Exclusion of evidence of the parties’ contract negotiations; Effect of an integration clause; Parol evidence; Exclusion of a witness based on untimely filed witness lists; MCR 2.401(I)(1) & (2); Smith v Beaumont Health; “Good cause”; Bay Area Transportation Authority (BATA)

In an interlocutory appeal, the court held that the trial court properly excluded evidence of the parties’ contract negotiations based on the contract’s integration clause. But it held that the trial court erred in denying plaintiff-BATA’s motion to amend its witness list to add a witness despite untimely amended witness lists. The court noted that when parties include an integration clause in their written contract, “it is conclusive, and parol evidence is not admissible to show that the agreement is not integrated unless the agreement is obviously incomplete on its face or unless fraud invalidates the integration clause.” There was no allegation of fraud here that would invalidate the contract “generally or the integration clause specifically. Rather, the parties dispute what the language of the agreement means.” Given that there was “no suggestion that the integration clause itself is void on the basis of fraud or any other basis, the integration clause prevents the admission of parol evidence to contradict the terms of the agreement.” As to the exclusion of the witness (N), after considering Smith, the court noted there did not appear to be a “dispute that BATA’s amended witness lists were not timely filed. However, unlike an expert witness added shortly before trial and after experts have been deposed, there is no suggestion in this case of any prejudice caused to” defendant-Grand Traverse County “by BATA’s delay. The proposed witness here is Grand Traverse’s own attorney whose affidavit” it submitted as support of its summary disposition motion. The record did “not suggest that Grand Traverse will need to depose [N], investigate his position, nor rebut his anticipated testimony with that of other witnesses. On the contrary, [it] relied upon [N] as an affiant and thus is well-acquainted with [him] and his likely testimony in this case.” The court noted that he may not offer inadmissible testimony about the negotiations and prior agreement drafts, and “that an attorney may assert attorney-client privilege when applicable.” Affirmed in part and reversed in part.