Monroe Beverage Co. v. Stroh Brewery Co. , 224 Mich. App. 366 ( 1997 )

568 N.W.2d 687 (1997) 224 Mich. App. 366

MONROE BEVERAGE COMPANY, INC., a Michigan corporation, Plaintiff, Counter-Defendant, Appellee,
v.
The STROH BREWERY COMPANY, a Michigan corporation, Defendant-Appellant, and
Cap Beverage, Inc., a Michigan corporation and Mongine A. Caputo, individually and as personal representative of the estate of C. Arthur Caputo, deceased, jointly and severally, Defendants, Counter-Plaintiffs, Appellees.

Docket No. 202441.

Court of Appeals of Michigan.

Submitted April 14, 1997, at Lansing. Decided June 27, 1997, at 9:20 a.m. Released for Publication October 1, 1997.

Amberg, McNenly, Zuschlag, Firestone & Lee, P.C. by Dirk F. Zuschlag and Michael K Lee, Southfield, for Monroe Beverage Co., Inc.

Butzel Long by Philip J. Kessler, Detroit, and Ufer Spaniola Fallucca & Cheli, P.C. by David H. Oermann and Kevin F. O'Shea, Bloomfield Hills, for Stroh Brewery Co.

Willingham & Cote, P.C. by Ray Foresman and Anthony S. Kpgut, East Lansing, amicus curiae, for Michigan Beer & Wine Wholesalers Association.

Dickinson, Wright Moon, Van Dusen & Freeman by John A. Krsul, Jr., and Robert W. Powell, Detroit, amicus curiae, for Beer Institute.

Before HOEKSTRA, P.J., and MARKMAN and O'CONNELL, JJ.

ON REMAND

PER CURIAM.

This case is before us^[1] on remand from our Supreme Court, 454 Mich. 41, 559 N.W.2d 297 (1997), for the limited purpose of considering whether the trial court erred in denying defendant the Stroh Brewery Company's motion for summary disposition with regard to plaintiff Monroe Beverage Company, Inc.'s, common-law claim of negligence. We hold that it did and reverse.

The facts underlying this appeal are set forth both in this Court's earlier opinion, 211 Mich.App. 286, 535 N.W.2d 253 (1995), and the opinion of the Supreme Court, 454 Mich. 41, 559 N.W.2d 297 (1997), which affirmed in part and reversed in part this Court's earlier opinion. The issue considered in our earlier opinion was whether Monroe, a wholesaler who never had a distribution agreement with Stroh, but who wished to enter into such an agreement upon its purchase of the assets of a wholesaler that did have an agreement with Stroh, could maintain a civil action against Stroh pursuant to § 30b of the Liquor Control Act, M.C.L. § 436.30b; M.S.A. § 18.1001(2). Although this Court concluded that Monroe could maintain such a suit, our Supreme Court reversed, concluding that the language of the statute explicitly provides that only wholesalers who have an agreement with a supplier may sue under § 30b.

The case was then remanded to us for the limited purpose of considering whether the trial court erred in denying Stroh's motion for summary disposition regarding the common-law claim of negligence (referred to in this Court's earlier opinion as "Count V").^[2] In finding that Stroh was not entitled to summary disposition with respect to the negligence claim, the trial court stated:

Plaintiff has alleged a negligence claim against the Defendants for violating the Act in Count V. The Act requires that the Defendant, Stroh, must apply its material and reasonable standards to proposed transferees. Defendant owed the Plaintiff a duty to apply its own standards in evaluating it as a proposed transferee under the Act. Thus, there is a statutory duty even though there is no contractual duty owed to Plaintiff. Plaintiff has stated a claim as to this Count.

We agree with Stroh that because Monroe cannot maintain a civil suit against Stroh under the Liquor Control Act, that act cannot be used as the basis for establishing a tort duty of care. Stroh did not owe Monroe a duty to review the request for transfer in a nonnegligent manner and Monroe cannot maintain a negligence claim against Stroh on this basis. Accordingly, the trial court erred in denying Stroh's motion for summary disposition with regard to count V of Monroe's complaint.

The trial court's order with respect to this count is reversed.

NOTES

[1] Upon remand, this panel was substituted for the original panel, because (now) Justice Marilyn Kelly, former Court of Appeals Judge J.H. Gillis, and visiting Circuit Judge M.D. Schwartz are not available to consider this case again.

[2] Our earlier opinion did not address this issue, which was not included in Stroh's statement of questions presented and therefore arguably waived. Orion Twp. v. State Tax Comm., 195 Mich.App. 13, 18, 489 N.W.2d 120 (1992).