Opinion
No. 349618
07-23-2020
THOMAS A. VANDUINEN, Plaintiff-Appellant, v. COUNTY OF ALPENA, doing business as ALPENA COUNTY REGIONAL AIRPORT, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Alpena Circuit Court
LC No. 18-008209-CK Before: METER, P.J., and BECKERING and O'BRIEN, JJ. PER CURIAM.
Plaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition under MCR 2.116(C)(7) and (10). This appeal has been decided without oral argument pursuant to MCR 7.214(E). We affirm.
I. BACKGROUND
On September 20, 1991, plaintiff and several others signed a lease agreement with defendant to lease space on airport grounds owned by defendant. A representative from defendant signed the lease agreement on September 28, 1992. We will refer to this lease as "the 1992 lease." As relevant to this appeal, the 1992 lease states:
This Agreement will commence on the 1st day of October, 1992, and continue for twenty-five (25) years thereafter unless terminated earlier in accordance with the provisions herein contained. Further, LESSEES will have an option to renew this Lease for an additional twenty-five (25) years by giving LESSOR written notice of their intention to do so not later than one (1) year prior to the expiration of the initial term.The "1st" and "October" in this paragraph are handwritten in blank spaces provided in the lease, and the year, 1992, is written in the lease as "1991," but there is a mark through the "1" with a "2" handwritten above it; the lease without these handwritten additions reads, "This Agreement will commence on the ___ day of ___, 1991 . . . ." There are two copies of this lease that were filed in the lower court; one that has all parties' signatures with the handwritten additions, and a second that has only the lessees' signatures without the handwritten additions.
According to plaintiff, he handed a letter to Steve Smigelski, the airport manager who works for defendant, on February 12, 2016, that stated:
This letter is to express our intent to renew our lease of airport property upon which my hangar building is situated, for another twenty five (25) years as provided in a lease entered into on the 29th day of September 1992, signed by the county on September 28, 1992.The letter was signed only by plaintiff. Two of plaintiff's co-lessees averred in affidavits that they never attempted to renew the 1992 lease and did not authorize plaintiff to renew the lease on their behalf. Smigelski testified that he did not receive plaintiff's letter until August 2017.
Smigelski also testified that in 2016, the "airport committee" was reviewing airport leases—not necessarily the 1992 lease at issue here—and decided that the leases "needed updating," and they assigned that task to Smigelski. This led Smigelski to draft a new lease, which we will refer to as the 2017 lease. Smigelski explained that the 2017 lease "was basically just a modernization of the language" of the 1992 lease, and that he "used the [1992] lease as basically a springboard template to begin with." Some of the changes from the 1992 lease to the 2017 lease were that the rate increase per year would be a flat three-percent rather than based on the consumer price index, and the renewal of the lease would have to be mutually agreed upon rather than allowing the lessees to unilaterally renew.
According to Smigelski, plaintiff and all of his co-lessees were offered the 2017 lease in October 2017. All of plaintiff's co-lessees signed the 2017 lease except plaintiff because plaintiff believed that he had renewed the 1992 lease with his February 2016 letter. Smigelski testified that defendant did not consider plaintiff's unilateral request to renew the 1992 lease valid because it believed that the 1992 lease's renewal provision required all of the lessees to request renewal. In Smigelski's words, the 1992 lease was "one lease but it has four parties to it, so all four parties have to agree to everything or they have to renew on time. So the four people are dependent upon each other to get their responses in in a timely manner." Smigelski added, "So one person can say, yes, I would like to renew but he's basically got to get the other troops inline and say hey, remember get your letters in on time or we want to talk about this."
Apparently pursuant to the 2017 lease (which plaintiff had not yet signed), defendant sent plaintiff an invoice dated October 1, 2017 for "PREMISES LEASE." Smigelski testified that defendant sent this invoice to plaintiff by mistake because plaintiff did not have a lease with defendant at that time.
Believing that he had timely renewed the 1992 lease, plaintiff sent an email to defendant on November 3, 2017, asserting that he was "not aware of agreeing to or negotiating a new lease," and that he had renewed the 1992 lease with his February 2016 letter. That same day, Smigelski responded, stating that plaintiff was at the meeting where the 2017 lease was adopted, and that he had "29 days to sign [the 2017] lease or you may begin your preparations for vacating your hangar space."
Plaintiff testified that he understood the November 3, 2017 email from defendant to mean "that [he] was being threatened that if [he] didn't sign something that [he] did not agree to, that [he] was to vacate [his] hangar space." He said that he took "that as a threat." He reiterated that he "did not believe that [he] was being asked to sign" the 2017 lease, but rather he "was being threatened that if [he] did not sign it, certain repercussions would occur. [He] did not take that as a request, [he] took it as a threat."
On November 15, 2017, defendant sent a letter to plaintiff notifying him that his 1992 lease was expired and that he had not signed a new lease. The letter gave him 15 days (until November 30, 2017) to decide whether he wanted to sign the 2017 lease. The letter stated that plaintiff could not "remain on Airport property without a valid lease agreement," so he either had to "sign the new lease agreement . . . or make preparations to vacate the hangar space" he currently occupied.
The day after plaintiff received this email, he paid the October invoice. Four days later, plaintiff responded to defendant's November 15, 2017 email. Attached to the email was a copy of the 2017 lease signed by plaintiff. In the email, plaintiff stated that he signed the 2017 lease "under protest." He further stated that he found defendant's "threats very distressing," and he was "disturbed by the . . . complete disregard for the existing contract." Plaintiff concluded the email by stating, "I did not start this dispute and am at a loss to understand the unethical behavior, the unsavory tactics, the bulling [sic] and the downright illegal actions. You can proceed as you wish and at your own peril. No good can come from the path you have chosen." Above plaintiff's signature on the attached lease, plaintiff inserted the following text: " Signed under protest and under duress due to "bulling ," [sic] threat of "self help" eviction and threat of great bodily harm per attached ."
Defendant thereafter sent a letter to plaintiff informing him that it "decline[d] to enter into a land lease contract with" plaintiff. It explained that plaintiff's "commentary" that he "added to the lease documentation . . . has caused a reconsideration of this business relation" because defendant "has no desire to cause any person to enter into a contract unwillingly, much less under duress." Defendant added that plaintiff's threat of a lawsuit "remove[d] the possibility of an amicable accord." The letter gave plaintiff 30 days (until January 19, 2018) to vacate the hangar space. Giving context to this letter, Smigelski testified that the board of commissioners met after receiving plaintiff's signature on the 2017 lease and decided not to enter into the lease given plaintiff's assertion that he was being coerced.
Plaintiff filed his complaint on January 16, 2018. In the complaint, plaintiff alleged that "[o]n or about September 29, 1992, the plaintiff executed the agreement" at issue, and that "the lease unambiguously contains the following language: 1. Term. This Agreement will commence on the 1st day of October, 1992 and will continue for twenty-five (25) years thereafter . . . ." The complaint had only one count: breach of contract. Without specifying which contract he was referring to, plaintiff stated that "[a]ny purported action to terminate the contract of the plaintiff is unlawful," asked the trial court for a "declaratory ruling that the purported actions of defendant . . . violated Michigan law," and alleged that defendant's "actions of unilaterally attempting to terminate the contract . . . [was] in violation of the terms of the contract[.]" In his request for relief, plaintiff asked the trial court to issue an order "declaring that [the] contract described herein to be in full force and effect." Attached to the complaint is the 1992 lease. No other lease or contract is attached.
On January 3, 2019, defendant moved for summary disposition under MCR 2.116(C)(7) and (10). Defendant first argued that, by its plain language, the 1992 lease required all of the lessees to give notice of their intent to renew the lease in order to exercise the renewal option in the contract. Thus, according to defendant, plaintiff's attempt to unilaterally renew the 1992 lease was not sufficient to renew the lease as a matter of law. Next, defendant argued that because the 2017 lease was never signed by defendant, its enforcement was barred by the statute of frauds. Alternatively, defendant argued that the 2017 lease was void, and therefore unenforceable, because plaintiff admitted to signing the lease under coercion or duress.
On February 12, 2019, plaintiff filed his response, and for the first time insisted that the parties never agreed to a "commencement date" of the 1992 lease, and that the commencement date in the contract was unilaterally inserted by defendant without the agreement of the other parties. Plaintiff contended that defendant's unilateral insertion of the commencement date was not binding on plaintiff, so "defendant cannot be permitted to successfully argue that the renewal deadline [which was based on the commencement date] was violated." Plaintiff then argued that his written notice, combined with the fact that "all other lessees have signed written agreements to extend the lease for 25 years" (presumably referring to the 2017 lease that the other lessees signed), satisfied the 1992 lease's requirement for renewing the lease. Next, plaintiff argued that the statute of frauds did not apply to the 2017 lease because defendant accepted plaintiff's payment under the contract, so there was no question that the parties had an agreement. Alternatively, plaintiff argued that "the estoppel exception to the statute of frauds" applied.
The trial court granted defendant's motion for summary disposition in a written opinion and order issued on May 30, 2019. First addressing the 1992 lease, the trial court reasoned that it unambiguously required that all the lessees request to renew, and that there was no genuine question of material fact that not all of the lessees had made such a request. The court concluded that the 1992 lease was not renewed as a matter of law, so defendant was entitled to summary disposition on that claim. In a footnote, the trial court stated that "[n]o further discussion on this issue is warranted," thereby implicitly declining to address plaintiff's "commencement date" argument. As for the 2017 lease, the trial court reasoned that plaintiff did not sufficiently raise the issue in his complaint, so the court did not need to address it.
Plaintiff now appeals.
II. STANDARD OF REVIEW
Appellate courts review de novo a trial court's grant of summary disposition. Innovation Ventures v Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016). Defendant moved for summary disposition under MCR 2.116(C)(7) and (10).
Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred by the statute of frauds. "When reviewing a motion under MCR 2.116(C)(7), a reviewing court must consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings and evidence in favor of the nonmoving party." Anzaldua v Neogen Corp, 292 Mich App 626, 629-630; 808 NW2d 804 (2011). When there are no genuine questions of material facts, the determination whether a cause of action is barred by the statute of frauds is a question of law reviewed de novo. See id.
In Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999), our Supreme Court explained the process for reviewing a motion filed under MCR 2.116(C)(10):
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.A genuine issue of material fact exists when, after viewing the evidence in a light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
III. ANALYSIS
The parties first dispute whether the 1992 lease is still in effect. After reviewing the parties' arguments, we conclude that it is not.
We begin by deciding whether the 1992 lease allowed plaintiff to unilaterally renew the lease, which requires us to interpret the lease. The primary goal of contract interpretation is to honor the parties' intent. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 473; 663 NW2d 447 (2003). "When the contract is unambiguous, the parties; intent is gleaned from the actual language used." Prentis Family Foundation v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 57; 698 NW2d 900 (2005).
The following provision in the 1992 lease is at issue:
This Agreement will commence on the 1st day of October, 1992, and continue for twenty-five (25) years thereafter unless terminated earlier in accordance with the provisions herein contained. Further, LESSEES will have an option to renew this Lease for an additional twenty-five (25) years by giving LESSOR written notice of their intention to do so not later than one (1) year prior to the expiration of the initial term.The trial court ruled that based on the contract's use of "lessees" (plural) and its requirement that they give written notice of "their intention" (again, plural) to renew the lease, plaintiff could not renew the lease unilaterally. This conclusion is plainly correct; the 1992 lease requires all of the lessees to give written notice to defendant in order to renew the lease. Thus, plaintiff could not renew the lease unilaterally. See Gurunian v Grossman, 331 Mich 412, 417; 49 NW2d 354 (1951) ("A covenant to renew a lease made to more than one lessee may not be enforced by one of them for himself, nor can he bind his colessee by his election to renew, unless authority had been vested in him to do so.") (Quotation marks and citation omitted.)
It is undisputed that no lessee, besides plaintiff, gave written notice to defendant of their intent to renew the lease. Likewise, it is undisputed that no lessee gave plaintiff permission to request to renew the lease on their behalf. Therefore, it is undisputed that the option for the lessees to renew the 1992 lease was not satisfied, and the trial court properly granted summary disposition to defendant on plaintiff's breach of contract claim related to the 1992 lease.
Plaintiff does not appear to contest the trial court's reading of the 1992 lease, but instead argues that defendant unilaterally added the October 1, 1992 "commencement date" to the contract. Plaintiff argues that this unilateral modification is not part of the parties' agreement, and without a commencement date, the 1992 lease has not expired nor does it have an expiration date, so plaintiff and the other lessees can still give written notice of their intent to renew the 1992 lease (assuming this Court finds that they have not already done so).
In this respect, plaintiff asserts that all of the lessees provided written notice of their intent to renew the 1992 lease because plaintiff provided the February 2016 written notice of his intent to renew the 1992 lease, and the other lessees provided written notice of their intent to renew the 1992 lease by signing the 2017 lease. This argument fails for the obvious reason that the other lessees' signing of a new contract (the 2017 lease) is not evidence of their intent to renew a different contract (the 1992 lease). If anything, it is evidence that the other lessees did not intend to renew their old lease.
Plaintiff's claim does not entitle him to relief because he cannot establish a question of fact whether defendant unilaterally inserted the October 1, 1992 commencement date. In support of his argument, plaintiff points to a copy of the 1992 lease that has the lessees' signatures with no commencement date that is not signed by defendant, and then a second copy that has defendant's representative's signature and the commencement date written in. Based on these differing copies of the lease, plaintiff asserts that defendant's representative unilaterally inserted the commencement date without the lessees' permission. Yet the different copies of the lease, standing alone, in no way suggest that defendant added the date, let alone that it did so unilaterally. Besides these copies of the lease, plaintiff points to no evidence to support his claim that defendant inserted the commencement date unilaterally. Without any evidence that defendant unilaterally added the commencement date, plaintiff's assertions that defendant added the commencement date unilaterally when its representative signed the 1992 lease is mere speculation, which cannot create a question of fact. See Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275, 289; 933 NW2d 732 (2019). Because plaintiff failed to establish a question of fact whether defendant unilaterally modified the parties' contract, defendant was entitled to summary disposition on plaintiff's claim related to the 1992 lease for the reasons already explained.
We also note that in his complaint, plaintiff asserted that "the lease unambiguously contains the following language: 1. Term. This Agreement will commence on the 1st day of October, 1992 . . . ." When ruling on a (C)(10) motion, courts are to consider a parties' pleadings. MCR 2.116(G)(5). Despite the clear statement in his complaint, plaintiff now contends that there is actually no commencement date in the 1992 lease. Plaintiff should not be permitted to create a factual issue by arguing that a provision is not part of the parties' agreement after he expressly alleged that it was in his complaint. Accord Dykes v William Beaumont Hosp, 246 Mich App 471, 481; 633 NW2d 440 (2001) (explaining that a party may not create a question of fact by using an affidavit to contradict his prior testimony).
Further, we recognize that in Dodge v Detroit Tr Co, 300 Mich 575, 596; 2 NW2d 509 (1942), our Supreme Court explained that where allegations contradict records, "the records and not the allegations are to be taken as true, and such allegations of fact in a bill of complaint, contradicting the records which are attached to such a bill, are not well pleaded and are inadmissible." This rule from Dodge is not applicable here because the lease that was not signed by defendant does not, itself, contradict plaintiff's pleadings; what contradicts plaintiff's pleadings is his assertion that the commencement date is not part of the 1992 lease.
The next issue is whether the parties entered into the 2017 lease. The trial court declined to address this issue, concluding that it was not properly pleaded in plaintiff's complaint. In so ruling, the trial court relied on this Court's statement in Belobradich v Sarnsethsiri, 131 Mich App 241, 246; 346 NW2d 83 (1983), that the "[p]laintiffs were obviously not entitled to litigate issues or claims not raised in the pleadings." Belobradich, however, dealt with a jury trial, and the reference to "litigate" was in terms of arguing issues at trial. Thus, Belobradich's statement referred to the unremarkable assertion that a party cannot argue a claim at trial that it did not assert in its complaint. In contrast, this case was at the summary disposition stage, so Belobradich was not applicable.
With that said, the trial court was correct that plaintiff's complaint does not adequately set forth his claim with respect to the 2017 lease—plaintiff did not even assert that he signed that lease in his complaint, and his request for relief did not ask for that lease to be enforced. But it is clear that plaintiff is now asking whether the 2017 lease is enforceable, and both parties have briefed the issue. Thus, for the sake of judicial economy, we address the issue.
Defendant argues that the 2017 lease is not enforceable because it does not satisfy the statute of frauds. We agree. For a lease to "to survive a challenge under the statute of frauds, [it must] (1) be in writing and (2) be signed by the [lessor] or someone lawfully authorized by the [lessor] in writing." Zurcher v Herveat, 238 Mich App 267, 277; 605 NW2d 329 (1999). See also MCL 556.106; MCL 555.108. In its motion for summary disposition, defendant attached a copy of the 2017 lease that was signed by all of plaintiff's co-lessees and defendant, but was not signed by plaintiff. Defendant also attached to its dispositive motion a copy of the 2017 lease signed by plaintiff, but not signed by defendant. Smigelski testified that defendant chose not to sign the lease that plaintiff signed because it did not want to enter into a lease with someone who said that they were signing the lease under duress. Plaintiff has not offered any evidence to counter defendant's evidence that it never signed the 2017 lease that plaintiff signed. Indeed, plaintiff does not even appear to argue otherwise. Thus, it is undisputed that defendant did not sign the 2017 lease with plaintiff, so the lease does not satisfy the statute of frauds.
Plaintiff asserts that defendant should be equitably estopped from denying the existence of the 2017 lease, presumably asserting that defendant should be equitably estopped from asserting the statute of frauds. "The doctrine of equitable estoppel has been applied to defeat the defense of the statute of frauds where a party has acted to his detriment in reliance on oral agreements or where application of the doctrine of equitable estoppel is necessitated by the facts." Lakeside Oakland Dev, LC v H & J Beef Co, 249 Mich App 517, 526-527; 644 NW2d 765 (2002). There is no evidence that plaintiff "acted to his detriment in reliance on an oral agreement," so the only question is whether "the doctrine of equitable estoppel is necessitated by the facts." Id. Plaintiff does not explain why it would be inequitable for defendant to assert the statute of frauds. Indeed, the very reason that defendant did not sign the lease is because plaintiff said that he was signing the lease under duress and defendant did not want to sign a lease with someone who agreed to it under duress. In other words, plaintiff's protests to entering into the agreement were the cause of defendant's decision to not sign the lease. In light of this overarching fact, it does not seem inequitable for defendant to now assert the statute of frauds. Thus, defendant was entitled to summary disposition with respect to plaintiff's claims related to the 2017 lease because that lease does not satisfy the statute of frauds. The trial court therefore properly dismissed plaintiff's complaint, even if for the wrong reasons. See Smith v Twp of Forester, 323 Mich App 146, 152; 913 NW2d 662 (2018).
Plaintiff's invocation of equitable estoppel is somewhat confusing. He states that "the defendant-appellee is further equitably estopped from denying the existence of the 2017 lease by reason that by its own statements (1) it was intended to act as a replacement for the 'old style' lease (2) it was signed by all parties (including the other three lessees and Tom VanDuinen) and (3) part performance (as the defendant-appellee has accepted VanDuinen's payment under the lease)." Exactly what plaintiff is asserting by this statement is unclear because he does not cite any caselaw to support it. It appears plaintiff is claiming that defendant is equitably estopped from asserting that a contract does not exist. This does not make sense. This Court is being asked to decide whether an enforceable contract exists, and if it does not, then the doctrine of equitable estoppel does not apply because equitable estoppel cannot "bring into existence a contract not made by the parties[.]" Ruddock v Detroit Life Ins Co, 209 Mich 638, 654; 177 NW 242 (1920).
It seems that plaintiff may have mistakenly invoked equitable estoppel when he was actually arguing that the parties have a contract implied in fact. See Lawrence v Ingham Co Health Dept Family Planning/Pre-Natal Clinic, 160 Mich App 420, 422 n 1; 408 NW2d 461 (1987) ("In determining whether there is a contract implied in fact, the courts look to the acts and conduct of the parties to determine whether the essential elements of an express contract have been established.") However, plaintiff never stated that this was his argument, and he has not cited any caselaw that would make such an argument clear. We therefore consider the argument abandoned. See Kubicki v Mortgage Elec Registration Sys, 292 Mich App 287, 291; 807 NW2d 433, 435 (2011) ("An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.") (Quotation marks and citation omitted.)
Defendant alternatively argues that the parties never formed a contract because of plaintiff's statements that he was signing the form under duress. We need not address that argument because of our conclusion that the 2017 lease does not satisfy the statute of frauds.
Affirmed.
/s/ Patrick M. Meter
/s/ Jane M. Beckering
/s/ Colleen A. O'Brien