                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0632n.06

                                       Case No. 19-1439

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                FILED
S.D. BENNER, LLC, a Michigan limited               )                       Dec 20, 2019
liability company; S.D. BENNER III, LLC, a         )                   DEBORAH S. HUNT, Clerk
Michigan limited liability company,                )
                                                   )       ON APPEAL FROM THE UNITED
       Plaintiffs-Appellants,                      )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
v.                                                 )       MICHIGAN
                                                   )
BRADLEY COMPANY, LLC, an Indiana                   )
corporation,                                       )
                                                   )
       Defendant-Appellee.                         )


       BEFORE: COLE, Chief Judge; COOK and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. S.D. Benner and S.D. Benner III claim that their former real

estate broker, Bradley Company, caused them to lose millions of dollars of property. But the

Benner companies haven’t shown that Bradley’s misconduct (if any) caused their damages (if any).

The trial court entered summary judgment for Bradley. We affirm.

       The Benner companies once owned twenty-two commercial properties around Grand

Rapids, Michigan.      About a decade ago, the companies filed for bankruptcy.        During the

bankruptcy proceedings, they negotiated a settlement with their primary creditor, Comerica Bank,

under which the bank agreed to forgive their outstanding debt if they paid $18.75 million within

the next five months. But if the companies failed to meet this deadline, Comerica had the right to

take the properties.
Case No. 19-1439, S.D. Benner v. Bradley Co.


       Around the same time, the Benner companies entered into a listing agreement with Bradley

to market ten of the properties—seven for sale, three for lease. After some delay, Bradley did so.

But it never successfully sold or leased any of the properties.

       On the day of the settlement deadline, the Benner companies told the bankruptcy judge in

their case that they had obtained refinancing from a third party. But the purported refinancing

never came through. In the end, the companies failed to meet the settlement deadline. So they

lost all twenty-two properties.

       Over the next few months, Comerica provided information about the properties to various

potential buyers. Eventually, an affiliate of Great Lakes Capital (a company that shared common

ownership with Bradley) bought the bank’s rights to the properties at a significant discount.

       The Benner companies then sued Bradley for breach of contract and breach of fiduciary

duty (among other claims not relevant here). The trial court granted summary judgment to

Bradley. We review that decision de novo. See Pfeil v. State St. Bank & Tr. Co., 806 F.3d 377,

384 (6th Cir. 2015).

       For both the contract and fiduciary claims, the Benner companies must show (1) the breach

of a legal duty, (2) causation, and (3) damages. See Miller-Davis Co. v. Ahrens Const., Inc., 848

N.W.2d 95, 104 (Mich. 2014); Sunnyside Resort Condo. Ass’n v. Beckman, No. 341116, 2019 WL

1780630, at *6 (Mich. Ct. App. Apr. 23, 2019). To simplify matters, let’s assume for the sake of

argument that the companies have offered evidence of breach and damages. The problem is that

there’s no evidence of causation.

       To see why, consider the theories of breach and damages. As for breach, the companies

claim that Bradley didn’t use its “best efforts” to market the properties and that it disclosed




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Case No. 19-1439, S.D. Benner v. Bradley Co.


confidential information to Great Lake Capital. As for damages, the companies say that they lost

significant equity in the properties when they defaulted under the settlement agreement

        Yet the Benner companies never connected the alleged breach to the alleged damages. The

companies had to show that any breach was both the but-for and proximate cause of their damages.

See Sunnyside Resort Condo. Ass’n, 2019 WL 1780630, at *6; Best Team Ever, Inc. v. Prentice,

No. 319026, 2015 WL 3874477, at *6 (Mich. Ct. App. June 23, 2015). At a minimum, then, the

companies needed some evidence showing that, if Bradley had honored its contractual and

fiduciary duties, then they wouldn’t have lost their properties because they would have paid $18.75

million to Comerica by the settlement deadline. But the companies haven’t offered any evidence

to that effect.

        Take the theory that Bradley didn’t use its “best efforts” to market the properties. The

Benner companies point out that Bradley waited around two months before listing any of the

properties. But the companies haven’t offered evidence that any of the properties would have been

sold or leased if Bradley had listed them sooner. For instance, the companies haven’t pointed to

anyone who might have been interested in the properties at the listed prices. Nor have they offered

any expert testimony to show that sales would have occurred. Indeed, just a year earlier, the

companies had tried to sell the very same properties—without success. Of course, someone (an

affiliate of Great Lakes Capital) eventually bought the properties. But it did so during a later

period and at a significant discount. So this fact doesn’t show that any of the properties could have

been sold during the relevant period and at the listed prices. And without these sales, the Benner

companies still would have lost the properties because they wouldn’t have paid $18.75 million by

the settlement deadline.




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Case No. 19-1439, S.D. Benner v. Bradley Co.


         Even so, let’s assume that there were potential buyers out there just waiting to be found.

The Benner companies still haven’t shown that these sales would have prevented their default.

According to their own evidence, the seven properties listed for sale were worth a bit under

$11 million—at the very most.1 So even if the companies had sold all the listed properties, they

would have owed Comerica another $7.75 million. True, the leased properties could have brought

in a little more money. Unfortunately, the Benner companies haven’t offered any real evidence

about how much. At best, the listings agreements—which reflect how much the companies wanted

for the leases, not how much the leases were actually worth—suggest that the properties might

have brought in a sum in the mid-five figures each month. Multiply that sum by four months

(about how long Bradley had to lease the properties) and the companies still would have fallen

millions of dollars short of what they owed under the settlement agreement.

         Nor have the Benner companies offered anything else to show how Bradley’s “best efforts”

might have changed matters. For instance, the companies haven’t pointed to any evidence that

they would have obtained refinancing if some properties had been sold or leased. All this means

that the companies haven’t shown causation. By all appearances, they would have lost the

properties even if Bradley had used its “best efforts.”

         The other theory of breach fares even worse. The companies claim that Bradley disclosed

confidential information to Great Lakes Capital. But again, they haven’t offered any evidence that

this purported violation caused their default under the settlement agreement. In fact, it’s hard to

imagine how the disclosure of the information could have done so. In sum, the companies haven’t


1
  To be clear, this figure requires some pretty generous assumptions. Specifically, we adopted the highest value for
each property based on the separate valuations done by Comerica and a third party as well as the prices in the listing
agreements with Bradley. And we did so even though the listing prices may not reflect the true value of the properties.
Bradley’s brief proposed a much lower figure in part because the company couldn’t find a valuation for the property
at 4076 Alpine. But that’s because 4076 Alpine was also called 4020 Alpine—at least according to the settlement
agreement. The Benner companies did offer valuations under that property name.


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Case No. 19-1439, S.D. Benner v. Bradley Co.


pointed to any evidence of causation. So the trial court correctly granted summary judgment to

Bradley. See Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007).

       One last point: the Benner companies say (at least in passing) that Bradley promised to

look into refinancing options for them and that this promise dissuaded them from looking into

options on their own. But the trial court held that the parties had never entered into an express or

implied contract to this effect. And the companies don’t challenge that conclusion on appeal. Nor

did they offer any real argument—either in the district court or on appeal—that Bradley breached

its fiduciary duties when it allegedly made this promise. So the companies have forfeited any

claim on this front. See Doe v. Miami Univ., 882 F.3d 579, 594–95 (6th Cir. 2018).

       We affirm.




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