THOMAS JOHN SHAY V JOHN ALDRICH
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS JOHN SHAY,
UNPUBLISHED
March 5, 2009
Plaintiff-Appellee,
v
JOHN ALDRICH, WILLIAM PLEMONS, and J.
MILLER,
No. 282550
Wayne Circuit Court
LC No. 06-608275-NZ
Defendants-Appellants,
and
OFFICER ALLBRIGHT and OFFICER
LOCKLEAR,
Defendants.
Before: Jansen, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
Defendants John Aldrich, William Plemons, and J. Miller (“defendants”), appeal by leave
granted from an order denying their motion for summary disposition. We reverse.
Defendants are Melvindale police officers, and this case arises out of plaintiff’s
September 8, 2004, arrest for disorderly conduct, resisting arrest, and obstructing justice.
Plaintiff filed the instant lawsuit in March 2006, against defendants as well as against Allen Park
police officers Wayne Allbright and Kevin Locklear. The claim against defendants pertained to
gross negligence as a result of an alleged assault and battery, while the claim against the Allen
Park officers pertained to gross negligence as a result of inaction.
The case proceeded to case evaluation in June 2007. The evaluation panel issued awards
of $500,000 against Aldrich, $500,000 against Plemons, $450,000 against Miller, and $12,500
against each of the Allen Park officers. Plaintiff accepted the awards against Miller and the
Allen Park officers. Defendants rejected the awards, and the Allen Park officers accepted the
awards.
On July 23, 2007, a settlement conference was conducted. As a result of the mutual
acceptance of the case evaluation awards, the Allen Park officers were dismissed from the case.
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On July 24, 2007, plaintiff executed releases. A separate release was executed for each
Allen Park officer, but, other than the name of the particular officer, the releases contain identical
language. The releases provide, in part:
For the sole consideration of TWELVE THOUSAND FIVE HUNDRED
AND NO/100 ($12,500.00) DOLLARS to me in hand paid by Michigan
Municipal Liability and Property Pool do for ourselves, executors,
administrators, successors, and assigns, discharge, ALLEN PARK POLICE
OFFICER [Locklear/Allbright] and Michigan Municipal Liability and
Property Pool, insurer, together with all other persons, firms and corporations,
from any and all claims, demands and actions which I have now or may have
arising out of any and all damages, expenses, and any loss or damage resulting
from an incident occurring on September 8, 2004. [Emphasis in original.]
On October 19, 2007, defendants moved for summary disposition under MCR
2.116(C)(7). Defendants argued that because the plain language of the releases reference not
only the Allen Park officers, but “all other persons,” defendants are in the class of persons
released from liability to plaintiff in connection with the September 8, 2004, incident. Plaintiff
responded to the motion by arguing that summary disposition under MCR 2.116(C)(7) on the
basis of a release is only appropriate if, in contrast to the instant case, the release was executed
“before commencement of the action.”
At a hearing on November 9, 2007, the trial court ruled:
The motion here is brought pursuant to MCR 2.116(C)(7) alleging that the
claim of the Plaintiff should be barred because of a release.
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Now, the Defense is relying on a provision in the Court Rule to bar the, or
really to dismiss the claim of the Plaintiff. I think in those circumstances it’s very
important that we look at the exact language of the, of the Court Rule so that we
could, we can make a determination as to whether or not the requirements of the
Court Rule are being satisfied. And in this case there are two sections that really
give us some guidance here. 2.116(C)(7) and 2.116(D), (D)(2), as a matter of
fact.
And just to kind of highlight from (C)(7), it says the claim is barred
because of release, payment, prior judgment, and it lists some other factors, or
other disability of the moving party or assignment or other disposition of the
claim before commencement of the action. And I think that last few words,
“before commencing, commencement of the action” is a requirement. It’s
important that we look at that.
And that is, is further amplified or explained in (D)(2) where it says that
the grounds listed in Subrules, Subrule (C)(5), (6) and (7), and (7) is the one that
we’re concerned about, must be raised in a party’s responsive pleading unless the
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grounds are stated in a motion filed under this rule prior to the party’s First
Responsive Pleadings. Those requirements have to be satisfied . . . .
In this case the rules have not been satisfied. There’s no basis for the
motion to dismiss the case or grant the relief that Defendant is requesting, so that
the motion here is denied.
Also on November 9, 2007, the trial court issued a written order that denied defendants’ motion
for summary disposition “for the reasons stated on the record.”
Subsequently, defendants moved to amend their affirmative defenses to include a defense
based on the releases. In an opinion and order dated December 6, 2007, the trial court denied the
motion. The trial court opined that the releases were ambiguous because the bolded portion of
the releases indicated an intent to limit the releases to those parties, and, under the circumstances
of this case, it was clear that plaintiff only intended to release the Allen Park officers. The trial
court also noted that the Allen Park officers had no authority to enter into an agreement that
would release defendants. The trial court then concluded:
MCR 2.118(A)(2) provides that a party may amend a pleading by leave of
the court and leave shall be freely given when justice so requires. The question
here is whether justice would require leave to amend be granted under these
circumstances. The aim of the defense is to amend their pleading so that they
may again file a motion for summary disposition based on the affirmative defense
of release. In this case, justice requires that the Plaintiffs case go forward in
conformity with the intentions of the parties.
On appeal, defendants contend that the trial court erred in denying their motion for
summary disposition. We review de novo a trial court’s decision regarding a motion for
summary disposition. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).
When reviewing a motion granted pursuant to MCR 2.116(C)(7), we consider all
affidavits, pleadings, and other documentary evidence submitted by the parties
and, where appropriate, construe the pleadings in favor of the plaintiff. . . . A
motion under this subrule should be granted only if no factual development could
provide a basis for recovery. [Romska v Opper, 234 Mich App 512, 515; 594
NW2d 853 (1999).]
We find the Romska case particularly instructive here. In Romska, supra at 513, the
plaintiff’s vehicle was struck by a vehicle owned by Boyan Daskal and driven by Veliko
Velikov. David Opper allegedly caused Velikov to swerve into oncoming traffic and strike
plaintiff's vehicle. Id. The plaintiff executed a release in connection with proceedings against
Daskal and Velikov. Id. at 513-514. The release stated, in part:
I/we hereby release and discharge Boyan Daskal and Veliko Velikov, his or her
successors and assigns, and all other parties, firms, or corporations who are or
might be liable, from all claims of any kind or character which I/we have or might
have against him/her or them. [Id. at 514 (emphasis supplied by Romska).]
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The plaintiff subsequently sued Opper; Opper did not raise the affirmative defense of release
initially, but the trial court permitted an amendment to the affirmative defenses and then
concluded that the release barred plaintiff’s lawsuit. Id. at 514-515.
This Court concluded that Opper clearly fit within the “all other parties, firms, or
corporations who are or might be liable” language from the release. Id. at 515. It stated that it
need not “look beyond the plain, explicit, and unambiguous language of the release in order to
conclude that [Opper] has been released from liability.” Id. at 515. The Court emphasized that
the word “all” had been used in the release. Id. at 515-516.
The releases at issue in the present case use the same broad language as the release at
issue in Romska, and they also employ the word “all.” Contrary to plaintiff’s arguments on
appeal, the language is unambiguous and thus must be applied as written. Id. at 515. The
releases indicate that “all other persons” are discharged “from any and all claims . . . which I
have now or may have . . . .” Accordingly, the releases encompassed the pending litigation and
served to bar plaintiff’s claims against defendants.
We reject plaintiff’s argument that summary disposition was inappropriate because MCR
2.116(C)(7) applies only if a release is entered into before commencement of the action. MCR
2.116(C)(7) states that summary disposition is appropriate if
[t]he claim is barred because of release, payment, prior judgment, immunity
granted by law, statute of limitations, statute of frauds, an agreement to arbitrate,
infancy or other disability of the moving party, or assignment or other disposition
of the claim before commencement of the action.
As noted in Dessart v Burak, 470 Mich 37, 41; 678 NW2d 615 (2004), “a modifying clause is
confined to the last antecedent unless something in the subject matter or dominant purpose [of
the statute] requires a different interpretation” (internal citations and quotation marks omitted).
Here, the subject matter or dominant purpose of the rule does not compel us to conclude that the
phrase “before commencement of the action” must apply to all the antecedents as opposed to
applying simply to the phrase “other disposition of the claim.” Additionally, as stated in
Cameron v Auto Ins Ass’n, 476 Mich 55, 71; 718 NW2d 784 (2006), “the last antecedent rule
does not apply where the modifying clause is set off by a punctuation mark, such as a comma or,
in this case, a period.” We note that the modifying clause “before commencement of the action”
is not set off by a comma or period. We find that MCR 2.116(C)(7) did in fact apply in this case.
Moreover, given the applicability of the releases and the applicability of MCR
2.116(C)(7), we find that the court abused its discretion in failing to allow defendants to amend
their affirmative defenses. See Moorehouse v Ambassador Ins Co, Inc, 147 Mich App 412, 419;
383 NW2d 219 (1986) (it makes sense to allow affirmative defenses to be raised when they
become available). Any delay did not cause the type of “prejudice” that mandates the denial of
leave to amend. See, generally, Weymers v Khera, 454 Mich 639, 659; 563 NW2d 647 (1997).
Plaintiff contends that the releases are unenforceable against defendants because plaintiff
received inadequate consideration. Plaintiff contends that the Allen Park officers paid nothing
more than that which they were already obligated to pay. We reject this argument. As noted by
plaintiff himself in his appellate brief, counsel for the Allen Park officers “asked to have the case
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evaluation settlement accomplished by ‘Release’ and Stipulation and Order of Dismissal, with
‘the case evaluation award ($12,500.00) as consideration.’” Plaintiff also stated in his brief that
“[t]he settlement amount was paid by the insurer of Allen Park and forwarded with a letter by
their counsel . . . .” Under these circumstances, we conclude that the Allen Park officers paid
consideration for the releases.
Plaintiff additionally contends that there was no consideration for the promise to release
persons other than the Allen Park officers from liability. We also reject this argument. As noted
in Hall v Small, 267 Mich App 330, 334; 705 NW2d 741 (2005), “the basic rule of contract law
is that whatever consideration is paid for all of the promises is consideration for each one . . .”
(internal citation and quotation marks omitted).
Plaintiff contends that, if we find the releases applicable to defendants, the proper remedy
is to allow a reformation of the releases. We disagree. The releases must be applied as written.
Romska, supra at 515. “This court has many times held that one who signs a contract will not be
heard to say, when enforcement is sought, that he did not read it, or that he supposed it was
different in its terms.” Farm Bureau Mut Ins Co of Michigan v Nikkel, 460 Mich 558, 567-568;
596 NW2d 915 (1999) (internal citation and quotation marks omitted).
Reversed and remanded for entry of judgment in favor of defendants. We do not retain
jurisdiction.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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