DONOFRIO, J.
Plaintiff appeals as of right the circuit court's judgment in favor of defendant following a bench trial. Because the court properly denied plaintiff's motion for summary disposition, it did not err by admitting evidence of posttermination communications at trial, its judgment did not contravene the great weight of the evidence, and it did not misinterpret the procuring-cause doctrine, we affirm.
Plaintiff is a manufacturer's representative firm owned and operated by Roger Lyons. Its sole function is to serve as a sales representative to various companies. Defendant manufactures and supplies foam and foam-padded products. In approximately 1997 Lyons approached defendant's primary owner, William MacCready, regarding the possibility of defendant manufacturing a foam armrest to sell to a company named Findlay Industries. MacCready agreed to manufacture the armrests and paid Lyons a five percent commission on armrest sales. According to MacCready, the commission was based on Lyons managing the account because MacCready had no personnel to perform that function. The agreement was not reduced to writing and lasted for one or two years until Findlay Industries went out of business.
In 2005, Lyons again approached MacCready and inquired whether MacCready was interested in manufacturing foam seat cushions for Isringhausen, Inc. MacCready agreed to the deal and paid Lyons a five percent commission on all sales to Isringhausen. Again, the agreement was not reduced to writing, but Lyons and MacCready both claimed that the deal was intended to be a continuation of the armrest agreement.
Defendant produced between 25 and 30 different parts for Isringhausen (the 2005 project). According to Lyons, once production on the 2005 project began, his servicing obligations were minimal, and he spent most of his time attempting to obtain new business for defendant from Isringhausen and other companies. MacCready maintained, however, that Lyons's commission was contingent on his performance of account manager functions and
On April 3, 2009, Tim Packer, defendant's coowner and general manager, received an e-mail from an Isringhausen employee informing him that Isringhausen would no longer allow Lyons to represent defendant. The e-mail stated that Isringhausen no longer wished to deal with Lyons "in the future effective immediately" and indicated that all future correspondence would be between Isringhausen's and defendant's personnel directly. The e-mail further stated that Lyons was not to contact Isringhausen for any reason whatsoever, and that if defendant found this unacceptable, Isringhausen would make arrangements to locate a different foam supplier. Consequently, Packer and MacCready informed Lyons that they were terminating their relationship with him. Although defendant eventually lost the Isringhausen account, it continued to sell parts to Isringhausen through March 2010, generating approximately $1.4 million in sales between the time that Lyons was terminated and the time that the sales were discontinued. Defendant did not pay any sales commissions to Lyons after his termination.
Thereafter, plaintiff filed suit against defendant for breach of the parties' commission contract. Plaintiff alleged that it had fulfilled its obligations under the contract and that Lyons was responsible for procuring all of defendant's sales to Isringhausen. Plaintiff further alleged that Lyons was entitled to a five percent commission on all of defendant's sales to Isringhausen that occurred after Lyons's termination.
The parties filed cross-motions for summary disposition pursuant to MCR 2.116(C)(10). Lyons argued that he was entitled to posttermination sales commissions because he was the procuring cause of defendant's sales to Isringhausen. Defendant, on the other hand, argued that the procuring-cause doctrine was inapplicable because Lyons was responsible for a significant amount of account servicing, which he was unable to perform after Isringhausen banned him from its premises. Defendant also argued that the doctrine was inapplicable because Lyons committed a material breach of contract when he was banned from Isringhausen's premises.
Initially, the trial court denied Lyons's motion and granted summary disposition in favor of defendant. The court determined that Lyons's servicing responsibilities were significant enough to render the procuring-cause doctrine inapplicable. The trial court also determined that the doctrine was inapplicable because Lyons committed the first material breach of contract by getting himself banned from Isringhausen's premises. Thereafter, Lyons moved for reconsideration, which the trial court granted. The trial court reasoned that, viewing the facts in the light most favorable to plaintiff, there was a question of fact regarding whether the posttermination orders "would have come in anyway," despite that Lyons was no longer servicing the account. The trial court further stated that even though it determined that Lyons had committed the first breach, "the first breach only becomes significant if there were customer service requirements."
The case proceeded to a two-day bench trial, following which the trial court entered a judgment in defendant's favor. The court concluded that the commission agreement required Lyons to perform significant account servicing, which, although not a full-time job, was significant enough that defendant had to replace Lyons. The trial court further concluded that because of Lyons's significant service obligations, he committed the first material breach when he was banned from Isringhausen's premises.
"The law in Michigan is that sales agents are entitled to posttermination commissions for sales they procured during their time at the former employer." Stubl v. T. A. Sys., Inc., 984 F.Supp. 1075, 1095 (E.D.Mich., 1997). In Reed v. Kurdziel, 352 Mich. 287, 294-295, 89 N.W.2d 479 (1958), the seminal case in Michigan discussing the procuring-cause doctrine, our Supreme Court stated:
The procuring-cause doctrine applies when the parties have a contract governing the payment of sales commissions, but the contract is silent regarding the payment of posttermination commissions. See id.
Plaintiff argues that Lyons was entitled to posttermination commissions because the uncontested evidence showed that he was the procuring cause of defendant's sales to Isringhausen. Plaintiff contends that at the time of Lyons's termination there was no work left to be performed with respect to the 2005 project other than minor ministerial tasks. Plaintiff further contends that the trial court erroneously relied on Roberts Assoc., Inc. v. Blazer Int'l Corp., 741 F.Supp. 650, 655 (E.D.Mich., 1990), a nonbinding, federal decision in which that court stated:
The basic principle behind the procuring-cause doctrine is the notion of fair dealing. Reed, 352 Mich. at 294, 89 N.W.2d 479. It is unfair to allow a principal to terminate an agent and avoid paying commissions on sales that the agent procured. Thus, "if the authority of the agent has been cancelled by the principal, the agent would nevertheless be permitted to recover the commission if the agent was the procuring cause." Id. at 295, 89 N.W.2d 479. Here, Lyons's authority was not canceled by the principal. Rather, Isringhausen, the customer, canceled Lyons's authority. Moreover, defendant's termination of Lyons was an attempt to retain its customer and not an attempt to avoid paying Lyons's commission. Under these circumstances, the principles underpinning the procuring-cause doctrine are simply inapplicable.
In addition, summary disposition was inappropriate because the parties disputed the terms of the commissions contract. When analyzing a claim for posttermination commissions, the first step is to look at the parties' contract. Reed, 352 Mich. at 294, 89 N.W.2d 479. Contrary to plaintiff's argument, defendant presented evidence of the servicing efforts it provided to Isringhausen after Lyons's termination. Both MacCready and Packer testified during their depositions that Lyons was hired to be a full-service account manager and that Lyons's commission was contingent on his management of the account. Packer explained that "[m]anaging an account could entail many things, working with an engineering department, working with the quality department, working with the purchasing department, having the pulse of your customer, making sure the customer is happy." In contrast, Lyons testified that his commission was not contingent on servicing the account. Lyons acknowledged that he considered certain account-servicing tasks to be his responsibility, however, he maintained that those tasks were infrequent and had no impact on his commission. "Generally, when the terms of a contract are contested, the actual terms of the contract are to be determined by the jury...." Butterfield v. Metal Flow Corp., 185 Mich.App. 630, 636-637, 462 N.W.2d 815 (1990).
The servicing requirements of the parties' contract are important because they pertain to the issue of breach. A sales agent who commits the first substantial breach of a commissions contract is not entitled to recover posttermination commissions. See Butterfield, 185 Mich.App. at 637, 462 N.W.2d 815. If account servicing was a term of the contract, which the parties dispute, then being banned from Isringhausen's premises was a breach of the parties' contract because Lyons could no longer perform his servicing obligation. Depending on the significance of the servicing requirements, Lyons's ban could be considered a substantial breach of contract, in which case defendant would not be required to continue performing under the contract. See id. Thus, the trial court properly determined that summary disposition was inappropriate.
Pursuant to MCR 2.313(A), a party may move for an order compelling discovery. MCR 2.313(B)(2) sets forth various mechanisms by which a trial court may enforce a discovery order and sanction disobedient parties. MCR 2.313(B)(2) applies, however, only "[i]f a party ... fails to obey an order to provide or permit discovery...." Because plaintiff did not file a motion to compel production of the posttermination e-mails, the trial court never entered an order compelling their production.
Plaintiff argues that it had no opportunity to file a motion to compel discovery because it was unaware that the posttermination e-mails existed. A review of Packer's deposition testimony, however, shows otherwise. During his deposition, plaintiff's counsel questioned Packer at length regarding e-mails that had been exchanged after Lyons's termination and specifically asked whether such e-mails had been produced. Packer responded, "I produced a lot of e-mails and they were — I didn't differentiate as far as I recollect between before and after. You asked for all e-mails involved with the customer and I gave them to you as far as I recollect." Plaintiff's counsel further questioned Packer regarding posttermination e-mails, and Packer testified that such communications had occurred. Counsel asked Packer to produce the e-mails if he had not already done so, and Packer agreed to do so. Because Packer admitted that posttermination e-mails had been exchanged, plaintiff was aware of their existence. Therefore, the record does not support plaintiff's contention that it was unaware that the e-mail communications existed. Because plaintiff was aware of the communications, it could have filed a motion to compel their production.
In any event, even if the trial court erred by admitting Packer's testimony, the error does not warrant reversal. Error requiring reversal may not be predicated on an evidentiary ruling unless a substantial right of the party was affected. MRE 103(a); Craig v. Oakwood Hosp., 471 Mich. 67, 76, 684 N.W.2d 296 (2004). The trial court based its decision primarily on Lyons's testimony rather than on Packer's. Regarding whether the 2005 project was "on autopilot," the trial court stated, "I didn't think some of Mr. Packer's testimony was well enough documented to be convincing, but quite frankly I thought Mr. Lyons' testimony was...." The court continued:
Thus, even if the trial court erred by admitting Packer's testimony regarding posttermination e-mail communications, any error was harmless given the court's reliance on Lyons's testimony, which it found more convincing.
Plaintiff next argues that the trial court's judgment was against the great weight of the evidence because it was contrary to the court's determination that the procuring-cause doctrine was applicable, which plaintiff asserts the court determined in its ruling on plaintiff's motion for reconsideration. Plaintiff contends that the trial court's "about face" regarding the applicability of the procuring-cause doctrine contravened the "law of the case." "Whether the law of the case doctrine applies is a question of law that we review de novo." Shade v. Wright, 291 Mich.App. 17, 21, 805 N.W.2d 1 (2010). Further, under the great weight of the evidence standard, we defer to the trial court's findings of fact, which we will affirm unless the evidence clearly preponderates in the opposite direction. McIntosh v. McIntosh, 282 Mich.App. 471, 474, 768 N.W.2d 325 (2009).
Plaintiff's argument is somewhat difficult to understand. It appears that plaintiff is arguing that because the procuring-cause doctrine applies only when a contract is silent regarding posttermination sales commissions, and the trial court determined pretrial that the procuring-cause doctrine was applicable, it must have determined that the parties' contract was silent regarding posttermination commissions. Plaintiff contends that the trial court's subsequent determination that Lyons was entitled to a five percent commission only if he serviced the account contravened the court's previous ruling because it showed that the parties had reached an agreement regarding posttermination sales commissions.
The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue. Grievance Administrator v. Lopatin, 462 Mich. 235, 259-260, 612 N.W.2d 120 (2000). There was no ruling by an appellate court in this case. Rather, the trial court granted plaintiff's motion for reconsideration and reversed its previous decision granting summary disposition for defendant. "[A] trial court has unrestricted discretion to review its previous decision," and "the law of the case doctrine [does] not preclude [a] trial court from reversing its prior decision." Meyer & Anna Prentis Family Foundation, Inc. v. Barbara Ann Karmanos Cancer Institute, 266 Mich.App. 39, 52-53, 698 N.W.2d 900 (2005). Therefore, the law of the case doctrine is inapplicable.
In addition, plaintiff's argument that the trial court's judgment contravened its order granting plaintiff's motion for reconsideration lacks merit. In its initial order granting summary disposition in defendant's favor, the trial court determined that Lyons's servicing obligations were significant enough to render the procuring-cause doctrine inapplicable. The court also determined that the doctrine was inapplicable because Lyons committed the first material breach given the significance of his servicing obligations. Contrary to plaintiff's argument, in its decision granting plaintiff's motion for reconsideration, the trial court never determined that the procuring-cause doctrine was applicable to the facts of this case. Rather, the court simply determined that there was an issue of fact regarding Lyons's servicing obligations. Moreover, the court determined
Further, the trial court's findings were not against the great weight of the evidence. The court concluded, based on Lyons's own testimony, that Lyons was required to perform significant account servicing. Lyons testified that his involvement in the 2005 project was minimal, but he acknowledged that he worked with Isringhausen on pricing issues and was part of defendant's negotiation team, though he did not have authority to set prices. Lyons also dealt with some quality issues on behalf of defendant. He testified that at the time of his termination he went to Isringhausen's premises once a week. He maintained that although the majority of his time there was spent on new projects, about 25 percent of his time was dedicated to the 2005 project.
In addition to Lyons's testimony, the trial court relied on several e-mails that Lyons sent to defendant, which defendant characterized as trip logs. The e-mails generally discussed Lyons's trips to Isringhausen and summarized the issues with which he dealt when he was there. Several e-mails related to pricing discussions that Lyons had with Isringhausen personnel. Lyons also discussed with Isringhausen personnel implementing a cost reduction plan, quality issues, tooling repairs, and the preproduction part approval process.
From this evidence, the trial court concluded that Lyons was required to perform significant account servicing. The trial court reasoned, in pertinent part:
The trial court's findings were not against the great weight of the evidence.
Finally, plaintiff argues that the trial court misinterpreted the procuring-cause doctrine by focusing on duties that Lyons performed before his termination, instead of focusing on the servicing obligations that defendant was required to perform after Lyons's termination. Plaintiff's argument lacks merit. The trial court did not misinterpret the procuring-cause doctrine. Rather, it heard testimony and admitted evidence regarding Lyons's servicing obligations because such testimony was relevant to the obligations that defendant was required to perform after Lyons's termination. As previously discussed, the evidence did not clearly preponderate against the trial court's finding that Lyons was required to perform significant servicing obligations in order to receive his five percent commission. Accordingly, plaintiff's argument lacks merit.
Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
RONAYNE KRAUSE, P.J., and FORT HOOD, J., concurred with DONOFRIO, J.