Whether a tolling agreement was ambiguous; McCoig Materials, LLC v Galui Constr, Inc; Interpreting an undefined term; Terrien v Zwit; Computing time; MCR 1.108(1)

Concluding the failure to define “Effective Date” did not render the parties’ tolling agreement ambiguous, the court held that defendant was properly granted summary disposition based on the statute of limitations. The parties’ real property purchase agreement “provided for a one-year period after closing for plaintiff to bring any claims related to the condition of the property.” She experienced basement flooding within the one-year period. Her “insurance company denied her claim after a consulting firm concluded that previous repairs had been made to the area, but were not effective. Plaintiff and defendant” then entered into the “tolling agreement to give plaintiff an additional 45 days to negotiate with defendant or” sue him for damages. She later filed this action. “The trial court agreed with defendant that plaintiff did not file her complaint until after the tolling period expired . . . .” The court determined that because “the parties both signed the document on July 19, the execution date of the contract was July 19, and according to the agreement, the tolling period expired 45 days from July 19.” Plaintiff asserted that because the agreement did not define “Effective Date,” the method of computing the 45-day “tolling period in ¶ 1(b) was ambiguous and should not be enforced.” She contended the time computing method “in MCR 1.108(1) should be followed.” But the court noted that “the parties expressed their intention to compute the tolling period using a method that differed from MCR 1.108(1).” They agreed that the “45-day period began on and included the ‘Effective Date.’ MCR 1.108(1) does not include the day the designated period of time begins to run.” The court concluded “the tolling period began on the ‘Effective Date’” and that this date was “the date the parties executed the contract. . . . As the ‘Expiration Date’ is defined as 45 days from the date of execution, [7/19/22], then the ‘Tolling Period’ began on the date of execution, which must also be the ‘Effective Date.’ According to the computing method provided for in the agreement, the tolling agreement expired on [9/1/22]. This interpretation gives effect to every word, phrase, and clause in the agreement and does not render any part of it as surplusage or nugatory.” Plaintiff’s complaint was untimely because she did not file it “or extend the tolling agreement by [9/1/22].”