Resource Point, LLC v. Addolux, LLC, 020720 MISC, SC 158632

• Party Name: RESOURCE POINT, LLC, Plaintiff-Appellee, v. ADDOLUX, LLC, Defendant, and MASOUD ABBASI, Defendant-Appellant.
• Judge Panel: Bridget M. McCormack, Chief Justice David F. Viviano, Chief Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices Zahra, J. (dissenting). Markman, J., joins the statement of Zahra, J.
• Case Date: February 07, 2020
• Court: Michigan Supreme Court

RESOURCE POINT, LLC, Plaintiff-Appellee,

v.

ADDOLUX, LLC, Defendant,

and

MASOUD ABBASI, Defendant-Appellant.

No. SC 158632

COA 338338

Supreme Court of Michigan

February 7, 2020

Oakland CC: 2015-150580-CB

Bridget M. McCormack, Chief Justice David F. Viviano, Chief Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices

ORDER

On order of the Court, the application for leave to appeal the September 20, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Zahra, J. (dissenting).

I disagree with the Court's decision to deny defendant's application for leave. Because the Court of Appeals failed to defer to the trial court's assessment of witness credibility, ¹ I would reverse in part the judgment of the Court of Appeals as to damages and remand this case to the Oakland Circuit Court for reinstatement of its damages award.²

Defendant contracted with plaintiff to provide Information Technology work for Gordon Food Service (GFS) from October 2012 through February 8, 2014 (referred to as the "first engagement"). The contract included a noncompete agreement that expired on August 8, 2015. Defendant violated the noncompete agreement by soliciting work from GFS. Specifically, in June 2015, plaintiff contacted GFS so as to arrange additional work for defendant, but it learned that defendant had already directly solicited and obtained employment at GFS (referred to as the "second engagement").

Plaintiff sued and, following a bench trial, the trial court found that defendant had breached the noncompete agreement and was liable to plaintiff for breach of contract. The more difficult issue was determining damages. The Court of Appeals provided this summary: During the first GFS engagement, GFS paid [plaintiff] $160 per hour of services; [plaintiff] in turn paid [defendant] $115 an hour, leaving [plaintiff] with a profit of $45 per hour. After six months, GFS increased the pay rate to $180 per hour. [Plaintiff] paid [defendant] $130 an hour, for a profit of $50 per hour. Under both pay rates, [plaintiff] retained 28% of the GFS payment. During the second GFS engagement, [defendant] worked for a different GFS department. Under this contract, GFS paid [defendant] $150 per hour. And from June 2015 through the time of trial, [defendant] had worked a total of 2, 896 hours.^[[3

The Court of Appeals also summarized the disagreement about damages related to defendant's work during the second GFS engagement: [Plaintiff] provided evidence that it bore some overhead from negotiating the first contract between GFS and [defendant], but asserted that with the initial work under its belt, these costs would not be duplicated in a second placement between GFS and [defendant] . . . . Accordingly, [plaintiff] asserted, its share of the payments during [defendant]'s second GFS engagement would have been "pure profit." Overall, [plaintiff] sought $180, 800 in damages.^[[4

The trial court "took judicial notice that [plaintiff]'s overall profit margin was 12.5% and determined to award [plaintiff] only 12.5% of the payments [plaintiff] would have retained during [defendant]'s second GFS engagement, a total of $22, 600."⁵ The trial court ruled that "this [c]ourt's measure of damages is the . . . profit margin that [plaintiff] would have made on [defendant]'s job starting on June 8th of . . . 2015 and...