                          STATE OF MICHIGAN

                           COURT OF APPEALS



JAMES ERIC MOORE and LISA MOORE,                                   UNPUBLISHED
                                                                   March 17, 2016
               Plaintiffs-Appellants,

v                                                                  No. 324470
                                                                   Wayne Circuit Court
GLENDA MOORE,                                                      LC No. 14-000623-CH

               Defendant-Appellee.


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

PER CURIAM.

     Plaintiffs appeal as of right the trial court’s order granting defendant’s motion for
summary disposition. We reverse and remand.

        This case arises from a disagreement between plaintiff James Eric Moore and his father,
James M. Moore, over a 10-acre parcel of property in Romulus, Michigan.1 Father bought the
property in 1990, and son moved onto the property and has lived and operated his business from
there since that time. In late 1990, father and son drew up a handwritten purchase agreement for
the property, akin to a land contract. Son also asked for a deed to the property multiple times
over the intervening years, but father either refused or failed to convey a deed. Relations
eventually soured between son, his wife Lisa, father, and defendant, father’s third wife,
culminating in father’s quiet-title action filed in 2013 in the Wayne Circuit Court. While that
action was pending, plaintiffs sued defendant for tortious interference with a business expectancy
and tortious interference with a contract.

       On appeal, plaintiffs contend that the trial court erred in granting defendant’s motion for
summary disposition because genuine issues of material fact existed regarding whether
defendant instigated father’s breach of the land contract and whether defendant interfered with a
valid business expectancy. We agree that the trial court erred in granting defendant’s motion for
summary disposition, and remand for further proceedings.



1
  In an effort to avoid confusion, we will hereafter refer to James M. Moore as “father” and
James Eric Moore as “son.”


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        “This Court reviews de novo a trial court’s decision on a motion for summary
disposition.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d
223 (2013). A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412
(2012).2 In deciding a motion under MCR 2.116(C)(10), we “review[] the entire record,
including affidavits, depositions, admissions, or other documentary evidence” in a light most
favorable to the nonmoving party. Gorman, 302 Mich App at 115. To avoid dismissal on a
motion for summary disposition under MCR 2.116(C)(10), the nonmoving party must “show[]
by evidentiary materials that a genuine issue of disputed fact exists.” Auto Club Ins Ass’n v State
Auto Mut Ins Co, 258 Mich App 328, 333; 671 NW2d 132 (2003). See also MCR 2.116(G)(4).

       “In Michigan, tortious interference with a contract or contractual relations is a cause of
action distinct from tortious interference with a business relationship or expectancy.” Health
Call of Detroit v Atrium Home and Health Care Servs, Inc, 268 Mich App 83, 89; 706 NW2d
843 (2005). The elements of a tortious interference with a business relationship or expectancy
are

       (1) the existence of a valid business relationship or expectancy that is not
       necessarily predicated on an enforceable contract, (2) knowledge of the
       relationship or expectancy on the part of the defendant interferer, (3) an
       intentional interference by the defendant inducing or causing a breach or
       termination of the relationship or expectancy, and (4) resulting damage to the
       party whose relationship or expectancy was disrupted. [Id. at 90.]

The elements of tortious interference with a contract, meanwhile, are “(1) the existence of a
contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the
defendant.” Id. at 89-90.

        In either case, “[o]ne who alleges tortious interference with a contractual or business
relationship must allege the intentional doing of a per se wrongful act or the doing of a lawful act
with malice and unjustified in law for the purpose of invading the contractual rights or business
relationship of another.” Derderian v Genesys Health Care Sys, 263 Mich App 364, 382; 689
NW2d 145 (2004) (citation and quotation marks omitted). An act is wrongful per se if it is
inherently wrongful or can never be justified under any circumstances. Badiee v Brighton Area
Sch, 265 Mich App 343, 367; 695 NW2d 521 (2005). “To establish that a lawful act was done
with malice and without justification, the plaintiff must demonstrate, with specificity, affirmative
acts by the defendant that corroborate the improper motive of the interference.” Mino v Clio Sch
Dist, 255 Mich App 60, 78; 661 NW2d 586 (2003) (citation omitted).



2
  The trial court did not identify the specific legal grounds on which it granted defendant’s
motion for summary disposition, but the comments at the hearing suggested that it considered
material beyond the pleadings in reaching its decision. Accordingly, review under the standards
of MCR 2.116(C)(10) is appropriate in this case. See Besic v Citizens Ins Co of the Midwest,
290 Mich App 19, 23; 800 NW2d 93 (2010).


                                                -2-
        In the trial court, the judge stated “. . . the [c]ourt has previously ruled that the father and
son had no legal – there was no land contract, so there is no legal relationship to interfere with.
He was merely a tenant. That’s what this [c]ourt has ruled, so the [c]ourt will grant [d]efendant’s
[m]otion for [s]ummary [d]isposition.” When plaintiffs attempted to assert that a landlord-tenant
relationship was a business relationship, the court stated, “Okay. I’ve made a ruling. You can
appeal. We have a jury trial.”

        Here, we agree with plaintiffs that the trial court erred in its holding. The court’s holding
was premised on its erroneous ruling in father’s quiet-title action that the purchase agreement
violated the statute of frauds. However, the purchase agreement did not violate the statute of
frauds because it was signed by father, the seller. Zurcher v Herveat, 238 Mich App 267, 277;
605 NW2d 329 (1999) (“Simply put . . . a contract for the sale of land must, to survive a
challenge under the statute of frauds, (1) be in writing and (2) be signed by the seller or someone
lawfully authorized by the seller in writing.”) Further, in the quiet-title action, the trial court
resolved a question of fact—whether son was father’s tenant—against son, the nonmoving party,
an impermissible judicial action on a motion for summary disposition. Manning v City of Hazel
Park, 202 Mich App 685, 689; 509 NW2d 874 (1993). The trial judge then used that factual
conclusion—which had not been conclusively established—to dispense with plaintiffs’ claims in
this case.

        On appeal, defendant primarily asserts that there was no business expectancy or
contractual relationship on which to base plaintiffs’ claims. First, in regard to father’s quiet-title
action, we declined to determine whether the alleged land contract between father and son was
valid, and remanded the issue to the trial court for further consideration. Likewise, here, we are
not convinced at this point that summary disposition was proper on that basis alone, particularly
given the trial court’s cursory determination. Second, we do not agree that, as a matter of law,
that there was no evidence of a possible business expectancy between father and son. While
there was no executed lease between the parties, son presented evidence that he made substantial
improvements to the property and paid the taxes. Thus, there was some evidence that son
expected the relationship with his father as it related to the disputed property to continue.

        Ultimately, we find the record in this case regarding the motion for summary disposition,
especially as it relates to the trial court’s holding, lacking. This is especially true given the trial
court’s erroneous conclusion. Thus, we decline to decide whether the motion for summary
disposition was proper, but remand for further determination by the trial court in light of our
disposition, specifically our holding that the purchase agreement did not violate the statute of
frauds.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                               /s/ Kirsten Frank Kelly
                                                               /s/ Karen M. Fort Hood
                                                               /s/ Stephen L. Borrello


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