-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

BRAD THOR,

Plaintiff/CounterdefendantAppellee,

UNPUBLISHED

June 26, 2018

v No. 332813

Cheboygan Circuit Court

BARRETT H. MOORE and MCMICHAEL 

ROAD, LLC,

LC No. 14-008472-CZ

Defendants/CounterplaintiffsAppellants.

Before: MURRAY, C.J., and HOEKSTRA and GADOLA, JJ.

PER CURIAM.

Defendants-counterplaintiffs1 Barrett H. Moore and McMichael Road, LLC2 appeal as of 

right the trial court orders: (1) partially granting plaintiff-counterdefendant3 Brad Thor’s motion 

for summary disposition on October 2, 2015; (2) denying their motion to file a second amended 

countercomplaint on November 2, 2015; (3) denying their motion for reconsideration of a 

previously imposed discovery deadline on September 25, 2015; and (4) granting Thor’s motion 

for a directed verdict. For the reasons stated herein, we affirm.

I. FACTS AND PROCEDURAL HISTORY

This case arises out of a friendship and business relationship between Thor and Moore 

that turned sour. The two met and were friends from approximately 2008 to 2013, during which 

time Thor invested in a facility being developed by defendants to serve as a safe haven during 

periods of emergency. Further, Moore, a former member of the military with knowledge of the 

 1 We will refer to Moore and McMichael Road, LLC collectively as defendants, and individually 

as Moore and McMichael.

2 McMichael is an LLC controlled by Moore.

3 We will refer to plaintiff-counterdefendant as Thor.
-2-

intelligence community, provided his expertise in those areas to Thor, a well-known author of 

political spy thrillers.

On July 31, 2014, Thor filed a complaint against defendants in the Cheboygan Circuit 

Court, alleging several claims related to the safe haven project and various other business 

dealings, which defendants answered on September 15, 2014. The trial court then entered its 

scheduling order for the matter on November 24, 2014, setting the settlement conference for 

March 25, 2015, and ordering that discovery be completed within 120 days of the scheduling 

order.

Thor amended his complaint on December 8, 2014, but rather than filing an answer, 

defendants filed a motion to strike the amended complaint on December 29, 2014, asserting that 

Thor added claims beyond the scope permitted by the court at the pretrial conference. As a result 

of defendants’ failure to answer Thor’s first amended complaint, the court entered a default 

against defendants on March 9, 2015. In response, defendants filed an addendum to their 

supplement of the motion to strike on March 10, 2015, a motion to amend the pretrial conference 

summary order on March 23, 2015, requesting that the court set new discovery deadlines and 

announcing their intent to file a countercomplaint against Thor upon resolution of the motion to 

strike, and a motion to set aside the default on March 30, 2015. At a hearing on April 13, 2015, 

the trial court found good cause to set aside the default, but denied defendants’ motion to strike 

Thor’s first amended complaint because defendants failed to file the new motion as ordered by 

the court. Further, pursuant to defendants’ request, the court extended the discovery deadline to 

May 24, 2015, and the settlement conference to a date in June.

On April 20, 2015, defendants answered Thor’s first amended complaint, and filed their 

own countercomplaint against Thor. Defendants then filed their first amended countercomplaint 

on May 12, 2015, alleging generally that Moore served as a source of content for a number of 

Thor’s novels, and provided business advice to Thor regarding the negotiation of his publishing 

contract with Simon & Schuster. In Count I, defendants claimed that Thor breached a contract 

with McMichael. In Count II, defendants claimed that for Moore’s assistance and business 

advice, “Thor agreed to pay Moore 5% of his income from the books, and from the increase in 

his contract with Simon [&] Schuster,” and that Thor breached this contract. Attached to 

defendants’ first amended countercomplaint were several acknowledgements sections for Thor’s 

books thanking Moore and others for their help, as well as two e-mails purportedly sent in 

September 2011. The first e-mail, from Thor to Moore dated September 19, 2011, states, in part: 

“Team Thor is here for Team Moore. Anything you need, anytime – you just pick up the 

phone.” The second e-mail, from Moore to Thor dated September 20, 2011, states, in pertinent 

part:

[I]n regards to your offer of compensation for the book work, I am not looking for 

anything, but your 5% offer is very generous and I agree we should put those 

‘earned’ dollars toward the project. I am so grateful for your financial support as 

it has been instrumental in keeping CNB at bay, and ensuring the facility can be 

retained and converted to agricultural use. These extra dollars will make sure it 

remains equipped and ready. Lets [sic] work off the loan first and then you can 

whittle away at the ‘wanted’ list based on whatever dollars you deem to have been 

earned. I am just so pleased to be able to help you and your team as well. 
-3-

On August 31, 2015, Thor filed a motion for summary disposition of defendants’ first 

amended countercomplaint pursuant to MCR 2.116(C)(7), (8), and (10),4 requesting dismissal of 

both Count I related to McMichael, and Count II involving Moore’s breach of contract claim. 

With regard to Moore’s breach of contract claim, Thor argued that the e-mails attached to 

defendants’ first amended countercomplaint purportedly proving the existence of an agreement 

are inadmissible hearsay, and demonstrate that Moore never actually accepted any alleged 5% 

offer. Thus, Thor asserted, defendants failed to establish a genuine issue of material fact that a 

contract existed with a valid offer and acceptance. Thor also argued that, looking to the contract 

terms defendant alleged, any oral agreement for 5% of his book income would be barred by the 

statute of frauds because it could not be performed within one year – an author receives royalties 

for the length of that author’s copyright.

In response to Thor’s motion for summary disposition, defendants argued that the 

agreement between Thor and Moore never involved the payment of royalties, and that contrary 

to Thor’s argument, Moore did accept Thor’s offer of 5%. Further, defendants asserted, the 

statute of frauds did not void the agreement because each of the books Moore assisted in writing 

were written and published within one year.

Ultimately, the trial court granted Thor’s motion for summary disposition on the record 

with regard to Count I, the McMichael breach of contract claim, but only partially granted the 

motion for summary disposition with regard to Moore’s breach of contract claim. Specifically, 

the trial court dismissed Moore’s claim for 5% of Thor’s book income because any such 

agreement would be incapable of performance within a year, thus violating the statute of frauds, 

but denied summary disposition with regard to Moore’s claim for 5% of the increase in Thor’s 

contract with Simon & Schuster because the issue was not properly briefed.

Following the court’s decision on Thor’s motion for summary disposition, defendants

filed a motion for leave to file a second amended countercomplaint on October 26, 2015, 

requesting permission to allege quasi contract, unjust enrichment, and implied contract with 

regard to McMichael’s claim, and quasi contract, unjust enrichment, implied contract, and 

equitable estoppel with regard to Moore’s claim. At the hearing on November 2, 2015, the trial 

court denied the motion, stating:

I think we’re close to trial, and this would open up a whole new area of discovery 

for the parties to explore and compute potential damages. It just wouldn’t be fair 

to say we’re going to shift gears and cause these parties to do this, and I also take 

into consideration -- I still don’t understand why if Mr. Moore had this contract or 

agreement with Mr. Thor, why it wasn’t injected into this case until April. I don’t 

understand that.

* * *

 4 The motion itself listed only MCR 2.116(C)(7) and (8), but the brief in support listed the 

standards of review for summary disposition motions filed under MCR 2.116(C)(7), (8), and 

(10).
-4-

[I]t’s just unfair to say that one party can just keep throwing things up in the air, 

and we’ll see what we can make fly here, and now on this late date without this 

history, maybe the motion would be in a different posture, but I have to look at 

the entire history of the case, and I think it would cause undue prejudice and that 

the amount of damages and the computation of damages would not be a different 

computation, and we’re fairly close to trial, and it’s just not fair to the other side 

to say they’re going to have to prepare for that at trial. 

The case then proceeded to a jury trial on defendants’ one remaining claim: that Thor breached 

an agreement to pay Moore 5% of the increase in his publishing contract with Simon & Schuster, 

in exchange for Moore’s business and negotiation advice. At the close of the second day of trial, 

Thor filed a motion for a directed verdict asserting that Moore’s breach of contract claim was 

barred by the statute of frauds, which the court heard on April 13, 2016, the second day of trial. 

In response to Thor’s argument, defendants’ counsel maintained that the agreement could have 

been performed within one year because Moore began fulfilling his portion of the agreement on 

September 17, 2011, and Thor signed his increased publishing contract in August 2012. Thus, 

counsel asserted, Thor owed Moore 5% of the $4 million dollar difference between the 2012 

contract, and Thor’s previous contract, on the day the 2012 contract was executed. Ultimately, 

the trial court granted Thor’s motion for a directed verdict, ruling that (1) the terms of the 

supposed agreement were too vague to be enforceable; (2) the agreement violated the statute of 

frauds; (3) defendants offered insufficient evidence of consideration; and (4) reasonable minds

could not find that defendants met the burden of proof to enforce the agreement. 

II. ANALYSIS

A. SUMMARY DISPOSITION

Defendants first argue that the trial court erred when it granted summary disposition of 

their claim that Thor agreed to pay Moore 5% of his income from the books Moore contributed 

to. Specifically, they assert that the e-mails establishing the existence of an agreement are not 

inadmissible hearsay, Moore clearly accepted Thor’s offer, and the agreement is not void under 

the statute of frauds.

We review a trial court’s decision on a motion for summary disposition de novo. Seldon 

v Suburban Mobility Auth for Regional Transp, 297 Mich App 427, 432-433; 824 NW2d 318 

(2012). Summary disposition is proper under MCR 2.116(C)(7) when a claim is barred by the 

statute of frauds. MCR 2.116(C)(7). When reviewing such a motion, we must accept all wellpleaded allegations as true, and construe those allegations in the plaintiff’s favor. Marrero v 

McDonnell Douglas Capital Corp, 200 Mich App 438, 440-441; 505 NW2d 275 (1993). 

Further, “a court must consider all affidavits, pleadings, depositions, admissions, and

documentary evidence filed or submitted by the parties.” Id. at 441. When “no [material] facts 

are in dispute, or if reasonable minds could not differ regarding the legal effect of the facts,” the 

motion should be granted. Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 

386 (2006) (quotation marks and citations omitted; alteration in original).

“A motion under MCR 2.116(C)(10) tests the factual basis underlying the plaintiff’s 

claim.” Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). A court 
-5-

may grant a motion for summary disposition pursuant to MCR 2.116(C)(10) if “there is no 

genuine issue as to any material fact, and the moving party is entitled to judgment or partial 

judgment as a matter of law.” MCR 2.116(C)(10). “[A] genuine issue of material fact exists 

when, viewing the evidence in a light most favorable to the nonmoving party, the ‘record which 

might be developed . . . would leave open an issue upon which reasonable minds might differ.” 

Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013) (quotation marks and 

citations omitted). To review a motion under MCR 2.116(C)(10), this Court considers “ ‘the 

pleadings, admissions, affidavits, and other relevant documentary evidence of record . . . .’ ” 

Maple Grove Twp v Misteguay Creek Intercounty Drain Bd, 298 Mich App 200, 206-207; 828 

NW2d 459 (2012), quoting Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). “ 

‘The moving party has the initial burden of supporting its position with documentary evidence, 

but once the moving party meets its burden, the burden shifts to the nonmoving party to establish 

that a genuine issue of disputed fact exists.’ ” McNeill-Marks v MidMichigan Med Ctr-Gratiot, 

316 Mich App 1, 15; 891 NW2d 528 (2016) (quotation marks and citations omitted); see also 

MCR 2.116(G)(4).

We also review de novo whether the statute of frauds bars enforcement of a contract, 

Zander v Ogihara Corp, 213 Mich App 438, 441; 540 NW2d 702 (1995), and the existence and 

interpretation of a contract, Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 

766 (2006).

The trial court did not err when it granted summary disposition of defendants’ claim that 

Thor breached an agreement to pay Moore 5% of his income from the books Moore contributed 

to. Defendants failed to establish a genuine issue of material fact that such a contract existed.

For a successful breach of contract claim, a plaintiff must prove that a contract existed, 

that the other party breached the contract, and that the breach resulted in damages. Bank of 

America, NA v First American Title Ins Co, 499 Mich 74, 100; 878 NW2d 816 (2016). “A valid 

contract requires five elements: (1) parties competent to contract, (2) a proper subject matter, (3) 

legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation.” Id. at 101 

(quotation marks and citation omitted). Further, for a contract to be complete there must be an 

offer and acceptance as well as “a meeting of the minds on all the essential terms.” Kloian, 273 

Mich App at 452-453.

“An offer is defined as the manifestation of willingness to enter into a bargain, so made 

as to justify another person in understanding that his assent to that bargain is invited and will 

conclude it.” Id. at 453 (quotation marks and citations omitted). An acceptance, on the other 

hand, “ ‘arises where the individual to whom an offer is extended manifests an intent to be bound 

by the offer, and all legal consequences flowing from the offer, through voluntarily undertaking 

some unequivocal act sufficient for that purpose.’ ” Id. at 453-454, quoting Blackburne & 

Brown Mtg Co v Ziomek, 264 Mich App 615, 626-627; 692 NW2d 388 (2004) (quotation marks 

and citations omitted). “ ‘Unless an acceptance is unambiguous and in strict conformance with 

the offer, no contract is formed.’ ” Kloian, 273 Mich App at 452-453 (citation omitted). 

Additionally, “[a] meeting of the minds is judged by an objective standard, looking to the 

express words of the parties and their visible acts, not their subjective states of mind.” Id. at 454 

(quotation marks and citations omitted).
-6-

In response to Thor’s answer to the first amended countercomplaint denying that he 

offered Moore 5% of the income from his books, and motion for summary disposition 

challenging the existence of the alleged agreement, defendants offered no evidence of Thor’s 

purported offer beyond the September 2011 e-mails attached to the first amended 

countercomplaint. Nowhere in Moore’s affidavit, attached to defendants’ response to the motion 

for summary disposition, does he say when, where, or how Thor made such an offer, or whether 

the offer was made orally or in writing.5

Moreover, Moore presented insufficient evidence that he unambiguously accepted the 

alleged 5% book income offer so as to form a valid contract. The September 20, 2011 e-mail he 

refers to in support of his claims demonstrates a reluctance on Moore’s part to accept any offer 

of compensation, and makes no reference to book income specifically (the offer Thor supposedly 

made), stating, in part: 

[I]n regards to your offer of compensation for the book work, I am not looking for 

anything, but your 5% offer is very generous and I agree we should put those 

‘earned’ dollars toward the project. I am so grateful for your financial support as 

it has been instrumental in keeping CNB at bay, and ensuring the facility can be 

retained and converted to agricultural use. These extra dollars will make sure it 

remains equipped and ready. Lets [sic] work off the loan first and then you can 

whittle away at the ‘wanted’ list based on whatever dollars you deem to have been 

earned.

Moore also expressed his reluctance to accept any offer of compensation for his book writing 

assistance in his affidavit, stating, “In respect to the September 20, 2011 e[-]mail, at the time, I 

never envisioned getting a check from Brad, per se, but rather looked at the 5% of dollars earned 

that would help with equipping the facility in Michigan,” and “[a]s I stated in my September 20, 

2011 e[-]mail: ‘I am not looking for anything,’ which is a true statement. I did not want anything 

for helping my friend write a better book, however because the financially difficult times I had 

been experiencing, Brad’s financial contributions made a big difference to pushing our haven 

project forward.” 

Based on the foregoing, then, defendants presented insufficient evidence of any offer by 

Thor to pay Moore 5% of his book income, or of an unambiguous acceptance in strict 

conformance with such an offer. Thus, no genuine issue of material fact existed that Thor and 

Moore formed a contract at all, and summary disposition was appropriate.6 

 5 The trial court addressed this deficiency with defendants’ counsel at the summary disposition 

motion hearing, who responded that the September 2011 “acceptance” e-mail and the allegations 

in the countercomplaint adopted in Moore’s affidavit served as evidence that Thor made an offer. 

As described above, we disagree.

6 We recognize that the trial court did not grant summary disposition of defendants’ claim on this 

basis, but this Court may affirm the trial court’s correct result based on different reasoning. 

Kyocera Corp v Hemlock Semiconductor, LLC, 313 Mich App 437, 449; 886 NW2d 445 (2015).
-7-

B. LEAVE TO AMEND

Defendants next argue that even if the statute of frauds does apply to the agreement 

between Thor and Moore, Thor is not entitled to summary disposition because Moore performed 

his side of the agreement, and failing to enforce the contract would be inequitable. Thus, they 

assert, “Moore should have been permitted to file a Second Amended Complaint to allege quasi 

contract, unjust enrichment, implied contract, and Equity estoppel.” Further, defendants contend 

that the trial court also erred by denying the motion to amend Count I of the first amended 

countercomplaint involving McMichael.

We review for an abuse of discretion a trial court’s decision regarding a motion to amend 

pleadings. Sanders v Perfecting Church, 303 Mich App 1, 8-9; 840 NW2d 401 (2013). “An 

abuse of discretion occurs when the decision results in an outcome that falls outside the range of 

principled outcomes.” Decker v Rochowiak, 287 Mich App 666, 681; 791 NW2d 507 (2010). 

However, leave to amend pleadings “shall be freely given when justice so requires.” MCR 

2.118(A)(2). In other words, “amendment is generally a matter of right rather than of grace.” In 

re Kostin, 278 Mich App 47, 52; 748 NW2d 583 (2008).

In support of their argument, defendants first assert, citing a number of cases, that a trial 

court must deny summary disposition and allow a plaintiff leave to amend pleadings for the 

inclusion of equitable theories of relief, when the statute of frauds renders a contract 

unenforceable. Thus, they maintain, the trial court erred when it denied Moore’s request to file a 

second amended countercomplaint alleging quasi contract, implied contract, unjust enrichment, 

and equitable estoppel. This argument fails. Although many of the cases cited by defendants 

opine that equitable relief may be available when an agreement is otherwise void under the 

statute of frauds, see, e.g., Biagini v Mocnik, 369 Mich 657, 658-660; 120 NW2d 827 (1963);

Lovely v Dierkes, 132 Mich App 485, 488-489; 347 NW2d 752 (1984), defendant points to no 

language in those cases, and we find none, requiring courts to grant leave to amend under such 

circumstances.7

Defendants’ argument that the trial court had no valid reason for denying their request to 

amend Moore’s claim also lacks merit.8 Leave to amend “ ‘should ordinarily be denied only for 

 7 Further, this Court has questioned the use of equitable estoppel to avoid the nullification of oral 

agreements under the statute of frauds, stating: “We . . . question the wisdom of such judicially 

created exceptions to the statute of frauds as equitable estoppel, ratification, and part 

performance. Rather than deferring to the Legislature to address through the legislative 

amendment process any perceived inequity in the statute of frauds, Michigan courts have by 

judicial fiat created gaping holes in the statute of frauds that are inconsistent with the express 

language of the statute and the policy supporting it[.]” Kelly-Stehney & Assoc, Inc v 

MacDonald’s Indus Prod, Inc, 254 Mich App 608, 613-616; 658 NW2d 494 (2003), vacated on 

other grounds 469 Mich 1046 (2004).

8 Defendants’ argument with regard to the potential reasons a court may deny a motion to amend 

is cursory at best.
-8-

particularized reasons such as undue delay, bad faith or dilatory motive, repeated failures to cure 

by amendments previously allowed, or futility.’ ” Decker, 287 Mich App at 681-682, quoting In 

re Kostin, 278 Mich App at 52. The trial court correctly concluded that defendants’ requested 

amendment would result in undue delay and prejudice to Thor. And in combination with the 

futility of defendants’ proposed amendments, the trial court properly denied defendants’ motion 

to file a second amended countercomplaint.9

Delay, “ ‘alone, does not warrant denial of a motion to amend. However, a court may 

deny a motion to amend if the delay was in bad faith or if the opposing party suffered actual 

prejudice as a result.’ ” Decker, 287 Mich App at 682 (citation omitted). “Prejudice ‘exists if 

the amendment would prevent the opposing party from receiving a fair trial, if for example, the 

opposing party would not be able to properly contest the matter raised in the amendment . . . .’ ” 

Id. (citation omitted). Further, “a trial court may find prejudice when the moving party seeks to 

add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery 

is closed, just before trial, and the opposing party shows that he did not have reasonable notice, 

from any source, that the moving party would rely on the new claim or theory at trial.” Weymers 

v Khera, 454 Mich 639, 659-660; 563 NW2d 647 (1997). Beyond waiting nearly nine months 

after the commencement of the litigation to file their initial countercomplaint, based on facts 

known to defendants well before Thor filed his initial complaint, and requesting multiple 

discovery extensions, defendants failed to request leave to add four equitable theories of relief to 

Moore’s claim until well after discovery deadlines had passed.10

Moreover, the requested amendments would have been futile.11 Although “[a]n impliedin-law contract[12] is a legal fiction to enable justice be accomplished even if there was no 

meeting of the minds and no contract was intended,” AFT Mich v Michigan, 303 Mich App 651, 

660-661; 846 NW2d 583 (2014), aff’d 497 Mich 197 (2015) (quotation marks and citation

omitted), “[a]n implied contract must [still] satisfy the elements of mutual assent and 

consideration,” Mallory v Detroit, 181 Mich App 121, 127; 449 NW2d 115 (1989). Further, 

equitable estoppel requires that one party intentionally induce another to believe facts. Lakeside 

Oakland Dev, LC v H & J Beef Co, 249 Mich App 517, 527; 644 NW2d 765 (2002). As the trial 

court correctly concluded that defendants presented insufficient evidence at summary disposition 

to create a genuine issue of material fact regarding whether Thor offered Moore 5% of his book 

income in exchange for assistance, defendants are not entitled to equitable relief.

 9 Although the trial court did not examine futility, “[t]his Court . . . will not reverse when a trial

court reaches the right result” for a different reason. Neville v Neville, 295 Mich App 460, 470; 

812 NW2d 816 (2012).

10 Defendants’ assertion that they had to wait until the court ruled on their motion to strike 

Thor’s first amended complaint to file their own countercomplaint is nonsensical.

11 In their brief on appeal, defendants include no analysis of the equitable claims they wished to 

add to the countercomplaint.

12 “A contract will be implied in law to prevent unjust enrichment.” AFT Mich v Michigan, 303 

Mich App 651, 660; 846 NW2d 583 (2014), aff’d 497 Mich 197 (2015).
-9-

Finally, defendants also argue that the court erred when it denied the request to amend 

their countercomplaint with regard to McMichael’s breach of contract claim, but in support, 

defendants only cursorily assert that when no contract exists, courts employ quasi contract to 

justify payment. Thus, defendants failed to adequately brief this argument for appellate review. 

“An appellant may not merely announce his position and leave it to this Court to discover and 

rationalize the basis for his claims, nor may he give issues cursory treatment with little or no 

citation of supporting authority.” Houghton v Keller, 256 Mich App 336, 339; 662 NW2d 854 

(2003) (citations omitted).

C. DISCOVERY REQUEST

Defendants next argue that the trial court erred when it denied their fifth set of discovery 

requests. On June 1, 2015, defendants filed a motion for adjournment, requesting that the trial 

court extend the discovery deadline from May 24, 2015, to August 17, 2015, because defendants’ 

counsel had begun experiencing serious health issues at the end of April. The trial court initially 

denied the motion, effectively striking the fourth discovery request served by defendants on May 

26, 2015, but following a motion for reconsideration, allowed defendants to revise and re-serve 

their fourth discovery request. When defendants served Thor an expanded fifth discovery 

request in violation of the court’s order, the court held a telephone conference to resolve the 

matter on August 31, 2015, and rejected the fifth discovery request. In an attempt to challenge 

that decision, defendants filed a motion for reconsideration, which the trial court denied.

“This Court reviews a trial court’s decision to grant or deny a discovery request for an 

abuse of discretion.” Chastain v Gen Motors Corp (On Remand), 254 Mich App 576, 593; 657 

NW2d 804 (2002). As stated by this Court in Hamed v Wayne Co, 271 Mich App 106, 109-110; 

719 NW2d 612 (2006):

Michigan has long espoused a liberal discovery policy that permits the 

discovery of any matter, not privileged, that is relevant to the subject matter 

involved in the pending case. MCR 2.302(B)(1); Reed Dairy Farm v Consumers 

Power Co, 227 Mich App 614, 616; 576 NW2d 709 (1998). The purpose of 

discovery is to simplify and clarify the contested issues, which is necessarily 

accomplished by the open discovery of all relevant facts and circumstances 

related to the controversy. See id., citing Domako v Rowe, 438 Mich 347, 360; 

475 NW2d 30 (1991). However, the court rules also ensure that discovery

requests are fair and legitimate by providing that discovery may be circumscribed 

to prevent excessive, abusive, irrelevant, or unduly burdensome requests. MCR 

2.302(C); Cabrera v Ekema, 265 Mich App 402, 407; 695 NW2d 78 (2005); In re 

Hammond Estate, 215 Mich App 379, 386; 547 NW2d 36 (1996).

Contrary to defendants’ arguments, their own decisions, rather than the trial court’s bias, 

prevented them from conducting discovery in a timely manner. They chose, for example, not to 

file their initial countercomplaint until nearly nine months after litigation began, despite having 

knowledge of the necessary facts when Thor initially filed his complaint, and neither their 

motion to strike nor the default against them affected their ability to move forward with their 

own claims. Still, the trial court extended discovery to May 24, 2015, and allowed defendants to 

re-file their fourth discovery request despite the late service to Thor on May 26, 2015. Further, 
-10-

when defendants failed to follow the court’s instruction to narrow their fourth discovery request, 

and instead filed an even broader fifth discovery request, the court still ordered that Thor answer 

defendants’ original discovery request. 

Moreover, defendants have failed to demonstrate any prejudice resulting from the court’s 

decision. They cursorily argue on appeal that answers to the fifth discovery request were 

necessary to properly prepare for trial because “Moore could not prove the dollar amount the 5% 

produces without information from Thor,” but as discussed in detail below, the trial court 

correctly granted Thor’s motion for a directed verdict of Moore’s claims. Thus, any calculation 

of damages is unnecessary. Accordingly, we conclude that the court did not abuse its discretion 

by denying defendants’ fifth discovery request.

D. DIRECTED VERDICT

Finally, defendants argue that the trial court erred when it granted Thor’s motion for a 

directed verdict on their claim that Thor breached an agreement to pay Moore 5% of the increase 

in his publishing contract with Simon & Schuster. “[D]ecisions on a motion for directed verdict 

are reviewed de novo . . . .” Chelik v Capitol Transp, LLC, 313 Mich App 83, 88; 880 NW2d 

350 (2015). “When deciding a motion for directed verdict, the evidence and legitimate 

inferences are reviewed in the light most favorable to the nonmoving party.” Id. at 88-89. This 

Court also reviews de novo whether the statute of frauds bars enforcement of a contract, Zander, 

213 Mich App at 441, and the existence and interpretation of a contract, Kloian, 273 Mich App 

at 452. 

“A directed verdict is appropriately granted only when no factual questions exist on 

which reasonable jurors could differ.” Aroma Wines & Equip, Inc v Columbian Distrib Servs, 

Inc, 303 Mich App 441, 446; 844 NW2d 727 (2013), aff’d 497 Mich 337 (2015) (quotation 

marks and citation omitted). “If . . . the evidence is insufficient to establish a prima facie case, 

then the motion should be granted, since reasonable persons would agree that there is an essential 

failure of proof.” Zander, 213 Mich App at 441 (quotation marks and citation omitted). Here, 

defendants failed to present sufficient evidence that a valid contract or agreement ever existed 

between Moore and Thor, an essential element of breach of contract. 

Again, for a successful breach of contract claim, a plaintiff must prove that a contract 

existed, the other party breached the contract, and the breach resulted in damages. Bank of 

America, NA, 499 Mich at 100. “A valid contract requires five elements: (1) parties competent 

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

(5) mutuality of obligation.” Id. at 101 (quotation marks and citation omitted). Mutual assent 

requires a meeting of the minds on all of the essential terms of the contract, Kloian, 273 Mich 

App at 453, and consideration is a “bargained-for exchange – ‘a benefit on one side, or a 

detriment suffered, or service done on the other,’ ” Bank of America, NA, 499 Mich at 101, 

quoting Gen Motors Corp v Dep’t of Treasury, 466 Mich 231, 239; 644 NW2d 734 (2002). 

Further, “ ‘[b]efore a contract can be completed, there must be an offer and acceptance. Unless 

an acceptance is unambiguous and in strict conformance with the offer, no contract is formed.’ ” 

Kloian, 273 Mich App at 452-453 (citation omitted).
-11-

As demonstrated by the lack of proof regarding the essential terms of the contract – how 

the parties intended to calculate the “increase” in Thor’s publishing contract, the services to be 

rendered by Moore in exchange, or when payment would be due, insufficient evidence existed 

that Thor offered the alleged payment, Moore accepted the offer, and the parties assented to the 

essential terms of the agreement. At trial, Moore testified that Thor made him the offer at a 

lunch on September 17, 2011, and that Thor signed his new contract with Simon & Schuster in 

August 2012, but never testified regarding when payment by Thor would be due (at the 

execution of the contract, or when Thor himself received the funds from the publishing 

company),13 and in what amount. Further, Moore provided an indefinite timeline for when he 

supposedly rendered business and negotiation advice to Thor, and limited evidence regarding 

whether Thor ever used this advice in his contract negotiations. In fact, Moore admitted that he 

never saw copies of Thor’s contracts, or directly negotiated with anyone at Simon & Schuster, 

and Thor testified that he had a literary agent, to whom he paid 15% of his income for 

negotiating his publishing deals, and that Moore never spoke with the agent. From this evidence, 

no reasonable jury could conclude that a valid agreement existed between Thor and Moore with 

a proper offer and acceptance, consideration, and mutuality of agreement, and the trial court 

properly granted Thor’s motion for a directed verdict.14

Affirmed. 

/s/ Christopher M. Murray 

/s/ Joel P. Hoekstra

/s/ Michael F. Gadola 

 13 During the argument on Thor’s motion for a directed verdict, defendants’ counsel asserted that 

payment was due when the agreement was executed, and that Thor owed Moore $200,000 which 

is 5% of the $4 million dollar increase between Thor’s 2010 and 2012 contracts with Simon & 

Schuster, but defendants presented no testimony or other evidence at trial to support these 

assertions.

14 As we have concluded defendants failed to present sufficient evidence of a valid agreement, 

we need not consider whether a directed verdict was proper because any oral agreement between 

the parties would have violated the statute of frauds.