Barnard Mfg., Co. Inc. v. Gates Performance Eng., Inc., Docket No. 286003.

CourtCourt of Appeal of Michigan (US)
Citation285 Mich. App. 362,775 N.W.2d 618
Docket NumberDocket No. 286003.
Decision Date18 August 2009

Clark Hill PLC (by Matthew T. Smith, Lansing, Cynthia M. Filipovich, Detroit, and T. Blair Renfro) for Barnard Manufacturing Co., Inc.

Lovejoy Law Offices, P.C. (by Fred C. Lovejoy), Lansing, for Gates Performance Engineering, Inc., and Greg N. Gates.

Before: ZAHRA, P.J., and WHITBECK and M.J. KELLY, JJ.


In this commercial dispute, defendants/counter-plaintiffs/third-party plaintiffs, Gates Performance Engineering, Inc. (Performance Engineering), and Greg N. Gates (Gates), appeal as of right the trial court's order of March 28, 2008. In its order, the trial court granted summary disposition in favor of plaintiff/counter-defendant, Barnard Manufacturing Co., Inc. (Barnard Manufacturing), on its claim that Performance Engineering and Gates were liable for parts and services in the amount of $123,120.62. The trial court also dismissed Performance Engineering and Gates's counterclaims and third-party claims. On appeal, we must determine whether the trial court properly considered only the facts brought to its attention by the parties on the motion for summary disposition or whether the trial court had an independent duty to examine the entire record for facts that might establish grounds for denying Barnard Manufacturing's motion. We conclude that the trial court did not have an independent duty to examine the entire record for facts that might warrant denying the motion. Because the trial court properly granted summary disposition on the basis of the facts set forth by the parties and because there were no errors warranting relief, we affirm.


At his deposition, Gates testified that he is the sole shareholder and president of Performance Engineering, which he operates out of his garage. Gates stated that the majority of his work with Performance Engineering involves designing and manufacturing high performance motorcycle engines. However, he also stated that he does some repair work and has rebuilt motorcycle engines. Gates said that the majority of Performance Engineering's income was from the sale of motorcycle components and engines.

Gates testified that he previously worked for General Motors and that after 10 years he accepted a buyout. Gates said that when he accepted his buyout he was working as the leader of a design team. Although his primary duty was to ensure the quality of the designs produced by his team, Gates also did some design work.

Gates testified that he knew of Barnard Manufacturing, but did not have dealings with that company before being approached by Gary Mauer about a possible business deal with Mauer and Gary Barnard (Barnard). Gates stated that Mauer and Barnard came to his home and proposed that Gates join them to form a partnership that would manufacture motorcycle parts. Gates testified that they then began to meet regularly at one of Barnard Manufacturing's plants. Gates stated that Barnard did not, however, make the proposal on behalf of Barnard Manufacturing, but that it "was a personal thing." Gates testified that Mauer and Barnard wanted him for his design expertise. Gates said that the meetings usually involved discussions about the design and manufacture of motorcycle parts. Eventually, it was decided that the business venture would be called Evil Engineering. Gates stated that he contributed designs for various motorcycle parts that were to be sold by Evil Engineering. The parts included an oil filter, an oil filter cooler, and a belt drive system. Gates testified that he even designed the Evil Engineering logo featured on some of the parts. Gates testified that, at some point, he decided not to participate further in Evil Engineering.

Barnard testified at his deposition that he was the president of Barnard Manufacturing and that he also worked for Evil Engineering, LLC, which he stated was solely owned by Barnard Manufacturing. Barnard said that Mauer introduced him to Gates in 2003 or 2004 and that Gates approached him about manufacturing parts for Performance Engineering. Barnard admitted that he, Mauer, and Gates did discuss forming a business and had several meetings after hours at a Barnard Manufacturing facility. Barnard stated that the discussions involved producing parts for Performance Engineering, as well as what the proposed company — Evil Engineering — would do and some discussion of participating in trade shows. Barnard admitted that they intended to have Barnard Manufacturing make some of the parts for Evil Engineering. Barnard Manufacturing apparently formed Evil Engineering in 2005.

Although Barnard testified that Gates ordered a variety of parts and services from Barnard Manufacturing, he admitted that Barnard Manufacturing did not prepare invoices with regard to the parts or services or otherwise send a bill to Gates. Barnard explained that he discussed billing with Gates and agreed not to bill Gates until Performance Engineering started to generate sales. Barnard stated that he assumed that Barnard Manufacturing eventually sent Gates an invoice, but that he did not know for sure.

Gates testified that he never requested any work from Barnard Manufacturing, but that Barnard and Mauer requested designs for use with Evil Engineering. Gates also testified that Barnard volunteered to supply him with some parts. However, Gates admitted that he did request a price quote on some parts, but stated that he later rejected the quote as too high. Gates testified that Barnard Manufacturing never requested payment for any part or service.

On December 15, 2006, Barnard Manufacturing sued Gates and Performance Engineering to recover $123,120.62 for services and parts allegedly sold to Gates and his business. Barnard Manufacturing alleged that Gates and Performance Engineering were responsible for the services and parts under a variety of theories: breach of contract, account stated, quantum meruit, and conversion. Barnard Manufacturing attached a series of invoices to the complaint, which purported to describe the services performed and parts manufactured for Gates and Performance Engineering. Barnard Manufacturing also attached an affidavit in which the affiant, who was apparently one of Barnard Manufacturing's attorneys, averred that the invoices correctly stated the amount due.

In February 2007, the trial court entered a default against Gates and Performance Engineering, but the trial court vacated the default in April 2007. Gates and Performance Engineering eventually filed counterclaims against Barnard Manufacturing and third-party claims against Barnard. Gates and Performance Engineering alleged that Barnard Manufacturing and Barnard interfered with a business relationship, misappropriated Gates's designs, made fraudulent misrepresentations, and breached a contract for the provision of services to Barnard Manufacturing and Barnard. Gates and Performance Engineering also alleged theories of recovery based on "cover" and quantum meruit.

In March 2008, Barnard Manufacturing moved for summary disposition in its favor with regard to its own claims and the claims raised by Gates and Performance Engineering under MCR 2.116(C)(10). On March 28, 2008, the trial court granted Barnard Manufacturing's motion. The trial court denied Gates and Performance Engineering's motion for reconsideration on April 16, 2008. Gates and Performance Engineering then filed a motion to stay, amend the judgment, and for additional findings on April 18, 2008. The trial court denied that motion on May 30, 2008. This appeal followed.


As a preliminary matter, we shall address Barnard Manufacturing's contention that this appeal is untimely because it was not filed within 21 days of the trial court's April 16, 2008, order. This Court reviews de novo questions of jurisdiction. Estes v. Titus, 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008).


This Court generally has jurisdiction to hear appeals as of right that are filed within 21 days of a final order or judgment. MCR 7.204(A)(1)(a). However, if a party files a motion for a new trial, a motion for rehearing or reconsideration, or a motion "for other relief from the order or judgment" within 21 days of the final order or judgment, the appeal may be filed within 21 days of the order deciding that motion. MCR 7.204(A)(1)(b). Nothing within the court rules precludes a party from filing multiple postjudgment motions within this 21-day period. In their motion filed on April 18, 2008, which was within 21 days of the trial court's final order in this case, Gates and Performance Engineering requested forms of relief from the final order or judgment. Hence, they had 21 days from the date of the order denying that motion to file their appeal. Id. The trial court denied Gates and Performance Engineering's second motion on May 30, 2008, and Gates and Performance Engineering filed their appeal as of right on June 16, 2008. Because Gates and Performance Engineering filed their appeal within 21 days of the trial court's denial of the second motion, the claim was timely. See MCR 7.204(A)(1)(b).


On appeal, Gates and Performance Engineering challenge whether the trial court properly granted summary disposition in favor of Barnard Manufacturing on Barnard Manufacturing's claims against Gates and Performance Engineering under MCR 2.116(C)(10).1 This Court reviews de novo whether a trial court properly granted a motion for summary disposition. Johnson Family Ltd. Partnership v. White Pine Wireless, LLC, 281 Mich.App. 364, 371, 761 N.W.2d 353 (2008). This Court also reviews de novo the proper interpretation of court rules. Estes, 481 Mich. at 578-579, 751 N.W.2d 493.


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