STATE OF MICHIGAN COURT OF APPEALS

TROY 888 LLC, UNPUBLISHED November 29, 2018 Plaintiff-Counterdefendant- Appellee, v No. 338393 Oakland Circuit Court SUMMIT WILSHIRE LLC, LC No. 2016-153128-CZ Defendant-Counterplaintiff- Appellant, and WELLS FARGO BANK NA and MAX J CORPORATION, Defendants.

TROY 888 LLC, Plaintiff-Counterdefendant- Appellant, v No. 339349 Oakland Circuit Court SUMMIT WILSHIRE LLC, LC No. 2016-153128-CZ Defendant-Counterplaintiff- Appellee, and WELLS FARGO BANK NA and MAX J CORPORATION, Defendants.

-1- Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ.

SHAPIRO, P.J. (concurring).

I concur with the majority’s well-reasoned opinion in all respects except as to the grounds for rejecting appellant’s “substantial performance” argument. I believe that a reasonable person could conclude that the conditions set out in the retention pond agreement were met even if the permanent storm drainage system was installed by a person or entity other than the City of Troy.

However, I concur with the majority in affirming because it is undisputed that the substantive requirement that Sosnick or his successor “close off and stub the sewer line running from the premises to the retention pond” never took place.

/s/ Douglas B. Shapiro

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