Order Michigan Supreme Court
Lansing, Michigan
September 28, 2012 Robert P. Young, Jr.,
Chief Justice
144319 & (80) Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
FIFTH THIRD MORTGAGE-MI, L.L.C., FIFTH Brian K. Zahra,
THIRD MORTGAGE COMPANY, and FIFTH Justices
THIRD BANK,
Plaintiffs-Appellees,
v SC: 144319
COA: 294698
Oakland CC: 05-070592-CZ
ROBERT M. HANCE, STEPHANIE HANCE,
EXECUTIVE ESTATE BUILDERS, L.L.C., and
ROCKRIDGE HOLDINGS, INC.
Defendants,
and
FIRST AMERICAN TITLE INSURANCE
COMPANY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion to seal the record is GRANTED. The Court
finds that there is good cause to seal the record, consistent with the Oakland Circuit
Court’s September 27, 2006 protective order and the April 12, 2010 Court of Appeals
order sealing the briefs and exhibits. There is no less restrictive means to adequately and
effectively protect the specific interests asserted. See MCR 7.313(A), (D) and
MCR 8.119(F)(1). The application for leave to appeal the September 29, 2011 judgment
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
MARKMAN, J. (concurring).
I join in this Court’s order denying leave to appeal, but write separately to address
the Court of Appeals majority’s departure from the principles of resolving allegedly
ambiguous contract provisions established in Klapp v United Ins Group Agency, Inc, 468
2
Mich 459 (2003). As this Court clarified in Klapp, “‘“[t]he law is clear that where the
language of the contract is ambiguous, the court can look to such extrinsic evidence as
the parties’ conduct, the statements of its representatives, and past practice to aid in
interpretation.”’” Id. at 470, quoting Penzien v Dielectric Prod Engineering Co, Inc, 374
Mich 444, 449 (1965). Only if ambiguity persists even after all other conventional means
of contract interpretation have been applied, and all relevant extrinsic evidence
considered, should the rule of contra proferentem (ambiguous contracts to be construed
against the drafting party) be applied, as it was in this case. Klapp, 468 Mich at 474.
Contrary to the analysis of the Court of Appeals majority, the rule of contra proferentem
is a rule of last resort. The primary goal of contract interpretation is to honor the parties’
intent, and the rule of contra proferentem does not further that goal; rather, it merely
ascertains “the winner and the loser in connection with a contract whose meaning has
eluded [the decision-maker] despite all efforts to apply conventional rules of
interpretation.” Id. at 474. That is, it is essentially a tiebreaker. However, a tie cannot be
declared without first considering relevant extrinsic evidence. I concur with this Court’s
order because, although I believe that reasonable interpretations of the contract in dispute
have been offered by both sides, in the end, I agree with the result reached by the Court
of Appeals without finding the contract here to be ambiguous.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 28, 2012 _________________________________________
p0925 Clerk