STATE OF MICHIGAN
COURT OF APPEALS
VILLAGE OF EDMORE, UNPUBLISHED
October 19, 2017
Plaintiff/Counter-Defendant-
Appellee,
v No. 334135
Montcalm Circuit Court
CRYSTAL AUTOMATION SYSTEMS INC, LC No. 2016-021226-CK
Defendant/Counter-Plaintiff-
Appellant.
Before: MURRAY, P.J., and SAWYER and MARKEY, JJ.
PER CURIAM.
Defendant, Crystal Automation Systems, Inc., a provider of phone and internet services
to residents living in and around plaintiff, the Village of Edmore, a Michigan municipal
corporation in Montcalm County, appeals as of right the trial court’s Order for Entry of Default
Judgment, Order Granting Plaintiff’s Motion for Partial Summary Disposition, and Order
Denying Defendant’s Motion to Vacate and/or Set Aside Default and Granting Plaintiff’s Motion
for Entry of Default Judgment. Defendant contends that the trial court committed reversible
error when it entered a default judgment against it, refused to set aside an improperly entered
default, and granted plaintiff partial summary disposition based upon an incorrectly construed
and interpreted Lease Agreement (Lease) between the parties. We agree, and reverse each of the
trial court’s orders and remand for further proceedings.
I. FACTS AND PROCEEDINGS
Since April 2003, defendant has rented space on and near plaintiff’s water tower for its
antennas and equipment. During 2015, plaintiff contracted with Utility Service Co., Inc. (USC)
to repaint and maintain its water tower. USC told plaintiff that before it commenced the work all
tenants of the water tower had to remove their equipment, so plaintiff ordered defendant to
remove all of its equipment on and from around the water tower and threatened defendant that if
it did not do so, plaintiff would charge defendant for doing so. Defendant objected to plaintiff’s
demand on the ground that the Lease did not permit plaintiff to order defendant to vacate the
premises. Defendant also advised plaintiff that if plaintiff removed the equipment, local
resident’s phone, 911, and internet services would be interrupted in violation of the law. Shortly
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after receiving defendant’s objection, plaintiff informed defendant that it would delay the project
until the spring of 2016.
During the interim period, defendant attempted to work out an alternative arrangement
with plaintiff so that defendant could provide its customers with uninterrupted services while
plaintiff repainted the water tower. Plaintiff’s manager represented to defendant that it could
erect a new tower on a different piece of property owned by plaintiff, but plaintiff ultimately
decided it did not want to provide that option to defendant. Defendant also offered to move its
equipment so that USC could work around it, but plaintiff refused that offer. Then, on March 3,
2016, plaintiff’s counsel ordered defendant to remove its equipment from on and around the
water tower by May 1, 2016. Plaintiff sued defendant on March 18, 2016, alleging breach of
contract and seeking injunctive relief to force defendant to remove its equipment and to
terminate the Lease.
The Lease signed by the parties granted defendant an initial five-year term with three
additional automatically renewable five-year terms unless defendant notified plaintiff before the
end of the initial term of its intent to not extend the Lease. The Lease also granted defendant the
right to terminate the agreement upon 30 days’ notice under specified instances, but did not give
plaintiff the right to terminate. The Lease also contained the following provisions:
7. Maintenance:
* * *
D. In the event the Landlord or any other Tenant undertakes painting,
construction or other alterations on the premises, Tenant shall take reasonable
measures as [sic] Tenant’s cost to cover Tenant’s equipment, personal property or
antenna facilities and protect such from paint and debris fallout which may occur
during painting, construction or alteration process.
* * *
10. Interference: Tenant’s installation, operation, and maintenance of its
transmission facilities shall not damage or interfere in any way with the
Landlord’s water tower operations or related repair and maintenance activities or
with such activities of other Tenants of the water tower. Landlord , at all times
during this Lease, reserves the right to take any action it deems necessary, in its
sole discretion, to repair, to maintain, alter or improve the premise in connection
with the tower operations as may be necessary, including leasing parts of the
water tower and surrounding ground space to others.
* * *
12. Indemnity:
* * *
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B. Tenant’s Indemnification: Any and all liability, obligation,
damages, penalties, claims, liens, costs, charges, losses and expenses (including,
without limitation, reasonable fees and expenses of attorney’s, expert witnesses
and consultants), which may be imposed upon, incurred by or be asserted against
the Landlord, its agents and employees, by reason of any act or omission of
Tenant, its personnel, employees, agents, contractors or subcontractors, resulting
in personal injury, bodily, injury, sickness, disease or death to any person or
damage to, loss of or destruction of tangible or intangible property, copyright,
patent, service mark or any other right of way [sic] person, firm, or corporation,
which may arise out of or be in any way connected with the construction,
installation, operation, maintenance, use or condition of the premises or Tenant’s
antenna facilities or the Tenant’s failure to comply with any federal, state or local
stature [sic], ordinance or regulation.
On March 22, 2016, plaintiff served its complaint on defendant along with an ex parte
motion for preliminary injunction seeking an order that defendant vacate the water tower.
Without delay, on March 23, 2016, defendant opposed plaintiff’s motion by arguing that the
Lease did not grant plaintiff the right to evict defendant from the water tower. Plaintiff filed a
reply in which it requested that the trial court order defendant to remove its equipment by May 1,
2016, or allow plaintiff to do so at defendant’s expense, and enter judgment against defendant.
The parties appeared the next day for a hearing, and a conference was held off the record
where it was agreed that, rather than having the trial court hear and the decide the motion for
injunctive relief, plaintiff would file a motion for partial summary disposition, defendant would
respond, and the trial court would hear the motion, all on an expedited basis so that the hearing
on the motion could happen on April 15, 2016. The trial court later entered an order on April 7,
2016, requiring plaintiff to file its motion by April 1 and defendant to respond by April 12. The
order also stated that the parties could file their pleadings via e-mail with the original sent by
first-class mail.
Consistent with the order, on April 1, 2016, plaintiff moved for partial summary
disposition under MCR 2.116(C)(9) and (10). Plaintiff argued that because the Lease
unambiguously required defendant to vacate the premises if in plaintiff’s sole discretion it
ordered defendant to do so for maintenance and repair of the water tower, defendant’s refusal to
vacate upon demand breached the Lease. In its response, defendant denied that plaintiff was
entitled to force defendant to vacate its leasehold, and argued that plaintiff’s conduct violated
defendant’s right to quiet enjoyment of the premises and effectively nullified the purpose of the
Lease.
Late on the afternoon of April 14, 2016, defendant also filed its answer, affirmative
defenses, and jury demand by e-mail and the original by first-class mail. That same afternoon,
however, plaintiff filed a request for entry of default against defendant for failure to timely file
its answer. The clerk entered the default and plaintiff served defendant the default by mail.
The very next day, at the hearing on plaintiff’s motion for partial summary disposition,
plaintiff’s counsel announced that a default had been entered against defendant and that
plaintiff’s motion was essentially unopposed because, under MCR 2.603(A)(3), defendant was
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precluded from responding to plaintiff’s motion after the entry of the default. Defendant argued
that it had opposed plaintiff’s motion and requested that the trial court set aside the default. The
trial court told defendant that it preferred having defendant file a motion to set aside the default,
having the parties brief it, and having it heard on an expedited basis. The trial court then adopted
the arguments made by plaintiff in its briefs and granted plaintiff summary disposition under
MCR 2.116(C)(9) and (10).
On April 22, 2016, defendant moved to vacate or set aside the default, arguing in part that
the default was improperly entered because it had defended the action vigorously from the start.
Defendant asserted that plaintiff suffered no prejudice if the default was set aside and explained
that good cause existed to set aside the default because defendant had a meritorious defense.
According to defendant, the numerous factors articulated in Shawl v Spence Bros, Inc, 280 Mich
App 213, 238-239; 760 NW2d 674 (2008), all weighed in favor of finding good cause to set
aside the default. Further, defendant argued, under the terms of the Lease it was not liable to
plaintiff. Defendant filed an affidavit of meritorious defense in which defendant’s president
denied that the Lease gave plaintiff the right to evict defendant from the water tower and denied
that plaintiff could not terminate the Lease, but that it had nevertheless removed all of its
equipment as previously ordered by the court.
On April 26, 2016, before responding to defendant’s motion to set aside the default,
plaintiff moved for entry of a default judgment. Plaintiff argued that a default judgment should
be entered because (1) defendant was properly defaulted, and (2) defendant materially breached
the Lease by refusing to vacate the water tower entitling it to terminate the Lease. Plaintiff
contended that it was entitled to recover damages and attorney fees from defendant under the
Lease.
Plaintiff subsequently opposed defendant’s motion to set aside the default, arguing that
defendant’s failure to timely file its answer justified the clerk’s entry of the default. Plaintiff
contended that defendant did not “otherwise defend” the lawsuit because defendant had not filed
its own motion. Good cause to set aside the default also did not exist because, according to
plaintiff, no substantial defect or irregularity occurred, no excuse existed for defendant’s tardy
filing, and the totality of the circumstances favored defaulting defendant. Plaintiff also argued
that defendant had no valid defense because the trial court had already granted plaintiff partial
summary disposition.
In opposition to plaintiff’s motion for default judgment, defendant argued that ¶ 12(B) of
the Lease did not apply to the claims asserted because it specified defendant’s obligation to
indemnify plaintiff for claims made by third persons, but did not permit plaintiff to recover
attorney fees in a dispute with defendant over the terms of the Lease. Defendant also argued that
plaintiff had no right to terminate the Lease.
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Three days later,1 the trial court heard defendant’s motion to set aside the default and
plaintiff’s motion for default judgment. The trial court considered the factors set forth in Shawl
and found that all weighed against a finding of good cause. The trial court also held that
defendant had no meritorious defense and, therefore, denied defendant’s motion to set aside the
default.
The trial court then adopted plaintiff’s brief as its rationale for entry of a default
judgment. Without explanation, the trial court found that defendant materially breached the
Lease and, therefore, ruled that the Lease was terminated. The trial court also found that, under
¶ 12(B), the parties contemplated reasonable costs and attorney fees, and that costs and attorney
fees would be assessed against defendant. The trial court later entered its order denying
defendant’s motion to set aside the default and granting plaintiff’s motion for default judgment,
which terminated the Lease effective May 1, 2016, and ordered defendant to pay plaintiff’s
reasonable attorney fees and damages it incurred in removing defendant’s equipment from the
water tower.
II. ANALYSIS
A. DEFAULT
We first turn to defendant’s argument that the trial court erred by not setting aside the
default because the default was improperly entered. We agree with defendant that it “otherwise
defended” under MCR 2.603(A)(1) by defending against plaintiff’s motions for injunctive relief
and partial summary disposition, and as a result the trial court abused its discretion in not setting
aside the default and default judgment.
Generally, this Court will not set aside a default that has been properly entered, Alken-
Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638 (1999), in part
because the abuse of discretion standard applies to review of the trial court’s decision,
Huntington Nat’l Bank v Ristich, 292 Mich App 376, 389; 808 NW2d 511 (2011).2
The trial court erred by not finding that good cause existed to set aside the default and
default judgment because the default was not properly entered. Pursuant to MCR 2.603(D)(1),
“[a] motion to set aside a default or a default judgment, except when grounded on lack of
jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of
facts showing a meritorious defense is filed.” Thus, a default will not be set aside unless the
defaulting party demonstrates both “good cause” and a “meritorious defense.” Barclay v Crown
Bldg & Dev, Inc, 241 Mich App 639, 653; 617 NW2d 373 (2000).
1
Typically an unpublished opinion would not contain this much detail about the trial court
proceedings, but we do so here because what each party did, and when it did it, is critical to a
proper disposition of the appeal.
2
In making its argument plaintiff cites to the prior, more deferential, abuse of discretion standard
that no longer applies.
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In Shawl, 280 Mich App at 238-239, this Court directed:
In determining whether a party has shown good cause, the trial court
should consider the following factors:
(1) whether the party completely failed to respond or simply missed the
deadline to file;
(2) if the party simply missed the deadline to file, how long after the
deadline the filing occurred;
(3) the duration between entry of the default judgment and the filing of the
motion to set aside the judgment;
(4) whether there was defective process or notice;
(5) the circumstances behind the failure to file or file timely;
(6) whether the failure was knowing or intentional;
(7) the size of the judgment and the amount of costs due under MCR
2.603(D)(4);
(8) whether the default judgment results in an ongoing liability (as with
paternity or child support); and
(9) if an insurer is involved, whether internal policies of the company were
followed.
* * *
Neither of these lists is intended to be exhaustive or exclusive.
Additionally, as with the factors provided in other contexts, the trial court should
consider only relevant factors, and it is within the trial court’s discretion to
determine how much weight any single factor should receive.
We first conclude that although defendant “simply missed the deadline” to file its answer
and affirmative defenses by two days, the default was nevertheless improperly entered because
defendants “otherwise defended” this case from the start. Under MCR 2.603(A)(1), “[i]f a party
against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend
as provided by these rules, and that fact is made to appear by affidavit or otherwise, the clerk
must enter the default of that party.” (Emphasis added.) This Court has made clear that the
highlighted portion of MCR 2.603(A)(1) means that a party must not be defaulted if the party has
otherwise defended the action by taking some defensive action in the case. In Marposs Corp v
Autocam Corp, 183 Mich App 166, 168; 454 NW2d 194 (1990), the defendant filed motions for
summary disposition and a change of venue. The trial court denied both motions. Id. The
defendant sought leave to appeal the trial court’s denial of its motion for a change of venue but
not the denial of its motion for summary disposition. Id. The defendant did not file an answer
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and was defaulted. Id. Although defendant should have timely filed a responsive pleading under
MCR 2.108(A)(1), but had not done so, this Court held that the trial court erred by concluding
that the defendant was properly defaulted because the defendant otherwise defended itself under
MCR 2.603(A)(1). Id. at 170.
Here, from the start of this case, defendant defended itself by vigorously opposing
plaintiff’s motions for injunctive relief and partial summary disposition. Specifically, defendant
(1) filed a brief opposing plaintiff’s motion for injunctive relief with supporting affidavits, (2)
appeared with counsel at the hearing on plaintiff’s motion, (3) argued against the forced removal
of its equipment because the Lease did not authorize plaintiff to demand that action from
defendant, (4) defended against plaintiff’s motion for summary disposition, and (5) appeared
with counsel at the hearing on plaintiff’s motion for summary disposition. There can be no
doubt that defendant “otherwise defended” this lawsuit because each pleading it filed in this
short time span contained defenses to plaintiff’s claims and requests for relief. Compare
Marposs Corp, 183 Mich App at 168-170, with Huntington Nat’l Bank, 292 Mich App at 388;
808 NW2d 511 (2011). Consequently, good cause existed to set aside the default and default
judgment because the default was improperly entered, and the trial court erred in ruling
otherwise.
Though the foregoing conclusion is enough to move on to the meritorious defense issue,
we still point out that the record establishes that the Sprawl factors warranted a finding of good
cause. Factors one through three weighed in favor of finding good cause. Although defendant
missed the April 12, 2016 deadline for filing its answer, defendant filed its answer and
affirmative defenses via e-mail and mailed the originals to the trial court two days late. Further,
the court clerk entered the mailed copy as filed on April 18, 2016, just six days after the
deadline. Defendant did not completely fail to defend the action, nor did defendant fail to file an
answer. Moreover, defendant vigorously defended against plaintiff’s claims from the
commencement of the case. Therefore, the trial court incorrectly concluded that defendant
completely failed to answer or take any action, and wrongly ruled that factors one and two
weighed against finding good cause, when clearly both factors weighed in defendant’s favor.
Respecting factor three, on April 15, 2016, when defendant learned that a default was
entered late afternoon on April 14, 2016, defense counsel moved in open court to have the
default set aside. The trial court refused to take immediate action and instead required defendant
to file a motion to set aside the default. Defendant promptly filed its motion to set aside the
default on April 22, 2016, only eight days after entry of the default. The trial court should have
found that the short duration between entry of the default and defendant’s action favored finding
good cause for setting aside the default because, contrary to the trial court’s conclusion,
defendant actually took prompt action to get the default set aside.
Factor five weighed against finding good cause because defendant missed the deadline to
file its answer. Defense counsel failed to properly calendar the deadline and filed the answer
late. Such negligence was not excusable. Nevertheless, the record reflects that defense
counsel’s failure to timely file defendant’s answer was not intentional. Therefore, factor six
weighed in favor of finding good cause. The trial court incorrectly concluded that factor six
absolutely weighed against finding good cause.
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Factor seven also weighed in favor of finding good cause. The trial court focused only
on the monetary amount of a potential judgment and held that the minimal amount of damages at
stake required finding that factor seven weighed against good cause. The trial court, however,
completely disregarded the fact that the judgment sought by plaintiff included eviction of
defendant and termination of the Lease. The severity of the potential judgment’s impact on
defendant should have been considered. When considered, factor seven weighs in favor of
finding good cause. The trial court’s analysis of factor seven was critically flawed.
Factor eight also weighed in favor of finding good cause because nothing in the record
establishes that there was a risk of ongoing liability in this case. There was no potential for
ongoing liability like that of a paternity or child support case. The trial court, therefore,
erroneously ruled this factor weighed against finding good cause.
Again, for all these reasons, we conclude that the trial court erred by holding that good
cause did not exist.
In addition to good cause, defendant was required to establish a meritorious defense to
warrant setting aside a default. MCR 2.603(D)(1). Under Shawl, 280 Mich App at 238, the trial
court was required to consider whether the affidavit of meritorious defense contained evidence
that:
(1) the plaintiff cannot prove or defendant can disprove an element of the
claim or a statutory requirement;
(2) a ground for summary disposition exists under MCR 2.116(C)(2), (3),
(5), (6), (7) or (8); or
(3) the plaintiff’s claim rests on evidence that is inadmissible.
The trial court held that defendant failed to establish a meritorious defense on the basis
that defendant had no defense under the Lease to plaintiff’s claims. Because the trial court
incorrectly construed and interpreted the Lease terms, it incorrectly held that defendant had no
defense and refused to set aside the default. As explained below, the Lease, when properly
construed and interpreted, provided defendant a defense because the Lease did not grant plaintiff
the right to order defendant to remove its equipment, and if defendant refused, terminate the
Lease. The trial court’s original error (explained more below) granting plaintiff’s motion for
partial summary disposition led to its conclusion that defendant lacked any defense.
Accordingly, the trial court’s ruling resulted in an outcome that fell outside the range of
principled outcomes. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).
Therefore, we hold that the trial court abused its discretion by refusing to set aside the
default because defendant established good cause for setting aside the default, and defendant had
a meritorious defense to plaintiff’s claims.
B. SUMMARY DISPOSITION
We next turn our attention to defendant’s argument that the trial court erred by granting
plaintiff summary disposition under MCR 2.116(C)(9) and (10). Summary disposition under
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MCR 2.116(C)(9) may be granted only if the defendant failed to plead a valid defense to a claim.
Village of Dimondale v Grable, 240 Mich App 553, 564; 618 NW2d 23 (2000).
A motion under MCR 2.116(C)(9) tests the sufficiency of a defendant’s pleadings
by accepting all well-pleaded allegations as true. If the defenses are so clearly
untenable as a matter of law that no factual development could possibly deny
plaintiff’s right to recovery, then summary disposition under this rule is proper.
[Id. (citations and quotation marks omitted).]
The trial court “may look only to the parties’ pleadings in deciding a motion under MCR
2.116(C)(9). MCR 2.116(G)(5).” Id. at 565. Under MCR 2.110(A), “pleadings” “include only a
complaint, a cross-claim, a counterclaim, a third-party complaint, an answer to any of these, and
a reply to an answer. A motion for summary disposition is not a responsive pleading under MCR
2.110(A).” Id. (citations omitted).
A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s
claim, and is reviewed by considering the pleadings, admissions, and other evidence submitted
by the parties in a light most favorable to the nonmoving party. Latham v Barton Malow Co, 480
Mich 105, 111; 746 NW2d 868 (2008). Summary disposition is proper if there is “no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of
law.” Id. A genuine issue of material fact exists when “reasonable minds could differ on an
issue after viewing the record in the light most favorable to the nonmoving party.” Allison v
AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). This Court considers only the
evidence that was properly presented to the trial court in deciding the motion. Peña v Ingham Co
Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003).
As a general rule, summary disposition is premature if granted before discovery is
complete on a disputed issue. Dimondale, 240 Mich App at 566. “However, summary
disposition may be proper before discovery is complete where further discovery does not stand a
fair chance of uncovering factual support for the position of the party opposing the motion.” Id.
(citation and quotation marks omitted).
The resolution of this appeal involves the construction and interpretation of the terms of
the Lease. “The primary goal in interpreting contracts is to determine and enforce the parties’
intent.” Old Kent Bank v Sobczak, 243 Mich App 57, 63; 620 NW2d 663 (2000). “To do so,
this Court reads the agreement as a whole and attempts to apply the plain language of the
contract itself.” Id. The language of the contract is to be given its ordinary, plain meaning;
technical, constrained constructions should be avoided. Bianchi v Auto Club of Mich, 437 Mich
65, 71 n 1; 467 NW2d 17 (1991). The construction of the terms of a contract is generally a
question of law for the court; however, where a contract’s meaning is ambiguous, the question of
interpretation should be submitted to the fact-finder. D’Avanzo v Wise & Marsac, PC, 223 Mich
App 314, 319; 565 NW2d 915 (1997). A contract is ambiguous when its words can reasonably
be understood in different ways. Id. Inartfully worded or clumsily arranged contract terms do
not render a contract ambiguous if it fairly admits of one interpretation. Mich Twp Participating
Plan v Pavolich, 232 Mich App 378, 382; 591 NW2d 325 (1998).
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If the language of the Lease was unambiguous, the trial court was required to enforce it
as written, In re Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008), as courts may not
substitute their judgment for the intent of the parties and remake the contract into something the
parties never intended, Grosse Pointe Park v Mich Muni Liability & Prop Pool, 473 Mich 188,
199-200; 702 NW2d 106 (2005). Parties are free to contract as they see fit, and courts must
enforce contracts unless they are in violation of law or public policy. Wilkie v Auto-Owners Ins
Co, 469 Mich 41, 51; 664 NW2d 776 (2003).
Contracts must be construed as a whole, giving effect to all provisions. Royal Prop
Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708, 715; 706 NW2d 426 (2005). Courts
must avoid interpretations that would render any part of a contract surplusage or nugatory, and
must also, if possible, seek an interpretation that harmonizes potentially conflicting terms. Wells
Fargo Bank, NA v Cherryland Mall Ltd Partnership, 295 Mich App 99, 111; 812 NW2d 799
(2011), rem’d on other grounds by 493 Mich 859 (2012). Further, where a contract contains
specific and general terms, the specific terms control over the general terms. Royal Prop Group,
LLC, 267 Mich App at 719.
Here, paragraph 2 of the Lease granted defendant space on plaintiff’s water tower and
near the water tower’s base for an initial five-year lease term with three additional automatically
renewable five-year terms unless defendant notified plaintiff before the end of the initial term of
its intent to not extend the Lease. Paragraph 19 of the Lease granted defendant the right to
terminate the agreement upon 30 days’ notice under specified instances. The Lease did not grant
plaintiff the right to terminate, nor did it expressly state that plaintiff could order defendant to
remove its equipment from the premises.
Paragraph 7(D) of the Lease specifically addressed what was required of defendant if
plaintiff decided to paint the water tower. Specifically, that paragraph provides that when
plaintiff undertook to paint the water tower defendant had to take “reasonable measures” at its
cost to protect its equipment from harm. It does not state that plaintiff could request or order
defendant to vacate the premises. However, the terms stated in ¶ 10 intersect with ¶ 7(D).
Pursuant to ¶ 10, defendant could not interfere with plaintiff’s operation, repair, or maintenance
of the water tower and provided plaintiff the right to take action it deemed necessary in its sole
discretion to repair, maintain, alter, or improve the water tower.
However, paragraphs 2, 7(D), 10, and 19, must be read together. And, when properly
read together, we hold that there was no contractual language where the parties agreed that
plaintiff could order defendant to completely remove its equipment and terminate the Lease
when plaintiff deemed painting or maintenance necessary. Rather, a procedure was implemented
by the parties within ¶ 7(D) in the event plaintiff needed to paint the water tower. Plaintiff
unilaterally determined that that procedure would not suffice, so instead ordered defendant to
remove its property. When defendant opposed this remedy, the trial court ordered the material
removed and terminated the Lease.
However, construing and interpreting the Lease to provide plaintiff the unfettered right to
order defendant to remove all of its equipment and cease its use of the water tower is inconsistent
with ¶ 19, which gives defendant – not plaintiff – the ability to end the Lease early, as well as
with the very purpose of the Lease—defendant’s right to uninterrupted use of the water tower for
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defendant’s business in return for its payment of the rent. The trial court’s decision deprived
defendant of its benefit of the bargain, and created a remedy that did not exist under the Lease.
United Coin Meter Co v Lasala, 98 Mich App 238, 242; 296 NW2d 221 (1980).
The trial court’s orders are reversed, and this matter is remanded for further proceedings
consistent with this opinion.
This Court does not retain jurisdiction.
Defendant may tax costs, having prevailed in full. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Jane E. Markey
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