v No Oakland Circuit Court

Transcription

1 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S RAVE S CONSTRUCTION AND DEMOLITION, INC., and NORA SHEENA, UNPUBLISHED April 12, 2018 Plaintiffs/Counter-Defendants- Appellees, v No Oakland Circuit Court RANDY MERRILL and JAMES MERRILL, LC No CZ and Defendants/Counter-Plaintiffs- Appellants, ANGELO PALETTA, CHRISTOPHER ROTHROCK, and TONY & SONS, INC., Defendants. Before: GADOLA, P.J., and K. F. KELLY and RIORDAN, JJ. PER CURIAM. This case is before the Court for a second time. In Rave s Construction and Demolition, Inc v Randy Merrill, unpublished per curiam opinion of the Court of Appeals, issued January 7, 2016 (Docket No ) ( Rave s I ), this Court affirmed in part and vacated in part the trial court s final judgment that was the result of a four-day bench trial. Following remand from this Court, the trial court entered a final judgment in the amount of $20, against Randy Merrill (Randy) and James Merrill (James), and in favor of Rave s Construction and Demolition, Inc. (Rave s). The Merrills appeal the trial court s judgment as of right. Finding no errors warranting reversal, we affirm. I. BASIC FACTS AND PROCEDURAL HISTORY Our decision in Rave s I sets forth the relevant historical facts: This case arises out of the Merrills employment with Rave s. Prior to their employment with Rave s, the Merrills owned their own construction companies. The Merrills completed several large-scale projects for Kroger, generally involving remodeling entire stores. Rave s, itself a construction -1-

2 company, is owned by Nora Sheena (Nora). Its vice president and treasurer is Robert Sowles (Sowles), and Nora s husband, Ramiz Sheena (Ramiz), is Rave s chief financial officer. Before hiring the Merrills, Rave s completed small-scale projects for Kroger. But Kroger did not have confidence that Rave s could complete whole-store remodeling projects, and would not allow Rave s to bid on these larger projects without the Merrills involvment [sic]. On January 1, 2010, Rave s hired the Merrills to head a newly-established division, the General Contracting Division. This division s primary purpose was to bid and complete largescale remodeling projects for Kroger, although the division also bid and completed some small-scale projects. Pursuant to a written employment agreement, the Merrills were to receive a base salary of $65,000. They were also to receive a commission of 1.5% of the gross revenues received by Rave s from Kroger, so long as the Merrills were a procuring cause of the contract. Each month, the Merrills also each received $850 in the form of an allowance for health insurance, and an additional $850 as a vehicle allowance. The Merrills were responsible for tracking the division s profits, and provided monthly profit and loss statements to Rave s. In 2010, the division was profitable, at least according to the Merrills calculations. In January, 2011, the parties agreed to share the division s profits, with half going to the Merrills and the other half to Rave s. Randy provided a proposal to Rave s. Using the division s year-end profit and loss statement as a starting point, Randy determined that he and James were each entitled to an additional $26, Rave s accepted this determination. However, rather than pay this amount in a lump sum, Rave s divided it into equal weekly payments, which were added to the Merrills weekly paychecks throughout The parties arrangement broke down in 2012, after the Merrills refused Rave s request that they invest their commissions in the company. On April 6, 2012, the parties entered into an agreement, titled Employment Agreement. Under this agreement, the Merrills responsibilities were described as the [c]ompletion of all general contracting work, through receipt of final payment for Kroger store #622. The Merrills were to receive their base salary through June 9, 2012, and health and vehicle allowances in May and June, The Merrills were also to receive additional compensation in the form of commissions and a share of the General Contracting Division s monetary assets after its debts were paid. Much of the instant dispute centers on the profit-sharing arrangement reached in 2011 and the Merrills entitlement to additional compensation under the April 6, 2012 agreement. After a bench trial, the trial court concluded that the Merrills had failed to include certain expenses when calculating the General Contracting Division s profits. It added the expenses it found were not included and then awarded half of this amount to Rave s. Relying on a restriction contained in the January 1, 2010 employment agreement, the trial court concluded that the -2-

3 Merrills were not entitled to any additional commissions or profits beyond those already received. The trial court also concluded that the Merrills had failed to timely return certain documents and records to Rave s, and that the delay in providing these documents and records caused $1,500 in damages to Rave s. The trial court found that the Merrills had wrongfully retained certain laptop computers that were purchased by Rave s for the Merrills use, and awarded $2,220 in damages to compensate Rave s for these computers. The trial court rejected the remaining claims raised by the parties. The Merrills appeal from this judgment, and Rave s has filed a cross-appeal. [Rave s I, unpub op at 1-3 (footnoted omitted).] As set forth in greater detail below, this Court affirmed in part, vacated in part, and remanded for further proceedings after an extensive analysis on a range of issues. Rave s I, unpub op at 13. After receiving additional briefs, the trial court issued its opinion and order on February 14, It first concluded that the Merrills had improperly attempted to expand the record. The trial court agreed with Rave s that the Merrills should have included Nora s loans and the supervision fees for Ramiz and Sowles as part of the 2010 expenses. It further concluded that the balance of the loan in 2010 was $90,000. It declined to award interest on the loan. Once the trial court established that those expenses should have been factored into the General Contracting Division s ( GCD ) 2010 profits, it concluded that the Merrills owed Rave s $35, on Rave s accounting claim. The trial court then rejected the Merrills claim that they were owed commissions for minor jobs that occurred under either the 2010 or 2012 contracts. The trial court further concluded that, although the Merrills were entitled to commission on stores 649 and 651, the Merrills had failed to demonstrate the amount of damages with reasonable certainty. It awarded each a nominal $5 in commission. Both parties filed motions for reconsideration. The trial court issued an opinion and order on March 21, 2017, granting in part and denying in part the motions for reconsideration. The trial court rejected the Merrills contention that the trial court erred when it refused to consider additional documentary evidence. After making adjustments, the trial court concluded that Rave s was entitled to $15, on its accounting claim. The adjusted total judgment was $20, The Merrills now appeal as of right, arguing that the trial court should have allowed them to expand the record and that, as a result of not having all of the relevant evidence before it, the trial court erred in its factual findings on remand. II. FAILURE TO HOLD AN EVIDENTIARY HEARING OR RECEIVE ADDITIONAL EVIDENCE ON REMAND The Merrills argue that the trial court erred by failing to consider any additional evidence or holding a hearing on remand. Whether a trial court followed an appellate court s ruling on remand is a question of law that this Court reviews de novo. Schumacher v DNR, 275 Mich App 121, 127; 737 NW2d 782 (2007). -3-

4 The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court. McCormick v McCormick (On Remand), 221 Mich App 672, 679; 562 NW2d 504 (1997). It is the duty of the lower court or tribunal, on remand, to comply strictly with the mandate of the appellate court. Rodriguez v Gen Motors Corp, 204 Mich App 509, 514; 516 NW2d 105 (1994). Rave s I did not require the trial court to hold an evidentiary hearing or receive additional evidence from the parties. As such, the trial court did not err in refusing to consider the Merrills additional proofs on remand. In Rave s I, this Court agreed with the trial that the Merrills had overstated the GCD s 2010 profits; however, this Court further added that the trial court erred when calculating damages because the trial court included expenses not specifically attributable to the year Rave s I, unpub op at 5-6. As a result, the Court vacated the trial court s damages award and remanded the matter for further proceedings. The Court noted, [b]efore it may award damages on this count, the trial court must determine what expenses are attributable to the year 2010, and then, whether these expenses were omitted by the Merrills when calculating the division s 2010 profits. Id. at 6. The Merrills had argued that the loan and supervision fees should not have been included as expenses. Once again, the Rave s I Court believed more findings were necessary and observed: While the trial court found that these amounts were not included in Randy s calculations, it did not specifically address a more fundamental question whether these amounts should have been included in Randy s calculations as expenses. And ultimately, it appears that this question is the one truly disputed by the parties. Given that we must vacate the trial court s decision with respect to this count, the parties may address the issue in the trial court on remand. Nor is this Court the correct forum to resolve disputed factual questions such as these. Rather, such factual determinations, many of which would seem to turn on a determination of credibility, are properly left to the finder of fact. [Id. at 7.] The Court then proceeded to the Merrills claim that the trial court erred in finding that the Merrills were not entitled to commission: However, the question remains: precisely what amount in commissions are the Merrills entitled to receive? The April 6, 2012 agreement states that the Merrills are entitled to a commission from all Kroger general contracting jobs with the exception of store #622. Thus, it is clear that the Merrills are not entitled to a commission for the project at store 622. But the contract does not define the term Kroger general contracting job. Given the circumstances leading to the April 6, 2012 agreement, it may well be that the parties meant to refer only to the three projects that were underway at the time. But the language could also be read as referring to any and all general contracting jobs undertaken by Rave s for Kroger, a definition that, for obvious reasons, is preferred by the Merrills. The Merrills also now seek commissions on the smaller, minor capital projects, all but one of which were completed prior to April 6, The Merrills did not seek commissions on these projects until after signing the April 6, 2012 agreement, even though the prior agreement used similar language, any general contracting work obtained by [Rave s] for Kroger. Where the contract language is unclear -4-

5 or susceptible to multiple meanings, interpretation becomes a question of fact. Because the issue is a factual one that has yet to be addressed, we remand the matter to the trial court to determine what commissions the Merrills are entitled to receive under the April 6, 2012 agreement. [Id. at 11 (footnote omitted).] Finally, relevant to the current appeal, the Court addressed the Merrills claim that the trial court erred when it failed to award them a distribution of the GCD s monetary assets. Again, the matter would need to be addressed by the trial court: The trial court did not separately address this claim. It would seem that the trial court concluded that any sums potentially due under this language were also subsumed within the forfeiture clause of the January 1, 2010 agreement. As discussed, that clause was of no effect after the parties signed the April 6, 2012 agreement. However, the amount of damages due on this claim depends on a determination of the amount of money left in the General Contracting Division, if any, after its debts are paid. The parties submitted conflicting evidence on this point, and the conflict was not resolved by the trial court. Thus, the trial court must determine what additional sums, if any, are due to the Merrills under this provision of the April 6, 2012 agreement. [Id. at (footnote omitted).] It is highly significant that, although the Merrills complain that no evidentiary hearing was held, they never requested one. And, although the Merrills allege that the trial court relied solely on the parties briefs, it is obvious from the trial court s lengthy and detailed decision on remand that it clearly reviewed the record and made credibility determinations based on evidence that had already been submitted. Rave s I in no way mandated that the trial court conduct an evidentiary hearing or receive additional proofs. Instead, on remand, the trial court was to consider the evidence already in the record to parse out numbers and assess credibility. Recognizing this, the trial court rejected the Merrills s attempt to expand the record. The Merrills argue that the trial court could consider new evidence on remand without running afoul of the law of the case doctrine, citing two unpublished cases. Quite apart from the fact that the cases have no precedential value, MCR 7.215(C)(1), we do not find them to be persuasive. As the trial court in this case aptly noted, there is nothing new about the evidence that the Merrills attempted to present on remand. They had an opportunity to present the evidence at trial but did not. If the trial court had allowed the Merrills to expand the record by introducing additional exhibits, it follows that Rave s would have needed an opportunity to respond, resulting in another mini-trial. Rave s I did not imply that the existing record was insufficient to address the issues on remand; instead, the Court simply declined to make any credibility or factual determinations and properly left that for the trial court to consider in light of the Court s legal rulings. The trial court would have been within its right to consider additional evidence, at its discretion. The corollary to that is that the trial court likewise acted within its discretion when it declined to consider additional proofs. See Meadowlanes Ltd Dividend Housing Ass n v City of Holland, 176 Mich App 536, 542; 440 NW2d 71 (1989), rev d on other grounds 437 Mich 473 (1991). Nothing in Rave s I required the trial court to rehear any aspect of the case and the record as it existed permitted the trial court to follow the remand directives. -5-

6 III. EXPENSES DEDUCTED FROM 2010 PROFITS The Merrills argue that the trial court erred on remand when it concluded that Nora s loan and certain supervision fees were expenses of the GCD. We review a trial court s findings of fact in a bench trial for clear error and its conclusions of law de novo. Chelsea Inv Group LLC v Chelsea, 288 Mich App 239, 250; 792 NW2d 781 (2010). A finding is clearly erroneous if there is no evidentiary support for it or if this Court is left with a definite and firm conviction that a mistake has been made. Id. On remand, after addressing a number of expenses not relevant to this appeal, the trial court addressed Nora s loans and the supervision fees for Ramiz and Sowles: With respect to the funds contributed to the GCD by Nora, the Merrills argue that the contributions amounted to working capital and that no one intended for Nora to be reimbursed. In contrast, Rave s argues that the contributions amounted to loans that accrued interest. It is undisputed that Rave s agreed to provide working capital to the GCD so that it could pay subcontractors with GCD funds before it received final payment from Kroger. As a result of this agreement, Nora contributed money to the GCD. Although Nora agreed at trial that promissory notes memorializing loan agreements do not exist, this is not dispositive given the circumstances herein. More specifically, it is undisputed that the Merrills, Sowles, and Ramiz agreed that they would split profits between them in Thus, if Nora was not to be reimbursed, they all stood to collect money that was not actually earned by the GCD through the contract work. The Court does not think that it is reasonable to conclude that Nora, as Rave s sole shareholder, contributed funds to the GCD under these circumstances without expecting to be reimbursed or at the very least share in a portion of the profits. Importantly, Nora Sheena Personal Loan was listed in the Liabilities & Equities portion of the QuickBooks that detailed the GCD s profit between September 1, 2009 and September 6, Further, the Account QuickReport labeled Nora Sheena Personal Loan includes several memos entitled loan repayment. The record supports that the balance on the loan as of December 29, 2010 was $90,000, and the Court finds that amount should have been deducted when calculating the 2010 profits. Then, regarding supervision fees, the trial court ruled: With respect to the supervision fees, Ramiz and Sowles testified that the parties agreed that they would each be compensated $1,700 each month in exchange for assisting with run[ning] things and supervision. Randy denied that Ramiz or Sowles engaged in any supervision of the GCD employees during any of the times in question. However, he acknowledged that Ramiz and Sowles each collected $1,700 for four months in 2011 and that these amounts were labeled supervision fees in the books. Although there is no evidence to support that Ramiz or Sowles collected the supervision fees in 2010, they testified that -6-

7 they did not do so because the GCD needed cash flow. This is consistent with Randy s testimony that there was always a shortage of capital. On remand, the Merrills argue that what was termed supervision fees in 2011 actually amounted to profit distributions. However, the Court notes that the supervision fees amounted to $1,700 each month, which is the same amount that Randy and James collected each month for automobile allowances and health insurance. In this Court s opinion, the fact that the Merrills, Ramiz, and Sowles were all to collect $1,700 each month on top of their salaries supports that Ramiz and Sowles did not collect random profit distributions in 2011 as the Merrills allege on remand. Supervision fees in the amount of $40,800 should have been deducted from the 2010 profits. Contrary to the Merrills contention, there was evidentiary support for the trial court s findings on remand. We are not left with a definite and firm conviction that a mistake has been made. As discussed in detail by the trial court, there was a sufficient basis to include the loan and supervision fees as expenses for IV. COMMISSIONS The Merrills argue that the trial court erred on remand when it concluded that the parties April 6, 2012 agreement provided that the Merrills were to be paid commission on only major capital jobs. They further argued that the trial court erred in finding that the Merrills failed to present sufficient evidence of the amount of commissions owed. In Rave s I, this Court addressed the Merrills claim that they were entitled to additional commission. After determining that the trial court erred in finding that no additional commission was owed because such commission was based on the Merrills continued employment under the 2010 agreement, this Court added: However, the question remains: precisely what amount in commissions are the Merrills entitled to receive? The April 6, 2012 agreement states that the Merrills are entitled to a commission from all Kroger general contracting jobs with the exception of store #622. Thus, it is clear that the Merrills are not entitled to a commission for the project at store 622. But the contract does not define the term Kroger general contracting job. Given the circumstances leading to the April 6, 2012 agreement, it may well be that the parties meant to refer only to the three projects that were underway at the time. But the language could also be read as referring to any and all general contracting jobs undertaken by Rave s for Kroger, a definition that, for obvious reasons, is preferred by the Merrills. The Merrills also now seek commissions on the smaller, minor capital projects, all but one of which were completed prior to April 6, The Merrills did not seek commissions on these projects until after signing the April 6, 2012 agreement, even though the prior agreement used similar language, any general contracting work obtained by [Rave s] for Kroger. Where the contract language is unclear or susceptible to multiple meanings, interpretation becomes a question of fact. Because the issue is a factual one that has yet to be addressed, we remand the -7-

8 matter to the trial court to determine what commissions the Merrills are entitled to receive under the April 6, 2012 agreement. [Rave s I, unpub op at 11 (footnote omitted).] Contrary to the Merrills contention, the trial court did not read an ambiguity into an unambiguous contract; instead, our decision in Rave s I held that there was an ambiguity, which required the trial court, as finder of fact, to resolve the ambiguity. On remand, the trial court discussed at length the parties positions on this issue and concluded that no commissions were due for minor capital jobs: Here, the April 2012 agreement provided that the Merrills would complete all general contracting work, through receipt of final payment for Kroger store #622. The agreement further provided the base salaries that Randy and James would collect from the inception of the contract through June 9, With respect to additional compensation, the agreement indicated the following: 3% of the gross revenues (1.5% each to Randy Merrill and Jim Merrill) from Kroger on all general contracting jobs with the exception of store #622. When final payment is received from all Kroger general contracting jobs including store #622, all money owed to Rave s Construction from the general contracting division will be paid first, including but not limited to taxes and insurance liabilities. Whatever money is left will be divided equally (25% each to Randy Merrill and Jim Merrill). According to the Merrills, the plain language of this provision establishes that they are entitled to receive a three percent commission on the gross revenues (1.5% each to Randy Merrill and Jim Merrill) from Kroger on all general contracting jobs-including minor capital jobs. The Merrills argue that this agreement also existed prior to the April 6, 2012 Employment agreement. To support this, the Merrills point to the January 2010 Employment Agreement, which indicates the following: Employee shall be eligible for a commission, over and above his Base Salary, if he is a procuring cause of any general contracting work obtained by Company for The Kroger Company. In the event Employee is a procuring cause of a general contracting contract obtained by Company for The Kroger Company, Company shall pay the Employee a commission equal to 1.5% of the gross revenues received by Company from The Kroger Company on that contract.... Employee shall forfeit any commission to which [he] was otherwise entitled if he is not employed with Company at the time Company would be making the commission payment. * * * Clearly, the January 2010 contract does not indicate whether any general contracting work includes both minor and major capital jobs. The use of the -8-

9 words any before general contracting work tends to suggest that the parties intended that the Merrills would be entitled to commission on every general contracting job regardless of the size of the project. However, this Court does not believe that use of the word any in the January 2010 contract establishes that the Merrills would be automatically entitled to commission on all jobs. The law is clear that where the language of the contract is ambiguous, the court can look to such extrinsic evidence as the parties conduct, the statements of its representatives, and past practice to aid in interpretation. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 470 (2003). Here, there is entirely no evidence that the Merrills were paid commission on minor capital jobs or that they attempted to have commission checks executed by Rave s on minor capital jobs. This is especially telling given that, when Kroger made payments, the Merrills calculated their commission and presented their commission checks to Rave s to be executed. Nora expressly testified at trial that the Merrills never submitted a bill for minor capital jobs. She further testified that they never mentioned being paid commission on minor capital jobs any time before September 2012, which was the month that they were fired. Further, the record establishes that the three percent commission that the Merrills received when the relationship with Rave s first began was paid to Kroger in order to satisfy the $100,000 judgment that Kroger had obtained against the Merrills. Randy testified at trial that he only paid Kroger commission on the major capital jobs. After Kroger was paid in full, the Merrills continued to collect the three percent commissions on the major capital jobs. Given that the record supports that the commission was set up so that the Merrills could compensate Kroger, and Kroger was only paid commission on major capital jobs, it reasonably follows that the parties did not intend for the Merrills to receive commission on all jobs. The Court finds that the Merrills are [not] entitled to commissions on minor capital jobs pursuant to the January 2010 contract.[ 1 ] The same is true of the April 2012 contract. The plain language of that contract supports that the parties were contemplating the end of their business relationship and that Rave s wanted the Merrills to complete all general contracting work, through receipt of final payment for Kroger store #622 in exchange for providing the Merrills a base salary and other incentives. Trial testimony from Sowles and Randy establishes that, at the time that the April 2012 contract was executed, the only remaining jobs were for Kroger stores 651, 649, 1 On motions for reconsideration the trial court declined to correct typographical errors: This Court does not believe that the purpose of a motion for reconsideration is to move a court to redraft portions of opinions because a party believes that it contains typographical errors. (3/ Opinion, p 3.) Still, the trial court clearly intended that the Merrills were not entitled to commissions on minor capital jobs. -9-

10 and 622. Sowles specifically testified that the April 2012 agreement only related to those stores. As argued by Rave s, there is entirely no language in the contract to support that the parties were considering past minor capital jobs-especially given that they were clearly creating the contract in contemplation of the Merrills completing the three remaining projects before leaving the GCD. Accordingly, the Court finds that the Merrills were only entitled to receive commissions on stores 651 and 649 under the April 2012 agreement. Again, contrary to the Merrills contention, there was evidentiary support for the trial court s findings on remand. We are not left with a definite and firm conviction that a mistake has been made. There was a sufficient basis for the trial court to conclude that the parties only intended to include commission for major capital work. The Merrills only reimbursed Kroger based on major capital projects and the Merrills fully paid their liability to Kroger in late In April 2012, the parties executed another written agreement, this time addressing the eventual closing of the GCD. Under the agreement, which was particular to three stores, the Merrills would receive 3% of the gross revenues (1.5% each to Randy Merrill and Jim Merrill) from Kroger on all general contracting jobs with the exception of store #622. Only after the parties relationship deteriorated did the Merrills claim to be owed commission on minor capital work. Randy claimed that approximately $49,000 in commissions for other projects were past due. By September 2012, the Merrills were attempting to reach back and receive commissions on minor capital projects, even though they had only sought commissions on major capital projects in the past. The trial court did not clearly err when it determined that the parties conduct clearly indicated that the Merrills receive commission for only capital projects. After concluding that the Merrills were not entitled to commission on minor capital projects, the trial court then turned its attention to what amount, if any, the Merrills were entitled to under the April 2012 agreement: With respect to how much commission the Merrills are entitled to, they argue that they are entitled to $60, To support this, they rely on Exhibit X and Exhibit Z, which are attached to their brief. However, those exhibits were not admitted at trial and therefore will not be considered on remand. After reviewing the record, the Court finds that the Merrills have presented no reliable evidence regarding the commission to which they are entitled with respect to stores 649 and 651. Although trial testimony established that the Merrills sought to obtain $6, worth of commission on those projects before they were terminated in 2012, no evidence was presented at trial to support that $6, was the accurate amount. In fact, it was undisputed at trial that Rave s withheld the commissions from the Merrills, thereby supporting that they did not concede that the checks contained the proper amounts. Clearly, the Merrills do believe that $6, is the proper amount. In sum, the Merrills, as the parties asserting a breach of contract, have not met their burden of proving their damages with reasonable certainty. See Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512 (2003). Therefore, because -10-

11 the Court finds that the Merrills are entitled to some commission but lacks reliable evidence to determine how much, the Court finds that they are entitled to $5.00 each. Again, as previously discussed, the trial court did not err in failing to receive additional proofs on remand. V. PROFITS Finally, the Merrills argue that the trial court erred on remand when it concluded that there were no profits remaining in the GCD. In Rave s I, this Court addressed the Merrills claim that the trial court erred when it failed to award them a distribution of the GCD s monetary assets: The trial court did not separately address this claim. It would seem that the trial court concluded that any sums potentially due under this language were also subsumed within the forfeiture clause of the January 1, 2010 agreement. As discussed, that clause was of no effect after the parties signed the April 6, 2012 agreement. However, the amount of damages due on this claim depends on a determination of the amount of money left in the General Contracting Division, if any, after its debts are paid. The parties submitted conflicting evidence on this point, and the conflict was not resolved by the trial court. Thus, the trial court must determine what additional sums, if any, are due to the Merrills under this provision of the April 6, 2012 agreement. [Rave s I, unpub op at (footnote omitted).] On remand, the trial court had to decide whether any assets remained in the GCD and whether the Merrills were entitled to a distribution: [T]he Merrills argue that, pursuant to the April 2012 agreement, they are entitled to $172,383.07, which they allege amounts to half of the profit remaining in the GCD. However, because the Merrills have submitted a multitude of documentation that was not introduced at trial, the analysis contained in their brief is not any assistance to this Court when determining whether there was profit remaining in the GCD after the final payments were made by Kroger on the above-mentioned projects. Thus, the Merrills have not met their burden of proving their damages with reasonable certainty. See Krol, 256 Mich App at 512. This Court notes that Rave s argues that [n]o monetary assets were left in the GC division after all debts were paid... To support this, Rave s relies on Trial Exhibit 32. Even after reviewing Exhibit 32 and the remaining documentation, this Court is unable to discern the exact financial state of the GCD after it was shut down. Regardless, the documentation supports that there were no assets remaining in the GCD after it was shut down. Because credible evidence supports that no monetary assets remained in the GCD after its debts were paid, the Merrills are not entitled to any compensation. -11-

12 Again, contrary to the Merrills contention, there was evidentiary support for the trial court s findings on remand. We are not left with a definite and firm conviction that a mistake has been made. There was a sufficient basis for the trial court to conclude that there were no remaining assets in the GCD. And, again, as previously discussed, the trial court did not err in failing to receive additional proofs on remand. Affirmed. As the prevailing party, Rave s may tax costs. MCR /s/ Michael F. Gadola /s/ Kirsten Frank Kelly /s/ Michael J. Riordan -12-