BOB TURNER INC V MARGARET LEAHY
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STATE OF MICHIGAN
COURT OF APPEALS
BOB TURNER, INC.,
UNPUBLISHED
September 19, 2000
Plaintiff/Counter-Defendant-Appellant,
v
No. 213700
Oakland Circuit Court
LC No. 96-532291-CZ
MARGARET LEAHY and FARZIN GHODSI,
Defendants/Counter-PlaintiffsAppellees,
and
FRANKLIN BANK and STANDARD FEDERAL
BANK,
Defendants.
Before: Gribbs, P.J., and Neff and O’Connell, JJ.
PER CURIAM.
Plaintiff appeals as of right from a judgment awarding defendants1 damages on their
counterclaim for breach of contract. We affirm.
In November 1994, defendants Margaret Leahy and Farzin Ghodsi contracted with plaintiff
Bob Turner, Inc., for plumbing and septic system installation at the home defendants were building.
Plaintiff completed the rough plumbing and installed part of the septic system by March 1995, however,
the relationship between the parties broke down and plaintiff never completed the contracted work. In
August 1995, plaintiff requested additional money, above the contract price, to finish the contract, but
defendants refused to pay the additional amount. In September 1995, defendants hired two new
1
For purposes of this appeal, the term defendants will refer to Margaret Leahy and Farzin Ghodsi only.
Plaintiff’s claims against defendants Franklin Bank and Standard Federal Bank were dismissed with
prejudice on June 16, 1998.
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contractors to complete the finish plumbing and the septic field. Plaintiff filed a lien against defendants’
property and then filed suit to recover the balance of the contract, and defendants counterclaimed for
breach of contract. After a bench trial, the court found that plaintiff breached the plumbing and septic
system contracts. The court entered judgment for defendants, awarding $6,557 in damages.
Defendants sought mediation sanctions and were awarded $5,000 in attorney fees and costs.
I
Plaintiff argues that the trial court erred when it found that plaintiff breached its contracts with
defendants. In an action tried without a jury, we review the trial court’s findings of fact for clear error.
Triple E Produce Corp v Mastronardi Produce, 209 Mich App 165, 171; 530 NW2d 772 (1995).
A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction
that a mistake has been made. Id. We review the court’s conclusions of law de novo. Gumma v D &
T Constr Co, 235 Mich App 210, 221; 597 NW2d 207 (1999).
A
Plaintiff claims that it was prevented from completing its performance under the contract by
defendants’ failure to obtain the necessary plumbing fixtures and to notify plaintiff of the availability of
the fixtures for installation. “[A] party to a contract cannot prevent, or render impossible, performance
by the other party and still recover damages for nonperformance.’” Kiff Contractors, Inc v Beeman,
10 Mich App 207, 210; 159 NW2d 144 (1968), citing 17A CJS, Contracts, § 468, 638-642; 5
Williston, Contracts (3d ed), § 677, 224.
However, in this case, the court found that there was credible evidence that some of the fixtures
were available for installation in July or August 1995, and that lack of communication between the
parties did not prevent plaintiff from installing those fixtures. This finding was supported by the
testimony of defendants that they had obtained some fixtures as early as March 1995, and that
additional fixtures were purchased and made available in June and August 1995. Defendants also
testified that plaintiff refused to install these fixtures because they were purchased at Home Depot.
Given this evidence, we conclude that the trial court’s finding that plaintiff was not prevented from
installing plumbing fixtures was not clearly erroneous.
B
Plaintiff also argues that it was prevented from completing the installation of the septic system
due to defendants’ failure to remove the necessary trees. Plaintiff claims that it was defendants who
breached this contract by hiring another party to complete the work before plaintiff was able to fully
perform its obligations under the contract.
The trial court found that plaintiff’s demand for additional money to complete the septic system
contract constituted an anticipatory breach. Anticipatory breach of a contract occurs if, before the time
of performance, a party to a contract unequivocally declares an intent not to perform. Stoddard v
Manufacturers National Bank of Grand Rapids, 234 Mich App 140, 163; 593 NW2d 630 (1999).
“In determining whether an anticipatory breach has occurred, it is the party’s intention manifested by
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acts and words that is controlling, and not any secret intention that may be held.” Paul v Bogle, 193
Mich App 479, 493; 484 NW2d 728 (1992). “‘[A] party’s language must be sufficiently positive to be
reasonably interpreted to mean that the party will not or cannot perform.” Id. at 494, quoting 2
Restatement Contracts 2d, § 250, 273-274.
Here, it is undisputed that plaintiff sent a letter to defendants in August 1995, in which plaintiff
requested additional funds to complete the septic system installation. Plaintiff argued that the letter was
not a breach, essentially because it never demanded the money or refused to complete its performance.
However, the language of the letter suggests otherwise:
This letter is to inform you that we will need an increase of the money to finish
this job. Normally we would honor our commitments, but this has been stretched out
far to [sic] long.
***
To be fair, we are asking for an increase of $3,225.00 to the contract to
finish your system, which is still less than we would charge for the same system today.
[Emphasis added.]
Plaintiff’s statement appears to be an unequivocal declaration of its intent not to complete its obligations
under the contract unless defendants agreed to the price increase. The language of the letter is
sufficiently positive to conclude that plaintiff would not perform its responsibilities under the contract,
and the trial court did not err in concluding that this letter constituted an anticipatory breach of the
contract.
C
Plaintiff also claims that it provided labor and materials under the contract for which it was not
compensated by defendants, and that plaintiff is entitled to quantum meruit recovery for that work. One
who first breaches a contract cannot maintain an action against the other contracting party for a
subsequent breach or failure to perform, Flamm v Scherer, 40 Mich App 1, 8-9; 198 NW2d 702
(1972), however, a plaintiff may be entitled to recover under a theory of quantum meruit for the value of
services rendered, 5 Callaghan’s Michigan Civil Jurisprudence, § 249, 344-345.
In this case, the court found that plaintiff was fully compensated by defendants for all work
completed under the contract. This finding was supported by the fact that defendants made two
payments to plaintiff and for both of these payments, plaintiff provided defendants with partial waivers.
Defendants also testified that all of the items for which plaintiff sought compensation were either paid for
or were never provided. The court’s finding on this issue was supported by credible evidence, and the
court did not err in concluding that plaintiff was not entitled to additional compensation.
D
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Plaintiff next argues that the trial court erred when it found that the parties did not agree to a
contract modification. Parties bound by an agreement, whether written or oral, may change the
agreement by mutual consent. Rasch v National Steel Corp, 22 Mich App 257, 260; 177 NW2d
428 (1970). A written agreement may be the subject of subsequent oral modification only if it is
supported by independent consideration. Evans v F J Boutell Driveaway Co, 48 Mich App 411,
418-419; 210 NW2d 489 (1973). The burden of proving the modification rests on the party alleging it.
Rasch, supra at 260.
In this case, plaintiff requested an increase in the contract amount due to an alleged delay by
defendants that prevented plaintiff from completing the project. Defendants admitted that they offered
plaintiff an additional $1,000 to complete the project and the parties disputed whether plaintiff accepted
the offer. The trial court found there was no agreement to a $1,000 increase in the price of the contract.
This finding was supported by evidence presented at trial and is not clearly erroneous.
Even if the court had found that the parties had agreed to the $1,000 increase, this oral
modification would be invalid. There was no evidence in the record suggesting that plaintiff offered any
additional consideration for the modification of the contract. Plaintiff already had an obligation to
complete the installations under the contract, and this pre-existing duty would not qualify as independent
consideration sufficient for oral modification of the agreement. Green v Millman Brothers, 7 Mich
App 450, 455; 151 NW2d 860 (1967). The parties could not orally modify their written agreement
without independent consideration, and the court did not err in concluding that there was no agreement
to modify the contract.
II
Plaintiff also argues that the trial court should not have awarded defendants mediation sanctions
pursuant to MCR 2.403(O) because the court had no jurisdiction to rule on defendant’s request for
attorney fees and costs once the claim of appeal was filed. In response, defendants argue that this
Court has no jurisdiction to review the lower court’s decision to award mediation sanctions because
plaintiff failed to file a separate claim of appeal regarding this issue.
MCR 7.203 governs this Court’s jurisdiction over appeals from lower courts. Under the
version of the rule in effect at the time plaintiff filed its claim of appeal, this Court had jurisdiction to hear
an appeal of right from a final judgment or final order of the circuit court. MCR 7.203(A)(1). A final
judgment or order in a civil case is defined as the first judgment or order that disposes of all the claims
and adjudicates the rights and liabilities of all the parties. MCR 7.202(8)(a)(1).2
In Gherardini v Ford Motor Co, 394 Mich 430, 431; 231 NW2d 643 (1975), our Supreme
Court held that a postjudgment order awarding attorney fees and costs was a final judgment because it
affected with finality the rights of the parties and was subject to this Court’s jurisdiction as an appeal of
right. This Court relied on the Supreme Court’s holding in Gherardini in a recent decision allowing
2
Now, MCR 7.202(7)(a)(1).
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appeal of right from a circuit court order awarding attorney fees and costs. Macomb County
Taxpayers Ass’n v L’Anse Creuse Public Schools, 213 Mich App 71, 76-77; 540 NW2d 684
(1995), rev’d in part on other grounds 455 Mich 1; 564 NW2d 457 (1997). Further, Gherardini,
supra at 431, cites People v Pickett, 391 Mich 305; 215 NW2d 695 (1974), for the proposition that
a case may have more than one “final” order or judgment. Because the order for mediation sanctions in
this case affects the rights of the parties with finality, it is a final order which can be appealed as of right.
Although an order awarding mediation sanctions can be appealed of right, plaintiff’s only claim
of appeal in this case was filed prior to entry of the sanctions order. Typically, a claim of appeal does
not cover an order entered after the claim has been filed. McDonald v Stroh Brewery Co, 191 Mich
App 601, 609; 478 NW2d 669 (1991); Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193,
197; 452 NW2d 471 (1989). In McDonald, supra at 609, this Court held that it did not have
jurisdiction to review an order granting mediation sanctions where the appellant failed to file a claim of
appeal with regard to the order. See also Fisher v Detroit Free Press, Inc, 158 Mich App 409; 404
NW2d 765 (1987). Because plaintiff’s claim of appeal was filed prior to entry of the order awarding
mediation sanctions, and plaintiff filed no claim of appeal regarding the sanctions order, this Court has
no jurisdiction to review this issue.3
Affirmed.
/s/ Roman S. Gribbs
/s/ Janet T. Neff
/s/ Peter D. O’Connell
3
Because we are without jurisdiction to review the award of mediation sanctions, we do not address
the issue of the trial court’s jurisdiction to award the sanctions, raised by plaintiff on appeal.
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