Order Michigan Supreme Court
Lansing, Michigan
May 27, 2011 Robert P. Young, Jr.,
Chief Justice
142647 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
LAETHEM EQUIPMENT COMPANY, Mary Beth Kelly
LAETHEM FARM SERVICE COMPANY, Brian K. Zahra,
MICHAEL T. LAETHEM, and MARK E. Justices
LAETHEM,
Plaintiffs-Appellees,
v SC: 142647
COA: 293116
Saginaw CC: 05-055440-NM
CURRIE KENDALL, P.L.C.,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 13, 2011
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
MARKMAN, J. (concurring).
I concur for the simple reason that the language of the release at issue does not
include defendants. Unfortunately, the Court of Appeals, which reached the correct
result, engaged in an analysis that was clouded and confused by Shay v Aldrich, 487
Mich 648 (2010). Relying upon Shay, as it was obligated to do, the Court of Appeals
engaged in an unnecessary discussion concerning third-party beneficiaries to determine
that defendants are not third-party beneficiaries of this release, a conclusion that is both
obvious and irrelevant. As I stated in my dissent in Shay, “[t]he third-party-beneficiary
statute is relevant in this case only because it precludes a court from considering
plaintiff's motion for reformation, not because it provides a basis for rewriting Michigan
contract law.” Shay, 487 Mich at 704. In the instant case, however, there being no
motion for reformation or, indeed, any need for such motion, the third-party beneficiary
statute simply has no application. It is regrettable, but altogether predictable, that the
parties would disagree concerning the meaning of Shay, and that the lower courts in
following Shay would engage in irrelevant analysis of contract law. Shay, in my
judgment, remains a decision that “unsettles contract law in this state on the basis of an
essentially impenetrable analysis.” Id. at 706.
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.
May 27, 2011 _________________________________________
t0524 Clerk