Omega Const. Co., Inc. v. Altman

• Decision Date: 21 March 1986
• Docket Number: Docket No. 82564
• Citation: 382 N.W.2d 839,147 Mich.App. 649
• Parties: OMEGA CONSTRUCTION COMPANY, INC., a Michigan corporation, Plaintiff, Counter-Defendant Appellant, v. Joel L. ALTMAN and Altman Development Company, a Michigan corporation, Defendants-Appellees, and Lakepointe of Jacaranda, Ltd., a Florida limited partnership, and the Arbor Club At Boca Raton, Ltd., a Florida limited partnership, Defendants, Counter-Plaintiffs, Appellees. 147 Mich.App. 649, 382 N.W.2d 839
• Court: Court of Appeal of Michigan — District of US

Page 839

382 N.W.2d 839

OMEGA CONSTRUCTION COMPANY, INC., a Michigan corporation, Plaintiff, Counter-Defendant Appellant, v. Joel L. ALTMAN and Altman Development Company, a Michigan

corporation, Defendants-Appellees,

and

Lakepointe of Jacaranda, Ltd., a Florida limited

partnership, and the Arbor Club At Boca Raton,

Ltd., a Florida limited partnership,

Defendants,

Counter-Plaintiffs,

Appellees.

Docket No. 82564.

147 Mich.App. 649, 382 N.W.2d 839

Court of Appeals of Michigan.

Submitted Oct. 8, 1985.

Decided Dec. 16, 1985.

Released for Publication March 21, 1986.

[147 MICHAPP 651] Tolley, Fisher & Verwys, P.C. by Mark H. Verwys and Paul L. Nelson, Grand Rapids, for plaintiff, counter-defendant appellant.

Loomis, Ewert, Ederer, Parsley, Davis & Gotting by Jack C. Davis, Jeffrey W. Bracken and Terry A. Dake, Lansing, for defendants.

Before J.H. GILLIS, P.J., and CYNAR and EVANS, ^* JJ.

CYNAR, Judge.

On October 2, 1984, the plaintiff, Omega Construction Company, Inc., filed a complaint in Ingham County Circuit Court. The first count of the complaint sought a declaratory judgment, finding that disputes arising out of the construction contracts with defendants were subject to arbitration. The second and third counts sought, as an alternative to the first count, damages for breach of contract and contract-related torts. On November 9, 1984, the defendants filed a motion for summary judgment pursuant to GCR 1963, 117.2(3) [now MCR 2.116(C)(10) ]. On January 10, 1985, Ingham County Circuit Court Judge Thomas L. Brown granted the defendants' motion for summary judgment on Count I, holding that the defendants had not waived in the contract documents their right to judicial process and trial and the parties are stayed from arbitration in Michigan. The parties voluntarily dismissed the other two counts; and on January 23, 1985, Judge Brown filed his final order. The plaintiff now appeals as of right.

[147 MICHAPP 652] The only issue raised on appeal is whether the trial court properly granted summary judgment to the defendants on Count I of the complaint. The trial court granted defendants summary judgment based on GCR 1963, 117.2(3), finding that there was no material issue of fact and that defendants were therefore entitled to summary judgment as a matter of law.

The standard for granting motions for summary judgment brought under subrule 117.2(3) is well settled. In determining whether such motions should be granted, reference must be made to any evidence in the case, including depositions, affidavits, admissions and pleadings. Once these documents are reviewed, the court must ascertain whether there is a dispute as to any material fact. Anderson v. Kemper Ins. Co., 128 Mich.App. 249, 340 N.W.2d 87 (1983). The court should give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a question as to a material fact. Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). The Court must be satisfied that no factual development is possible which would support the nonmoving party's claim. Royal Globe Ins. Co. v. Great American Ins. Corp., 118 Mich.App. 735, 325 N.W.2d 556 (1982).

The relevant evidence in this case consists primarily of the contract documents.

On November 29, 1983, Omega entered into a contract with defendants, Joel Altman, as president of Altman Development Company, and the Arbor Club. The contract stated that it was "being signed based on plans and drawings prepared by the architect". The contract further stated:

"Seciton [sic ] 1.03. Master Drawings and Specifications A master set of the aforesaid Drawings and Specifications, initialled by the parties hereto and by the [147 MICHAPP 653] Development's Architect, and the contractor's Surety or Guarantor will be placed on file with the Architect, and such master set hereof shall govern in all matters which arise with respect to such Drawings and Specifications."

Similarly, the construction contract between Omega and Altman, on behalf of defendant Lakepointe, provided that it was "being signed based on preliminary plans and drawings prepared by the Architect". The contract between Omega and Lakepointe further stated:

"Section 1.01, Contract Documents. * * * At such time as the final working drawings and specifications are arrived at, they shall be considered part of the Contract Documents for purposes of this Agreement, and shall be initialled by all the parties to this agreement, and the Architect, at the closing of the Mortgage being entered into to finance the construction of the above-referenced Development.

* * *

"Section 1.03. Master Drawings and Specifications. A master set of the aforesaid Drawings and Specifications, initialled by the parties hereto and by the Development's Architect, and the Contractor's Surety or Guarantor will be placed on file with the Architect, and such master set, as amended from time to time pursuant to Section 1.05 hereof shall govern in all matters which arise with respect to such Drawings and Specifications."

On appeal, the defendants admit that these provisions incorporate the architect's specifications and plans into the parties' contracts.

The architect's specifications and plans were contained in the "Project Manual" which was drafted by the architect, rather than by any of the parties to this appeal.

The title page of the project manual was signed by the parties. The parties agree that the project manual, Sec. 00700, states:

[147 MICHAPP 654] "August 1976 Thirteenth Edition of 'General Conditions of Contract for Construction' A.I.A. Document A201, as published by American Institute of Architects, is hereby made a part of these specifications."

Article 7, Miscellaneous Provisions, of AIA Document A201 provided for arbitration of disputes:

"7.9.1 All claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof, except as provided in Subparagraph 2.2.11 with respect to the Architect's decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.9.4 and 9.9.5, shall be decided by arbitration in accordance with the Construction...