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STATE OF MICHIGAN
COURT OF APPEALS


BRONSON METHODIST HOSPITAL, Plaintiff-Appellee, v STEVEN B. KURTZ, d/b/a MIDWEST COMMUNICATIONS, Defendant-Appellant.

UNPUBLISHED May 27, 2008

No. 274938 Kalamazoo Circuit Court LC No. 03-000054-CZ

Before: O'Connell, P.J., and Hoekstra and Smolenski, JJ. PER CURIAM. Following a jury trial, the trial court entered a final judgment in the amount of $820,373.52 in favor of plaintiff Bronson Methodist Hospital (Bronson). Defendant Steven B. Kurtz, d/b/a Midwest Communications, (Kurtz) appeals as of right the final judgment. Kurtz also appeals the trial court's order denying his motion for new trial or remittitur. Because the trial court did not err in denying Kurtz's motion for a directed verdict, nor did it abuse its discretion in refusing to instruct the jury on the statute of frauds or to amend question one of the special verdict form, in denying Kurtz's motion for new trial or remittitur, in setting aside the parties' stipulation regarding the verdict, and in granting case evaluation sanctions in the amount requested by Bronson, we affirm. I. Background In January 2001, Kurtz sold a 400-foot communications tower to Midwest Tower Partners for $700,000.1 Bronson sued Kurtz for the $700,000, the $50,075 Kurtz received in rental income from renting space on the tower to third parties, and the $5,000 Kurtz received for selling a smaller tower. In its complaint, Bronson asserted claims for unjust enrichment and breach of fiduciary duty.

1

When we refer to the "tower," we also refer to the equipment building and the related equipment, such as the generator. The sale of the tower closed in April 2001.

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In 1992, Art Littlefield, then responsible for communications at Bronson, expressed to Kurtz his desire for Bronson to have its own paging system. Kurtz subsequently submitted proposals to Bronson to build the 400-foot tower, and Bronson approved the expenditure of capital funds to establish its own paging system. In January 1995, Kurtz secured a 30-year lease on a 4.7-acre piece of land, on which he would build the tower. From November 1994 through December 1995, Kurtz sent invoices to Bronson relating to the construction of the tower, and Bronson paid the invoices. Although Kurtz had completed building the tower by December 1995, the tower was not yet operational by the summer of 1996. In August 1996, Bronson decided not to invest any more money into the paging system project. Thereafter, and over the next several years, Bronson, through Mike Way, who took over supervision of the paging system project after Littlefield's retirement in 1995, offered to sell the tower to Kurtz. Kurtz never agreed to buy the tower, but he informed Way that he knew of a potential buyer. Way authorized Kurtz to sell the tower on Bronson's behalf, and, according to Way, it was agreed that, upon the sale of the tower, Kurtz would pay Bronson. When Kurtz sold the tower to Midwest Tower Partners in 2001, he never informed Bronson of the sale, nor did he forward to Bronson the $700,000 he received from Midwest Tower Partners.2 According to Kurtz, he was entitled to the $700,000 he received from the sale of the tower, along with the $50,075 he received in rental income because, pursuant to his agreement with Littlefield, he owned the tower. He and Littlefield agreed that, in exchange for Bronson "fronting" the money to build the tower, Bronson would be able to place its equipment on the tower rent free. Bronson would save approximately $43,000 a year in paging service costs.
3

The jury, finding that Kurtz acted as Bronson's agent and that he violated a fiduciary duty arising from the agency relationship, awarded Bronson $700,000 in damages on the breach of fiduciary duty claim. The jury also awarded Bronson $55,075 in damages on the unjust enrichment claim. The trial court subsequently entered a final judgment against Kurtz in the amount of $820,373.52, which included case evaluation sanctions. II. Motion for Directed Verdict Kurtz claims that because Bronson presented insufficient evidence to establish that he was an agent of Bronson, the trial court erred in denying his motion for a directed verdict on the breach of fiduciary duty claim. This Court reviews de novo a trial court's ruling on a motion for a directed verdict. Coates v Bastian Bros, Inc, 276 Mich App 498, 502; 741 NW2d 539 (2007). The motion is properly granted if, after viewing the evidence in the light most favorable to the nonmoving party, there is no factual question on which reasonable minds could differ. Id. at 502-503.

2 3

The sale of the tower also included an assignment of the 30-year lease.

Kurtz denied that he ever had any conversations with Way about him selling the tower on Bronson's behalf.

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The existence of an agency relationship is a question of fact. Hertz Corp v Volvo Truck Corp, 210 Mich App 243, 246; 533 NW2d 15 (1995). An agency relationship arises when there is a manifestation by the principal that the agent may act on its behalf. Meretta v Peach, 195 Mich App 695, 697; 491 NW2d 278 (1992). The test whether an agency relationship has been created is whether the principal has a right to control the actions of the agent with respect to the entrusted matters. St Clair Intermediate School Dist v Intermediate Ed Ass'n/Michigan Ed Ass'n, 458 Mich 540, 557-558; 581 NW2d 707 (1998). The parties' designation of the relationship is not controlling. Van Pelt v Paull, 6 Mich App 618, 624; 150 NW2d 185 (1967). "`[I]f an act done by one person in behalf of another is in its essential nature one of agency, the one is the agent of such other notwithstanding he is not so called.'" Id., quoting 3 Am Jur 2d, Agency,

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