate exclusively to the arbitrator the question of arbitrability, the question was for the trial 

court to resolve.

We now must address the more difficult question: whether the claims against Envision 

Medical Group and VillageMD could be subject to arbitration when they were not parties to the 

arbitration agreement. As recounted above, “arbitration, which is a matter of contract, cannot be 

imposed on a party that was not legally or factually a party to the agreement wherein an arbitration 

provision is contained.” AFSCME Council 25 v Wayne County, 292 Mich App 68, 80; 811 NW2d 

4 (2011). See also St Clair Prosecutor v AFSCME, 425 Mich 204, 223; 388 NW2d 231 (1986)

and Lichon v Morse, 507 Mich 424, 437; 968 NW2d 461 (2021). Despite this general and 

common-sense contract rule, a non-signatory of a contract “can still be bound by an agreement 

pursuant to ordinary contract-related legal principles, including incorporation by reference, 

assumption, agency, veil-piercing/alter ego, and estoppel.” AFSCME Council 25, 292 Mich App 

at 81. Accord: Arthur Andersen LLP v Carlisle, 556 US 624, 631; 129 S Ct 1896; 173 L Ed2d 

832 (2009) (“For example, we have recognized that arbitration agreements may be enforced by 

nonsignatories through “assumption, piercing the corporate veil, alter ego, incorporation by 

reference, third-party beneficiary theories, waiver and estoppel.”).

Here, the unusual posture is that the nonsignatories are arguing in favor of arbitration, while 

the plaintiffs—who are signatories to the agreement—argue that their separate claims against 

Envision Medical Group and VillageMD should not be submitted to arbitration because plaintiffs 

did not agree to that forum with these entities. Curiously, none of the parties cite to AFSCME 

Council 25, but instead Envision Medical Group and Village MD argue, citing Rooyakker & Sitz, 

PLLC v Plante Moran, PLLC, 276 Mich App 146; 742 NW2d 409 (2007), that because the entities 

are closely related, and the issues arise from the same set of circumstances, the broad arbitration 

clause covers all these claims. 

In addressing this argument, however, we must adhere to the proposition that “this general 

position favoring arbitration does not go so far as to override foundational principles of contractual 

interpretation.” Lichon, 507 Mich at 437. See also id., at 457 n 8 (VIVIANO, J., dissenting) (“Our 

Court of Appeals has similarly observed that whether nonsignatories can arbitrate depends on 

general common-law principles, such as agency law.”). But here, Envision Medical Group and 

VillageMD are essentially arguing an estoppel argument, i.e., that equitable estoppel allows these 

two defendants—nonsignatories to the arbitration clause—to compel arbitration where the 

signatory must rely on the terms of the agreement in asserting its claims against the nonsignatory. 

GE Energy Power Conversion France SAS, Corp v Outokumpu Stainless USA, LLC, 590 US __, 

__; 140 S Ct 1637; 207 L Ed 2d 1 (2020).

That argument has merit, as many of the allegations posited against Envision Medical 

Group and VillageMD are in some part premised upon the operating agreement. That is true with 

respect to Counts I, II, III, IV, and VI-X of the verified complaint. Because of plaintiffs’ reliance 

(at least in part) on the operating agreement in pursuing these counts against these two 
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nonsignatories, they are estopped from avoiding the arbitration provision within that same 

agreement. Id.

With respect to plaintiffs’ arguments that some of their particular claims against EMG 

Partners are not subject to arbitration, “a party cannot be required to submit to arbitration any 

dispute which he [or she] has not agreed so to submit. In this endeavor, as with any other contract, 

the parties’ intentions control.” Bienenstock & Assoc, Inc, 314 Mich App at 515 (quotation marks 

and citations omitted).

A three-part test applies for ascertaining the arbitrability of a particular 

issue: 1) is there an arbitration agreement in a contract between the parties; 2) is the 

disputed issue on its face or arguably within the contract’s arbitration clause; and 

3) is the dispute expressly exempted from arbitration by the terms of the contract. 

This Court has expressed a general disapproval of segregating disputed issues into 

categories of arbitrable sheep and judicially-triable goats. Any doubts about the 

arbitrability of an issue should be resolved in favor of arbitration. [In re Nestorovski 

Estate, 283 Mich App 177, 202-203; 769 NW2d 720 (2009) (quotation marks and 

citations omitted).]

“The burden is on the party seeking to avoid the agreement, not the party seeking to enforce the 

agreement.” Altobelli, 499 Mich at 295. “[W]hen deciphering whether [a] plaintiff’s claims are 

covered by the parties’ arbitration clause, this Court is not permitted to analyze the substantive 

merits of [the] plaintiff’s claims. Rather, if the dispute is subject to arbitration, the merits of the 

dispute are left to the arbitrator to decide.” Lebenbom, 326 Mich App at 211 (quotation marks and 

citation omitted).

We consider Article 10 of the operating agreement as a whole. Under § 10.1 of the 

operating agreement, plaintiffs and EMG Partners “irrevocably agree[d] and consent[d] that venue 

[was] proper in the Circuit Court for the County of Oakland, State of Michigan” and was to “be 

the sole and proper forum for any litigation arising out of or in connection with” the operating 

agreement. In § 10.2, plaintiffs and EMG Partners agreed the terms of the operating agreement

were enforceable “in the Circuit Court for the County of Wayne or any other court of law with 

proper jurisdiction . . . for the purpose of obtaining an order compelling specific performance or 

injunctive relief. . . .” Thus, §§ 10.1 and 10.2 contemplate the parties initiating actions “arising 

out of or in connection with” the operating agreement, including actions for injunctive relief or 

specific performance, in circuit court.

Under § 10.3, unless a member was seeking specific performance or injunctive relief, “any 

and all disputes, claims or controversies involving the interpretation of” the operating agreement

“or any of the provisions, terms, conditions, termination or enforcement of a Member’s obligations 

or rights” under the operating agreement were required to be submitted to the manager in written 

form. If the member and the manager were unable to resolve the dispute within 45 days of a 

meeting, the dispute was required to be submitted to binding arbitration. Thus, §§ 10.1 and 10.3 

of the operating agreement provide different options to take depending on the relief sought: circuit 

court for equitable relief of specific performance and/or injunctive relief, arbitration for all other 

matters (and even equitable relief).
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Section 10.4 reinforces the proposition that certain limited claims are to be filed in circuit 

court, while the remainder are subject to arbitration. That section provides, in part:

The determination of the arbitrator shall be final and binding upon the parties, shall 

not be appealable and judgment on the award or determination rendered pursuant 

to this Agreement may be entered in any court pursuant to Section 10.1. . . . [T]he 

failure of a party to submit the Dispute to arbitration . . . shall be a complete defense 

to any suit, action or proceeding initiated in any federal, state or local court or 

before any administrative agency with respect to any Dispute which is arbitrable as 

set forth herein. . . . Arbitration shall be the exclusive remedy for any Dispute under 

this Agreement except to the extent the specific enforcement of the award or 

specific enforcement of any term or provision of this Agreement in a court having 

equitable jurisdiction by a decree of specific performance or an injunction or by 

both is deemed necessary and appropriate by a party and . . . except with respect to 

the non-payment of monies due and owing in accordance with the terms of this 

Agreement. [emphasis added.]

Here, the trial court did not distinguish between plaintiffs’ claims that seek “the specific 

enforcement of the award or specific enforcement of any term or provision of this Agreement in a 

court having equitable jurisdiction by a decree of specific performance or an injunction or by both.” 

Instead, the court just ordered all claims to arbitration, without any specificity between the type of 

claims or relief sought. Therefore, although we affirm the trial court’s decision that plaintiffs’ 

claims against nonsignatory defendants are subject to the arbitration clause, the next step is 

whether any of the claims are “expressly exempted from arbitration by the terms of the contract.” 

In re Nestorovski Estate, 283 Mich App at 202. Because the parties have not extensively argued 

that issue, and in any event is the type of issue to be first resolved by the circuit court, we will 

remand that issue for the trial court to resolve in the first instance. 

V. TRIAL COURT’S FAILURE TO CONSIDER PLAINTIFFS’ SECOND MOTION FOR 

PRELIMINARY INJUNCTIVE RELIEF

Plaintiffs argue the trial court improperly adjourned oral arguments on their second motion 

for preliminary injunctive relief and improperly failed to consider the motion, which was required 

by the language of the operating agreement, before dismissing the complaint.

A. STANDARDS OF REVIEW

A trial court’s decision to adjourn a proceeding is reviewed for an abuse of discretion. 

Pugno, 326 Mich App at 27. The interpretation of a contract is reviewed de novo. VHS Huron 

Valley Sinai Hosp, Inc, 322 Mich App at 715.

B. ANALYSIS

Plaintiffs’ argument that the trial court sua sponte adjourned the hearing on their second 

motion for preliminary injunctive relief is unsupported by the record, which establishes plaintiffs 

filed the second motion on February 2, 2022, with a notice of hearing for February 9, 2022, which 

was later re-noticed to February 16, 2022. As far as we can discern, the trial court never entered 

an order adjourning oral arguments on plaintiffs’ second motion for preliminary injunctive relief. 
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See In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44 (2009) (noting “a court 

speaks through its written orders and judgments”). Thus, plaintiffs’ argument lacks factual 

support.

Next, plaintiffs argue the trial court was required by the operating agreement to decide their 

second motion for preliminary injunctive relief before deciding defendants’ motion to compel 

arbitration. To the extent plaintiffs argue they were left without an avenue for equitable relief 

because the trial court dismissed the complaint, we conclude this argument is unsupported. While 

§ 10.2 of the operating agreement contemplates the “Circuit Court for the County of Wayne or any 

other court of law with proper jurisdiction” entering orders compelling specific performance and 

injunctive relief, the agreement does not bar an arbitrator from ordering specific performance or 

awarding injunctive relief. Indeed, § 10.3 only bars the arbitrator from awarding “punitive 

damages or other damages not measured by the prevailing party’s actual damages. . . .” Thus, 

even though the trial court did not decide plaintiffs’ second motion for preliminary injunctive relief 

before deciding the motion to compel arbitration, plaintiffs were not left without an equitable 

remedy. Plaintiffs could have requested equitable relief from the arbitrator, including that sought 

in their second motion for injunctive relief.

5

 The fact that plaintiffs apparently elected not to do 

so is not attributable to the trial court.

Affirmed but remanded for further proceedings regarding arbitrability. We do not retain 

jurisdiction.

/s/ Kirsten Frank Kelly 

/s/ Christopher M. Murray 

/s/ Brock A. Swartzle 

 

5 See Rules 37(a) and 47(a) of the 2013 Commercial Arbitration Rules and Mediation Procedure.