990 INVESTORS LLC V DAVID LEE COMMUNICATIONS INC
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STATE OF MICHIGAN
COURT OF APPEALS
990 INVESTORS, LLC,
UNPUBLISHED
April 5, 2002
Plaintiff-Appellant,
v
DAVID LEE COMMUNICATIONS, INC., and
DAVID LEE SCHUEHRER,
No. 227284
Genesee Circuit Court
LC No. 99-066553-CK
Defendants-Appellees.
Before: Jansen, P.J., and Zahra and Meter, JJ.
METER, J. (dissenting.)
I respectfully dissent.
Plaintiff’s complaint requested that the court “enter an order of specific performance
compelling [d]efendants to honor [their] contract with [p]laintiff and to convey title to the
license, and all assets including the realty and towers, in accordance with the purchase
documents. . . .” Plaintiffs sought to acquire assets held individually by defendant Schuehrer
under the terms of the right of first refusal (RFR). Under a plain reading of the document,
however, assets held individually by Schuehrer are not subject to the terms of the RFR.
Therefore, in my opinion, the trial court did not err in granting summary disposition to
defendants.
The fifth recital in the RFR states that “[David Lee Communications, Inc.] desires to
provide to SBBC, and SBBC desires to receive, a right of first refusal with respect to the sale or
transfer of the Station. . . .” Moreover, Schuehrer is referred to in the RFR merely as a
“stockholder.” No reference is made to Schuehrer’s personal assets, and no recital indicates that
Schuehrer, as an individual, desired to provide a right of first refusal to SBBC. Under these
circumstances, I find no ambiguity in the contract that should be submitted for resolution by a
trier of fact. See D’Avanzo v Wise & Marsac, PC, 223 Mich App 314, 319; 565 NW2d 915
(1997) (indicating that ambiguities in contracts are to be resolved by a trier of fact). The RFR
simply did not apply to Scheuhrer’s individually-held property, and therefore the trial court
correctly dismissed plaintiff’s request for specific performance.1
1
My opinion does not change in light of the evidence, revealed in plaintiff’s motion for
(continued…)
-1-
I would affirm.
/s/ Patrick M. Meter
(…continued)
reconsideration, that the corporation owns the towers that are located on Schuehrer’s land.
Indeed, this evidence does not change the fact that the RFR does not apply to Schuehrer’s
individually-held property and that plaintiff’s complaint therefore did not warrant specific
performance. Moreover, I conclude that plaintiff’s arguments regarding potential amendments to
the complaint have not been preserved properly for appellate review and I therefore do not
address them.
-2-
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