BROWNLOW v. McCALL ENTERPRISES, INC
315 Mich. App. 103
| Mich. Ct. App. | 2016Background
- In 2007 State Farm hired McCall Enterprises to remove smoke odor from plaintiffs Travis and Brownlow’s house using an ozone generator; after the weekend the odor was gone but extensive damage to carpets, upholstery, wood, plastic, and rubber was discovered and plaintiffs alleged health effects.
- Plaintiffs sued State Farm and McCall for negligence and violations of the Michigan Consumer Protection Act (MCPA); negligence claims were dismissed and not appealed. This appeal concerns only McCall and MCPA claims.
- On prior appeal this Court held the MCPA applied (transaction not exempt under MCL 445.904(1)(a)) and that plaintiffs had presented enough evidence of causation to survive summary disposition; the Supreme Court denied leave.
- On remand McCall moved to (1) exclude personal-property and use-and-enjoyment damages as beyond the prior opinion’s scope and (2) obtain summary disposition claiming lack of evidence of causation (new experts, later test showing the ozone unit was broken). The trial court limited damages to real property, dismissed Brownlow for lack of standing, granted McCall summary disposition on causation, and awarded case-evaluation sanctions against both plaintiffs.
- The Court of Appeals reversed: it held the law-of-the-case barred relitigation of causation, the prior opinion did not limit damages to realty (so Brownlow had standing for personal-property claims), found genuine factual disputes on MCPA liability, and vacated the case-evaluation sanctions and related orders, remanding for further proceedings before a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law of the case precluded relitigation of causation after prior appellate ruling that causation should go to a jury | Prior opinion resolved that causation was for the jury; trial court therefore could not reconsider causation | Prior remand for factual issues means law of the case doesn't apply; new expert evidence and machine-testing changed facts | Law of the case applied; trial court erred in allowing the second C(10) motion on causation |
| Whether "house" in prior opinion limited MCPA damages to real property only | "House" and references to household materials include personal property; prior opinion did not decide real vs. personal property issue | Prior opinion implicitly limited relief to the structure/realty; plaintiffs lack standing for property claims not tied to real property | Trial court abused discretion excluding personal-property and use-and-enjoyment damages; Brownlow had standing for personal-property claims |
| Whether plaintiff must prove fraud-like intent (actual knowledge or reckless disregard) for MCPA subsections invoked (3(1)(c),(e),(s),(cc)) | MCPA language does not import fraud intent; Legislature eliminated intent element; plaintiffs need only show prohibited practice and loss | MCPA provisions grounded in fraud should require common-law fraud elements (knowledge/recklessness) | Court rejects imposing fraud intent requirement; MCPA construed by statute first; fraud doctrine may inform technical terms but intent not required where statute omits it |
| Whether summary disposition for plaintiffs on liability was appropriate | Plaintiffs argued McCall violated various MCPA subsections (misrepresentations, omissions) and presented expert/literature evidence that ozone can damage household materials and that McCall failed to disclose that risk | McCall argued the ozone generator was ineffective/broken, new experts speculative, and plaintiffs could not prove causation or industry-standard representations | Genuine issues of material fact exist on MCPA liability and causation weight; summary disposition for defendant was improper and plaintiffs’ counter motion for liability was denied |
| Whether case-evaluation sanctions should stand against plaintiffs | Sanctions were imposed after the trial court’s rulings that this Court reversed (dismissal, summary disposition) | Sanctions proper under trial court’s rulings | Sanctions reversed because underlying rulings that supported them were reversed; remand ordered and matter reassigned |
Key Cases Cited
- Driver v. Hanley, 226 Mich. App. 558 (discusses law-of-the-case doctrine and its limits)
- South Macomb Disposal Auth. v. American Ins. Co., 243 Mich. App. 647 (purpose and application of law-of-the-case doctrine)
- Brown v. Drake-Willock Int’l, Ltd., 209 Mich. App. 136 (remand for factual issues and law-of-the-case limits)
- Borkus v. Michigan Nat’l Bank, 117 Mich. App. 662 (remand where factual questions precluded summary disposition)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (standard for admissibility of expert testimony)
- Zine v. Chrysler Corp., 236 Mich. App. 261 (consulting common-law fraud when interpreting MCPA technical terms)
- Ford Motor Co. v. Woodhaven, 475 Mich. 425 (statutory interpretation principles and use of common-law meanings when appropriate)
- Maiden v. Rozwood, 461 Mich. 109 (standard for MCR 2.116(C)(10) summary disposition)