Mrg Lake Villa LLC v. Arrowood Home Rentals LLC ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
MRG LAKE VILLA, LLC, UNPUBLISHED
January 24, 2017
Plaintiff/Counter-
Defendant/Appellee,
v No. 329053
Oakland Circuit Court
ARROWOOD HOME RENTALS, LLC, also LC No. 2014-142084-CK
known as ARROWOOD MOBILE HOMES, LLC,
and also known as ARROWOOD MOBILE
HOMES SALES,
Defendant,
and
KENNETH C. BURNHAM,
Defendant/Counter-
Plaintiff/Appellant.
MRG LAKE VILLA, LLC,
Plaintiff/Counter-
Defendant/Appellee,
v No. 329180
Oakland Circuit Court
ARROWOOD HOME RENTALS, LLC, also LC No. 2014-142084-CK
known as ARROWOOD MOBILE HOMES, LLC,
and also known as ARROWOOD MOBILE
HOMES SALES,
Defendant-Appellant,
and
KENNETH C. BURNHAM,
Defendant/Counter-Plaintiff.
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Before: RIORDAN, P.J., and FORT HOOD and SERVITTO, JJ.
PER CURIAM.
In these consolidated appeals, defendants appeal as of right from an order of the trial
court denying their separate motions for summary disposition and granting summary disposition
to plaintiff. We uphold the trial court’s factual findings underlying that motion, but otherwise
conclude that summary disposition was premature and remand to the trial court for further
proceedings.
This case called upon the trial court to determine the ownership of four mobile homes
located at a mobile home park comprised of more than 700 lots. This park was owned by Lake
Villa Oxford Associates, LLC, with a mortgage on the property held by Equity First Michigan II,
LLC. The record indicates that Lake Villa Oxford Associates defaulted on its obligations under
the mortgage, that Equity First instituted foreclosure proceedings, and that the property was
placed in receivership. While the property was in receivership, plaintiff contracted with Equity
First to purchase Equity First’s rights under that foreclosure action.
Subsequently, with plaintiff’s assistance, Equity First entered into a “Mobile Home
Purchase and Settlement Agreement” with Lake Villa Oxford Associates, defendant Burnham,
and seven entities labeled as “Borrower Affiliate Parties.” The settlement agreement identified
Burnham as the “Guarantor,” Equity First as the “Lender,” and Lake Villa Oxford Associates as
the “Borrower,” and referred to Burnham and Villa Oxford Associates collectively as the
“Borrower Parties.” Schedule 1 of this agreement explicitly transferred ownership of the mobile
home park’s real property and 115 mobile homes on that property from the Borrower and
Borrower Affiliate Parties to the Lender and, therefore, through the Lender to plaintiff. After
listing the homes involved (identified by license number, serial number, age, and manufacturer),
Schedule 1 provides a catchall provision that reads as follows:
Together with all other mobile or manufactured homes owned by Borrower or any
Borrower Affiliate Party (or Any Affiliate of Borrower or any Borrower Affiliate
Party) located on the Property as of the date of this Agreement. [Emphasis
added.]
The instant dispute arose when defendant Arrowood attempted to remove four mobile
homes from the park after the settlement agreement went into effect and plaintiff refused to
allow the removal. The parties do not dispute that the four mobile homes are not listed on
Schedule 1 and that Arrowood is not listed as a Borrower Affiliate Party under the settlement
agreement. Additionally, the parties do not dispute that Arrowood owned the mobile homes
before the settlement agreement became effective.
Nonetheless, plaintiff filed a complaint with the trial court seeking to prove that it was the
owner of the four homes pursuant to Schedule 1’s “catchall provision” because Arrowood was an
affiliate party of Burnham, the Borrower, and the Borrower Affiliate Parties under the settlement
agreement. Plaintiff further alleged that defendants breached the agreement by asserting
ownership of the homes, and that Burnham breached the warranty he made that no affiliate of the
Borrower or a Borrower Affiliate Party owned any mobile home on the property. Burnham filed
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a counterclaim, alleging that plaintiff negligently failed to perform its due diligence under the
agreement to ensure that the four mobile homes were included therein, causing him damages by
forcing him to defend the instant case. Arrowood also pleaded counterclaims, alleging that
plaintiff converted the four mobile homes, that plaintiff intentionally interfered with Arrowood’s
“ongoing contractual relationship with Lake Villa and Key Bank and US Bank,” and that
plaintiff was guilty of common law theft.
Eventually, all parties filed summary disposition motions, arguing that the settlement
agreement unambiguously established ownership in their favor, thereby precluding other relief.
The trial court ruled that the agreement unambiguously established that Arrowood was an
affiliate of the Borrower and the Borrower Affiliate Parties, and therefore ownership of the four
mobile homes at issue transferred to plaintiff under the agreement. Accordingly, the trial court
entered summary disposition in plaintiff’s favor and dismissed defendants’ counterclaims.
Defendants’ arguments on appeal may be summarized as contending that the trial court
erred by determining that Arrowood was an affiliate of the Borrower and the Borrower Parties
under the settlement agreement and by granting plaintiff’s motion for summary disposition,
instead of their own.
This Court reviews de novo the grant of summary disposition, Peters v Dep’t of
Corrections, 215 Mich. App. 485, 486; 546 NW2d 668 (1996), and issues involving contract
interpretation, Ajax Paving Indus, Inc v Vanopdenbosch Constr Co, 289 Mich. App. 639, 643; 797
NW2d 704 (2010). Summary disposition is appropriate under MCR 2.116(C)(10) if there is no
genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law. Latham v Barton Malow Co, 480 Mich. 105, 111; 746 NW2d 868 (2008).
“A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.”
Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). Under this court rule, a party
“may move for dismissal of or judgment on all or part of a claim,” MCR 2.116(B)(1), where
“[e]xcept concerning the amount of damages, there is no genuine issue concerning any material
fact, and the moving party is entitled to judgment or partial judgment as a matter of law, MCR
2.116(C)(10). “If the proffered evidence fails to establish a genuine issue of material fact, the
moving party is entitled to judgment as a matter of law.” Franchino v Franchino, 263 Mich. App.
172, 181; 687 NW2d 620 (2004). “A genuine issue of material fact exists when the record,
drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue on
which reasonable minds could differ.” Campbell v Kovich, 273 Mich. App. 227, 230; 731 NW2d
112 (2006).
MCR 2.116(G)(4) speaks to how the movant is to argue a (C)(10) motion, and how the
nonmoving party must respond:
A motion under subrule (C)(10) must specifically identify the issues as to
which the moving party believes there is no genuine issue as to any material fact.
When a motion under subrule (C)(10) is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his or
her pleading, but must, by affidavits or as otherwise provided in this rule, set forth
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specific facts showing that there is a genuine issue for trial. If the adverse party
does not so respond, judgment, if appropriate, shall be entered against him or her.
“A litigant’s mere pledge to establish an issue of fact at trial cannot survive summary disposition
under MCR 2.116(C)(10). The court rule plainly requires the adverse party to set forth specific
facts at the time of the motion showing a genuine issue for trial.” Maiden, 461 Mich. at 121.
Further, in addition to the identified affidavits, a non-moving party may also respond to a (C)(10)
motion by providing “depositions, admissions, or other documentary evidence” that show that
there is a genuine factual issue for the trier of fact. MCR 2.116(G)(3)(2).
“A contract must be interpreted according to its plain and ordinary meaning. When the
language of the contract is clear and unambiguous, interpretation is limited to the actual words
used, and an unambiguous contract must be enforced according to its terms.” Ajax Paving Indus,
289 Mich. App. at 644 (internal citations omitted). Therefore, “[w]here a contract is to be
construed by its terms alone, it is the duty of the court to interpret it . . . .” Klapp v United Ins
Group Agency, Inc, 468 Mich. 459, 469; 663 NW2d 447 (2003) (internal quotation marks and
citation omitted).
Nonetheless, “[i]t is well settled that the meaning of an ambiguous contract is a question
of fact that must be decided by the jury.” Id. A contract is ambiguous “if there is more than one
way to reasonably interpret” it. Wilkie v Auto-Owners Ins Co, 469 Mich. 41, 60; 664 NW2d 776
(2003). However, “[i]f a contract, even though inartfully worded or clumsily arranged, fairly
admits of but one interpretation, it may not be said to be ambiguous.” South Macomb Disposal
Auth v Mun Risk Mgt Auth, 207 Mich. App. 475, 478; 526 NW2d 3 (1994). “[C]ourts cannot
simply ignore portions of a contract in order to avoid a finding of ambiguity or in order to
declare an ambiguity. Instead, contracts must be construed so as to give effect to every word or
phrase as far as practicable.” Klapp, 468 Mich. at 467 (internal quotation marks and citations
omitted).
Burnham claims that because Arrowood never transferred title to the mobile homes to
plaintiff, Section 4.9 of the settlement agreement precludes plaintiff from owning the mobile
homes. Section 4.9 is entitled “Title and Possession of Mobile Homes” and states as follows:
Title to the Mobile Homes shall not pass to Lender until the Certificates of
Title or Certificates of Mobile Home Ownership are properly executed and
delivered by Borrower Affiliate Parties to Lender, or Lender’s designee. Upon
execution and delivery of the Mobile Home Certificates of Title or Certificates of
Mobile Home Ownership, Lender shall have immediate possession of the Mobile
Homes . . . .
In this state, mobile homes are not treated as real property, but rather are generally treated
as vehicles unless “affixed to real property in which the owner of the mobile home has the
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ownership interest.”1 MCL 125.2330i(1). In this case, the parties do not dispute that Arrowood
did not own the real property upon which the homes rested. Accordingly, the homes at issue are
treated as vehicles and not as real property. Although a transfer of title to a vehicle generally
indicates a transfer of ownership, under the motor vehicle code, MCL 257.1 et seq., one need not
transfer title to transfer ownership. See Botsford General Hosp v Citizens Ins Co, 195 Mich. App.
127, 133-134; 489 NW2d 137 (1992). Therefore, that title to the homes did not pass under
Section 4.9 of the settlement agreement until the certificates were tendered does not preclude
plaintiff from owning the mobile homes.
Similarly, that possession does not pass under Section 4.9 until tender of title does not
preclude plaintiff from owning the homes. Possession of personal property is just but one of the
incidents of ownership, and a person may own property without possessing it. Accordingly,
defendants’ failure to transfer the titles to these homes does not mandate the conclusion that
Arrowood is the rightful owner.
Next, we conclude that, contrary to defendants’ argument otherwise, the settlement
agreement unambiguously includes Arrowood as an affiliate of the Borrower and at least three
Borrower Affiliate Parties. The settlement agreement defines “Affiliate” broadly:
“Affiliate” means, as to any specified Person, (a) any Person that directly
or indirectly through one or more intermediaries controls or is controlled by or is
under common control with that Person, (b) any Person owning or controlling
outstanding voting securities of or other ownership interests in that Person, (c)
any officer, director, partner, employee or member (direct or indirect and no
matter how remote) of that Person, (d) if that Person is an individual, any entity
for which that Person directly or indirectly acts as an officer, director, partner,
owner, employee or member, (e) any entity in which that Person (together with
the members of his or her family if the Person in question is an individual) owns,
directly or indirectly through one or more intermediaries an interest in any class
of stock (or otherwise beneficial interest in that entity), or (f) any family member
(by blood, marriage, adoption or otherwise) of that Person . . . .
The settlement agreement defines “Person” to mean “any individual, sole proprietorship,
corporation, general partnership, limited partnership, limited liability company or partnership,
joint venture, association, jointstock company, bank, trust, land trust, estate, associate,
unincorporated organization, any federal, state, county or municipal government (or any agency
or political subdivision thereof), endowment fund or any other form of entity.” Accordingly, the
term “specified person” (not defined in the agreement) refers to those entities listed in the
settlement agreement, namely, the Borrower and the Borrower Affiliate Parties.
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The owner of the mobile home and real property to which it is affixed must also provide an
affidavit to the Department of State describing the mobile home and real property. MCL
125.2330i(1)(a).
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Under definition (a) of “affiliate,” Arrowood is an affiliate of the Borrower or a Borrower
Affiliate Party if a common entity controls both Arrowood and either the Borrower or a
Borrower Affiliate Party. The settlement agreement defines “control” to mean “the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities or other ownership interests,
by contract or otherwise.”
Burnham averred that he was Arrowood’s president. Additionally, he signed the
settlement agreement on behalf of himself as Guarantor, the Borrower, and all seven Borrower
Affiliate Parties. Thus, Burnham has indicated he was the manager of the Borrower and the
president of three of the seven Borrower Affiliates. Burnham’s positions as manager or
president give him the power to “direct or cause the direction of the management and policies” of
those entities, meaning that Burnham controlled the Borrower, three Borrower Affiliate Parties,
and Arrowood. Therefore, because Arrowood, the Borrower, and three Borrower Affiliate
Parties were controlled by a common entity, Arrowood is an affiliate of the Borrower and three
Borrower Affiliate Parties. And, because Arrowood is an affiliate of the Borrower and Borrower
Affiliate Parties, the catchall provision in issue unambiguously purports to transfer the four
homes owned by Arrowood to the Lender and, therefore, through the Lender to plaintiff.
The parties and the trial court appear to have assumed that if Arrowood was an affiliate
under the settlement agreement, the agreement would effectively transfer ownership of
Arrowood’s four homes to plaintiff. However, Arrowood did not sign the settlement agreement
and is not otherwise specifically mentioned in the agreement. “ ‘It goes without saying that a
contract cannot bind a nonparty.’ ” AFSCME Council 25 v Wayne Co, 292 Mich. App. 68, 80;
811 NW2d 4 (2011), quoting Equal Employment Opportunity Comm v Waffle House, Inc, 534
U.S. 279, 294; 122 S. Ct. 754; 151 L. Ed. 2d 755 (2002).
Nonetheless, a non-signatory of a contract “can still be bound by an agreement pursuant
to ordinary contract-related legal principles, including incorporation by reference, assumption,
agency, veil-piercing/alter ego, and estoppel.” Id. at 81. The parties did not address and did not
provide any evidence pertaining to any of these theories before the trial court. Accordingly, the
trial court’s conclusion that the settlement agreement transferred ownership of the four mobile
homes to Arrowood, and its summary disposition rulings premised upon that conclusion, were
premature.
Therefore, we remand this case to the trial court for a determination of whether
Arrowood, as a non-signatory affiliate of the Borrower and three Borrower Affiliate Parties
under the settlement agreement, was bound to transfer ownership of the four mobile homes to
plaintiff under that agreement. We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto
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