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Parol Evidence:

Posted December 5, 2018

Oral (parol) evidence is not admissible to contradict or change an unambiguous written agreement. The parol evidence rule has four exceptions. Extrinsic evidence is admissible to show that the writing was a sham, not intended to create legal relations, that the contract has no efficacy or effect because of fraud, illegality, or mistake, that the parties did not integrate their agreement or assent to it as the final embodiment of their understanding, or that the agreement was only partially integrated because essential elements were not reduced to writing.

Parol evidence is inadmissible to show that an agreement is not integrated when the parties have included an integration clause in the contract, unless the case involves fraud or the agreement is obviously incomplete on its face, making parol evidence necessary as a gap filler. Where the writing is not ambiguous on its face, the circumstances under which the parties contract may be looked at to establish an ambiguity, as well as to indicate the proper choice of possible meanings; and the common knowledge and the understanding of the parties themselves as shown by their previous negotiations is sometimes such a circumstance.

The parol evidence rule does not preclude the introduction of evidence to establish that there was a condition precedent to the contract that was not included within the contract. Where there is evidence that a latent ambiguity exists with respect to the intended scope of a release, a court may consider parol evidence regarding that scope when an unnamed party seeks to enforce thirdpartybeneficiary rights based on the broad release language.

In Shay v Aldrich, 487 Mich 648, 676, (2010), the plaintiff claimed that he had been assaulted by several police officers. Shay, supra at 651. After accepting case evaluation awards with respect to two of the officers, the plaintiff executed two separate releases in each officer’s name. Id. at 652653. The releases also stated that “all other persons” were released from liability. A latent ambiguity exists when the language in a contract appears to be clear and intelligible and suggests a single meaning, but other facts create the necessity for interpretation or a choice among two or more possible meanings. To verify the existence of a latent ambiguity, a court must examine the extrinsic evidence presented and determine if in fact that evidence supports an argument that the contract language at issue, under the circumstances of its formation, is susceptible to more than one interpretation. Then, if a latent ambiguity is found to exist, a court must examine the extrinsic evidence again to ascertain the meaning of the contract language at issue. The Court concluded that the extrinsic evidence presented by the plaintiff clearly showed that the broad release language was not intended to release the defendants from liability.

Parties to a written agreement may, by parol evidence, extend the time for performance, especially where the contract does not make time of the essence. As it relates to oral modification of a written agreement, there is a higher burden of proof. Clear and convincing evidence of a mutual agreement to modify the contract is required. A departure from the written contract can be predicated on the parties’ conduct, as well as on the express language of an agreement.

Shay v Aldrich, 487 Mich 648, 676, (2010).

Hamade v Sunoco, Inc (R&M), 271 Mich App 145, 166 (2006)


What Employee Records Can be Seen?

Posted November 16, 2018

Disclosure of personnel files is governed by the BullardPlawecki Employee Right to Know Act. MCL 423.501 et seq. The Act defines personnel records as: A record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership, or other association who has a contractual agreement with the employer to keep or supply a personnel record as provided in this subdivision. A personnel record shall

not include:

1. Employee references supplied to an employer if the identity of the person making the reference would be disclosed.

2. Materials relating to the employer’s staff planning with respect to more than 1 employee, including salary increases, management bonus plans, promotions, and job assignments.

3. Medical reports and records made or obtained by the employer if the records or reports are available to the employee from the doctor or medical facility involved.

4. Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy.

5. Information that is kept separately from other records and that relates to an investigation by the employer pursuant to section 9.

6. Records limited to grievance investigations which are kept separately and are not used for the purposes provided in this subdivision.

7. Records maintained by an educational institution which are directly related to a student and are considered to be education records under section 513(a) of title 5 of the family educational rights and privacy act of 1974, 20 U.S.C. 1232g.

8. Records kept by an executive, administrative, or professional employee that are kept in the sole possession of the maker of the record, and are not accessible or shared with other persons. However, a record concerning an

9. occurrence or fact about an employee kept pursuant to this subparagraph may be entered into a personnel record if entered not more than 6 months after the date of the occurrence or the date the fact becomes known.” MCL 423.501(2)(c)(i) (viii).

Information that is not included in the personnel file, but should have been included cannot be used by an employer in a judicial or quasijudicial proceeding, unless the exclusion was inadvertent and the employee agrees to its use or has been given a reasonable amount of time to review the information. MCL 423.502. Employees may review their record after submitting a written request. MCL 423.503. Generally, an employee is limited to viewing his or her personnel file not more than 2 times in a calendar year or as otherwise provided by law or a collective bargaining agreement.


What is a Preliminary Injunction

Posted October 17, 2018

The purpose of a preliminary injunction is to maintain the parties’ status quo. The Court of Appeals summarized the reason behind the purpose and how it should apply to parties seeking a preliminary injunction: “The object of a preliminary injunction is to preserve the status quo, so that upon the final hearing the rights of the parties may be determined without injury to either. The status quo which will be preserved by a preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy. The injunction should not be issued if the party seeking it fails to show that it will suffer irreparable injury if the injunction is not issued. Furthermore, a preliminary injunction will not be issued if it will grant one of the parties all the relief requested prior to a hearing on the merits. Finally, a preliminary injunction should not be issued where the party seeking it has an adequate remedy at law.”

The court should consider four factors in determining whether to grant a preliminary injunction:

  • whether the injunction would harm the public interest;
  • whether the harm to the plaintiff in the absence of a stay would outweigh the harm to the defendant if the stay is granted;
  • whether the plaintiff is likely to succeed on the merits; and
  • whether the plaintiff will be irreparably harmed if a preliminary injunction is denied.

The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met. This concept was explained in a recent civil case when the Court stated: This apparent disparity in the wording of the standard merely reflects the circumstances that no single factor is determinative as to the appropriateness of equitable relief. In addition to assessing the likelihood of success on the merits, the Court must consider the irreparability of any harm to the plaintiff, the balance of injury as between the parties, and the impact of the ruling on the public interest. In general, the likelihood of success that need be shown will vary inversely with the degree of injury the plaintiff will suffer absent an injunction.

Before granting a preliminary injunction the court may require the applicant to give security, in the amount the court deems proper, for the payment of costs and damages that may be incurred or suffered by a party who is found to have been wrongfully enjoined or restrained.” MCR 3.310(D)(1).