             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


 ARTHUR KRUMM, by his Guardian LORI                                      UNPUBLISHED
 CALDERON,                                                               February 25, 2020

                 Plaintiff-Appellant,

 v                                                                       No. 346636
                                                                         Wayne Circuit Court
 AUTO-OWNERS INSURANCE COMPANY,                                          LC No. 16-000387-NF

                 Defendant-Appellee.


Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

        Plaintiff appeals as of right following entry of a consent judgment the trial court’s order
granting partial summary disposition in favor of defendant regarding the scope of release related
to claims by plaintiff for no-fault benefits and the trial court’s refusal to setting aside the no-fault
release under MCR 2.612(C)(1). We affirm.

                                         I. BACKGROUND

        This is the second lawsuit between the parties. Plaintiff’s first lawsuit for no-fault benefits
related to his automobile accident resulted in a settlement and dismissal. In relation to the
settlement, the parties executed two releases: a no-fault release and an attendant care release. The
no-fault release entitled “Release of No-Fault Claim” stated, in pertinent part:

              WHEREAS, the parties hereto desire to amicably resolve all disputes
       concerning any benefits or claims under the policy for any losses whatsoever.

                                               * * *

            NOW, THEREFORE, in consideration of the payment of TWO
       HUNDRED AND TEN THOUSAND ($210,000.00) DOLLARS to LORI
       CALDERON, A/G/O ARTHUR KRUMM, in hand paid by AUTO-OWNERS
       INSURANCE COMPANY (hereinafter referred to as payer), I, LORI
       CALDERON, A/G/O ARTHUR KRUMM, do hereby release and forever


                                                  -1-
        discharge payer from any and all liability under the aforesaid automobile insurance
        policy for all past and present no-fault benefits up through and including October
        16, 2015, as a result of injuries sustained in the aforesaid automobile accident of
        May 17, 2003.

The attendant care release entitled “Release and Waiver of Past Attendant Care Provider Claim”
stated, in pertinent part:

               In my role as Arthur Krumm’s guardian, I am aware of and have consented
        to a settlement of Arthur Krumm’s PIP claim with Auto Owners Insurance
        Company through the date of October 17, 2015 of all payable benefits for the sum
        of $210,000.

                 I understand that this $210,000 settlement is intended to include payment of
        all attendant care services provided to Arthur Krumm through October 17, 2015.

        Plaintiff sued defendant in this case for breach of contract for failure to pay medical
benefits allegedly due to plaintiff under the no-fault act, MCL 500.3101 et seq. Defendant moved
for partial summary disposition, under MCR 2.116(C)(7) and (10), on the ground that the no-fault
release barred plaintiff from seeking payment of the outstanding medical bills. Plaintiff responded
by arguing that the releases contained ambiguous terms and that the trial court should consider
extrinsic evidence to establish that the parties intended the no-fault release to only cover plaintiff’s
attendant care services, not all no-fault benefits. Plaintiff also argued that the trial court should set
aside the no-fault release under MCR 2.612(C)(1). The trial court found the releases unambiguous
and granted defendant partial summary disposition.

                                   II. STANDARD OF REVIEW

        We review de novo a trial court’s summary disposition decision. Rory v Continental Ins
Co, 473 Mich 457, 464; 703 NW2d 23 (2005). Defendant moved for partial summary disposition
under MCR 2.116(C)(7). “MCR 2.116(C)(7) permits summary disposition because of release,
payment, prior judgment, [or] immunity granted by law.” Clay v Doe, 311 Mich App 359, 362;
876 NW2d 248 (2015) (quotation marks and citation omitted; alteration in original). “When it
grants a motion under MCR 2.116(C)(7), a trial court should examine all documentary evidence
submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence and
pleadings in the light most favorable to the nonmoving party.” McLain v Lansing Fire Dep’t, 309
Mich App 335, 340; 869 NW2d 645 (2015).

         Defendant also moved for partial summary disposition under MCR 2.116(C)(10). “A
motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v
Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). When considering a motion under MCR
2.116(C)(10), courts must consider the affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties in the light most favorable to the nonmoving party. Joseph v
Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). Summary disposition under
MCR 2.116(C)(10) is proper if no genuine issue regarding any material fact exists and the movant
is entitled to judgment as a matter of law. Bazzi v Sentinel Ins Co, 502 Mich 390, 398; 919 NW2d
20 (2018). A genuine issue of material fact exists “when reasonable minds could differ on an issue

                                                  -2-
after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW
Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). We review de novo a trial court’s
interpretation of a release which is a question of law. Radu v Herndon & Herndon Investigations,
Inc, 302 Mich App 363, 374; 838 NW2d 720 (2013).

                                           III. ANALYSIS

                           A. INTERPRETATION OF THE RELEASES

       Plaintiff first argues that the trial court erred by ruling that the releases were unambiguous,
and therefore, declined to consider extrinsic evidence to establish the parties’ intent. We disagree.

        Contract law applies to disputes regarding the terms of a release. Shay v Aldrich, 487 Mich
648, 660; 790 NW2d 629 (2010). “The cardinal rule in the interpretation of contracts is to ascertain
the intention of the parties.” Fromm v MEEMIC Ins Co, 264 Mich App 302, 305; 690 NW2d 528
(2004) (quotation marks and citation omitted). “The scope of a release is governed by the intent
of the parties as it is expressed in the release.” Adell v Sommers, Schwartz, Silver and Schwartz,
PC, 170 Mich App 196, 201; 428 NW2d 26 (1988).

        If the text in the release is unambiguous, we must ascertain the parties’ intentions
        from the plain, ordinary meaning of the language of the release. The fact that the
        parties dispute the meaning of a release does not, in itself, establish an ambiguity.
        A contract is ambiguous only if its language is reasonably susceptible to more than
        one interpretation. If the terms of the release are unambiguous, contradictory
        inferences become “subjective, and irrelevant,” and the legal effect of the language
        is a question of law to be resolved summarily. [Gortney v Norfolk & Western R
        Co, 216 Mich App 535, 540-541; 549 NW2d 612 (1996) (citations omitted).]

        In this case, the record reflects that the parties settled their dispute and entered two releases.
The first release provided for plaintiff’s full release and discharge of defendant from all liability
under the subject insurance policy for all no-fault benefits up through and including October 16,
2015, in return for defendant’s payment of the settlement amount. We find no ambiguity in the
language of this release. The terms of the second release specify plainly that the parties intended
that the $210,000 settlement included payment of all attendant care services provided to plaintiff
through October 17, 2015, and payment of that sum constituted payment of all payable benefits.
We find no ambiguity in the language of this release. Although the no-fault release and the
attendant care release specify two different dates, the two documents are not rendered ambiguous
regarding the parties’ intent for the subject of the releases or their scope. The date differences do
not signify that the subject of the releases limited the settlement only for attendant care services
and not all no-fault benefits. The parties plainly agreed to resolve all disputed claims and plaintiff
agreed to release and discharge defendant from all liability for such claims. The trial court did not
err by finding that the releases lacked ambiguity.

       “The parol evidence rule may be summarized as follows: ‘[p]arol evidence of contract
negotiations, or of prior or contemporaneous agreements that contradict or vary the written
contract, is not admissible to vary the terms of a contract which is clear and unambiguous.’ ”
UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 492; 579 NW2d 411

                                                   -3-
(1998), quoting Schmude Oil Co v Omar Operating Co, 184 Mich App 574, 580; 458 NW2d 659
(1990). The plain language of the no-fault release expressly states that the subject of the release
covered all no-fault benefits and claims for benefits. Because the language of the releases lacked
ambiguity, the trial court correctly declined to consider parol evidence. Id.

        Plaintiff argues further that the no-fault release is ambiguous because it contains
contradictory terms by stating that it relates to “any losses” without a temporal limit and then later
specified a temporal limitation. We disagree because the first term is merely a recital, a
preliminary statement in the contract that explained the reasons the party entered into the
transaction. Recitals are either particular or general. Acme Cut Stone Co v New Ctr Dev Corp,
281 Mich 32, 47; 274 NW 700 (1937). “Particular recitals involving a statement of fact are, as a
rule, to be treated as conclusive evidence of the facts stated; while general recitals may not be.”
Id. (quotation marks and citation omitted). “[W]here a contract contains specific and general
terms, the specific terms normally control over the general terms.” Village of Edmore v Crystal
Automation Sys Inc, 322 Mich App 244, 263; 911 NW2d 241 (2017).

         The recital in the no-fault release stated a general recital of the parties’ intent to resolve
“all disputes concerning any benefits or claims under the policy for any losses whatsoever.” The
second, more specific term established the parties’ intent to settle all of plaintiff’s claims for no-
fault benefits incurred through October 16, 2015. That specific term controlled over the general
first term and did not create an ambiguity as contended by plaintiff. Accordingly, the trial court
correctly ruled that plaintiff could not introduce extrinsic evidence to vary the release’s plain
language concerning the release.

         Plaintiff similarly argues that the attendant care release contains an ambiguity because one
sentence states that the release covers all payable no-fault benefits while another sentence specifies
attendant care services. We disagree because the first sentence provides that plaintiff’s guardian
acknowledged her consent to the settlement of all claims for no-fault benefits and the second
sentence plainly specifies that the payment of the settlement amount included defendant’s payment
of all attendant care services up to the specified date. These sentences do not contradict each other
and no ambiguity exists regarding their meanings. Accordingly, the trial court did not err in this
regard.

       Plaintiff next argues that the two releases, when read together, create an ambiguity
regarding the subject matter of the releases, as well as the temporal limitation of the releases. We
disagree.

        The no-fault release concerns all no-fault benefits and the attendant care release focused
more specifically on attendant care services and acknowledged the settlement’s resolution of all
disputes regarding plaintiff’s claims for no-fault benefits. The two releases, when read together,
harmoniously cover all such claims. The word “all” encompassed attendant care services. See
Cole v Ladbroke Racing Mich, Inc, 241 Mich App 1, 14; 614 NW2d 169 (2000) (stating that “there
is no broader classification than the word ‘all.’ ”) (citation omitted). Thus, there is no contradiction
concerning the subject of the two releases.




                                                  -4-
                        B. SETTING ASIDE THE NO-FAULT RELEASE

     Plaintiff argues that the trial court erred by refusing to set aside the no-fault release under
MCR 2.612(C)(1). We disagree.

        “The proper interpretation and application of a court rule is a question of law, which we
review de novo.” Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009). “A trial
court’s decision on a motion for relief from judgment is reviewed for an abuse of discretion.” Yee
v Shiawasse Co Bd of Comm’rs, 251 Mich App 379, 404; 651 NW2d 756 (2002). An abuse of
discretion occurs when a trial court’s decision falls outside the range of reasonable and principled
outcomes. CD Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich App 389, 422; 834 NW2d 878
(2013).

       “Well-settled policy considerations favoring finality of judgments circumscribe relief
under MCR 2.612(C)(1).” Rose v Rose, 289 Mich App 45, 58; 795 NW2d 611 (2010). Plaintiff’s
arguments only relate to MCR 2.612(C)(1)(a), (b), (c), and (f), which provides as follows:

              On motion and on just terms, the court may relieve a party or the legal
       representative of a party from a final judgment, order, or proceeding on the
       following grounds:

       (a) Mistake, inadvertence, surprise, or excusable neglect.

       (b) Newly discovered evidence which by due diligence could not have been
       discovered in time to move for a new trial under MCR 2.611(B).

       (c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an
       adverse party.

                                               * * *

       (f) Any other reason justifying relief from the operation of the judgment.

“A motion for relief from judgment under subrules (a), (b), or (c) must be made within one year
after the judgment.” Rose, 289 Mich App at 52, citing MCR 2.612(C)(2).

        As an initial matter, plaintiff’s request to set aside the no-fault release under MCR
2.612(C)(1) was not properly before the trial court because plaintiff did not file a motion for relief
from judgment. See MCR 2.612(C)(1) (“On motion and on just terms . . . .”). Plaintiff merely
argued that the trial court should set aside the no-fault release as part of plaintiff’s response to
defendant’s motion for summary disposition. Even if plaintiff’s request to set aside the no-fault
release did not need to be brought by motion, plaintiff failed to seek relief within one year of the
judgment as required under MCR 2.612(C)(2) respecting relief based on subparts (C)(1)(a), (b), or
(c). The parties executed the no-fault release on November 12, 2015, and the trial court dismissed
plaintiff’s first lawsuit on November 18, 2015. Plaintiff first claimed that he was entitled to relief
from judgment in plaintiff’s response to defendant’s motion for partial summary disposition on
January 3, 2017, more than one year after the first case’s dismissal. Therefore, plaintiff failed to


                                                 -5-
timely seek relief from judgment under MCR 2.612(C)(1)(a), (b), and (c). MCR 2.612(C)(2);
Altman v Nelson, 197 Mich App 467, 477-478; 495 NW2d 826 (1992).

        Defendant argues that plaintiff cannot seek relief from the no-fault release because plaintiff
has not tendered back the $210,000 settlement amount. We agree.

         “A plaintiff may challenge a release on the basis of fraud, but not until he has tendered the
consideration he received in exchange for the release.” Collucci v Eklund, 240 Mich App 654,
659; 613 NW2d 402 (2000). Plaintiff has not tendered back the settlement amount before, or at
the time of, the filing in the complaint. “Consequently, the release effectively bars plaintiff’s
claims unless he can demonstrate that one of the exceptions to the tender-back requirement
applies.” Id. “The only recognized exceptions in Michigan [to the tender-back requirement] are
a waiver of the plaintiff’s duty by the defendant and fraud in the execution.” Stefanac v Cranbrook
Ed Community (After Remand), 435 Mich 155, 165; 458 NW2d 56 (1990). Defendant did not
waive plaintiff’s duty to tender back the settlement amount because defendant raised the release
as an affirmative defense. Collucci, 240 Mich App at 660. Although plaintiff has raised fraudulent
misrepresentation as a defense to the no-fault release, plaintiff asserts fraud in the inducement, not
fraud in the execution. See Stefanac, 435 Mich at 165-166 (discussing the difference between
fraud in the inducement and fraud in the execution). Because plaintiff failed to tender back the
settlement amount, and the two exceptions to the tender-back requirement are not present, the no-
fault release precludes plaintiff’s claim. Collucci, 240 Mich App at 658-661.

       Finally, plaintiff argues that the no-fault release must be set aside under MCR
2.612(C)(1)(f). We disagree.

                In order for relief to be granted under MCR 2.612(C)(1)(f), the following
        three requirements must be fulfilled: (1) the reason for setting aside the judgment
        must not fall under subsections a through e, (2) the substantial rights of the opposing
        party must not be detrimentally affected if the judgment is set aside, and (3)
        extraordinary circumstances must exist that mandate setting aside the judgment in
        order to achieve justice. Generally, relief is granted under subsection f only when
        the judgment was obtained by the improper conduct of the party in whose favor it
        was rendered. [Heugel v Heugel, 237 Mich App 471, 478-479; 603 NW2d 121
        (1999) (citations omitted).]

        Here, the first factor is satisfied because plaintiff is not entitled to relief from judgment on
the basis of MCR 2.612(C)(1)(a) through (e). Plaintiff, however, cannot establish the second
requirement because defendant’s substantial rights would be detrimentally affected if the no-fault
release is set aside. The parties negotiated and voluntarily settled their dispute and memorialized
provisions of that settlement in the releases executed by plaintiff’s guardian on his behalf.
Defendant paid the required consideration for the settlement and releases. Plaintiff also cannot
establish the third requirement because no extraordinary circumstances exist justifying setting
aside the no-fault release to achieve justice. Defendant negotiated the release with plaintiff, and
in exchange for plaintiff releasing defendant from all liability for all no-fault benefits, paid plaintiff
$210,000. The record reflects that plaintiff had representation by counsel during the settlement
negotiations. Further, plaintiff’s guardian acknowledged in each release that she read each and
understood the terms. The no-fault release plainly states the terms of and conditions of the parties’

                                                   -6-
settlement. The record does not indicate any extraordinary circumstance that would justify setting
aside the no-fault release. Accordingly, the trial court did not abuse its discretion when it decline
to set aside the no-fault release.

       Affirmed.

                                                              /s/ James Robert Redford
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto




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