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Opinion Date: 12/20/2011
e-Journal Date: 01/26/2012
Full Text Opinion

Practice Area(s):   Contracts
Environmental Law

Issues:  Breach of contract claim for alleged failure to properly conduct a "wetland review"; Contract interpretation; Manuel v. Gill; Use of the technical meaning of the phrase wetland review; Effect of the plaintiff's representative's subjective understanding of the term; Burkhardt v. Bailey; A "wetland delineation" distinguished from a wetland review; Negligence claims; Roulo v. Auto Club of MI; "Duty" requirement; Beaty v. Hertzberg & Golden, PC; Clark v. Dalman; A duty arising from voluntarily undertaking to perform an act; Home Ins. Co. v. Detroit Fire Extinguisher Co.; Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co.; Hart v. Ludwig; Claim that the defendant's representative was negligent in communicating the results of the wetlands review to plaintiff's representative and in answering her inquiries about the property; Environmental Site Assessment (ESA)
Court: Michigan Court of Appeals (Unpublished)
Case Name: Just Us Four, L.L.C. v. Villa Envtl. Consultants, Inc.
e-Journal Number: 50489
Judge(s): Per Curiam – Markey, Fitzgerald, and Borrello

The trial court properly granted the defendant summary disposition of the plaintiff's breach of contract claim because the terms of the parties' contract manifested the intent that defendant perform a "wetland review" (not a "wetland delineation") and there was no dispute that it performed a wetland review. The court also held that defendant was properly granted summary disposition of plaintiff's negligence claim because plaintiff had no cognizable cause of action for negligence where it was basically complaining of inadequate performance under the contract. The case arose from defendant's performance of a pre-purchase environmental assessment and wetland review of property now owned by plaintiff. Plaintiff's representative (W) contacted defendant to perform a Phase I ESA of the property before plaintiff purchased it. W also requested that defendant perform a "Wetland Review Please." While the scope of the Phase I ESA was described in writing, the scope of a wetland review was not defined, either in writing or verbally, to W. Relying on alleged verbal statements made by defendant's representative (L) to W that "you're good to go," and "I think you'll be fine," plaintiff purchased the property. Plaintiff later entered into a letter of intent to sell the property to an entity that develops property for hotel franchises. The offer to purchase was contingent on several factors, including satisfaction of any environmental concerns. "As part of its due diligence, the prospective purchaser requested that plaintiff obtain a wetland delineation to determine the extent of any wetlands present on the property" - the wetland delineation revealed that the property contained 15.2 acres of regulated wetlands. The prospective purchaser terminated the letter of intent and withdrew its offer to purchase the property. Plaintiff alleged that defendant breached its contract by failing to properly conduct the contracted-for wetland review, and also alleged that defendant was negligent in, inter alia, communicating the results of the wetland review to W and in answering her inquiries about the property. Plaintiff argued on appeal that the trial court erred by construing the contract using the technical meaning (used in the environmental consulting industry) of the phrase "wetland review" and instead should have considered W's subjective understanding of the scope of the phrase. L testified that a wetland review is "the review of government documentation to determine whether such records indicate the potential for wetlands on the site; it is not an investigation to determine whether wetlands are actually present on the property, which investigation is referred to a ‘wetland delineation.'" Plaintiff's environmental expert (G) also described a wetland review as an examination of historical records to determine if there are issues requiring further examination. G agreed with L that a wetland review is substantially different from a wetland delineation, which he defined as "the determination of the actual presence and size, if any, of wetlands on the property." Defendant's report indicated that L reviewed the MDEQ wetland inventory maps, the report advised that there were potential wetlands on the property, and that if development were contemplated, a wetland delineation should be performed. In light of the deposition testimony of L and G, there was "no question of fact that plaintiff contracted for, and received, a ‘wetland review.'" Affirmed.

Full Text Opinion

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