If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL SOAVE, UNPUBLISHED
May 26, 2022
Plaintiff-Appellee,
v No. 357651
Monroe Circuit Court
BILLY HOPKINS, LC No. 21-143648-CH
Defendant-Appellant.
Before: JANSEN, P.J., and CAVANAGH and RIORDAN, JJ.
PER CURIAM.
In this contract dispute, defendant appeals as of right the trial court’s order granting
plaintiff’s motion for summary disposition. We affirm.
I. BACKGROUND
This case arises out of a contract dispute regarding the sale of land. Defendant and plaintiff
entered into an agreement in the form of an Offer to Purchase Real Estate, in which plaintiff agreed
to purchase land from defendant in the Village of Dundee. The agreement included a legal
description of two separate lots totaling “115.73+-” acres. The agreement contained a price of
$8,500 “per gross acre as certified by a survey to be prepared by a Registered Land Surveyor to be
mutually agreed to by the Parties, at Purchaser’s expense, and supplied to Seller.” In addition, the
agreement provided that
[s]aid survey shall be an ALTA staked survey certified to the Seller certifying the
gross acreage to within 1/100ths of an acre with no deduction for easements or right
of ways. Said survey shall be completed within 14 days of mutual acceptance of
the Offer to Purchase by the Parties and provided by Purchaser to Seller with
acceptance by Parties within 7 days of the certification.
The agreement also provided plaintiff with the right to seek specific performance as his sole
remedy in the event of a breach. In December 2020, the parties signed an addendum to the
agreement, adding:
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A. The ALTA survey procured by the Purchaser in order to determine the
gross acreage of the Property shall be completed by Purchaser’s Land Surveyor
shall be on or before December 31, 2020.
B. The Closing on the Property shall occur on or before January 31, 2021.
After the survey was completed, defendant refused to proceed to closing, believing the
property contained more than the 88.29 acres determined by the survey. Plaintiff filed a complaint
for specific performance and moved for summary disposition under MCR 2.116(C)(10). In
response, defendant argued that rescission of the contract was required because both parties were
mistaken as to the property’s acreage. The trial court granted plaintiff’s motion for summary
disposition and ordered specific performance of the contract. Defendant unsuccessfully moved
for reconsideration, arguing that plaintiff had not complied with the terms of the agreement
because plaintiff failed to complete and deliver the required certified survey under the agreement.
This appeal followed.
On appeal, defendant contends the trial court erred because (1) a mutual mistake existed as
to the acreage of the property, and rescission of the contract should have been granted, and (2)
questions of fact remained regarding the acreage of the property and the timely delivery of the
survey required under the contract, making summary disposition inappropriate under MCR
2.116(C)(10).
II. STANDARD OF REVIEW
“We review de novo a trial court’s decision to grant or deny summary disposition.” Broz
v Plante & Moran, PLLC, 331 Mich App 39, 45; 951 NW2d 64 (2020). Summary disposition is
appropriate under MCR 2.116(C)(10) when no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. West v Gen Motors Corp, 469 Mich 177, 183; 665
NW2d 468 (2003). “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” Id. “[W]e review the entire record to determine whether the moving party was entitled
to summary disposition.” Broz, 331 Mich App at 45. This Court considers “affidavits, pleadings,
depositions, admissions, and documentary evidence filed in the action or submitted by the parties,
in a light most favorable to the party opposing the motion” in its review. Sanders v Perfecting
Church, 303 Mich App 1, 4; 840 NW2d 401 (2013) (quotation marks and citation omitted).
Questions involving the interpretation of a contract are also reviewed de novo. Rory v
Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). “In ascertaining the meaning of a
contract, we give the words used in the contract their plain and ordinary meaning that would be
apparent to a reader of the instrument.” Id.
III. MUTUAL MISTAKE
Defendant first argues that a mutual mistake existed as to the property’s accurate number
of acres, and the trial court should have rescinded the contract based on the parties’ mistake. We
disagree.
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“A contractual mistake is a ‘belief that is not in accord with the facts.’ ” Lenawee Co Bd
of Health v Messerly, 417 Mich 17, 24; 331 NW2d 203 (1982) (citation omitted). This erroneous
belief “must relate to a fact in existence at the time the contract is executed.” Id. Our Supreme
Court defined a mutual mistake of fact “to mean an erroneous belief, which is shared and relied on
by both parties, about a material fact that affects the substance of the transaction.” Ford Motor Co
v Woodhaven, 475 Mich 425, 442; 716 NW2d 247 (2006). A trial court has discretion to rescind
a contract if a mutual mistake exists. Lenawee Co Bd of Health, 417 Mich at 26. “The
determination whether [a party is] entitled to rescission involves a bifurcated inquiry: (1) was there
a mistaken belief entertained by one or both of the parties to a contract? and (2) if so, what is the
legal significance of the mistaken belief?” Garb-Ko, Inc v Lansing-Lewis Servs, Inc, 167 Mich
App 779, 782; 423 NW2d 355 (1988).1
Defendant argues that a mutual mistake existed because both parties were mistaken as to
the acreage of the property, and summary disposition should have been denied. We disagree.
Defendant presented insufficient evidence that a mutual mistake existed, and has not shown that
plaintiff thought that the approximate acreage of 115.73 in the agreement was correct. Defendant’s
main argument on this point is to contend that because plaintiff drafted the agreement, plaintiff
must have believed the property contained 115.73 acres. Klapp v United Ins Group Agency, Inc,
468 Mich 459, 470; 663 NW2d 447 (2003) (finding any ambiguities in a contrast must be construed
against the drafter). However, defendant’s argument ignores that to apply this rule, the contract
must be ambiguous or contain ambiguous terms. A contract is ambiguous “when its provisions
are capable of conflicting interpretations.” Id. at 467 (quotation marks and citation omitted).
“Accordingly, if two provisions of the same contract irreconcilably conflict with each other, the
language of the contract is ambiguous.” Id. Extrinsic evidence may be considered to interpret a
contract containing ambiguous language. Id. at 469. Defendant does not argue any ambiguity,
and no ambiguity was found by the trial court. A review of the agreement does not reveal any
ambiguous or irreconcilably conflicting terms. Thus, defendant’s argument that a mutual mistake
existed fails from the outset.2
The terms of the agreement provide insight into plaintiff’s intent. An unambiguous
agreement between parties must be enforced as written. Rory, 473 Mich at 470. Additionally, “an
unambiguous contractual provision is reflective of the parties’ intent as a matter of law.” Quality
Prod and Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). The
1
“Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),
they nevertheless can be considered persuasive authority[.]” In re Stillwell Trust, 299 Mich App
289, 299 n 1; 829 NW2d 353 (2012). Uncontradicted opinions decided before November 1, 1990,
are “entitled to significantly greater deference than are unpublished cases.” Woodring v Phoenix
Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018).
2
Defendant also implores this Court to find a unilateral mistake existed, even if it does not find a
mutual mistake. However, even if plaintiff mistakenly believed the property contained 115.73
acres, a contract cannot be avoided or reformed based on a unilateral mistake unless that mistake
was induced by fraud. Smith Living Trust v Erickson Retirement Communities, 326 Mich App
366, 385; 928 NW2d 277 (2018). Defendant has not shown that plaintiff fraudulently induced
defendant into signing the agreement; thus, this argument is irrelevant.
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clear and unambiguous terms of the agreement included the sale of vacant land consisting of
“115.73+-” acres at the price of $8,500 per acre “as certified by a survey.” These terms only show
that plaintiff was prepared to purchase all land owned by defendant, with the amount of land to be
determined later by a survey. Therefore, defendant’s argument that plaintiff must have believed
the property contained 115.73 acres lacks merit, and there is no evidence of a mutual mistake.
In a related argument, defendant contends that parol evidence should have been allowed to
determine the intent of the parties at the time the agreement was signed. Specifically, defendant
argues parol evidence must be examined in the case of a mutual mistake of fact to determine the
intent and understanding of the parties. Defendant cites Koch v Bird, 174 Mich 594, 597; 140 NW
919 (1913), in which our Supreme Court stated, “it is the duty of the court to look into testimony
as to all of the surrounding circumstances and conversations leading up to the sale to ascertain and
determine whether the sale was by the acre or in gross.”
However, “[p]arol evidence of contract negotiations, or of prior or contemporaneous
agreements that contradict or vary the written contract, is not admissible to vary the terms of a
contract which is clear and unambiguous.” Barclae v Zarb, 300 Mich App 455, 480; 834 NW2d
100 (2013) (quotation marks and citation omitted). Because defendant failed to show the contract
contains ambiguities, this argument also lacks merit and parol evidence cannot be considered.
Defendant further supports his argument that a mutual mistake existed by citing caselaw
regarding mutual mistake related to the sale of land. Defendant cites Koch, 174 Mich at 596, in
which an agreement for the purchase of land described the land as containing 110 acres of land,
“more or less,” for a total price of $9,075. Later, it was discovered the actual acreage was only
104½ acres. Id. The difference in acreage resulted in the seller receiving payment for more acres
than the property actually contained. Our Supreme Court found there was a mutual mistake with
respect to the number of acres in the farm, and that mistake was a material element of the contract.
Id. at 599. Here, there is no evidence the contract was meant to be an agreement to sell a specified
number of acres like in Koch. Instead, the agreement obligated defendant to sell an approximate
number of acres to be determined by a professional survey at a set price per acre.
Defendant next cites Garb-Ko, in which a seller wished to rescind a contract for the sale of
a property because the ground and groundwater were contaminated by leaking gasoline storage
tanks, which neither party was aware of at the time the agreement was executed. Garb-Ko, 167
Mich App at 781. This Court found the agreement had been signed under a mutual mistake of fact
as to the condition of the property. Id. at 782-783.
Similarly, in Lenawee Co Bd of Health, 417 Mich at 21, a property’s buyers discovered
raw sewage seeping out of the ground and asked for the land contract to be rescinded. Our
Supreme Court found that the parties “both mistakenly believed that the property which was the
subject of their land contract would generate income as a rental property,” and “[t]he fact that it
could not be used for human habitation deprived the property of its income-earning potential and
rendered it less valuable.” Id. at 29. The invalidity of this assumption “changed the character of
the property transferred, thereby frustrating, indeed precluding [the sellers’] intended use of the
real estate.” Id. at 30-31. Thus, the parties’ mutual mistake of fact materially affected the
performance of the parties. Id. at 31.
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In both of the cited cases, the property was found to be less valuable than initially believed
by the parties at the time they entered into the agreements because of latent defects in the land.
This was found to warrant rescission or reformation of the contracts because both parties were
mistaken as to the basic worth and possible uses of the properties. Even if a mutual mistake existed
in this matter, regarding the number of acres defendant owned, the number of acres would not
materially affect the performance of the parties where the contract required payment of a specific
price per acre for a to-be-determined number of acres verified by a survey.
Defendant also argues rescission is justified because plaintiff would be unjustly enriched
if defendant is forced to sell the property. Unjust enrichment has been defined as the retention of
a benefit conferred by another, without offering compensation, in circumstances where
compensation is reasonably expected. Barber v SMH (US), Inc, 202 Mich App 366, 375; 509
NW2d 791 (1993). Specifically, the difference in acreage between the approximately 115.73 acres
stated in the agreement and the 88.29 acres confirmed by the survey would result in defendant
making less money off the property than he expected at the time he entered into the agreement.
While it is true that defendant will make less money than he would have if the property actually
contained 115.73 acres, this is only because defendant is selling less acres than he expected.
Plaintiff is not unjustly enriched because he is paying per acre in accordance with the agreement.
Defendant has not shown a proper reason for rescission with this argument.
Because defendant failed to provide evidence of a mutual mistake, the trial court was not
obligated to void the agreement, and the trial court properly granted plaintiff summary disposition.
IV. QUESTION OF FACT UNDER MCR 2.116(C)(10)
Next, defendant argues that questions of fact remained regarding: (a) whether the survey
was timely delivered to defendant and (b) the understanding of the parties as to the number of acres
of the property at the time the agreement was signed, which should have precluded the trial court
from granting summary disposition. We disagree.
Defendant first argues a material question of fact remained regarding whether plaintiff
timely delivered the certified survey to defendant as required by the agreement. Defendant argues
that plaintiff failed to deliver the certified survey by December 31, 2020, as required by the
addendum. In the response to plaintiff’s motion for summary disposition, defendant argued that
plaintiff failed to deliver the certified survey and that the survey plaintiff relied on is “not the
survey that the [agreement] required.” In addition, defendant argued the survey was not certified
to defendant and was never delivered to defendant. However, defendant’s response to plaintiff’s
motion for summary disposition failed to provide any evidence disputing the survey or that the
survey was given to him.
Even viewing the evidence in the light most favorable to defendant, defendant has failed
to present any evidence showing a remaining issue of material fact. “If the opposing party fails to
present documentary evidence establishing the existence of a material factual dispute, the motion
is properly granted” under MCR 2.116(C)(10). Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890
NW2d 344 (2016) (quotation marks and citation omitted). While defendant did submit an affidavit
with his motion for reconsideration purporting to show the survey was never delivered, this
evidence was not considered by the court when ruling on the motion for summary disposition.
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Plaintiff’s motion for summary disposition included the completed survey, and defendant failed to
present any evidence to contest the validity of the survey or its timely delivery.
Defendant likewise did not submit any evidence of the intent or mindset of the parties,
although he argues that a question of fact remains as to their intent at the time they entered into
the agreement. Specifically, defendant argues that he only intended to sell 115 acres “give or take
a fractional amount,” and plaintiff was aware that defendant would not have sold the property
otherwise. Defendant again argues parol evidence should have been considered regarding the
parties’ mindset, reviving his argument that ambiguities in the contract required the trial court to
consider extrinsic evidence to determine the intent of the parties. As explained previously, this
argument lacks merit because defendant failed to show any ambiguity in the contract requiring
extrinsic evidence to be used. Klapp, 468 Mich at 467.
Because defendant failed to present evidence to show a genuine issue of material fact on
these issues, the trial court properly granted summary disposition in favor of plaintiff.3
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Michael J. Riordan
3
Based on the assertion of plaintiff’s counsel at oral argument that plaintiff was in bankruptcy, we
ordered plaintiff’s counsel to file with this Court bankruptcy documents excluding the parcel
involved in this litigation from the bankruptcy proceedings. Soave v Hopkins, unpublished order
of the Court of Appeals, entered May 5, 2022 (Docket No. 357651). Plaintiff produced a
November 18, 2020 order from the bankruptcy court denying his motion for authorization to sell
real estate “without prejudice to the Debtor’s right to sell the subject real estate outside the
confirmed plan in this case.” Therefore, it appears that this parcel is not subject to bankruptcy
jurisdiction, and the sale may proceed.
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