LEE SITTO V KHALIL AYOUB
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STATE OF MICHIGAN
COURT OF APPEALS
LEE SITTO,
UNPUBLISHED
January 27, 2004
Plaintiff-Appellant,
v
No. 241629
Wayne Circuit Court
LC No. 00-012008-CK
KHALIL AYOUB and RAJAH AYOUB,
Defendants-Appellees.
Before: Cooper, P.J. and Markey and Meter, JJ.
MARKEY, J. (dissenting).
I respectfully dissent. Although I agree with the majority’s recitation of the facts and the
law pertaining to this case, I disagree with the majority’s analysis. I would reverse.
As the majority states plaintiff argues that the trial court erred by denying his motion for
summary disposition and granting the motion defendants filed. He emphasizes that the
amendment clearly stated that “notwithstanding” any other provision in the amendment or the
earlier documents, the deposit of $25,000 was to be refunded in the event the parties did not
complete the transaction. The amendment did not require that written notice of termination of
the purchase agreement be provided in order for the deposit to be refundable and that, in fact, the
last agreement unequivocally provided that “notwithstanding” any other provision in any
document, the $25,000 deposit was fully refundable in the event the parties did not complete the
transaction. The language used was clear and unambiguous. The amendment plainly stated that
plaintiff was entitled to a refund of his deposit if the parties did not consummate the transaction.
Most importantly, there is no requirement that plaintiff had to notify defendants that he intended
to terminate the purchase agreement. Although the addendum to the purchase agreement
provided that plaintiff was required to give defendants written notice of his intention to terminate
the transaction, and that if he did not do so, he forfeited the right to a refund of his deposit, the
specific language in the amendment at issue that “[n]otwithstanding anything in the Agreements
and this Amendment to the contrary” patently trumps the prior written notice requirement. The
“notwithstanding” wording precludes any preconditions to the agreement of the parties that
plaintiff’s “good faith deposit shall be fully refundable to Purchaser in the event the parties do
not consummate the transactions contemplated.” Accordingly, I find that the trial court erred by
concluding that the amendment did not eliminate the requirement that plaintiff provide written
notice of his intention to terminate the purchase agreement in order to be entitled to a refund of
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his deposit. The trial court further erred by denying plaintiff’s motion for summary disposition
and granting defendants’ motion.
Consequently, I would reverse and remand.
/s/ Jane E. Markey
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