Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  September 28, 2012                                                                Robert P. Young, Jr.,
                                                                                              Chief Justice

  144319 & (80)                                                                     Michael F. Cavanagh
                                                                                          Marilyn Kelly
                                                                                    Stephen J. Markman
                                                                                    Diane M. Hathaway
                                                                                        Mary Beth Kelly
  FIFTH THIRD MORTGAGE-MI, L.L.C., FIFTH                                                Brian K. Zahra,
  THIRD MORTGAGE COMPANY, and FIFTH                                                                Justices
  THIRD BANK,
            Plaintiffs-Appellees,
  v                                                       SC: 144319
                                                          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 Appeals
  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 judgment
  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.

         MARKMAN, 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, 468
                                                                                                                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 contra 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 resort. 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 Court’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.




                          I, 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.
                          September 28, 2012                  _________________________________________
       p0925                                                                  Clerk
