Contractual waiver of the right to a jury trial; Mink v. Masters; MCR 2.509; Enforcing unambiguous contracts as written; Rory v. Continental Ins. Co.; Nexteer Auto Corp. v. Mando Am. Corp.; Claims for violation of the Michigan Builder’s Trust Fund Act (MBTFA) (MCL 570.151 et seq.); MCL 570.152 & 153; Livonia Bldg. Materials Co. v. Harrison Constr. Co.

The court held that the subcontracts written by defendant-Pro Services and signed by plaintiff-Egan unambiguously waived their rights to a jury trial. Thus, the trial court erred in refusing to enforce that provision. However, because genuine issues of fact existed as to whether Pro Services and defendant-VandeMaele (its CEO) violated the MBTFA, the trial court correctly denied Egan’s motion for JNOV as to VandeMaele’s liability. While Pro Services contended that VandeMaele’s presence in the case allowed “the trial court to exercise its discretion and order the entire case submitted to” a jury, the court concluded that no “case law, court rule, or other precedent supports that argument.” It found Mink distinguishable, noting that there “was no contractual jury trial waiver involved in Mink.” Pro Services and VandeMaele entered the action “on very different footings. VandeMaele was never bound by the contractual jury trial waiver, at least according to Egan. Had Egan only sued VandeMaele, the contractual waiver would have had no effect. But VandeMaele’s presence in the case as a codefendant could not have negated the subcontracts, and his jury demand did not magically erase the jury trial waiver that Pro Services had inserted in the parties’ agreements.” Further, the court rules did not provide any basis for nullifying the contract provision. As to the MBTFA, while Egan made out a prima facie case, Pro Services and VandeMaele presented “evidence that the pipe Egan supplied was defective and not delivered in a timely fashion, thereby rebutting Egan’s MBTFA claim.” Thus, there were factual disputes as to “Pro Services’ responsibility to pay Egan under the terms of their contracts, and reasonable minds could reach opposing conclusions as to whether Pro Services and VandeMaele violated the MBTFA.” The court affirmed the trial court’s judgment as to VandeMaele, reversed its decision to grant Pro Services’ demands for a jury trial, vacated the judgments as to Pro Services, and remanded.