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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

MATTHEW PANTANO,

Plaintiff-Appellant,

UNPUBLISHED

October 17, 2017

v No. 332748

Wayne Circuit Court

PHILLIPS SERVICE INDUSTRIES, INC. and 

SCIAKY, INC.,

LC No. 15-009065-CB

Defendants-Appellees.

Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

Plaintiff filed this civil action against defendants, seeking relief from the terms of a noncompetition agreement. The trial court granted defendants’ motion for summary disposition

pursuant to MCR 2.116(C)(8) and (10), dismissing plaintiffs’ claims for declaratory judgment,

tortious interference with advantageous business relationship, unfair competition, and civil 

conspiracy. Plaintiff appeals as of right. We affirm.

Defendant Phillips Service Industries, Inc. (PSI) is a Michigan for-profit corporation, 

self-described as “a privately-held global manufacturing and services holding company that 

oversees a diverse collection of innovative subsidiaries[.]” Defendant Sciaky, Inc. (Sciaky) is a 

Delaware for-profit corporation, engaged in developing electron beam additive manufacturing 

technology and 3D printing technology for metal printing processes. PSI is Sciaky’s parent 

corporation and sole shareholder, and PSI provides all human resources functions for Sciaky, 

including hiring, payroll, employment policies, and all other human resources issues. PSI 

extended plaintiff a written job offer that was contingent on plaintiff executing a Confidentiality 

and Non-competition Agreement. Plaintiff accepted the job and executed the agreement drafted 

by PSI. That agreement included a non-competition clause, which prohibited plaintiff from 

employment with an organization engaged in research on or development, production, marketing 

or selling of a competitive product for a period of one year after the termination of his 

employment with PSI.

After accepting the job offer from PSI, plaintiff was assigned to work in the Applied 

Research Laboratory at Penn State University, where he worked for over two years as an 

employee of Sciaky rather than PSI. In April, 2015, Penn State offered plaintiff employment as 

a Research and Development Engineer, and plaintiff resigned his employment with Sciaky. 
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Penn State subsequently withdrew its offer of employment because Sciaky threatened to sue 

Penn State pursuant to the non-competition agreement plaintiff had executed with PSI. Plaintiff 

filed this lawsuit, primarily seeking a declaratory judgment that the terms of the non-competition 

agreement did not prohibit him from accepting the employment with Penn State.

I. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition. 

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion under MCR 

2.116(C)(8) tests the legal sufficiency of a claim and should be granted if the opposing party has 

failed to state a claim on which relief can be granted. Gorman v American Honda Motor Co, 

Inc, 302 Mich App 113, 131; 839 NW2d 223 (2013). A motion under MCR 2.116(C)(10) tests 

the factual sufficiency of the complaint and should be granted if, after consideration of the 

evidence submitted by the parties in the light most favorable to the nonmoving party, no genuine 

issue regarding any material fact exists to warrant a trial. Maiden, 461 Mich at 120. The proper 

interpretation of a contract or the legal effect of a contractual clause is reviewed de novo. Rory v 

Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).

II. DECLARATORY JUDGMENT

Plaintiff first argues that the trial court erred in summarily dismissing his request for a 

declaratory judgment regarding the non-competition clause after erroneously disregarding

defendants’ separate corporate existence and allowing Sciaky to enforce a contract signed solely 

by plaintiff and PSI. Defendants argue that the issue is moot because Penn State withdrew its 

offer of employment and because the one-year time limit on the non-competition clause has 

expired. We agree with defendants.

Our Supreme Court has comprehensively summarized the mootness doctrine as follows:

It is well established that a court will not decide moot issues. This is 

because it is the principal duty of this Court . . . to decide actual cases and 

controversies. That is, the judicial power . . . is the right to determine actual 

controversies arising between adverse litigants, duly instituted in courts of proper 

jurisdiction. As a result, this Court does not reach moot questions or declare 

principles or rules of law that have no practical legal effect in the case before 

it. . . . It is universally understood . . . that a moot case is one which seeks to get a 

judgment on a pretended controversy, when in reality there is none, . . . or a 

judgment upon some matter which, when rendered, for any reason, cannot have 

any practical legal effect upon a then existing controversy. Accordingly, a case is 

moot when it presents nothing but abstract questions of law which do not rest 

upon existing facts or rights.

In general, because reviewing a moot question would be a purposeless 

proceeding, appellate courts will sua sponte refuse to hear cases that they do not 

have the power to decide, including cases that are moot. Whether a case is moot 

is a threshold issue that a court addresses before it reaches the substantive issues 

of the case itself. [People v Richmond, 486 Mich 29, 34-35; 782 NW2d 187 

(2010) (internal quotation marks, footnote, and citations omitted).]
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Accordingly, the trial court properly dismissed plaintiff’s request for a declaratory 

judgment regarding enforcement of the non-competition agreement as moot because plaintiff 

admittedly had no pending offer of employment from Penn State and because the one-year 

period set forth in the non-competition agreement had expired. Therefore, we affirm the trial 

court’s grant of summary disposition as to this issue.

III. STATUTE OF FRAUDS

Plaintiff next argues that the statute of frauds, MCL 566.132(1)(f), would prohibit Sciaky 

from enforcing a section of the agreement signed by plaintiff regarding the assignment of 

intellectual property rights. However, the request for a declaratory judgment in Count I of 

plaintiff’s complaint did not seek relief with regard to the intellectual property assignment 

provision, and did not seek a declaration that the intellectual property assignment provision of 

the agreement was invalid or unenforceable; it only sought declaratory relief with regard to the 

non-competition provision. Therefore, this Court need not determine whether Sciaky had any 

contractual rights to enforce the intellectual property assignment provision of the Agreement. 

Furthermore, because we conclude that the trial court correctly determined that any claim 

regarding enforcement of the non-competition agreement was moot, we decline to address 

plaintiff’s argument that the statute of frauds prohibited Sciaky from enforcing that noncompetition agreement.

IV. NON-COMPETITION CLAUSES OUTSIDE A DIRECT EMPLOYMENT 

RELATIONSHIP 

Plaintiff next contends that the trial court erred in granting defendant’s motion for 

summary disposition because non-competition agreements are void outside of a direct 

employment relationship. Plaintiff contends that because only PSI was a party to the written 

agreement signed by plaintiff, and PSI was not his employer, the non-competition clause of the 

agreement was not enforceable. Again, because we conclude that the trial court correctly 

dismissed plaintiff’s declaratory judgment claim regarding enforcement of the non-competition 

agreement as moot, we decline to address this issue.

V. CONSIDERATION TO SUPPORT THE NON-COMPETITION CLAUSE

Plaintiff next contends that the trial court erred in granting defendant’s motion for 

summary disposition because the non-competition agreement failed for lack of consideration. 

Again, because we conclude that the trial court correctly determined that any claim regarding 

enforcement of the non-competition agreement was moot, we decline to address this issue. We 

further note that plaintiff’s brief on appeal fails to adequately explain this argument which 

constitutes abandonment of the issue. See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 

(1959).

VI. DISMISSAL OF REMAINING CLAIMS

Finally, plaintiff contends that this Court should remand to the trial court for further 

proceedings on plaintiff’s claims of tortious interference, unfair competition, and civil 

conspiracy. Contrary to plaintiff’s argument, the trial court did not dismiss plaintiff’s remaining 

claims simply based on its conclusion that Sciaky could enforce PSI’s contract with plaintiff. 
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Rather, the trial court dismissed those claims on their merits. Plaintiff fails to explain why the

trial court’s ruling on any of the remaining claims was erroneous, other than to vaguely argue 

that he set forth facts, law, and other evidence sufficient to rebut defendant’s motion for 

summary disposition as to the remaining claims in the complaint. “It is not enough for an 

appellant in his brief simply to announce a position or assert an error and then leave it up to this 

Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his 

arguments, and then search for authority either to sustain or reject his position.” Id. 

Accordingly, plaintiff has abandoned his appellate rights with regard to the trial court’s dismissal 

of his tortious interference, unfair competition, and civil conspiracy claims.

Affirmed.

/s/ Henry William Saad

/s/ Mark J. Cavanagh

/s/ Thomas C. Cameron