295 Mich. App. 189 | Mich. Ct. App. | 2012
Defendants
This matter arises out of plaintiffs’ purchase of a condominium unit in what had once been an abandoned factory. The factory had been contaminated with trichloroethylene, and, in the process of converting it into condominiums, a vapor barrier was installed, but the site was never properly decontaminated. Plaintiffs were led to believe that the contamination had been cleaned up, in part on the basis of a newspaper article and a sales brochure both indicating that the site had been decontaminated, so they purchased the condo
We review de novo a trial court’s ruling on a motion for summary disposition and consider the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party to determine whether there exists any genuine issue of material fact.
Defendants contend that the trial court should have granted their motions because as sellers’ agents they owed no duty to plaintiffs because plaintiffs’ reliance on the sales brochure was unreasonable and because plaintiffs’ reliance on defendant Meryl Greene’s statements was unreasonable. We conclude that the trial court properly denied defendants’ motions.
Common-law fraud or fraudulent misrepresentation entails a defendant making a false representation of material fact with the intention that the plaintiff would rely on it, the defendant either knowing at the time that the representation was false or making it with reckless disregard for its accuracy, and the plaintiff actually relying on the representation and suffering damage as a result. M&D, Inc v McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998). Silent fraud is essentially the same except that it is based on a defendant suppressing a material fact that he or she was legally obligated to disclose, rather than making an affirmative misrepresentation. Id. at 28-29. Such a duty may arise by law or by equity; an example of the latter is a buyer making a direct inquiry or expressing a particularized concern. The Mable Cleary Trust v The Edward-Marlah Muzyl Trust, 262 Mich App 485, 500; 686 NW2d 770 (2004); M&D, Inc, 231 Mich App at 31, 33. A misleadingly incomplete response to an inquiry can
Silent fraud and negligent misrepresentation both require a defendant to owe a duty to the plaintiff. Defendants rely on this Court’s explanation in McMullen v Joldersma, 174 Mich App 207, 212; 435 NW2d 428 (1988), that Michigan jurisprudence had never imposed on sellers’ agents a duty per se of disclosure to buyers, in contrast to the duty it has imposed on sellers themselves. However, a duty of disclosure may be imposed on a seller’s agent to disclose newly acquired information that is recognized by the agent as rendering a prior affirmative statement untrue or misleading. United States Fidelity & Guaranty Co v Black, 412 Mich 99, 126-128; 313 NW2d 77 (1981). This is especially true when the agent knows that the buyer has a particular concern with the subject matter of that statement. Id. at 127. Indeed, a duty to disclose may arise solely because “the buyers express a particularized concern or directly inquire of the seller ....” M&D, Inc, 231 Mich App at 33. There is evidence that plaintiffs made direct inquires of defendants about the condition of the property and that the Department of Environmental Quality advised defendants that the sales brochure contained inaccurate and misleading information. The trial court correctly determined that there was a genuine question of fact and that reasonable minds could differ on whether defendants owed a duty of disclosure to plaintiffs.
Defendants next rely on the general rule that there cannot be any fraud if the party allegedly defrauded had
Here plaintiff Frank Alfieri, IV, testified that it was his understanding that the site had been cleaned up based on general public discussions, conversations with Marc Bertorelli and Meryl Greene, and local newspaper articles. Plaintiffs directly inquired of Greene regarding the condition of the property and whether it had been cleaned up at the time they signed the purchase agreement. Frank testified that he trusted Greene’s representations, both oral and in the sales brochure, that the site had been cleaned up. Greene testified that she prepared the contents of the sales brochure, with direction from Marc, and that until plaintiffs filed suit, she had no reason to believe that the sales brochure was
Viewing the evidence and all reasonable inferences that can be drawn from it in the light most favorable to plaintiffs, plaintiffs presented sufficient evidence to establish that they reasonably relied on the sales brochure when numerous sources — including Marc, Greene, the local newspaper, and public “buzz” — indicated that the site had been cleaned up. No further inquiry was necessary. The trial court properly denied all three of defendants’ motions.
Defendants also argue that the trial court erred by failing to give their requested instruction regarding their duty as sellers’ agents. We review a trial court’s decision regarding jury instructions for an abuse of discretion. Hashem v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 87; 697 NW2d 558 (2005). Defendants’ requested instruction was based on facts specific to McMullen, 174 Mich App at 212, which were distinguishable from those in this case. Further, the given instruction accurately reflected general caselaw. The trial court did not abuse its discretion by declining to give defendants’ requested instruction.
Defendants finally argue that their motion for JNOV should have been granted on the negligent-misrepresentation claim because the jury found plain
On cross-appeal, plaintiffs argue that the trial court erred by instructing the jury on comparative negligence, M Civ JI 11.01, because their negligent-misrepresentation claim does not involve a claim seeking damages for personal injury, property damage, or wrongful death as set out in MCL 600.2959. We review de novo claims of instructional error. Lewis v LeGrow, 258 Mich App 175, 211; 670 NW2d 675 (2003). We review for an abuse of discretion a trial court’s determination whether a standard jury instruction is applicable and accurate. Id. We find the trial court’s instruction appropriate.
Plaintiffs rely on Sweet v Shreve, 262 Mich 432, 435; 247 NW 711 (1933), in which “a suit brought for the recovery of damages caused plaintiffs as a result of fraudulent representations made by defendants” in a real estate transaction was deemed not to be “one for injuries to person or property.” However, Sweet addressed which of the then-existing limitations periods applied, and it “was decided consistently with a long line of Michigan cases which applied the six-year period of limitations to fraud actions.” Nat’l Sand, Inc v Nagel Constr, Inc, 182 Mich App 327, 333; 451 NW2d 618 (1990). Today, the statute of limitations for “injuries to persons or property,” MCL 600.5805, “applies to several
Indeed, this Court has observed that “what constitutes ‘injuries to persons’ [includes] ‘invasions of rights that inhere in man as a rational being.’ ” Nat’l Sand, 182 Mich App at 335 (citations and some quotation marks omitted) (cited with approval in Local 1064, 449 Mich at 328). This is consistent with the modern definition of a “personal injury” as potentially referring to any invasion of a personal right, not only bodily injuries. Black’s Law Dictionary (9th ed). Additionally, “comparative negligence should be applied in all common-law tort actions sounding in negligence where the defendant’s misconduct falls short of being intentional,” Vining v Detroit, 162 Mich App 720, 727; 413 NW2d 486 (1987), and “the question is whether, in viewing the evidence most favorably to the defendant, there is sufficient evidence for the jury to find negligence on the part of the injured plaintiff.” Duke v American Olean Tile Co, 155 Mich App 555, 566; 400 NW2d 677 (1986). Although both these cases predate the Legislature’s adoption of MCL 600.2959, we think both remain “good law” and comport with Michigan’s public policy of fairly apportioning damages according to each party’s fault.
Given plaintiffs’ decision not to obtain an environmental inspection and execution of a purchase agreement specifically stating that defendants had no knowledge of the property’s environmental conditions, we
Plaintiffs finally argue that the trial court should have instructed the jury to consider each plaintiffs comparative negligence separately. We disagree. The doctrine of imputed knowledge is applicable to joint ventures, which have been defined as associations to carry out a single business enterprise for a profit. Kay Investment Co, LLC v Brody Realty No 1, LLC, 273 Mich App 432, 437; 731 NW2d 777 (2006); Christy v Prestige Builders, Inc, 94 Mich App 784, 796; 290 NW2d 395 (1980), rev’d on other grounds 415 Mich 684 (1982). Plaintiffs purchased the condominium at a reduced price as an investment; each contributed money toward the down payment, did not intend to live there, and planned to sell it for profit. Plaintiffs clearly engaged in a joint venture, so it was appropriate to apply the doctrine of imputed knowledge. Therefore, the trial court did not err by declining to instruct the jury to consider each plaintiffs comparative negligence separately.
Affirmed.
The Bertorelli defendants, Marc and Brenda Bertorelli and Marc Bertorelli Builder, LLC, and some of the original claims were dismissed by stipulation, so we refer only to the defendants remaining in this matter as “defendants” and only discuss the legal theories remaining and applicable to them.
We presume that the motion here was granted pursuant to MCR 2.116(0(10), which tests the factual sufficiency of a claim, because the trial court considered material outside the pleadings. See Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007).