Colburn Hundley Inc v. West Michigan Developers Inc
333201
| Mich. Ct. App. | Aug 10, 2017Background
- Colburn Hundley, Inc. (Hundley) was retained under an Agency Agreement as exclusive broker for 30.51 acres owned by West Michigan Developers, Inc. (WMD) on April 14, 2010, with an 8% brokerage fee and a listed expiration of April 13, 2011 plus a 6‑month post‑listing protection clause.
- Earlier the same day WMD granted JPW 84th Street, LLC (JPW) an option to purchase the property; JPW’s original option expired April 1, 2012 after an amendment.
- The Agency Agreement contained a paragraph (¶5) providing that if WMD grants an option during the listing, the running of the listing term is suspended for the duration of the option.
- The Agency Agreement was amended April 5, 2011 to show an expiration date of April 13, 2012 (parties dispute term mechanics).
- WMD sold the property to Pembroke on July 15, 2014; Hundley helped in marketing but WMD paid no commission, prompting this breach‑of‑contract suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the JPW option suspend the Agency Agreement so the listing extended and the July 2014 sale fell within protection? | JPW option triggered ¶5 suspension, so the listing did not run until after JPW’s option expired and the 6‑month protection covered the 2014 sale. | ¶5 is forward‑looking; a pre‑existing option cannot suspend a subsequently signed listing; even if suspended, the listing would have expired well before July 2014. | Court: JPW option (signed earlier the same day) did not suspend the Agency Agreement; listing expired before sale, so no 8% under Agency Agreement. |
| Did Hundley and Bultsma form a new, enforceable post‑2012 agreement for a commission (3% or 8%)? | Parties’ emails and documents and references in WMD–Pembroke papers show a new agreement or at least writings satisfying the statute of frauds. | Negotiations and offers/counteroffers occurred but no mutual assent on essential terms; no signed agreement obligating WMD to pay Hundley. | Court: No meeting of the minds; communications were negotiations/unaccepted offers; no contract formed. |
| Does MCL 566.132(1)(e) (statute of frauds) bar recovery absent a signed writing? | Writings exist that could satisfy statute of frauds if they evidenced a contract. | Even if writings satisfy statute of frauds, there is still no contract because no mutual assent. | Court: Statute of frauds issue secondary; primary defect is absence of mutual assent—no enforceable contract. |
| Did the trial court abuse discretion by denying leave to amend complaint to plead unjust enrichment/quantum meruit? | Plaintiff sought leave to amend to add quasi‑contract claims after summary disposition. | Plaintiff’s counsel conceded at hearing that this was a contract case governed by statute of frauds and that other claims were "not allowed," so amendment was waived. | Court: Plaintiff waived the right to pursue alternate theories by counsel’s representations; denial of amendment not reversible. |
Key Cases Cited
- Auto Club Group Ins Co v Burchell, 249 Mich. App. 468 (review of MCR 2.116(C)(10) factual standards)
- Sisk‑Rathburn v Farm Bureau Gen Ins Co of Mich, 279 Mich. App. 425 (summary disposition: view evidence for nonmoving party)
- Allison v AEW Capital Mgt, LLP, 481 Mich. 419 (definition of genuine issue of material fact)
- Kloian v Domino’s Pizza LLC, 273 Mich. App. 449 (contract formation and interpretation principles)
- Ormsby v Capital Welding, Inc, 471 Mich. 45 (standard for appellate review of amendment of pleadings)
- Ronnisch Construction Group, Inc v Lofts On the Nine, LLC, 306 Mich. App. 203 (abuse of discretion standard)
- Harbor Park Mkt, Inc v Gronda, 277 Mich. App. 126 (contract interpretation goal: enforce parties’ intent)
- McCoig Materials, LLC v Galui Const, Inc, 295 Mich. App. 684 (interpretation using plain and ordinary meaning)
- Wilkie v Auto‑Owners Ins Co, 469 Mich. 41 (read contract as whole; give harmonious effect)
- Craib v Comm on Nat’l Missions of Presbytery of Detroit, 62 Mich. App. 617 (statute of frauds requires written contract for real estate commissions)
- Kelly‑Stehney & Assoc, Inc v MacDonald’s Indus Products, Inc, 265 Mich. App. 105 (statute of frauds may be satisfied by several writings)
- Zurcher v Herveat, 238 Mich. App. 267 (writing sufficiency distinct from contract formation)
- Kamalnath v Mercy Mem Hosp Corp, 194 Mich. App. 543 (burden on plaintiff to show mutual assent)
- Braverman v Granger, 303 Mich. App. 587 (waiver by counsel’s statements; cannot take contrary position on appeal)