JANELLA SIUDA V RICHARD J TOBIN
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STATE OF MICHIGAN
COURT OF APPEALS
JANELLA SIUDA and ERVIN SIUDA,
UNPUBLISHED
September 29, 2009
Plaintiffs-Appellants,
v
No. 285618
Cass Circuit Court
LC No. 07-000063-CZ
RICHARD J. TOBIN, d/b/a DREAMLAND
HOMES,
Defendant-Appellee,
and
NEW ERA MODULAR HOMES,
Defendant.
Before: Saad, C.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Plaintiffs Janella Siuda and Ervin Siuda appeal as of right from a circuit court order that
granted summary disposition to defendant Richard Tobin, d/b/a Dreamland Homes, pursuant to
MCR 2.116(C)(7) on the basis of a one-year limitation period in the parties’ contract. We
affirm. We decide this appeal without oral argument.1
I. Basic Facts And Procedural History
The parties entered a purchase agreement on November 28, 2003, for the sale of a fourpiece modular home. The purchase agreement states, “Any action brought by the Purchaser
against the Retailer of the home and any action brought by the Purchaser against any employee,
owner, officer or agent of the Retailer of the home, whether based in tort, based in contract or
based on any other legal or equitable theory, must be brought and filed no later than one year
from the date of the sale of the home.”
The Siudas filed their complaint in this action on February 7, 2007. They alleged that the
materials for the home’s construction arrived at the site in March or April 2004. But before it
1
MCR 7.214(E).
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was assembled, the interior was exposed to the weather and water damage. The Siudas claimed
that the home was poorly constructed in numerous respects. They asserted that Tobin breached
the contract to build the home in a professional manner and that Tobin fraudulently concealed
defects. (The Siudas’ claim against New Era for negligently recommending Tobin was
dismissed by the trial court and is not at issue in this appeal.)
Tobin moved for summary disposition on the basis of the one-year limitations period
provided in the purchase agreement. In response, the Siudas filed a “Motion in Opposition” that,
in a conclusory manner, stated that Tobin waived enforcement and was estopped by fraudulent
concealment or “Continuing Wrong,” that the provision was against public policy and would be
unconscionable to enforce, and that Tobin entered into a new contract to repair by promising that
he or his insurance company would take care of the problems. The Siudas attached Janella
Siuda’s deposition in its entirety but did not reference any specific testimony or cite to any pages
of it. The trial court granted Tobin’s motion for summary disposition and explained its reasons
for rejecting the Siudas’ arguments in avoidance of the provision as follows:
I know the plaintiff raises a whole slew of other arguments here. The only
one that really has any relevance I guess is the fact that there hasn’t been any
waiver, I mean, there’s no agreement by the parties to change this limitation, and I
don’t find any waiver by their conduct. The continuing wrongs theory that the
plaintiff presents is not even applicable to this type of action. So his primary
thrust is this is fraudulent concealment, and I don’t accept that. I don’t think the
record supports it, but even if it did the statute requires that an action pursuant to
fraudulent concealment be brought within two years of discovery or when the
parties should have discovered it. Well, you know, when you move in December
’04 and you have a lot of problems and complaints about it and you recognize or
discover that there are issues and you don’t file suit for over two years from then,
that is, until February ’07, you haven’t satisfied the Statute of Limitations set
forth in the Fraudulent Concealment Statute, that’s Section 5855, MCL 600.5855.
The bottom line is the parties agreed in their contract to a one-year Statute
of Limitations, which has not been followed, so the Court grants summary
disposition on the defendant’s motion pursuant to 2.116(C)(7).
II. Summary Disposition
A. Standard Of Review
This Court reviews de novo a trial court’s decision on a motion for summary disposition.2
B. The Time-Limitation Provision Of The Purchase Agreement
The trial court correctly rejected the Siudas’ attempts to avoid the effect of the
unambiguous and comprehensive provision in the parties’ purchase agreement. The Siudas have
2
Clark v DaimlerChrysler Corp, 268 Mich App 138, 141; 706 NW2d 471 (2005).
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not shown a public policy clearly rooted in the law that prohibits this type of limitation.3 The
Siudas rely on the various statutes of limitations that would otherwise have been applicable.
However, if the existence of longer limitations periods that would have been applicable were
adequate to show a public policy against an agreement for a shorter period, then all agreements
to shorten limitations periods are against public policy. This result would be contrary to the
holding in Rory.
The Siudas contend that Tobin waived the provision by promising to take care of
everything. The assurance is not clear and convincing evidence of Tobin agreeing to forego the
benefit of the restriction on bringing suit.4
C. Estoppel
The Siudas contend that, because of Tobin’s conduct, he should be estopped from
asserting the limitations period as a defense. For equitable estoppel to apply, the Siudas must
establish that (1) Tobin’s acts or representations induced them to believe that the limitations
period clause would not be enforced, (2) they justifiably relied on this belief, and (3) they were
prejudiced as a result of their reliance on their belief that the clause would not be enforced.5 In
this case, there is no evidence that the Siudas had a belief that the limitations clause would not be
enforced. The Siudas’ belief as to the enforceability of the provision or even its existence was
not mentioned in the evidence that was presented.
Moreover, Tobin’s actions and
representations with respect to the repairs provided no basis from which the Siudas could have
formed a belief about whether Tobin would enforce the time limitation.
D. Unconscionability
Finally, under the heading, “UNCONSCIONABILITY,” the Siudas state that enforcing
the provision would “lead to a result that should shock the court’s conscience” because of the
severity of the economic loss suffered by the Siudas. Both procedural and substantive
unconscionability must be present for a provision to be considered unconscionable.6 The Siudas’
argument premised on the extent of their loss is misguided. They have not argued, much less
established, that they had no realistic alternative to purchasing the modular home from
defendant.7 Moreover, the analysis of substantive unconscionability depends on the inequity of
3
See Rory v Continental Ins Co, 473 Mich 457, 470-471; 703 NW2d 23 (2005).
4
See Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 365; 666 NW2d
251 (2003).
5
McDonald v Farm Bureau Ins Co, 480 Mich 191, 204-205; 747 NW2d 811 (2008).
6
Clark, supra at 143.
7
Cf., Liparoto Constr Co, Inc v Gen Shale Brick, Inc, ___ Mich App ___; ___ NW2d ___ issued
May 21, 2009 (Docket No. 282920) (concluding the plaintiff failed to present evidence of
procedural unconscionability, for instance that it was unable to purchase bricks from another
supplier or that the defendant was unwilling to provide brick under different terms).
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the contractual term sought to be avoided,8 which in this case is the time limitation. The extent
of the loss allegedly sustained by the Siudas is immaterial to the inequity of that term.
Because the Siudas failed to show that the time limitation should not be enforced, we
conclude that the trial court correctly granted summary disposition to Tobin.
Affirmed.
/s/ Henry William Saad
/s/ William C. Whitbeck
/s/ Brian K. Zahra
8
Clark, supra at 144.
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