Joba Const. Co., Inc. v. Burns & Roe Inc.

• Decision Date: 16 February 1983
• Docket Number: Docket No. 55058
• Citation: Joba Const. Co., Inc. v. Burns & Roe Inc., 329 N.W.2d 760, 121 Mich.App. 615 (Mich. App. 1983)
• Parties: JOBA CONSTRUCTION COMPANY, INC., a Michigan corporation, Plaintiff-Appellee, v. BURNS & ROE INCORPORATED, a foreign corporation, Defendant-Appellant. 121 Mich.App. 615, 329 N.W.2d 760
• Court: Court of Appeal of Michigan — District of US

Page 760

329 N.W.2d 760

JOBA CONSTRUCTION COMPANY, INC., a Michigan corporationPlaintiff-Appellee, v.BURNS & ROE INCORPORATED, a foreign corporationDefendant-Appellant.

Docket No. 55058.

121 Mich.App. 615, 329 N.W.2d 760

Court of Appeals of Michigan.

Submitted July 19, 1982.

Decided Dec. 6, 1982.

Released for Publication Feb. 16, 1983.

[121 MICHAPP 623]Fischer, Franklin, Ford, Simon & Hogg by Mark W. McInerney and John W. Mason, P.C. by John W. Mason, Detroit, for plaintiff-appellee.

Gromek, Bendure & Thomas by Mark R. Bendure, Detroit, for defendant-appellant.

[121 MICHAPP 624]Before CAVANAGH, P.J., and RILEY and HOEHN, ^* JJ.

RILEY, Judge.

On November 3, 1980, following an eight-week trial of plaintiff's action for tortious interference with prospective advantageous economic relations, the jury returned a verdict in favor of plaintiff in the amount of $272,368.Defendant appeals as of right raising a plethora of issues for our consideration, many of which have not been preserved for appeal, and the remainder of which do not require reversal.

Plaintiff is a Michigan corporation specializing in underground and heavy-duty construction.Defendant is a New York based firm of consulting engineers which had been retained by the City of Detroit Public Lighting Commission(hereinafter PLC) in 1971 in connection with the expansion of the PLC's Mistersky Generating Station.Defendant's main responsibilities under its contract with PLC were to prepare construction specifications, evaluate bids made by contractors and make recommendations to the PLC as to which contractor should be awarded contracts.

In 1974, bids were solicited from contractors for performance of a contract designated as contract # 306.Although plaintiff submitted the lowest bid, defendant recommended to the PLC that the contract be awarded to another contractor as it felt plaintiff was unqualified to perform the contract.Accordingly, the contract was awarded to another contractor.In 1976, bids were solicited for another project at the Mistersky Station and a contract designated as contract 323 was awarded to a local construction company which had designated plaintiff as its proposed excavation and piling [121 MICHAPP 625] subcontractor.However, defendant informed that company that plaintiff was unacceptable as the subcontractor and plaintiff was thereafter removed as the subcontractor.Plaintiff then commenced this action alleging that defendant wrongfully persuaded the PLC not to award plaintiff the general contract on # 306 and a subcontract on # 323.

We consider defendant's allegations of error in the sequence in which they arose in the trial court.

IStatute of Limitations

At the outset, we reject defendant's contention that plaintiff's cause of action is barred by the one-year statute of limitations applicable to libel and slander actions, M.C.L. Sec. 600.5805(7);M.S.A. Sec. 27A.5805(7).Defendant argues that the gravamen of plaintiff's claim is the publication of various defamatory statements made by defendant to the PLC and that plaintiff's designation of its claim as one for interference with prospective advantageous economic relations was merely an attempt to circumvent the shorter period of limitation applicable to actions based upon libel and slander.

In Wilkerson v. Carlo, 101 Mich.App. 629, 634, 300 N.W.2d 658(1980), lv. den.411 Mich. 984(1981), this Court held that tortious interference with economic relations is actionable in and of itself and is subject to the three-year period of limitations, M.C.L. Sec. 600.5805(8);M.S.A. Sec. 27A.5805(8), even though the interference is caused by defamatory statements.As plaintiff's action was filed within the applicable three-year period of limitations, the [121 MICHAPP 626]trial court did not err in denying defendant's motion for an accelerated judgment.

IIEvidentiary Rulings

Defendant claims that the trial court erroneously ruled on the admissibility of evidence in five separate instances, thus depriving defendant of a fair trial.The first purported error occurred when the trial court allowed into evidence testimony of the PLC's nonenforcement of a liquidated damages clause in contract # 288 against plaintiff in relation to a contract for construction of an earlier PLC project at the Mistersky site.On contract # 288, plaintiff was the general contractor and defendant was the consulting engineering firm.Although # 288 is not the subject of this litigation, defendant argued that plaintiff's unsatisfactory performance of contract # 288 played an important role in plaintiff's failure to obtain contract # 306.In seeking to introduce evidence that it was not assessed liquidated damages by the PLC on contract # 288, plaintiff was obviously trying to establish that its work under that contract was satisfactory.Defendant contends, for the first time on appeal, that this testimony was inadmissible hearsay.

We must note that defendant has failed to preserve this issue for appeal.Evidentiary objections must be specific, citing the precise ground or grounds for the objection.Failure to state the proper reason for an objection precludes appellate review unless there is manifest injustice.MRE 103(a)(1), People v. Worrell, 111 Mich.App. 27, 38-39, 314 N.W.2d 516(1981).In any event, a substantive[121 MICHAPP 627] review of this claim reveals that it is without merit.

First, the testimony that the City of Detroit had failed to enforce the liquidated damages clause against plaintiff in regard to contract # 288 was not hearsay.The fact that the City of Detroit did not seek to enforce a contract provision cannot be said to constitute a statement within the meaning of MRE 801(a) and, therefore, it cannot be hearsay as defined in MRE 801(c).Although it is true that nonverbal conduct of a person can constitute hearsay if the conduct was intended by the person to be an assertion, MRE 801(a)(2) and (c), there is nothing in the record to suggest that the City of Detroit intended that its failure to enforce the liquidated damages clause should be viewed as an assertion.Furthermore, any defect in the admission of this evidence was harmless since testimony to the same effect had already been admitted into evidence without objection.

Secondly, defendant argues that the trial court erred in admitting into evidence, over its objection on the ground that it called for speculation and was irrelevant, excerpts of plaintiff's financial records regarding plaintiff's profits on previous jobs.This evidence was apparently introduced to demonstrate that plaintiff would have realized a profit on contract # 306.In addition to asserting its claim of error on grounds of relevance, defendant now argues, for the first time on appeal, that this evidence constituted inadmissible hearsay.Once again, this issue has not been preserved for appeal due to defense counsel's failure to make a proper objection.People v. Worrell, supra.

In any event, we are not persuaded that plaintiff's[121 MICHAPP 628] profit summaries were irrelevant.MRE 401 broadly defines "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.The admissibility of evidence rests with the trial court's discretion and will not be set aside unless there has been an abuse of discretion.Liberty Mutual Ins. Co. v. Curtis Noll Corp., 112 Mich.App. 182, 191, 315 N.W.2d 890(1982).A review of the record reveals that the challenged proofs submitted by plaintiff as to past profits were relevant to establish unrealized profits on contracts # 306 and # 323.Defendant's objections that plaintiff's proofs were inaccurate go to their weight and not to their admissibility.Lorenz Supply Co. v. American Standard, Inc., 100 Mich.App. 600, 613, 300 N.W.2d 335(1980).Furthermore, while plaintiff's assessment of damages was incapable of precise determination, the amount of lost profits was shown with as much certainty as the situation allowed and, therefore, was admissible into evidence.Stimac v. Wissman, 342 Mich. 20, 28, 69 N.W.2d 151(1955).

In addition, these profit receipts fell within the business records exception to the hearsay rule.

MRE 803(6) provides:

"(6) Records of regularly conducted activity.A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, or events, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other [121 MICHAPP 629] qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.The term 'business' as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit."

The testimony adduced at trial indicated that the summaries were properly prepared by an accountant based upon daily reports of plaintiff's employees, as well as the accountant's own independent certified audit of plaintiff's books.Also, it was shown that these summaries were prepared in the regular course of plaintiff's business.We are satisfied that these profit summaries were trustworthy and that they fell within the scope of MRE 803(6).

Defendant also alleges that the trial court erred in refusing to allow the introduction of plaintiff's original financial records from which the profit summaries were derived.We disagree for two reasons.First, these records contained information concerning various noncomparable jobs and were, therefore, irrelevant to the question of whether plaintiff could have realized a profit...