BURTCHVILLE TOWNSHIP V NOEL BUCKNER
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STATE OF MICHIGAN
COURT OF APPEALS
BURTCHVILLE TOWNSHIP,
UNPUBLISHED
March 10, 2000
Plaintiff-Appellee,
v
No. 209178
St. Clair Circuit Court
LC No. 97-00014- CK
NOEL BUCKNER, d/b/a INDIAN TRAILS
NORTH,
Defendant-Appellant,
and
FORT GRATIOT TOWNSHIP,
Defendant,
and
ST. CLAIR COUNTY,
Defendant/Counterplaintiff.
Before: White, P.J., and Hood and Jansen, JJ.
HOOD, J. (dissenting).
I respectfully dissent from the majority’s conclusion that a contractual agreement was not
reached between the parties.
In the present case, defendant was unable to provide a sufficient water supply to the residents of
its mobile home park from wells. In order to remedy the problem, Noel Buckner and his attorney,
Milton Bush, Jr., negotiated with plaintiff’s representatives. While an agreement was not executed
between plaintiff and defendant, plaintiff’s board executed a resolution which authorized defendant to
obtain water from a neighboring source. However, plaintiff asserted that the authorization was
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temporary. That is, defendant agreed to connect to the water system of plaintiff upon its construction.
The resolution does not unambiguously state that defendant must connect to plaintiff’s system upon its
completion, but rather, provides that plaintiff has the right to “cause” defendant to be included in any
water supply district established by plaintiff. In Alcona County v Freer, 311 Mich 131, 142; 18
NW2d 399 (1945), the Supreme Court held that municipalities must keep records of their official action
and the policy of the law would be defeated by allowing officials to rely on parol evidence. However,
there are exceptions to the general rule. Parol evidence may be considered in disputes involving
municipalities to aid the record of official action where the same is ambiguous or where entries have
been omitted. North Star Twp v Cowdry, 212 Mich 7, 15; 179 NW 259 (1920). The ambiguity in
the language of the resolution required the consideration of parol evidence. Id. Parol evidence is
permitted when the document purporting to express the parties’ intent is incomplete. In re Skotzke
Estate, 216 Mich App 247, 252; 548 NW2d 695 (1996). The testimony of township officials does
not contradict the writing, but explains the intent of the parties where the terms of the resolution are
ambiguous. UAW-GM Human Resource Center v KSL Recreation Corp, 228 Mich App 486, 492;
579 NW2d 411 (1998). Accordingly, I would hold that the trial court did not err in its admission and
reliance upon parol evidence.
Defendant also argued that even if parol evidence was considered, the testimony of Loyall
Watson, John Perry, and Noel Buckner and documentary evidence executed in order for defendant to
obtain a water supply failed to establish an “agreement.” I disagree. Loyall Watson served as plaintiff’s
legal counsel at the time of the negotiations and subsequent enactment of the resolution which allowed
defendant to obtain water from an outside source. Watson specifically testified that the parties did not
intend that defendant would be permitted to maintain a connection to Fort Gratiot Township once
plaintiff had an operational water supply system. While defendant contends that Watson testified that he
had “no independent memory of this at all,” it appears that defendant has taken this statement out of
context. Review of the deposition testimony reveals that Watson was referring to his recollection of
who drafted two unexecuted resolutions in 1980, and not the parties’ transaction as a whole.
Furthermore, defendant ignores the testimony of James Brown, which was relied upon by the
trial court in concluding that defendant was compelled to tap into plaintiff’s water system upon its
completion. Brown, plaintiff’s township supervisor in 1980, testified that the plain language of the
resolution as well as his understanding of the parties’ negotiations required that defendant “hook up” to
plaintiff’s water system once it became operational. The trial court found that this testimony was
credible. This Court gives special deference to the trial court’s findings where they are based on the
credibility of witnesses. In re Pott, 234 Mich App 369, 377; 593 NW2d 685 (1999).
Defendant contends that Buckner testified that an agreement was never reached which would
have required the mobile home park to join any water system created by plaintiff and that the trial court
“did not make a finding that Buckner was not credible.” While there was no express statement in the
opinion addressing Buckner’s credibility, by rejecting Buckner’s version of events, essentially, the trial
court concluded that he was not credible. Furthermore, at trial, Buckner was asked if Brown was a liar
because of his testimony that Buckner had agreed to join plaintiff’s water system upon completion.
Buckner responded that Brown was a good man and a deal “may” have been reached conditioned
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upon the price of connection. Furthermore, at the hearing regarding defendant’s motion for a stay
pending appeal, the trial court indicated that defendant had agreed to join plaintiff’s water system and
could no longer avoid the cost of the “tap-in” fee. While review of a declaratory judgment is de novo,
the trial court’s factual findings will not be reversed unless they are clearly erroneous. Auto-Owners Ins
v Harvey, 219 Mich App 466, 469; 556 NW2d 517 (1996). The trial court’s factual findings were
premised upon the credibility of the witnesses, and I cannot conclude that the factual findings were
clearly erroneous.
While the majority concludes that the practical implications of requiring defendant to connect to
plaintiff’s water system is a cost of between $600,000 and $800,000, the final accounting has yet to be
determined. In addition to this litigation, proceedings were filed before the Tax Tribunal. In an order
denying plaintiff’s motion for summary disposition, the Tax Tribunal took exclusive jurisdiction of the
issue of the special assessment for water services. In that order, the Tax Tribunal noted that the
apportioned amount of $598,775 to defendant consisted of $34,400 for the special assessment and
$564,375 for the “tap-in” charge. The Tax Tribunal also found that the “tap-in” fee was within its
exclusive jurisdiction because it was an exercise of plaintiff’s power to apportion special assessment
costs. At oral argument, the parties represented that the Tax Tribunal proceeding was held in abeyance
pending a decision from this Court. Accordingly, it appears that while the parties have obtained a final
judgment regarding the merits of any agreement to join in plaintiff’s water system, the costs and
propriety of joining remains outstanding. That is, at oral argument, defendant represented that if it was
not included within plaintiff’s water system, it would have to explore other options, including the digging
of wells, in order to supply its residents with water. If the Tax Tribunal ruled in favor of defendant’s
challenge to the special assessment, arguably it could be cost beneficial to join plaintiff’s water system as
opposed to relying on wells.1
Furthermore, I note that while defendant’s disconnection from Fort Gratiot’s water supply
appears to be mandated by statute, any compulsion to join in plaintiff’s water system has not been
adequately addressed by the parties. MCL 324.4703; MSA 13A.4703 provides that two or more
municipalities, as defined by MCL 324.4701; MSA 13A.4701 to include counties and townships, may
request that a water supply district be organized to function in a particular area. MCL 324.4708; MSA
13A.4708 sets forth the powers of a water district and grants water districts the broad authority to
construct and operate water supply systems. Janet Kitamura of St. Clair County Road Commission
testified that water districts were created by the county. She testified that in 1980, defendant was made
a part of water district I extended. As a result of the creation of water district IX, which would serve
plaintiff, district I extended would cease to exist. Accordingly, it appears that, contractual agreements
aside, defendant was required to disconnect from Fort Gratiot’s system and be included in the water
district covering plaintiff’s region. The parties failed to explore whether “inclusion” involves compelled
participation in a water district. MCL 324.3104; MSA 13A.3104 provides that the Department of
Environmental Quality (DEQ), MCL 324.3101; MSA 13A.3101, is to negotiate and cooperate with
other governmental units regarding water quality control planning, development, and management.
Whether this broad degree of authority encompasses an order of mandatory inclusion in a water district
has never been litigated. However, in light of the DEQ’s regulation of water, it appears that the parties
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should have determined whether that regulation has any bearing on defendant’s connection to any water
system or the digging of wells.
I would affirm.
/s/ Harold Hood
1
This is particularly important because defendant’s prior reliance on wells failed to satisfy the water
needs of its mobile home residents.
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