            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



KAREN K. BEER,                                                      UNPUBLISHED
                                                                    May 9, 2019
               Plaintiff-Appellant,

v                                                                   No. 342666
                                                                    Oakland Circuit Court
KROPF CONSTRUCTION CONSULTING, LLC,                                 LC No. 2017-158577-CK

               Defendant/Third-Party Plaintiff-
               Appellee,
and

JASON ZOLDOS and JASON ZOLDOS
ROOFING,

               Third-Party Defendants.


Before: BOONSTRA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        In this breach-of-contract action, plaintiff challenges the trial court’s grant of summary
disposition to defendant/third-party plaintiff Kropf Construction Consulting, LLC. We affirm. 1



                                       I. BACKGROUND

       In 2011, plaintiff entered into a home-construction contract with Kropf Construction.
Section (I)(7) of the contract contained a limited warranty, which provided, in pertinent part:


1
 Plaintiff appeals as of right, however, from the trial court’s stipulated order dismissing without
prejudice Kropf Construction’s third-party complaint against third-party defendants Jason Zoldos
and Jason Zoldos Roofing.



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       At time of closing, Builder to provide to the original Purchaser only, a Limited
       Warranty, to remedy defects in workmanship and materials which appear and of
       which the Builder shall be notified in writing by such Purchaser within the period
       of twelve (12) months from the date of completion of the residence . . . . No other
       warranty of whatsoever kind or nature, either express or implied, shall be given
       by Builder.

Section (I)(12) of the contract stated, “It is mutually understood and agreed that receipt by
Builder of a ‘Certificate of Occupancy’ or ‘Temporary Certificate of Occupancy’ shall constitute
completion of construction.” The limited warranty itself was memorialized in a separate
document, which included a notice provision that provided:

       If a defect appears which you think is covered by this Limited Warranty, you
       must complete the Warranty Claim Form which is attached to this Limited
       Warranty and mail it to us at the address shown on the form. We will not assume
       responsibility for responding to any claim delivered to us more than fourteen (14)
       days after the expiration of the one-year warranty period, even if the defects that
       are claimed may have arisen within the one-year warranty period.

The “warranty period” referenced in the limited warranty began on the date plaintiff received her
“Municipality Final Approval or the day [she could] make reasonable use of the renovated
space.”

         A temporary certificate of occupancy was issued for the residence in February 2013 and a
finalized certificate was issued in March 2014. Sometime in late 2013, plaintiff began to notice a
few shingles falling off of the home’s roof. Plaintiff however, did not notify Kropf Construction
of the issue until September 2015, at which time shingles were consistently falling off the roof.
Then, in May 2017, plaintiff filed a complaint against Kropf Construction claiming that Kropf
Construction breached the home-construction contract by delivering “substandard construction
resulting in many defects,” particularly to the roof. In turn, Kropf Construction filed a third-
party complaint against the roofer, Jason Zoldos and Jason Zoldos Roofing (collectively,
Zoldos), arguing that Zoldos had breached a subcontract with Kropf Construction by defectively
installing the roof.

        During discovery, Kropf Construction moved for summary disposition on plaintiff’s
breach-of-contract claim under MCR 2.116(C)(10), arguing that the home-construction contract
barred plaintiff’s claim because plaintiff failed to provide Kropf Construction with notice of the
alleged defect within one year of the issuance of the certificate of occupancy. The trial court
granted the motion and the parties later stipulated to the dismissal of Kropf Construction’s third-
party complaint against Zoldos without prejudice. This appeal followed.

                                         II. ANALYSIS

       “We review de novo a trial court’s grant or denial of summary disposition.” Tomra of
North America, Inc v Dep’t of Treasury, 325 Mich App 289, 293-294; ___ NW2d ___ (2018).
“A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a
claim, and is appropriately granted when, except as to the amount of damages, there is no

                                                -2-
genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of
law.” Id. at 294.

        On appeal, plaintiff does not argue that the notice provision was ambiguous or that she
provided notice within the notice period. Rather, plaintiff argues that she should be excused
from the failure to provide notice because the notice provision is unreasonable when applied to a
latent defect such as the roofing issue. Additionally, plaintiff argues that summary disposition
was inappropriate because discovery was still ongoing. Plaintiff’s arguments are without merit.

        “A fundamental tenet of our jurisprudence is that unambiguous contracts are not open to
judicial construction and must be enforced as written.” Rory v Continental Ins Co, 473 Mich
457, 468; 703 NW2d 23 (2005), overruling on other grounds recognized in W A Foote Mem
Hosp v Michigan Assigned Claims Plan, 321 Mich App 159, 183-184; 909 NW2d 38 (2017).
While this Court does retain equitable powers to abrogate unambiguous contractual provisions in
certain limited situations, the unreasonableness of a contract is insufficient to invoke this Court’s
equitable jurisdiction. “When a court abrogates unambiguous contractual provisions based on its
own independent assessment of reasonableness, the court undermines the parties’ freedom of
contract.” Id. at 468-469 (internal citation and quotation marks omitted). A party seeking to
avoid an unambiguous contract provision must show that the challenged provision is
unconscionable, not merely unreasonable. Liparoto Constr, Inc v Gen Shale Brick, Inc, 284
Mich App 25, 30; 772 NW2d 801 (2009). Otherwise this Court will enforce the contract as
written. Id.

        Plaintiff makes no argument that the one-year notice provision is unconscionable.
Indeed, the word “unconscionable” appears nowhere in plaintiff’s brief. Thus, plaintiff’s failure
to address the issue under the correct standard is sufficient for us to deny relief. See Oakland Co
v State, 325 Mich App 247, 267;___ NW2d ___ (2018) (“An appellant’s failure to properly
address the merits of his assertion of error constitutes abandonment of the issue.”) (internal
citation and quotation marks omitted); Riemer v Johnson, 311 Mich App 632, 653; 876 NW2d
279 (2015) (“It is not enough for an appellant in his brief simply to 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.”) (internal citation and quotation marks omitted).

        Moreover, even had plaintiff properly presented this issue to us, we would conclude that
the notice provision was not unconscionable. A contractual provision is only unconscionable if
“the weaker party had no realistic alternative to acceptance of the term” (procedural
unconscionability) and the term “is so extreme as to shock the conscience” (substantive
unconscionability). Liparoto Constr, 284 Mich App at 30-31. Here, at a minimum, plaintiff is
unable to show procedural unconscionability because plaintiff cannot show that she had no
choice but to accept the contract term. Put simply, plaintiff was free to look for another
construction company with better terms or to purchase an existing home. Nothing compelled




                                                -3-
plaintiff to sign Kropf Construction’s contract. Therefore, the contract must be enforced as
written. Id. at 30-31.2

        Finally, plaintiff is correct that summary disposition may be premature if discovery is still
open. See Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich
App 264, 292; 769 NW2d 234 (2009). “However, the mere fact that the discovery period
remains open does not automatically mean that the trial court’s decision to grant summary
disposition was untimely or otherwise inappropriate.” Id. Here, plaintiff has not argued that
further discovery would uncover any evidence that would create a genuine issue of material fact.
Accordingly, plaintiff has failed to show that summary disposition was premature.

       Affirmed.



                                                              /s/ Mark T. Boonstra
                                                              /s/ Patrick M. Meter
                                                              /s/ Karen M. Fort Hood




2
  Regarding substantive unconscionability, plaintiff argues that the notice provision was
“unreasonable” because it prevented redress for “latent” defects, such as the roofing issue here.
A latent defect is one that is not discoverable by reasonable inspection. Black’s Law Dictionary
(8th ed). The earliest the notice period could have closed was in February 2014, one year after
the February 2013 temporary-occupancy certificate. Given that plaintiff acknowledges that “a
few shingles” fell of the roof in late 2013, we question whether plaintiff could show that the
roofing issue was a latent one at the close of the notice period. Nevertheless, where, as here, the
plaintiff cannot show procedural unconscionability, we need not address substantive
unconscionability.


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