Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

May 22, 2009 

138541 

& (28) 

(30) 

 

NOBLE METAL PROCESSINGINDIANA, INC., 

Plaintiff-Appellee, 

v SC: 138541 

 COA: 290892 

Macomb CC: 09-000960-CK 

CHALLENGE MANUFACTURING 

COMPANY, 

 Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the motion for immediate consideration is GRANTED. 

The motion to file supplemental brief and to expand the record on appeal is GRANTED. 

The application for leave to appeal the March 25, 2009 order of the Court of Appeals is 

considered, and it is DENIED, because we are not persuaded that the questions presented 

should be reviewed by this Court. 

 KELLY, C.J. (concurring). 

 I agree with the Court’s order denying defendant’s application for leave to appeal. 

I write separately to briefly respond to Justice Corrigan’s allegation that changed 

circumstances warrant remanding this matter to the trial court. 

 Justice Corrigan claims that a dramatic change in circumstances justifies requiring 

the trial court to reweigh the imposition of its preliminary injunction against defendant. 

The change is the alleged bankruptcy of plaintiff’s parent company, coupled with alleged 

bankruptcies of 13 other domestic subsidiaries of plaintiff’s parent company. However, 

neither plaintiff nor defendant has notified this Court that plaintiff has initiated a 

bankruptcy proceeding. Therefore, nothing in the record before the Court supports 

Justice Corrigan’s suggestion that plaintiff is insolvent. 
2

 Should either of the parties wish to seek modification of the preliminary 

injunction, they may do so in the trial court. As Justice Corrigan correctly notes, a trial 

court may always modify an injunction if the facts merit it.1

 Thus, should the record 

ultimately reflect Justice Corrigan’s concerns, the trial court has the authority to grant the 

relief currently requested by defendant. However, any action in that regard at this time 

would be premature. 

 Accordingly, I concur in the Court’s order denying leave to appeal. 

 CORRIGAN, J. (dissenting). 

 I would vacate the preliminary injunction against defendant and remand this case 

to the trial court for consideration of the reported bankruptcy of plaintiff and plaintiff’s 

parent company of which plaintiff is the alleged guarantor. The trial court granted 

plaintiff’s motion for preliminary injunction on the basis of factual conditions that have 

changed significantly in the interim. Accordingly, I would remand for possible 

modification of the injunction in light of the changed factual conditions or stay the matter 

depending on the status of the bankruptcy court proceedings. 

 On February 27, 2009, plaintiff automotive supplier moved for a preliminary 

injunction to prevent defendant component parts supplier from stopping shipment. 

During a motion hearing on March 4, 2009, plaintiff asserted that it was presently current 

on its account, and it would continue to make future payments to defendant. After 

observing that the entire automotive industry was “on the same rope,” the trial court 

stated that it would be “very dangerous to open up for every link in the chain.” In 

response, plaintiff reiterated the importance of issuing the preliminary injunction 

“[b]ecause [otherwise] everyone can turn around and bail on General Motors, your 

Honor, and Chrysler and Ford. He wants you to open the door and say, [

‘

]

Okay everyone 

can stop shipping tomorrow. This whole town is going to heck.[

’

]

” On March 16, 2009, 

the trial court granted plaintiff’s motion for a preliminary injunction, thereby requiring 

that defendant continue to ship component parts to plaintiff “on 30 day payment terms.” 

Less than one month later, on April 15, 2009, plaintiff’s parent company, plaintiff, and 13 

other domestic subsidiaries of plaintiff’s parent company reportedly filed voluntary 

bankruptcy petitions. 

 The reported bankruptcy filings of plaintiff and plaintiff’s parent company reveal 

that the facts have changed drastically since the trial court granted the preliminary 

injunction against defendant. When defendant previously expressed its concern 

regarding not receiving adequate assurance about plaintiff’s ongoing performance, the 

trial court responded that defendant was “not totally irrational, but I’m holding

 

1 Opal Lake Ass’n v Michaywé Ltd Partnership, 47 Mich App 354, 367 (1973). 
I, Corbin R. Davis, 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. 

 _________________________________________ 

 Clerk

May 22, 2009 

l0519 

 

3

that Plaintiff has complied with the contract up to this point, as long as they are paying on 

the 30 days.” In the interim, however, plaintiff became insolvent, and defendant’s 

concern regarding plaintiff’s precarious financial condition has proven to be wellfounded. Accordingly, I would remand to the trial court in light of the changed factual 

circumstances. This Court has recognized that “‘[a] continuing decree of injunction 

directed to events to come is subject always to adaptation as events may shape the need.’” 

First Protestant Reformed Church of Grand Rapids v De Wolf, 358 Mich 489, 495 

(1960), quoting United States v Swift & Co, 286 US 106, 114 (1932). “Moreover, an 

injunction is always subject to modification or dissolution if the facts merit it.” Opal 

Lake Ass’n v Michaywé Ltd Partnership, 47 Mich App 354, 367 (1973). Similarly, the 

United States Court of Appeals for the Sixth Circuit has held that changed factual 

conditions warrant the modification of an injunction. See In re Detroit Auto Dealers 

Ass’n Inc, 84 F3d 787, 790 (CA 6, 1996) (“If this case were to be brought in front of the 

Commission today on the present facts, the previous injunction would not be entered 

against the petitioners today.”) Because the factual circumstances have allegedly 

changed dramatically in this case, I would allow the trial court to weigh the current 

situation or to stay the matter depending on the status of proceedings in bankruptcy court.