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holding that it is not sufficient for a plaintiff to allege damage without supporting facts
Summary of this case from Flores v. FCA US LLCOpinion
No. 331789
05-16-2017
VAN BUREN CHARTER TOWNSHIP, Plaintiff–Appellant, v. VISTEON CORPORATION, Defendant–Appellee.
Clark Hill PLC (by Kaveh Kashef and Jennifer K. Green ) and Gasiorek Morgan Greco McCauley & Kotzian, PC (by Patrick B. McCauley), for plaintiff. Dickinson Wright PLLC (by Phillip J. DeRosier, Michael C. Hammer, Robert F. Rhoades, and Doron Yitzchaki ) for defendant.
Clark Hill PLC (by Kaveh Kashef and Jennifer K. Green ) and Gasiorek Morgan Greco McCauley & Kotzian, PC (by Patrick B. McCauley), for plaintiff.
Dickinson Wright PLLC (by Phillip J. DeRosier, Michael C. Hammer, Robert F. Rhoades, and Doron Yitzchaki ) for defendant.
Before: Stephens, P.J., and Saad and Meter, JJ.
Stephens, P.J.Plaintiff, Van Buren Charter Township, appeals as of right an order granting summary disposition under MCR 2.116(C)(4) (lack of jurisdiction) and (C)(8) (failure to state a claim) in favor of defendant, Visteon Corporation, on plaintiff's request for a declaratory judgment and claim of breach of contract. We affirm.I. BACKGROUND
This case arises from a Settlement Agreement and Mutual Release (the Agreement) entered in 2010 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, of "the 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 requesting that defendant engage in immediate negotiations to determine defendant's payment obligation under the Agreement with respect to the projected shortfall. Defendant agreed to meet with plaintiff but disputed any obligation to engage in negotiations until after plaintiff actually experienced a bond-payment shortfall. On the basis of this dispute, plaintiff brought a two-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 under 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 expected 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 Sch. Ed. Ass'n, MEA/NEA v. Lansing Bd. of Ed. (On Remand), 293 Mich.App. 506, 512–513, 810 N.W.2d 95 (2011). "Questions regarding ripeness are also reviewed de novo." King v. Mich. State Police Dep't, 303 Mich.App. 162, 188, 841 N.W.2d 914 (2013). Finally, this Court reviews de novo "[q]uestions involving the proper interpretation of a contract or the legal effect of a contractual clause." McDonald v. Farm Bureau Ins. Co., 480 Mich. 191, 197, 747 N.W.2d 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 under both subrules. However, on appeal, the parties contest the propriety of dismissal under MCR 2.116(C)(4). Although we acknowledge inconsistencies among 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, we need not address the conflict in this case. Morales v. Parole Bd., 260 Mich.App. 29, 32, 676 N.W.2d 221 (2003) ("[T]his Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in [a] case....") (quotation marks and citation omitted). Both parties concede that summary disposition for lack of ripeness is properly considered under MCR 2.116(C)(10). Even if the trial court erroneously granted defendant's motion for summary disposition under Subrule (C)(4) on ripeness grounds, this Court will not reverse when summary disposition is nonetheless appropriate under a different subrule. Rental Prop. Owners Ass'n of Kent Co. v. Kent Co. Treasurer, 308 Mich.App. 498, 526–527, 866 N.W.2d 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.
See Braun v. Ann Arbor Charter Twp., 262 Mich.App. 154, 160, 683 N.W.2d 755 (2004) (expressly stating that summary disposition under 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, 2016 WL 2908341), p. 3 (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").
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. Lansing, 238 Mich.App. 515, 518, 606 N.W.2d 424 (1999), aff'd 464 Mich. 792, 629 N.W.2d 873 (2011). 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 N.W.2d 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 N.W.2d 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 N.W.2d 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 contractual provision. We disagree.
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 whether to grant declaratory relief is within the trial court's sound discretion. P.T. Today, Inc. v. Comm'r of Office Fin. & Ins. Servs., 270 Mich.App. 110, 126, 715 N.W.2d 398 (2006).
When there is no actual controversy, the court lacks jurisdiction to issue a declaratory judgment. Citizens for Common Sense in Gov't v. Attorney General, 243 Mich.App. 43, 55, 620 N.W.2d 546 (2000). Thus, "the existence of an ‘actual controversy’ is a condition precedent to the invocation of declaratory relief." P.T. Today, Inc., 270 Mich.App. at 127, 715 N.W.2d 398. An actual controversy exists when a declaratory judgment is necessary to guide the plaintiff's future conduct in order to preserve the plaintiff's legal rights. Shavers v. Attorney General, 402 Mich. 554, 588–589, 267 N.W.2d 72 (1978). "It is not necessary that ‘actual injuries or losses have occurred’; rather than ‘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 N.W.2d 738 (2005), quoting Shavers, 402 Mich. at 589, 267 N.W.2d 72.
Plaintiff claims that a disagreement exists regarding the application of a provision in the Agreement obligating defendant to assist plaintiff in the form of nontax 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, requires that defendant engage in negotiations before 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 have needed to wait for defendant's assistance until after the shortfall occurred, opening itself up to unforeseeable and catastrophic damages. However, we conclude that, while perhaps inartfully worded, this contractual provision is unambiguous and that 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, 721, 565 N.W.2d 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, 565 N.W.2d 401. "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 N.W.2d 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 N.W.2d 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 N.W.2d 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 marks and citation omitted; alteration in original).
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," but 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 conclude that defendant is obligated to engage in negotiations before 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 before 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 when, as in this case, the contract was voluntarily drafted and entered into by consenting parties. As our Supreme Court has explained, "[t]he 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 enforce unambiguous contractual provisions." Rory v. Continental Ins. Co., 473 Mich. 457, 461, 703 N.W.2d 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 & Co. (On Rehearing), 226 Mich.App. 599, 604, 576 N.W.2d 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 lies 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. P.T. Today, Inc., 270 Mich.App. at 126, 715 N.W.2d 398. 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. Miller-Davis Co. v. Ahrens Constr., Inc., 495 Mich. 161, 178, 848 N.W.2d 95 (2014). "The 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 N.W.2d 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 Sys., 308 Mich.App. 592, 602, 865 N.W.2d 915 (2014) (quotation marks 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 & Indus. Security Servs., Inc., 57 Mich.App. 143, 147, 225 N.W.2d 716 (1974).
Plaintiff concedes that the amount of its damages s 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 when 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 N.W.2d 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 specifically refuting the findings contained within the PFM Report, defendant was not required to do so, given that 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 on which plaintiff relies in making its claim for damages supports the fact that, at least at this 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, 865 N.W.2d 915 (quotation marks and citation omitted).
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, 751 N.W.2d 8. 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. In this case, 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, 865 N.W.2d 915. 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 might one day experience.
C. BREACH–OF–CONTRACT CLAIMS NOT RIPE
Finally, plaintiff argues that the trial court erred by 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." Mich. Chiropractic Council v. Comm'r of Office of Fin. & Ins. Servs., 475 Mich. 363, 379, 716 N.W.2d 561 (2006) (opinion by YOUNG J.) (emphasis omitted), overruled on other grounds by Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed., 487 Mich. 349, 792 N.W.2d 686 (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 N.W.2d 127 (2008). A party may not premise an action on a hypothetical controversy. Id. at 615–616, 761 N.W.2d 127
Plaintiff argues that it has proven injury in the form of a breach of contract because defendant has already failed to negotiate in good faith, as required by Paragraph 3, and 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 a breach of contract to prove the existence and terms of a contract, that the defendant breached its terms, and that the breach caused damages to the plaintiff. Miller-Davis, 495 Mich. at 178, 848 N.W.2d 95. In this case, as previously discussed, the existence of a contract is undisputed and its terms 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: "if, 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. Mfr. Nat'l Bank of Grand Rapids, 234 Mich.App. 140, 163, 593 N.W.2d 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, 484 N.W.2d 728 (1992), citing Carpenter v. Smith, 147 Mich.App. 560, 565, 383 N.W.2d 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 cites 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:
[The Court]: Is the defense's—one of defense's position [sic] 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's [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 might 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. Therefore, 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 request for a declaratory judgment were not yet ripe for adjudication, and reversal is not required.
Affirmed.
Saad and Meter, JJ., concurred with Stephens. P.J.