                          STATE OF MICHIGAN

                           COURT OF APPEALS



LAKE BLUFF MOTEL, INC.,                                             UNPUBLISHED
                                                                    November 19, 2015
               Plaintiff-Appellee,

v                                                                   No. 323766
                                                                    Van Buren Circuit Court
SOUTH HAVEN CHARTER TOWNSHIP,                                       LC No. 13-630788-CZ


               Defendant-Appellant,


Before: TALBOT, C.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

        Defendant, South Haven Charter Township, appeals as of right the trial court’s order
granting partial summary disposition in favor of plaintiff and directing defendant to pay plaintiff
$25,640.00 as a refund for overcharges of water and sewer debt service charges paid by plaintiff
to defendant on or after February 11, 2008 through September 2013. We affirm in part, reverse
in part, and remand for entry of partial summary disposition in defendant’s favor limited to the
retroactive adjustment periods set forth in Ordinance 41 and for further action not inconsistent
with this opinion.

                                              Facts

        Defendant, pursuant to a December 1994 franchise and water and sewer agreement, is a
member of the South Haven/Casco Township Sewer and Water Authority (“the Authority”), a
public body that provides water and sewer services to properties located in defendant township,
the City of South Haven (“the City”), and Casco Township. Plaintiff is a business in South
Haven Township that utilizes the services provided by the Authority. The franchise agreement
provides a formula to estimate the amounts to bill for water to its non-metered customers, such
as plaintiff: 250 gallons per day per Residential Equivalent User (REU) and provides a schedule
of standard REU’s to assign to various specific businesses. The franchise agreement requires
defendant to adopt ordinances to provide the services, and to utilize the City to provide billing
services for it to “pay a collection fee of two percent (2%) of the added debt retirement charge
for added billing and handling costs” to the City.

       Consistent with the franchise agreement, defendant adopted a water and wastewater
ordinance (Ordinance 41) in June 1995 so it could provide those services to homes and
businesses in its township. The ordinance details the elements that make up water and sewer
                                                -1-
rates, one of which is a “capital” or debt service charge at issue in the present case. According to
plaintiff, the water and sewer debt amounts defendant charged it were incorrectly calculated and
resulted in plaintiff being overcharged from July 1999 to August 2013. Plaintiff thus initiated
the instant action seeking a refund of the alleged overpayments, asserting that defendant was
unjustly enriched by retaining the overpayments.1

        In lieu of answering the complaint, defendant sought summary disposition pursuant to
MCR 2.116(C)(7), (8) and (10) under a multitude of theories. The trial court granted defendant’s
motion, in part, based only upon the statute of limitations and defendant’s claim that there were
no genuine issues of material fact and denied the vast majority of defendant’s bases for summary
disposition in its favor. Thereafter, the trial court entered an order granting partial summary
disposition in favor of plaintiff pursuant to MCR 2.116(I)(2), “to the extent of water and sewer
debt service charges due and paid by Plaintiff to Defendant on or after February 11, 2008
through September 2013. The order directed defendant to pay plaintiff $25,640.00. This appeal
followed.

                                      I. Administrative Remedies

        Defendant first asserts that the trial court erred in failing to dismiss plaintiff’s claim when
plaintiff did not exhaust its administrative remedies. We disagree.

        Although defendant only moved for summary disposition under MCR 2.116(C)(7), (8)
and (10), its claim in this regard is essentially that the trial court lacked subject matter
jurisdiction, which falls under MCR 2.116(C)(4). We review de novo jurisdictional questions
under MCR 2.116(C)(4), Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d
733 (2001), and, in doing so, we determine whether the affidavits, together with the pleadings,
depositions, admissions, and documentary evidence, demonstrate a lack of subject matter
jurisdiction. L & L Wine & Liquor Corp v Liquor Control Com'n, 274 Mich App 354, 356; 733
NW2d 107 (2007). “Summary disposition for lack of jurisdiction under MCR 2.116(C)(4) is
proper when a plaintiff has failed to exhaust its administrative remedies.” Citizens for Common
Sense in Gov't v Attorney General, 243 Mich App 43, 50; 620 NW2d 546 (2000).

        To the extent the trial court premised its ruling on this issue on MCR 2.116(C)(10), we
review decisions on motions for summary disposition de novo. Durcon Co v Detroit Edison Co,
250 Mich App 553, 556; 655 NW2d 304 (2002). A motion under MCR 2.116(C)(10) tests the
factual sufficiency of a claim. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
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.”
When reviewing a motion brought under subrule (C)(10), this Court must examine the
documentary evidence presented to the trial court and, drawing all reasonable inferences in favor
of the nonmoving party, determine whether a genuine issue of material fact exists to warrant a
trial. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).



1
    Plaintiff also asserted a negligence claim against defendant that it voluntarily dismissed.


                                                   -2-
        Because ordinances are treated as statutes for purposes of interpretation and review, we
also review de novo the interpretation and application of a municipal ordinance. Bonner v City
of Brighton, 495 Mich 209, 221-222; 848 NW2d 380 (2014).

        “The doctrine of exhaustion of administrative remedies requires that where a remedy
before an administrative agency is provided, relief must be sought by exhausting this remedy
before the courts will act.” Compton Sand & Gravel Co v Dryden Tp, 125 Mich App 383, 397;
336 NW2d 810 (1983), quoting 2 Am Jur 2d, Administrative Law, § 595, p. 426. The
requirement that administrative remedies be exhausted prior to seeking judicial review serves
several purposes:

       (1) an untimely resort to the courts may result in delay and disruption of an
       otherwise cohesive administrative scheme; (2) judicial review is best made upon a
       full factual record developed before the agency; (3) resolution of the issues may
       require the accumulated technical competence of the agency or may have been
       entrusted by the Legislature to the agency's discretion; and (4) a successful
       agency settlement of the dispute may render a judicial resolution unnecessary.
       [Intl Bus Machines Corp v State, Dept of Treasury, Revenue Div, 75 Mich App
       604, 610; 255 NW2d 702 (1977)].

However, a party may seek judicial review of a nonfinal agency decision when a final agency
decision would not provide an adequate remedy, or if pursuing the administrative remedy would
be an exercise in futility. Michigan Sup'rs Union OPEIU Local 512 v Dept of Civil Serv, 209
Mich App 573, 576-577; 531 NW2d 790 (1995). To invoke the futility exception, “it must be
clear that an appeal to an administrative board is an exercise in futility and nothing more than a
formal step on the way to the courthouse. Futility will not be presumed; courts assume that the
administrative process will properly correct alleged errors.” L & L Wine & Liquor Corp, 274
Mich App at 358 (internal quotation omitted).

       Defendant’s Ordinance No. 41, governing water and wastewater, provides for water
charges in “Article I. Water Service.” Division B. describes water rates as including a water
standby charge described in Sec. 1, a capital charge described in Sec. 2 and a usage charge
described in Sec. 3. The “capital charge” described in Sec. 2 is also referred to by both parties as
a “debt service charge” and represents the type of charge that plaintiff claims it overpaid due to
defendant’s miscalculation. Division D covers administration and provides the following:

       Any person has the right to appeal the basis of any charges imposed by this
       Ordinance or billed to same. Appeals shall be in writing, addressed to the
       Authority Board. Any such appeal shall be submitted no more than thirty (30)
       days after the date of the bill being contested. The Authority Board shall have the
       power to adjust a bill or charge if the appellant shows an error in the charge, but
       in no event shall any adjustment be retroactive more than three (3) months.
       [Division D, Section 2]




                                                -3-
Article II governs sewer services and, at Division E describes sewer rates as including an annual
standby charge, a capital charge (i.e., debt service charge) and sewer usage rate. Section 5
governs administration and provides at (c):

       Appeals. Any person has the right to appeal the basis for any charges developed
       in accordance with this Ordinance. Appeals shall be directed to the Authority
       along with any supporting documentation for amendment of the charges in
       question. . . . Resolution of appeals shall be made within 30 days by action of the
       Authority in accordance with best available data and the formulations presented in
       this Ordinance. . . . Upon resolution of the appeal, the Authority shall adjust said
       charges accordingly, including any refunds due. Refunds shall be retroactive to
       the previous four quarters billings only.

        The debt service charges at issue were specifically provided for in the ordinance. Both
the water and sewer sections of the ordinance provide that any person has the right to appeal “the
basis of any charges imposed by this Ordinance or billed to same” with respect to water and “the
basis for any charges developed in accordance with this Ordinance” with respect to sewer. The
capital charges, or debt service charges, were imposed by the ordinance and developed in
accordance with the ordinance. Thus, plaintiff had a right to appeal “the basis” for the water and
sewer debt charges. “Basis” is “the foundation upon which something rests” or “the fundamental
ingredient.” The American Heritage Dictionary (4th ed.). The monthly charges for debt service
were calculated by multiplying a specific dollar amount by the REU’s assigned to a property.
The foundation or fundamental ingredients for the debt service charges (i.e., the basis) were thus
the specific dollar multiplier and the REU’s assigned to the property and plaintiff had the right to
appeal the same.

        Plaintiff contends that the incorrect charges were based upon an inaccurate REU number
determined by defendant, only, and the debt service charges were remitted to defendant, only,
such that an appeal to the Authority as the ordinance required appeals be directed to, would not
provide it with its requested relief of a refund from defendant. The trial court agreed, ruling in a
one sentence analysis that plaintiff need not exhaust its administrative remedies with the
Authority “as the Authority could not provide the relief that was sought. That can only be done .
. . by the Township.” In so ruling the trial court cited to Cummins v Robinson Twp, 283 Mich
App 677; 770 NW2d 421 (2009).

         In that case, a panel of this Court held, in part, that “the doctrine of exhaustion of
administrative remedies would not deprive the trial court of its jurisdiction with respect to
properly filed, viable common-law tort claims, such as fraud or gross negligence” and “where the
administrative appellate body cannot provide the relief sought, the doctrine does not apply.” Id.
at 691. The Cummins Court, importantly, addressed a factual scenario where homeowners
asserted tort claims against a township, members of its board of trustees, its building officials
and others alleging that defendants fraudulently induced plaintiffs to incur unnecessary expenses
and that defendants were grossly negligent with respect to building code requirements. This
Court found that due to the nature of claims asserted against the defendants, “the plaintiffs'
argument that the CBA [construction board of appeals] would not have jurisdiction to grant the
relief they requested (money damages) has merit.” Id. at 691.


                                                -4-
       Here, in contrast, Ordinance 41 provides for the water capital charge in relevant part as
follows:

       The capital charge shall be billed as part of the bill for services rendered by the
       City of South Haven to all customers in the Township, and shall be established by
       the Authority Rule and Township Board Resolution from time to time.
       [Ordinance 41, Article I, Division B, section 2].



The ordinance provides for the sewer capital charge as follows:

       The capital charge shall be established from time to time by Authority Rule and
       Township Resolution. [Ordinance 41 Article II, Division E, section 2].

Contrary to plaintiff’s assertion, then, both the Authority and Township Board establish the debt
service charges.

       The ordinance also specifically provides that administration and operation of the water
and sewer systems in defendant township “shall be performed by . . . the Authority as agent of
the Townships in accordance with applicable contracts with the City of South Haven and law.”
The Authority, as an agent of defendant, would implicitly have the authority to act on behalf of
defendant and also explicitly had such authority based on the ordinance language providing that
the capital charge was established by Authority Rule and Township Board Resolution. And, the
ordinance specifically gave the Authority the power to adjust a bill or charge if the appellant
shows an error in the charge. Because administration of the water and sewer system falls to the
Authority, as an agent of defendant, and the debt service charges are established by Authority
Rule and Township Board Resolution, plaintiff has not conclusively established that the
Authority could not provide it with its requested relief—a refund of amounts allegedly overpaid
in debt service charges to defendant. Thus, there can be no argument that plaintiff could not
obtain its requested relief of a refund of overpayment from the Authority through an
administrative remedy set forth in the ordinance—at least to the extent of the relief allowable
under the ordinance.

        Plaintiff also claims that an appeal to the Authority could not have granted it all of the
remedy it sought because it was seeking refund of money overcharged over a span of 14 years
and the appeal process provided for under the ordinance only provides for a retroactive refund of
up to three months for water charges and up to four billing quarters for sewer charges. Although
plaintiff does not explicitly state such, it is essentially claiming futility in seeking relief from the
Authority for any asserted overpayments beyond those allowed under the ordinance.

        Again, it must be clear that an appeal to an administrative board is an exercise in futility
and nothing more than a formal step on the way to the courthouse to excuse exhaustion of
administrative remedies. L & L Wine & Liquor Corp, 274 Mich App at 358. Where, as here, the
ordinance provides a very limited time for which it will allow refund of overpayments and
plaintiff is seeking refunds far beyond the allowed period on the basis of unjust enrichment, it is
not unreasonable to conclude that the Authority would not grant the requested relief. This is
especially so given that in response to plaintiff’s request for refund of all of his alleged
                                                  -5-
overpayments, the Authority, the body to whom plaintiff was to direct an appeal, had an attorney
write a letter on its behalf on September 26, 2013, declining to reimburse plaintiff and further
advising plaintiff that no adjustment to water bills is retroactive for more than three months and
that adjustments to sewer bills are retroactive only to the previous four quarters. Plaintiff’s
request for his full relief from the Authority clearly would have been futile. The trial court thus
made the right decision, albeit for the wrong reason. A trial court's ruling may be upheld on
appeal where the right result issued, albeit for the wrong reason. Gleason v Michigan Dept of
Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003).

                                     II. Failure to State a Claim

        Defendant claims that the trial court erred in holding, without explanation, that plaintiff
stated a claim for unjust enrichment. We disagree.

        A complaint must contain “[a] statement of the facts, without repetition, on which the
pleader relies in stating the cause of action, with the specific allegations necessary reasonably to
inform the adverse party of the nature of the claims the adverse party is called on to defend . . . .”
MCR 2.111(B)(1). “[T]he primary function of a pleading in Michigan is to give notice of the
nature of the claim or defense sufficient to permit the opposite party to take a responsive
position.” Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 317; 503 NW2d 758
(1993), citing 1 Martin, Dean & Webster, Michigan Court Rules Practice, p 186. Our Supreme
Court has characterized MCR 2.111(B)(1) as consistent with a “notice pleading environment.”
Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 700 n 17; 684 NW2d 711
(2004).

       A claim of unjust enrichment requires the complaining party to establish (1) the receipt of
a benefit by the other party from the complaining party and (2) an inequity resulting to the
complaining party because of the retention of the benefit by the other party. Karaus v Bank of
New York Mellon, 300 Mich App 9, 22-23; 831 NW2d 897 (2012). Our Supreme Court
explained that unjust enrichment describes “the result or effect of a failure to make restitution of
or for property or benefits received under such circumstances as to give rise to a legal or
equitable obligation to account therefor.” Buell v Orion State Bank, 327 Mich 43, 56; 41 NW2d
472 (1950)(quotation marks and citation omitted).

        In its complaint, plaintiff asserted that the dispute concerned over-payments for utility
services for property located in South Haven. Plaintiff alleged that it began using water and
sewer services, provided by defendant in July 1999 and that as part of its bill for services,
defendant set and charged plaintiff certain amounts for water and sewer debt. Plaintiff asserted
that the amounts billed for debt services were billed from and payable to the City, but that the
amounts were remitted to defendant by the City under the terms of their franchise agreement.
Plaintiff alleged that in September 2013, plaintiff notified defendant of overcharges for debt
services and that defendant “acknowledged that the Plaintiff had been overcharged.” Plaintiff
alleged that defendant finally reduced the debt service amounts to the proper amounts in
September 2013 but had overcharged plaintiff from July 1999 through August 2013 for debt
services in a total amount of $93,807.90. Plaintiff asserted it was damaged by the overcharges in
the stated amount and that defendant and the Authority had been unjustly enriched by the gain of
the stated amount which was not rightly due defendant.

                                                 -6-
       The above allegations sufficiently stated a cause of action for unjust enrichment. Plaintiff
alleged that defendant received the benefit of monies not rightly due it from plaintiff (via third
party City under a franchise agreement) and that an inequity resulted in that plaintiff was charged
monies it did not owe. Considering the pleadings in a light most favorable to plaintiff, defendant
was put on notice that plaintiff was seeking a refund of the alleged overcharges.

                                   III. Proper Party Defendant

       Defendant asserts that the trial court erred in holding that it, and not the Authority is the
proper defendant in this action. We disagree.

         The franchise agreement allowing for the provision of sewer and water services was
between the City and defendant (and Casco Township). The franchise agreement also provides
at 16.f. that while the City would provide billing services and it would charge the Townships
(i.e., defendant) a 2% billing fee—not the Authority.

        Furthermore, defendant adopted Ordinance 41 governing water and wastewater,
including the rates and charges allowed. Defendant does not deny, either, that it calculated the
REU’s to be assigned plaintiff’s property, which forms the basis for plaintiff’s allegation of a
miscalculation and resulting overcharge of debt services. While the ordinance gave the
Authority the power to administrate and operate the water and wastewater systems, it gave the
Authority such power “as agent of the Townships.” Moreover, just because the Authority has
the power to adjust challenged bills does not mean that defendant cannot also do so. The grant
of power does not contain the word “exclusive.” As a result, the trial court properly concluded
that defendant is the proper party to this action.

                      IV. Question of Fact as to Whether Plaintiff Overpaid

       Defendant asserts that the trial court erred in concluding as a matter of law that plaintiff
had overpaid its water and sewer debt charges. We agree.

        Notably, while plaintiff now states that the overcharges were based on an inaccurate REU
determination made by defendant, that is not, specifically, what plaintiff stated in its complaint.
Plaintiff’s complaint does not challenge the monthly dollar amount to be multiplied for debt
services nor does it challenge the REU’s assigned to its property. Indeed, plaintiff’s complaint
simply states that the amount it began being billed for debt services charges in September 2013
was the correct amount and that it was “overbilled” for debt services from July 1999 through
August 2013. Nowhere in the record is it even apparent what the monthly dollar multiplier was
from July 1999 to March 2007. The trial court was provided with the minutes of a February 14,
2007, South Haven Township Charter meeting wherein the debt service charges for the water
and sewer systems were “amended” to $20.00 per REU per month for the sewer system and
$13.00 per REU per month for the water system, effective March 1, 2007. That is the extent of
evidence concerning the monthly sewer and water date rate multiplier. Plaintiff attached only
the franchise agreement to its complaint.

        As to REU’s, the only evidence shows that on January 14, 1998, defendant was assigned
19 REU’s. Nowhere does plaintiff state or demonstrate what the REU’s were in 2007 or what
they are at present day.
                                                -7-
        The evidence supplied to the trial court by plaintiff consisted of: (1) portions of the
franchise agreement, (2) a letter drafted by plaintiff’s counsel and sent to defendant and the City
on September 16, 2013, indicating that given recent adjustments to his bill, plaintiff had overpaid
the water and sewer debt charges for many years “assuming the new rates are correct” and
seeking reimbursement for the overpayments, (3) a September 26, 2013, letter from the
Authority’s counsel responding to the above to advise that the franchise agreement allowed for
debt charges based on an estimated flow according to a formula using the REU table. The letter
further stated that the franchise agreement allowed for metering to confirm that the REU estimate
was accurate at the request and expense of the property owner and plaintiff made no such
request. Plaintiff also supplied (4) the affidavit of Richard Faustman, owner of plaintiff, who
attested that he did not know he was being overcharged for debt services until 2013 when the
township supervisor saw plaintiff’s current bills and advised that plaintiff was overpaying for its
services. Faustman attested that the supervisor said he would take care of lowering the payments
and within a few months plaintiff’s payments were, in fact, lowered to the current amount.
Finally, plaintiff supplied (5) the affidavit of John Wagner, a plumber who was present during
the meeting between Faustman and the township supervisor and attested that he recalled the
supervisor stating that plaintiff was overpaying on his water and sewer bills, that the supervisor
wished he had known sooner and that he intended to set the rate and recheck it in one year to
make sure the bills were accurate.

        The other documents in evidence provide information that in 1998, plaintiff was assigned
19 REU’s. REU factors chargeable to a hotel/motel, as set forth in Ordinance 41 are .4 per
bedroom plus restaurant and bar. Bars are assigned 4.0 REU’s per 1000 square feet. Restaurants
are assigned 2.5 REU’s per 1000 square feet (excluding restrooms, public areas, and unfinished
areas) if they serve meals only, 3.5 REU’s per 1000 square feet if they serve meals and drinks,
and .5 REU’s per 1000 square feet for their public areas and areas not in regular use. Evidence
was also provided that as of March 1, 2001, the debt service charges for sewer systems set by
defendant was $20.00 per REU per month and $13.00 per REU per month for water service and
that as of September 2013 plaintiff has been charged $14.30 per month for water debt and $22.00
per month for sewer debt.

        The trial court opined, without analysis, that the fact that plaintiff did not challenge the
number of REU’s did not have any bearing on its unjust enrichment claim. The trial court
further opined that the amounts that plaintiff paid to defendant over the relevant years was not in
dispute and that the parties could easily determine the amount that should have been paid upon
the proper assessment “as has recently been done” so that there were no material questions of
fact. However, considering that, as the trial court stated in its opinion on the record, plaintiff
operates a hotel on the billed property, it is questionable whether billings from September 2013
forward are “correct” as plaintiff asserts. Each room in a hotel is charged .4 REU’s. At $20 per
REU per month for sewer and $13.00 per REU for water, a single hotel room would incur a
charge of $8.00 per month for sewer debt and $5.20 for water debt. At oral argument on
defendant’s summary disposition motion, plaintiff’s counsel stated that, “Up until last year
[2013] my client’s hotel only had one building with 15 rooms hooked up to the City water, the
water provided by the Authority.” Yet plaintiff’s total monthly sewer debt charge post-
September 2013, which it claims is correct and which it bases its monetary amount of
overpayment on, is only $22.00 per month and the total water debt charge is only $14.30 per
month.

                                                -8-
        Plaintiff presented no evidence concerning the size of the hotel, the bar, restaurant, etc.
from which one could conclusively establish that defendant had miscalculated the REU’s to
assign the property and thus overcharged plaintiff for debt services. And, defendant did not
admit that the REU’s were incorrectly calculated or that it had overcharged plaintiff. The trial
court’s ruling that there were no genuine issues of material fact except as to damages was thus
erroneous. The trial court could not have concluded, as matter of law, based upon the evidence
presented, that defendant made a miscalculation of REU’s at any time or had incorrectly billed
plaintiff for debt service charges. Questions of material fact exist on this issue precluding
summary disposition in favor of either party. Moreover, a motion for summary disposition is
generally premature if granted before discovery on a disputed issue is complete. Oliver v Smith,
269 Mich App 560, 567; 715 NW2d 314 (2006). That is the case here.

                                       V. Limitations Period

        Defendant next asserts that the trial court erred in failing to apply the limitations period
prescribed in Ordinance 41. We agree.

        Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the
statute of limitations. In determining whether summary disposition is appropriate under MCR
2.116(C)(7), this Court considers all documentary evidence submitted by the parties, and
accepting as true the contents of the complaint unless affidavits or other appropriate documents
specifically contradict them. Carmichael v Henry Ford Hosp, 276 Mich App 622, 624; 742
NW2d 387 (2007).

        It is well settled that ordinances are presumed valid and the burden is on the person
challenging the ordinance to rebut the presumption. Detroit v Qualls, 434 Mich 340, 364; 454
NW2d 374 (1990). To meet this burden, a plaintiff must demonstrate that the ordinance allows
an arbitrary exercise of government power. People v Sierb, 456 Mich 519, 523; 581 NW2d 219
(1998).

        Here, Ordinance 41 requires one who disputes a water charge to appeal the bill within 30
days after the date of the bill being contested and limits any retroactive adjustments to water bills
to three months (Article I, Division D, Section 2). The ordinance does not provide a 30-day
limitation period for appealing a sewer charge but does require that resolution of the appeal be
made within 30 days and limits retroactive adjustments of sewer charges to the previous four
quarters billings (Article II, Division D, Section 5, sub (c)).

        Contrary to plaintiff’s assertion, the ordinance does not limit appeals to the water or
sewer rates themselves. As indicated in Issue I, Ordinance 41 provides for appeals of “the basis
of any charges imposed by this Ordinance or billed to same” with respect to water (Article I,
Division D, Section 2) and “the basis for any charges developed in accordance with this
Ordinance” as they relate to sewer charges (Article II, Division E, Section 5). As also indicated
in Issue I, the basis of these charges includes capital charges (i.e., debt service charges)—the
charges plaintiff asserts for which it was incorrectly billed. Plaintiff has not identified any
statute or constitutional provision that expressly denies municipalities the power to require one
disputing a water bill to do so within 30 days or limiting the retroactive adjustment of water bills
to three months. Nor has plaintiff identified any provision denying municipalities the power to

                                                -9-
limit retroactive adjustments of sewer charges. Plaintiff has also not claimed that the limitations
are an arbitrary exercise of police power. It has thus not overcome the presumption that the
ordinance and the provisions relied upon by defendant are valid.

        Moreover, municipalities are authorized by constitution to operate public utilities. Const
1963, art 7 § 24. The authorization to operate utilities must include the responsibility to develop
mechanisms to monitor their efficient administration. The ordinance provisions at issue provide
a reasonable mechanism that advance the legitimate governmental interest of allowing defendant
to efficiently administer services it is authorized to provide and to limit its liability when errors
arise in the provision of the services.

        The trial court did not address the periods of limitations set forth in the ordinance. It
simply held that the 6-year limitations period applicable to unjust enrichment actions was
applicable and that plaintiff was thus limited to seek a refund of only those overpayments made
within 6 years prior to the filing of its first amended complaint. However, this Court is not
bound by a party's choice of labels for its cause of action because this would place form over
substance. See Johnston v Livonia, 177 Mich App 200, 208; 441 NW2d 41 (1989). Plaintiff
claimed unjust enrichment but was undeniably seeking a retroactive adjustment to its water and
sewer bills due to an asserted error on defendant’s part. That is precisely what the ordinance
addressed. The plaintiff having failed to establish that the ordinance limitations concerning
retroactive adjustment periods was invalid, the trial court should have granted partial summary
disposition in defendant’s favor limited to the adjustment periods set forth in the ordinance—not
the six year statute of limitations for unjust enrichment. We thus reverse the trial court’s ruling
concerning applicability of the 6-year statute of limitations and direct entry of summary
disposition in defendant’s favor limited to the retroactive adjustment periods set forth in
Ordinance 41.2

        Affirmed in part, reversed in part, and remanded for entry of partial summary disposition
in defendant’s favor limited to the retroactive adjustment periods set forth in Ordinance 41 and
for further action not inconsistent with this opinion. We do not retain jurisdiction.



                                                              /s/ Michael J. Talbot
                                                              /s/ Deborah A. Servitto




2
    Given this conclusion, we need not address defendant’s argument concerning laches.


                                                -10-
