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### STATE OF MICHIGAN

COURT OF APPEALS

MELVERN CHAPMAN and SANDRA GALLIMORE,

Plaintiffs-Appellees, UNPUBLISHED May 12, 2016

v No. 326283
Clinton Circuit Court ROBERT RINN and PENNY RINN, LC No. 14-011331-CH

Defendants-Appellants.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

M URRAY

, J. ( concurring in part, dissenting in part ).

As explained briefly below, I dissent from the majority’s deci sion concluding that there was a genuine issue of material fact whether there was a breach of contract, but concur with the
decision to reverse the trial cour t’s order as to the appropria te remedy. Before turning to the merits, however, a few comments are necessary regarding defenda nts’ position that plaintiffs’ appellate brief was wo efully inadequate.

As defendants accurately point out, plaintiffs have not set fo rth any court rule, statute or case law addressing any of the three substantive issues raised. 1 In many cases such a deficient brief could result in the court considering each argument aband oned, see Mitcham v City of

Detroit , 355 Mich 182, 203; 94 NW2d 388 (1959), as a party cannot “sim ply . . . announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Wilson v Taylor , 457 Mich 232, 243; 577 NW2d 100 (1998), quoting Mitcham , 355 Mich at 203. But, because this is a discretionary doctri ne, it is not always applied whenever a brief is deficient. And, as everyone seems to recognize, th is is a fairly straightforward case invol ving a written contract of les s than a half page and the proper remedy to apply when the parties failed to conclude it, so herc ulean efforts are not necessary to decide the case despite the def icient brief. Counsel would be well-advised to submit briefs in the

1 In fact, plaintiffs’ appellate brief contains citations to onl y two cases, and those relate to the standard of review. But, even those cases are erroneously cite d, as they are Supreme Court decisions cited as if they are contained in the Michigan Appeal s Report.-2- future that contain the control ling law and citations to the re cord as required by court rule, see MCR 7.212(C)(6)&(7).

As to the merits, at the time the trial court decided the moti on for summary disposition,

see Peña v Ingham Co Rd Comm , 255 Mich App 299, 310; 660 NW2d 351 (2003), neither party was seeking to enforce the purchase agreement. The only disput e was whether—as defendant argued in pro per in the trial c ourt—the truck given by plainti ffs to defendant was a down payment that was returnable upon the agreement falling apart, t hus allowing defendant to keep it, or if was not, whether defendant s had to return it with their c osts being reimbursed. The only evidence on that issue was the contract itself, and it says not hing about the truck being a down payment or earnest money deposit of some sort. It was simply l isted as one of the two forms of consideration for the plaintiffs ’ purchase of the land. Based on the language of the contract alone, Calhoun Co v Blue Cross Blue Shield Mich , 297 Mich App 1, 13-14; 824 NW2d 202 (2012), there was no genuine issue whether the truck was a depo sit or down payment which defendants were entitled to retain. However, I would reverse o n the remedy issue for the reasons stated in the majority opinion.

/s/ Christopher M. Murray