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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Plaintiffs-Appellees, UNPUBLISHED May 12, 2016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.

P ER C URIAM

. Defendants, Robert and Penny Rin n, appeal as of right the tria l court’s order granting summary disposition to plaintiffs, Melvern Chapman and Sandra G allimore, under MCR 2.116(C)(10). The trial court dete rmined that the Rinns wrongf ully retained ownership of a 1950 pickup truck after the parties’ l and purchase agreement fell th rough and awarded Chapman and Gallimore the $30,075 value of the truck. We reverse and reman d.

I. FACTUAL BACKGROUND

The parties entered into a purchase agreement on December 15, 2013, in which they agreed that the Rinns would sell Chapman and Gallimore a parcel of land in exchange for $101,000 and a 1950 pickup truck:

Buyer agrees to purchase from s eller property located at: Bennington township Shiawassee county . . .

Payment for property is as follows: $101,000.00 one hundred and one thousand 1950 pickup truck . . .

Buyer agrees to complete sale in 30 days. Seller may extend time if needed.

The Rinns picked up the truck, but afterwards, Chapman and Gall imore canceled the purchase agreement. The parties dispute the reason why Chapman and Gall imore canceled the contract, which revolves around whether th e property exists on a flood pl ain. Chapman and Gallimore-2- filed suit, claiming that the Rinns had breached the purchase a greement and wrongfully retained the truck. The Rinns answered that Chapman and Gallimore, not the Rinns, breached the purchase agreement, the truck was a down payment on the propert y that they should not have to return and, in the alternative, they did not intend to retain t he truck, but requested compensation for moving it, storing it, a nd changing its title.

Chapman and Gallimore moved for summary disposition under MCR 2.116(C)(10), asserting that the only material factual dispute was the value of the truck. The Rinns responded that questions of fact included whether the truck was intended as a down payment, whether Chapman and Gallimore breached the purchase agreement, and whet her they should be compensated for storing and maintaining the truck. The trial c ourt granted Chapman and Gallimore’s motion for summary disposition, determining that be cause it was undisputed that Chapman and Gallimore had backed out of the contract and the Ri nns retained the truck, there were no genuine issues of material fact regarding any issue but damages.

At the hearing on damages, Tom VanBlaricom testified that he a ppraised the truck on December 17, 2014, and determined that it was worth $31,500. R obert Rinn testified that he had spent $4,373.75 moving, storing, an d acquiring title for the tr uck, and he did not want to keep it. He also stated that he had been to many classic car shows and t hought the truck was worth $8,000 to $9,000. Chapman and Gallimore also stated that they did not want the truck back, but rather wanted its fair market value as damages. The trial cour t awarded Chapman and Gallimore the truck’s appraised value.

II. STANDARD OF REVIEW

This Court reviews de novo the trial court’s decision on a moti on for summary disposition. Gorman v American Honda Motor Co, Inc , 302 Mich App 113, 115; 839 NW2d 223 (2013). A party is entitled to summary disposition under MCR 2 .116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must consider all the documentary evi dence in the light most favorable to the nonmoving party. MCR 2.116(G)(5). A genuine issue of m aterial fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Gorman , 302 Mich App at 116.

III. ANALYSIS

The Rinns contend that the trial court erred by granting summa ry disposition to Chapman and Gallimore when genuine questions of material fact existed r egarding whether they wrongfully retained the truck. We agree that the trial court i mproperly granted summary disposition. However, we note th at the Rinns’ contention regar ding venue is without merit. 1

1 An objection to venue is waived if a party fails to raise it i n a timely manner. MCR 2.221(C). “A motion for change of venue mus t be filed before or at the ti me the defendant files an answer.” MCR 2.221(A). In this case, the Rinns failed to raise whether venue was proper in Shiawassee-3- “A party asserting a breach of contract must establish by a pr eponderance of the evidence that (1) there was a contract (2) which the other party breache d (3) thereby resulting in damages to the party claiming breach.” Miller-Davis Co v Ahrens Constr, Inc , 495 Mich 161, 178; 848 NW2d 95 (2014). Thus, an essential element of a breach of cont ract claim is that the other party breached the contract. In this case, the parties disputed whic h of them breached the contract— Chapman and Gallimore asserted that the Rinns breached the cont ract by failing to disclose material facts about the property, and the R inns asserted that Chapman and Gallimore breached it by wrongfully refusing to purchas e the property. The parties’ motions presented opposing evidence on whether the property was located in a flood plain. Viewing the evidence in the light most favorable to the Rinns, reasonable minds could differ rega rding which party breached the
contract.

Additionally, the parties disputed whether the contract provid ed that the truck was a down payment. While the trial court could have determined this as a matter of law, see AFSCME v Detroit , 267 Mich App 255, 261-262; 704 NW 2d 712 (2005), at no point i n its brief decision did the trial court dete rmine the parties’ intent from the contractual language and analyze or explain whether the p arties’ contract contemplated t he truck as a down payment.

Accordingly, we conclude that a genuine issue of material fact on the second element of a breach of contract precluded the t rial court from granting summ ary disposition.

Even had the trial court properl y granted summary disposition, its remedy was improper. The trial court stated its intent to return the parties to thei r status quo, which implicates the equitable doctrine of rescission. A party to a purchase agreem ent may rescind the agreement in cases of misrepresentation by refusing to close on the property

. Samuel D Begola Servs, Inc v Wild Bros , 210 Mich App 636, 640; 534 NW2d 217 (1995).

Rescission necessarily involves a repudiation of the contract a nd a refusal of the moving party to be further bound by it. But this by itself wou ld constitute no more than a breach of the contract or a refusal of performance, while the idea of rescission involves the additional and distinguishing element o f a restoration of the status quo. [ Lash v Allstate Ins Co , 210 Mich App 98, 102; 532 NW2d 869 (1995) (quotation marks and citation omitted).]

Rescission of a contract is warranted where there is “a materia l breach affecting a substantial or essential part of the contract.” Omnicom of Mich v Giannetti Inv Co , 221 Mich App 341, 348; 561 NW2d 138 (1997). The trial court should consider a variety of factors before granting rescission, including (1) whether damages adequately compensate the injured party, (2) the comparative hardship in terminating the contract, (3) the willf ulness of the breaching party’s conduct, and (4) uncertainty regarding whether a party will per form the remainder of a contact. Id

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County until their response to Chapman and Gallimore’s motion f or summary disposition. The trial court properly determine d that the Rinns had waived any c hallenge to venue.-4- In this case, the trial court gave no reason for imposing resc ission rather than general contractual damages. The only testimony at the hearing regarde d the value of the truck, leaving the trial court’s decision to rescind the contract unsupported. Additionally, a proper rescission
restores both parties to their precontractual positions—that is, a rescissio n would return the truck to Chapman and Gallimore, while t he real property remained with the Rinns. To require the Rinns to essentially purchase the truck from Chapman and Gallim ore at fair market value as a result of breaching a purchase agreement would be a highly unus ual remedy, and the trial court must provide a legal justificat ion for this remedy on remand if it intends to impose it.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. As the prevailing party, the Rinns may ta x costs. MCR 7.219(A).

/s/ Joel P. Hoekstra /s/ Peter D. O’Connell