Withdrawal from a condo purchase agreement; MCL 559.184(2); “Purchase agreement” (MCL 559.109(5)); Summary disposition under MCR 2.116(C)(7)

The court held that the trial court could not grant defendant summary disposition under MCR 2.116(C)(7) to enforce a condo purchase agreement’s mediation provision “without first addressing plaintiff’s allegation that the purchase agreement was unenforceable.” Thus, it vacated the trial court’s order and remanded. After plaintiff informed defendant’s agent that she did not wish to go through with the purchase, an attorney for defendant informed her that she would be in default and would owe defendant liquidated damages. Plaintiff sued, seeking a declaratory judgment. The trial court granted defendant summary disposition because plaintiff filed suit without first complying with the agreement’s provision requiring nonbinding mediation. At the hearing on the parties’ summary disposition motions, “the trial court said that ‘even accepting all of the well pled allegations in the complaint as true and construing them in plaintiff’s favor, it is clear at this stage of the case that the agreement is valid and binding.’ But plaintiff’s complaint alleged that she ‘timely withdrew from the agreement as allowed by law,’ relying on MCL 559.184(2).” The court noted that statute, if it applied, provided “a right of withdrawal. The trial court therefore erred—if all of the allegations in plaintiff’s complaint are true, the agreement, including its commitment to mediate before going to court, was not valid and binding.” The court did not express any opinion on whether the statute applied or plaintiff met its requirements. It also vacated the trial court’s other rulings. While the trial court denied plaintiff’s summary disposition motion on the basis “the mediation provision barred the action . . . [it] could not enforce that provision without first addressing [her] challenge to the purchase agreement’s enforceability. And because the award of attorney fees was predicated on defendant’s motion being meritorious, that award likewise cannot stand.”