BARK RIVER CULVERT & EQUIPMENT CO V NORTHERN LAND & LUMBER CO
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STATE OF MICHIGAN
COURT OF APPEALS
BARK RIVER CULVERT & EQUIPMENT
COMPANY,
UNPUBLISHED
October 29, 1999
Plaintiff/Counterdefendant-Appellee,
v
NORTHERN LAND & LUMBER COMPANY,
No. 206511
Delta Circuit Court
LC No. 94-012452 CK
Defendant/Counterplaintiff/Third-Party
Plaintiff-Appellant,
v
MORBARK SALES CORPORATION,
Third-Party Defendant-Appellee.
Before: Griffin, P.J., and Sawyer and Smolenski, JJ.
PER CURIAM.
This case involves a sawmill that was sold by appellee Morbark Sales Corporation (Morbark)
to appellee Bark River Culvert & Equipment Company (Bark River), which, in turn, sold the sawmill to
appellant, Northern Land & Lumber Company. Bark River originally sued appellant to collect the
balance due on their sales contract. Appellant subsequently filed a countercomplaint against Bark River
and third-party complaint against Morbark. Appellant and Bark River reached a settlement after the
trial court granted Bark River's motion for summary disposition, but gave appellant an opportunity to file
an amended complaint raising any new claims that were not disposed of by its decision. The trial court
dismissed the case between Bark River and appellant, with prejudice, based on the parties' written
stipulation. Appellant thereafter filed an amended complaint against Morbark, alleging only an express
warranty count. The trial court granted Morbark's motion for summary disposition on the express
warranty count and subsequently denied appellant's motion for reconsideration. As part of the order
denying reconsideration, the trial court also refused to set aside the settlement and order of dismissal
involving Bark River. Appellant appeals as of right. We affirm.
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First, we reject appellant’s contention that the trial court erred in denying appellant’s motion for
reconsideration of the order granting summary disposition in favor of Morbark. We review an order
denying reconsideration for an abuse of discretion. In re Beglinger Trust, 221 Mich App 273, 279;
561 NW2d 130 (1997). Generally, to be entitled to relief under MCR 2.119(F)(3), the "moving party
must demonstrate a palpable error by which the court and the parties have been misled and show that a
different disposition of the motion must result from correction of the error."
Here, the trial court's grant of summary disposition on the express warranty count against
Morbark was based on the lack of privity of contract between appellant and Morbark. However,
appellant has established no basis for disturbing the trial court's decision to deny reconsideration relative
to that ruling. Although appellant contends that principles of fairness should justify allowing it to proceed
against Morbark for breach of an express warranty, appellant cites no authority in support of its
position. A party may not leave it to a reviewing court to discover and rationalize the basis of a claim.
Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Next, with regard to the trial court's ruling relative to Bark River, we note that appellant
incorrectly relies on the applicable standard for reviewing a motion under MCR 2.116(C)(10). We find
that appellant's reliance on this standard is misplaced because the material question before us is whether
the trial court's refusal to set aside the settlement and vacate the order of dismissal should be reversed.
Despite appellant’s characterization of its motion as one for reconsideration, we decline to review the
motion as such under MCR 2.119(F). Because appellant sought this relief in a motion filed after entry
of the final order adjudicating all the parties' rights was entered, i.e., the order granting summary
disposition in favor of Morbark, it was necessary that appellant establish entitlement to post-judgment
relief under MCR 2.612(C). See MCR 2.119(F)(1), which provides that unless another rule provides
a different procedure for reconsideration, e.g., MCR 2.604(A) or MCR 2.612, “a motion for rehearing
or reconsideration of the decision on a motion must be served and filed not later than 14 days after entry
of an order disposing of the motion.”
Although neither appellant's motion nor the trial court's decision specified the court rule forming
the basis of the motion relative to Bark River, we will examine the trial court's decision in the context of
MCR 2.612(C). See Flanders Industries, Inc v Michigan, 203 Mich App 15, 18 n 1; 512 NW2d
328 (1993) (failure of trial court to specify the court rule forming the basis of decision is not fatal under
general principle that "mislabeling of motion does not preclude review where the lower court record
otherwise permits it"). The trial court's decision on a motion for relief from a judgment or order
pursuant to MCR 2.612(C) will not be disturbed absent an abuse of discretion. Driver v Hanley
(After Remand), 226 Mich App 558, 564-565; 575 NW2d 31 (1997).
Upon reviewing the record, we conclude that appellant has not demonstrated an abuse of
discretion. Appellant's contention that the settlement agreement was based on a mutual mistake of fact
is not properly before us because it was not presented to the trial court. Absent unusual circumstances,
issues not raised below may not be raised on appeal. Peterman v Dep't of Natural Resources, 446
Mich 177, 183; 521 NW2d 499 (1994). Here, the record suggests that appellant's attorney may have
had a unilateral misunderstanding of the legal consequences of the trial court's ruling to grant Bark
River's motion for summary disposition (e.g., he incorrectly argued that the law of the case doctrine
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applied when opposing Morbark's motion for summary disposition). However, the applicable rule,
MCR 2.612(C)(1)(a), which provides that the court may relieve a party from a final judgment on the
ground of mistake, inadvertence, surprise, or excusable neglect, was "not designed to relieve counsel of
ill-advised or careless decisions." Limbach v Oakland Co Bd of Co Rd Comm'rs, 226 Mich App
389, 393; 573 NW2d 336 (1997), quoting Lark v Detroit Edison Co, 99 Mich App 280, 283; 297
NW2d 653 (1980).
We reject appellant’s contention that it was “fundamentally unfair” for the trial court to hold that
the warranty passed from Bark River to Morbark, and then hold that the warranty is unenforceable
against Morbark because there was no privity of contract. We are not persuaded that the trial court
abused its discretion in refusing to set aside the voluntary settlement and order of dismissal based on its
determination that there was no sufficient legal reason to do so. Assuming that appellant was attempting
to show entitlement to relief under the "any other reason" provision of MCR 2.612(C)(1)(f), its
argument fails because extraordinary circumstances warranting relief have not been shown. Limbach,
supra at 393. “Generally, relief is granted under subsection f only when the judgment was obtained by
the improper conduct of the party in whose favor it was rendered.” Altman v Nelson, 197 Mich App
467, 478; 495 NW2d 826 (1992).
Affirmed.
/s/ Richard Allen Griffin
/s/ David H. Sawyer
/s/ Michael R. Smolenski
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