*1
ERIM
v
Hord
OF MICHIGAN
RESEARCHINSTITUTE
ENVIRONMENTAL
HORD
v
(AFTER REMAND)
application by
the
On
October
2000.
115369. Decided
Docket No.
Supreme Court,
grant-
appeal,
in lieu of
leave
the
to
defendant
Appeals
judgments
ing leave,
of
and the
of the Court
reversed the
post,
Rehearing
1218.
court.
denied
circuit
brought
in Washtenaw Circuit Court
an action
the
R. Mchael
Mchigan
alleg-
against
Institute of
Environmental Research
(erm),
Mchigan,
offering
employment
ing that,
erim had misled
him
ability
willingness
regarding
and
soundness and its
him
development
long-term funding
provide
and
for the research
to
J.,
court,
Shelton,
projects
The
Donald E.
which he
work.
would
fraud claim involv-
case to a
on both standard
submitted the
theory.
misrepresentation
ing
and a
fraud
The
silent
fraudulent
specify
theory
plaintiff,
the
a verdict for the
but did
returned
Appeals,
The
Wahls award
based.
Court of
on which its
P.J.,
App
dissenting),
affirmed.
Mch
JJ.
(Hoekstra,
Gribbs,
Supreme
(1998) (Docket
200481).
case
No.
The
Court remanded the
Appeals
light M&D,
of
Inc
for reconsideration
remand,
App
(1998).
McConkey,
of
On
Court
231 Mch
P.J.,
dissenting), again
Appeals,
and Murphy,
JJ.
(Hoekstra,
Gribbs
Mch
defendant seeks leave
affirmed. 237
The
appeal.
per
opinion
curiam, signed
Justice
Chief
In an
Weaver,
Supreme
Court
Justices
Corrigan,
Young,
Taylor,
Markman,
held:
present
sufficient to establish
evidence
failed
misrepresentation
or silent fraud. The claim
fraudulent
either
misrepresentation
did
must fail because
defendant
fraudulent
any
not make
false statement. Fraudulent
plaintiff’s
representation by
A
requires
sub-
false
defendant.
objectively
jective misunderstanding
false
information that is not
misleading
has committed the tort
cannot
that a defendant
mean
misrepresentation.
finan-
is no claim
There
fraudulent
any
year ending
covering
in 1991
inwas
the fiscal
cial statement
Although
way
misleading.
claims
inferred
he
false or
financial condition
the defendant’s
from the statement
sentation that effect. mere nondisclosure of information fraud; silent is insufficient to constitute there must be circum- duty legal stances establish a to make disclosure. *2 Reversed. joined by Cavanagh, dissenting, Justice Justice stated that Kelly, proofs offered sufficient at trial to establish his case for fraudulent and The concealment. judgment jury, judge, has substituted its for that of the the trial Appeals panel rejected a of the defendant’s claims separate proper two occasions. The was the arbiter of the credibility.
facts and of the witnesses’ Green, Green, & Adams, Craig, Palmer P.C. (Philip Green), for plaintiff-appellee.
Dickinson, Wright, P.L.L.C. (by Elizabeth M. Pez- zetti), for the defendant-appellant.
Amicus Curiae: Hill,
Clark (by PL.C. Duane L. Tamacki, J. Walker Henry, and Frederick R. Damm), Michigan Manu- facturers Association.
AFTER REMAND Per Curiam. The plaintiff accepted joba with the defendant and moved Michigan Jersey. from New He year was laid off about a sued, later. He alleging the company had misrepresented its financial health and that he would accepted not have posi- tion if he had known the actual situation. There awas jury trial in a resulting plaintiffs verdict in the favor. Following remand Court, from this the Court of Appeals affirmed.
We conclude that the presented insufficient fraud, evidence establish and that the defendant entitled to directed verdict. We therefore Hord ERIM
Opinion the Court of Appeals judgments reverse the circuit court. i background high- has an extensive parallel computing. performance he was Aerospace working Divi- in its for General Electric employer’s plans reorgan- learning On his sion. plain- operations division, and sell off ize job. began new He became to look for a tiff employee acquainted Environ- with an defendant through Michigan (erim) mental Research Institute inquired possi- society, professional about the eventually bility going erim. He was to work for Swonger, manager of erim’s Ciaron contacted processing systems image division, and met Mr. *3 September Swonger an October for interview 1992. Swonger spoke
According plaintiff, Mr. to history, length describing organization, about erim, The conversation and commitment to research. establishing high- possibility included the computer performance program that would involve plaintiff plaintiff. Swonger gave Mr. consider- printed including brochures about material, able papers, organizational equipment, charts, technical an that contained and September year through 30, that ended the fiscal data 1991. January early Swonger Mr. offered the 1993,
In
erim, which the
Jersey
accepted.
home, moved
He sold his New
Apparently reasons, for economic erim reduced plaintiffs compensation by twenty percent duties and January eventually gave 1994, effective him a lay-off July notice in 1994. chose, instead, He resign exchange consulting for a contract. July alleging 1995, the action, filed this regarding that erim had misled him its financial ability provide willingness soundness and its long-term funding development for the research and projects on which he would work. The circuit court denied erim’s motion for a directed verdict and the case submitted to the on both a standard involving fraud claim fraudulent theory. “silent fraud” returned a ver- plaintiffs dict favor in the amount of $175,000. specify theory The verdict did not on which the award was based. appealed, Appeals initially and the Court of
Erim App in a affirmed two-to-one decision. 228 Mich 638; (1998). application NW2d 133 Erim filed an appeal leave to this Court, and on March 23, 1999, remanding we entered an order to the Court of Appeals light for reconsideration in of M&D, Inc v McConkey, App (1998).1 231 Mich 22; 585 NW2d33 Appeals remand,
On the issued another again affirming decision, two-to-one the circuit court judgment. 237 Mich 95; 601 NW2d892 application
Defendant erim has filed an for leave to *4 appeal to this Court. For the reasons that follow, we
1 Mich 960. v ERIM (After
Opinion op the Court judgments court and the the circuit reverse Appeals.
n “oper- plaintiffs claim is the fraud focus of the The summary” along given ating with other that he was summary, operating which erm. materials about year September 30, that ended fiscal covered sixteen-page brochure that contained 1991, was a photographs about ERM. It described and narrative history, company’s locations, its listed seven the presented president about current from erm’s letter projects. also contained The brochure future graphs, com- statements, and notes about financial pany graphs etc. The showed benefits, bonds, leases, equity steady growth 1987 to in revenue and from 1991. plaintiff’s time he contention that
It is the early 1993, in late and hired in was interviewed not its financial situation was so erm knew that summary Although operating had an favorable. year company prepared 1992, execu been for fiscal received a financial statement from audi tives had $5 of million and a revenue tors that showed decrease twenty-five percent Also, in fee income. reduction seventy-three layoffs in 1992.2 were there the denial of the motion for light tion he was risome, ers the evidence Trust Erim’s had most Co, given. despite worsened after 456 Mich favorable to the had some reductions presented and all has been 663; legitimate nonmoving party. sufficient that time covered directed in revenue. For the its financial NW2d 745 inferences evidence that verdict, Kubczak Chemical picture in (1998). Using an appellate erim’s may purpose be drawn financial condi- was not wor- court consid- reviewing standard, Bank & *5 463 Mich
Opinion of the Court
m In decision, its initial Appeals began by noting proven the six elements that must be to misrepresentation: sustain a claim of fraudulent representation. 1. The defendant a made material representation 2. The was false.
3. When representation, the defendant made the it false, knew that it was or the rep- defendant made the recklessly, any resentation knowledge without of its truth, positive and as a assertion.
4. representation The defendant made the with the plaintiff. intention that it should be acted plaintiff 5. The acted in repre- reliance on the sentation. plaintiff injury
6. The suffered due to his reliance representation. on the See 228 Mich 642. explained why then it believed the plaintiff had made a out case of fraud:
Defendant’s contention that it made no affirmative mis representations ignores jury the fact that the could have presentation found that defendant’s operating its 1991 summary plaintiff September misrepresen in a 1992 was repeatedly argues tation. Defendant operating that the 1991 summary clearly labeled Ending “For Fiscal Year September 30, 1991,” and, therefore, that it could not have a regarding constituted defendant’s finan position plaintiff cial and that could not have been exposed by argument misled it. The flaw simply this Why asking: plaintiff give copy did defendant a of its 1991 operating summary? Clearly, giving plaintiff the act of operating summary constituted an endorsement of its con representation tents and a that the was somehow strength.2 reflection defendant’s current financial This obviously representation, giv material and the act of ing operating summary plaintiff during job inter- v ERIM
Opinion of intended that infer that defendant allowed the view addition, that, was evidence there act on it. gave the 1991 sum- defendant the time sug- mary, financial information it had more current it than gested that was a much weaker evidence, the September From this 1991. it was representation regarding have concluded could strength and that defendant was false defendant’s financial Finally, testified it was false when made. knew that making representation in his decision he relied on this employment, accept there was defendant’s offer *6 injury. Consequently, plaintiff we suffered evidence that deny defendant’s find no error in the trial court’s decision plain- jnov regarding for directed verdict and motions misrepresentation claim. tiff’s fraudulent 2 as more than a us construe action no Defendant would have September 31, of 1991. Such of its financial condition as statement gave common When defendant a construction defies sense. 1992, summary September operating it or was in October clearly offering as of its current it some indication oper- Thus, representation strength. was “Here our 1991 summary, regard ating our finan- which is irrelevant in current effectively Rather, strength.” it “Here is our 1991 cial reflects, degree, our which at least to some current finan- cial situation.” App Mich 642-643.] [228 Appeals the Court of
Our remand order directed Mc M&D, in Inc v light its decision reconsider ques principally dealt with Conkey, supra, which Appeals of silent fraud. tion evidence its view that there sufficient reiterated fraudulent, case, in the and then supported silent that the evidence also concluded theory. explained: It fraud light Having this matter in of our nonetheless reviewed Supreme remand, the evidence here we find that Court’s theory. supported plaintiff’s As this Court silent fraud also 29, quoting adopting M&D, Inc, supra stated 463 Mich Opinion of the Court Young’s Judge opinion previous M&D, in the Inc Mc Conkey, App (1997), 226 Mich defendant “also has a ‘ duty “subsequently acquired to disclose information which recognizes rendering untrue, misleading previous he as or representations which, made, when were true believed to ’” App empha be (1997). (Citations true.” Mich omitted.) sis
We remain convinced that this case could fairly operat- infer that defendant showed the 1991 ing summary rely with the intention that would App the information it contained. 228 Mich 642-643. There- fore, finding supports addition to that the evidence here simple fraud, a claim of we also find that defendant had a duty in subsequently acquired case to this disclose the information defendant’s financial which clearly any implications rendered untrue from the 1991 figures. [237 97.] Judge Hoekstra dissented from both the initial deci- sion and that on remand. In his latter opinion, he emphasized that there was no claim that the 1991 operating summary contained false or misleading information regarding company’s financial status during time covered report. Rather, plain- tiff’s claim was that he inferred from the figures *7 that the situation remained unchanged through 1992. However, Judge interpreted McConkey to Hoekstra plaintiff’s establish that where the inference is unwar- ranted, it cannot serve as a basis for a fraud claim. He explained:
There is no evidence that defendant intended the 1991 summary operating company’s to demonstrate the financial plaintiff. the contrary, condition at time it hired To the the clearly report year document a 1991, is any from fiscal plaintiff may discernible, other inferences have a made lack objective addition, or basis. In I see no basis for the conclu- plaintiff right rely sion that had a on the 1991 ERIM (After Remand)
Opinion of the Court performance company’s in fis- picture of the an accurate as inquiry affirma- 1992, year some additional without cal conclusions, Both of representation defendant. these tive represent financial figures were intended that the 1991 pro- duty to defendant a performance in 1992 and that had information, to the are essential vide additional evidence, Unfortunately, majority’s finding fraud. no supports beyond pure speculation, such conclusions. [237 98-99.] never that emphasized the Judge Hoekstra during hiring information requested more recent clearly labeled report as process. Given that found year fiscal no Judge Hoekstra covering noted information. He that duty provide additional yet to available, they were had be figures while later report gave like the one compiled defendant plaintiff. majority’s deci- concluded
Judge Hoekstra party an unreasonable burden on a placed sion the defendant: opinion aspect majority’s disconcerting most anticipate expects plaintiff’s infer- will that it defendant requires appropriate to take reme- then defendant ence and anticipate how Because defendant failed to dial action. summary, interpret its 1991 would This has committed fraud. finds defendant troubling. an made is most To elevate inference result that, party’s interpretation document another puts every supplier face, unambiguous, of infor- is clear misinterpretation jeopardy unforeseen mation in for the one, the data case like this where that information. clearly pertaining company’s 1991fis- to the were labeled as permitted argue that he year, not be should cal company’s per- represented figures thought also simple, straightforward in 1992. Plaintiff had a formance condition. current financial to discover defendant’s avenue expects simply to bail had to Now he the courts He ask. *8 463 Mich Opinion of the Court assumption him out because his about defendant’s financial noteworthy McConkey I condition was find it incorrect. requires represen- holds that fraud some evidence of a false knowledge, coupled disclose, tation and that with failure to duty-bound give party does rise to fraud unless intentionally suppresses information, disclose thereby creating impression. McConkey, a false Mich [231 App] duty case, 25. There is no such a evidence of in this intentionally sup- nor do I find evidence that defendant pressed relevant information. [237 99-100.]
IV McConkey, supra, plaintiff In M&D, Inc v M&D purchased property commercial on an “as is” basis Partnership. from defendant Relenco Defendant McConkey Real Estate handled sale. M&Dleased property party operation another for aof store. opened, Two months after the store it was flooded heavy prop- after a rainfall. Evidence showed that erty experienced many years flooding had and a principal McConkey Real Estate testified that he flooding. had witnessed such There was no evidence property M&D had asked whether the experienced any flooding, however, and the defen- any representation subject. dants never made on (Relenco) prepare Further, the seller refused to seller’s disclosure statement and made this an refusal explicit part purchase agreement. of The follow- ing was included on the disclosure statement form: occupied property. representa-
Owner has never this No implied Property tions warranties being as to condition. sold “as is” condition. [Id. 26.] v ERIM
Opinion of the Court including plaintiffs theories, on various sued *9 summary disposition granted court The circuit fraud. the fraud claim. the defendants Appeals appeal, reinstated the Court of On authority McConkey v Shimmons of on the in claim App Corp 27; 520 Mortgage America, 206 Mich it dis indicated that However, it NW2d 670 only agreed because it reversed with Shimmons by that decision.3 was bound Appeals a con convened result, As McConkey, panel which affirmed flict resolution summary disposition on the fraud court’s the circuit principally App on the 22. It focused Mich claim. 231 opinion part large theory, adopting in silent fraud panel’s original That Judge decision.4 in the Young dealing opinion law the case had summarized support the con found that it did fraud and silent supra, claim can be that such a Shimmons, clusion only proves purchaser that the where the maintained did not a defective condition knew about vendor Judge had concluded: it. disclose YOUNG regard- Supreme precedent Michigan Court review of Our every case, that, fraud non- ing reveals this issue upon the vendor that statements based disclosure was pur- inquiry by specific response to a were made way incomplete or chaser, were in some statements which 18; Podgorski, Mich 101 See, e.g., v 359 misleading. Nowicki 218; Ulrich, NW2d Mich 40 v 326 (1960); Sullivan NW2d 371 424; Kusterer, 257 NW Mich A E 269 (1949); 126 [vWolfe App (1934)]. 809.] [226 [4] See 226 Mich See former Administrative 801. Order No. 1994-4. 463 Mich Opinion reviewing a trial court’s denial of a for a motion verdict,
directed
we examine the evidence
all rea-
may
sonable inferences that
be drawn from in the
it
light
nonmoving party.
most favorable to the
Kubczak
Co,
663;
v Chemical Bank &
Mich 653,
Trust
(1998). Accordingly,
NW2d 745
the threshold for
obtaining
high.
a directed verdict is
Nevertheless,
contrary
possible implication
to the
dissent,
it
is not meant to be
Indeed,
insurmountable.
this Court
party
grant
has often held that a
is entitled to a
of a
e.g.,
(concluding
directed
See,
verdict.
id. at 663-664
granted
that a directed verdict should have been
after
“making
*10
plaintiff’s
all reasonable inferences in
favor”
[emphasis added]);
v Pachtman,
Locke
(1994) (affirming
222-223;
instant case that the to failed evi- to dence establish either fraudulent or silent fraud. There is no claim whatsoever that the covering year ending financial statement the fiscal way any misleading. plaintiff was in or false says he from inferred it that erim’s current financial condition was consistent with that statement. How- representation ever, statement itself not a misrepresen- Thus, that effect. the claim fraudulent any tation must fail because erim did not make false statement. support of its that there was sufficient support jury’s
evidence to verdict, the dissent testimony cites from that he “took” the 1991 ERIM
Opinion summary operating representation for erim as organization. that However, financial status of the simply interpretation is not a reasonable of informa- presented period tion that on its face that data for plaintiffs job ended well before interview 1992. misrepresentation, requires course, Fraudulent representation plaintiffs the defendant. A false subjective misunderstanding of information that is objectively misleading that a false or cannot mean defendant fraudulent has committed the tort of misrepresentation. plausible
The dissent indicates
no
that there is
explanation
Swonger
giving
for Mr.
the most
report”
recent “financial
for ERIM if his intent was not
suggest
report
that the
finan-
showed erim’s current
cial status. However, this overlooks that the 1991
summary
operating
merely
at issue was not
a finan-
report,
sixteen-page
cial
but rather was a
brochure
history
included information about
nature of erim’s business activities as well as financial
plain
providing general background
data. It is
company
job applicant
information about a
to a
potential employee
perfectly legitimate
is a
business
practice
may
be of value to an individual in
deciding
accept
seeking
whether
or continue
employment
appearances,
at that business. From all
provided
the 1991
operating summary
the most recent
available for erim
*11
job
provision
at the time of his
interview. Thus, reasonably
this
cannot
as
be understood
type
misrepresentation.
some
of fraudulent
Indeed,
way
there is no reasonable
that
could have
expected
performance
that defendant’s financial
simply
period
have
would
remained constant after the
this as more indicative of the com pany’s likely performance operat future than ing summary provided plaintiff.5 he question
Turning agree to the fraud, silent we analysis panel with the of the conflict resolution McConkey that mere nondisclosure is insufficient. legal There must be circumstances that establish a duty Fidelity to make a disclosure. See United States Guaranty & Black, 99, Co v 412 Mich 125; 313 NW2d (1981): generally recognized “[fjraud may It is be consum- by suppression truth, mated facts of the well as as by open assertions,” Macey false Macey, Fred vCo 143 Mich 138, 153; suppression 722 (1906), 106 NW since “a may suggestion
truth to a amount of falsehood.” Stewart v Wyoming Co, 388; 101; Cattle Ranche 128 US 9 S Ct L Ed suppression order for the of informa- tion equi- to constitute silent fraud there legal must be a duty table 2d, of disclosure. See 37 Am Jur Fraud and Deceit, § 146. McConkey duty legal As the cases cited indicate, a commonly to make a disclosure will arise most ain inquiries plaintiff, situation where are made incomplete replies which the defendant makes are truthful in themselves but omit material informa- e.g., Groening Opsata, tion. See, 73, 83-84; 5 Notably, having “lurejdj” plaintiff job dissent refers to erim from a Jersey Post, p Michigan. in New work erim 418. While we cer- tainly employment recruiting, condemn actual fraud in connection with adopt unduly there no sound reason for this an broad defini- might companies appropriate tion of “fraud” that recruiting deter from Michigan. talented individuals such as to work in *12 413 v ERIM Dissenting by Opinion J. Kelly, inquiry regarding (buyer’s (1948) ero NW2d 560 situated); Sullivan house was which of bluff on sion inquiry regarding (buyer’s supra 227-230 Ulrich, operating sum termites). case, the In the instant mary in that document available most recent was the clearly which the times for identified the format. It provided. was no evi There was financial information any inquiry plaintiff the about made that the dence general company the financial condition particular.6 updated requested The financial data provided of other a number was information and was not defendant, about the documents basic by any request response information plaintiff. present plaintiff evidence suf- failed to
Because misrepresenta- fraudulent either ficient to establish judgments of the fraud, we reverse or silent tion Appeals the circuit court. and and Weaver, C.J., and Young, Taylor, Corrigan, JJ., concurred. Markman, majority I find because from the J. I dissent Kelly, proofs plaintiff at trial to estab- sufficient that offered misrepresentation and for fraudulent lish his case judg- has substituted The concealment. jury, judge, and a Court the trial ment for that rejected Appeals panel claims on defendant’s inquired testimony of defen- that he also mentions The par- research, funding was told of a policy regarding dant about its years supported it became before project for ten had been ticular anecdotal reference profitable. that that does not claim misrepresentation. any way inaccurate, constitute it thus cannot project on statement inferred from that Insofar as the similarly funded, such a conclusion would be which he worked inquiry. response his from the unwarranted Dissenting Opinion J. Kelly, separate two As occasions. the trial judge appellate panel recognized, proper was the arbiter of the facts and credibility. witnesses’ Hence, I Appeals would leave the Court of decision and the appeal. verdict intact denying leave to
i *13 The standard of review appellate governing over- sight decisions on directed verdict motions well settled. century More than a Chief ago, Justice Cooley Thomas M. articulated the threshold high for granting verdict, directed using that ring words as today true then. as question determining [regarding propriety this the of a verdict], appears directed we must look at the it case as plaintiff’s testimony, unqualified by any from the own which part defendants, offered of the and must con any thing fairly upon cede to him which he could claim jury right
evidence. He had a to ask to believe the case presented it; and, improbable as he portions however some testimony may appear of his us, say to we can not that the jury might given not them, have it full credence. It is evidence.[1] compare and not for court weigh to and parties Indeed, have a to a right jury verdict, free of from interference the bench. In Hughes v John Han cock Mut Co, Ins we observed this obvious bed Life rock principle: “[J]udges pronouncing when, are rigmarole no mere they cases, jurors law charge they are sole and judges credibility witnesses, exclusive of the and the
weight
given
testimony. They
to be
setting
their
are
forth
2 351
Detroit & M R Co v Van
302, 309;
enth procedure, preserve form and but mere matters of ‘is not questions requires right. of fact This substance by jury, that the actions shall be settled common-law directly indirectly, assume, to take from shall court ”[3] prerogative.’ or to itself such jurors credibility Either contest. case, faced In this they plaintiffs allegations they fraud or believed explanations. defendant’s believed prove support plaintiff had to elements that (1) were: for fraudulent his case representation, (2) the made a material defendant (3) representation it defendant knew that false, recklessly, posi- it as a when made or made was false knowledge (4) truth, assertion, of its tive without represen- upon act defendant intended (6) (5) it, acted in reliance on tation, injury States suffered as a result. United Fidelity Guaranty Black, 99, 120- & Co v 412 Mich *14 121; 313 NW2d
n
to this
was defendant erim’s
Central
case
summary
year
Swonger, an
for fiscal
1991that Ciaron
provided
job
manager,
plaintiff during a
inter-
erim
projec-
summary
data,
The
financial
view.
contained
profits margins
the
an overall reflection of
tions,
sharp disagreement
affairs at ERIM. There
state of
S Ct 421;
Hughes,
(CA
The of fact for the was whether use of Swonger’s report the 1991 at the 1992 interview constituted material about viability current financial trial, of ERIM. At Hord testified: representative I it as took of the financial status
organization, any if there had been reason to caveat here, some of the indications I would have heard them. I did not.
Swonger admitted that he had offered the 1991 report as evidence erim’s “financial record.” The testimony: heard following Q. your purpose giving What was Mr. Hord the annual
report for 1991? A. I wanted him be management able to read what the philosophy of ERIM was as stated in that kind of a document there, and the material that was show him what had company. record been Q. you “record,” you’re when And talk talking about about record? Certainly including [Emphasis
A. that. added.] At the time of the interview, Swonger knew that erim had suffered an economic downturn since the prepared. That coupled knowledge, testimony from justified Hord and Swonger, determination made Swonger an affirma- misrepresentation. tive interpretation Another these credibility. facts strains offers no plausible explanation why Swonger would give report most recent financial without comment, if *15 ERIM Hord Dissenting Opinion Kelly, J. suggest it showed the com- were not to intentions his pany’s financial status. current report example,
Suppose, had con- that the 1991 for picture than erim’s worse financial tained Swonger given it to Hord have Would status. financial qualifications? without Swonger would not that sense dictates
Common report provided under those a 1991 Hord with have conveyed report, negative so Such circumstances. clearly publication, have would time of to the close impression things given same remained the that sug- company To in a vacuum. does business 1992.No convey absolutely nothing figures gest that 1991 immediately period follows is uncon- about the adopted by premise vincing. disagree Thus, I majority. to conclude The was entitled way report Swonger gave of demon- as longer strength strating erim no financial possessed. testify Swonger that he knew about heard plaintiff. problems he met with at ERIM when
Q. certainly by Okay. basically, 17th when December So you you had the information with Mr. Hord at met erim report, you, about the dim- in the 1992 didn’t that’s reflected revenues, losses, the decreases contract inution you? information, You had that didn’t income? yes. orally, I received it at least A.
Q. receiving all Okay. you that information had been And monthly quarterly year during in the along you reports got? Monthly my division.
A.
Q. Okay.
A. Yes. 463
Dissenting Opinion by Kelly, J. Swonger, upper-level managers Indeed, like all plans already underway knew about for a mas- erim, layoff. By seventy-two employ- sive the end of layoff manage- ees had received notices from erim company’s profits dropped ment, the and had more $4 than million from in those reflected the 1991 report. explanations
Defense witnesses offered for the profits. jury decrease in the However, was entitled to choose which version of the facts to believe. As Chief right Justice Cooley observed: Plaintiff “had a to ask presented to believe the case . as he it . . .” supra Detroit & Milwaukee Co,R at 117. “It is for compare weigh them, and not for the court to Id. evidence.” troubling aspect adopted by
The most of the view majority per analysis glosses is that the curiam Swonger’s surrounding over the context decision to report share the Instead, Hord. dispute
strains to resolve the within the four comers report. sug- of the 1991 a whole, Taken as the facts gest receiving that Hord was on end an old- pitch, Swonger pulling fashioned sales out all stops persuade to him. attempting nationally Erim to a Hord, lure rec- ognized expert high-performance computing, from job Jersey position Michigan. a a New to Hord gauge job made efforts to the offer in terms of secur- ity ability provide steady and erim’s stream of justification sought work. He for his decision to relo- Jersey Michigan. cate from New He that, testified had he known of erim’s downturn, financial he would accepted not have with erim. v ERIM Dissenting Opinion by Kelly, J. effort apparent in an
Meanwhile, Swonger, provide evidence concerns, sought Hord’s assuage deliberately painted he job stability. doing, so viability picture present misleading ERIM, cutbacks government to obscure the truth: hoping sketchy forecast, industry, defense layoffs. inevitable
m
have
a reasonable
could
viewed these
Because
plaintiff’s
sufficient
to meet the elements of
facts as
claim,4
deny
application
I would
defendant’s
fraud
*17
Supreme
States
Court in
appeal.
leave to
United
courts
the well-
against usurping
Walker cautioned
jurors
role of
as the ultimate arbiters of fac
settled
majority’s
credibility
join
I cannot
tual and
issues.
for that caution.
disregard
J.,
Kelly, J.
Cavanagh,
concurred
Contrary
per
conclusion,
to the
curiam’s
also made out his
case for fraudulent concealment or “silent fraud.” One who remains silent
may
requires
speak
guilty
dealing
fair
him
be
of fraudulent con
when
Podgorski,
18, 32;
(1960).
Nowicki v
359 Mich