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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UNPUBLISHED 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: RONAYNE KRAUSE, P.J., and JANSEN and STEPHENS, JJ. 

PER CURIAM. 

 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 enrichment, common-law conversion, statutory conversion under 

MCL 600.2919a, fraud, and innocent misrepresentation, and awarded him $1,800 on the breach 

of contract claim. We affirm the trial court’s denial of plaintiff’s conversion claim, and although 

we affirm the trial court’s finding that defendant is liable for breach of contract, we vacate the 

award and remand for the trial court to recalculate damages. 

 This matter arises out of an agreement between the parties under 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.” There is no dispute that defendant 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 further damage and was missing a number 

of components. Plaintiff had paid defendant $14,300 of the $17,500 total contract price. 

Plaintiff contended that defendant cost him either $22,800, representing what he paid on the 

contract and the value of the damaged or missing parts, or $33,300, representing the estimated 

value of the vehicle had defendant fully performed. Defendant contended that he performed 

 

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 Plaintiff also appeals the trial court’s award of sanctions in favor of defendant under MCR 

2.114, but we lack jurisdiction to entertain that appeal and therefore 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). 
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valuable work on the Camaro, that plaintiff’s list of missing items 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 deference to the trial court, so this 

Court will only reverse if the trial court’s conclusion is devoid 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 standard. 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 reviewed 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 seemingly accepted defendant’s 

contention that he performed $12,500 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 plaintiff’s breach of contract 

claim. We find that conclusion erroneous because the trial court appears to have applied an 

unjust enrichment theory rather than a breach of contract theory. 

 “In an action based on contract, the parties are entitled to the 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 of contract action is to place 

the injured party in as good a position as would have been enjoyed 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 which a defendant receives some 

benefit from the plaintiff that would be inequitable for the defendant 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 that 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 estimated 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, critically, that it would cost at least $8,000 to $10,000 to 

finish work on the car, and possibly more if it needed a new engine. 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 damaged at the outset. 

 “Contract damages seek to place the aggrieved party in the same economic position he 

would have been in had the contract been performed.” Frankenmuth Mut Ins Co v Keeley, 433 

Mich 525, 557; 447 NW2d 691 (1989) (dissent of Levin, J., adopted by the majority on 

rehearing, 436 Mich 372, 375-376; 461 NW2d 666 (1990)) (emphasis omitted). “The objective 

is not to cause promisors to perform, but rather to encourage promisees to rely on promises, and 
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this is done by securing the ‘expectation interest’ through awarding 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 contract is “to make compensation 

adequate to the real injury sustained, 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 been 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 than was originally contemplated, although the breaching party 

cannot be held liable for the cost of a substitute contract that 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 breach of contract may properly be 

the difference in value between the car in its present condition 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 incorrect theory in arriving at the 

damages it did award. The difference between the amount paid to 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 court’s award failed to account for 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 restoration 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 calculation 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-settled in Michigan law as any 

distinct act of dominion wrongfully exerted over another’s personal 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 NW2d 136 (2015) (internal quotation 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 some purpose personal to the 

defendant’s interests, even if that purpose is not the object’s ordinarily intended purpose.” Id. at 

353, 359. The Court warned that “not every common-law conversion is to the converter’s ‘own 

use,’” and thus the statute applies to a narrower range of circumstances. Id. at 359. 

 Plaintiff presented no receipts, photographs, or even affidavits to support his assertion 

that the engine was destroyed during the time it was in defendant’s care. Even assuming as true 

plaintiff’s assertions that the engine was working at some point before defendant took possession 

of it, the only testimony regarding the value and original condition of the engine was plaintiff’s 

statement that he had paid $3,500 for it. There was no testimony regarding when it was bought 

or any testimony regarding how long the vehicle had not been running. Nor did plaintiff present 

admissible evidence regarding the value of the parts he allegedly 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 defendant’s assertion that “he claimed that parts weren’t returned 
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when, in fact, they were,” which the trial court found more credible. 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 convincing force and the greater 

probability of truth”). 

 We affirm the trial court’s decision regarding plaintiff’s claim 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