Defendant Otis M.
Underwood, Jr., agreed to develop part of a building he owns in Lake Orion so
that plaintiffs Donna and William Walker could use the space for their massage therapy
business. As part of their preliminary agreement, defendant promised to obtain
an occupancy permit. When that did not occur in a timely manner, plaintiffs
withdrew from the agreement and then filed this lawsuit alleging breach of contract.
The trial court granted summary disposition to defendant based on a paragraph
in the parties’ contract expressly permitting plaintiffs, in the event of a
breach, to declare a default and terminate the contract, or receive another agreed-upon
remedy. The Court of Appeals, in a split decision, reversed the grant of
summary disposition. The majority interpreted the at-issue paragraph as
non-exclusive, thereby allowing plaintiffs to pursue all other potential
remedies, including their breach of contract claim. The dissent opined that, by
listing two available remedies, it was evident that the parties intended those
to be the exclusive remedies available for a breach, and that defendant was
entitled to summary disposition. The Supreme Court has ordered oral argument on
defendant’s application for leave to appeal to address the meaning of paragraph
10 of the parties’ agreement that is in dispute and the applicability of the
legal canon expressio unius est exclusio
alterius (the expression of one thing is the exclusion of another) in the
interpretation of that paragraph.