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156651 - Donna Walker v Otis M. Underwood, Jr.

Donna Walker, William Walker, and Head to Toes Massage Therapy of Oxford, Inc.,


Kelly Kruse





(Appeal from Ct of Appeals)



(Oakland – McMillen, P.)


Otis M. Underwood, Jr.,


Phillip Maxwell





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.​