Spectrum Cubic, Inc. v. Grant Products de Mexico, S.A. de C.V.

Filing 52

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

SPECTRUM CUBIC, INC.,
Plaintiff,
v.

Case No. 1:11-CV-308

GRANT PRODUCTS DE MEXICO,
S.A. DE C.V.,

HON. GORDON J. QUIST

Defendant.
__________________________________/

OPINION
Plaintiff, Spectrum Cubic, Inc. (SCI), has sued Defendant, Grant Products de Mexico, S.A.
de C.V. (Grant), seeking to recover $412,568.98 from Grant. SCI alleges claims for account stated,
open account, breach of contract, and unjust enrichment/quantum meruit. In response, Grant has
filed a one-count Counterclaim for tortious interference with contractual and business relationships
and expectancies. SCI has moved for summary judgment on its claims for account stated and open
account and on Grant’s counterclaim. Although the parties have requested oral argument, the Court
concludes that oral argument is unnecessary.
For the reasons set forth below, the Court will grant SCI’s motion in its entirety and enter
judgment in favor of SCI in the amount of $412,568.98.
I. BACKGROUND
SCI is a Michigan corporation with its principal place of business in Michigan. SCI provides
hydrographic film and activator for use in producing parts for various industries, including
automobile steering wheels. (Bassett Aff. ¶ 5, Pl.’s Br. Supp. Mot. Summ. J. Ex. 1.) SCI also
provides related services in the form of consulting, management, and engineering support. (Id.)

Prior to January 1, 2010, SCI provided these goods and services to Spectrum Trim, LLC, Spectrum
Texas, Inc., and Premier Trim, LLC (collectively referred to as the Spectrum Group), all of which
were located in Brownsville, Texas. (Id.)
Effective January 1, 2010, the Spectrum Group entered into a Joint Venture Agreement
(JVA) with Grant, a Mexican corporation, and Grupo Empresarial Seser, S.A. de C.V. (Seser),
another Mexican corporation, for the purpose of producing and selling automobile steering wheels.
(Id.; JVA Art. II, § 2.01, Bassett Aff. Ex. A.) Grant was given exclusive control of the joint
venture’s business, (id. § 2.02), and to that end, “purchased all of the business, assets, properties,
contractual rights, goodwill, going concern value, rights and claims of the Spectrum Group related
to the Spectrum Group’s production and/or marketing of steering wheels, in any manner whatsoever,
worldwide.” (Counterclaim ¶ 16.) Pursuant to the JVA, Grant agreed to assume liabilities of the
Spectrum Group. (JVA Art. III, § 3.03). After the joint venture was formed, SCI continued to
provide Grant the same goods and services it had provided to the Spectrum Group before the joint
venture. (Bassett Aff. ¶ 6; Triick Aff. ¶ 23 & Ex. Q, Pl.’s Br. Supp. Mot. Summ. J. Ex. 2.) In
addition, Grant agreed to pay SCI an annual fee of $200,000.00, or $16,666.67 per month, for
management services. (Bassett Aff. ¶ 7; Trick Aff. ¶ 5 & Exs. F, I, K & l; Wilder Aff. ¶ 5, Pl.’s Br.
Supp. Mot. Summ. J. ¶ 5.) These services were provided primarily by two SCI employees, Eric
Martz and Rob Wilder.1 (Triick Aff. ¶ 5 Summ. J. Ex. 2; Wilder Aff. ¶¶ 5–6.)
In all, SCI billed Grant $763,398.86 for goods and services (including $117,475.16 that
Spectrum Texas owed SCI for goods or services furnished prior to the joint venture). (Triick Aff.
¶¶ 7, 9, 10.) Between July 9, 2010, and December 22, 2010, Grant made five payments to SCI

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During the term of the joint venture, W ilder served as Grant’s acting Vice President of Engineering. (Segovia
Aff. ¶ 6, Def.’s Br. Opp’n Ex. B.) Martz was also an employee of Grant during this time. (Id.)

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totaling $350,829.88, including two payments of $5,207.44, a payment of $10,415.00, a payment
of $60,000.00, and a payment of $270,000.00. (Trick Aff. ¶¶ 8, 20, 21, 23 & Exs. A, N, O & P.)
On December 15, 2010, Kevin Bassett, SCI’s President, sent Grant’s President, Julio
Segovia, a letter advising Segovia that Grant owed SCI $682,389.56 as of November 30, 2010.
(Bassett Aff. ¶ 9 & Ex. B.) The letter notified Segovia that SCI would not supply additional
products or services to Grant unless Grant paid the balance due in full. (Id.) On December 16,
2010, Bassett sent Segovia another letter reminding him that Grant owed SCI $682,389.56 and that
this amount included the management services of Eric Martz and Rob Wilder. (Id. ¶ 10 & Ex. C.)
Segovia responded to Bassett’s letters on December 17, 2010, advising that Grant would be paying
SCI “270,000 dollars on Monday of next week, and during the second week of January of next year,
[would] pay 250,000 dollars, with the rest on the second week of February of next year.” (Id. ¶ 11
& Ex. D.) Grant made the initial $270,000.00 payment, (id. ¶¶ 12–13 & Ex. E), but failed to make
any further payment.
In the fall of 2010, Grant decided to move certain production lines from its location in
Brownsville, Texas, to a new facility in Matamoros, Mexico. (Counterclaim ¶ 26.) Grant could not
proceed with the move without approval from its customer, Autoliv, Inc. (Id. ¶¶ 21, 28.) Autoliv
denied approval of the transfer as of December 9, 2010, based on a number of considerations,
including the lack of quality systems in place at the Matamoros facility. (Senkin Dep. at 23–24,
Pl.’s Br. Supp. Mot. Summ. J. Ex. 6.)
In December 2010, Sesser exercised its call option under the JVA to purchase all of the
Spectrum Group’s shares of Grant. (Bassett Aff. Ex. F.) Subsequently, in January 2011, Seser
served a Notice of Arbitration on the Spectrum Group pursuant to an arbitration provision in the
JVA. (Bassett Aff. Ex. G.)

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II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. Material facts are facts
which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable
jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but
may grant summary judgment when “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th
Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.
Ct. 1348, 1356 (1986)).
III. DISCUSSION
A.

Spectrum’s Claims for Account Stated and Open Account2

Spectrum contends that it is entitled to recover the sum of $412,568.98 from Grant based on
its theories of account stated and open account.
A claim of account stated arises from a “balance struck between the parties on a settlement;
and where a plaintiff is able to show that the mutual dealings which have occurred between the
parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that
balance.” Thomasma v. Carpenter, 175 Mich. 428, 437, 141 N.W. 559, 561 (1913). To show that
charges or fees have become an account stated, a creditor must prove that the debtor either expressly
accepted the charges by paying them or failed to object to them within a reasonable time. See
2

The parties cite Michigan law in their briefs and do not contend that SCI’s claims or Grant’s counterclaim are
governed by the law of any jurisdiction other than Michigan. Therefore, the Court will adhere to its usual practice of
applying Michigan law in diversity cases. See Rupert v. Daggett, 695 F.3d 417, 423 (6th Cir. 2012) (“Federal courts
sitting in diversity generally apply federal procedural rules and the substantive law of the forum state.”)

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Keywell & Rosenfeld v. Bithell, 254 Mich. App. 300, 331, 657 N.W.2d 759, 777 (2002) (per curiam).
In contrast, an open account “‘means an indebtedness subject to future adjustment, and which may
be reduced or modified by proof.’” Siciliano v. Mueller, No. 222258, 2001 WL 1699801, at *2
(Mich. Ct. App. Dec. 28, 2001) (per curiam) (quoting Black’s Law Dictionary (6th ed.) at 18.); see
also A. Krolik & Co. v. Ossowski, 213 Mich. 1, 7, 180 N.W. 499, 501 (1920) (“An open account is
one which consists of a series of transactions and is continuous or current, and not closed or stated.”)
(citation omitted).
“The conversion of an open account into an account stated, is an operation by which
the parties assent to a sum as the correct balance due from one to the other; and
whether this operation has been performed or not, in any instance, must depend upon
the facts. That it has taken place, may appear by evidence of an express
understanding, or of words and acts, and the necessary and proper inferences from
them. When accomplished, it does not necessarily exclude all inquiry into the
rectitude of the account.”
Kaunitz v. Wheeler, 344 Mich. 181, 185, 73 N.W.2d 263, 365 (1955) (italics in original) (quoting
White v. Campbell, 25 Mich. 463, 468 (1872)). “Accounts stated may be attacked upon the ground
of fraud or mistake, but the burden in such cases is upon the attacking party.” Unifund CCR
Partners v. Riley, No. 287599, 2010 WL 571829, at *3 (Mich. Ct. App. Feb. 18, 2010) (per curiam)
(internal quotation marks omitted).
As support for its motion for summary judgment, SCI presents evidence that: (1) Grant
agreed to assume a preexisting debt from Spectrum Texas (a member of the Spectrum Group) to SCI
in the amount of $117,475.16; (2) Grant agreed to pay SCI a monthly management fee of
$16,667.00; (3) Grant agreed to pay SCI a weekly fee of $1,731.00 (actually billed at $1,361.30) for
Eric Martz’s wages; and (4) SCI provided materials to Grant after the joint venture began. SCI’s
evidence that Grant agreed to assume the Spectrum Texas payable to SCI includes:
•

A January 15, 2010 email from Gina Triick, SCI’s Chief Financial Officer, to
Bernardo Jimenez, Grant’s Chief Financial Officer, attaching an accounts receivable
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aging report for Spectrum Texas showing $117,475.16 owed to SCI as of December
31, 2009. (Triick Aff. Ex. C.)
•

A March 25, 2010 email from Triick to Marco Yee, Grant’s Controller, attaching an
Unpaid Bills Detail for Spectrum Texas, showing $118,321.76 owing to SCI through
the end of 2009.3 (Id. Ex. D.)

•

An April 21, 2010 email from Yee to Triick attaching an Accounts Payable Aging
report for Grant showing that $118,321.75 of the $273,028.18 Grant owed SCI as of
April 20, 2010 was more than 90 days old. (Id. Ex. J.)

SCI’s evidence that Grant agreed to pay SCI a monthly management fee and pay Martz’s and
Wilder’s expenses includes:
•

A December 23, 2009 email from Triick to Yee attaching a thirteen-week cash flow
report including a monthly management fee of $16,667.00 and a weekly consulting
fee of $1,731.00 for Martz. (Id. Ex. E.)

•

A February 11, 2010 email from Triick to Jimenez attaching an expense report for
Grant that includes the January expense for Martz’s services in the amount of
$6,806.44 and SCI’s monthly management fee of $16,667.00. (Id. Ex. F.)

•

An April 27, 2010 email from Triick to Yee attaching an income statement showing
a monthly management fee of $16,666.86 to “Spectrum” and Martz’s monthly wages
of $6,806.44. (Id. Ex. H.)

•

April 26, 2010 and May 10, 2010 emails from Triick to Yee attaching invoices from
SCI to Grant for March and April, 2010, for SCI’s monthly management fee of
$16,666.67, $5,445.15 for Martz’s weekly wages, and amounts for miscellaneous
expenses. (Id. Exs. I and K.)

•

An April 21, 2010 email from Yee to Triick, Segovia, and Wilder attaching an
Accounts Payable Aging report for Grant showing that Grant owed SCI $273,028.18
as of April 21, 2010. (Id. Ex. J.)

•

A July 7, 2010 email from Yee to Jimenez, Bassett, Triick, Segovia, and Wilder
stating, “[s]tarting this week, we are paying Spectrum Cubic $5,207.44 on a weekly
basis (Consulting fee’s [sic] and Eric [sic] Wages to treat these concepts as Payroll),

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The Court notes a discrepancy between the number Triick cites in her affidavit and the number disclosed in
the Unpaid Bills Detail attached to Triick’s affidavit as Exhibit D. Triick states that the detail shows $117,475.16 as
owing to SCI, (Triick Aff. ¶ 9), while Exhibit D, according to the Court’s math, shows $118,321.76 owing to SCI. The
Court also notes that the Grant Accounts Payable Aging report attached to Triick’s affidavit as Exhibit J shows that of
the $273,028.18 Grant owed to SCI as of April 20, 2010, $118,321.75 was more than 90 days old, which is consistent
with the amount set forth in Exhibit D.

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the remaining concepts should be paid according to cash availability.” (Id. Ex. L.)
On July 8, 2010, Yee emailed Triick requesting SCI’s bank information so that he
could “start wiring Consulting and Wages weekly” to SCI. Triick provided the bank
information to Yee on July 9, 2010. (Id. Ex. M.) That same day, Grant wired SCI
$5,207.44. (Id. Ex. N.)
•

Copies of checks from Grant to SCI dated July 22, 2010, and July 30, 2010, in the
amounts of $5,207.44 and $10,415.00, respectively. (Id. Ex. O.)

•

An August 10, 2010 email from Yee to Bassett, Wilder, Segovia, Triick, Jimenez,
and others attaching a Cash Flow Report for Grant showing a projected payment of
$60,000.00 for consulting. (Id. Ex. Q.) On August 11, 2010, Yee confirmed to
Triick a $60,000.00 wire transfer from Grant to SCI and stated, “Bernardo (Jimenez)
and Julio (Segovia) have instructed me to include payments to Spectrum every two
weeks for the next 9 weeks to clean up Spectrum’s account.” (Id. Ex. Q.) Yee also
attached an account statement for SCI reflecting two payments of $5,207.44, a
payment of $10,414.88, and a payment of $60,000.00. (Id.)

In addition to the foregoing evidence, SCI has shown that Segovia acknowledged Grant’s
debt to SCI when, in response to Bassett’s demands that Grant pay its outstanding debt to SCI of
$682,389.56, Segovia stated that Grant would be “paying $270,00.00 dollars on Monday of next
week, and during the second week of January of next year, will pay 250,000.00 dollars, with the rest
on the second week of February next year.” (Bassett Aff. Ex. D.) Consistent with Segovia’s
commitment, Grant wired SCI $270,000.00 on December 22, 2010. (Id. Ex. E.) Segovia did not
dispute the amount claimed, nor did he protest that SCI was not the proper payee. Thus, on behalf
of Grant, Segovia expressly acknowledged both the legitimacy and accuracy of the amount Bassett
claimed Grant owed SCI.
Grant offers several grounds for denying SCI’s motion on its account stated claim, all of
which lack merit.
Grant first argues that SCI has not met its summary judgment burden because it failed submit
a copy of Schedule 3.03(a) to the JVA to show that the debt from Spectrum Texas to SCI was listed
as a debt that Grant agreed to assume. The existence of Schedule 3.03(a), which may never have

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been prepared, is irrelevant to SCI’s claim because SCI’s evidence shows that Grant considered
itself responsible for the debt from Spectrum Texas to SCI. That is, Grant included that debt as part
of Grant’s debt to SCI. Given Segovia’s express agreement to the amount Bassett claimed Grant
owed SCI, the absence of Schedule 3.03(a) fails to undermine SCI’s claim.
Grant next argues that a Side Letter dated January 29, 2010, between Grant and the Spectrum
Group states that Grant is not bound by the schedules and exhibits attached to the JVA. (Jimenez
Aff. Ex. 1, Def.’s Br. Opp’n Ex. B.) The Side Letter does not help Grant, as nothing in that
document refers to Grant’s assumption of the Spectrum Group’s liabilities. In addition, as noted
above, SCI’s evidence refutes Grant’s suggestion that it did not agree to assume the Spectrum Texas
liability to SCI. Grant’s next argument, that the Spectrum Texas debt to SCI was excluded from the
assumed liabilities pursuant to § 3.04(e) of the JVA, fails for the same reason—namely, that SCI’s
evidence shows that Grant acknowledged that it was responsible for the Spectrum Texas debt.
Grant next contends that it owes nothing to SCI because the Spectrum Group, and not SCI,
furnished goods and Martz’s services to Grant. This argument lacks merit because the statements
in the Jimenez affidavit—that SCI provided no goods or services to Grant and that Grant never
received an invoice from SCI (Id. ¶¶ 8–10)—upon which Grant relies, are soundly refuted by SCI’s
evidence, which shows both that SCI sent Grant invoices and that Grant acknowledged, internally
as well as to SCI’s representatives, that Grant owed the debt to SCI. In fact, SCI’s evidence shows
that Grant paid SCI by wire transfer and check. Moreover, as SCI notes, the Spectrum Group is not
an entity, but merely a reference to a collection of companies that were, more or less, absorbed by
Grant as part of the joint venture.
Finally, Grant contends that pursuant to the arbitration provision in the JVA, SCI should
have raised its account stated claim as part of the pending arbitration. As SCI notes, however, it is

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not a party to the JVA, and the arbitration provision is expressly limited to the parties to the JVA:
“The Award shall be conclusive and final for all purposes. and binding on the Parties, and may be
enforced in any jurisdiction by the wining [sic] Party.” (JVA Art. X, § 10.08.) More importantly,
Grant has not moved to compel SCI to arbitrate. Thus, whether SCI should have been required to
submit its claim to arbitration is not an issue the Court need decide.
B.

Grant’s Counterclaim

For its counterclaim, Grant alleges that SCI intentionally, improperly, and wrongfully
interfered with Grant’s contractual and/or business relationships and expectancies with Autoliv.
(Counterclaim ¶¶ 47–50.) In particular, Grant alleges that SCI’s interference caused Autoliv to
withhold its approval of the transfer of the Grant production lines from Brownsville to Matamoros.
The elements of tortious interference with a business relationship are the
existence of a valid business relationship or expectancy, knowledge of the
relationship or expectancy, an intentional interference by the defendant inducing or
causing a breach or termination of the relationship and resultant damage to the
plaintiff. To establish that a lawful act was done with malice and without
justification, the plaintiff must demonstrate, with specificity, affirmative acts by the
defendant that corroborate the improper motive of the interference. Where the
defendant’s actions were motivated by legitimate business reasons, its actions would
not constitute improper motive or interference.
Mino v. Clio Sch. Dist., 255 Mich. App. 60, 78, 661 N.W.2d 586, 597 (2003) (quoting BPS Clinical
Labs. v. Blue Cross & Blue Shield of Mich., 217 Mich. App. 687, 522 N.W.2d 919 (1999) (citations
omitted)).
Grant’s tortious interference claim fails for several reasons. First, Grant cannot show that
SCI engaged in interference that caused Autoliv to withhold its consent to the proposed transfer of
Grant’s production lines. David Senkin, the Autoliv employee with authority to approve the transfer
for Autoliv, testified that Wilder—the Spectrum representative who also represented Grant in its
dealings with Autoliv—did nothing to influence Senkin’s decision to withhold approval of the

9

transfer in December 2010. (Senkin Dep. at 18, 36–37, Pl.’s Br. Supp. Mot. Summ. J. Ex. 6.) Grant
contends that SCI, through Wilder, interfered with the proposed transfer by ordering Wilder not to
attend a December 17, 2010 meeting with Senkin at Autoliv’s facility to discuss Grant’s proposed
transfer. (Def.’s Br. Opp’n at 6–7.) Grant also claims that SCI further interfered with Autoliv’s
decision to approve the transfer by ordering Wilder to cease communicating with Autoliv on behalf
of Grant. (Id. at 8–9.) However, Senkin testified that he had already made the decision to withhold
approval as of December 9, 2010 for several reasons, including the lack of quality systems at the
Matamoros facility. (Senkin Dep. at 24.) Grant contends that Senkin’s testimony is undermined
by his own email, which he sent to Segovia on December 17. 2010, in which Senkin states that Grant
“do[es] not have my approval to move the Hydro Line or the Vanish line” because Wilder would
not be attending the meeting. (Email from Senkin to Segovia of 12/17/10, Def.’s Br. Opp’n Ex. C.)
Grant fails to note, however, that the purpose of the meeting was to address quality issues related
to the line transfer. (Id.) Grant further argues that there were no quality concerns because Autoliv
had given Grant a “green” on Autoliv’s quality system. Grant misrepresents the evidence on which
it relies for this proposition. The evidence—an email from Wilder to Segovia dated December 14,
2010—concerned Grant’s quality performance at its Brownsville facility. (Segovia Aff. Ex. 8,
Def.’s Br. Opp’n Ex. B.) Because Senkin had not approved the transfer to the Matamoros facility
as of December 17, the “green” rating for the month of November that Wilder mentions in his
December 14 email could only have referred to Grant’s Brownsville facility.4
Grant’s tortious interference counterclaim also fails because Grant cannot show that SCI,
through Wilder, took any affirmative act that interfered with the business relationship or expectancy
4

Grant also argues that Autoliv’s customer, General Motors, had approved the transfer, but, again, it
misrepresents the evidence. The form it cites is a “Supplier Test Plan Approval Request” which merely gave approval
of Grant’s plan to begin testing its Matamoros facility.

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Grant had with Autoliv. As noted above, Grant asserts that Wilder’s failure to attend the December
17, 2010 meeting and his refusal to communicate with Autoliv after that date was the tortious
interference. To establish tortious interference, however, a plaintiff must show that the defendant
committed some act that interfered with the relationship. Wilder’s failure to attend the December
17 meeting and his refusal to communicate with Autoliv were not acts, but inaction. See Formall,
Inc. v. Cmty. Nat’l Bank of Pontiac, 166 Mich. App. 772, 779, 421 N.W.2d 289, 293 (1988) (a
plaintiff alleging tortious interference with a contractual or business relationship must allege the
intentional doing of a per se wrongful act or the doing of a lawful act with malice).
Finally, Grant’s tortious interference claim fails because Grant cannot show “the intentional
doing of a per se wrongful act or the doing of a lawful act with malice and unjustified in law for the
purpose of invading the contractual rights or business relationship of another.” Feldman v. Green,
138 Mich. App. 360, 369, 360 N.W.2d 881, 886 (1984). As noted above, SCI instructed Wilder to
refrain from providing further services to Grant because Grant owed SCI a substantial debt. SCI
was well within its rights to cease providing Grant products and services because of Grant’s
outstanding debt. Accordingly, Grant’s tortious interference claim must fail.
IV. CONCLUSION
For the foregoing reasons, the Court will grant SCI’s Motion for Summary Judgment and
enter judgment in favor of SCI on SCI’s account stated claim and on Grant’s tortious interference
counterclaim.
An Order consistent with this Opinion will be entered.

Dated: February 8, 2013

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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