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STATE OF MICHIGAN
COURT OF APPEALS


PALM BEACH POLO HOLDINGS, INC., Plaintiff/CounterdefendantAppellant, v DAVID R. RYDER, Trustee of the GERTRUDE WINSLOW DENISON RESTATEMENT OF DECLARATION OF TRUST DATED 2/19/88, and DENNIS DELONG, Personal Representative of the Estate of FRANKLIN A. DENISON, SR., Defendants/CounterplaintiffsAppellees.

UNPUBLISHED July 25, 2006

No. 259730 Allegan Circuit Court LC No. 02-031349-CH

Before: Talbot, P.J., and Owens and Murray, JJ. PER CURIAM. Plaintiff, Palm Beach Polo Holdings, appeals as of right the trial court's grant of defendants' motions for summary disposition on the ground that plaintiff failed to present any genuine issues of material fact regarding whether defendants breached the terms of a lease contract between the parties. We affirm. I. Facts and Proceedings

Plaintiff was tenant and defendants were co-landlords under a lease for land in Saugatuck, Michigan, where plaintiff maintained a yacht-building facility. The lease provided plaintiff with an option for one renewal term of eight years, with the option being exercised by simply providing notice to defendants. Plaintiff exercised that option on March 6, 2000, leaving only the renewal amount of rent as a term to be determined under the renewal lease. Defendant Ryder began the negotiation process in May 2000. Ryder and plaintiff thereafter attempted to agree upon adjusted rent for the eight-year renewal term over the next twenty months. By an appraisal process specifically provided for in the lease, the parties eventually agreed that the renewal amount of rent would be $25,450 per year. By that time, however, in late 2001, plaintiff had failed to pay rent for the years 2000 through 2002, even though the lease provided that the tenant should continue to pay rent at the previous amount until a new rent was determined for the renewal.

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In March 2002, defendant Ryder filed a complaint in district court against plaintiff for non-payment of rent. Plaintiff responded with the instant action, alleging, among other causes of action that are irrelevant to this appeal, that Ryder breached the terms of the lease by delaying negotiations on the rent and that DeLong breached the terms of the lease by failing to take part in the rent negotiations. After discovery and extensive litigation by the parties, the trial court granted defendants' motions for summary disposition on the ground that there were no factual issues regarding plaintiff's breach of contract claim. II. Analysis

This Court reviews de novo a trial court's grant of summary disposition to determine whether the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). In reviewing an order granting summary disposition under MCR 2.116(C)(10), a reviewing court examines all relevant documentary evidence in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists on which reasonable minds could differ. Shirilla v Detroit, 208 Mich App 434, 437; 528 NW2d 763 (1995). Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Maiden, supra at 120. Plaintiff first argues on appeal that defendants breached the lease by failing to negotiate the new lease rate in good faith. We disagree. As it pertains to defendant Ryder, the documentary evidence in the record demonstrates that the rent negotiations were first mentioned in May 2000, by Ryder. Plaintiff responded in July 2000, and the negotiation process continued back and forth, without significant delay up until December 2001, when Ryder agreed to rent of $25,450. Plaintiff can point to no supporting documentary evidence that Ryder delayed negotiations in bad faith where both parties negotiated, sometimes quickly, sometimes slowly, and where both adhered to the process for determining rent as provided in the lease. Therefore, we agree with the trial court that there was no genuine issue of material fact regarding whether Ryder breached the lease contract with respect to negotiating rent for the eight-year renewal term. The trial court appropriately granted defendants' motions for summary disposition on the breach of contract claim.1

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Although plaintiff argued below that defendant DeLong's failure to participate in the negotiation process constituted a breach of the lease contract, plaintiff has failed to make that same argument on appeal. Further, plaintiff has failed to provide any authority for such a contention. An appellant's failure to properly address the merits of its assertion of error constitutes abandonment of the issue. Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Therefore, we conclude that plaintiff has abandoned the issue of DeLong's alleged breach of contract based on failure to negotiate during the rent process.

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In affirming the trial court's grant of summary disposition in favor of defendants, we find in the alternative that summary disposition was appropriate for defendants because, even if plaintiff could establish a question of material fact regarding breach of the lease contract, it cannot establish damages related to the breach. A party to a contract who is injured by another's breach is entitled to recover damages, but only for such injuries as are the "direct, natural, and proximate result of the breach." Farm Credit Svcs of Michigan's Heartland, PCA v Weldon, 232 Mich App 662, 679; 591 NW2d 438 (1998). Damages are not recoverable for injuries that are too remote from defendant's breach-causing conduct. 11 Corbin on Contracts (rev ed),

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Michigan Law