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Buck v. Davis Restoration11/25/2003
UNPUBLISHED
Plaintiff, Darren Buck, appeals the trial court's grant of summary disposition to defendant, Paul W. Davis Systems, Inc., n/k/a Paul Davis Restoration, Inc. (PDRI). We affirm.
I. Facts and Procedural History
In February 1992, D.E.L.T. Corporation, d/b/a Paul Davis Systems of Lansing, Michigan (D.E.L.T.), entered a franchise agreement with PDRI to operate a PDRI insurance restoration franchise in Lansing. D.E.L.T. entered another franchise agreement with PDRI in December 1996, to operate a PDRI franchise in Grand Rapids. In April 1993, Buck signed an associate employee agreement with D.E.L.T. Corporation and he later worked as the operations manager for D.E.L.T. in the Grand Rapids franchise territory.
In 1998, D.E.L.T. offered Buck shares in D.E.L.T. Corporation. Pursuant to the franchise agreement with PDRI, D.E.L.T. had to obtain PDRI's consent before transferring to Buck partial ownership of the business. On July 1, 1998, PDRI, D.E.L.T. and Buck entered an agreement and consent to transfer. Among other provisions, the agreement states that Buck is bound by the two-year non-competition provision and dispute resolution clause in the PDRI franchise agreement. The dispute resolution provision states that claims arising out of the contract shall be settled by arbitration procedures set forth in the PDRI operations manual.
Buck resigned from D.E.L.T. in April 2000 and began to work for a competing business, Sunrise Company, Inc., an insurance restoration firm in Lansing. On May 3, 2000, PDRI's attorney, Michael Stokes, sent a cease and desist letter to Buck to notify him that he was in violation of the non-competition provision of his contract. Stokes requested that Buck respond within ten days with a statement that he will no longer engage in a competing business. Two days later, D.E.L.T. filed an action against Buck for breach of contract and injunctive relief in Ingham Circuit Court. Thereafter, PDRI president, Scott Baker, called Buck and asked if he would be interested in a division general manager position with PDRI. The parties disagree about whether Buck immediately declined the position, but no further communication occurred between PDRI and Buck until July 2000, when PDRI filed an arbitration claim against Buck for violation of the non-competition provision.
In August 2000, Buck's attorney wrote to the arbitration committee and sought to dismiss the proceedings. Buck alleged that the arbitration procedures were unfair and the arbitration panel was biased in favor of PDRI. The arbitration panel declined to dismiss the claims. Buck filed his complaint in this case on August 29, 2000, and requested a declaratory judgment that the arbitration agreement violates procedural fairness and is, therefore, invalid and unenforceable. Buck also filed an ex-parte motion for a preliminary injunction to prevent the continuation of the arbitration. The trial court granted Buck's motion on August 31, 2000. Thereafter, the trial court dismissed Buck's claims pursuant to PDRI's motion for summary disposition, but the court allowed Buck to file an amended complaint. Plaintiff filed his amended complaint on May 2, 2001, and alleged that, through its participation in the D.E.L.T. lawsuit, PDRI waived its contractual right to arbitrate. In response, PDRI filed a motion for summary disposition under MCR 2.116(C)(10), and the trial court granted the motion in a written order filed on April 8, 2002.
II. Analysis
A. Standard of Review and Applicable Law
As this Court explained in Mino v Clio School Dist , 255 Mich App 60, 67-68; 661 NW2d 586 (2003):
A trial court's grant or denial of summ
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