The Honorable Gregory L. Frost, United States District Judge for the Southern District of *

Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 07a0756n.06

Filed: October 24, 2007

No. 06-2127

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PLANTE AND MORAN CRESA, L.L.C., 

Plaintiff-Appellant, 

v.

KAPPA ENTERPRISES, L.L.C.; FLAGSTAR

BANK; UNITED STATES OF AMERICA, 

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MICHIGAN

Before: COLE and COOK, Circuit Judges; and FROST, District Judge.*

PER CURIAM. Plaintiff Plante & Moran Cresa, LLC (“P&MC”) originally brought this

action in state court, alleging various state-law claims of breach of contract, unjust enrichment, and

foreclosure of a construction lien against Kappa Enterprises, LLC. P&MC seeks $105,000 in

additional compensation for the consulting services it provided following flooding and construction

delays at Kappa’s Hawthorne Suites Hotel, claiming this work went above and beyond the parties’
No. 06-2127

Plante & Moran Cresa, LLC v. Kappa Enters., LLC, et al.

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original contract. Because Flagstar Bank and the United States Small Business Administration held

mortgages against the hotel, Michigan law required P&MC to add them as defendants. Mich. Comp.

Laws § 570.1117(4). After the Small Business Administration removed the case to federal district

court, 28 U.S.C. § 1444, Kappa and Flagstar moved for summary judgment. The district court

granted summary judgment in favor of the defendants, concluding that under the preexisting duty

rule P&MC’s contract obligated it to provide—at the agreed contract price—the services for which

it seeks the additional compensation, and that P&MC’s unjust enrichment claim failed in light of the

written contract governing the transaction. 

After reviewing the record, the applicable law, and the parties’ briefs, and having had the

benefit of oral argument, we find no error in the district court’s grant of summary judgment. See

Plante & Moran Cresa, LLC v. Kappa Enters., LLC, No. 05-60112, 2006 WL 1676411 (E.D. Mich.

June 9, 2006). The district court correctly explained why the preexisting duty rule bars P&MC’s

claims and we adopt its explanation of that bar. In response to P&MC’s stance that the preexisting

duty rule lacks the requisite vitality to steer the grant of summary judgment, we add the following

discussion to our adoption of the district court’s opinion. 

P&MC questions grounding this decision on the preexisting duty rule in light of the

skepticism of the Michigan Court of Appeals in Borg-Warner Acceptance Corp. v. Dep’t of State,

426 N.W.2d 717, 719 (Mich. Ct. App. 1988), rev’d on other grounds, 444 N.W.2d 786 (Mich.

1989), “not[ing] a growing doubt in the soundness of this doctrine.” Borg-Warner suggested that
No. 06-2127

Plante & Moran Cresa, LLC v. Kappa Enters., LLC, et al.

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the rule “should never be used as a major premise of a decision without careful thought to the

circumstances of a particular case, to the moral postures of the parties, and to the social feelings and

interests that are involved.” Id. (citing 1A Corbin on Contracts § 171, at 105). That one Michigan

state court expresses the view that it and other Michigan courts should reevaluate a particular statelaw doctrine cannot be labeled “controlling Michigan law.” Appellant’s Br. at 21. In fact, when

Borg-Warner reached Michigan’s highest court, that court, though recognizing the lower court’s

distaste for the rule, concluded that the “preexisting-duty rule as applied to modifications of existing

contracts is not called into play” and instead resolved the case on a preexisting statutory duty. 444

N.W.2d at 788 & n.3. At most, Borg-Warner left the question for another day. 

By all accounts, the Michigan Supreme Court answered that question when it later cited its

opinion in Borg-Warner for the proposition that the preexisting duty “rule bars the modification of

an existing contractual relationship when the purported consideration for the modification consists

of the performance or promise to perform that which one party was already required to do under the

terms of the existing agreement.” Yerkovich v. AAA, 610 N.W.2d 542, 546 (Mich. 2000) (citing

Borg-Warner, 444 N.W.2d at 788 n.3). Despite criticism of the rule, e.g., Angel v. Murray, 322 A.2d

630, 634–37 (R.I. 1974), Michigan courts continue to cite Yerkovich positively, e.g., 46th Circuit

Trial Court v. Crawford County, 719 N.W.2d 553, 568 (Mich. 2006). “In deciding questions of state
No. 06-2127

Plante & Moran Cresa, LLC v. Kappa Enters., LLC, et al.

Michigan’s law provides a path around the preexisting duty rule in certain circumstances. 1

If parties to a contract consider modification mutually beneficial, such an agreement will not fail for

lack of consideration provided the agreement is in writing and signed by the party against whom

enforcement is sought. See Mich. Comp. Laws § 566.1 (stating that “[a]n agreement hereafter made

to change or modify . . . any contract . . . shall not be invalid because of the absence of consideration

[if] the agreement changing . . . such contract [is] in writing and signed by the party against whom

it is sought to enforce the change”). But P&MC has come forward with no writing signed by Kappa

evidencing the alleged modification. Cf. Adell Broad. Co. v. Apex Media Sales, Inc., 708 N.W.2d

778, 782 (Mich. Ct. App. 2005) (“In this case, the parties waived certain terms of their original

agreement in a signed writing. In doing so, the parties considered the changes to their advantage.”).

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law . . . we follow the pronouncements of the state courts.” United Servs. Auto. Ass’n v. Barger, 910

F.2d 321, 325 (6th Cir. 1990).1

Accordingly, we affirm.