Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# 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 reco rd on appeal is GRANTED. The application for leave to ap peal the March 25, 2009 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that th e questions presented

should be reviewed by this Court.

K ELLY , C.J. ( concurring ).

I agree with the Court’s order denying defe ndant’s application for leave to appeal. I write separately to briefly respond to Justice Corrigan’s allegation that changed circumstances warrant remanding th is matter to the trial court.

Justice Corrigan claims that a dramatic change in circumstances justifies requiring the trial court to reweigh th e imposition of its preliminary injunction agains t defendant. The change is the alleged bankr uptcy of plaintiff’s parent co mpany, coupled with alleged bankruptcies of 13 other domestic subsidiaries of plaintiff’s parent company. However, neither plaintiff nor defendan t has notified this Court th at plaintiff has initiated a bankruptcy proceeding. Ther efore, nothing in the record before the Court supports Justice Corrigan’s suggestion th at 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 Justic e Corrigan correctly notes, a trial court may always modify an in junction if the facts merit it. 1 Thus, should the record ultimately reflect Justice Corrigan’s concerns, th e trial court has the au thority to grant the relief currently requested by defendant. Howeve r, any action in that regard at this time would be premature.

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

C ORRIGAN , J. ( dissenting ).

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

to the trial court for consideration of the re ported bankruptcy of pl aintiff and plaintiff’s parent company of which plaintiff is the alleged guarantor. The trial court granted plaintiff’s motion for prelimin ary 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 auto motive supplier moved for a preliminary injunction to prevent defend ant component parts supplie r 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 au tomotive industry wa s “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 importan ce of issuing the preliminary injunction “[b]ecause [otherwise] every one can turn around and bail on General Motors, your Honor, and Chrysler and Fo rd. 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 injuncti on, thereby requiring

that defendant continue to sh ip component parts to plaintiff “on 30 day payment terms.” Less than one month later, on Apr il 15, 2009, plaintiff’s parent company, plaintiff, and 13

other domestic subsidiaries of plaintiff’s parent company reportedly f iled voluntary bankruptcy petitions.

The reported bankruptcy fili ngs of plaintiff and plainti ff’s parent company reveal that the facts have changed drastically si nce the trial court granted the preliminary injunction against defendant. When defendant previous ly expressed its concern regarding not receiving adequate assurance about plai ntiff’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 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.

_______________________________________ __ Clerk May 22, 2009

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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, pl aintiff became insolvent, and defendant’s concern regarding plaintiff’s precarious financial cond ition has proven to be wellfounded. Accordingly, I would remand to the trial court in light of the changed factual circumstances. This Court has recognized th at “‘[a] continuing decree of injunction

directed to events to come is subject always to adaptation as events may shape the need.’” First Protestant Reformed Chur ch 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 dissolutio n if the facts merit it.” Opal Lake Ass’n v Michaywé Ltd Partnership , 47 Mich App 354, 367 (1 973). Similarly, the United States Court of Appeals for the Sixt h Circuit has held that changed factual

conditions warrant the modifica tion 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 pr evious injunction wo uld not be entered against the petitioners today.”) Because the factual circumstances have allegedly changed dramatically in this case, I would allow the tria l court to weigh the current situation or to stay the matter depending on the status of proceedings in bankruptcy court.