Donna Walker v. Otis M Underwood Jr
333160
| Mich. Ct. App. | Sep 7, 2017Background
- Plaintiffs (Donna Walker, William Walker, and Head to Toes Massage Therapy of Oxford, Inc.) and defendant Otis M. Underwood entered a contract that enumerated specific remedies for breach.
- Dispute arose over whether plaintiffs could pursue remedies beyond those enumerated in the contract after Underwood allegedly failed to perform preliminary duties.
- Trial court granted summary disposition in favor of Underwood under MCR 2.116(C)(8) (docket no. 332129); Underwood cross-appealed (docket no. 333160).
- The majority opinion (not reproduced here) held that the contract did not limit plaintiffs to the listed remedies; O’Brien J. dissented in part.
- Judge O’Brien’s opinion argues the parties’ listing of specific remedies demonstrates an intent to limit available remedies to those specified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract limits available remedies to those expressly listed | Plaintiffs may pursue additional remedies beyond those listed | The parties’ enumeration of remedies limits recovery to those remedies only | O’Brien J.: The listing indicates intent to limit remedies to those specified; would affirm trial court (C(8)) |
| Effect of the word "permit" in the remedy clause | "Permit" allows broader remedies beyond the list | "Permit" is permissive as to plaintiff's choice to pursue listed remedies, not as to available remedies themselves | O’Brien J.: "Permit" is permissive only about plaintiffs' choice to pursue listed remedies, not an expansion of remedies |
Key Cases Cited
- Luttrell v. Dep’t of Corrections, 421 Mich 93 (tool of construction; expressio unius is not absolute)
- Hackel v. Macomb Co. Comm., 298 Mich App 311 (expressio unius is a rule of logic/common sense)
- AFSCME v. Detroit, 267 Mich App 255 (expressio unius cannot govern if it defeats clear intent)
- Nat’l Pride at Work, Inc. v. Governor of Michigan, 481 Mich 56 (avoid interpretations that render language meaningless)
- Sandusky Grain Co. v. Borden’s Condensed Milk Co., 214 Mich 306 (courts may not add terms to contracts)
- Short v. Hollingsworth, 291 Mich 271 (contrast of permissive/mandatory language in contract interpretation)
- Perkovic v. Zurich American Ins. Co., 500 Mich 44 ("may" generally denotes permissive vs "shall")