MILFORD TEN LLC V LYON TWP
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STATE OF MICHIGAN
COURT OF APPEALS
MILFORD TEN, LLC, and FIFTY EIGHT
LIMITED LIABILITY COMPANY,
UNPUBLISHED
March 20, 2008
Plaintiffs-Appellants,
v
No. 276748
Oakland Circuit Court
LC No. 2006-073896-CK
LYON TOWNSHIP,
Defendant-Appellee.
Before: Murray, P.J., and Bandstra and Fort Hood, JJ.
PER CURIAM.
Plaintiffs Milford Ten, LLC, and Fifty Eight Limited Liability Company appeal as of
right the trial court order granting defendant Lyon Township’s motion for summary disposition,
in this dispute over the establishment of special assessment districts for, and the construction of,
sanitary sewer and water main improvements. We affirm.
On November 30, 2004, defendant, plaintiffs, two other property owners, and GiffelsWebster Engineers (GWE)1 entered into a “short form” agreement “concerning certain
engineering and related services to be provided by [GWE] in relation to the Project known as the
Southwest Sanitary Sewer Special Assessment District.” This agreement set forth a description
of the investigative, preparation and design services to be provided by GWE for the sanitary
sewer project, and set completion dates and fees for those services. The agreement also provided
that
[GWE] will submit copies of each invoice to the Township.
Township shall pay [GWE] from the established escrow account.
The
In accepting this agreement, Fifty Eight, L.L.C., Milford Ten, L.L.C.,
Aspen Group/Lyon L.L.C., Lyon Associates, L.L.C. agree to establish an escrow
1
Plaintiffs refer to GWE as the township’s engineers; defendant does not disagree but asserts
that GWE was acting as an independent entity, and not as defendant’s agent, in connection with
the short form agreements. Plaintiffs have not named GWE as a party to the instant action.
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account with the Charter Township of Lyon for all costs outlined in this Short
Form Agreement. . . . If a Special Assessment District is formed to complete this
project, the property owners listed in this agreement will have their assessments
lowered by the amount of monies they deposited into the escrow account. If a
Special Assessment District is not created, once the design and scope of work
listed in this agreement has been completed, all remaining monies, with the
exception of the lump sum items, will be refunded to the property owners listed in
this Agreement.
If the proposed Southwest Sanitary Sewer [SAD] is not approved by the
Township Board: an [SAD] will be established with one or more of these
property owners who are party to this agreement to pay for the construction costs,
to be presented to the Township Board by April 1, 2005.
On January 10, 2005, these same parties signed a “short form” agreement identical in all
pertinent respects for the Southwest Ten Mile Road Water Main Special Assessment District.
The water main agreement also provided for a refund of remaining monies if the water main
SAD were not created, and stated that “[i]f the proposed Southwest Ten Mile Road Water Main
[SAD] is not approved by the Township Board: an [SAD] will be established with one or more
of these property owners who are party to this agreement to pay for the construction costs, to be
presented to the Township Board by April 1, 2005.”
As noted, each of the agreements set forth a schedule by which GWE was to complete the
contracted-for investigative, preparation and design services; the agreements did not provide any
timeline for the acquisition of easements or for the construction of the improvements. Defendant
presented the sewer and water main SADs to the township board on February 7, 2005. After
tabling the matter at a series of meetings to permit various property owners, including a signatory
to the agreements, further time to determine whether they wished to participate in, or opt out of,
the SADs, defendant established the SADs on July 5, 2005.
Plaintiffs argue that the trial court erred by concluding that the agreements did not impose
on defendant the obligation to establish the sewer and water main SADs by April 1, 2005. We
disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Rice v Auto Club Ins Ass’n, 252
Mich App 25, 30; 651 NW2d 118 (2002). This Court also reviews the construction and
interpretation of a contract de novo. Bandit Industries, Inc v Hobbs Int'l Inc (After Remand), 463
Mich 504, 511; 620 NW2d 531 (2001); Morley v Automobile Club of Michigan, 458 Mich 459,
465; 581 NW2d 237 (1998); Chestonia Twp v Star Twp, 266 Mich App 423, 429; 702 NW2d
631 (2005). When “ascertaining the meaning of a contract, [courts] give the words used in the
contract their plain and ordinary meaning that would be apparent to a reader of the instrument.”
Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). Where the language of
the document is clear and unambiguous, interpretation is limited to the actual words used.
Burkhardt v Bailey, 260 Mich App 636, 656; 680 NW2d 453 (2004). “An unambiguous contract
must be enforced according to its terms.” Id. Merely because the parties ascribe different
meanings to it does not render the contract ambiguous. Henderson v State Farm Fire and
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Casualty Co, 460 Mich 348, 355 n 3; 596 NW2d 190 (1999). Rather ambiguity must arise from
the language of the contract itself. Meagher v Wayne State Univ, 222 Mich App 700, 721-722;
565 NW2d 401 (1997).
Plaintiffs assert that the agreements clearly obligated defendant to establish the SADs by
April 1, 2005. However, the plain language of the agreements clearly contemplates that the
proposed SADs may not be created at all; the agreements provide specific instructions for
returning any remaining monies deposited with defendant in such circumstances. The
agreements do provide that if the proposed SADs are not approved by the township board, SADs
“will be established with one or more of the property owners” who are party to the agreements,
“to be presented to the [t]ownship [b]oard by April 1, 2005.” At most, then, the agreements
required that SADs be presented to the township board by April 1, 2005; the agreements
nowhere require that SADs be established by that date. Plainly read, the agreements simply do
not set any deadline for the establishment of the SADs.
Defendant presented the board with the proposed Southwest Sanitary Sewer and
proposed Southwest Ten Mile Road Water Main SADs at the board’s February 7, 2005 meeting.
The necessary resolutions to establish those SADs were tabled at the request of property owners,
including a signatory to the agreements, who commented that the agreements could be amended
if necessary and that the process needed to “be done right.” Others concurred; there were no
objections. Plaintiffs acknowledge that, after it was noted at that February meeting that changing
or truncating the SADs would result in further delays in the process, they opted to continue with
the process then in place, for approval of the SADs proposed by defendant; at no time did they
present, or request that defendant consider or present, alternate SADs. Having completed the
statutorily required process for establishing SADs to the satisfaction of the property owners,
defendant established the SADs on July 5, 2005. Defendant thus fully complied with its
obligations relating to the establishment of the SADS under the agreements, and there is no basis
in those agreements for plaintiffs’ assertions otherwise.
Plaintiffs also assert that, because special assessment districts can only be formed with
the consent of a percentage of affected property owners, MCL 41.723 implies that an SAD is a
contractual agreement between the township and the property owners, which subjects the
township to an implied obligation to timely install public utility improvements. Plaintiffs cite no
authority for this proposition, and indeed we find none. Certainly, the statutory provisions
governing the establishment of special assessment districts for public improvements, MCL
41.721 et seq, set forth a process to be followed and requirements, including notice and hearing
requirements, to be met by the township. Plaintiffs do not contend that defendant failed to meet
these requirements. Plaintiffs’ complaint is that defendant did not timely construct the sewer and
water main improvements as implicitly required by statute when it established the SADs.
However, while the statute provides for repeated adjournments of hearings by the board, see
MCL 41.724(3) (“At the hearing, or any adjournment of the hearing which may be without
further notice . . .”) and MCL 41.726(2) (“A hearing under this section may be adjourned from
time to time without further notice.”), nowhere in the statute is any requirement relating to the
timeliness of the installation or construction of improvements set forth or implied. Nor was any
timeline for construction of the improvements set forth in the agreements. Plaintiffs may have
hoped that the improvements would be completed sooner, and certainly would have preferred
that the SADs be established more quickly. However, plaintiffs point this Court to no document
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or no legal authority, and we find none, imposing on defendant any obligation to construct the
sewer and water main improvements in a shorter timeframe than that in which the project was
completed.
Because the agreements did not require defendant to establish the SADs by April 1, 2005,
and did not set forth any timeline for construction of the improvements,2 and because no such
timeline is set forth or can be implied from the statutory provisions governing the establishment
of SADs for public improvements, we conclude that the trial court did not err by granting
defendant’s motion for summary disposition.
We affirm.
/s/ Christopher M. Murray
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
2
We acknowledge that the short form agreements established completion dates for certain
investigative, preparatory and design services to be provided by GWE. However, nowhere in
those agreements is any deadline provided or suggested for the acquisition of easements and the
actual construction of the sewer and water main improvements.
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