BUHL REALTY CO V EQUITABLE LIFE ASSURANCE SOCIETY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
BUHL REALTY COMPANY, INC. and
GRISWOLD LARNED PARKING COMPANY,
UNPUBLISHED
September 18, 2001
Plaintiffs-Appellants,
v
EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES, MERRILL LYNCH LIFE
INSURANCE COMPANY, and DEFNB
CORPORATION,
No. 221562
Wayne Circuit Court
LC No. 98-833175-CZ
Defendants-Appellees,
and
BUHL BUILDING, LLC and CREDIT SUISSE
FIRST BOSTON MORTGAGE CAPITAL, LLC,
Defendants.
Before: Jansen, P.J., and Collins and Cooper, JJ.
PER CURIAM.
Plaintiffs appeal as of right from a trial court order granting defendants’ motion for
summary disposition and their request for sanctions. We affirm.
Defendants Equitable Life Assurance Society and Merrill Lynch Life Insurance Company
loaned money to plaintiffs, which was secured with a mortgage on certain property. Plaintiffs
defaulted on the loan, and defendants brought a foreclosure action. Subsequently, a consent
judgment was entered, which, among other things, provided plaintiffs with a right of first offer
on the property:
6.8. Right of First Offer. Provided that Plaintiffs, or their Affiliates, are
the Sale Purchaser, Buhl and Parking Company shall have a right of first offer to
purchase the Property, subject to the following terms and conditions:
-1-
A.
At any time after the first business day in January 1996, Equitable,
at its exclusive option, may offer in writing to sell the Property to Borrowers at an
all cash price (“Offering Price”) to be determined by Equitable. Equitable is not
obligated to make any such offer to Borrowers and the period of this right of first
offer shall terminate on the first business day of January 1997. [Emphasis added.]
In 1998, defendants sold the property to a third party. Plaintiffs brought suit against
defendants, alleging, among other things, that defendants breached the consent judgment by
failing to market the property sooner as promised during negotiations. Defendants, relying on the
clear and unambiguous terms of ¶ 6.8.A, moved for summary disposition under MCR
2.116(C)(10), which the trial court granted.
On appeal, plaintiffs first argue that they set forth cognizable claims for breach of
contract and fraud in the inducement. The standard of review was succinctly set forth in Harts v
Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999):
A motion pursuant to MCR 2.116(C)(10) tests the factual support of a
plaintiff’s claim and is subject to de novo review. Smith v Globe Life Ins Co, 460
Mich 446; 597 NW2d 28 (1999). In reviewing a motion for summary disposition
pursuant to MCR 2.116(C)(10), the court considers the pleadings, affidavits and
other documentary evidence filed in the action or submitted by the parties, MCR
2.116(G)(5), in the light most favorable to the nonmoving party. Id. The motion
is properly granted if the documentary evidence presented shows that there is no
genuine issue with respect to any material fact and the moving party is therefore
entitled to judgment as a matter of law. Id.
Although a judgment entered by consent is not a mere contract, Trendell v Solomon, 178
Mich App 365, 369; 443 NW2d 509 (1989), judgments entered pursuant to the agreement of
parties are “of the nature of a contract, rather than a judicial order entered against one party.”
Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708
(1994). Thus, the terms of the agreement, for purposes of interpretation, may be governed by
legal principles generally applicable to the interpretation of contracts. See Gojcaj v Moser, 140
Mich App 828, 834; 366 NW2d 54 (1985).
The initial question whether a contract is ambiguous is a question of law, which is
reviewed de novo. Port Huron Ed Ass’n v Port Huron Area School Dist, 452 Mich 309, 323;
550 NW2d 228 (1996). If the contractual language is clear and unambiguous, its meaning is a
question of law. Id. If the contractual language is unclear or susceptible to multiple meanings,
interpretation is a question of fact. Id.
Here, it is undisputed that the consent judgment was the result of extensive negotiations
between the parties and their respective counsel. Paragraph 6.8.A of the consent judgment
clearly and plainly provides that Equitable Life Assurance had an exclusive option to market the
property during 1996, but was not obligated to do so. Nowhere does the consent judgment
provide that Equitable Life Assurance was required to immediately market the property, market
the property during 1996, or sell the property only to plaintiffs. As such, under the exclusive
option provided to Equitable Life Assurance in ¶ 6.8.A, its decision to refrain from marketing the
-2-
property until 1998 was entirely proper. Moreover, under the plain language of ¶ 6.8.A, the right
of first offer expired on January 2, 1997 and, thus, Equitable Life Assurance was undisputedly
free market the property in 1998 at its discretion.
In arguing that defendants breached the consent judgment, plaintiffs rely on two affidavits
in which the affiants aver that defendants’ representative stated that defendants intended to
market the property “at the earliest opportunity,” and that plaintiffs were misled and defrauded
into signing the consent judgment, given defendants’ misrepresentations. However, the proffered
affidavits are contradictory to the plain and unambiguous language of ¶ 6.8.A. It is well
established that parol evidence of prior or contemporaneous agreements or negotiations that
contradict or vary the clear and unambiguous terms of a written agreement is not admissible.
UAW-GM Human Resource Center v KSL Recreation Corp, 228 Mich App 486, 494; 597 NW2d
411 (1998).
Plaintiffs claim that the proffered parol evidence should be allowed because the consent
judgment does not express the parties’ complete agreement, In re Skotzke Estate, 216 Mich App
247, 251-252; 548 NW2d 695 (1996), and because the consent judgment lacks a merger clause.
Although plaintiffs point to other parts of the consent judgment in an attempt to demonstrate the
ambiguity and incompleteness of ¶ 6.8.A, it is clear that the provision completely embodies
defendants’ obligation to plaintiffs with regard to providing them a right of first offer. The
remaining provisions of ¶ 6.8 address procedural aspects concerning if and when the right of first
offer is exercised. Further, plaintiffs have failed to provide any support for their position that
every agreement must have a merger clause to be considered a complete embodiment of the
parties’ intention. A party may not merely announce a position and then leave it to this Court to
discover and rationalize the basis for the claim. Mudge v Macomb Co, 458 Mich 87, 105; 580
NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Accordingly, the parol evidence rule does not allow the proffered affidavits, and plaintiffs have
failed to set forth a claim of breach of contract.
Plaintiffs also claim that they are entitled to relief because they were fraudulently induced
into signing the consent judgment. Fraud in the inducement, which is intrinsic fraud, occurs
where a party materially misrepresents future conduct under circumstances in which the
assertions may reasonably be expected to be relied upon and are relied upon. Sprague v
Buhagiar, 213 Mich App 310; 539 NW2d 587 (1995), Samuel D Begola Services, Inc v Wild
Brothers, 210 Mich App 636, 640; 534 NW2d 217 (1995). Our Supreme Court has declined to
recognize an independent action at law to recover damages for intrinsic fraud. See Triplett v St
Amour, 444 Mich 170, 175-176; 507 NW2d 194 (1993). Therefore, plaintiffs’ remedy, if any, is
to file a motion for relief from judgment pursuant to MCR 2.612(C). See Sprague, supra;
Nederlander v Nederlander, 205 Mich App 123, 126; 517 NW2d 768 (1994). Accordingly,
plaintiffs’ claim for fraudulent inducement is barred and defendants are entitled to summary
disposition on this claim under MCR 2.116(C)(7).1
1
We will affirm a trial court’s decision if it reached the right result, even for the wrong reason.
Glazer v Lamkin, 201 Mich App 432, 437; 506 NW2d 570 (1993).
-3-
Next, plaintiffs argue that, contrary to defendants’ claim, the trial court did not grant
defendants’ request for sanctions and, if it did, it did so erroneously because their complaint was
not frivolous. First, contrary to plaintiffs’ contention, the trial court’s order clearly states that it
granted defendants’ request for sanctions. Even though a verbal express determination regarding
sanctions was not made on the record at the hearing, the specific determination was made in the
signed order. It is axiomatic that a court speaks through its orders and judgments, not its oral
opinions. Dep’t of Conservation v Connor, 321 Mich 648; 32 NW2d 907 (1948); Joslin v 14th
District Judge, 76 Mich App 90, 96; 255 NW2d 782 (1977). Consequently, the trial court clearly
granted defendants’ request for sanctions.
Further, we find that the trial court did not clearly err, Szymanski v Brown, 221 Mich App
423, 436; 562 NW2d 212 (1991), in determining that plaintiffs’ action was frivolous. The
imposition of sanctions under MCR 2.114 is mandatory upon a finding that a pleading was
signed in violation of the court rule or a frivolous action or defense has been pleaded.
Schadewald v Brulé, 225 Mich App 26, 41; 570 NW2d 788 (1997). Likewise, under MCR
2.625(A)(2), a trial court shall award costs pursuant to MCL 600.2591 if it finds that an action
was frivolous. An action or defense is frivolous when (i) the party’s primary purpose in initiating
the action or asserting the defense was to harass, embarrass, or injure the prevailing party; (ii) the
party had no reasonable basis to believe that the facts underlying that party’s legal position were
in fact true; or, (iii) the party’s legal position was devoid of arguable legal merit. MCL
600.2591(3)(a). Here, given the plain and unambiguous language of the challenged provision in
the consent judgment, we are not left with a definite and firm conviction that the trial court
clearly erred in granting defendants’ request for sanctions.
Affirmed. Defendants-appellees, having prevailed in full, may tax costs pursuant to MCR
7.219.
/s/ Kathleen Jansen
/s/ Jeffrey G. Collins
/s/ Jessica R. Cooper
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
