               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                              COURT OF APPEALS


TOTAL QUALITY, INC.,
                                                                       FOR PUBLICATION
                 Plaintiff/Counterdefendant-Appellee,                  July 9, 2020
                                                                       9:00 a.m.

v                                                                      No. 346409
                                                                       Mecosta Circuit Court
TERRY L. FEWLESS and NATHAN FEWLESS,                                   LC No. 15-023149-CK

                 Defendants-Appellants,

and

QUALITY LIFE SCIENCE LOGISTICS, LLC,

                 Defendant/Counterplaintiff-Appellant.


Before: K.F. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.

FORT HOOD, J.

        Defendants, Terry L. Fewless (Terry) and Nathan Fewless (Nathan), and
defendant/counterplaintiff, Quality Life Science Logistics, LLC (QLSL), 1 appeal as of right the
trial court’s October 30, 2018 judgment in favor of plaintiff/counterdefendant, Total Quality, Inc.
(TQI), on its claims of breach of contract and tortious interference with a business relationship.
Defendants also challenge an earlier denial of their motion for summary disposition.2 Because
genuine issues of material fact existed, the trial court properly denied defendants’ motion for
summary disposition. Moreover, the trial court’s disputed factual findings following the bench
trial were not clearly erroneous. We therefore affirm.




1
    When appropriate, “defendants” will refer to all three defendants collectively.
2
 This Court previously denied defendants’ interlocutory application for leave to appeal the denial
of the motion for summary disposition with respect to the claims. Total Quality, Inc v Fewless,
unpublished order of the Court of Appeals, entered September 15, 2017 (Docket No. 337982).


                                                  -1-
                                I. FACTUAL BACKGROUND

        This is an action arising from alleged breaches of a nonsolicitation clause contained in
employment agreements. The parties do not dispute the following facts as recounted in the trial
court’s opinion and order adjudicating cross-motions for summary disposition filed in this matter.
The opinion provides:

               TQI was founded in 1992 by Terry Fewless. It is a transportation logistics
       company that provides truckload, less-than-truckload, and cold-chain logistics
       services to pharmaceutical, biopharmaceutical, and generic drug manufacturers,
       distributors, and wholesalers in the United States, Canada, and Mexico. Through a
       series of transactions, Terry Fewless, Nathan Fewless, and Kris Fewless sold their
       interest in TQI to Thayer Group in 2008 and thereafter purchased a minority share
       of stock in TQI, and Terry and Nathan each signed an Employment Agreement that
       enabled them to continue working at TQI. Both of these agreements contained a
       paragraph related to “non-solicitation.” The specific language of these clauses is
       laid out in more detail below, but they generally forbade Terry and Nathan from
       inducing any TQI employee to leave the company, from hiring any person who had
       been a TQI employee at any time in the preceding 12 months, or from soliciting or
       servicing any TQI customer, supplier, distributor, or other business relation in an
       attempt to induce that business relation to cease doing business with TQI or
       otherwise interfere with that business relation’s relationship with TQI. The non-
       solicitation clause remained in effect during the “Employment Period” and for two
       years after that Period’s expiration.

                Terry and Nathan continued to work at TQI after they signed the
       employment agreements. The “Initial Term[s]” of these agreements ran from
       March 7, 2008, until March 7, 2013, and the agreements automatically renewed for
       one-year terms after the expiration of the Initial Term—each one-year term
       constituting a “Renewal Term.” In 2013, near the time of the expiration of the
       Initial Term, Forward Air, Inc., purchased TQI for $66 million. Each Employment
       Agreement entered a Renewal Term, and Terry and Nathan continued to work for
       TQI under their employment agreements. On January 31, 2014, however, Terry
       sent notice to TQI of his intent not to renew his Employment Agreement. On
       February 3, 2014, TQI sent notice to Terry and Nathan indicating that it intended
       not to renew their employment agreements. Consequently, the employment
       agreements expired on March 8, 2014. Thereafter, Terry and Nathan continued as
       at-will employees.

               Terry resigned his position at TQI on October 31, 2014, and Nathan
       resigned on April 10, 2015. Thereafter, on February 9, 2015, QLSL was formed
       by Terry and Kris Fewless. Terry stated that it had no purpose at the time and that
       he did not plan to have anything to do with QLSL. After Nathan retired from TQI
       in April 2015, an operating agreement was executed regarding QLSL. This June
       2015 operating agreement reflected that Kris and Nathan each possessed a 50%
       ownership interest in QLSL. While Terry ostensibly had no active role in QLSL
       after its initial formation, Nathan and Terry attended a healthcare-industry


                                               -2-
          conference in October 2015, which also included as attendees representatives from
          TQI customers, such as Pfizer.

                   Between May and August of 2015, QLSL began to involve other personnel
          in its operations. Three of these individuals—Amy Hebert, Joel Dykens, and Steve
          Milam—had been affiliated with TQI in some fashion before and during 2015. Ms.
          Hebert was an employee of TQI, and she resigned from her position there to take
          time off, get married, relax, and plan to possibly work at an RV park owned by Kris
          and Nathan. After matters with the RV park were delayed, she became involved
          with QLSL’s operations around May or June 2015. Mr. Dykens dealt with sales,
          finances, and reporting at TQI. He became involved with QLSL in August 2015.
          Mr. Milam was an independent contractor for TQI, and he had a client relationship
          with Actavis in which he helped place Actavis cold-storage transportation business
          [sic]. Actavis has done business with both TQI and QLSL. Notably, Mr. Milam
          contacted Terry Fewless in a June 26, 2015, email and asked whether Mr. Milam
          should pursue business with Par Pharmaceutical Companies, Inc., or whether he
          should wait until July 1, 2015, when he officially ended his relationship with TQI.
          All three individuals were affiliated with QLSL as independent contractors, but
          Hebert and Dykens became W-2 employees in June 2016. Ms. Hebert is the Senior
          Director of Customer Operations for QLSL, and Mr. Dykens is the Vice-President
          of Business Development for QLSL.

                 QLSL services three customers that have previously been customers of
          TQI—Pfizer, Perrigo, and Actavis. Actavis is a “client” of Mr. Milam and became
          a customer of QLSL through him. Perrigo became a customer of QLSL through
          Ms. Hebert when she contacted Perrigo and subsequently submitted rates to Perrigo
          on behalf of QLSL, Pfizer became a customer of QLSL in a more indirect manner.
          A representative of Pfizer emailed Terry about a request for proposal[3] (“RFP”).
          Terry forwarded the email to Nathan and Ms. Hebert. QLSL then submitted a bid
          for work with Pfizer. Ms. Hebert testified that she recognized some of the lanes
          that were awarded to QLSL from her previous work with TQI. But for these three
          customers, there is no argument that QLSL obtained other customers of TQI in a
          manner that violated the non-solicitation clause.

TQI brought this action, eventually filing an amended complaint against defendants, alleging in
relevant part that Terry and Nathan breached the nonsolicitation clause of their employment
agreements by hiring Herbert, Dykens, and Milam, and by soliciting or servicing TQI’s customers
during the employment period covered by the nonsolicitation clause. It also alleged a claim of
tortious interference with business relations against all defendants.4 The parties moved for



3
    Nathan testified that “RFP” stands for “request for price” and is essentially a request for a bid.
4
  QLSL filed a countercomplaint alleging a claim of business defamation against plaintiff. The
trial court’s grant of summary disposition of the countercomplaint in favor of TQI is not at issue
in this appeal.


                                                   -3-
summary disposition, which the Court considered pursuant to MCR 2.116(C)(10) (no genuine
issue of material fact).

      The pertinent provisions of the agreements state:

            THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of
      March 7, 2008 . . . .

                                              * * *

              1. Employment. The Company [TQI] shall employ the Executive, and the
      Executive hereby accepts employment with [TQI], upon the terms and conditions
      set forth in this Agreement for the period beginning on the date hereof (the
      “Effective Date”) and ending as provided in Section 4 hereof (the “Employment
      Period”).

                                              * * *

              4. Employment Period; Termination; Severance Pay.

               (a) The Employment Period shall commence on the Effective Date and
      shall continue (i) until and including the fifth anniversary of the Effective Date (the
      “Initial Term”), unless earlier terminated pursuant to the Executive’s resignation or
      death or the Executive’s inability to perform the essential duties, responsibilities,
      and functions of the Executive’s position with [TQI] as a result of any mental or
      physical disability or incapacity . . . . or (ii) until the Board determines in its sole
      discretion that termination of the Executive’s employment with or without cause is
      in the best interests of [TQI]. After the expiration of the Initial Term, this
      Agreement shall automatically renew for one-year periods (each a “Renewal
      Term”) (with the first such period commencing on March 7, 2013) unless either
      party gives written notice of its intention not to allow the Agreement to
      automatically renew . . . .

                                              * * *

              7. Non-Solicitation. During the Employment period and continuing for two
      years thereafter, the Executive shall not directly or indirectly through another
      Person, (i) directly or indirectly induce or attempt to induce any employee of [TQI]
      to leave the employ of [TQI], or in any way interfere with the relationship between
      [TQI] and any such employee (provided, that any general solicitation through
      magazines, trade journals, newspapers, or other publications shall not constitute a
      violation of this clause (i) [sic]); (ii) hire any Person who was an employee of [TQI]
      at any time during the twelve-month period immediately prior to the date on which
      such hiring would take place; or (iii) directly or indirectly call on, solicit, or service
      any customer, supplier, distributor, or other business relation of [TQI] in order to
      induce or attempt to induce such Person to cease doing business with [TQI], or in
      any way directly or indirectly interfere with the relationship between any such



                                                 -4-
        customer, supplier, distributor, or other business relation and [TQI] (including
        making any disparaging statements about any member of [TQI]).

         As relevant to this appeal, the trial court considered defendants’ motion for summary
disposition as to TQI’s claims that Nathan violated the third provision of the nonsolicitation clause
when, acting through QLSL, he serviced Perrigo, Actavis, and Pfizer and hired Milam as an
independent contractor, and that Terry violated the third provision of the nonsolicitation clause by
forming QLSL, by receiving and forwarding to Nathan and Hebert an August 4, 2015 e-mail from
Pfizer with respect to an RFP, and by involving himself in Milam’s hiring. Defendants argued
that they did not violate the third provision of the nonsolicitation clause and that TQI attempted to
apply it as if it were a noncompete clause rather than a nonsolicitation clause. They also argued
that the reference to inducing a person “to cease doing business with” TQI required a cessation of
all of that person’s business with TQI, not just part of it.

        In reading the third provision of the nonsolicitation clause, the court found that the clause
is violated only “where the calling on, soliciting, or servicing of a business relation of TQI occurs
for the purpose of inducing that business relation to cease doing business with TQI.” It found that
“[t]he intent of the provision is to prohibit Nathan and Terry from actively disrupting TQI’s
relationship with its customers so that those customers would take the business it does with TQI
elsewhere, whether a percentage of the business or the business in its entirety.” The court
determined that a genuine issue of material fact existed with respect to whether Nathan, operating
through QLSL, violated the third provision of the nonsolicitation clause with regard to Pfizer,
Perrigo, and Actavis and whether Terry, through Milam, violated the provision as to Actavis.

        Defendants also moved for summary disposition as to TQI’s claim of tortious interference
with business relationship claim. They based this argument on their position that there was no
violation of the nonsolicitation clause. In light of its findings of the existence of a question of fact
regarding the claims that defendants breached the nonsolicitation clause, the court denied
defendants’ motion for summary disposition in this regard.

        The case proceeded to a bench trial on TQI’s claims that Terry and Nathan had improperly
solicited business in violation of their employment agreements by presenting bids for Pfizer’s 5
shipping lanes in response to the RFP from Pfizer in August 2015, and that in doing so they
tortiously interfered with TQI’s existing business relationship with Pfizer.

         Following the presentation of proofs, the trial court issued a detailed ruling from the bench.
The trial court’s lengthy ruling provides a thorough and accurate recitation of the testimony and
the exhibits admitted at trial. In sum, the trial court found that Terry and Nathan had violated the
“solicit or service” provisions of their employment agreements. In so holding, the trial court found
that Terry and Nathan had taken affirmative steps to procure the business from Pfizer by setting
up the competing business, by going through the Pfizer qualification process, and by preparing



5
 Because the trial court found after the bench trial that TQI had not proven that Terry and Nathan
had improperly solicited business in violation of their employment agreements with respect to
Actavis and Perrigo, we discuss the claims only as they relate to Pfizer.


                                                  -5-
and submitting a bid for lanes that they knew were being serviced by TQI. The court determined
that TQI suffered damages from the breach of contract in the amount of $550,663.

        In a written opinion dated September 25, 2018, after consideration of posttrial briefing, the
trial court found that QLSL had tortiously interfered with TQI’s business relationship with Pfizer,
but determined that its interference did not cause TQI to incur any damages beyond the $550,663
previously awarded on TQI’s breach-of-contract claim against Terry and Nathan. On October 30,
2018, the trial court entered a final judgment, awarding damages in the amount of $550,663 against
all defendants, jointly and severally, in accordance with its findings stated on the record at the
conclusion of the bench trial on August 10, 2018, and its additional findings stated in its
September 25, 2018 opinion and order.

                                  II. SUMMARY DISPOSITION

        We first address defendants’ contention that the trial court erred when it denied their
motion for summary disposition with respect to both the breach of contract claim and the tortious
interference with a business relationship claim.

        This Court reviews de novo a trial court’s grant or denial of a motion for summary
disposition. Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). A motion
brought pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a claim. El-Khalil v
Oakwood Healthcare, Inc, 504 Mich 152, 160, 934 NW2d 665 (2019). “When considering such
a motion, a trial court must consider all evidence submitted by the parties in the light most
favorable to the party opposing the motion.” Id. A court may only grant the motion when “there
is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” MCR 2.116(C)(10); see also El-Khalil, 504 Mich at 160. “A genuine
issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing
party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp,
469 Mich 177, 183; 665 NW2d 468 (2003). “Courts are liberal in finding a factual dispute
sufficient to withstand summary disposition.” Patrick v Turkelson, 322 Mich App 595, 605; 913
NW2d 369 (2018) (citation omitted). To the extent that resolution of this issue requires
interpretation of the parties’ employment contract, questions of contract interpretation are also
reviewed de novo. White v Taylor Distrib Co, Inc, 289 Mich App 731, 734; 798 NW2d 354 (2010).

                                  A. BREACH OF CONTRACT

        Defendants contend that the trial court erred by finding that issues of material fact existed
with respect to TQI’s claim that Terry and Nathan violated the third provision of the nonsolicitation
clause. We disagree.

       The third provision of the nonsolicitation agreement provides that Terry and Nathan may
not

       directly or indirectly call on, solicit, or service any customer, supplier, distributor,
       or other business relation of [TQI] in order to induce or attempt to induce such
       Person to cease doing business with [TQI], or in any way directly or indirectly
       interfere with the relationship between any such customer, supplier, distributor, or



                                                 -6-
       other business relation and [TQI] (including making any disparaging statements
       about any member of [TQI]).

Defendants contend that unlike a noncompete clause, this nonsolicitation clause did not preclude
them from responding to requests initiated by customers. They assert that it prohibited only
solicitation that was engaged in with the intention of inducing or attempting to induce a person to
cease doing business with TQI or interfere with the relationship between that person/customer and
TQI. According to defendants, TQI and the trial court erroneously construed the provision as a
noncompete clause by finding that a violation of the nonsolicitation clause could occur based on a
response to an unsolicited customer-initiated request if the customer had a business relationship
with TQI and the response resulted in any loss of TQI’s business. Defendants maintain that the
contractual language defined the prohibited solicitation of customers in narrow terms and did not
contain any language prohibiting Terry and Nathan from conducting business in competition with
TQI without any intent to induce its customers to cease doing business with TQI or interfere with
its customer relations. They maintain that “the evidence . . . did not provide any legally sufficient
support for a finding that Terry or Nathan had engaged in any such conduct falling within the
legitimate scope of the contractual language and its intended purpose.”

        A party claiming breach of contract must show “(1) that there was a contract, (2) that the
other party breached the contract, and (3) that the party asserting breach of contract suffered
damages as a result of the breach.” Doe v Henry Ford Health Sys, 308 Mich App 592, 601; 865
NW2d 915 (2014). The primary goal of contract construction is to give effect to the parties’ intent.
Jay Chevrolet, Inc v Dedvukaj, 310 Mich App 733, 735; 874 NW2d 146 (2015). To achieve this
goal, the Court must read the contract language, giving it its plain and ordinary meaning.
Innovation Ventures v Liquid Mfg, 499 Mich 491, 507; 885 NW2d 861 (2016). Where the
language of the contract is unambiguous, the contract must be interpreted and enforced as written.
Id. Where the contract language is subject to multiple interpretations, it is considered ambiguous.
Farmers Ins Exch v Kurzmann, 257 Mich App 412, 418; 668 NW2d 199 (2003). “Ambiguities in
a contract generally raise questions of fact for the jury; however, if a contract must be construed
according to its terms alone, it is the court’s duty to interpret the language.” Id.

        First, defendants argue that a reasonable trier of fact could not find evidence sufficient to
establish that Terry and Nathan breached the employment agreement by calling on, soliciting, or
servicing TQI’s customers. They contend that they did not “call on” or “solicit” TQI’s customers
because they did not initiate the contact with Pfizer but, rather, responded to the RFP initiated by
Pfizer.

        The third provision of the employment agreement does not define the term “solicit.” This
Court may consult a dictionary to ascertain the plain and ordinary meaning of the term. Epps v 4
Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412 (2015). The Merriam-Webster’s
Collegiate Dictionary (11th ed.) defines the term “solicit” as “to make petition to.” Alternatively,
the American Heritage Dictionary of the English Language (5th ed.) defines “solicit” as “[t]o seek
to obtain by persuasion, entreaty, or formal application.” The record evidence substantiates that
Terry and Nathan “made a petition to” Pfizer, TQI’s customer, to award QLSL business when they
responded to Pfizer’s RFP with a bid to service the lanes. Alternatively, the record evidence
substantiates that Terry and Nathan sought to be awarded Pfizer business by “formal application”
when they responded to Pfizer’s RFP with a bid to service the lanes. It appears irrelevant that


                                                -7-
Pfizer sent the RFP to QLSL and prompted QLSL’s response, because the nonsolicitation clause
prohibits Terry and Nathan from soliciting TQI’s customers, which they did by affirmative action
by submitting a bid to service Pfizer’s lanes, at least when the evidence is viewed in the light most
favorable to TQI.

        Relying on foreign authority, defendants argue that no violation of a nonsolicitation
agreement occurs when the customer initiates the contact, and that merely accepting business from
a customer does not constitute a violation of a nonsolicitation clause. Defendants rely on Slicex,
Inc v Aeroflex Colorado Springs, Inc, unpublished opinion of the United States District Court for
the Central District of Utah, issued July 25, 2006 (Case No. 2:04-CV-615-TS), p 4. The issue in
that case was whether a nonsolicitation clause in a consulting contract had been violated by hiring
the plaintiff’s employees. Id. at 2. The court found that in order for the defendant to solicit or take
away the plaintiff’s employees, the defendant must have taken a specific, directed action to hire
away one of the plaintiff’s employees. Id. at 7. Defendants also cite Akron Pest Control v Radar
Exterminating Co, Inc, 216 Ga App 495; 455 SE2d 601 (1996). In that case, Sellers, a stockholder
in Active Pest Control, which subsequently merged into Radar Exterminating Group, entered into
a nondisclosure/nonsolicitation agreement with Radar in which he agreed “not to solicit, either
directly or indirectly any current or past customers or current employees” of Radar. Id. at 496.
Sellers thereafter established his own company, Akron Pest Control. It was undisputed that Akron
did business with former Radar clients and it was also undisputed that Sellers in no way sought
out former Radar customers. Id. Radar brought suit alleging that Sellers was guilty of breach of
contract. Radar took “the position that the contract language could be understood by the parties to
mean that Sellers would refuse and, in fact, turn away pest control business if contacted by any
customers [subject to the agreement] and refuse to hire and, in fact, turn away employees of
[Radar] as of the date of the stock sale if they came to him looking for employment.” Id. The
court refused such a broad reading of the nonsolicitation clause. The court held that in order for
Sellers to violate the nonsolicitation agreement it would require some affirmative action on his
part. “Merely accepting business that Sellers was forbidden otherwise to seek out for a period of
time does not in any sense constitute a solicitation of that business.” Id. at 497.

         Neither of these cases appear to be supportive of defendants’ argument in this case under
the facts of this case, where defendants did not merely accept business from Pfizer but, rather,
responded to an RFP from Pfizer and submitted a bid for lanes that defendants knew to be lanes
that TQI was servicing before the RFP. QLSL would not have been awarded any business,
however, had it not submitted bids in response to Pfizer’s RFP. TQI cites FCE Benefits
Administrators, Inc v George Washington Univ, 209 F Supp 2d 232 (DC, 2003). In that case, the
defendant, an insurance agent, had signed an “Agent Fee Agreement” with the plaintiff, a
corporation that designed and administered health insurance benefit plans. Id. at 234. The plaintiff
alleged that the defendant breached the agreement, which prohibited the defendant from diverting,
soliciting, or disclosing information about any of the plaintiff’s existing customers, by taking away
a client from the plaintiff. Id. Though it was undisputed that the clients had initiated the contact
with the defendant, the court held that the defendant violated the nonsolicitation clause because
she assumed an active role in the client’s decision-making process. Id. at 239-240.

         Even if this Court were to determine that merely accepting business from a customer who
initiates contact does not constitute solicitation, the evidence in this case indicates that Terry and
Nathan assumed an active role in Pfizer’s decision-making process by submitting bids in response


                                                 -8-
to the RFP. The evidence was sufficient to create an issue of fact with respect to whether Terry
and Nathan solicited TQI’s customer, Pfizer.

        Defendants argue that if the response to the RFP was a form of solicitation, there was no
basis for a reasonable trier of fact to conclude that the response was made in order to induce or
attempt to induce Pfizer to cease doing business with TQI or to interfere with TQI’s relationship
with Pfizer. The trial court addressed this argument as follows:

       Defendants also argue that the phrase “cease doing business” must mean all
       business between TQI and the customer. For example, Defendants state that, “The
       RFP [to QLSL] did not relate to all of Pfizer’s business; rather it related only to a
       limited number of lanes that Pfizer sought to open up to competition among its
       various carriers.” However, a plan reading of the phrase “cease doing business”
       suggests that Nathan and Terry were barred from undermining TQI’s business
       relationship with its customers, no matter whether the target was a small or large
       portion of the business TQI and its customers did together. The intent of the
       provision is to provide Nathan and Terry from actively disrupting TQI’s
       relationship with its customers so that those customers would take the business it
       does with TQI elsewhere, whether a percentage of the business or the business in
       its entirety.

              In light of the above reasoning, it is clear that there is a genuine issue of
       material fact as to whether Nathan and Terry violated the third provision of the
       nonsolicitation clause.

        Defendants’ argument that there was no evidence to support the trial court’s finding is
undermined in part by a statement made by Nathan in his affidavit. Nathan stated that the August
2015 RFP sent to Terry by Pfizer was sent to a number of companies “because Pfizer was
unsatisfied with the services that [TQI] was providing with regard to other lanes.” This statement
suggests that defendants saw an opportunity to obtain this particular business in the hope of
obtaining future business from Pfizer with the result of drawing business away from TQI and
interfering with TQI’s relationship with Pfizer. The evidence supports the finding by the trial court
that there existed a genuine issue of material fact as to whether Terry and Nathan responded to the
RFP in an attempt to induce Pfizer to cease doing business with TQI or to interfere with TQI’s
relationship with Pfizer.

        Defendants’ final argument—that the third provision of the nonsolicitation agreement runs
afoul of MCL 445.774a(1)—is misplaced. MCL 445.774a(1), which concerns agreements not to
compete, provides as follows: “An employer may obtain from an employee an agreement or
covenant which protects an employer’s reasonable competitive business interests and expressly
prohibits an employee from engaging in employment or a line of business after termination of
employment if the agreement or covenant is reasonable as to its duration, geographical area, and
the type of employment or line of business.” The provision at issue in this case is a nonsolicitation
agreement, and defendants have not cited authority in support of the contention that nonsolicitation
agreements are subject to MCL 445.774a(1). The provision at issue does not prevent defendants
from engaging in “a particular line of business” as defendants suggest. Indeed, there is no dispute
that QLSL may compete with TQI in the general business of brokering carriers. TQI concedes


                                                -9-
that defendants are able to compete with TQI as long as they “stay away from TQI’s customers,
employees, and business relationship” with those customers and employees. Rather, the
nonsolicitation provision at issue prevents defendants from soliciting or servicing “any customer,
supplier, distributor, or other business relation of TQI in order to induce or attempt to induce such
the person to cease doing business with [TQI], or in any way directly or indirectly interfere with
the relationship between any such customer, supplier, distributor, or other business relation and
[TQI].”

       Even assuming that the nonsolicitation clause is subject to MCL 445.774a(1),
“noncompetition agreements are . . . only enforceable to the extent they are reasonable.” Coates
v Bastian Bros, Inc, 276 Mich App 498, 506; 741 NW2d 539 (2007). The reasonableness
requirement is embodied in MCL 445.774a(1), which is the codification of Michigan common-
law rules regarding the enforceability of noncompetition agreements. St Clair Med, PC v Borgiel,
270 Mich App 260, 265-266; 715 NW2d 914 (2006). Accordingly,

       [a] restrictive covenant must protect an employer’s reasonable competitive business
       interests, but its protection in terms of duration, geographical scope, and the type
       of employment or line of business must be reasonable. Additionally, a restrictive
       covenant must be reasonable as between the parties, and it must not be specially
       injurious to the public.

              Because the prohibition on all competition is in restraint of trade, an
       employer’s business interest justifying a restrictive covenant must be greater than
       merely preventing competition. To be reasonable in relation to an employer’s
       competitive business interest, a restrictive covenant must protect against the
       employee’s gaining some unfair advantage in competition with the employer, but
       not prohibit the employee from using general knowledge or skill. [Coates, 276
       Mich App at 506-507, quoting St Clair Med, 270 Mich App at 266 (quotation marks
       and block quote omitted).]

Defendants argue that TQI did not have a reasonable competitive business interest. However,
employers have legitimate business interests in restricting former employees from soliciting their
customers. The scope of the activity prohibition is reasonable and allows defendants to compete
with TQI as long as they do not solicit TQI’s customers, employees, and business relationships.
Additionally, the two-year duration of the provision was reasonable. Defendants’ statutory
argument is without merit.

                                B. TORTIOUS INTERFERENCE

        Defendants next contend that TQI’s claim for tortious interference with a business
relationship, which was dependent upon Terry and Nathan’s alleged violation of the
nonsolicitation clause, should have been dismissed because Terry and Nathan did not violate the
nonsolicitation clause. We disagree.

        This is the same argument that defendants presented in the trial court. The trial court noted
that defendants’ argument was that “TQI’s claim ‘is based entirely on TQI’s erroneous contention
that Terry and Nathan somehow violated the non-solicitation clause.’ They conclude, ‘Because



                                                -10-
there was no violation of the non-solicitation clause, there was no improper interference with any
TQI contract.’ ” The court also noted that “[t]here is little in the way of argument on either side
regarding this claim—except that the claim is inextricably tied to the breach of contract claim.”
The court opined as follows:

               In this case, the tortious interference with a business relationship claim
       relies on the outcome of the breach of contract claim. If a reasonable finder of fact
       concludes that Nathan, through QLSL, at least attempted to induce Pfizer, Perrigo,
       or Actavis to cease doing business with TQI, then the reasonable finder of fact could
       also conclude that there was tortious interference with a business relationship.
       Likewise, if the fact-finder determines that Terry at least attempted to induce Milan
       and Actavis to cease doing business with TQI, then that fact-finder could also
       determine that there was tortious interference with a business relationship.
       Therefore, the motions for summary disposition regarding the tortious interference
       with a business relationship claim are denied to the extent of the circumstances
       related to the breach of contract scenarios noted in this paragraph. As to all other
       scenarios, the motion for summary disposition regarding tortious interference is
       granted.

In light of our conclusion as to the breach of contract issue, that the court properly determined that
a question of fact existed regarding the violation of the third provision of the nonsolicitation clause,
we also conclude that the trial court properly concluded that a genuine issue of material fact existed
with respect to the tortious interference with a business relationship claim.

                                         III. BENCH TRIAL

        We next address defendants’ contention that the trial court’s findings after trial were clearly
erroneous. “This Court reviews a trial court’s findings of fact in a bench trial for clear error and
its conclusions of law de novo. A finding is clearly erroneous where, after reviewing the entire
record, this Court is left with a definite and firm conviction that a mistake has been made.” Alan
Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003) (citations omitted).

                                   A. BREACH OF CONTRACT

        Defendants’ argument with respect to the trial court’s findings on the breach of contract
issue mirrors their argument with respect to summary disposition. They assert that the evidence
at trial did not support a finding that Terry and Nathan violated the third provision of the
nonsolicitation clause by responding to Pfizer’s RFP and obtaining a portion of the Pfizer business
that was put up for bid. We disagree.

       After thoroughly summarizing the testimony presented at trial, the trial court opined, in
relevant part:

              I recited some facts. I think it really boils down to does submitting a bid in
       response to an RFP constitute solicitation on the behalf of Nathan and/or Terry
       Fewless.

                                               * * *


                                                 -11-
               So, does it require here that I rule the plain reading of the contract language,
       paragraph 7, that an affirmative first step must be taken by Terry and Nathan
       Fewless to approach Pfizer to have that constitute solicitation. Or, if they actively
       respond to an opportunity they’ve learned of through Pfizer, could that also
       constitute solicitation when they’ve put forth an effort to bid on business and try
       and secure business. And I think the testimony shows that at least some of the lanes
       they were aware, not all, but they were aware that at least some of the lanes were
       lanes that had previously been serviced by TQI.

               I find here that the non-solicitation, paragraph 7, has been violated by
       Nathan and Terry Fewless. And I find it because I do find the act of preparing the
       bid, working to secure the business, getting certified and approved by Pfizer,
       responding to the general notice that there’s an RFP out there, I think that’s
       sufficient to constitute solicitation. I think the accumulated behavior is that
       affirmative strong step to try and secure business that may have been the business—
       we have to figure that out still—of TQI.

              So I do find that paragraph 7 was violated in that regard as to the Pfizer
       business.

The court also noted:

                I am not unmindful . . . that a traditional non-solicitation clause might be
       easily viewed as one where that defendant goes out and tries to grab that business
       affirmatively; does something to start the process. And I didn’t find that distinctly
       to be the case here. There was some inferences about how maybe Mr. Fewless [sic]
       got his address or whatever, but not enough to suggest they had really taken the
       first step, the defendants. But, I thought they took a first step to get their name back
       to this general RFP request that it looked like they were really anxious or soliciting
       the business, and that that seems to run afoul of that general meaning of that section.
       And I do believe in reading the contract as its written. It just seems to me that’s
       still soliciting if you put a bunch of paperwork together and you get certified and
       you work hard to get some business from somebody. That’s contrary to the interest
       of the plaintiff.

              But what I’m recognizing . . . is that it could be a close call, so maybe that’s
       your appeal issue for what it’s worth. But I’m not ignorant of that fact. But it just
       seems like it fits slightly on the side of solicitation and I treat it as such.

        After reiterating that Nathan and Terry “violated the non-solicitation provision by looking
to secure some of these lanes,” the trial court thoroughly discussed the manner in which Pfizer
awarded the lanes included in the RFP, and then determined that Nathan and Terry’s violation
interfered with TQI’s business relationship with Pfizer. The court found that despite Pfizer’s
opening up bidding for TQI lanes to other logistics companies, QLSL took lanes of business that
otherwise likely would have gone back to TQI.




                                                -12-
        For the same reasons that the trial court did not err in denying summary disposition with
respect to this issue, we are not left with a definite and firm conviction that a mistake was made at
trial. The trial court’s finding that Terry and Nathan breached their employment agreements by
submitting a response to an RFP from TQI’s customer, Pfizer, and its finding that by doing so
Terry and Nathan interfered with TQI’s relationship with Pfizer, were not clearly erroneous.

                                B. TORTIOUS INTERFERENCE

        We lastly conclude that the trial court did not clearly err in finding that defendants knew
that their action of submitting a response to the RFP was substantially certain to interfere with the
business relationship between TQI and Pfizer.

        The elements of tortious interference with a business relationship or expectancy are (1) the
existence of a valid business relationship or expectancy, (2) knowledge of the relationship or
expectancy on the part of the defendant, (3) an intentional interference by the defendant inducing
or causing a breach or termination of the relationship or expectancy, and (4) resultant damage to
the plaintiff. Cedroni Ass’n, Inc v Tomblinson, Harburn Assoc, Architects & Planners, Inc, 492
Mich 40, 45; 821 NW2d 1 (2012). Defendants’ sole argument is that the trial court’s finding with
respect to the third element—that QLSL “knew that its actions [in responding to the RFP] were
substantially certain to interfere with the business relationship or expectancy between [TQI] and
Pfizer” and “chose to ignore that substantial certainty”—was clearly erroneous.

       The trial court found that “[b]ased upon the [c]ourt’s factual finding at trial regarding the
elements of breach of contract, or more particularly the breach of the non-solicitation agreement
by Nathan and Terry Fewless, the elements of the tortious interference claim against [QLSL],
except for intent, are readily satisfied.” With respect to the element of intentional interference—
the element that defendants challenge on appeal—the trial court stated in its opinion:

               Part d [the element of intentional interference], above, considers the intent
       of [QLSL] when it solicited Pfizer business performed by [TQI] and that likely
       would continue with [TQI] in the absence of solicitation. [QLSL] offered Auburn
       Sales, Inc v Cypros Trading Shipping, Inc, 898 F3d 710 (CA 6, 2018), in support
       of its argument that at trial [TQI] did not establish the element of intent by a
       preponderance of the evidence.

               The definition section of the standard jury instruction for tortious
       interference with a business relationship, M Civ JI 126.03(b), defines “intent” to
       include when “defendant acted knowing that his or her conduct was certain or
       substantially certain to cause interference with plaintiff’s business relationship or
       expectancy.” Auburn, 898 F3d at 717 cites this instruction.

                                              * * *

               Consistent with that meaning, [QLSL] at a minimum knew that its actions
       were substantially certain to interfere with the business relationship or expectancy
       between [QLSL] and Pfizer. Bidding on Pfizer lanes previously serviced by [TQI]
       in breach of the non-solicitation agreement between Quality Life’s CEO and owner
       Nathan Fewless and Pfizer left little doubt that if the bids were successful if would


                                                -13-
       cost [TQI] business it otherwise expected to receive from Pfizer. So whether or not
       [QLSL] set out to expressly or directly tortiously interfere is immaterial in that it
       knew that its intended behavior made interference with [TQI’s] business
       relationship with Pfizer substantially certain, and it chose to ignore that substantial
       certainty.

        Defendants’ sole argument is that the finding of “substantial certainty” was clearly
erroneous because there were two bidders in addition to TQI and QLSL and there was no assurance
that TQI would have been awarded the business had QLSL not submitted a response. Defendants
do not expand on this argument. Nonetheless, the relevant inquiry focuses on defendants’ intent,
not on whether TQI was “assured” to be awarded the business. By submitting bids on all lanes in
response to the RFP, QLSL intended for Pfizer to award it at least some, if not all, of the lanes.
The trial court’s finding that defendants knew that their action of submitting a response to the RFP
was substantially certain to interfere with the business relationship between TQI and Pfizer was
not clearly erroneous.

       Affirmed.



                                                              /s/ Karen M. Fort Hood
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Brock A. Swartzle




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