Opinion
No. 347157
04-23-2020
WEBER AUTOMOTIVE CORPORATION, Plaintiff-Appellant, v. METALDYNE LLC, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-168872-CB Before: SAWYER, P.J., and LETICA and REDFORD, JJ. PER CURIAM.
Plaintiff appeals as of right the trial court's order granting summary disposition in defendant's favor under MCR 2.116(C)(7) and MCR 2.116(C)(8). On appeal, plaintiff argues that the trial court erred when granting summary disposition because: (a) the trial court improperly considered a document outside the pleadings and did not construe the factual allegations in favor of plaintiff, the nonmoving party, (b) erroneously ruled that plaintiff failed to plead economic duress and unconscionability, and (c) incorrectly concluded that a 2010 Agreement between the parties was superseded by a subsequent agreement executed in 2016, when the 2016 Agreement was void for lack of consideration. Although we do find that in certain respects the trial court erred, none of those errors require reversal. We therefore affirm the order of the trial court granting summary disposition in defendant's favor.
I. BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a breach of contract dispute between two automobile parts manufacturers. The parties' relationship began in 2010 when they entered into a requirements contract for defendant to manufacture and sell, and plaintiff to purchase, solenoid castings for eventual inclusion in certain transmission systems of Ford Motor Company's vehicles ("2010 Agreement"). By 2015, a disagreement began over when the 2010 Agreement expired. It was plaintiff's contention that the 2010 Agreement was to last for the life of the Ford program production for which the solenoid parts were needed; on the other hand, defendant contended that the 2010 Agreement would expire on December 31, 2015.
Because this case comes to us after a dismissal under MCR 2.116(C)(8), we base the background facts off the well-pleaded allegations in plaintiff's complaint, including its attachments.
To that end, defendant offered to renegotiate a new agreement, but with different terms from the 2010 Agreement, including a 12% price increase for the parts. By February 2016, a new agreement had not yet been executed, and defendant threatened to, and eventually did, cease production and shipment of the solenoid parts to plaintiff. Shortly thereafter, plaintiff signed a new agreement with defendant; however, it did so under protest and with a reservation of rights ("2016 Agreement").
On October 2, 2018, plaintiff filed a three-count complaint against defendant, asserting causes of action under theories of breach of contract, injunctive relief, and business defamation. The thrust of plaintiff's complaint was that the 2010 Agreement was still effective, and the 2016 Agreement was void under theories of economic duress and unconscionability. In lieu of answering, defendant filed a motion for summary disposition under MCR 2.116(C)(7) and MCR 2.116(C)(8). Defendant's motion asserted that on the basis of terms in a Scheduling Agreement issued by plaintiff (which was not included as an attachment to plaintiff's complaint and was attached to defendant's motion), the 2010 Agreement expired on December 31, 2015. Defendant also claimed that plaintiff failed to adequately plead that the 2016 Agreement was void under economic duress and unconscionability.
Defendant argued that it was entitled to summary disposition under MCR 2.116(C)(7) because plaintiff's business defamation claim was barred by a one-year statute of limitations governing such claims. Plaintiff did not appeal the trial court's dismissal of that count. --------
On December 19, 2018, the trial court issued a written opinion dismissing all of plaintiff's claims. The trial court agreed with defendant that the Scheduling Agreement operated to terminate the 2010 Agreement. The trial court alternatively concluded that plaintiff failed to adequately plead facts sufficient to support its economic duress and unconscionability claims. This appeal followed.
II. STANDARD OF REVIEW
"This Court . . . reviews de novo a trial court's decision on a motion for summary disposition." Dell v Citizens Ins Co of America, 312 Mich App 734, 739; 880 NW2d 280 (2015).
A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. When deciding a motion brought under this section, a court considers only the pleadings. [Id. at 739-740.]
In addition, this Court "review[s] de novo the proper interpretation and application of a court rule." Garrett v Washington, 314 Mich App 436, 450; 886 NW2d 762 (2016). "[T]he interpretation of a contract is a question of law reviewed de novo on appeal, including whether the language of a contract is ambiguous and requires resolution by the trier of fact." Reed v Reed, 265 Mich App 131, 141; 693 NW2d 825 (2005).
III. DISCUSSION
We begin with plaintiff's first argument that the trial court erred when it considered the Scheduling Agreement in the context of defendant's motion under MCR 2.116(C)(8). Although plaintiff acknowledges that a contract is part of the pleadings for purposes of a motion under MCR 2.116(C)(8), plaintiff contends that the Scheduling Agreement was not part of the 2010 Agreement. We disagree.
"If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading . . . ." MCR 2.113(C)(1). "[T]he written contract becomes part of the pleadings themselves, even for purposes of review under MCR 2.116(C)(8)." Laurel Woods Apartments v Roumayah, 274 Mich App 631, 635; 734 NW2d 217 (2007); see also Liggett Restaurant Group, Inc v City of Pontiac, 260 Mich App 127, 133; 676 NW2d 633 (2003).
Plaintiff argues that the Scheduling Agreement is not one of the four listed exhibits identified in the 2010 Agreement and, therefore, is not a part of the 2010 Agreement. Plaintiff, however, completely ignores Section 1 of the 2010 Agreement, which states in pertinent part:
In consideration of the mutual covenants and promises contained in this Agreement, [defendant] hereby agrees to sell and deliver and [plaintiff] hereby agrees to purchase the goods and services specified (as Exhibit A) in the Weber purchase order (the "Goods") in accordance with the terms and conditions contained in this Agreement and any signed documents referenced in the purchase order, all of which constitute the entire and final agreement . . . . [Emphasis added.]
Under the explicit language of Section 1 of the 2010 Agreement, a purchase order is part of the 2010 Contract. To that end, the Scheduling Agreement, which was issued by plaintiff, is self-styled as a "purchase order." Thus, we have little trouble concluding that while the Scheduling Agreement is not a listed exhibit, the parties agreed in Section 1 of the 2010 Agreement that the Scheduling Agreement was part of the 2010 Agreement. Because it was part of the 2010 Agreement, which itself was part of the pleadings, we conclude that the trial court did not err when it considered the Scheduling Agreement when deciding defendant's motion.
Next, we address plaintiff's argument that even if the Scheduling Agreement were properly considered by the trial court, the terms of the Scheduling Agreement did not terminate the 2010 Agreement. Although we agree that the trial court erred when it concluded that the 2010 Agreement was not terminated by the Scheduling Agreement, we do not find it necessary to remand because the trial court correctly concluded that the 2016 Agreement was valid and not void as a result of economic duress or unconscionability.
"[T]he main goal in the interpretation of contracts is to honor the intent of the parties." Mahnick v Bell Co, 256 Mich App 154, 158-159; 662 NW2d 830 (2003). Words in a contract are given "their plain and ordinary meanings." Reicher v SET Enterprises, Inc, 283 Mich App 657, 664; 770 NW2d 902 (2009). "An unambiguous contract must be enforced according to its terms." Reed, 265 Mich App at 141. However, "[i]f a contract is subject to two interpretations, factual development is necessary to determine the intent of the parties and summary disposition is inappropriate." Mahnick, 256 Mich App at 159. "Whether a contract is ambiguous is a question of law, while determining the meaning of ambiguous contract language becomes a question of fact." Bodnar v St John Providence, Inc, 327 Mich App 203, 220; 933 NW2d 363 (2019).
In determining that the Scheduling Agreement terminated the 2010 Agreement, the trial court concluded that the 2010 Agreement, and plaintiff's standard terms and conditions of purchase ("Terms and Conditions"), which were incorporated by reference in the 2010 Agreement, unambiguously provided that an expiration date on a scheduling agreement would control the expiration date of the 2010 Agreement as a whole. We disagree because both the pertinent parts of the 2010 Agreement and the Terms and Conditions are ambiguous as to the end date of the 2010 Agreement.
Under the 2010 Agreement, the parties agreed that the term of that Agreement would end "on - See Exhibit D unless terminated earlier as provided for herein or extended by mutual written consent of the parties." There is no dispute that neither party can produce a copy of Exhibit D and plaintiff's complaint contains no allegations as to what Exhibit D contains; however, elsewhere in the 2010 Agreement, Exhibit D is referred to as the "launch plan" or "Launch Schedule." The 2010 Agreement also states that Exhibit D contains "[t]he initial Ford requirements and the resulting time line for [defendant] . . . ." This all suggests to us that the reference in Section 5 to the term ending on "Exhibit D" means that the 2010 Agreement would last for the length of Ford's "time line for [defendant] . . . ." This, however, is but one interpretation and, without the benefit of seeing Exhibit D, we conclude that Section 5 is ambiguous. Mahnick, 256 Mich App at 159.
The Terms and Conditions are equally ambiguous, although for a more traditional reason. The Terms and Conditions state that "the agreement formed by the Order is binding on the parties for the length of the applicable Original Equipment Manufacturer ("OEM") vehicle program production life . . . ." Thus, if Exhibit D describes the Ford program production life, which it very well may, this part of Section 13.1 of the Terms and Conditions reinforces the interpretation that the 2010 Agreement was to terminate when the program production life ended. Adding even more to this interpretation, Section 13.1 also states that "[plaintiff] and [defendant] acknowledge the risk of the vehicle program production life being cancelled or extended by the OEM."
In concluding that the Scheduling Agreement terminated the 2010 Agreement, the trial court, however, focused on the last part of Section 13.1, which states: "Notwithstanding the foregoing, if an expiration date is stated in the Order or an Agreement, the term of the Order will continue until that date." The trial court concluded that because the Scheduling Agreement contained an expiration date of December 31, 2015, this section of the Terms and Conditions effectuated a termination of the 2010 Agreement as well.
We conclude this was error by the trial court because Section 13.1 is ambiguous. Both the trial court and the parties ignore the middle section of Section 13.1, which addresses what the parties agreed to if plaintiff decided not to use defendant's solenoid parts:
If the Material is not utilized by [plaintiff] for the production of automotive parts or systems, the agreement formed by the Order will be binding for one year from the date the Order is transmitted to [defendant]. In such cases, subject to [plaintiff]'s termination rights, the Order will automatically renew for successive one-year periods after the initial term unless [defendant] provides written notice . . . of its desire that the Order not be renewed.Immediately following this part is the language that plaintiff and the trial court relied on, which states: "Notwithstanding the foregoing, if an expiration date is stated in the Order or an Agreement, the term of the Order will continue until that date."
The Terms and Conditions are ambiguous as to what "the foregoing" refers to. It is unclear whether "the foregoing" refers to the entirety of the preceding part of Section 13.1, or if it merely refers to the situation when plaintiff has chosen not to use defendant's parts in its manufacturing. Both are reasonable interpretations. See Mahnick, 256 Mich App at 159. If it refers to the entirety of Section 13.1, the trial court's conclusion is on stronger ground, since it would appear to qualify the language at the beginning of that section that states that the "agreement formed by the Order" would last for the life of the OEM's program life. However, if "the foregoing" only refers to instances when defendant's parts are not used by plaintiff, then "the foregoing" section would have no application to the current dispute.
Because both the 2010 Agreement and the Terms and Conditions are ambiguous with respect to the term of the 2010 Agreement, it was error for the trial court to conclude that the Scheduling Agreement unambiguously terminated the 2010 Agreement. However, as stated above, we affirm the decision of the trial court dismissing plaintiff's complaint because we agree with the trial court that the 2016 Agreement is a valid and binding agreement that superseded the terms of the 2010 Agreement.
Thus, we turn to plaintiff's next argument, which is that the trial court erred when it concluded that plaintiff failed to adequately plead economic duress.
"The question as to what constitutes duress is a matter of law, but whether duress exists in a particular case is a question of fact." Norton v Mich State Highway Dep't, 315 Mich 313, 319; 24 NW2d 132 (1946) (quotation marks and citation omitted). To adequately state a claim for economic duress, the party claiming duress must allege that it was "illegally compelled or coerced to act by fear of serious injury to their persons, reputations, or fortunes." Enzymes of America, Inc v Deloitte, Haskins, & Sells, 207 Mich App 28, 35; 523 NW2d 810 (1994), rev'd in part on other grounds 450 Mich 889 (1995). " 'Fear of financial ruin alone is insufficient to establish economic duress; it must also be established that the person applying the coercion acted unlawfully.' " Id., quoting Apfelblat v Nat'l Bank Wyandotte-Taylor, 158 Mich App 258, 263; 404 NW2d 725 (1987).
Defendant argues, and we agree, that because plaintiff did not allege that defendant engaged in illegal or unlawful conduct when renegotiating the 2010 Agreement, plaintiff's claim of economic duress must fail. Enzymes of America, 207 Mich App at 35. However, plaintiff asserts that this Court has misinterpreted the doctrine of economic duress and, under the proper interpretation, it adequately pleaded facts sufficient to support its claim. Plaintiff argues that the conduct defendant engaged in was similar to the conduct that our Supreme Court found to be actionable duress in Vine v Glenn, 41 Mich 112; 1 NW 997 (1879). We disagree that Vine provides any support to plaintiff here. In Vine, our Supreme Court held that duress existed when the defendant coerced the plaintiff into settling a dispute by convincing third parties who owed the plaintiff money to withhold that money. Vine, 41 Mich at 115. Here, however, plaintiff does not allege that defendant acted to convince third parties to stop payment to plaintiff; instead, plaintiff argues that defendant's threats, if carried out, would cause financially deleterious ripple effects for plaintiff, including impacting its contracts with third parties, such as Ford. This, however, is more akin to the situation in Hackley v Headley, 45 Mich 569; 8 NW 511 (1881), another case that plaintiff focuses on, where our Supreme Court held that a release was not void for duress when the defendant coerced the release knowing that the plaintiff was in need of money to pay other obligations. Hackley, 45 Mich at 574-577.
In an effort to sidestep the issue of illegality of conduct, plaintiff raises for the first time with this Court the argument that defendant tortiously interfered with the contract between plaintiff and Ford, which it claims is sufficiently illegal conduct to state a claim for economic duress. This argument, however, is subject to forfeiture because plaintiff did not raise it below. Lenawee Co v Wagley, 301 Mich App 134, 164; 836 NW2d 193 (2013) ("An issue must have been raised before and addressed and decided by the trial court to be deemed preserved for appellate review.").
Unpreserved issues are reviewed for plain error. Total Armored Car Serv, Inc v Dep't of Treasury, 325 Mich App 403, 412; 926 NW2d 276 (2018). "To establish an entitlement to relief based on plain error, the injured party must show (1) that an error occurred, (2) that the error was plain and (3) that the plain error affected [its] substantial rights." Id. (quotation marks and citation omitted) (alteration in original). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).
Not only did plaintiff not argue the issue below, plaintiff did not allege in its complaint that defendant tortiously interfered. In the context of a motion for summary disposition under MCR 2.116(C)(8), the trial court and this Court may only look to the well-pleaded allegations in the complaint. Dell, 312 Mich App at 739-740. Thus, the trial court did not err, let alone plainly err, when it concluded that plaintiff failed to plead sufficient facts to support a claim for economic duress.
Plaintiff also asks this Court to overrule its prior cases and create new law in order to, in plaintiff's view, modernize Michigan's jurisprudence with respect to economic duress. Plaintiff, however, misunderstands the role of this Court, which is not to create new law or depart from existing law. See People v Woolfolk, 304 Mich App 450, 475; 848 NW2d 169 (2014), quoting Teel v Meredith, 284 Mich App 660, 666; 774 NW2d 527 (2009) ("Were we inclined to effect a significant change to Michigan law, such as by abrogating established common law in favor of a rule more to our liking, 'prudence would counsel against it because such a significant departure from Michigan law should only come from our Supreme Court [or the Legislature], not an intermediate appellate court.' ") (alteration in original). As this Court stated in Enzymes of America: "[T]he established law in Michigan remains unchanged at this time: Illegality is an element of duress." Enzymes of America, 207 Mich App at 35.
Plaintiff also argues that the trial court erred when it concluded that plaintiff failed to adequately allege facts to support its claim of unconscionability and erred when the trial court failed to provide plaintiff with the opportunity to present evidence of the commercial context and setting for which to understand plaintiff's claim. We conclude, however, that plaintiff failed to preserve the argument that it alleged sufficient facts to support a claim of unconscionability because it failed to make that argument below. Wagley, 301 Mich App at 164. Thus, we review this claim of error for plain error affecting substantial rights. Total Armored Car Serv, 325 Mich App at 412. And while we agree with plaintiff that it was error for the trial court to fail to provide plaintiff with an opportunity to present evidence, that error was harmless because even if plaintiff could establish substantive unconscionability, plaintiff's complaint was insufficiently pleaded to support procedural unconscionability. Both are required.
Under Michigan's Uniform Commercial Code, "[i]f the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result." MCL 440.2302(1). "[I]n order for a finding of unconscionability to be made both substantive and procedural unconscionability must be present." Northwest Acceptance Corp v Almont Gravel, Inc, 162 Mich App 294, 302; 412 NW2d 719 (1987); see also Clark v DaimlerChrysler Corp, 268 Mich App 138, 143; 706 NW2d 471 (2005). Unconscionability is a question of law for the trial court. Krupp PM Engineering, Inc v Honeywell, Inc, 209 Mich App 104, 108; 530 NW2d 146 (1995).
Under procedural unconscionability, this Court's duty is to analyze "the relative bargaining power of the parties, their relative economic strength, [and] the alternative sources of supply . . . ." Northwest Acceptance Corp, 162 Mich App at 302 (quotation marks and citation omitted); see also Clark, 268 Mich App at 144 ("Procedural unconscionability exists where the weaker party had no realistic alternative to acceptance of the term."). Under substantive unconscionability, this Court must analyze whether the challenged term is substantively reasonable. Northwest Acceptance Corp, 162 Mich App at 302; see also Clark, 268 Mich App at 144 ("Substantive unconscionability exists where the challenged term is not substantively reasonable."). "[A] term is substantively unconscionable where the inequity of the term is so extreme as to shock the conscience." Clark, 268 Mich App at 144. "The commercial setting, purpose, and effect of the contractual provision determines whether that provision is substantively reasonable or unconscionable." Northwest Acceptance Corp, 162 Mich App at 300. To that end, "[w]hen it is claimed or appears to the court that the contract or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination." MCL 440.2302(2); see also Northwest Acceptance Corp, 162 Mich App at 300 ("The parties can, as a matter of right, introduce evidence relevant to any claim of unconscionability and thus lay grounds for review.").
Plaintiff argues the trial court erred by failing to hold an evidentiary hearing to allow plaintiff to present evidence regarding its claim of unconscionability. Plaintiff raised this issue with the trial court directly; however, the trial court failed to address it in its opinion and order dismissing plaintiff's complaint. Instead, the trial court simply concluded that because the terms of the 2016 Agreement were not " 'so extreme as to shock the conscience,' " plaintiff's claim for unconscionability failed.
We agree that the trial court's failure to hold an evidentiary hearing was error. Under the explicit language of MCL 440.2302(2), parties are afforded as a matter of right the ability to present evidence to the trial court regarding the commercial context for which the substantive unconscionability may exist. However, we also conclude that this error does not require reversal of the trial court's order dismissing plaintiff's complaint. Although the trial court erred by failing to hold an evidentiary hearing for the purpose of determining whether the 2016 Agreement was substantively unconscionable, such failure was harmless error because plaintiff failed to adequately plead procedural unconscionability. See Feaster v Portage Pub Sch, 210 Mich App 643, 655-656; 534 NW2d 242 (1995), rev'd on other grounds 451 Mich 351 (1996) ("[B]ecause holding a hearing or requiring a written statement of facts would not have altered the outcome in this case, the lack of these proceedings did not result in a violation of rights to procedural due process."); Krupp, 209 Mich App at 107 (concluding it was harmless error to submit question of unconscionability to the jury).
Procedural unconscionability requires a showing that there was unbalanced bargaining power and that the party seeking to avoid a contract had no reasonable alternative but to grant the other party's terms. Northwest Acceptance Corp, 162 Mich App at 302; Clark, 268 Mich App at 144. Plaintiff's complaint falls short in this regard.
To demonstrate that plaintiff was the weaker party, it pleaded that its presence in the United States was "a small fraction of the size of [defendant]'s operation . . . ." This, however, does not establish that plaintiff was not a sophisticated commercial entity capable of negotiating an agreement on reasonable terms. To the contrary, as pleaded in its complaint, plaintiff is a multinational automotive parts supplier headquartered in Germany. Thus, the complaint does not demonstrate that plaintiff was the relatively weaker party to the negotiations just because its presence in the United States was smaller.
Similarly, plaintiff's complaint does not adequately plead that it did not have any alternative but to accept the 2016 Agreement. Plaintiff did allege that defendant was Ford's "preferred, single source supplier" of the solenoid parts, and that plaintiff was contractually obligated with Ford to source the solenoid parts with defendant. However, plaintiff's allegations are undercut in this regard in that plaintiff never pleaded that it attempted, but failed, to seek an alternative choice with Ford. Plaintiff's complaint demonstrates that it had months to seek an alternative, during which time defendant offered to continue to supply the solenoid parts under the terms of the 2010 Agreement. Moreover, plaintiff's allegations in its complaint are belied by the 2010 Agreement it seeks to resuscitate, which provides that if plaintiff were "offered the opportunity to purchase the Goods with comparable volumes, under the same purchase terms and with the same services as provided by [defendant], but at a lower piece price . . . ." plaintiff had the ability to terminate the 2010 Agreement if defendant did not match that price.
In sum, we conclude that although the trial court should have afforded plaintiff the ability to present evidence regarding the commercial context of the terms of the 2016 Agreement to assess that Agreement's substantive reasonableness, the error by the trial court in failing to do so was harmless. Thus, having concluded that plaintiff's complaint failed to adequately plead procedural unconscionability, plaintiff cannot demonstrate that the trial court plainly erred when it concluded that plaintiff's unconscionability claim failed.
We turn now to plaintiff's final argument, which is that the trial court erred when it concluded the 2016 Agreement was valid, because it lacked consideration under the preexisting duty rule. Again, we note that plaintiff failed to make this argument below and has, therefore, failed to preserve the issue on appeal. Wagley, 301 Mich App at 164. We therefore review the issue for plain error affecting substantial rights. Total Armored Car Serv, 325 Mich App at 412.
"A valid contract requires five elements: (1) parties competent to contract, (2) a proper subject matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation." AFT Mich v Michigan, 497 Mich 197, 235; 866 NW2d 782 (2015). Consideration is "[s]ome right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other." Sands Appliance Servs, Inc v Wilson, 463 Mich 231, 242; 615 NW2d 241 (2000) (quotation marks and citation omitted).
"Under the preexisting duty rule, it is well settled that doing what one is legally bound to do is not consideration for a new promise." Yerkovich v AAA, 461 Mich 732, 740-741; 610 NW2d 542 (2000). Thus, the preexisting duty rule "bars the modification of an existing contractual relationship when the purported consideration for the modification consists of the performance or promise to perform that which one party was already required to do under the terms of the existing agreement." Id. at 741.
Even if plaintiff had preserved this argument by making it below, it would not have been error for the trial court to reject such argument. The preexisting duty rule is premised on the modification of an existing agreement without consideration. Id. at 741. However, the preexisting duty rule does not operate to bar parties, who have an existing contract, to renegotiate and enter into a new contract covering the same subject matter. If plaintiff's theory were correct, parties would be effectively barred from renegotiating a contract unless and until the existing contract expires. We are aware of no such prohibition under the law.
The parties agreed that the 2016 Agreement "constitutes the entire and final agreement between [defendant] and [plaintiff] and . . . cancels and supersedes any prior or contemporaneous negotiations or agreements regarding the subject matter" of the 2016 Agreement. Thus, the 2016 Agreement was not a modification of the 2010 Agreement without consideration; rather, it was a separate, new agreement under which both parties exchanged "[s]ome right, interest, profit or benefit . . . or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken . . . ." Sands Appliance Servs, 463 Mich at 242. The trial court, therefore, did not plainly err when it failed to conclude that the 2016 Agreement was void for lack of consideration.
Affirmed.
/s/ David H. Sawyer
/s/ Anica Letica
/s/ James Robert Redford