Van Buren Charter Township v. Visteon Corporation

STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
VAN BUREN CHARTER TOWNSHIP, May 16, 2017
9:05 a.m.
Plaintiff-Appellant,
v No. 331789
Wayne Circuit Court
VISTEON CORPORATION, LC No. 15-008778-CK
Defendant-Appellee.
Before: STEPHENS, P.J., and SAAD and METER, JJ.
STEPHENS, J.
Plaintiff, Van Buren Charter Township, appeals as of right an order granting summary
disposition pursuant to MCR 2.116(C)(4) and (C)(8) in favor of defendant, Visteon Corporation,
on plaintiff’s declaratory judgment and breach of contract claims. We affirm.
I. BACKGROUND
This case arises from a 2010 Settlement Agreement and Mutual Release (the Agreement)
entered between plaintiff, a charter township in Wayne County, and defendant, a publicly-traded
global automobile parts supplier, in the midst of defendant’s then ongoing bankruptcy
proceedings. Pertinent here, the Agreement dictated defendant’s obligations to plaintiff for a
shortfall in payments on bonds defendant received from plaintiff in 2003, for the purpose of
financing the development and construction of defendant’s national headquarters (Visteon
Village) in plaintiff’s township. Sometime in 2013, plaintiff engaged Public Financial
Management, Inc. (PFM), to conduct a cash flow analysis for the township. PFM returned a
report on September 6, 2013, presenting 15 different cash flow scenarios, each of which resulted
in a shortfall. With regard to “Future Cash Shortfall,” the drafter of the report stated, “Since the
current Taxable Values within [plaintiff’s township] are significantly lower than the original
projections in 2003, a cash shortfall is inevitable if new revenues are not introduced.” The
estimated amount of the shortfall ranged from $23.7 million to $36.4 million, and the shortfall
was projected to occur sometime between 2017 and 2019.
Plaintiff forwarded a copy of the PFM Report to defendant, along with a demand letter
that requested defendant engage in immediate negotiations to determine defendant’s payment
obligation with respect to the projected shortfall pursuant to the Agreement. Defendant agreed to
meet with plaintiff, but disputed any obligation to engage in negotiations until after plaintiff
actually experienced a bond payment shortfall. Based on this dispute, plaintiff brought a two-
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count complaint against defendant, alleging breach of contract for defendant’s failure to
negotiate in good faith and anticipatory repudiation of its obligation to pay any amount of the
bond payment shortfall, and requesting a declaratory judgment determining the rights and
obligations of both parties pursuant to Paragraph 3 of the Agreement.
The trial court granted defendant’s motion for summary disposition pursuant to MCR
2.116(C)(4) and (C)(8), deciding that:
(1) the parties’ disagreement over the meaning of a term in their agreement did not
present a justiciable issue,
(2) plaintiff’s breach of contract and declaratory judgment claims were not ripe for
adjudication because the actual damages to plaintiff from the payment shortfall were only
“hypothetical” in nature, and
(3) plaintiff’s breach of contract and declaratory judgment claims were not ripe for
adjudication because the payment shortfall was not scheduled to occur until a future date.
II. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s decision on a motion for summary disposition
in an action for a declaratory judgment.” Lansing Schools Educ Ass’n v Lansing Bd of Educ (On
Remand), 293 Mich. App. 506, 512-513; 810 NW2d 95 (2011). “Questions regarding ripeness are
also reviewed de novo.” King v Mich State Police Dep’t, 303 Mich. App. 162, 188; 841 NW2d
914 (2013). This Court also reviews de novo questions involving the proper interpretation of a
contract and the legal effect of a contractual clause. McDonald v Farm Bureau Ins Co, 480 Mich.
191, 197; 747 NW2d 811 (2008).
In this case, defendant sought summary disposition pursuant to MCR 2.116(C)(4) and
(C)(8). The trial court indicated that it was granting defendant’s motion pursuant to both
subrules. However, on appeal, the parties contest the propriety of dismissal pursuant to MCR
2.116(C)(4). Although we acknowledge inconsistencies between published decisions of this
Court and more recent unpublished decisions regarding whether subrule (C)(4) supports
dismissal for failure of justiciability grounds such as ripeness,1 we need not address the conflict
here. Morales v Parole Bd, 260 Mich. App. 29, 32; 676 NW2d 221 (2003) (“[T]his Court
generally does not address moot questions or declare legal principles that have no practical effect
in a case.”). Both parties concede that summary disposition for lack of ripeness is properly
considered pursuant to MCR 2.116(C)(10), and even if the trial court erroneously granted
1
See Braun v Ann Arbor Charter Twp, 262 Mich. App. 154, 160; 683 NW2d 755 (2004)
(expressly stating that summary disposition pursuant to MCR 2.116(C)(4) was proper when an
otherwise justiciable takings claim was not ripe for review); see also Broz v Plante & Moran,
PLLC, unpublished opinion per curiam of the Court of Appeals, issued May 17, 2016 (Docket
No. 325884) (expressly stating that “[b]ecause ripeness falls under constitutional jurisdiction, not
subject matter jurisdiction, the trial court erred in treating MCR 2.116(C)(4) as a proper ground
for granting defendant summary disposition on the issue of ripeness.”).
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defendant’s motion for summary disposition under subrule (C)(4) on ripeness grounds, this Court
does not reverse in cases of such error when summary disposition is nonetheless appropriate
under a different subrule. Rental Properties Owners Ass’n of Kent Co v Kent Co Treasurer, 308
Mich. App. 498, 526-27; 866 NW2d 817 (2014) (“Even if the trial court erred by granting
summary disposition under a particular subrule, this Court will not reverse if the error was
harmless.”) Because the trial court’s dismissal of plaintiff’s claims as unripe was appropriate
under MCR 2.116(C)(10), any error in granting defendant’s motion for summary disposition
under a separate subrule was harmless.
Additionally, as plaintiff concedes, because the trial court considered evidence beyond
the pleadings to decide defendant’s motion, this Court must treat the trial court’s decision with
respect to subrule (C)(8) as though it were made only pursuant to subrule (C)(10). See Sharp v
City of Lansing, 238 Mich. App. 515, 518; 606 NW2d 424 (1999). Summary disposition is proper
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.” West v Gen Motors Corp, 469 Mich.
177, 183; 665 NW2d 468 (2003). This Court considers the affidavits, pleadings, depositions,
admissions, and other documentary evidence in the light most favorable to the nonmoving party.
Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). The same is considered to
determine whether “reasonable minds could differ on an issue after viewing the record in the
light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich. 419,
425; 751 NW2d 8 (2008).
III. ANALYSIS
Plaintiff argues that the trial court erred when it granted defendant’s motion for summary
disposition because:
(1) the trial court’s conclusion that plaintiff’s request for declaratory relief was not
ripe was erroneous, as the parties’ dispute over the interpretation of Paragraph 3 of the
Agreement is clearly an existing and ongoing disagreement necessitating resolution,
(2) the trial court’s conclusion that plaintiff’s future damages, in the form of an
inevitable bond payment shortfall, were only “hypothetical” in nature was factually
unsupported and legally impermissible, and the conclusion that the contract claims were
not ripe was based on this erroneous determination, and
(3) the trial court failed to recognize that defendant breached the contract when it
declined to negotiate in good faith and committed an anticipatory breach when it argued
it was not required to pay the amount of the bond shortfall.
We address each claim of error in turn.
A. DECLARATORY JUDGMENT
On appeal, plaintiff asserts that, because the parties disagree in their interpretation of
Paragraph 3 of the Agreement, an actual controversy exists and plaintiff is entitled to a
declaration of its legal rights under that contract provision. We disagree.
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MCR 2.605 governs a trial court’s power to enter a declaratory judgment. The court rule
provides, in pertinent part, that “[i]n a case of actual controversy within its jurisdiction, a
Michigan court of record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought or granted.”
MCR 2.605(A)(1). The language in this rule is permissive, and the decision of whether to grant
declaratory relief is within the trial court’s sound discretion. PT Today, Inc v Comm’r of
Financial & Ins Services, 270 Mich. App. 110, 126-127; 715 NW2d 398 (2006).
When there is no actual controversy, the court lacks jurisdiction to issue a declaratory
judgment. Citizens for Common Sense in Govt v Attorney Gen, 243 Mich. App. 43, 56; 620
NW2d 546 (2000). Thus, “the existence of an ‘actual controversy’ is a condition precedent to
the invocation of declaratory relief.” PT Today, Inc, 270 Mich. App. at 127. An actual
controversy exists when a declaratory judgment is necessary to guide the plaintiff’s future
conduct in order to preserve his legal rights. Shavers v Kelley, 402 Mich. 554, 588-589; 267
NW2d 72 (1978). “It is not necessary that ‘actual injuries or losses have occurred’; rather,
‘plaintiffs plead and prove facts which indicate an adverse interest necessitating a sharpening of
the issues raised.’ ” Kircher v City of Ypsilanti, 269 Mich. App. 224, 227; 712 NW2d 738 (2005)
quoting Shavers, 402 Mich. at 589.
Plaintiff claims that a disagreement exists regarding the application of a provision in the
Agreement obligating defendant to assist plaintiff in the form of non-tax payments in the event
of a shortfall. The provision, Section 3 of the Agreement, reads as follows:
[Defendant] acknowledges that [plaintiff] assisted [defendant] in the construction
of the Village through the issuance by [plaintiff] of certain bonds supported by the
full faith and credit of [plaintiff], the proceeds of which were used to help
construct the Village. To the extent that the property tax payments made by
[defendant] to [plaintiff], including payments made by [defendant] to [plaintiff]
pursuant to Section 2.2, are inadequate to permit [plaintiff] to meet its payment
obligations with respect to that portion of the bonds that were used to help fund
the Village, [defendant] hereby agrees to negotiate with [plaintiff] in good faith to
determine the amount of the shortfall with respect to those bonds and make a non-
tax payment, payment in-lieu-of tax, (PILOT) to [plaintiff] to assist [plaintiff] in
making timely payments on the bonds. [Emphasis added].
Plaintiff claims that the provision is ambiguous, and could be read to obligate defendant to begin
negotiations prior to the occurrence of the shortfall. Plaintiff argues that it is entitled to “timely”
payments, which it argues also, requires that defendant engage in negotiations prior to the
shortfall, and suggests that the parties’ intent should be considered. According to plaintiff, it
would not have entered into an agreement through which it would need to wait for defendant’s
assistance until after the shortfall occurred, opening itself up to unforeseeable and catastrophic
damages. However, we find that, while perhaps inartfully worded, this contract provision is
unambiguous and plaintiff has failed to present an “actual case or controversy” necessitating
declaratory relief.
“Under ordinary contract principles, if contractual language is clear, construction of the
contract is a question of law for the court.” Meagher v Wayne State Univ, 222 Mich. App. 700,
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721; 565 NW2d 401 (1997). “If the contract is subject to two reasonable interpretations, factual
development is necessary to determine the intent of the parties and summary disposition is
therefore inappropriate.” Id. at 722. “If the contract, although inartfully worded or clumsily
arranged, fairly admits of but one interpretation, it is not ambiguous.” Id. Clear and
unambiguous contractual language must be enforced as written. Holland v Trinity Health Care
Corp, 287 Mich. App. 524, 527; 791 NW2d 724 (2010). The judiciary is not authorized to rewrite
contracts. This Court has repeatedly held that the straightforward language of a contract must
control. Wilkie v Auto-Owners Ins Co, 469 Mich. 41, 52; 664 NW2d 776 (2003) (“The notion,
that free men and women may reach agreements regarding their affairs without government
interference and that courts will enforce those agreements, is ancient and irrefutable.”); Terrien v
Zwit, 467 Mich. 56, 71; 648 NW2d 602 (2002) (“The general rule [of contracts] is that competent
persons shall have the utmost liberty of contracting and that their agreements voluntarily and
fairly made shall be held valid and enforced in the courts.”) (Quotation and citation omitted).
According to the plain language of the contract, defendant is obligated to “negotiate with
[plaintiff] in good faith to determine the amount of the shortfall,” only “[t]o the extent that the
property tax payments made by [defendant]” are “inadequate to permit [plaintiff] to meet its
payment obligations,” and only “with respect to that portion of the bonds that were used to help
fund the Village.” Thereafter, defendant is obligated to “make a non-tax payment” in order to
“assist” plaintiff in making “timely” payments on those bonds. In each case, the tense of the
verb is present, not future. No reasonable person reading this provision could find it ambiguous,
or find that defendant is obligated to engage in negotiations prior to the shortfall. Indeed, the
contract admits of but one interpretation, in which the occurrence of the shortfall is a condition
precedent to defendant’s obligation to perform, and defendant is not obligated to do anything
until after plaintiff has experienced a shortfall. In fact, defendant is not obligated to perform
until after two conditions have been met: (1) a shortfall has occurred, and (2) property taxes paid
by defendant are inadequate for plaintiff to pay that portion of the bonds that was used to fund
the Village. This second condition cannot be met until after the shortfall has occurred and the
parties have determined the amount due.
Contrary to plaintiff’s assertion on appeal, the requirement that defendant negotiate in
good faith to “determine the amount of the shortfall” does not force the implication that
defendant must be required to negotiate prior to the occurrence of a shortfall. Plaintiff forgets
that the provision contains qualifying language, requiring defendant to negotiate in good faith to
determine the amount of the shortfall only “with respect to those bonds” that were “supported by
the full faith and credit of [plaintiff], the proceeds of which were used to help construct the
Village.” Defendant is therefore clearly obligated to engage in negotiations once a shortfall
occurs, to determine which part of the shortfall can be attributed to bonds it is obligated to assist
plaintiff to pay.
It is true that this contract is not particularly strong, or overly beneficial to plaintiff.
However, we do not create ambiguities to rewrite or rebalance the equities of a contract,
especially where, as here, the contract was voluntarily drafted and entered into by consenting
parties. As our Supreme Court has explained: “We reiterate that the judiciary is without
authority to modify unambiguous contracts or rebalance the contractual equities struck by
contracting parties because fundamental principles of contract law preclude such subjective post
hoc judicial determinations of ‘reasonableness’ as a basis upon which courts may refuse to
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enforce unambiguous contractual provisions.” Rory v Continental Ins Co, 473 Mich. 457, 461;
703 NW2d 23 (2005). Nor do we, as plaintiff requests, look past the plain and unambiguous
terms of a contract to impose an obligation on a party that has not been clearly delineated in the
parties’ agreement. “It is beyond doubt that the actual mental processes of the contracting parties
are wholly irrelevant to the construction of contractual terms.” Zurich Ins Co v CCR and Co,
226 Mich. App. 599, 604: 576 NW2d 392 (1997). “Rather, the law presumes that the parties
understand the import of a written contract and had the intention manifested by its terms.” Id.
Finally, plaintiff’s claim that it needs declaratory relief in order to preserve its legal rights
under the contract is untenable, and its assertion that it will be unable to prevent damages
without declaratory relief is irrelevant. Plaintiff’s rights, like defendant’s obligations, under the
contract are clear. Defendant is not obligated to perform until after a shortfall, and then is only
obligated to “assist” with a certain payment thereof. Plaintiff may take steps, as it should, to
prevent loss and attempt to avoid excessive damage from the projected shortfall, and its remedy
for any losses actually incurred lie in damages for breach of contract, if defendant fails to meet
its obligations when the time for performance has arrived.
It is also worth noting that declaratory relief is not mandatory. Again, the statute
governing declaratory relief is permissive. PT Today, Inc, 270 Mich. App. at 126. Even if
plaintiff’s claims had merit, the decision of whether to grant declaratory relief rests within the
sound discretion of the trial court. The decision to decline to offer declaratory relief is within the
range of reasonable outcomes. We find no error on appeal.
B. HYPOTHETICAL DAMAGES
Plaintiff argues that, in light of the PFM Report drafter’s conclusion that a bond payment
shortfall is “inevitable,” the trial court erred when it determined that plaintiff’s damages were
hypothetical in nature. Again, we disagree.
Damages are an element of a breach of contract claim and “[t]he party asserting a breach
of contract has the burden of proving its damages with reasonable certainty, and may recover
only those damages that are the direct, natural, and proximate result of the breach.” Alan Custom
Homes, Inc v Krol, 256 Mich. App. 505, 512; 667 NW2d 379 (2003). “[D]amages must not be
conjectural or speculative in their nature, or dependent upon the chances of business or other
contingencies.” Doe v Henry Ford Health System, 308 Mich. App. 592, 602; 865 NW2d 915
(2014) (internal quotation and citation omitted). Although breach of contract damages need not
be precisely established, “uncertainty as to the fact of the amount of damage caused by the
breach of contract is fatal.” Home Ins Co v Commercial & Industrial Security Servs, Inc, 57
Mich. App. 143, 147; 225 NW2d 716 (1974).
Plaintiff concedes that the amount of damages here is uncertain, but argues that the
“unrebutted” PFM Report establishes that the occurrence of damages in the form of a bond
payment shortfall is certain. It is true that where the fact of damages has been established and
the only question to be decided is the amount, the certainty requirement is relaxed. Hofmann v
Auto Club Ins Ass’n, 211 Mich. App. 55, 108; 535 NW2d 529 (1995). However, plaintiff is
mistaken when it concludes that the fact of damages has been conclusively established.
Although, as plaintiff notes, defendant has not provided any independent report or any document
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specifically refuting the findings contained within the PFM Report, defendant was not required
to do so, as the factual uncertainty of plaintiff’s damages is apparent from the PFM Report itself.
First, the PFM Report contains 15 different projections for a potential bond payment shortfall
amount, many of which are predicted to occur in varying years. As the report drafter makes
clear, these projections indicate that, “a cash shortfall is inevitable if new revenues are not
introduced.” The drafter also acknowledged that “[b]ecause of the unpredictable nature of
Taxable Value growth rates it is not possible to project the exact moment of [plaintiff’s] initial
cash shortfall with precise accuracy,” and that a shortfall is certain only “without a substantial
increase in the captured taxes, or the influx of additional funds by 2017 or 2018.” The very
language of the report upon which plaintiff relies in making its claim for damages supports the
fact that, at least at this point in time, plaintiff’s alleged damages are conjectural, speculative,
and clearly “dependent upon the chances of business or other contingencies.” Doe, 308 Mich
App at 601.
Plaintiff also argues that the trial court erred when it inappropriately made a “factual
finding” regarding the hypothetical nature of plaintiff’s bond payment shortfall, rather than
accepting plaintiff’s characterization of the shortfall as “certain,” as plaintiff claims it was
required to do when it decided defendant’s motion for summary disposition under MCR
2.116(C)(10). Plaintiff is correct that, when deciding such a motion, the trial court is required to
view the evidence in a light most favorable to the nonmoving party—here plaintiff. Allison, 481
Mich. at 425. However, viewing the evidence in a light most favorable to plaintiff is not the same
as accepting, verbatim, any assertion advanced by plaintiff in its pleadings. Indeed, the trial
court is permitted to view all of the evidence, and is required only to view it in the light most
favorable to plaintiff, not in a factually unsupported light in order to substantiate plaintiff’s
otherwise unsubstantiated claims. Here, the trial court did not “find” any facts not clearly
contained within the parties’ attachments to the pleadings. The hypothetical nature of plaintiff’s
claims was apparent after viewing plaintiff’s own financial report, and even when viewed in the
light most favorable to plaintiff, the projections of the PFM Report could not be interpreted to
support the “certainty” of plaintiff’s alleged future damages.
Plaintiff’s damages are speculative because “they do not arise from [a] purported breach
of contract but depend entirely on the occurrence of multiple contingencies which might or might
not occur at some point in the future.” Doe, 308 Mich. App. at 602. By way of example, we note
that plaintiff has already successfully restructured its bond obligation in order to avoid a
previously projected deficiency, and plaintiff admitted at the hearing on defendant’s motion for
summary disposition that it was in the process of obtaining another bond restructuring
agreement. This admission alone illustrates the contingent nature of plaintiff’s alleged damages.
Any injury plaintiff might sustain from the projected bond payment shortfall is entirely
contingent on the hypothetical possibilities that (1) plaintiff will have a constant revenue moving
forward, (2) plaintiff will not be able to restructure its bond obligations to avoid injury, and (3)
plaintiff will actually experience a bond payment shortfall. Because plaintiff’s purported future
damages arise from what plaintiff’s own expert describes as a possible future harm that might
not occur, plaintiff may not recover in contract law now for the hypothetical losses it may one
day experience.
C. BREACH OF CONTRACT CLAIMS NOT RIPE
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Finally, plaintiff argues that the trial court erred in granting defendant’s motion for
summary disposition on plaintiff’s breach of contract claims for lack of ripeness. The doctrine of
ripeness is closely related to the standing doctrine in that it “focuses on the timing of the action.”
Michigan Chiropractic Council v Commissioner of Office of Financial and Insurance Services,
475 Mich. 363, 379; 716 NW2d 561 (2006), overruled on other grounds by Lansing Schools Educ
Ass’n, 487 Mich. 349 (2010). The ripeness doctrine requires that a party has sustained an actual
injury to bring a claim. City of Huntington Woods v City of Detroit, 279 Mich. App. 603, 615;
761 NW2d 127 (2008). A party may not premise an action on a hypothetical controversy. Id.
Plaintiff argues that it has proven injury in the form of a breach of contract because
defendant has already (1) failed to negotiate in good faith, as required by Paragraph 3, and (2)
anticipatorily repudiated its obligations under Paragraph 3 by unequivocally stating that it will
not pay any part of the bond payment shortfall if it should occur. We disagree.
Michigan law requires a party claiming breach of contract to prove the terms of the
contract, that the defendant breached the terms, and that the breach caused an injury. Alan
Custom Homes, Inc, 256 Mich. App. at 512. Here, as previously discussed, the terms of the
contract are unambiguous. Defendant is not obligated to engage in good faith negotiations to
determine the amount of a bond payment shortfall it is required to pay until after the bond
payment shortfall has occurred. At this time, the bond payment shortfall is still only a
projection, and defendant could not have breached its contract by failing to perform before the
time of performance has even arrived. Plaintiff’s claim that defendant already breached the
contract by failing to negotiate therefore fails. Without an actual injury resulting from a breach
of contract, the trial court properly dismissed plaintiff’s breach of contract claim as not ripe for
adjudication.
Plaintiff’s claim for breach of contract on the theory that defendant anticipatorily
repudiated its obligation to pay any amount of the bond payment shortfall is similarly meritless.
Under the doctrine of anticipatory repudiation: “[I]f, before the time of performance, a party to a
contract unequivocally declares the intent not to perform, the innocent party has the option to
either sue immediately for the breach of contract or wait until the time of performance.”
Stoddard v Manufacturers Nat’l Bank, 234 Mich. App. 140, 163; 593 NW2d 630 (1999). “In
determining whether an anticipatory breach has occurred, it is the party’s intention manifested by
acts and words that is controlling, and not any secret intention that may be held.” Paul v Bogle,
193 Mich. App. 479, 493-494; 484 NW2d 728 (1992), citing Carpenter v Smith, 147 Mich. App.
560, 565; 383 NW2d 248 (1985).
In this case, even when considered in a light most favorable to plaintiff, the evidence
does not show that defendant ever unequivocally declared its intention not to perform under
Paragraph 3 of the Agreement when the time of performance actually arrives. Despite plaintiff’s
argument to the contrary, none of the evidence it points to on appeal proves that defendant is
unwilling to negotiate or to pay any amount of the bond payment shortfall. Defendant simply
maintains its position that it is not obligated to negotiate until after the shortfall has occurred,
that it is not required to pay any amount of the bond payment shortfall until after it has occurred,
and that it is not required under Paragraph 3, in any case, to pay the full amount of the bond
payment shortfall as claimed by plaintiff’s projections. Defendant’s position is best illustrated in
its counsel’s statements at the hearing on defendant’s motion for summary disposition:
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[The Court]: Is the defense’s – one of defense’s positions, that they have
no liability to pay anything towards a certain shortfall?
[Counsel for Defendant]: It’s our position that we have a duty, if there is a
shortfall to negotiate in good faith the amount. And then to make a non-tax
payment, payment in lieu of tax to [plaintiff] to assist [plaintiff]. That’s our
position.
It’s our view as the defense, that those words mean very little, if anything
would be due. But we view our duty and obligations what [sic] stated in that
paragraph.
It is clear that while defendant disputes the amount due at this time, and asserts that its liability in
the event of a shortfall may be minimal, it has not unequivocally repudiated its obligation to pay
any amount of the bond payment shortfall as required by Paragraph 3 of the Agreement. Thus,
even when the evidence is viewed in a light most favorable to plaintiff, it does not support
plaintiff’s claim for anticipatory repudiation of the Agreement, and summary disposition under
MCR 2.116(C)(10) for lack of a ripe controversy is therefore appropriate with regard to both of
plaintiff’s breach of contract claims.
The trial court did not err when it granted defendant’s motion for summary disposition on
the ground that plaintiff’s breach of contract and declaratory judgment claims were not yet ripe
for adjudication, and reversal is not required.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Henry William Saad
/s/ Patrick M. Meter
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