ABC PAVING CO V WASHTENAW COUNTY ROAD COMM
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STATE OF MICHIGAN
COURT OF APPEALS
ABC PAVING COMPANY,
UNPUBLISHED
October 2, 2008
Plaintiff-Appellant,
v
WASHTENAW COUNTY ROAD
COMMISSION and YPSILANTI COMMUNITY
UTILITIES AUTHORITY,
No. 276703
Washtenaw Circuit Court
LC No. 05-001229-CK
Defendants-Appellees.
Before: Saad, C.J., and Fort Hood and Borrello, JJ.
PER CURIAM.
Plaintiff, ABC Paving Company, appeals the trial court’s grant of summary disposition to
defendants, Washtenaw County Road Commission (WCRC) and Ypsilanti Community Utilities
Authority (YCUA). For the reasons set forth below, we affirm.
I. Facts
In 2002, the WCRC advertised for bids to replace a water main and 1,283 meters of a
three-lane road in Ypsilanti. The water main replacement was funded by the YCUA under a
separate contract with the WCRC. ABC submitted the low bid for the project and agreed to
perform the work for $1,591,545. On July 10, 2002, ABC entered into a contract with the
WCRC, which specifically incorporated the Michigan Department of Transportation 1996
Standard Specifications for Construction (MDOT Standard Specifications).
ABC completed the job 40 days late on November 15, 2002. According to ABC, WCRC
and/or YCUA refused to pay approximately $370,000 in extra expenses ABC incurred during
construction. Accordingly, on November 14, 2005, ABC filed this action for breach of contract
and unjust enrichment against WCRC and YCUA. On January 5, 2007, WCRC filed a motion
for summary disposition under MCR 2.116(C)(8) and (10). WCRC argued that it paid for some
of the “extras” claimed by ABC, but that the additional expenses ABC claimed in the lawsuit are
expressly prohibited under the contract itself or pursuant to the MDOT Standard Specifications.
YCUA filed a motion for summary disposition on January 10, 2007, and argued that it cannot be
held liable for breach of contract because it was not a party to the construction agreement
between ABC and WCRC and ABC cannot show that YCUA was a joint venture partner with
WCRC or that they had an agency relationship. YCUA further asserted that ABC’s claim for
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unjust enrichment must fail because an express contract between ABC and WCRC covered the
same subject matter.
In response, ABC conceded that the trial court should grant summary disposition to
WCRC on ABC’s unjust enrichment claim and that the court should grant summary disposition
to YCUA on ABC’s breach of contract claim. However, ABC maintained that WCRC breached
the contract by failing to pay numerous extra expenses. ABC further argued that YCUA was
unjustly enriched because ABC performed the exploratory excavations at YCUA’s direction, but
YCUA never reimbursed ABC for the work.
Following oral argument, the trial court granted summary disposition to both WCRC and
YCUA. In a written opinion and order, the judge ruled that each of the expenses cited by ABC is
prohibited by the unambiguous terms of the contract and the MDOT Standard Specifications. He
further ruled that YCUA cannot be liable under an unjust enrichment theory because the work
was covered under an express contract between ABC and WCRC.
II. Analysis
A. Standards of Review
ABC contends that the trial court erred when it granted summary disposition to WCRC
on ABC’s breach of contract claim. “A grant or denial of summary disposition is reviewed de
novo to determine if the moving party is entitled to judgment as a matter of law.” Patrick v
Shaw, 275 Mich App 201, 204; 739 NW2d 365 (2007).1 Both parties rely on the interpretation
of the construction contract between ABC and WCRC. As our Supreme Court recently
explained in In re Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008):
In interpreting a contract, it is a court’s obligation to determine the intent
of the parties by examining the language of the contract according to its plain and
ordinary meaning. If the contractual language is unambiguous, courts must
interpret and enforce the contract as written because an unambiguous contract
reflects the parties’ intent as a matter of law. However, if the contractual
1
The trial court granted summary disposition under MCR 2.116(C)(10). Our Supreme Court
explained in Maiden, supra at :
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most
favorable to the party opposing the motion. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled
to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross &
Peters Co, 451 Mich 358; 547 NW2d 314 (1996).
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language is ambiguous, extrinsic evidence can be presented to determine the
intent of the parties.
B. Exploratory Excavations
ABC asserts that the trial court erred because ABC completed more than 100 exploratory
excavations in order to avoid damaging individual homeowners’ utility lines during construction
and that WCRC wrongly refused to provide compensation for the work. In response, WCRC
points out that the contract limits the number of exploratory excavations to 15 to locate the main
sanitary sewer line and it does not state that further exploratory excavations are compensable.
WCRC is correct that the contract provides for 15 exploratory excavations to “verify the
condition, size, material and alignment” of the sewer pipe. The contract does not contemplate
that ABC would perform more exploratory excavations in order to locate individual sewer tieins, let alone 100 more exploratory excavations to do so. ABC’s primary argument in the trial
court was that a YCUA representative, Scott Martin, directed ABC to perform the additional
exploratory excavations. WCRC countered that YCUA had no authority to approve additional or
contrary terms for a contract between WCRC and ABC. WCRC pointed to a letter dated March
14, 2003, in which a WCRC representative stated that, at a utility meeting on July 16, 2002,
Scott Martin said he believed exploratory excavations would be covered under the contract, but a
WCRC representative made clear that the contract was limited to the 15 locations labeled on the
main sewer line. On appeal, ABC continues to assert that YCUA authorized the additional
exploratory excavations, but ABC primarily relies on an alternative argument it made in the trial
court―that, although the contract states that ABC had to have prior written approval for
additional work under the contract, WCRC waived this requirement by regularly approving and
paying for extras after the work was completed. This was one basis for the trial court’s ruling
and ABC contends that its decision must be reversed because this is an issue of fact for the jury.
Specifically, the trial court ruled that the contract limits the number of exploratory
excavations to 15 and the MDOT Standard Specifications, as incorporated by the contract,
provide that modifications of the contract must be made by a WCRC engineer, either Michael
Bernbeck or Roy Townsend. See MDOT Standard Specifications, § 103.02. The court observed
that YCUA or its representatives are not authorized under the contract to approve work changes
by ABC. The court further noted that change orders must be in writing and there is no evidence
of any written approval for the additional exploratory excavations.
We hold that the trial court correctly ruled that the MDOT Standard Specifications
require that construction changes, especially significant changes, must be approved by WCRC’s
engineer, either Bernbeck or Townsend. ABC presented no evidence that either engineer
approved ABC’s additional exploratory excavations, in writing or otherwise. Because the
contract is clear and unambiguous, we need not consider any extrinsic evidence with regard to
whether WCRC had a pattern and practice of approving change orders after ABC completed the
work. However, even if ABC did not receive written authorization for other extras, approval by
a WCRC engineer was nonetheless required, either before or after the completed work. A
WCRC engineer did not approve the additional work or additional cost of the exploratory
excavations before or after ABC completed them. Because approval by a WCRC engineer was
required under the plain terms of the contract, ABC is not entitled to reimbursement, absent
some other contractual basis for reimbursement. See MDOT Standard Specifications, §§103.02
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and 103.03. Further, though ABC may have decided to complete certain work and seek payment
afterwards, by choosing not to obtain prior approval for the additional work, including the
exploratory excavations, ABC took the risk that it may not be reimbursed.
Furthermore, as WCRC asserts, ABC assumed responsibility under the contract to
prevent damage to any utility lines. Though ABC contends that it merely agreed not to damage
the utilities through its own negligence, the contract does not specify that ABC must simply
avoid negligent conduct. Rather, the contract affirmatively states that ABC must protect utilities.
Page 18 of the contract states that “[ABC] shall be responsible to contact any utilities that may
be affected by this project and will be responsible for all costs as a result of damages to any
utility by [ABC’s] equipment.” Further, the MDOT Standard Specifications, §107.12, provides
that “[ABC] shall not begin work until arrangements are made for the protection of adjacent
utilities, or other property where damage might result in considerable expenses, loss, or
inconvenience.” Moreover, though ABC claims it would have no way of knowing where the
individual tie-ins were located, page two of the contract states:
The submissions of a bid shall be considered prima facie evidence that the
bidder has made a thorough examination of the plans, specifications and work
sites an [sic] is satisfied as to the conditions to be encountered in performing the
work. No allowance or extra consideration on behalf of the Contractor will
subsequently be allowed by reason of error or oversight on the part of the
Contractor.
The contract explicitly sets forth the nature, extent, and number of exploratory excavations for
which WCRC would provide payment. ABC agreed to perform the construction with the
understanding that it would arrange for the protection of the utilities. It appears that ABC
concluded that, in order to do so, it needed to specifically locate individual utility tie-ins.
However, ABC took these actions to protect its own interests, not to fulfill its construction
obligation to WCRC under the contract. For these reasons, the trial court correctly granted
summary disposition to WCRC on this issue and ABC is not entitled to additional compensation
for the exploratory excavations.
C. Manhole Structures
ABC claims the trial court erred when it ruled that WCRC need not pay additional costs
ABC incurred to raise and lower various manhole structures during construction. WCRC
argued, and the trial court agreed that, as set forth on the contract bid form, pp 10-11, the
adjustment of manhole structures is on the itemized bid list and is not an “extra” that may be
added onto the contract price. As WCRC also notes, the plans provide:
DRAINAGE STRUCTURES, MANHOLES, CATCH BASIS, GATE
WELLS & VALVE BOXES WHICH MAY NEED TO BE ADJUSTED OR
RECONSTRUCTED, SHALL ONLY BE PAID FOR ONCE AS EITHER
ADJUST OR ADDL. DEPTH OF ADJUST, AT THE CONTRACT UNIT
PRICE, REGARDLESS OF HOW MANY TIME THE INDIVIDUAL
STRUCTURE IS ADJUSTED.
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Page 8 of the contract also states that, by accepting the job, ABC agreed to complete the work
“in strict accordance with the plans . . . .” Accordingly, under the plain language of the contract,
which incorporates the project plans, ABC is entitled to only one payment for raising and
lowering the manhole structures.
ABC appears to accept that the contract and plans provide that WCRC will only pay for
manhole adjustments once. However, ABC takes the position that it would not have had to
adjust the manhole structures as frequently if the project progressed correctly. According to
ABC, because WCRC changed the project schedule and forced ABC to complete its work in one
or two block increments instead of in two long sections, ABC is entitled to reimbursement for
the additional work on the manhole structures. ABC bases its argument on page 26 of the
contract which provides, in relevant part:
[ABC] will be limited to the amount of roadway which can be opened and
disturbed at any one time. The subgrade is to be constructed, aggregate base
material placed and compacted prior to opening the next section of roadway.
Traffic may be narrowed on the compacted aggregate base section to minimize
contamination and damage to aggregate base material.
Work shall progress from the west end of the project and shall be limited
to the following sequence unless otherwise approved by the Engineer:
•
Nevada to McCartney Rd.
•
McCartney Rd. to Wiard Rd.
Proposed roadway construction shall not begin until the proposed water
main below the construction has been tested and accepted.
ABC asserts that the above provision indicates that the project will progress in two large
sections, from Nevada to McCartney, then from McCartney to Wiard. ABC complains that,
instead of closing the roads to allow ABC to work in two sections, WCRC decided to keep all
traffic flowing on the roads and this forced ABC to work in short, one block increments, which
necessitated the repeated raising and lowering of the manholes.
The trial court disagreed with ABC’s interpretation of the contract. The court observed
that ABC’s argument ignores the following provision on page 25 of the contract:
Traffic shall be maintained according to Sections 103.05, 103.06 and 812
of the Michigan Department of Transportation 1996 Standard Specifications for
Construction, including any Supplemental Specifications, and as specified here.
The MDOT Standard Specifications, § 103.05, provides as follows:
Roads and bridges will remain open to traffic unless full or partial closures
are provided for in the contract. No road, bridge or section shall be closed to
traffic unless directed by the Engineer.
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ABC asserts that the contract calls for partial closures and that, therefore, ABC submitted
its bid with the understanding that the roads would otherwise be closed. Specifically, ABC notes
that page 26 of the contract states that “[p]ublic bus access, including school buses, shall be
maintained at all times.” According to ABC, this provision contemplates that, except for buses,
the street would be closed to normal traffic. ABC argues that, if the parties intended the roads to
remain open to all traffic, the contract would not need to specify that bus traffic must be
maintained.
We are not persuaded by ABC’s reading of the contract. The provision that specifies that
ABC must maintain public bus access does not constitute a “full or partial closure” of the road
for purposes of the MDOT Standard Specifications, § 103.05. Rather, the provision merely
clarifies that bus routes must remain open, regardless of whether there are other full or partial
road closures. The contract sets forth no full or partial road closures and, therefore, under §
103.05, roads were required to remain open to traffic unless otherwise directed by a WCRC
engineer. We also agree with WCRC that the contract’s reference to the construction
progression―from Nevada to McCartney Road and from McCartney Road to Wiard
Road―states the sequence of the work, but in no way suggests that the roads would be entirely
closed so that ABC could complete the work in two, undisturbed stages. Indeed, in the
preceding paragraph, the contract specifically states that ABC would “be limited to the amount
of roadway which can be opened and disturbed at any one time,” and indicates that “[t]raffic may
be narrowed” during the work. ABC’s interpretation of the contract ignores these provisions,
which clearly contemplate that the road will remain at least partially open to traffic.
ABC also fails to explain how the decision to keep the roads open to all traffic legally
entitles it to compensation when the plans plainly state that WCRC will pay for manhole
adjustments only once. In other words, were we to agree with ABC that WCRC altered the
progression of construction, ABC makes no effort to explain why it is entitled to additional
payment for the manhole adjustments under a breach of contract theory. In any case, the plain
language of the contract, including the incorporated plans and MDOT Standard Specifications,
vitiates ABC’s argument and supports the trial court’s decision to grant summary disposition to
WCRC on this issue.
D. Surface Removal
ABC complains that it contracted with WCRC to remove 13,700 square meters of
“pavement,” but WCRC paid ABC for “soil” or “dirt” removal for material that was less than
130 mm thick. WCRC maintains that it paid ABC the appropriate rates under the MDOT
Standard Specifications for removing material that was more than 130 mm thick and less than
130 mm thick. The trial court agreed with WCRC and ruled that ABC is not entitled to
additional compensation at “pavement” removal rates.
The parties agree that under the MDOT Standard Specifications, the payment rate for
surface removal depends upon the thickness of the material. They also agree that removal of
material under 130 mm thick is paid at a lower rate than thicker surfaces. ABC also does not
dispute that WCRC paid it for areas over 130 mm at the pavement rate and that WCRC paid it
for the removal of material under 130 mm at the “dirt” or “soil” rate. In other words, ABC
concedes that WCRC properly paid for the work ABC actually performed. ABC argues,
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however, that WCRC should pay the “pavement” removal rates for all of ABC’s removal work
because the contract indicates that the job required 13,700 square meters of “pavement” removal.
We hold that the plain language of the contract precludes ABC’s claim for damages.
Page eight of the contract explicitly states that “the quantities shown [in the contract, plans, and
specifications] are approximate only and are subject to either increase or decrease.” Thus, the
reference to 13,700 square meters of “pavement” is not a description of the exact amount of
pavement to be removed. The MDOT Standard Specifications, as incorporated into the contract,
further provide:
The quantities appearing in the listing of Bid Items are estimated and will
be used in the comparison of proposals. Payment to the Contractor will be for the
actual quantities of work performed and accepted or materials furnished according
to the contract. The quantities of work and materials as provided in the contract
may be increased, decreased, or deleted, as provided herein. [§ 102.03.]
The above provisions make clear that the parties intended that ABC would be paid for the work
completed based on actual site conditions, rather than based on estimates or preliminary quotes
in the paperwork.
ABC contends that WCRC knew that much of the surface area was thinner than 130 mm
before it represented that 13,700 square meters of thicker “pavement” removal would be
required. This evidence, however, is not relevant in light of the unequivocal contract terms and
ABC’s acknowledgement that WCRC properly paid it for the work it actually performed.
Simply because ABC hoped for a more lucrative job does not entitle ABC to damages. ABC
also maintains that removal of material that is under 130 mm thick can be just as burdensome as
thicker material because, even below 130 mm, the material may be four or five inches thick.
This argument, however, does not alter the fact that the MDOT Standard Specifications
explicitly provide that removal or surface material under the 130 mm cutoff is paid as removal of
underlying material, not as pavement. Because the MDOT Standard Specifications were plainly
incorporated into the contract, and because ABC agreed to those terms, the trial court correctly
granted summary disposition to WCRC on this issue.
E. Storm Sewer Conflicts
In the trial court, ABC argued that WCRC should compensate it because YCUA failed to
timely shut down the water main to allow ABC to perform some of its construction work. ABC
also asserted that WCRC misrepresented job site conditions and this caused ABC to encounter
storm sewer conflicts during construction. Importantly, ABC seeks compensation for “labor
inefficiencies” because its workers had “to ‘start and stop’ its services more frequently than
anticipated . . . .” According to ABC, “labor inefficiencies” means that “more manpower hours
are required to complete the same amount of estimated work.” WCRC argued that it did not
cause any delay related to the water main shut down and it did not misrepresent the job site
conditions. WCRC further argued that “labor inefficiencies” are not recoverable under the
contract.
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We reject ABC’s argument that WCRC should pay damages for YCUA’s alleged failure
to timely shut down the water main because ABC has provided no legal support for its claim.
ABC’s argument on this issue is as follows:
[S]ince the contract between ABC and WCRC is for both the water main aspect of
the work as well as the road construction, ABC asserts that WCRC is still
obligated for [the delayed water main shut down] costs notwithstanding those
costs arose due to YCUA’s failure to perform. Indeed, WCRC would have a third
party claim against YCUA under their contract.
Later, ABC asserts that the water main shut down “was outside of ABC’s control but within
WCRC’s control under its separate contract with YCUA.”
As our Supreme Court explained in Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100
(1998):
[A] mere statement without authority is insufficient to bring an issue before this
Court. It is not sufficient for a party “simply to announce a position or assert an
error and then leave it up to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” Mitcham v Detroit, 355 Mich
182, 203; 94 NW2d 388 (1959).
ABC does not explain its theory that WCRC should be held responsible for job delays allegedly
caused by YCUA’s failure to timely shut down the water main, nor does it cite any supporting
contract language or legal authority. Because ABC did not develop this argument or cite any
legal authority, we deem this issue abandoned. DeGeorge v Warheit, 276 Mich App 587, 595;
741 NW2d 384 (2007).
We hold that ABC has also failed to properly develop or support its argument that
WCRC owes damages for alleged labor inefficiencies because ABC encountered storm sewer
conflicts during construction. ABC has not explained or presented evidence to establish that
WCRC caused these delays or otherwise breached the contract.2 In any case, the trial court
correctly rejected ABC’s argument because the contract does not permit ABC to recover for
“labor inefficiencies.” WCRC asserts that it paid ABC for labor, equipment, and material costs
because of the delays and ABC does not dispute this. WCRC also maintains that increased costs
to the contractor do not include “labor inefficiencies” under the contract. Section 109.03 of the
MDOT Standard Specifications provides that the WCRC will pay for a documented increase in
labor, material or equipment costs if a contractor is unreasonably delayed during the construction
2
ABC asserts that it took it 50 percent longer to complete the entire project because it was not
staged in two parts and this resulted in “extended overhead” or “office overhead” costs. Again,
for the reasons set forth above, ABC’s claim has no factual or legal support and the trial court
correctly granted summary disposition to WCRC on this claim.
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project. The specifications further state under § 109.02 and § 109.03(B)(1) that the department
will not pay for any other cost increases. Thus, if there is an unreasonable delay in construction
and the price of labor, materials, or equipment increases during the delay, WCRC agreed under
the contract to pay the difference. However, the specifications limit ABC’s recovery to those
increased costs.
ABC does not suggest that WCRC owes it more money for labor, material, or equipment
costs that increased during construction delays. And ABC does not indicate which section of the
contract states that “labor inefficiencies” are compensable. Instead, ABC relies on Holloway
Const Co v Michigan, 44 Mich App 508; 205 NW2d 575 (1973) and Bagwell Coatings, Inc v
Middle South Energy, 797 F2d 1298 (CA 5, 1986) for the proposition that “labor inefficiencies”
are compensable if the party managing the job causes an unreasonable delay in construction
through a breach of contract. In Holloway, the agreement stated that the contractor would have
access to a “borrow pit” (a designated section of soil) close to the work site. When the
contractor began construction, the borrow pit was not available and the contractor had to find and
secure another pit, farther away from the work site. The Court concluded that the state breached
the contract by failing to disclose that the borrow pit was unavailable and that this “created an
entirely new contract nowhere within the concept of the parties at the time that the written
instrument between them was executed.” Holloway, supra at 526-527. In Bagwell Coatings, the
contractor relied on the company’s assurance that it would have no obstructions when it
fireproofed steel beams at a nuclear station. Bagwell Coatings, supra at 1300. The
circumstances changed substantially, however, and the contractor had to work around numerous
fixtures and ducts. The Court noted that the promise to keep the area free from barriers “was a
specific contract provision, unique to the contractual relationship between these parties.” Id. at
1304. The Court also found that “[b]reach of this contractual provision to provide Bagwell
unobstructed access to the structural steel is fully supported by convincing, undisputed evidence
in the record.” Id.
ABC points to no evidence that WCRC caused an unreasonable or significant delay on
par with the facts of Holloway or Bagwell Coatings or even a delay that could amount to a
breach of contract. Further, none of the cases cited by ABC contain a specific contract term that
limits damages to increases in labor and material costs. Accordingly, and because the contract
specifically precludes further compensation for costs other than increased prices, ABC’s claims
for damages is without merit.3
3
As noted, ABC complains that it sustained damages because WCRC decided to keep the roads
open for traffic. ABC contends that it sustained “labor inefficiencies” and costs because the
roads remained open. For the reasons set forth in Section III, ABC’s claim is without merit. The
contract does not state that the project would be completed in two sections and, instead, it
explicitly states that traffic would remain open unless specific closures were set forth in the
contract or as directed by a WCRC engineer. Further, “labor inefficiencies” are not recoverable
under the contract for the reasons set forth above. Accordingly, we decline to grant relief to ABC
on this issue.
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F. Unjust Enrichment Claim
ABC complains that the trial court incorrectly granted summary disposition to YCUA.
The trial court dismissed ABC’s unjust enrichment claim against YCUA because there was an
express contract between WCRC and ABC that covered the project and addressed the issue of
exploratory excavations. The judge further observed that the contract provides that WCRC
would administer the project and approval by a WCRC engineer was required for changes or
additional work. As this Court explained in Morris Pumps v Centerline Piping, Inc, 273 Mich
App 187, 193; 729 NW2d 898, 903 (2006):
Whether a specific party has been unjustly enriched is generally a question
of fact. See Dumas v Auto Club Ins Ass'n, 168 Mich App 619, 637; 425 NW2d
480 (1988), rev’d on other grounds 437 Mich 521; 473 NW2d 652 (1991); see
also Hayes-Albion Corp v Kuberski, 421 Mich 170, 186; 364 NW2d 609 (1984).
However, whether a claim for unjust enrichment can be maintained is a question
of law, which we review de novo. Liggett Restaurant Group, Inc v Pontiac, 260
Mich App 127, 137; 676 NW2d 633 (2003). Finally, we review de novo a trial
court’s dispositional ruling on an equitable matter. Blackhawk Dev Corp v
Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005).
Unjust enrichment is the “(1) receipt of a benefit by the defendant from the plaintiff and (2) an
inequity resulting to the plaintiff because of the retention of the benefit by the defendant.”
Barber v SMH (US), Inc, 202 Mich App 366, 375; 509 NW2d 791 (1993).
“If this is established, the law will imply a contract in order to prevent
unjust enrichment.” [Belle Isle Grill Corp v Detroit, 256 Mich App 463, 478; 666
NW2d 271 (2003).] However, “a contract will be implied only if there is no
express contract covering the same subject matter.” Id. [Fodale v Waste
Management of Michigan, Inc, 271 Mich App 11, 36; 718 NW2d 827,
841 (2006).]
YCUA and the trial court are correct that the contract between ABC and WCRC covers
not only the issue of sewer replacement, but it also covers what exploratory excavations would
be approved and reimbursed by WCRC. We also agree with YCUA that ABC failed to present
evidence that ABC’s dozens of exploratory excavations inured to the benefit of YCUA when the
contract clearly states that ABC assumed responsibility to prevent damage to utility lines. As set
forth above, ABC agreed to protect utility lines and §107.12 of the MDOT Standard
Specifications provides that “[ABC] shall not begin work until arrangements are made for the
protection of adjacent utilities, or other property where damage might result in considerable
expenses, loss, or inconvenience.” Had it failed to locate the tie-ins, ABC, not YCUA, would
have been liable for its own damage to the utility lines, and ABC fails to articulate how YCUA
actually benefited from ABC’s additional exploratory excavations. For the same reason, ABC
has failed to show how inequity would result if it is not reimbursed by YCUA; again, ABC
assumed the responsibility to protect utilities and any steps it took to do so were for its own
protection and benefit.
Thus, while ABC is correct that the contract between ABC and WCRC might not
preclude a claim of unjust enrichment against YCUA under Morris Pumps, supra at 194-195,
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ABC has nonetheless failed to establish its claim. ABC has not presented any evidence that
YCUA unjustly received a benefit from the services provided under ABC’s contract with WCRC
and, therefore, the trial court correctly granted summary disposition to YCUA on this issue.
Affirmed.
/s/ Henry William Saad
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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