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Where the defendant in a commercial landlord-tenant dispute has claimed that the parties mutually agreed to modify the contract and release the defendant from any potential liability, there is a genuine issue of material fact as to whether the parties mutually agreed to modify the lease.
“The present cause of action arises out of a lease of commercial property located in Farmington, Michigan. Pursuant to a Shopping Center Lease (the ‘Lease’) executed on March 13, 2007, and a series of assignments and amendments, Farmington Center Michigan, LLC (the ‘Plaintiff’) was the landlord of tenant Adnan Al-Dais (the ‘Defendant’) who operated Lazizo Restaurant at the property. In October 2020, the Defendant purported to sell the restaurant and assign his interest in the Lease to the Third-Party Defendants, Mukthar Nasser El-Matari and Ibrahim Alwahabi (the ‘Third Party Defendants’). The Plaintiff alleges that the Defendant breached the Lease by failing to pay rent and other costs when due, failing to keep the leased premises open during business hours, purporting to assign the Lease without obtaining the Plaintiff’s consent, and permitting someone other than the lessee to occupy the premises without the Plaintiff’s written consent. In particular, the Plaintiff alleges one count of Breach of Shopping Center Lease. In turn, the Defendant filed a Counter and Third-Party Complaint for Breach of Contract (as to El-Martari and Alwahabi) (Count I); Estoppel (as to Farmington) (Count II); Breach of Avoidable Consequences Doctrine (as to Farmington) (Count III); and Silent Misrepresentation (as to Farmington) (Count IV). The Third-Party Defendants filed a Counter Third-Party Complaint for Intentional Fraud and Misrepresentation (Count I), Promissory Estoppel (Count II) and Tortious Interference with a Business Relationship or Expectancy (Count III).
“Before the Court is the Plaintiff’s Motion for Summary Disposition Pursuant to MCR 2.116(C)(10) and Third-Party Defendant’s Motion for Summary Disposition Pursuant to MCR 2.116(C)(10). Oral argument is dispensed as it would not assist the Court in its decision-making process.
“At stake is whether summary disposition of the Defendant’s affirmative defense of mutual modification and release is warranted? Because there is a genuine issue of material fact for trial, the answer is ‘no.’
“Also at stake is whether summary disposition of the Plaintiff’s claim due to lack of consideration is warranted? Because there is a genuine issue of material fact for trial, the answer is ‘no.’
“Additionally at stake is whether the doctrine of collateral estoppel precludes the Defendant from denying that the Lease is enforceable against him and that he breached the Lease? Because enforceability of the Lease against the Defendant has been litigated and determined by a valid and final judgment after the Defendant had a full and fair opportunity to litigate the issue, the Defendant is collaterally estopped from denying that the Lease and its written amendments are enforceable against him and denying that he breached the Lease.
“Further at stake is whether summary disposition of the Defendant’s affirmative defense of mitigation is warranted? Because the reasonableness of the Plaintiff’s mitigation efforts is genuine issue of material fact for trial, the answer is ‘no.’
“Finally, at stake is whether summary disposition of the counter third-party claim for Intentional Fraud and Misrepresentation (Count I) is warranted? Because the Third-Party Defendants have failed to support their argument with any evidence, the answer is ‘no.’
“In light of the foregoing Opinion, Plaintiff’s Motion for Summary Disposition Pursuant to MCR 2.116(C)(10) is GRANTED, IN PART. The Defendant is collaterally estopped from denying that the Lease and its written amendments are enforceable against him and denying that he breached the Lease.
“Third-Party Defendant’s Motion for Summary Disposition Pursuant to MCR 2.116(C)(10) is DENIED. The Defendant’s request for relief under MCR 2.116(I)(2) is also denied.”
