ANGELO IAFRATE CONSTRUCTION CO V DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
ANGELO IAFRATE CONSTRUCTION
COMPANY,
UNPUBLISHED
October 23, 2007
Plaintiff-Appellant,
v
No. 275103
Court of Claims
LC No. 06-000980-CK
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
Before: Owens, P.J., and Bandstra and Davis, JJ.
PER CURIAM.
In this action involving claims for breach of contract and unjust enrichment or quantum
meruit, plaintiff appeals as of right from an order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(8). We affirm. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
Defendant contracted with plaintiff on a road construction project. Pursuant to a
subcontract, John Carlo, Inc. (“Carlo”), was required to manufacture the wedging material for
the project. Pursuant to plaintiff’s agreement with defendant, plaintiff was required to provide
original samples of asphalt binders to be used in repaving the roadway. The contract provided
that if the samples did not conform to the specifications set forth in the parties’ agreement,
defendant could impose a 50-percent price reduction.1 The parties agree that Carlo did not
provide the appropriate samples for the asphalt binder used in the project, but that the asphalt
actually installed met the standards set forth in the agreement. Because the samples did not
conform to the contract specifications, however, defendant exercised its right to impose a 50percent price reduction. Plaintiff now argues that it was improper for defendant to impose the
price reduction when the correct asphalt was actually installed.
This Court reviews a trial court’s decision on summary disposition de novo. Spiek v
Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). We agree that summary
1
Defendant also had the option of requiring removal of the installed asphalt, but elected not to
pursue that option.
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disposition was not appropriate under MCR 2.116(C)(8) because the pleadings alone did not
support defendant’s motion. The allegations in plaintiff’s complaint, taken as true, were not so
clearly unenforceable as a matter of law that no factual development could justify recovery.
Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994); Peters v Dep’t of Corrections,
215 Mich App 485, 486; 546 NW2d 668 (1996). We conclude, however, that summary
disposition was appropriate under MCR 2.116(C)(10), because the submitted evidence shows
that there is no genuine issue of material fact with respect to the fact that defendant was
permitted to impose the price reduction penalty against plaintiff. Babula v Robertson, 212 Mich
App 45, 48; 536 NW2d 834 (1995). Thus, reversal is not required. Computer Network, Inc v
AM Gen Corp, 265 Mich App 309, 313; 696 NW2d 49 (2005).
Plaintiff agrees that the price adjustment provision in the parties’ agreement is a
liquidated damages clause, but argues that enforcement of that clause amounts to a penalty. As
explained in UAW-GM Human Resources Ctr v KSL Recreation Corp, 228 Mich App 486, 508;
579 NW2d 477 (1998), a liquidated damages clause
is simply an agreement by the parties fixing the amount of damages in case of a
breach. Papo v Aglo Restaurants of San Jose, Inc, 149 Mich App 285, 294; 386
NW2d 177 (1986). Whether such a provision is valid and enforceable or invalid
as a penalty is a question of law. Moore v St Clair Co, 120 Mich App 335, 339;
328 NW2d 47 (1982). The courts are to sustain such provisions if the amount is
“reasonable with relation to the possible injury suffered” and not “unconscionable
or excessive.” Id. at 340, citing Curran v Williams, 352 Mich 278, 282; 89 NW2d
602 (1958).
A court need not inquire into the intent of the parties on this issue. Moore, supra at 339. Only
the writing should be examined. Id. at 340. “However, if the amount stipulated is valid but
damages in the event of breach are uncertain or difficult to ascertain, then it must be determined
whether the parties intended to fix the amount of damages, based upon the writing, subject
matter and situation of the parties,” which is also a question of law. Id.
Even where parties have included a liquidated damages provision in their agreement, as a
matter of policy and equity, a court will award actual damages for a breach and ignore a clause
for liquidated damages if the parties’ agreement is clearly unjust and unconscionable. Worley v
McCarty, 354 Mich 599, 605-606; 93 NW2d 269 (1958); Curran v Williams, 352 Mich 278,
282-283; 89 NW2d 602 (1958). Such stipulations on damages will be ignored where the amount
previously agreed on is clearly out of proportion to the total amounts involved. Wilkinson v
Lanterman, 314 Mich 568, 576-577; 22 NW2d 827 (1946). In Jaquith v Hudson, 5 Mich 123,
133 (1858), our Supreme Court acknowledged that liquidated damages provisions in contracts
need not be enforced if they are clearly unjust and unconscionable, but explained that
the court will apply this principle, and disregard the express stipulation of parties,
only in those cases where it is obvious from the contract before them, and the
whole subject matter, that the principle of compensation has been disregarded,
and that to carry out the express stipulation of the parties, would violate this
principle, which alone the court recognizes as the law of the contract. [Emphasis
in original.]
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Accordingly, the parties’ agreement to reduce the price will be enforced if the amount is
reasonable in relation to the possible injury defendant suffered and is not unconscionable or
excessive.
It is undisputed that the parties’ agreement required Carlo to provide samples from the
actual materials it was to use in the asphalt before the work on the project was performed. The
agreement also established the amount of damages if the samples did not meet the required
standards, at the rate of a 50-percent price reduction.
Plaintiff argues that the price reduction of $51,200.30 amounts to a penalty because the
asphalt actually used in the project was sufficient to meet prescribed standards. Plaintiff
maintains that defendant suffered no damages because only the samples were inadequate.
Because the proper samples were not provided before the asphalt was installed, however,
additional testing was required to confirm that the materials actually installed were proper.
Plaintiff acknowledges that additional testing was required after the inadequate samples were
discovered. Further, even if plaintiff arranged for the testing, plaintiff concedes that defendant
supervised the testing. Thus, although the proper materials may have been installed, plaintiff has
not shown that defendant did not suffer some damages because of the failure to comply with the
terms of the parties’ agreement to provide proper samples before the asphalt was installed.
Plaintiff also argues that the liquidated damages provision should not be enforced
because it is merely a detail in the parties’ agreement and plaintiff substantially performed under
that agreement. See P & M Const Co, Inc v Hammond Ventures, Inc, 3 Mich App 306, 314-315;
142 NW2d 468 (1966). We disagree. The parties’ agreement specifically addressed price
reductions and other remedies in the event that proper samples were not provided. We may not
disregard this express requirement as a minor detail. Plaintiff also acknowledges that even if it
substantially performed, defendant would be entitled to deduct its damages from the contract
price, which appears to be exactly what the liquidated damages clause was intended to do.
Because plaintiff failed to show that the liquidated damages clause was excessive or
unconscionable in relation to the harm caused to defendant, the trial court properly enforced this
portion of the parties’ agreement.
Plaintiff also argues that unjust enrichment prevents defendant from recovering the
$51,220.30 reduction. As this Court explained in Liggett Restaurant Group, Inc v City of
Pontiac, 260 Mich App 127, 137; 676 NW2d 633 (2003):
To sustain a claim for unjust enrichment, plaintiff needed to show that
defendants received a benefit from plaintiff and that an inequity resulted to
plaintiff as a consequence of defendants’ retention of that benefit. In such
situations, a contract will be implied by law to prevent unjust enrichment.
[Footnotes omitted.]
However, a party is not entitled to enforce an implied contract where there is an express contract
in existence covering the same subject matter. Id.; see also Scholz v Montgomery Ward & Co,
Inc, 437 Mich 83, 93; 468 NW2d 845 (1991); Neal v Neal, 219 Mich App 490, 495; 557 NW2d
133 (1996). For this rule to apply, there must be a valid, enforceable contract. Biagini v Mocnik,
369 Mich 657, 659-660; 120 NW2d 827 (1963).
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Because the parties have an express contract that includes a valid liquidated damages
clause, plaintiff cannot prevail on its theory of unjust enrichment. The parties agreed that
defendant would be entitled to a price reduction in the event that plaintiff ’s subcontractor did not
comply with the requirement for providing samples. This Court may not ignore that provision
based on unjust enrichment.
Affirmed.
/s/ Donald S. Owens
/s/ Richard A. Bandstra
/s/ Alton T. Davis
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