DocketNumber： Docket No. 287024
Citation Numbers： 290 Mich. App. 577
Judges： Kelly, Murphy, Stephens
Filed Date： 11/16/2010
Status： Precedential
Modified Date： 9/9/2022
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendant. This case involves a claim of tortious interference with a business expectancy arising out of, allegedly, defendant’s improper conduct, communications, and recommendations that resulted in a school district’s decision not to award plaintiff a construction project despite plaintiffs submission of the lowest bid. We hold that genuine issues of material fact existed with respect to the elements of plaintiffs cause of action. More specifically, we reject the trial court’s determination that, as a matter of law, plaintiff lacked a valid business expectancy. Plaintiff, as the lowest bidder, submitted evidence sufficient to create a factual dispute with respect to whether it was a “responsible” contractor to the extent that the trier of fact could have concluded that there existed a reasonable probability or likelihood that plaintiff would have been awarded the project absent the alleged tortious interference. Therefore, there was a genuine issue of material fact with respect to whether plaintiff had a valid business expectancy. We emphasize that the submission of the lowest bid, in and of itself, was inadequate to sustain plaintiffs suit. We reject any rule per se that would allow litigation to proceed simply on the basis of proof of the lowest bid, except, of course, if no additional criteria needed to be satisfied, which is unlikely. Absent sufficient additional evidence on relevant award criteria, there would be no valid business expectancy. We further reject the trial court’s determination that, as a matter of law, plaintiff failed to show that defendant did anything improper. Plaintiff submitted evidence sufficient to create a factual dispute with respect to whether defendant’s conduct was intentional and improper, motivated by malice and not legitimate business reasons. On this issue, we emphasize that the exercise of professional business judgment in making recommendations relative to governmental con
I. BACKGROUND
The Davison Community Schools (DCS) opened bidding on a construction project that entailed work at two school sites. Pursuant to a contract, defendant, an architectural firm, assisted the DCS with the bid-selection process by reviewing and evaluating bid applications, investigating competing contractors and their references, expressing opinions and views on contractor competence and workmanship, and making recommendations regarding which contractor should be awarded the project. Plaintiffs bid was the lowest submitted to the DCS by any contractor. After entertaining all the submitted bids, the DCS, as recommended by defendant, elected to award the contract on the construction project to the contractor that had submitted the second lowest bid, not plaintiff.
Plaintiff filed suit against defendant, alleging a single count of, as framed by plaintiff, tortious interference with prospective economic relations.
The trial court granted defendant’s motion for summary disposition under MCR 2.116(C)(10), ruling that the evidence failed to show that plaintiff had a reasonable or valid expectation of entering into a business relationship with the DCS and that the evidence fell short of showing that defendant did anything improper.
II. ANALYSIS
A. STANDARD OF REVIEW AND GENERAL SUMMARY-DISPOSITION PRINCIPLES
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. A motion brought under MCR 2.116(C)(10) tests the factual support for a party’s cause of action. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). The trial court’s task in reviewing the motion entails consideration of the record evidence and all reasonable infer
B. VALID BUSINESS EXPECTANCY
On appeal, plaintiff first argues that the trial court erred by granting the motion for summary disposition when there was evidence sufficient to create a factual issue regarding whether plaintiff, as a qualified and responsible bidder that submitted the lowest bid, had a valid business expectancy. We agree.
1. THE CASELAW
With respect to a claim of tortious interference with a business expectancy, a plaintiff must prove (1) the existence of a valid business expectancy, (2) knowledge of the expectancy on the part of the defendant, (3) an intentional interference by the defendant inducing or causing a termination of the expectancy, and (4) resultant damage to the plaintiff. Dalley v Dykema Gossett PLLC, 287 Mich App 296, 323; 788 NW2d 679 (2010);
In Joba Constr Co, Inc v Burns & Roe, Inc, 121 Mich App 615; 329 NW2d 760 (1982), the plaintiff was a corporation that engaged in underground and heavy-duty construction, and the defendant was a firm of consulting engineers that had been retained by the Detroit Public Lighting Commission (PLC) under contract relative to a planned expansion of a utility station. Comparable to defendant’s duties here, the engineering firm had contracted “to prepare construction specifications, evaluate bids made by contractors and make recommendations to the PLC as to which contractor should be awarded contracts.” Id. at 624. The plaintiff submitted the lowest bid, but the engineering firm recommended that the PLC award the construction contract to another contractor “as it felt plaintiff was unqualified to perform the contract.” Id. The PLC followed the defendant’s recommendation, and the plaintiff was denied the contract. On another utility project, a general contractor had been awarded a construction contract by the PLC, and that contractor had designated the plaintiff as a subcontractor. The engineering firm, however, indicated that the plaintiff was an unacceptable subcontractor, and the plaintiff was then removed from the project. The plaintiff sued the defendant for tortious interference with prospective
On appeal, the defendant claimed that the trial court had erred by denying its motion for a directed verdict, arguing “that it was entitled to a directed verdict as plaintiff failed to produce sufficient evidence to raise a question of fact as to a valid expectancy that the contracts would have been awarded to plaintiff absent defendant’s alleged interference.” Id. at 633. The defendant maintained that “the discretionary factors going into the determination of who is the lowest qualified bidder preclude[d] plaintiff from proving it had an expectation of being awarded the contracts.” Id. at 634 (emphasis added). The Joba Constr panel stated that, to support the tortiousinterference claim, the plaintiff had to prove that it was reasonably likely or probable that a specific and reasonable economic advantage or expectancy would indeed develop and occur. Id. at 634-635. The panel stated that the plaintiff was not required to demonstrate a guaranteed relationship, considering that anything defined as prospective in nature would necessarily be uncertain, and stated that while certainties need not be shown, there must he something more than innate optimism or mere hope. Id. at 635. This Court concluded that the plaintiff had submitted “sufficient evidence to create a question of fact as to whether it was the lowest qualified bidder and thus had a legitimate expectancy in obtaining the contracts . ...” Id.
The Trepel panel, examining whether the hospital had a valid business expectancy in obtaining approval of the bond issue from the government, first noted that there was an absence of Michigan caselaw “relating to interference with discretionary governmental action.” Id. at 378 (emphasis added). This Court proceeded to review three federal court decisions, two of which approved of interference suits brought by parties that had submitted the most favorable bids on governmental contracts, Lewis v Bloede, 202 F 7 (CA 4, 1912), and Pedersen v United States, 191 F Supp 95 (D Guam, 1961), and one in which the court rejected a suit arising
In the instant case, the discretion to be exercised by the MFC appears to be somewhat greater than that attributed to the governmental bodies in Lewis and Pedersen, supra, but significantly less than that in Carr. We perceive that Carr is a gloss on the general rule. It applies to situations where too many factors are in play to be able to reasonably infer that, but for defendant’s allegedly wrongful action, plaintiff likely would have obtained the desired advantage. In this case, the MFC’s grant of approval must be preceded by the determinations required by statute. A trier of fact might be persuaded that defendant hospital could ascertain with reasonable certainty whether the items listed in the statute were satisfied so that MFC approval was a probability. If the question were whether defendant hospital’s application for a loan was denied because of [the plaintiffs] interference, defendant hospital would have made out a cause of action because a trier of fact could assess the causal effect of the [plaintiffs] actions.
However, where the MFC approval is only delayed, as alleged here, the problem becomes more difficult. The MFC is required to make findings of fact before granting approval. Obviously, that task takes a certain amount of time to accomplish. However, the procedure involved is not a notice and comment type hearing, as in Carr, designed to let interested parties express their opposition. Defendant hospital should have the opportunity to prove its allegation that approval was “scheduled” for September 11, 1979.
In Lewis, [202 F at] 20-21, and Carr, [395 A2d at] 84, reference is made to the prior history of the governmental entity in granting approval. Defendant hospital has sought to introduce evidence by way of affidavit of the MFC’s perfect record in approving bond issues already approved by the Michigan State Hospital Finance Authority. We*590 believe such evidence if otherwise admissible could persuade a trier of fact at a contested trial. [Id. at 380-381.]
From Joba Constr, Trepel, and First Pub, and cases relied on therein, we derive the following principles to apply in determining whether there exists a valid business expectancy: (1) the presence of some level of discretion exercisable by a governmental body or decision-maker does not automatically preclude a recognition of a valid business expectancy, (2) if the discretion is expansive and not restricted by limiting criteria and factors to an extent that it makes it impossible to reasonably infer that the claimed expectancy would likely have come to fruition, there is no valid business expectancy, (3) an expectancy must generally be specific and reasonable, (4) it must be shown that there was a reasonable likelihood or probability that the expectant relationship would have developed as desired absent tortious interference with the expectancy, (5) a party need not prove that the expectancy equated to a certainty or guarantee, (6) innate optimism or mere hope is insufficient, and (7) the prior history of the governmental body or decision-maker and governing internal and external rules, policies, and laws constitute factors for a court to consider in determining whether a business expectancy was valid and likely achievable. Of course, when addressing a motion for summary disposition under MCR 2.116(0(10), these principles must be viewed in the context of determining whether a genuine issue of material fact exists on contemplation of the documentary evidence.
2. APPLICATION OF THE LAW TO THE FACTS
We begin by examining the documents governing the DCS and the bid-selection process. DOS’s fiscal management policy (FMP) indicates multiple times that the
The Board. .. hereby establishes this policy to satisfy its statutory duty to competitively bid contracts for construction of a new school building, or an addition to or repair or renovation of an existing school building of the [DCS], except for repairs in emergency situations. Bids shall be awarded in compliance with applicable bidding obligations imposed by law to the “lowest responsible bidder.” [Emphasis added.]
This language, including use of the word “shall,” indicates that if a bidding contractor submits the lowest bid on a project and is deemed “responsible,” the Board is mandated to award the project to that contractor. In re Kostin Estate, 278 Mich App 47, 57; 748 NW2d 583 (2008) (“ ‘Shall’ is mandatory.”). There appears to be some tension between this provision and the FMP’s language that gives the Board the authority to reject any or all bids, giving rise to the question whether the Board has the discretion to reject a bid from the “lowest responsible bidder.” The term “lowest responsible bidder” is defined in the FMP as being
[t]he Responsible Contractor that has submitted a fully complete and responsive bid that provides the lowest net dollar cost for all labor and materials required for the complete performance of the work of the Construction Project let for bid. Such bid must satisfy the requirements of all applicable local, state, and federal laws, this Policy, any administrative rules associated with this Policy developed by the Superintendent at the Board’s direction, and bid documents used to solicit bids, and any other guidelines and specifications required for the Construction Project.*592 Because a bidder with the net lowest dollar cost bid may not be a Responsible Contractor, the lowest dollar cost bidder may not always receive award of the bid.
This definition refers to the term “Responsible Contractor,” and the FMP also defines that term as being
[a] contractor determined by the Board to be sufficiently qualified to satisfactorily perform the Construction Project, in accordance with all applicable contractual and legal requirements. The Board’s determination shall be based upon: (1) an overall review of the Responsibility Criteria listed below and the contractor’s responses, or failure to respond, to same; (2) the contractor’s compliance with this Policy and all applicable local, state and federal laws; (3) the input of the District’s architect(s) [here defendant] and/or construction manager(s), if any; (4) review of the contractor’s proposed subcontractors; and (5) other relevant factors particular to the Construction Project.
The FMP then provides a definition of “Responsibility Criteria,” which sets forth a nonexclusive list of criteria that can be examined and weighed by the Board in determining whether a contractor is responsible.
In his affidavit, the superintendent of the DCS, R. Clay Perkins, averred that the DCS had the authority and right under the FMP to reject any or all bids and that the FMP specifically apprised contractors that the lowest bidder might not always be awarded a project.
The trial court was also provided with a project manual drafted by defendant that addressed the advertisement of bids and the planned construction to be undertaken at the two work sites, Hill Elementary School and Siple Elementary School. The project manual twice indicates that the DCS “reserves the right to accept or reject any or all offers.” But the manual also provides that the DCS “reserves the right to reject any or all bids where incomplete or irregular, lacking bid
Defendant’s reliance on the language in the FMP and project manual that gives the DCS the right to reject any or all bids reflects a failure to appreciate the language in the FMP that requires the DCS to award a project to the lowest responsible bidder. Indeed, defendant fails to even acknowledge the provision concerning the “lowest responsible bidder” mandate, let alone argue that it is negated by or subject to the language in the FMP and project manual on which defendant relies. Defendant’s position suggests that the DCS has complete and unfettered discretion to reject a bid, but this is inconsistent with the “lowest responsible bidder” provision that mandates an award and inconsistent with the language in the project manual that indicates that the DCS has the right to reject bids, but only for certain reasons.
We hold, as a matter of law, that the multiple provisions reserving the right to reject bids are subject to the provision requiring an award to be made to the lowest responsible bidder; otherwise, the “lowest responsible bidder” provision is rendered meaningless and nugatory. In Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003), our Supreme Court stated:
Just as “[c]ourts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory,” courts must also give effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory. [Citation omitted.]
We next need to address whether plaintiff submitted evidence sufficient to create a genuine issue of material fact on the question whether it had a valid business expectancy, accepting the undisputed fact that plaintiff submitted the lowest bid and taking into consideration our construction of the FME Our attention must focus
The Board’s discretion in awarding a project is not expansive or unrestricted by limiting criteria and factors to an extent that it makes it impossible to reasonably infer that plaintiffs claimed expectancy would likely have come to fruition. Rather, the FMP limits the discretion to an assessment of whether a contractor is “responsible,” and that determination is subject to the factors and criteria delineated in the definitional section of the FMP In determining whether a contractor is responsible, the ultimate question to be answered by the Board, according to the FMR is whether the contractor is “sufficiently qualified to satisfactorily perform the Construction Project, in accordance with all applicable contractual and legal requirements.” Certainly, a contractor submitting the lowest bid on a project, such as plaintiff, may be able to prove with testimony and other evidence that it was sufficiently qualified to complete the project in a satisfactory and legally and contractually compliant manner, to the extent that a trier of fact could conclude that there existed a reasonable likelihood or probability that the contractor would have been awarded the project absent tortious interference by a defendant. Supporting evidence that goes beyond innate optimism or mere hope could easily exist if a contractor truly has a stellar track
We shall now examine the documentary evidence presented in the trial court. Defendant’s representative, Jackie Hoist, contacted and interviewed persons identified on plaintiffs bidder-qualification form in order to obtain opinions on the quality and timeliness of plaintiffs work on past projects. Hoist’s typewritten notes of the responses and opinions supposedly communicated to her reflect some negative reviews of plaintiffs work, ■ the harshest of which came from Hoist herself, who had worked with plaintiff on multiple projects.
In light of the documentary evidence indicating that plaintiff was sufficiently qualified to complete the project in a satisfactory manner, we conclude that a genuine issue of material fact existed concerning whether plaintiff was a responsible contractor to the extent that a trier of fact could conclude that there existed a reasonable likelihood or probability that plaintiff would have been awarded the project absent the alleged tortious interference by defendant. Stated otherwise, there was a genuine issue of material fáct regarding whether plaintiff had a valid business expectancy.
As indicated in our introduction, we emphasize that the submission of the lowest bid, in and of itself, was inadequate to sustain plaintiffs suit. We reject any per se rule that would allow litigation to proceed simply on the basis of proof of the lowest bid, except, of course, when no additional criteria needed to be satisfied,
We find it necessary to address some of the criticisms leveled by the dissent regarding the issue whether there could be a valid business expectancy. Initially, the dissent asserts that no cause of action exists to protect bidders on a governmental contract, citing Talbot Paving Co v Detroit, 109 Mich 657, 661-662; 67 NW 979 (1896). First, Talbot Paving addressed an action by a contractor against a municipality, and here plaintiff is not suing the DCS, but is proceeding on a tortiousinterference claim against defendant. Next, Talbot Paving allowed for the possibility of a suit against a municipality if fraud were involved. Id. at 662. As can be gleaned from our discussion later in this opinion, there was evidence presented suggesting fraudulent conduct on the part of defendant. The dissent also cites Leavy v City of Jackson, 247 Mich 447, 450-451; 226 NW 214 (1929), another suit against the municipality itself, and heavy recognized that a suit by a bidder could be maintained if the municipality did not act in good faith in the exercise of honest discretion or if fraud, injustice, or a violation of trust permeated the bidding process. Once again, as reflected later in our opinion, there is evidence indicating bad faith, a lack of honesty, injustice, and fraud.
The dissent contends that there could be no valid business expectancy because MCL 380.1267 gave the DCS unfettered discretion to reject a bid, since the statute provides no limiting criteria and because the FMP does not have the force of law. MCL 380.1267(6) provides, in part, that “[t]he board, intermediate school board, or board of directors may reject any or all bids, and if all bids are rejected, shall readvertise in the manner required by
Finally, we reject the dissent’s reliance on unpublished opinions. MCR 7.215(J).
C. TORTIOUS INTERFERENCE — INTENTIONAL AND IMPROPER CONDUCT
Plaintiff next argues that the trial court erred by granting the motion for summary disposition when a genuine issue of material fact existed with respect to whether defendant’s communications to the DCS that plaintiff was not qualified constituted intentional and improper conduct.
1. THE CASELAW
In regard to a claim of tortious interference with a business expectancy, a plaintiff must demonstrate that the defendant acted both intentionally and either improperly or without justification. Dalley, 287 Mich App
A false accusation may provide a basis to pursue a claim of tortious interference. First Pub, 246 Mich App at 199. In Trepel, 135 Mich App at 377, this Court noted that the defendant’s counterclaim of tortious interference “clearly allege[d] unethical conduct — sending letters knowing them to contain false allegations.”
The FMP provides that the determination whether a contractor is a responsible contractor shall be based, in part, on “the input of the [DOS’s] architect,” which in this case was defendant. The contract between the DCS and defendant provides that defendant “shall assist the [DCS] in obtaining competitive bids and shall assist the [DCS] in awarding and preparing contracts for construction.” Superintendent Perkins averred that plaintiff had submitted the lowest bid, but, “[b]ased on the review by the Board Committee and the recommendations of [defendant], [the DCS] decided to award the Project to US Construction[.]” There is no dispute that, consistently with its obligation to provide assistance in the bid-selection process, defendant made a recommendation and conveyed'information to the DCS regarding plaintiff and its bid. Hoist sent a letter on behalf of defendant to the DCS in which she stated:
We have reviewed the apparent low bidder[’]s proposal, references, past experience and qualifications. At the close of the review, we recommend that you move to the second low bidder, US Construction . 1.. They have provided construction services for other projects designed by [us] & for [the DCS], and have performed the work adequately.
It can reasonably be inferred from this letter that Hoist, and thus defendant, found that plaintiff had a poor work history and consequently would not adequately perform the work on the project at issue. And Perkins’s averment indicating that the award decision was based, in part, on defendant’s recommendation provides evidence of a causal relationship between defendant’s conduct and the decision to award the project to US Construction instead of plaintiff. Further support of a causal relationship is an e-mail to Perkins from the DOS’s director of finance and operations,
There was conflicting evidence presented regarding plaintiffs workmanship on various projects. In Hoist’s notes, she indicated that the contact person on a construction project involving toilet buildings at the Island Lake State Park stated that plaintiff had failed to meet the project’s schedule, failed to follow the plans and specifications, failed to provide supervision, and failed to follow up on matters. The contact person also stated that plaintiffs work was of poor quality and that he believed that “the state put [Cedroni] on their ‘may not bid’ list.” Cedroni asserted in his affidavit that the contact person on the Island Lake project was employed by defendant, which acted as the architect on the project. Cedroni further averred that plaintiff “timely and properly completed all work on the project considering the design errors of [defendant].” Cedroni additionally attested that “[t]he work was fully completed and was of good quality, as proven by [plaintiffs] receipt of full payment for the project[, and plaintiff] had on-site supervision during the entire course of the project.”
In Hoist’s notes, she indicated that she spoke with a person from Architectural Systems Group regarding a prime subcontract and that the individual stated that plaintiff was “[n]ot good to deal with.” In Cedroni’s affidavit, he averred that plaintiff “is currently working with Architectural Systems Group as part of a $170,000 contract[.]”
Ken Kander will attest that Cedroni completed quality work on the project, had appropriate levels of supervision, and addressed any concerns of the owner. The problems on this construction project were due to [defendant]. [Plaintiff] suggested an alternative ballast to the one [defendant] had specified. [Defendant] rejected [plaintiffs] proposal. [Defendant’s] specified ballasts were problematic and [plaintiffs] subcontractor has made repeated visits to the construction project to address the problems. In fact, Holly Academy has since retained a new architect rather than work any further with [defendant].[7 ]
In his letter presented to the DCS committee involved in the bidding process, Cedroni stated that he had spoken to the owner of the Holly Academy numerous times “and he was very happy with our quality and performance on the project and would not hesitate to utilize our services again.”
In his letter presented to the DCS committee, Cedroni made the following observations regarding his company:
I have personally contacted all parties on this document [Hoist’s notes] and all admitted to talking to Jackie. They all reported giving good reviews and glowing reports of our performance, except for one architect. After speaking with this architect and explaining to him that his comment could be viewed as damaging, he stated he didn’t think his review was particularly bad and he would have no problem working with us in the future.
... I have found no definitive reason as to why my company should not be recommended for this project. I am offering to complete this job at nearly $50,000 less than the*605 next lowest bidder .... We have never been removed from a project and never received a poor review from any architect/owner we’ve worked with. Even after our last project with [defendant], I was told they had no issue with our performance and we could use them as a reference for future work.
Viewing the conflicting and inconsistent evidence and the inferences arising from it in a light most favorable to plaintiff, a trier of fact could reasonably conclude that defendant acted with malice, in a wrongful manner per se, unethically, with an improper motive and absence of justification, or deceitfully with respect to the damaging information and recommendation conveyed to the DCS. If plaintiffs evidence were found to be credible by the trier of fact, it could reasonably conclude that defendant acted intentionally and improperly in an effort to interfere with plaintiffs business expectancy, i.e., being awarded the construction project by the DCS. It is quite evident in reviewing the documentary evidence that a great deal of friction and animosity had developed between plaintiff and defendant over past projects by the time the bid-selection process took place here, and a trier of fact could determine that defendant’s recommendation was motivated by malice and not legitimate business reasons. Summary disposition was simply inappropriate in light of the record.
As indicated in our introduction, we emphasize that the exercise of professional business judgment in making recommendations relative to governmental contracts and projects must be afforded some level of protection and deference. But we will not preclude litigation when there exists evidence suggesting that the ostensible exercise of professional business judgment is in reality a disguised or veiled attempt to intentionally and improperly interfere with the contrac
Finally, the dissent posits that there was no evidence that Hoist provided false information to the DCS or had an improper motive and that the information supplied by Hoist simply constituted a negative opinion. The dissent asserts that the evidence merely reflected professional disagreements. We respectfully conclude that the dissent fails to view the evidence in a light most favorable to plaintiff and fails to consider reasonable inferences arising from the evidence. A reasonable inference arising from Cedroni’s affidavit is that Hoist was lying, and Cedroni’s letter indicates that glowing reviews were given to Hoist, which, if true, would directly establish that she was lying. Taking into consideration Cedroni’s affidavit and letter, along with the other documentary evidence, and viewing it in a light most favorable to plaintiff, this case entails more than professional disagreements and negative opinions.
D. DEFENDANT’S RELATIONSHIP WITH THE DCS
The dissent argues that defendant is entitled to summary disposition on the basis that defendant was not a third party to the prospective contract or relationship between plaintiff and the DCS; rather, defendant was an agent of the DCS and thus a tortiousinterference cause of action cannot be maintained. We initially note that defendant itself does not make this argument, nor did the trial court address this issue.
A plaintiff must establish that the defendant was a third party to the contract or business relationship in
Reviewing the evidence in a light most favorable to plaintiff, and talcing into consideration reasonable inferences arising from the evidence, a genuine issue of material fact existed regarding whether Hoist was honestly acting for the benefit of the DCS or whether she was acting solely for her own benefit and out of motivation to harm plaintiff. As already indicated, a trier of fact, on the basis of the evidence, could reasonably conclude that defendant acted with malice, in a wrongful manner per se, unethically, with an improper motive and absence of justification, or deceitfully in regard to the damaging information and recommendation conveyed to the DCS. There was evidence of an acrimonious relationship between Hoist and Cedroni, and it could reasonably be inferred from the e-mail Hoist sent to Kander, when considered in conjunction with the
III. CONCLUSION
In light of the documentary evidence indicating that plaintiff was sufficiently qualified to complete the project in a satisfactory manner, we conclude that a genuine issue of material fact existed concerning whether plaintiff was a responsible contractor to the extent that the trier of fact could conclude that there existed a reasonable likelihood or probability that plaintiff would have been awarded the project absent the alleged tortious interference by defendant. Thus, there was a genuine issue of material fact regarding whether plaintiff had a valid business expectancy.
Furthermore, viewing the conflicting and inconsistent evidence and the inferences arising from it in a light most favorable to plaintiff, a trier of fact could
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, plaintiff is awarded taxable costs pursuant to MCR 7.219.
For purposes of this opinion, we shall refer to plaintiffs claim as “tortious interference with a business expectancy.”
While the Joba Constr opinion did indicate that the plaintiff was the lowest bidder on the first project, it did not reveal the nature of the evidence presented at trial with respect to the plaintiff being a “qualified” bidder.
Hoist noted that, on one project, some of plaintiffs work was the worst that she had ever seen.
Cedroni is plaintiffs president and principal representative.
The documentary evidence is not clear regarding whether Hoist’s notes themselves were shared with the DCS; however, defendant’s brief in the trial court indicated that the notes were indeed shared and that the DCS chose another contractor on the basis of the notes and the information contained therein.
Hoist’s notes and Cedroni’s affidavit and letter do raise concerns about hearsay. However, neither party argued in the trial court, nor argues on appeal, that any of the documentary evidence should be disregarded and not considered on the basis of hearsay. Indeed, both parties place some reliance on all three of the documents. Given that the parties have effectively agreed to allow consideration of the documents and their contents, we shall not engage in any hearsay analysis.
Returning to our hearsay concern, aside from again noting that neither party raises hearsay issues, we would note that Cedroni’s claims with respect to what others told him about plaintiffs workmanship would not be hearsay in the context of this issue because their statements would not be offered to prove the truth of the matter asserted. MRE 801(c). For purposes of this issue, statements that, for example, plaintiff did quality work on a project would not be used to prove that plaintiff indeed did quality work, but simply to show that the declarant made a statement contrary to one attributed to him or her in Hoist’s notes, calling into question Hoist’s truthfulness and showing improper conduct. See Merrow v Bofferding, 458 Mich 617, 631; 581 NW2d 696 (1998).