MIDLAND MUTUAL LIFE INSURANCE V JOHN R ROBISON
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MIDLAND MUTUAL LIFE INSURANCE,
UNPUBLISHED
February 21, 1997
Plaintiff,
v
No. 185868
LC No. 93-307775 CZ
JOHN R. ROBISON and MARILYNN G.
ROBISON,
Defendants/Cross-Plaintiffs/
Counter-Defendants/
Third-Party Plaintiffs/Appellants,
and
MITAN PROPERTIES COMPANY,
Defendant/Cross
Defendant/Counter
Plaintiff/Appellee,
and
KENNETH MITAN,
Third-Party Defendant/Appellee,
and
KEITH MITAN,
Defendant/Appellee,
and
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FIRST OF AMERICA BANK-ANN ARBOR,
JOHN R. ROBISON, D.D.S., and SHAFT
CHIROPRACTIC,
Defendants.
Before: Gribbs, P.J., and Young and W. J. Caprathe,* JJ.
PER CURIAM.
John Robinson and Marilynn Robison appeal as of right from the April 24, 1995, order denying
their motion for reconsideration of a previously entered order granting Mitan Properties, Kenneth Mitan
and Keith Mitan’s motion for summary disposition. We affirm.
This dispute arises out of the sale of certain property located in the Charter Township of
Canton. There are three medical buildings on the property. A portion of the land was owned by the
Robisons and the larger plot was subject to a mortgage note held by plaintiff. The Robisons sold the
larger plot of land to Mitan Properties pursuant to a land contract. Mitan Proeprties never made
payments on the land contract and the Robisons defaulted on the note. Plaintiff initiated this action
against the Robisons and the other defendants seeking judgment on the note and foreclosure of the
property. The Robisons answered the complaint, and filed a cross-claim and a third-party complaint
against Mitan Properties, Kenneth Mitan and Keith Mitan alleging breach of contract. The Mitans then
filed a counter-complaint against the Robisons alleging fraudulent misrepresentation and fraudulent
concealment. The lower court granted the Mitans’ motion for summary disposition pursuant to MCR
2.116(C)(10).
The Robisons first argue that the lower court erred when it granted summary disposition
because it relied upon an affidavit that did not conform with the court rules and because the affidavit was
submitted by a witness who was not listed on the Mitans’ witness list. We disagree. On appeal, a trial
court's grant of summary disposition is reviewed de novo to determine whether the moving party was
entitled to judgment as a matter of law. Allen v Keating, 205 Mich App 560, 562; 517 NW2d 830
(1994). A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a
claim. The lower court must consider the pleadings, affidavits, depositions, admissions, and other
documentary evidence available to it. Then, giving the benefit of any reasonable doubt to the nonmoving
party, the lower court must determine whether a record might be developed which would leave open an
issue upon which reasonable minds can differ. SCD Chemical Distributors, Inc v Medley, 203 Mich
App 374, 378; 512 NW2d 86 (1994). Summary disposition may be granted only if there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Plieth v
St Raymond Church, 210 Mich App 568, 571; 534 NW2d 164 (1995).
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A review of Jeffrey Goulet’s affidavit reveals that it was based upon his personal knowledge, it
stated facts that were admissible as evidence and it indicated that he could testify competently to the
facts stated in the affidavit. As such, the affidavit conformed to the court rule. MCR 2.119(B)(1).
Further, the lower court properly relied upon the affidavit as the Mitans were unaware that the property
could not be divided until after speaking with Jeffrey Goulet. At that point, he became a necessary
witness for the Mitans’ case and there was good cause to include him on the witness list. Tinsbury v
Armstrong, 194 Mich App 19, 20-21; 486 NW2d 51 (1992). The Robisons were not prejudiced by
the information in the affidavit as the record indicated that they were aware of the contents of the
affidavit. Id.
The Robisons also argue that the lower court erred in granting summary disposition on the basis
of mutual mistake because the Mitans failed to plead that defense and, therefore, waived it. The
Robisons have failed to preserve this issue for appellate review as it was not raised and resolved on the
record below. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992).
In any event, the Mitans pleaded an affirmative defense of rescission and a contract may be rescinded
on the basis of mutual mistake. Dingeman v Reffitt, 152 Mich App 350, 355; 393 NW2d 632
(1986).
The Robisons next argue that the Mitans failed to prove mutual mistake. We disagree. The
determination of 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? A contractual mistake is a belief that is not in accord with the facts
and it must relate to a fact in existence at the time the contract is executed. The legal significance of a
mistaken belief is determined on a case by case basis. Dingeman, supra, 152 Mich App 355-356.
Under that approach, rescission is appropriate where the mistaken belief relates to a basic assumption
of the parties upon which the contract is made, and which materially affects the agreed performances of
the parties. Britton v Parkin, 176 Mich App 395, 398; 438 NW2d 919 (1989); Dingeman, supra,
152 Mich App 356.
Here, there was mistaken belief by both parties at the time they executed the land contract
because they believed that the land could be divided into two separate parcels. This belief, however,
proved to be erroneous because, after the execution of the contract, the parties discovered that several
zoning variances would be necessary to effectuate the partitioning of the property and that the granting
of the zoning variances would not be attainable because there was insufficient space to accommodate
the needed road easement. At the time the contract was entered into, the zoning ordinances were in
effect and the ordinances existed at the time the contact was executed. Dingeman, supra, 152 Mich
App 355.
Also, the legal significance of the mistaken belief related to a basic assumption of the parties
upon which the contract was made, and which materially affected the agreed performances of the
parties. The parties erroneously assumed that the property could be partitioned and that the Robisons
could transfer a warranty deed to the Mitans. However, the variances necessary to effectuate the
division of the land were impossible to obtain and hence, prevented the Robisons from providing a
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warranty deed to the Mitans. This mistake clearly affected the agreed performances of the parties
because the Robisons could not transfer clear title. Britton, supra, 176 Mich App 398; Dingeman,
supra, 152 Mich App 356.
Lastly, the Robisons argue that a condominium deed is the equivalent of a standard warranty
deed. We find no merit to this argument. A comparison of the statute governing warranty deeds, MCL
565.151; MSA 26.571, and the statute governing condominium deeds, MCL 559.101 et seq.; MSA
26.50(101) et seq., reveals that the interest that transfers pursuant to a warranty deed or a
condominium deed are fundamentally different. The Mitans contracted for a warranty deed as opposed
to a condominium deed.
Affirmed.
/s/ Roman S. Gribbs
/s/ Robert P. Young, Jr.
/s/ William J. Caprathe
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