COA 368019 TITAN WEALTH ADVISORS LLC V DONALD FAIRMAN Opinion - Per Curiam - Unpublished 7/13/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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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
TITAN WEALTH ADVISORS, LLC,
Plaintiff/Counterdefendant-
Appellant/Cross-Appellee,
UNPUBLISHED
July 13, 2026
9:12 AM
v No. 368019
Oakland Circuit Court
DONALD FAIRMAN, WENDY MASEN,
JENNIFER CONLEY, and HENRY CONLEY,
LC No. 2021-189175-CB
Defendants/Counterplaintiffs/Third-
Party Plaintiffs-Appellees/Cross-
Appellants,
and
KEVIN VANDENHAUTE and CLARK HARRIS,
Third-Party Defendants-
Appellants/Cross-Appellees.
Before: GADOLA, C.J., and REDFORD and RICK, JJ.
PER CURIAM.
Plaintiff/counterplaintiff Titan Wealth Advisors, LLC, and third-party defendants Kevin
Vandenhaute and Clark Harris (collectively, the Titan parties) appeal as of right the judgment
entered in favor of defendants/counterplaintiffs/third-party plaintiffs Donald Fairman, Wendy
Masen, Jennifer Conley, and Henry Conley (collectively, defendants). Defendants cross-appeal
as of right, but their cross-appeal is conditioned on this Court granting the Titan parties appellate
relief. We affirm.
I. FACTUAL BACKGROUND
Titan is a financial services firm located in Bloomfield Hills, Michigan. It is owned by
Harris and Vandenhaute as equal partners. Defendants Fairman, Masen, and Henry Conley
(collectively, the advisors) were employed by Titan as financial advisors. They were compensated

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by commissions on investment products they sold to clients. Their employment contracts
contained noncompete and nonsolicitation provisions that restricted their freedom to solicit Titan’s
clients after they resigned their employment. However, Fairman had an additional agreement with
Titan, which enabled him to buy his “book of business,” which would exempt his clients from the
noncompete and nonsolicitation agreements. Fairman completed the installment payments in this
arrangement, but did not continue to work for the requisite number of years to fulfill the contract.
The advisors, Harris, and Vandenhaute, each held Series 6 General Securities Representative
Licenses, which allowed them to sell basic investment products such as mutual funds and variable
annuities. The advisors also held Series 7 General Securities Representative Licenses. The Series
7 licenses allowed them to sell more advanced investment products than the Series 6 licenses.
These products included individual stocks and “illiquid securities,” which are financial instruments
that pay income, but are difficult to liquidate or cash out because they have no readily available
secondary market.
Titan had a group-production affiliation agreement with Sigma Financial Corporation and
Sigma Planning Corporation (collectively, “Sigma”). Sigma served as Titan’s broker-dealer. The
advisors were members of the production group and were required to sign the agreement. Harris
was the group representative. Sigma paid commissions to the Titan parties by transferring them
to a bank account that Harris held in his individual capacity. Harris then distributed commissions
to the advisors. Sigma was also responsible for monitoring Titan’s compliance with securities
regulations.
In February 2021, one of Harris’s clients e-mailed regarding his concerns about a poorly-
paying illiquid security. These e-mails came to the attention of Sigma’s compliance officer, John
McClellan. Fairman also received a copy of the e-mail because he was listed on the client’s
account as the advisor who sold him the illiquid security. Relevant to the issues presented in this
matter, defendants maintain that Harris completed the transaction by fraudulently using Fairman’s
Series 7 license and forging Fairman’s signature. They further allege that Harris conducted other
fraudulent Series 7 transactions and that these transactions jeopardized defendants’ licensure and
clients. Conversely, the Titan parties allege that Fairman was sufficiently involved in the
transaction to comply with licensing regulations.
In response to the discovery of Harris’s Series 7 transactions, Sigma terminated Harris’s
status as group representative and later terminated its affiliation with Titan. In April 2021,
defendants resigned from Titan, purportedly because they believed that Harris’s actions made
Titan a disreputable firm. However, the Titan parties believed that defendants exaggerated the
seriousness of Harris’s actions as a pretext to resign their employment and violate the noncompete
and nonsolicitation agreements. The Titan parties thereafter initiated this lawsuit against
defendants, raising claims of breach of contract, breach of fiduciary duty, and related business
torts. Defendants filed a counterclaim against Titan and a third-party complaint against Harris and
Vandenhaute, also raising claims of breach of contract, breach of fiduciary duty, fraudulent
inducement, civil conspiracy, and related claims.
Several of the parties’ claims and counterclaims were either voluntarily dismissed or
dismissed through summary disposition. The remaining claims proceeded to trial. Relevant to
this appeal, the jury found that both Fairman and the Titan parties breached the contracts between
them, but the Titan parties breached first. The jury awarded the Titan parties $554,355 in damages

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and awarded Fairman no damages. The jury additionally found that, while Fairman did not breach
his fiduciary duty to the Titan parties, the Titan parties breached their fiduciary duty to him. The
jury thus awarded Fairman $130,000 in damages. With regard to fraudulent inducement, the jury
found that the Titan parties omitted a material fact to Fairman, which Fairman relied on when he
entered into contracts with the Titan parties. However, the jury found that he did not sustain any
monetary damages in relation to that claim.
The jury next found that Henry Conley and the Titan parties both breached their obligations
under Henry Conley’s contract, but once again, the Titan parties breached first. The jury awarded
the Titan parties $170,996 in damages and Henry Conley no damages. The jury found that Henry
Conley did not breach his fiduciary duty to the Titan parties, but the Titan parties breached their
fiduciary duty to him. The jury awarded him $25,000 in damages. With regard to fraudulent
inducement, the Titan parties omitted a material fact to Henry Conley, which he relied on when he
entered into contracts with the Titan parties. However, the jury awarded him no monetary
damages.
The jury next found that neither Masen nor the Titan parties breached their obligations
under their contract with Masen. Additionally, the jury found that Masen did not breach her
fiduciary duty to the Titan parties, but they breached their fiduciary duty to her. The jury awarded
Masen $40,000 in damages. With regard to fraudulent inducement, the jury found that the Titan
parties omitted a material fact to Masen, which Masen relied on when she entered into contracts
with the Titan parties. However, the jury found that she did not sustain any monetary damages.
The jury additionally found that Masen did not engage in common-law conversion, statutory
conversion, or tortious interference with a business relationship and that there was no civil
conspiracy by any party. This appeal followed.
II. ANALYSIS
A. THE TITAN PARTIES’ DIRECT APPEAL
1. BREACH OF FIDUCIARY DUTY
The Titan parties first argue that the trial court erred by denying their motion to dismiss
defendants’ claim for breach of fiduciary duty on summary disposition, and again erred in denying
their motion for a directed verdict at trial. They also argue that the trial court erred by permitting
witnesses to give testimony that amounted to expert or legal opinions on fiduciary duty. We
disagree.
A trial court’s decision on a motion for summary disposition is reviewed de novo. West v
Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The Titan parties moved for
summary disposition under both MCR 2.116(C)(8) (failure to state a claim) and (C)(10) (no
genuine issue of material fact), but their argument addressed only the pleadings. “A motion under
MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the
complaint.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).
This issue will therefore be analyzed under MCR 2.116(C)(8). “A motion under MCR 2.116(C)(8)
may only be granted when a claim is so clearly unenforceable that no factual development could
possibly justify recovery.” Id.

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“A claim of breach of fiduciary duty sounds in tort.” Highfield Beach at Lake Mich v
Sanderson, 331 Mich App 636, 666; 954 NW2d 231 (2020) (quotation marks and citation omitted).
“To establish a claim for breach of fiduciary duty, a plaintiff must prove (1) the existence of a
fiduciary duty, (2) a breach of that duty, and (3) damages caused by the breach of duty.” Id. A
fiduciary relationship may arise “from the reposing of faith, confidence, and trust and the reliance
of one upon the judgment and advice of another.” Vicencio v Ramirez, MD, PC, 211 Mich App
501, 508; 536 NW2d 280 (1995). When a fiduciary relationship arises, the fiduciary has a duty to
act for the principal’s benefit in matters within the scope of the relationship. Prentis Family
Foundation v Barbara Ann Karmanos Cancer Inst, 266 Mich App 39, 43; 698 NW2d 900 (2005).
The existence of a fiduciary duty is a question of law. Calhoun Co v Blue Cross Blue Shield Mich,
297 Mich App 1, 20; 824 NW2d 202 (2012). However, “whether there exists a confidential
relationship apart from a well defined fiduciary category is a question of fact.” Fassihi v Sommers,
Schwartz, Silver, Schwartz & Tyler, PC, 107 Mich App 509, 515; 309 NW2d 645 (1981).
Michigan caselaw has not expressly established whether a fiduciary duty may arise in an
employment relationship. In Bradley v Gleason Works, 175 Mich App 459; 438 NW2d 330
(1989), this Court addressed the issue in the context of a plaintiff employee’s argument that the
statute of limitations was tolled by the defendant employer’s fraudulent concealment of the
plaintiff’s cause of action. Id. at 461-465. There, the plaintiff injured his hand in a machine while
performing his job. Id. at 461. The plaintiff argued that the statute of limitations for his claim
against the defendant employer was tolled because the defendant concealed correspondence from
the machine’s manufacturer informing the employer of safety defects in the machine that
eventually injured the plaintiff. Id. at 460-461. This Court stated that fraudulent concealment to
toll the statute of limitations “must be manifested by an affirmative act or misrepresentation,”
except when “there is an affirmative duty to disclose where the parties are in a fiduciary
relationship.” Id. at 462 (quotation marks and citations omitted). Accordingly, “the issue boil[ed]
down to determining whether a fiduciary relationship existed between the parties such that [the
defendant] was under an affirmative duty to disclose the existence of the letters to plaintiff.” Id.
at 463. The Court held:
While common law principles might be said to have required [the defendant] to
warn, instruct, and inform its employees as to all dangers incident to the work which
were not discoverable from ordinary observation by an inexperienced person, that
is a far cry from requiring [the defendant] to inform all of its employees about the
existence of possible safety devices. [Id.]
The Court concluded that there was “no sort of fiduciary relationship” that required the defendant
to disclose the correspondence; thus there was no fraudulent concealment tolling the statute of
limitations. Id. at 464. However, this holding was a rejection of a specific fiduciary duty relative
to the fraudulent concealment claim, rather than a broad negation of a fiduciary relationship
between employer and employee.

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The Titan parties rely on Delphi Auto PLC v Absmeier, 167 F Supp 3d 868, 884 (ED Mich,
2016),1 in which the court stated: “The general rule is that the employer-employee relationship
does not give rise to a fiduciary relationship unless the employee is a high-level employee, or if
there is a specific agency relationship.” In Delphi Auto, the plaintiff employer alleged that the
defendant employee breached a fiduciary duty to the Plaintiff by terminating his employment and
accepting employment with the plaintiff’s competitor, and by misappropriating confidential
information. Id. at 873. After stating the general rule quoted above, the court declined to address
whether the circumstances of the parties’ relationship gave rise to a fiduciary duty. Id. at 884. The
court ultimately “[a]ssum[ed], without deciding,” that the parties had a fiduciary relationship, but
dismissed the claim because the plaintiff failed to establish the elements of breach of duty and
proximate cause of damages. Id. at 884-885.
Defendants made the following allegations in their counterclaim and third-party claim
against the Titan parties:
211. As co-owners of Titan and employers of Masen, H. Conley, and
Fairman[, the Titan parties] were placed in positions of trust and confidence with
regard to funds due to and attributable to their production from Sigma, which gave
rise to a fiduciary duty to refrain from misusing their positions to misappropriate
these funds for their collective benefit or the benefit of Titan.
* * *
213. Harris and Vandenhaute’s actions in misappropriating commissions
and other compensation due to Masen, H. Conley, and Fairman and in misusing
their names, likenesses, and credentials constitutes a breach of these fiduciary
duties.
Defendants further explained in their response to the Titan parties’ motion that the Titan parties
retained control and management over the commissions attributable to defendants’ transactions.
This control gave rise to the Titan parties’ fiduciary duty to ensure that defendants received their
rightful commissions. Defendants argued that the Titan parties violated this duty by engaging in
misconduct that damaged defendants’ business reputations and prospects.
These allegations were sufficient for defendants’ breach-of-fiduciary-duty claim to
withstand a motion for summary disposition under MCR 2.116(C)(8). They alleged more than the
existence of an employment relationship; they alleged that the Titan parties received commission
payments that included amounts to which the advisors were entitled. This placed the Titan parties
in a position of trust and confidence because it was up to them to ensure that the commissions were
properly distributed. This was not an ordinary employment relationship in which the employer
paid a set salary to employees. Instead, the employment relationship involved receiving payments
that the advisors earned out of money received from Sigma, and then passed to Harris. The trial
1 “Although caselaw from the federal circuits and federal district courts is not binding on this
Court, it may be considered for its persuasive value.” Johnson v Vanderkooi, 502 Mich 751, 765
n 6; 918 NW2d 785 (2018).

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court therefore did not err in denying the Titan parties’ motion for summary disposition with
respect to the breach-of-fiduciary-duty claim.
This analysis also applies to the trial court’s denial of the Titan parties’ motion for a
directed verdict. We review de novo the trial court’s decision on the motion for a directed verdict.
Barnes v 21st Century Premier Ins Co, 334 Mich App 531, 550; 965 NW2d 121 (2020). “A motion
for a directed verdict challenges the sufficiency of the evidence.” Id. The motion should be
granted when the evidence, viewed in the light most favorable to the nonmoving party, entitles the
moving party to judgment as a matter of law. Id. “If reasonable persons could honestly reach
different conclusions regarding whether the nonmoving party established a claim, the motion for
a directed verdict must be denied, with the case being resolved by the jury.” Id. Here, the Titan
parties argue that there was no fiduciary duty arising from the group production agreement because
it was made in the context of the employment relationship. As we stated in the previous analysis,
Michigan caselaw does not comprehensively preclude a fiduciary relationship between employers
and employees. The trial court therefore did not err in denying the Titan parties’ motion for a
directed verdict.
The Titan parties additionally argue that the trial court erred in permitting witness
testimony regarding fiduciary duty. A trial court’s decision to admit or exclude evidence is
reviewed for an abuse of discretion. Kuebler v Kuebler, 346 Mich App 633, 654; 13 NW3d 339
(2023). A trial court abuses its discretion when its decision falls outside the range of principled
outcomes. In re Piland, 336 Mich App 713, 733; 972 NW2d 269 (2021). We review de novo
questions of law, including questions related to the interpretation and application of statutes and
court rules. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). “In civil cases, evidentiary
error is considered harmless unless declining to grant a new trial, set aside a verdict, or vacate,
modify, or otherwise disturb a judgment or order appears to the court inconsistent with substantial
justice.” Campbell v Human Servs Dep’t, 286 Mich App 230, 246; 780 NW2d 586 (2009).
The Titan parties argue that the trial court wrongly permitted defendants to question Harris,
Fairman, and Masen about fiduciary duty, resulting in these lay witnesses giving expert opinions.
A lay witness’s testimony “in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.” MRE 701.2
These witnesses all had experience in the financial services industry. They all worked for Titan.
They were able to form opinions about the parties’ obligations and duties with respect to Titan’s
business. However, the implied premise of the Titan parties’ argument is that these witnesses were
stating a legal opinion, thus creating a risk that jurors would be influenced by these witnesses’
opinions instead of following the trial court’s instructions to decide for themselves whether a
fiduciary duty was owed based on the evidence.
Vandenhaute and Fairman stated opinions about fiduciary duty generally. Harris implied
that he agreed that he had a fiduciary duty to the advisors. Masen replied affirmatively to a specific
2 The Michigan Rules of Evidence were revised effective January 1, 2024. All references to the
Rules of Evidence in this opinion refer to the version of the rules in effect at the time of the trial.

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question about Harris’s duty to the advisors. This testimony directly or indirectly expressed legal
opinions. Witnesses “may not testify with regard to domestic law because it is within the exclusive
responsibility of the trial judge to find and interpret the applicable law.” Thorin v Bloomfield Hills
Bd of Ed, 203 Mich App 692, 704; 513 NW2d 230 (1994). However, if the opinion is “consistent
with the applicable law and the trial court’s jury instructions, the error is harmless.” Id.
Additionally, “[j]urors are presumed to follow their instructions, and instructions are presumed to
cure most errors.” Zaremba Equipment, Inc v Harco Nat Ins Co, 302 Mich App 7, 25; 837 NW2d
686 (2013) (quotation marks and citation omitted). Here, the trial court instructed the jury on the
elements of breach of fiduciary duty, including the circumstances that establish a fiduciary duty in
a business relationship. The Titan parties do not argue that the instructions on breach of fiduciary
duty were erroneous. This instruction was sufficient to inform the jurors that they must make their
own finding as to the existence of a fiduciary duty and not simply accept the witnesses’ opinions.
Allowing the jury verdict to stand is not inconsistent with substantial justice. Campbell, 286 Mich
App at 246.
2. BREACH OF CONTRACT AND BREACH OF THE IMPLIED COVENANT OF GOOD
FAITH AND FAIR DEALING
The Titan parties raise multiple claims of trial error relating to the trial court’s application
of the law governing the implied covenant of good faith and fair dealing in relation to employment
contracts. These claims are based on the Titan parties’ argument that defendants’ breach-of-
contract claim was not based on a breach of any term of the contract, but instead was based on an
alleged breach of the implied covenant of good faith and fair dealing. The Titan parties point out
that the implied covenant of good faith and fair dealing does not apply to employment contracts.
They contend that they could not have committed any breach of the implied covenant in this matter.
The Titan parties additionally argue that the trial court erred by requiring the jury to find which
party committed the first breach if it found that both parties breached, and in denying the Titan
parties’ motion for a directed verdict. We disagree.
“To preserve an instructional issue for appeal, a party must request the instruction before
instructions are given and must object on the record before the jury retires to deliberate.” Heaton
v Benton Constr Co, 286 Mich App 528, 537; 780 NW2d 618 (2009). A party’s expression of
satisfaction with the instructions constitutes waiver and extinguishes any error concerning the
instructions. Moore v Detroit Entertainment, LLC, 279 Mich App 195, 224; 755 NW2d 686
(2008). Objections to a jury verdict form are subject to the same preservation procedure. See
Jimkoski v Shupe, 282 Mich App 1, 8-9; 763 NW2d 1 (2008).
The Titan parties’ counsel expressed satisfaction with the jury instructions, but separately
objected to a question on the verdict form regarding the first breach. Theoretically, a party might
be able to approve of jury instructions and yet reserve a distinct objection to the verdict form.
However, the Titan parties’ objection to the verdict form cannot logically stand as distinct from
the instructions. This issue is therefore unpreserved. In civil cases, unpreserved claims are
considered waived on appeal. Tolas Oil & Gas Exploration Co v Bach Servs & Mfr, 347 Mich
App 280, 289; 14 NW3d 472 (2023). “However, this Court may overlook preservation
requirements if the failure to consider the issue would result in manifest injustice, if consideration
is necessary for a proper determination of the case, or if the issue involves a question of law and

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the facts necessary for its resolution have been presented.” Id. at 289-290 (quotation marks and
citations omitted).
Generally, claims of instructional error are reviewed de novo. Jimkoski, 282 Mich App
at 9. “The trial court’s jury instructions must include all the elements of the plaintiffs’ claims and
should not omit any material issues, defenses, or theories of the parties that the evidence supports.”
Lewis v LeGrow, 258 Mich App 175, 211; 670 NW2d 675 (2003). “Instructions not supported by
the evidence should not be given.” Id. “If, on balance, the theories of the parties and the applicable
law are adequately and fairly presented to the jury, no error requiring reversal occurs.” Id.
“Reversal based on instructional error is only required where the failure to reverse would be
inconsistent with substantial justice.” Id. at 211-212.
The trial court’s oral jury instructions included directives on the “breach of implied
agreement by the Titan parties to exercise good faith in performance of its contract or contracts”
with the advisors. The court defined “[g]ood faith performance or enforcement” as
“faithfulness . . . to an agreed common purpose in consistency with the justified expectations of
the other party to the contract.” The court likewise defined “[g]ood faith” as “the opposite of bad
faith,” with “bad faith” defined as “a design to mislead or deceive another or neglect to or refuse
to fulfill some duty or contractual obligation not prompted by honest mistake as to one’s rights or
duties.” As previously noted, the Titan parties waived their claims of error with respect to the jury
instructions and objected only to the verdict form. Logically, the Titan parties cannot accede to
the good-faith covenant instruction while objecting to the first-to-breach question on the verdict
form when the verdict form objection is rooted in disagreement with the good-faith covenant
instruction.
In any event, the trial court did not err in accepting defendants’ argument that they could
claim breach of the group production agreement based on an implied-covenant breach. “A party
claiming a breach of contract must establish (1) that there was a contract, (2) that the other party
breached the contract and, (3) that the party asserting breach of contract suffered damages as a
result of the breach.” Dunn v Bennett, 303 Mich App 767, 774; 846 NW2d 75 (2014) (quotation
marks and citation omitted). However, a contracting party “who first breaches a contract cannot
maintain an action against the other contracting party for his subsequent breach or failure to
perform.” Able Demolition v Pontiac, 275 Mich App 577, 585; 739 NW2d 696 (2007) (quotation
marks and citation omitted). This first-breach rule only applies if the initial breach was
“substantial.” Id.
This Court has acknowledged authorities holding “that the covenant of good faith and fair
dealing is an implied promise contained in every contract that neither party shall do anything which
will have the effect of destroying or injuring the right of the other party to receive the fruits of the
contract.” Hammond v United of Oakland, Inc, 193 Mich App 146, 152; 483 NW2d 652 (1992)
(quotation marks and citation omitted). When a contract allows a party discretion in the manner
of performing contractual duties, this discretion must be exercised honestly and in good faith.
Ferrell v Vic Tanny Int’l, Inc, 137 Mich App 238, 243; 357 NW2d 669 (1984). However, this
Court has also found that “Michigan does not recognize a claim for breach of an implied covenant
of good faith and fair dealing[.]” Belle Isle Grill Corp v Detroit, 256 Mich App 463, 476; 666
NW2d 271 (2003). This Court has also “been unwilling to recognize a cause of action for breach

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of an implied covenant of good faith and fair dealing in cases involving at-will employment
relationships.” Hammond, 193 Mich App at 152.
The group production agreement did not govern the terms of the employment relationship,
but instead governed the distribution of Sigma’s commission payments. Harris’s use of the group
production agreement to pay himself commissions that he earned by using the advisors’ Series 7
licenses impaired the advisors’ ability to benefit from the group production agreement. The jury
could therefore find that he acted in bad faith and breached the implied covenant. Furthermore,
by disrupting Sigma’s relationship with Titan, Harris jeopardized the advisors’ ability to rely on
Sigma’s services as broker-dealer. On this record, the trial court did not err in allowing the jury
to decide the factual issue of whether the Titan parties breached the contracts and whether Titan
was the first party to breach. Accordingly, the Titan parties were not entitled to a directed verdict
on Fairman’s and Henry Conley’s breach-of-contract claims.
3. FRAUDULENT INDUCEMENT
The Titan parties next argue that they were entitled to a directed verdict on defendants’
claim of fraudulent inducement. They contend that defendants’ counterclaim stated a claim for
fraudulent inducement, but not for inducement by omission or silent fraud. The Titan parties thus
argue that defendants’ fraudulent inducement claim must fail as a matter of law because they did
not move to amend their claim to conform to the evidence. We disagree.
To establish a prima facie case of fraudulent inducement, the moving party must show:
(1) the defendant made a material representation; (2) the representation was false;
(3) when the defendant made the representation, the defendant knew that it was
false, or made it recklessly, without knowledge of its truth and as a positive
assertion; (4) the defendant made the representation with the intention that the
plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the
plaintiff suffered damage. [Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276
Mich App 146, 161; 742 NW2d 409 (2007) (quotation marks and citation omitted).]
At trial, defendants did not present evidence that the Titan parties made false material
representations. Instead, they asserted that the Titan parties should have disclosed Harris’s misuse
of other advisors’ Series 7 licenses. None of defendants’ witnesses testified that Harris or
Vandenhaute made a particular representation that induced them to accept employment.
“Silent fraud, also known as fraudulent concealment, acknowledges that suppression of a
material fact, which a party in good faith is duty-bound to disclose, is equivalent to a false
representation and will support an action in fraud.” Maurer v Fremont Ins Co, 325 Mich App 685,
695; 926 NW2d 848 (2018). The elements of silent fraud are: (1) the defendant suppressed a
material fact, (2) the defendant had the duty to disclose the fact, and (3) the plaintiff relied on the
omission to his or her detriment. Alfieri v Bertorelli, 295 Mich App 189, 193; 813 NW2d 772
(2012). “Silent fraud is essentially the same [as fraudulent misrepresentation] except that it is
based on a defendant suppressing a material fact that he or she was legally obligated to disclose,
rather than making an affirmative misrepresentation.” Id. at 193. “Such a duty may arise by law
or by equity; an example of the latter is a buyer making a direct inquiry or expressing a

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particularized concern.” Id. Claims for fraud have a “heightened pleading standard.” State ex rel
Gurganus v CVS Caremark Corp, 496 Mich 45, 63; 852 NW2d 103 (2014).
Defendants argue that their pleadings were sufficient to support a claim of silent fraud
under Michigan’s notice-pleading rules. “All that is required is that the complaint set forth
‘allegations necessary reasonably to inform the adverse party of the nature of the claims the
adverse party is called on to defend[.]’ ” Johnson v QFD, Inc, 292 Mich App 359, 368; 807 NW2d
719 (2011), quoting MCR 2.111(B)(1). Defendants alleged in their counterclaim:
51. In early 2021, the Counter-Plaintiffs/Third-Party Plaintiffs discovered
systematic, repeated fraud and workplace misconduct committed by Clark Harris
and covered up by his business partner Kevin Vandenhaute that had damaged
Counter-Plaintiffs/Third Party Plaintiffs, their clients, and Titan’s clients.
52. This matter first came to Fairman’s attention that one of Titan’s co-
owners, Clark Harris, had utilized his licensing credentials and forged his signature
on paperwork necessary to sell a highly illiquid investment (“Illiquid Investment”)
to a client which Harris was not licensed to sell.
53. The chain of events prompting this discovery was initiated when the
affected client reached out [to] Harris in February of 2021 to inquire into the status
of his investments and question the loss of value that he had experienced from the
Illiquid Investment.
Under the heading for Count II, Fraudulent Inducement, defendants alleged:
169. Titan and its owners, Harris and Vandenhaute, represented by their
statements and conduct that they would conduct business in a lawful manner and
consistent with FINRA regulations.
170. They further represented that they would not misuse employee
licensure, forge documents, and otherwise commit violations of applicable laws and
regulations governing the sale of securities and/or cause other employees to commit
such violations.
171. At the time the representations were made, they were false or made
recklessly, without knowledge of their truth and as a positive assertion, and were
made with the intent that the Counter-Plaintiffs/Third-Party Plaintiffs would rely
on them.
Defendants alleged that, if they had known the Titan parties’ representations were false, they would
not have entered into any of the employment agreements or related agreements.
Defendants contend that these allegations, read jointly, give notice that the fraudulent
inducement claim can be based on material omissions as well as on misrepresentations. The
statements that defendants “discovered” misconduct, that the misconduct “first came to Fairman’s
attention,” and that the client’s inquiry prompted the “discovery” all suggest that defendants
learned about Harris’s alleged misconduct after they had already accepted employment. However,

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reading a valid claim for silent fraud from these allegations stretches the notice-pleading standard
beyond reason. Moreover, these pleadings fail to satisfy the requirement that fraud must be
pleaded with specificity. Cooper v Auto Club Ins Ass’n, 481 Mich 399, 414; 751 NW2d 443
(2008). These allegations do not allege that defendants relied on the absence of disclosures when
they accepted employment. Alfieri, 295 Mich App at 193. These pleadings also do not establish
that the misconduct occurred before defendants made the decision to join Titan, or that the Titan
parties had a duty to disclose Harris’s conduct. By allowing defendants’ defectively-pleaded silent
fraud claim to proceed to the jury, the trial court essentially sua sponte amended defendants’
counterclaim by adding a counterclaim that defendants could have, but did not, raise themselves.
In general, sua sponte amendments are not permissible. City of Bronson v American States Ins Co,
215 Mich App 612, 619; 546 NW2d 702 (1996). However, under MCR 2.118(C)(1),
[w]hen issues not raised by the pleadings are tried by express or implied consent of
the parties, they are treated as if they had been raised by the pleadings. In that case,
amendment of the pleadings to conform to the evidence and to raise those issues
may be made on motion of a party at any time, even after judgment.
The Titan parties impliedly consented to defendants’ pursuit of a claim of fraudulent inducement
by silent fraud when they consented to jury instructions and a verdict form that required the jury
to find whether the Titan parties omitted a material fact to the advisors. Admittedly, defendants
failed to move to amend their complaint, despite having ample opportunity to do so. Given that
the sole basis of the Titan parties’ directed verdict motion was defendants’ failure to amend their
counterclaim, the trial court acted consistently with MCR 2.118(C)(1) when it denied the motion.
The Titan parties also argue that the denial of directed verdict allowed defendants “to
present evidence and testimony for those claims and the jury was instructed and invited to render
verdict and damages in favor of Appellees.” However, the Titan parties do not cite any evidence
that defendants would not have presented if the fraudulent inducement claim had been dismissed.
“It is not enough for an appellant in his brief simply to announce a position or assert an error and
then leave it up to this Court to discover and rationalize the basis for his claims . . . .” Yee v
Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002) (quotation marks
and citation omitted). Moreover, a motion for a directed verdict tests the sufficiency of evidence
presented at trial, and is therefore made after the close of proofs. Barnes, 334 Mich App at 550.
The trial court’s denial of the motion for a directed verdict therefore had no effect on the evidence
heard by the jury.
4. CIVIL CONSPIRACY
The Titan parties also argue that they were entitled to summary disposition and a directed
verdict in relation to defendants’ civil conspiracy claim. We disagree.
The jury found that defendants failed to prove their civil conspiracy claim. This Court held
in Willoughby v Lehrbass, 150 Mich App 319, 329-330; 388 NW2d 688 (1986), that a trial court’s
erroneous dismissal of a claim was harmless because the jury’s verdict on other claims indicated
that the plaintiff would not have prevailed on the dismissed claim. By analogy, a trial court’s
verdict of no cause of action renders harmless an erroneous denial of a directed verdict. We

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therefore decline to analyze the merits of the Titan parties’ civil conspiracy claim, because any
error in submitting these claims to the jury was harmless.
5. MOTION IN LIMINE REGARDING DAMAGES
Next, the Titan parties argue that the trial court erred in denying their motion in limine to
exclude defendants’ testimony regarding their damages. The substance of their argument is that
defendants failed to sufficiently respond to the Titan parties’ interrogatories and requests to
produce documents in discovery. We disagree.
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.
Kuebler, 346 Mich App at 654. A trial court’s decision on a motion regarding discovery is
reviewed for abuse of discretion. Tolas Oil, 347 Mich App at 301.
The trial court denied the Titan parties’ motion in limine because the parties were still
disputing which documents had been produced and which documents the opposing parties had in
their possession. The trial court advised the parties “to confer with regard to what has been
provided, what has been previously produced, if you’ve had them in your possession.” Until the
parties attempted to do so, the Titan parties’ motion was premature. The trial court clarified that
it was not taking the motion under advisement. However, the Titan parties would be able to
“renotice” the motion if the attorneys did not resolve the matter. The Titan parties did not resubmit
the motion.
MCR 2.302(A)(1) provides that each party “must, without awaiting a discovery request,
provide to the other parties” information regarding that party’s claims, including “a computation
of each category of damages claimed by the disclosing party, who must also make available for
inspection . . . the documents or other evidentiary material . . . on which each computation is
based . . . .” Defendants stated that their damages were based on wrongfully withheld
commissions, which could be determined from Titan’s own business records. The Titan parties
found defendants’ initial disclosures inadequate. They were also dissatisfied with defendants’
responses to their interrogatories and request for production of documents.
The Titan parties’ motion in limine to exclude testimony regarding damages was
essentially a motion to penalize defendants by disallowing monetary damages. An order
precluding evidence of monetary damages would, in effect, amount to a dismissal of defendants’
counterclaims for damages. “Severe sanctions such as default or dismissal are predicated on a
flagrant or wanton refusal to facilitate discovery that typically involves repeated violations of a
court order.” Swain v Morse, 332 Mich App 510, 518; 957 NW2d 396 (2020). The trial court’s
finding that it was “premature” to consider such a drastic sanction is consistent with this principle,
and was therefore not an abuse of discretion. Furthermore, the trial court did not deny the motion
with prejudice. It specifically allowed the Titan parties to bring the motion again if defendants
failed to cooperate with them in identifying documents in support of defendants’ claims. The Titan
parties did not avail themselves of this opportunity. Thus, the Titan parties’ arguments as to the
motion in limine and the admission of damages testimony at trial lack merit.

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6. JUDICIAL BIAS
The Titan parties argue that the trial court showed bias against them and in favor of
defendants. We disagree.
Generally, to preserve a claim of judicial bias, a party must make a motion in the trial court
to disqualify the judge under MCR 2.003. See In re Contempt of Henry, 282 Mich App 656, 679;
765 NW2d 44 (2009). The Titan parties did not move for a mistrial or disqualification of the judge.
They likewise did not seek any other relief pertaining to their claim that the trial court showed bias
against them and favoritism toward defendants. Accordingly, this issue is not preserved.
However, we “may overlook preservation requirements if the failure to consider the issue would
result in manifest injustice, if consideration is necessary for a proper determination of the case, or
if the issue involves a question of law and the facts necessary for its resolution have been
presented.” Tolas Oil, 347 Mich App at 289-290. The question of whether judicial misconduct
deprived a party of a fair trial is a constitutional-law question subject to de novo review. In re
Estate of Susser, 254 Mich App 232, 236-237; 657 NW2d 147 (2002).
The trial court has substantial discretion in controlling courtroom proceedings. MRE
611(a) provided, at the time of trial:
The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the interrogation
and presentation effective for the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.
The “mode and order of admitting proofs and interrogating witnesses rests within the discretion of
the trial court.” Alpha Capital Mgt, Inc v Rentenbach, 287 Mich App 589, 616; 792 NW2d 344
(2010) (quotation marks and citation omitted). The trial court is also required to maintain
impartiality. Due process requires that an unbiased and impartial decisionmaker hear and decide
a case. Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012). “A trial judge is
presumed unbiased, and the party asserting otherwise has the heavy burden of overcoming the
presumption.” Id. “A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct
pierces the veil of judicial impartiality.” In re LT, 342 Mich App 126, 141; 992 NW2d 903 (2022)
(quotation marks and citation omitted). “A judge’s conduct pierces this veil and violates the
constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is
reasonably likely that the judge’s conduct improperly influenced the jury by creating the
appearance of advocacy or partiality against a party.” Id. (quotation marks and citation omitted).
Under MCR 2.003(C)(1)(b), grounds are present for disqualification if
[t]he judge, based on an objective and reasonable perception, has either (i) a serious
risk of actual bias impacting the due process rights of a party as enunciated in
Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009) or (ii)
has failed to adhere to the appearance of impropriety standard set forth in Canon 2
of the Michigan Code of Judicial Conduct.

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“[J]udicial rulings, as well as a judge’s opinions formed during the trial process, are not themselves
valid grounds for alleging bias unless there is a deep-seated favoritism or antagonism such that the
exercise of fair judgment is impossible.” People v Jackson, 292 Mich App 583, 598; 808 NW2d
541 (2011) (quotation marks and citation omitted). “Comments that are critical of or hostile to
counsel and the parties are generally not sufficient to pierce the veil of impartiality.” Id.
We have reviewed the instances that the Titan parties allege demonstrate judicial bias. We
are not persuaded that the trial court evinced bias in favor of defendants or against the Titan parties.
Most of the cited instances suggest either that the trial court was genuine in its efforts to fairly
adjudicate the numerous minor controversies that arose in this complex, highly contentious case.
For example, the Titan parties take issue with the court’s decision to postpone trial because
McClellan’s wife was facing a medical crisis. In that instance, the trial court was merely trying to
accommodate a witness who was caught in unfortunate circumstances beyond his control.3 With
respect to the instances of the trial court “assisting” defense counsel, the court’s interventions were
intended to avoid delays and to keep the trial focused on the evidence rather than on the attorneys’
skill in managing the minutiae of trial practice. We therefore conclude that the Titan parties’ claim
of judicial bias is without merit.
7. MOTION PRACTICE
The trial court advised the parties that it would hear directed verdict motions after it
instructed the jury. The Titan parties’ counsel expressed concerns that the jury instructions might
need modification if the court granted their motion only partially. The Titan parties did not,
however, object to the court’s decision. They now argue that they were prejudiced by the court’s
decision. We disagree.
This issue was not preserved at trial, and therefore may be considered only “if the failure
to consider the issue would result in manifest injustice, if consideration is necessary for a proper
determination of the case, or if the issue involves a question of law and the facts necessary for its
resolution have been presented.” Tolas Oil, 347 Mich App at 289-290.
“A trial court has the inherent authority to control its own docket.” Baynesan v Wayne
State Univ, 316 Mich App 643, 651; 894 NW2d 102 (2016); see also MCR 2.513(B) (requiring
the trial court to “control the proceedings during trial . . . .”). This authority includes the court’s
power “to manage [its] own affairs so as to achieve the orderly and expeditious disposition of
cases.” Baynesan, 316 Mich App at 651 (quotation marks and citation omitted). The Titan parties
do not clearly explain why the trial court’s scheduling of the directed verdict motions after jury
instructions was an unreasonable or unfair choice. They argue that the instructions and verdict
form likely confused the jury, but there is no apparent reason why this would be true. The trial
court’s denial of the directed verdict motion meant that the jury would have had to hear all the
3 Frankly, we are disappointed that the Titan parties would even raise this issue. Extending
professional courtesy costs nothing, and in no way impairs a party from pursuing lawful claims.
The fact that the trial court extended grace in a time of medical hardship is in no way indicative of
favoritism. It is the decent, human thing to do.

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instructions and answer all questions on the verdict form if the Titan parties had been allowed to
present the motion earlier. Accordingly, the Titan parties’ argument must fail.4
B. DEFENDANTS’ CROSS-APPEAL
Defendants state that our need to address their cross-appeal is conditioned on our resolution
of the Titan parties’ appeal. We have denied appellate relief to the Titan parties. It is therefore
unnecessary to address defendants’ cross-appeal, and we decline to do so.
Affirmed.
/s/ Michael F. Gadola
/s/ James Robert Redford
/s/ Michelle M. Rick
4 The Titan parties’ brief includes additional arguments that were not included in their statement
of questions presented. “An issue not contained in the statement of questions presented is waived
on appeal.” English v Blue Cross Blue Shield of Mich, 263 Mich App 449, 459; 688 NW2d 523
(2004). We therefore decline to address these claims.

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