Breach of contract & warranty claims; Doctrine of substantial performance; Unjust enrichment claim where there is an express contract; Michigan Department of Transportation (MDOT); Dan’s Excavating, Inc (DEI)

The court held that plaintiff-DEI’s failure to “reject the appeal recommendation within five business days” constituted an acceptance of the “recommendation, which operates as a release of liability for” defendant-MDOT under their contract. Thus, the Court of Claims did not err in dismissing plaintiffs’ breach of contract and breach of warranty claims under MCR 2.116(C)(7). The Court of Claims also correctly ruled “that plaintiffs were precluded from asserting unjust enrichment arising from the same subject matter governed by the express contract between DEI and MDOT.” Plaintiffs contended the Court of Claims erred in granting defendants summary disposition of their breach of contract and breach of warranty claims. The parties did “not dispute that the contract relationship between DEI and MDOT was governed by an express contract, which provided for a dispute resolution procedure.” They also did “not dispute that the dispute resolution procedure required DEI to either accept or reject the” Dispute Resolution Board’s (the Board) “appeal hearing recommendation within five business days, and that failure to do so constituted acceptance of the recommendation.” Further, the parties did “not dispute that DEI failed timely to reject the Board’s appeal hearing recommendation.” However, plaintiffs raised “equitable arguments to refute defendants’ assertion that DEI, by failing timely to reject the recommendation of the Board, released defendants from liability. Plaintiffs argue that the contract notice provision is contrary to notions of reasonableness and fair play, that they substantially performed under the contract because they provided actual notice of their claim to defendants in other ways, and that they had a legitimate basis for failing to timely respond to the recommendation.” As to the substantial performance argument, the court held that the “Court of Claims correctly concluded that the doctrine of substantial performance does not apply to express contract terms.” The parties did “not dispute that the parties’ obligation to respond to the appeal hearing recommendation of the Board within five days was an express term of the parties’ contract. As” a result, the Court of Claims was correct that plaintiffs could not “successfully argue that their obligation to comply with that express provision was met by substantial compliance.” The court also found that “the Court of Appeals correctly held that plaintiffs did not demonstrate that the notice provision of the contract had become objectively impossible to perform.” Affirmed.