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### STATE OF MICHIGAN

COURT OF APPEALS

RICHARD AMBLER,

Plaintiff-Appellant, UNPUBLISHED March 29, 2016

v No. 325042 Tuscola Circuit Court RANDY THOMPSON, LC No. 13-027774-CZ

Defendant-Appellee.

Before: R ONAYNE K RAUSE , P.J., and J ANSEN and S TEPHENS , JJ.

P ER C URIAM

. Plaintiff appeals by right the trial court’s award of damages in his favor for breach of contract and denial of his claim for conversion. 1 After a bench trial, the court dismissed plaintiff’s counts for unjust en richment, common-law conversion , statutory conversion under MCL 600.2919a, fraud, and innocent m isrepresentation, and award ed him $1,800 on the breach of contract claim. We affirm the trial court’s denial of plain tiff’s conversion claim, and although we affirm the trial court’s findi ng that defendant is liable fo r breach of contract, we vacate the award and remand for the trial co urt to recalculate damages.

This matter arises out of an agreement between the parties und er which defendant was to restore plaintiff’s 1967 Chevrolet Camaro, which was in a state of some disrepair, and upgrade it to be a “pristine” “show car.” T here is no dispute that defend ant failed to do so, and almost four years later, plaintiff retrieved the vehicle, which was by then disassembled and had been stripped of its paint. Plaintiff alleges that it had also sustained fur ther damage and was missing a number of components. Plaintiff had paid defendant $14,300 of the $17 ,500 total contract price. Plaintiff contended that defe ndant cost him either $22,800, rep resenting what he paid on the contract and the value of the da maged or missing parts, or $33, 300, representing the estimated value of the vehicle had defenda nt fully performed. Defendant contended that he performed

1 Plaintiff also appeals the trial court’s award of sanctions in favor of defendant under MCR 2.114, but we lack jurisdiction to e ntertain that appeal and th erefore do not address it. MCR 7.202(6)(a)(iv); McDonald v Stroh Brewery Co , 191 Mich App 601, 609; 478 NW2d 669 (1991); Gracey v Grosse Pointe Farms Clerk , 182 Mich App 193, 197; 452 NW2d 471 (1989).-2- valuable work on the Camaro, th at plaintiff’s list of missing i tems was highly dubious, and of the amount plaintiff had paid, only $1,800 was unearned.

“We review the trial court’s findings of fact in a bench trial for clear error and conduct a review de novo of the court’s conclusions of law.” Chapdelaine v Sochocki , 247 Mich App 167, 169; 635 NW2d 339 (2001). The clear error standard recognizes the possibility that more than one result might be permissible and affords considerable defere nce to the trial court, so this Court will only reverse if the t rial court’s conclusion is devo id of evidentiary support or so dubiously supported that we are definitely and firmly convinced that it made a mistake. Hill v City of Warren , 276 Mich App 299, 308-309; 740 NW2d 706 (2007). However, the clear error standard is less deferential than the abuse of discretion stand ard. See Herald Co
, Inc v Eastern Michigan Univ Bd of Regents , 475 Mich 463, 472; 719 NW2d 19 (2006). The trial court’s determination of the amount of damages is a factual finding rev iewed for clear error. MCR 2.613(C); Grand/Sakwa of Northfield
, LLC v Northfield Twp , 304 Mich App 137, 144; 851 NW2d 574 (2014).

The trial court’s opinion indicates that the trial court seemi ngly accepted defendant’s contention that he performed $12,50 0 worth of work out of the $ 14,300 he was paid at face value and deemed the discrepancy to be the measure of damages for pla intiff’s breach of contract claim. We find that conclusion erroneous because the trial cou rt appears to have applied an unjust enrichment theory rathe r than a breach of contract theory.
“In an action based on contract, the parties are entitled to t he benefit of the bargain as set forth in the agreement.” Ferguson v Pioneer State Mut Ins Co , 273 Mich App 47, 54; 731 NW2d 94 (2006). “The purpose of awarding damages in a breach o f contract action is to place the injured party in as good a position as would have been enjo yed had the contract been fully performed.” Om-El Export Co
, Inc v Newcor
, Inc , 154 Mich App 471, 478; 398 NW2d 440 (1986); see also Corl v Huron Castings
, Inc , 450 Mich 620, 625 n 7; 544 NW2d 278 (1996). Unjust enrichment, in contrast, is an equitable theory under wh ich a defendant receives some benefit from the plaintiff that would be inequitable for the de fendant to retain. Hollowell v Career Decisions
, Inc , 100 Mich App 561, 570; 298 NW2d 915 (1980).

The substance of the parties’ agreement in this case, which is not in dispute, was a showready car in exchange for $17,500. The evidence established th at plaintiff had so far paid defendant $14,300. The trial court apparently found defendant to be a more credible witness than plaintiff, but nonetheless, defendant’s own testimony esti mated that the value of his labor was in fact only $1,080, although he contended that he supplied parts and materials worth a significant amount of money, and, cr itically, that it would cos t at least $8,000 to $10,000 to finish work on the car, and possibly more if it needed a new en gine. Plaintiff undisputedly did not receive a show-ready, or even functional, car, irrespective of whether anything was actually missing or damaged afterwards that had not been missing or dama ged at the outset.

“Contract damages seek to place the aggrieved party in the sam e economic position he would have been in had the contract been performed.” Frankenmu th Mut Ins Co v Keeley , 433 Mich 525, 557; 447 NW2d 691 (1989) ( dissent of Levin, J., adopt ed by the majority on rehearing, 436 Mich 372, 375-376; 461 NW2d 666 (1990)) (emphasi s omitted). “The objective is not to cause promisors to perform, but rather to encourage p romisees to rely on promises, and-3- this is done by securing the ‘expectation interest’ through awa rding damages for the economic loss suffered by the promisee.” Id ., 433 Mich at 557-558 (emphasis omitted). Indeed, this has always been the case: the appropriate remedy for a breach of c ontract is “to make compensation adequate to the real injury sust ained, and to place the injured party, so far as money can do it, in the same position he would have occupied if the contract had be en fulfilled.” Hammond v Hannin , 21 Mich 374, 384 (1870). The breaching party must “make good on the promise,” even if the cost of doing so is more t han was originally contemplate d, although the breaching party cannot be held liable for the cost of a substitute contract tha t goes beyond the originally intended result. Dierickx v Vulcan Indus , 10 Mich App 67, 71-74; 158 NW2d 778 (1968). In the alternative, if less economic waste would ensue, damages for br each of contract may properly be the difference in value between the car in its present conditio n and the car in the condition it should have been in had the contract been performed. Schultz v Sapiro , 23 Mich App 324, 327; 178 NW2d 521 (1970).

We do not purport to conclude what damages are appropriate in this matter. However, the trial court’s opinion makes it clear that it applied an inc orrect theory in arriving at the damages it did award. The difference between the amount paid t o defendant and the amount earned by defendant is a measure of defendant’s ill-gotten gain , not necessarily a measure of plaintiff’s loss. The trial cour t’s award failed to account fo r defendant’s own testimony that there was considerably more work that needed to be done on the vehicle. We appreciate that the cost of finishing the restorati on could only be estimated, but damages need not be computable with mathematical precision to be non-speculative. Health Call of Detroit v Atrium Home & Health Care Servs
, Inc , 268 Mich App 83, 96-97; 706 NW2d 843 (2005). The trial court ’s award must be vacated, and the matter must be remanded for a ca lculation of damages based on plaintiff’s loss rather than defendant’s gain.

Conversely, however, the trial court did not err in dismissing plaintiff’s conversion claims. “[T]he scope of a common-law conversion is now well-se ttled in Michigan law as any distinct act of dominion wrongfu lly exerted over another’s pers onal property in denial of or inconsistent with his rights therein.” Aroma Wines & Equip
, Inc v Columbian Distribution Servs
, Inc , 497 Mich 337, 351-352; 871 NW 2d 136 (2015) (internal quotatio n marks and citation omitted). A claim for statutory conversion, MCL 600.2919a(1)(a ), adds the requirement that “someone alleging conversion to the defendant’s ‘own use’ under MCL 600.2919a(1)(a) must show that the defendant employed the converted property for som e purpose personal to the defendant’s interests, even if th at purpose is not the object’s ordinarily intended purpose.” Id . at 353, 359. The Court warned that “n ot every common-law conversi on is to the converter’s ‘own use,’” and thus the statute appl ies to a narrower range of circ umstances. Id . at 359.

Plaintiff presented no receipts, photographs, or even affidavi ts to support his assertion that the engine was destroyed during the time it was in defenda nt’s care. Even assuming as true plaintiff’s assertions that the engine was working at some poin t before defendant took possession of it, the only testimony regardi ng the value and original cond ition of the engine was plaintiff’s statement that he had paid $3,500 for it. There was no testimo ny regarding when it was bought or any testimony regarding how long the vehicle had not been ru nning. Nor did plaintiff present admissible evidence regarding the value of the parts he alleged ly lost. All that was before the trial court was plaintiff’s assertion that the list he produced identified parts that were missing when the car was returned and de fendant’s assertion that “he cl aimed that parts weren’t returned-4- when, in fact, they were,” which the trial court found more cre dible. This is sufficient to find that plaintiff did not prove his case by a preponderance of the evidence. People v Cross , 281 Mich App 737, 740; 760 NW2d 314 (2008) (“‘Preponderance of the evidence’ means such evidence as, when weighed with that opposed to it, has more con vincing force and the greater probability of truth”).

We affirm the trial court’s deci sion regarding plaintiff’s cla im of conversion and reverse the $1,800 award on the breach of contract claim and remand for a recalculation of damages in accordance with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full.

/s/ Amy Ronayne Krause /s/ Kathleen Jansen /s/ Cynthia Diane Stephens