Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr.

, Chief Justice

Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markm an Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra

, Justices 

# Order

September 28, 2012

144319 & (80)

FIFTH THIRD MORTGAGE

- MI, L.L.C., FIFTH
THIRD MORTGAGE COMPANY, and FIFTH

THIRD BANK,

Plaintiffs

- Appellees,

v SC: 14 4319

COA: 294698

Oakland CC: 05

- 070592

- CZ

ROBERT M. HANCE, STEPHANIE HANCE,

EXECUTIVE ESTATE BUILDERS, L.L.C., and

ROCKRIDGE HOLDINGS, INC.

Defendants,

and

FIRST AMERICAN TITLE INSURANCE

COMPANY,

Defendant

- Appellant.

_________________________________________/

On order of the Court, the motion to seal the record is GRANTED. The Court

finds that there is good cause to seal the record, consistent with the Oakland Circuit

Court’s September 27, 2006 protective order and the April 12, 2010 Court of Appea ls

order sealing the briefs and exhibits. There is no less restrictive means to adequately and

effectively protect the specific interests asserted. See MCR 7.313(A), (D) and

MCR 8.119(F)(1). The application for leave to appeal the September 29, 2011 jud gment

of the Court of Appeals is considered, and it is DENIED, because we are not persuaded

that the questions presented should be reviewed by this Court.

M ARKMAN , J. ( concurring ).

I join in this Court’s order denying leave to appeal, but write separately to address

the Court of Appeals majority’s departure from the principles of resolving allegedly

ambiguous contract provisions established in Klapp v United Ins Group Agency, Inc , 46 8I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

_________________________________________ Clerk September 28, 2012

p0925 2

Mich 459 (2003). As this Court clarified in Klapp , “‘“[t]he law is clear that where the

language of the contract is ambiguous, the court can look to such extrinsic evidence as

the parties’ conduct, the statements of its representatives, and past practice to aid in

interpretation.”’” Id. at 470, quoting Penzien v Dielectric Prod Engineering Co, Inc , 374

Mich 444, 449 (1965). Only if ambiguity persists even after all other conventional means

of contract interpretation have been applied, and all relevant extrinsic evidence

considered, should the rule of co ntra proferentem (ambiguous contracts to be construed

against the drafting party) be applied, as it was in this case. Klapp , 468 Mich at 474.

Contrary to the analysis of the Court of Appeals majority, the rule of contra proferentem

is a rule of last reso rt. The primary goal of contract interpretation is to honor the parties’

intent, and the rule of contra proferentem does not further that goal; rather, it merely

ascertains “the winner and the loser in connection with a contract whose meaning has

eluded [the decision

- maker] despite all efforts to apply conventional rules of

interpretation.” Id. at 474. That is, it is essentially a tiebreaker. However, a tie cannot be

declared without first considering relevant extrinsic evidence. I concur with this Co urt’s

order because, although I believe that reasonable interpretations of the contract in dispute

have been offered by both sides, in the end, I agree with the result reached by the Court

of Appeals without finding the contract here to be ambiguous.