Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr.

, Chief Justice

Stephen J. Markman

Mary Be th Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein,

Justices 

# Order

April 3, 2015

150095

PITSCH HOLDING COMPANY, INC.,

Plaintiff/

Counter Defendant

- Appellee,

v SC: 150095

COA: 315800

Kent CC: 10

- 009001

- CK

PITSCH ENTERPRISES, INC. and GARY L.

PITSCH,

Defendants/

Counter Plaintiffs

- Appellants.

_________________________________________/

On order of the Court, the application for leave to appeal the August 7, 2014

judgment of the Court of Appeals is considered, an d it is DENIED, because we are not

persuaded that the questions presented should be reviewed by this Court.

M ARKMAN , J. ( dissenting ).

I respectfully dissent from this Court’s order denying leave to appeal. I would

instead reverse in part t he judgment of the Court of Appeals for the reasons stated by the

partial dissent in that Court. Plaintiff is a holding company for a demolition enterprise.

That enterprise’s five shareholders are siblings. For reasons unrelated to this case, Gary

Pitsc h was removed as an active member of the company but remains a shareholder. He

then started his own company, defendant Pitsch Enterprises, Inc., which engages in the

metal scrap business, as well as in demolition and excavation work. Plaintiff sued Pitsc h

and his company, alleging violation of a noncompete provision in the shareholder’s

agreement. A jury awarded plaintiff $128,000 in damages for breach of the provision,

and in a split decision, the Court of Appeals affirmed. Pitsch Holding Co, Inc v P itsch

Enterprises, Inc , unpublished opinion per curiam of the Court of Appeals, issued August

7, 2014 (Docket No. 315800). The partial dissent opined that plaintiff had failed toI, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

April 3, 2015

t0331 2

Clerk provide adequate evidence to justify the jury’s award of damages for breach of the

noncompete provision. 1 I agree.

Defendant argues that plaintiff failed to present any evidence of actual damages

given that it could not show that it had lost any contract to defendant in the bidding

process. That is, although plaintiff and defendant may have both bid on some of the sam e contracts (defendant thus violating the noncompete provision), there is no evidence that

defendant obtained any of these contracts. “[C]ausation of damages is an essential

element of any breach of contract action

. . . .” Miller

- Davis Co v Ahrens Const r, Inc

, 495 Mich 161, 178 (2014). Plaintiff’s proofs were limited to tax returns indicating that

its revenues had declined during the previous five

- year period while defendant’s revenues

had increased by a similar amount. However, there is no evidence th at plaintiff’s decline

in revenue was in any way caused by, or attributable to, defendant’s violation of the

noncompete provision, and that is what must be shown in a case such as this.

Z AHRA , J., joins the statement of M ARKMAN , J.

1 Pitsch Holdi ng Co, Inc v Pitsch Enterprises, Inc , unpublished opinion per curiam of the

Court of Appeals, issued August 7, 2014 (Docket No. 315800) ( S HAPIRO , J., concurring

in part and dissenting in part), p 1.