Plaintiff appeals by right an order summarily dismissing Honigman Miller Schwartz and Cohn (HMSC) as a defendant. Plaintiff also appeals an order granting summary disposition of its claim for legal damages against defendant Barbara Ann Karmanos Cancer Institute, 1 formerly known as the Michigan Cancer Foundation, which merged with the Comprehensive Cancer Center of Metropolitan Detroit (the center). Karmanos Cancer Institute appeals by right an order finding that it breached its agreement with plaintiff. This case arose out of a 1985 endowment agreement in which the donees agreed to rename the сenter *43 the Meyer L. Prentis Comprehensive Cancer Center of Metropolitan Detroit. We affirm in part and reverse in part.
Plaintiff first argues the court should not have dismissed HMSC as a defendant because HMSC owed plaintiff a duty where plaintiff relied on HMSC, and HMSC engaged in a conflict of interest by representing multiple parties in the 1985 contract. We disagree.
A trial court’s grant of summary disposition pursuant to MCR 2.116(0(10), on the ground that there is no factual support for a claim, is reviewed de novo.
Dressel v Ameribank,
When a fiduciary relationship exists, the fiduciary has a duty to act for the benefit of the principal regarding matters within the scope of the relationship.
Teadt v Lutheran Church Missouri Synod,
The only ground plaintiff gave for finding that its trust, confidence, and reliance was reasonable was that a representative of plaintiff was a board member of the center. However, when an attorney is hired to represent a corporation, his client is the corporation rather than the shareholders.
Scott v Green,
While a corporation and a shareholder may be treated as one entity for certaiñ purposes when there is á complete identity of interests,
Kline v Kline,
Plaintiff next argues that the court erred in granting HMSC summary disposition on the ground that the period of limitations had expired because MCL 600.5855 operated to toll any period of limitations where HMSC fraudulently concealed the fact that the center’s name was never changed and where plaintiff properly pleaded fraudulent concealment. 2 We disagree.
*46
An affirmative defense does not deny the allegations of the plaintiffs complaint; rather it claims — “on some ground not disclosed in the plaintiffs pleadings” — that the plaintiff is not entitled to recovery.
Stanke v State Farm Mut Automobile Ins Co,
The trial court found that, whether the applicable period of limitations was two years under MCL *47 600.5805(6) or three years, plaintiffs claims were barred. We disagree with HMSC that the period of limitations for malpractice under MCL 600.5805(6) should apply. The conduct required to constitute a breach of fiduciary duty requires a more culpable state of mind than the negligence required for malpractice. Damages may be obtained for a breach of fiduciary duty whеn a “position of influence has been acquired and abused, or when confidence has been reposed and betrayed.” Vicencio, supra at 508.
In
Local 1064, RWDSU AFL-CIO v Ernst & Young,
“A claim of breach of fiduciary duty or breach of trust accrues when the beneficiary knew or should have known of the breach.”
Bay Mills Indian Community v Michigan,
Here, HMSC presented evidence that plaintiffs designee on the board of trustees was present when the merger between the center and the Michigan Cancer Foundation was discussed in 1994, and was present when the Karmanos gift and renaming were discussed and voted on in 1995. This indicated that plaintiff should have been aware of a possible cause of action at least by 1995. The “possible cause of action” standard encourages claimants to diligently investigate and pursue causes of action.
Shawl, supra
at 327. “Generally, for fraudulent concealment to postpone the running of a limitations period, the fraud must be manifested by an affirmative act or misrepresentation. The plaintiff must show that the defendant engaged in some arrangement or contrivance of an affirmative character designed to prevent subsequent discovery.”
Witherspoon v Guilford,
*49 Plaintiff next argues that the court improperly granted HMSC summary disposition where HMSC violated duties owed to plaintiff or others of loyalty, the avoidance of self-dealing, honesty, and the avoidance of the appearanсe of impropriety where (a) it failed to disclose its representation of Peter Karmanos as a client and his identity as the donor for whom the merged entity would be named, (b) it represented both the Michigan Cancer Foundation and the center in the 1994 merger without fully informing the parties of the naming facts, (c) it consistently misrepresented the center’s legal name on the center’s documents, and (d) one of its members actively worked as the chairman of the board of trustees for the center on the merger after telling the three institutions that the chairman would do otherwise. We disagree.
Under common-law agency principles, “A fiduciary owes a duty of good faith to his principal and is not permitted to act for himself at his principal’s expense during the course of his agency.”
Central Cartage Co v Fewless,
Nevertheless, plaintiff аcknowledged that it never formally retained HMSC. Thus, plaintiff was merely a third party to HMSC’s agency agreement with its client, the center.
*50 “Under long-settled principles of contract law, agency-agreements do not create any rights in third parties, even a party as to whom the principal owes some performance and for whose benefit the principal has retained an agent to render it.” [Uniprop, supra at 447, quoting Koppers Co, Inc, supra at 1098, citing 4A Corbin, Contracts, §779E (1951).]
Hence, while the center was owed a duty of good faith, loyalty, and avoidance of self-dealing, plaintiff was not.
With respect to HMSC’s alleged failure to disclose its representation of or the identity of Karmanos, plaintiff presented a December 23, 1993, letter written by Ralph Kliber to Marvin Frenkel, the representative of plaintiff who served as a board member for the center, indicating that the Michigan Cancer Foundation had a donor, which would be recognized by use of the donor’s name. However, the letter merely indicates that the Michigan Cancer Foundation — HMSC’s client — was aware of a donor in December 1993. It does not implicate HMSC in any type of cover-up. Although the letter does not mention the donor’s name, this does not mеan that the Michigan Cancer Foundation was unaware of the donor’s identity. Moreover, it establishes that Frenkel and, therefore, plaintiff were aware of a potential donor before the merger took place.
On the other hand, HMSC presented letters demonstrating that it disclosed its potential conflict of interest to both the Michigan Cancer Foundation and Kar-manos, and that both parties consented to HMSC’s representation of Karmanos with respect to the gift. This clearly indicated that the Karmanos representation was adequately disclosеd to the Michigan Cancer Foundation, which, by 1995, had merged with the center. According to an attorney with HMSC, Karmanos contacted him about making a gift to the Michigan Cancer Foundation about the time the gift was made, *51 and asked him to work out the details of making the gift. Until Karmanos decided to give the gift, HMSC had no reason to disclose its representation of Karmanos to anyone.
The attorney stated that he told Karmanos that he first had to check for conflicts of interest; when he determined that a conflict existed, he informed Kar-manos that HMSC had to obtain the consent of the Michigan Cancer Foundation before he could represent Karmanos with respect to the gift. This indicated that HMSC acted promptly once it was aware of Karmanos’s intentions and once it was aware of the conflict. Given the evidence that HMSC did not fail to disclose its representation of Karmanos or Karmanos’s identity as the donor, and the fact that plaintiffs evidence did not establish wrongdoing on HMSC’s part, plaintiffs argument is without merit.
With respect to plaintiffs contention that HMSC represented both the Michigan Cancer Foundation and the center in the 1994 merger, HMSC prеsented letters indicating that it sought and obtained the approval of the president of the center and the president of the Michigan Cancer Foundation in the 1994 merger. Moreover, the letter to the president of the center clearly advised the center to “consider retaining independent counsel for the purpose of advising [the center] on whether to consent to our representation of [the Michigan Cancer Foundation] with respect to the Transaction and to assist [the center] in determining whether separate representation of [thе center] with respect to the Transaction is desired.”
Plaintiffs evidence that HMSC represented the center in the merger consisted of the signature on the merger documents of an attorney for HMSC who was also the chairman of the center. However, in his role as *52 chairman, the attorney was the proper person to sign the merger documents (although the documents could also have been signed by the president, vicepresident, or vice-chairperson). Plaintiff noticeably did not provide minutes of the center’s board of trustees meeting indicating that the attorney participated in the center’s decision to approve the merger, and the certificate of merger did not indicate that it was prepared by the attorney. Therefore, plaintiffs evidence was insufficient to establish a genuine issue of material fact regarding whether HMSC represented both parties in a legal capacity with respect to the merger. Regarding plaintiffs allegation that HMSC did not inform the parties of the naming facts, all the evidence created at the time of the merger indicated that the naming obligation was discussed.
Plaintiff next argues thаt the trial court erroneously changed its previous opinion to require plaintiff to prove liability at the jury trial. We disagree.
Plaintiff initially argues that by revising its earlier determination, the trial court violated the law of the case doctrine. Whether the law of the case doctrine applies is a question of law subject to review de novo.
Ashker v Ford Motor Co,
Plaintiff next appears to argue that a jury trial was not required with respect to defendant’s liability for damages. When a case involves both equitable issues and legal issues, it is appropriate for a jury to decide the factual issues relating to the damages claim and the court to decide the factual issues relating to the equitable claim.
ECCO, Ltd v Balimoy Mfg Co, Inc,
[I]n a case such as this where both equitable issues and jury submissible issues coexist, the proper procedure is to hold trial before a jury and follow presentation of evidence with two separate factual determinations; court factfinding on the equitable claims and jury factfinding on the claims of damages.
... Plaintiffs are not bound by the court’s factfinding on their claim for damages and are entitled on remand to a separate jury trial on that claim. [Smith v Univ of Detroit,145 Mich App 468 , 479;378 NW2d 511 (1985).]
Thus, it appears that defendant was entitled to a jury trial with respect to liability for damages. Nevertheless,
*54
plaintiff claims that defendant waived its right to a jury trial when it failed to file a separate jury demand pursuant to MCR 2.508(D)(1). “ ‘The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.’ ”
Wood v Detroit Automobile Inter-Ins Exch,
Courts have interpreted these provisions to mean that once it is granted, both parties may rely on the right to a jury trial. A defendant may rely on the plaintiffs jury demand, and, once the right to a jury is secured, the plaintiff must obtain the defendant’s consent to waive the right.
Marshall Lasser, PC v George, 252
Mich App 104, 106;
Plaintiff claims that defendant specifically insisted on a bench trial rather than a jury trial, but does not once cite defendant’s comments in the record. Instead, to support its position, plaintiff cites a portion of the trial court’s commentary. The trial court’s comments do not indicate that defendant argued for a bench trial *55 only; they merely indicate that neither party wanted the bench trial to coincide with the jury trial. Although no transcript of the pretrial conference was provided on appeal, the final pretrial order indicates that there would be a bench trial followed by a jury trial. And there is no indication that the only issue for the jury was the amount of damages. Moreover, at the beginning of the bench trial, the trial court made several comments signifying that the jury would determine defendant’s legal liability. Therefore, the totality of the circumstances did not demonstrate that defendant waived its right to a jury on the liability issue. Id. at 108. Thus, the trial court reached the correct result in its written order.
Plaintiff next argues that the second judge erroneously reversed the previous judge’s decision that restitution was an issue for the jury and dismissed the compensatory damages claim, including restitution, on the grounds that a nonprofit corporation cannot prove damages as a matter of law because it does not generate profits and the remaining damages requested were too speculative. We disagree.
Here, the first court indicated that the circumstances did not justify rescission, restitution was related to rescission so it could not be granted, and general damages were a legal question for the jury so they could not be granted by the court. With respect to plaintiffs claim that the court’s grant of summary disposition denied plaintiff its right to a jury trial regarding general compensatory damages, although a jury determines the amount of damages, it is the court’s job to determine whether a plaintiff is legally entitled to the damages.
Phillips v Mirac, Inc,
On cross-appeal defendant argues that plaintiff lacked standing, and the trial court erred in denying its motion to dismiss. We agree.
The question of standing is a question of law subject to review de novo.
Lee v Macomb Co Bd ofComm’rs,
It is axiomatic that a party must have standing to bring a lawsuit. Id. at 735. To have standing in Michigan, a prospective plaintiff must demonstrate three elements:
“First, the plaintiff must have suffered an ‘injury in fact’-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be ‘fairly ... trace [able] to the challenged action of thе defendant, and not... th[e] result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” [Id. at 739-740, quoting Lujan v Defenders of Wildlife,504 US 555 , 560-561;112 S Ct 2130 ;119 L Ed 2d 351 (1992).]
Defendant argues that plaintiff was legally barred from bringing suit because a settlor of a charitable trust may not enforce a charitable trust. Our Supreme
*57
Court’s decision in
Knights of Equity Mem Scholarships Comm v Univ of Detroit,
Defendant next argues that no consideration existed for the naming provision and the court erred in denying its motion to dismiss. We agree.
The construction given an unambiguous contract is reviewed de novo.
Rossow v Brentwood Farms Dev, Inc,
The fund is established according to the following provisions:
*58 1. The Prentis Foundation hereby agrees to establish the Fund by contributing to Wayne State University (“University”) $1,500,000 in annual installments of not less than $300,000 over a period of not more than five years. The first annual contribution shall be made in 1985.
The Fund shall be used solely for the support of cancer research.
2. In recognition of the significant and long-standing commitment of and leadership and support by the Prentis Foundation in the fields of cancer education, detection and research and the generous financial contributions made over many years by the Prentis Foundation in furtherance thereof;[ 7 ] and in further recognition of and appreciation to the Prentis Foundation for the fund it is hereby creating, the University, Center and the Michigan Cancer Foundation (“Foundation”) do hereby agree that Center shall be renamed and henceforth be known as the Meyer L. Prentis Comprehensive Cancer Center of Metropolitan Detroit.
Our Supreme Court has defined consideratiоn as a bargained exchange involving “ ‘ “a benefit on one side, or a detriment suffered, or service done on the other.” ’ ”
Gen Motors Corp v Dep’t of Treasury,
Although plaintiff may have expected that the naming provision was bargained consideration in exchange for the $1.5 million, courts are not permitted to discern the parties’ reasonable expectations and rewrite contracts accordingly.
Wilkie v Auto-Owners Ins Co,
Defendant next argues that the trial court erred in finding that defendant breached the agreement “because the undisputed facts show that [the defendant] never made a material breach of that agreement.” We agree.
A trial court’s factual findings in a bench trial are reviewed for clear error.
Alan Custom Homes, Inc v Krol,
HMSC has requested that sanctions be imposed against plaintiff. HMSC sought sanctions at the trial court level in connection with its motion for summary disposition. Because HMSC did not raise the trial-level sanctions issue on cross-appeal, the issue is not properly before this Court.
Barnell v Taubman Co, Inc,
Affirmed in part and reversed in part.
Notes
Because of the potential confusion with two defendants, all references to “defendant” will refer to the Karmanos Canсer Institute, while the law firm will be referred to as HMSC.
Plaintiff also argues that the trial court improperly required plaintiff to diligently investigate the fraudulent concealment. Plaintiff cites
Lewis v Jacobs,
More recently, our Supreme Court indicated that whether a plaintiff should have known about the cause of action was determined by an objective standard when it stated:
*46 “The statute was not designed to help those who negligently refrain from prosecuting inquiries plainly suggested by facts known, and the plaintiff must be held chargeable with knowledge of the facts, which it ought, in the exercise of reasonable diligence, to have discovered.” [Barry v Detroit Terminal R Co,307 Mich 226 , 232;11 NW2d 867 (1943) (citations omitted; discussing former statute 1929 CL 13983).]
Therefore, plaintiff was required to exercise reasonable diligence with respect to whether HMSC failed to legally change the center’s name. And this Court helped define reasonable diligence when it determined that a witness’s potential for liability was discoverable from the outset whеre the name of the witness to an accident was listed in a police report, and MCL 600.5855 would not toll the period of limitations notwithstanding the plaintiffs argument that the witness lied to police about what occurred.
Witherspoon v Guilford,
HMSC did not seek summary disposition pursuant to MCR 2.116(C)(7), the proper rule for granting summary disposition when a claim is barred by a statute of limitations; however, the trial court noted that MCR 2.116(C)(7) was the proper rule and indicated that it considered the argument pursuant to the correct rule.
Although
Shawl
involved a medical malpractice action, our Supreme Court, in
Soloway v Oakwood Hosp Corp,
MCR 2.119(F)(3) provides:
Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not he granted. The party must demonstrate а palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.
“Charitable” is defined as “generous in gifts to aid the indigent, ill, homeless, etc.” Random House Webster’s College Dictionary (2001).
Clearly, the first part of this provision does not constitute consideration because “past consideration.. . would not constitute a legal consideration for the subsequent... agreement.”
Shirey v Camden,
“Appreciation” is relevantly defined as “gratitude; thankful recognition” while “recognition” is defined as “the acknowledgement of achievement, service, merit, etc.” Random House Webster’s College Dictionary (2001).