Carrie Tiller v. Versacut Industries Inc ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CARRIE TILLER and MICHAEL TILLER, UNPUBLISHED
July 20, 2023
Plaintiffs-Appellants,
v No. 360703
Lenawee Circuit Court
VERSACUT INDUSTRIES, INC., GERALD LC No. 2002-002882-CK
TILLER, and CINDY TILLER,
Defendants-Appellees.
Before: GLEICHER, C.J., and JANSEN and HOOD, JJ.
PER CURIAM.
Plaintiffs, Michael Tiller (“Michael”) and Carrie Tiller (“Carrie”), appeal by delayed leave
granted1 the trial court’s opinion and order granting, on reconsideration, defendants’ motion to
enforce a 2003 consent judgment and ordering plaintiffs to convey disputed property, 50% to
plaintiffs and 50% to the Estate of Gerald Tiller, as tenants in common. We reverse the trial court
order, and remand for entry of an order denying defendants’ motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1983, Michael and Gerald Tiller, twin brothers, started a business called Tiller Tool and
Die. They expanded their partnership and jointly owned several other properties and businesses,
including defendant Versacut Industries, Inc. (“Versacut”). On May 1, 1995, Gerald and Michael
took ownership of property in Morenci, Michigan (the “Morenci property”), as joint tenants with
full rights of survivorship. The relationship between Gerald and Michael broke down in 1998,
which led Michael and Carrie to file an action in the Monroe Circuit Court to dissolve the
partnership and distribute the real property owned with Gerald. Those parties resolved their
dispute in a settlement agreement that was filed in the Monroe Circuit Court in October 2001.
1
Tiller v Versacut Indus, Inc, unpublished order of the Court of Appeals, entered July 21, 2022
(Docket No. 360703).
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In the settlement agreement, Michael agreed to convey his 50% interest in Versacut to
Gerald. The parties agreed to hold onto the Morenci property and split the rents and expenses.
Gerald agreed to lease the 18,000-square-foot building at the Morenci property and pay half the
rent to Carrie, to whom Michael had conveyed his interest, and Gerald would receive the other
half. The parties also agreed to hold onto property located on Woodville Road in Oregon, Ohio
(the “Woodville property”) and split the rents. The parties further agreed to sell property they
owned on Telegraph Road in Michigan and in Perrysburg, Ohio. Gerald’s wife, Cindy, agreed to
release any claims to the real and personal properties subject to the agreement and released her
dower rights.
In July 2002, Carrie filed this action against defendants for breach of a lease agreement.2
The parties eventually agreed to a consent judgment that was entered on May 9, 2003. The consent
judgment provided that Gerald and Cindy could buy the Woodville property for $116,000, and
relinquish any claims they had for fees for heating and air conditioning at the Versacut building at
the Morenci property. If Gerald and Cindy did not purchase the Woodville property, Michael and
Carrie could purchase the property for $124,000. If neither party purchased the Woodville
property, it would be listed for sale for $124,000 and the parties would split the proceeds, with
Gerald and Cindy receiving $8,000 more. The consent judgment also contained housekeeping
details related to the Morenci property. Paragraph 11 of the consent judgment provided that
“[t]ransfer documents will be executed by the parties to properly convey ownership and dower
interests as tenants in common,” which ultimately led to the instant dispute.
Gerald died on December 21, 2018. On May 2, 2019, plaintiffs sent a letter to Versacut
informing it that, upon Gerald’s death, ownership of the Morenci property vested exclusively in
Michael because he had full rights of survivorship. Plaintiffs informed Versacut that all rent should
be paid to Michael and Carrie Tiller.
On January 2, 2020, defendants Cindy and Versacut moved to enforce the 2003 consent
judgment. Defendants argued that plaintiffs were obligated to execute a deed whereby the Morenci
property was owned by the parties as tenants in common in accordance with the unambiguous
terms of the consent judgment. Defendants argued that plaintiffs failed to execute documents that
would have reflected that the Morenci property was owned by Carrie and/or Michael and by Gerald
and/or Cindy as tenants in common. Defendants asserted that plaintiffs’ claim that ownership of
the Morenci property vested solely in Michael was inconsistent with the 2003 consent judgment.
In response, plaintiffs argued that the consent judgment did not unambiguously require
transfer of the Morenci property. Plaintiffs agreed that the consent judgment required transfer of
the Woodville property. But they argued that Paragraph 11, which provided that “transfer
documents will be executed by the parties to the property conveying ownership and dower interests
as tenants in common,” stood alone and did not specify which property transfer documents were
to be executed. Plaintiffs argued that this provision was ambiguous and that the court should apply
2
Michael had transferred his interests in the properties to Carrie.
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the doctrine of laches to prevent an unfair and unreasonable enforcement of the judgment 20 years
later.
The trial court initially ruled that the 10-year limitations period in MCL 600.5809(3) barred
defendants from enforcing the consent judgment and dismissed defendants’ motion. After
defendants moved for reconsideration, however, the trial court agreed that its reliance on that
statute was palpable error because the plain language of the statute indicated that it only applied
to noncontractual monetary obligations, which defendants were not seeking. Accordingly, the
court ordered rehearing on defendants’ motion.
Plaintiffs filed a supplemental brief in opposition to defendants’ motion to enforce the
consent judgment, arguing that the joint tenancy with full rights of survivorship set forth in the
Morenci property deed became final and irrevocable when Gerald died. Plaintiffs asserted that the
underlying action that brought about the 2003 consent judgment never resulted in an actual
partition of property or reformation of the original deed. Therefore, at Gerald’s death, ownership
of the property vested exclusively in Michael, as the surviving owner, leaving nothing for the trial
court to enforce. Plaintiffs argued that defendants’ reliance on Paragraph 11 of the consent
judgment was misplaced because that provision did not specify what transfer documents needed
to be executed, and therefore, it was ambiguous. Plaintiffs further asserted that introduction of
extrinsic evidence to determine the parties’ intent would prejudice plaintiffs after so much time
had passed because key witnesses, such as Gerald and one of the attorneys who help negotiate the
consent judgment, had died.
The trial court granted defendants’ motion to enforce the consent judgment. The court
found that Paragraph 11 of the 2003 consent judgment clearly expressed the parties’ intent to
transfer the Morenci property so that it would be held as tenants in common. Reading the
document as whole, the trial court found that any argument that Paragraph 11 referred only to the
Woodville property was untenable. The court also ruled that because the consent judgment was
unambiguous, no witnesses were needed to testify regarding the parties’ intent. Therefore, the trial
court rejected plaintiffs’ argument that defendants’ motion was barred by the doctrine of laches.
The trial court also rejected plaintiffs’ argument that the indestructible nature of a joint tenancy
with full rights of survivorship prevented enforcement of the consent judgment or specific
performance. Plaintiffs now appeal.
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision to enforce a consent judgment for an abuse of
discretion. Clohset v No Name Corp, 302 Mich App 550, 558; 840 NW2d 375 (2013). “An abuse
of discretion occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” Id. (quotation marks and citation omitted).
“A consent judgment is in the nature of a contract, and is to be construed and applied as
such.” Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008). This Court reviews de
novo as a question of law the proper interpretation of a contract, including the trial court’s
determination whether contract language is ambiguous. Klapp v United Ins Group Agency, Inc,
468 Mich 459, 463; 663 NW2d 447 (2003). In ascertaining the meaning of a contract, this Court
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gives the words used in the contract their plain and ordinary meaning that would be apparent to a
reader of the instrument. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).
III. ANALYSIS
The trial court erred by concluding that the consent judgment unambiguously required the
parties to execute transfer documents to convey ownership rights in the Morenci property to the
parties as tenants in common. Further, the consent judgment failed to unambiguously destroy
Gerald’s and Michael’s contingent remainders.
It is undisputed that the Morenci property was conveyed to Gerald and Michael in 1995,
as joint tenants with full rights of survivorship. A joint tenancy with full rights of survivorship “is
comprised of a joint life estate with dual contingent remainders.” Albro v Allen, 434 Mich 271,
275; 454 NW2d 85 (1990). The dual contingent remainders of the joint tenancy with full rights of
survivorship are indestructible. Id. at 276. “A cotenant’s contingent remainder cannot be
destroyed by an act of the other cotenant.” Id. “Property held as joint tenants with full rights of
survivorship automatically passes to the surviving tenant(s) at a tenant’s death.” In re VanConett
Estate, 262 Mich App 660, 667-668; 687 NW2d 167 (2004), citing 1 Cameron, Michigan Real
Property Law (2d ed), § 9.11, pp 306-307. The theory of survivorship is “that at the moment of
death, ownership vests exclusively in the surviving joint tenant or tenants.” Jackson v Estate of
Green, 484 Mich 209, 214; 771 NW2d 675 (2009).
After Carrie filed a complaint for breach of the lease agreement in the current action, she
and Michael moved to enforce the settlement agreement in the Monroe County case. The parties
resolved both the Monroe County case and the instant case in Lenawee County in a consent
judgment entered in this action. The consent judgment provided:
1. Gerald Tiller and Cindy Tiller are hereby added to the case herein
as party defendants along with Versacut Industries, Inc.
2. Michael Tiller is hereby added to the case herein as a party plaintiff.
3. Gerald and Cindy Tiller, defendants, shall buy the property located
at 2323 Woodville Road, Oregon, Ohio at the price of $116,000.00 and all claims
shall be relinquished in regard to the $8,000.00 for the fees for the heating and air
conditioning at the Morenci [Versacut] property. They shall have thirty (30) days
in which to do a written offer and thirty (30) days in which to close.
4. In the event that Gerald and Cindy Tiller, defendants, do not
purchase the property at 2323 Woodville Road, Oregon, Ohio, then in that event,
Michael and Carrie Tiller may purchase for the price of $124,000.00. They shall
have thirty (30) days after expiration of defendant’s thirty (30) day period in which
to do a written offer and thirty (30) days in which to close.
5. In the event that neither party purchases the property at 2323
Woodville Road, Oregon, Ohio, the property shall be listed for sale and the net
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proceeds divided between the parties with Gerald and Cindy Tiller receiving
$8,000.00 more.
6. The furnace and air conditioning at the Morenci property, if hooked
up, will be paid by lessee [Versacut] Industries, Inc.[]
7. Unless modified, replaced or satisfied, the provisions of the
Settlement Agreement of October 10, 2001, shall remain in full force and effect,
and be enforced under this Consent Judgment.
8. Repairs of waterline leakage are approved by the partnership for
General Broach.
9. Grass cutting is approved by partnership.
10. The parties shall continue the current rents and receipts as they are
presently doing. In the event additional tenants are secured or additional expenses
are incurred, the system shall change accordingly.
11. Transfer documents will be executed by the parties to properly
convey ownership and dower interests as tenants in common.
Generally, consent judgments are final and binding upon the court and the parties, and
cannot be modified absent fraud, mistake, or unconscionable advantage. Laffin, 280 Mich at 517.
A consent judgment is treated as a contract and is interpreted as such. Id. This Court interprets
contracts according to their plain language and enforces them as written. Id. “When contractual
language is unambiguous, courts must interpret and enforce the language as written because an
unambiguous contract reflects, as a matter of law, the parties’ intent.” Harper Woods Retirees
Ass’n v Harper Woods, 312 Mich App 500, 508; 879 NW2d 897 (2015). If a reasonable person
could not dispute the meaning of ordinary and plain contract language, unambiguous contracts are
not open to judicial construction and must be enforced as written. Rory, 473 Mich at 468. “The
general rule of contracts is that competent persons shall have the utmost liberty of contract and
that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.”
Id. (quotation marks, brackets, and citations omitted).
A provision in a contract is ambiguous if it irreconcilably conflicts with another provision,
or when it is equally susceptible to more than a single meaning. Royal Prop Group, LLC v Prime
Ins Syndicate, Inc, 267 Mich App 708, 715; 706 NW2d 426 (2005). Whether a contract is
ambiguous is a question of law. Holland v Trinity Health Care Corp, 287 Mich App 524, 526;
791 NW2d 724 (2010). “Only when contractual language is ambiguous does its meaning become
a question of fact.” Id. at 527. In order to resolve the meaning of an ambiguous contract, the fact-
finder may consider relevant extrinsic evidence. Klapp, 468 Mich at 469.
In Paragraphs 3, 4, and 5 of the consent judgment, the parties very clearly and with
specificity detailed actions the parties were to take regarding the Woodville property. Paragraphs
6, 8, 9, and 10 address housekeeping details, such as which party was responsible for furnace and
air conditioning hookup, waterline leakage, grass cutting at the Morenci property, and the
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continuation of current rents and receipts. Paragraph 7 provides that “[u]nless modified, replaced
or satisfied, the provisions of the Settlement Agreement of October 10, 2021, shall remain in full
force and effect, and be enforced under this Consent Judgment.” However, nothing in the consent
judgment or the settlement agreement expressly contemplates transfer of the Morenci property.
On the contrary, the settlement agreement provides “that the parties agree to hold onto the property
located at 555 Main St in Morenci, MI splitting the rents and expenses. Said property currently
free and clear.”
The trial court found that the consent judgment was unambiguous and that Paragraph 11
clearly reflected the parties’ intention to transfer the Morenci property to the parties as tenants in
common. However, Paragraph 11 merely states that “[t]ransfer documents will be executed by the
parties to properly convey ownership and dower interests as tenants in common,” without
specifying which property this paragraph applies to. The trial court found that the paragraph
unambiguously applied to the Morenci property because Paragraph 11 followed Paragraphs 6
through 10, which addressed issues relating to the Morenci property. The trial court also found
that Paragraph 11 could not have referred to the Woodville property because it was being sold and
there would have been no need to direct the individual or couple who bought that property to own
it as tenants in common.
“A contract is unambiguous, even if inartfully worded or clumsily arranged, when it fairly
admits of but one interpretation.” McCoig Materials, LLC v Galui Constr, Inc, 295 Mich App
684, 694; 818 NW2d 410 (2012). “Every word, phrase, and clause in a contract must be given
effect, and contract interpretation that would render any part of the contract surplusage or nugatory
must be avoided.” Id. In Klapp, our Supreme Court considered when relevant extrinsic evidence
may be considered to aid in the interpretation of an ambiguous contract. Klapp, 468 Mich at 470.
Quoting Edoff v Hecht, 270 Mich 689, 695-696; 260 NW 93 (1935), the Court explained that
extrinsic evidence can be used to interpret an ambiguous contract “ ‘where the language of the
instrument itself taken alone is such that it does not clearly express the intention of the parties or
the subject of the agreement.’ ” Klapp, 468 Mich at 470. In addition, “ ‘a written instrument is
open to explanation by parol or extrinsic evidence when it is expressed in short and incomplete
terms, or is fairly susceptible of two constructions, or where the language employed is vague,
uncertain, obscure, or ambiguous.’ ” Id., quoting Edoff, 270 Mich at 695-696.
Again, Paragraph 11 of the consent judgment merely provides that “[t]ransfer documents
will be executed by the parties to properly convey ownership and dower interests as tenants in
common.” As the trial court observed, considering that Paragraph 11 follows four paragraphs that
refer to the Morenci property, it could be interpreted as also referring to the Morenci property.
However, the paragraph does not clearly name the Morenci property as the parties clearly did in
the paragraphs concerning the Woodville property. Indeed, the paragraph does not contain the
word “property” to describe what should be conveyed. Nor does it identify the parties to whom
the unspecified property is to be conveyed as tenants in common. The parties to the consent
judgment were Gerald, Cindy, Versacut, Michael, and Carrie. The paragraph does not clearly
express the parties’ intent to destroy the rights of survivorship of Gerald and Michael to the
Morenci property. The Court’s observation in Klapp, 468 Mich at 470, that a contract is
ambiguous when it is expressed in terms that are short and incomplete, or vague and obscure, fairly
describes the content of Paragraph 11, both standing alone and viewed in conjunction with the
surrounding paragraphs. Therefore, the trial court erred by finding that the consent judgment
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unambiguously required the parties to execute transfer documents conveying ownership in the
Morenci property to the parties as tenants in common.
Furthermore, the consent judgment was not adequate to destroy Gerald’s and Michael’s
contingent remainders. Unless Gerald and Michael mutually destroyed the contingent remainders,
ownership vested exclusively with Michael upon Gerald’s death. This conclusion is supported by
this Court’s decision in In re VanConett Estate, 262 Mich App at 662. In that case, Herbert and
Ila VanConett created a contract to make a will and this Court ruled that the beneficiaries of that
contract had standing to bring an action to enforce it. Id. at 662. Among other property, the
VanConetts owned real property with Florence H. VanConett as “joint tenants with full rights of
survivorship and not as tenants in common.” Id. at 667. The defendants argued that the estate
converted to a tenancy by the entireties when Florence died; however, this Court held that the
VanConetts “continued to hold the property as joint tenants with full rights of survivorship after
Florence’s death.” Id. Because property held as joint tenants with full rights of survivorship
automatically passed to Herbert upon Ila’s death, it was not part of her estate and was not covered
by the couple’s contract to make a will. Id. at 667-668. Therefore, this Court held that the estate
had no right to seek its return, even though the VanConetts’ will stated that it applied to “all our
property, whether owned by us as joint tenants . . . .” Id. at 668.
This Court further held that the VanConetts’ contract to make a will “did not expressly
indicate that the couple wished to terminate their joint tenancy and destroy the survivorship rights
attached to it.” Id. This Court stated that ”[n]o authority suggests that merely expressing a desire
to end a joint tenancy carries out the task of terminating a joint tenancy with rights of survivorship.”
Id. Therefore, this Court concluded that the VanConetts’ contract to make a will did not terminate
the survivorship rights of their joint tenancy, the property passed to Herbert immediately at Ila’s
death, and the estate lacked standing to seek its return to the estate. Id.
Likewise, the 2003 consent judgment does not expressly indicate Gerald’s and Michael’s
intentions “to terminate their joint tenancy and destroy the survivorship rights attached to it.” Id.
The trial court rejected plaintiffs’ argument that “the indestructible nature of a joint tenancy with
full rights of survivorship prevents enforcement of the consent judgment” because the consent
judgment was a contract to transfer title of the property. In In re VanConett Estate, however, this
Court held that even though the VanConetts had a contract to create wills to apply to all of their
property, the contract was insufficient to destroy the survivorship rights. Id. In this case, if Gerald
and Michael had followed through with the consent judgment and mutually executed the
documents while Gerald was alive, their mutual action would have destroyed the full rights of
survivorship. However, because the parties never changed the ownership of the Morenci property,
at the moment of Gerald’s death, ownership vested exclusively in Michael, the surviving joint
tenant. Jackson, 484 Mich at 214. Therefore, the trial court erred by ordering plaintiffs to convey
the Morenci property to plaintiffs and to Gerald’s estate as tenants in common.
Furthermore, given our conclusion that the 2003 consent judgment is ambiguous regarding
its application to the Morenci property, we hold that the trial court erred by rejecting plaintiffs’
argument that defendants’ motion to enforce the consent judgment was barred by laches.
Equitable issues, including equitable defenses such as laches, are reviewed de novo. Stock
Bldg Supply, LLC v Crosswinds Communities, Inc, 317 Mich App 189, 199; 893 NW2d 165-7-
(2016). This Court reviews any findings of fact supporting the trial court’s equitable decision for
clear error. Twp of Yankee Springs v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004). “A
finding is clearly erroneous where this Court is left with a definite and firm conviction that a
mistake has been made.” Adanalic v Harco Nat’l Ins Co, 309 Mich App 173, 194-195; 870 NW2d
731 (2015) (quotation marks and citation omitted).
The primary inquiry when applying the doctrine of laches is whether a party’s failure to
earlier assert his or her claim prejudiced the other party. See Sylvan Twp v City Of Chelsea, 313
Mich App 305, 327; 882 NW2d 545 (2015), in which this Court observed:
Although considerations of timing are important when determining whether
laches applies to the facts, laches is not triggered by the passage of time alone.
Laches is an equitable tool used to provide a remedy for the inconvenience resulting
from the plaintiff's delay in asserting a legal right that was practicable to assert. As
such, when considering whether a plaintiff is chargeable with laches, we must
afford attention to prejudice occasioned by the delay. It is the prejudice occasioned
by the delay that justifies the application of laches. [Quoting Knight v Northpointe
Bank, 300 Mich App 109, 114-115; 832 NW2d 439 (2013) (quotation marks and
citations omitted).]
Plaintiffs argue that they were prejudiced by defendants’ delay in bringing their motion
approximately 17 years after entry of the consent judgment because Gerald and one of the attorneys
who helped draft the consent judgment had died, thereby depriving them of these key witnesses’
testimonies regarding the interpretation of the ambiguous Paragraph 11. The trial court rejected
plaintiffs’ laches argument because it found that the consent judgment was unambiguous, and
therefore, any witness testimony was unnecessary.
In order to determine whether plaintiffs were prejudiced by the delay, we must determine
when it was practicable for defendants to assert their claim. Sylvan Twp, 313 Mich App 327. It
was practicable for defendants to assert their claim that the Morenci property should be conveyed
to the parties as tenants in common as soon as the consent judgment was entered and accepted by
the trial court. Cindy testified in a deposition that 10 days after the consent judgment was entered,
she and Gerald closed on the Woodville property as provided in the consent judgment. It was
equally practicable for defendants or plaintiffs to have executed transfer documents for the
Morenci property if that was the parties’ intention. Paragraph 11 did not charge a particular party
with execution of the documents. Any of the parties could have prepared documents to sign. The
consent judgment was signed and entered on May 9, 2003, and defendants did not file their motion
to enforce the consent judgment until January 2, 2020. Defendants did not assert their claim during
the 15 years after the consent judgment was entered and before Gerald died. Cindy testified that
she did not know that the Morenci property was not already held by the parties as tenants in
common. Now, because of Gerald’s death, it is not possible to know whether Gerald understood
that he still held ownership of the Morenci property with Michael as joint tenants with rights of
full survivorship, or to know Gerald’s intent with regard to the further disposition of the Morenci
property. Plaintiffs also assert that John Baker, one of the attorneys who helped negotiate the
consent judgment, died in 2016. Because the consent judgment is ambiguous, testimony from
Gerald and Baker would have aided in the interpretation of the consent judgment. Thus,
considering this evidence, and because it was practicable for defendants to assert their claim well
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before the deaths of Gerald and Baker, we hold that laches also barred defendants’ 2020 motion to
enforce the consent judgment.
For the foregoing reasons, we reverse the trial court’s order granting defendants’ motion
to enforce the 2003 consent judgment and ordering plaintiffs to convey the Morenci property to
the parties as tenants in common, and remand for entry of an order denying defendants’ motion.
In light of this decision, it is unnecessary to address plaintiffs’ remaining issues on appeal. We do
not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Kathleen Jansen
/s/ Noah P. Hood
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