BROWNLOW v McCALL ENTERPRISES, INC
Docket Nos. 325843 and 326903
Michigan Court of Appeals
April 19, 2016
315 Mich App 103
Submitted March 8, 2016, at Lansing.
Ronald Brownlow and Susan Travis brought an action in the Washtenaw Circuit Court against McCall Enterprises, Inc., and State Farm Fire and Casualty Company, alleging that plaintiffs’ home and personal property were damaged by the ozone generator used in their home by McCall Enterprises to eliminate the odor of smoke that was caused by a fire in their microwave. Plaintiffs also sought damages for loss of use and enjoyment as a result of the ozone exposure. The court, Archie C. Brown, J., granted summary disposition in favor of McCall Enterprises on the basis that the company‘s actions were exempt from liability as provided by
The Court of Appeals held:
- Under the law-of-the-case doctrine, a ruling by an appellate court binds the appellate court and all lower tribunals with respect to that issue; the doctrine applies when the facts of the case remain materially the same and any differences are legally insignificant. The doctrine only applies to issues actually decided, either implicitly or explicitly, in the prior appeal. However, the law-of-the-case doctrine does not apply when an appellate сourt reverses a case and remands for a trial on the basis that a material issue of fact exists because the first appeal was not decided on the merits.
- In Brownlow I, the Court of Appeals concluded that the issue of causation as related to plaintiffs’ MCPA claim was a jury question and that the law-of-the-case doctrine barred McCall Enterprises from relitigating this issue on remand. For this reason, the trial court erred by considering and granting McCall Enterprises’ motion for summary disposition that was premised on an alleged lack of causation. Any differences in the opinion testimony offered by plaintiffs’ experts in Brownlow I and their new experts were legally insignificant and did not materially change the facts of the case because both the original and substituted experts opined that the damage to plaintiffs’ house was consistent with ozone exposure. Further, in Brownlow I, the Court concluded it was unnecessary for plaintiffs’ experts to determine the ozone levels in plaintiffs’ house to establish a prima facie case of causation under the MCPA. Therefore, the facts did not materially change between those present in Brownlow I and the current appeal even though plaintiffs’ new experts were unable to calculate the level of ozone concentration in the house as was done by plaintiffs’ original, now deceased experts. The facts did not materially change simply because the new experts were unable to rule out other causes of damage to plaintiffs’ house or because the ozone generator was broken when tested six years after the incident; the new experts’ opinions would go to the weight of the evidence presented at trial and did not materially change the facts.
- The trial court abused its discretion by granting McCall Enterprises’ motion in limine to prohibit plaintiffs’ recovery of damages for the loss of personal property and the use and enjoyment of the house. Contrary to the trial court‘s conclusion, the Court of Appeals did not implicitly or explicitly decide in Brownlow I whether plaintiffs’ claim for property damage under the MCPA was limited to real property damage. Therefore, because Brownlow could pursue a claim for personal property damages under the MCPA, the trial court erred by dismissing Brownlow as a party to the MCPA claim on the basis that he had no legal interest in the home and that there were no damages he could recover.
- The trial court did not fully determine under Daubert v Merrell Dow Pharm, Inc, 509 US 579 (1993), that plaintiffs’ new experts were unqualified to offer expert testimony regarding causation; the trial court failed to hold a full Daubert hearing to determine the experts’ qualifications. In addition, the trial court‘s underlying reasoning for concluding plaintiffs’ experts were unqualified—that they would have to speculate regarding the amount of ozone output from the generator and the level of ozone concentration in the house—went to the weight of their testimony regarding causation, not to their qualifications.
- The MCPA was enacted to eliminate the intent element of the common-law tort of fraud; it is a remedial statute designed to prohibit unfair practices in trade or commerce, and it must be liberally construed to achieve its intended goal. Contrary to McCall Enterprises’ argument, a plaintiff is not required to prove intent—an essential element of the common-law tort of fraud—to establish a violation of the MCPA unless the provision of the MCPA at issue specifically requires proof of intent. Given that the language of the act does not show a clear legislative intent to alter the common-law meanings of its fraud-based language, when the MCPA contains an ambiguous technical term that has acquired a peculiar meaning under the common law, courts should interpret that term with guidance from the common-law tort of fraud.
MCL 445.903(1) of the MCPA provides that unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce are unlawful in certain circumstances. While certain provisions of the MCPA require proof of a merchant‘s intent, other provisions do not. In this case, plaintiffs were not required to prove that McCall Enterprises knowingly made a statement that was false, acted recklessly without any knowledge of the statement‘s truth, or knowingly or recklessly failed to reveal a material fact in order to establish that the company violatedMCL 445.903(1)(c) ,(e) ,(s) , or(cc) of the MCPA.- While plaintiffs were not required to prove intent for purposes of establishing a violation under
MCL 445.903(1)(c) ,(e) ,(s) or(cc) , there was a genuine issue of material fact regarding McCall Enterprises’ liability under the MCPA, and plaintiffs were not entitled to partial summary disposition on that issue.
In Docket No. 325843, trial court orders that granted summary disposition in favor of McCall Enterprises, dismissed Brownlow as a party, and awarded McCall Enterprises case evaluation sanctions against Brownlow reversed. In Docket No. 326903, trial court order that granted case evaluation sanctions against Travis reversed. Case remanded.
CONSUMER PROTECTION - CONSUMER PROTECTION ACT - NO GENERAL ELEMENT REQUIRING PROOF OF INTENT.
Donnelly W. Hadden, PC (by Donnelly W. Hadden), for Ronald Brownlow and Susan Travis.
Secrest Wardle (by John Mitchell and Sidney A. Klingler) for McCall Enterprises, Inc.
Before: GLEICHER, P.J., and MURPHY and OWENS, JJ.
PER CURIAM. In this consolidated appeal, plaintiffs, Ronald Brownlow and Susan Travis, appeal as of right two orders entered by the trial court. The first, at issue in Docket No. 325843, is a July 29, 2015 final order that granted summary disposition in favor of defendant McCall Enterprises, Inc.,1 and dismissed plaintiff Travis‘s claim for damages under the Michigan Consumer Protection Act (MCPA),
This case was previously before this Court in Brownlow v McCall Enterprises, Inc, unpublished opinion per curiam of the Court of Appeals, issued February 12, 2013 (Docket Nos. 306190 and 307883). A small fire occurred in plaintiffs’ microwave on March 12, 2007, which filled plaintiffs’ house with smoke. Plaintiffs filed a claim with their insurer, State Farm Fire and Casualty Company, who retained defendant to remove the smoke odor from plaintiffs’ house. Defendant placed an ozone generator in plaintiffs’ kitchen, turned it on, and let it run for 24 hours. Plaintiffs were instructed to leave for the weekend, and when they returned, the smoke odor was gone. However, there was significant new damage to the inside of the house, particularly to carpet, upholstery, wood, plastic, and rubber surfaces. Plaintiffs also alleged that they suffered heаlth problems as a result of the ozone exposure.
Plaintiffs filed a complaint against State Farm and McCall Enterprises, alleging that plaintiffs had sustained personal injuries and property damage from excessive ozone exposure and asserting claims for negligence and violations of the MCPA. The negligence claims were dismissed, and plaintiffs do not appeal that ruling. The trial court
This Court reversed the trial court order, concluding that the general transaction of cleaning a housе was not specifically authorized by defendant‘s contractor license and therefore not exempt from the act. Brownlow, unpub op at 3-4. This Court also addressed defendant‘s alternate argument supporting summary disposition—that plaintiffs could not establish causation under the MCPA. Id. at 4-6. This Court rejected that argument, concluding that plaintiffs had presented “sufficient evidence for a jury to conclude that the ozone generator caused the damage to plaintiffs’ house without resort to speculation.” Id. at 6. Specifically, this Court concluded that plaintiffs did not need to establish the precise amount of ozone that had been released into their house to establish that it caused the damage. Id. at 5. The literature and expert reports provided by plaintiffs supported the conclusion that ozone can damage household materials, and the damage plaintiffs alleged was consistent with ozone exposure. Id. at 5-6. Our Supreme Court denied leave to appeal. Brownlow v McCall Enterprises, Inc, 495 Mich 852 (2013).
We remanded the case to the trial court, and defendant moved in limine to preclude claims for personal property damages and for loss of use and enjoyment. Defendant argued that this Court‘s prior opinion specifically limited plaintiffs’ MCPA claim to damage to their “house,” which implicitly included only the realty. Defendant also asked the trial court to dismiss plaintiff Brownlow as a party to the action on the basis that he did not have a legal interest in the house and, therefore, did not have standing to assert a claim for real property damages. The trial court granted defendant‘s motion and ordered that plaintiff Travis be precluded from presenting proof of damages to personal property and for loss of use and enjoyment of the property and that plaintiff Brownlow be dismissed from the action. The trial court also granted defendant‘s motion to award it attorney fees and costs as case evaluation sanctions аgainst plaintiff Brownlow.
Defendant then moved for summary disposition pursuant to
The trial court issued a written opinion finding that plaintiff Travis‘s experts were not qualified to opine on causation beсause, among other things, they did not have experience with the type of ozone generator used in this case or they were unable to testify regarding the ozone concentration
First, plaintiffs argue that the law-of-the-case doctrine precluded the trial court from considering defendant‘s second motion for summary disposition on the issue of causation given that this Court previously ruled there was sufficient evidence of causation to go to a jury. “The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue,” but only if the facts remain materially the same. Driver v Hanley (After Remand), 226 Mich App 558, 565; 575 NW2d 31 (1997). The doctrine‘s purpose “is the need for finality of judgments and the lack of jurisdiction of an appellate court to modify its judgments except on rehearing.” South Macomb Disposal Auth v American Ins Co, 243 Mich App 647, 654; 625 NW2d 40 (2000).
Defendant cites Brown v Drake-Willock Int‘l, Ltd, 209 Mich App 136, 144; 530 NW2d 510 (1995), citing Borkus v Mich Nat‘l Bank, 117 Mich App 662, 666; 324 NW2d 123 (1982), for the principle that “[w]hen this Court reverses a case and remands it for a trial because a material issue of fact exists, the law of the case doctrine does not apply because the first appeal was not decided on the merits.” Defendant argues that because this Court‘s prior decision resulted in a remand for trial predicated on the existence of a genuine issue of material fact regarding causation under the MCPA, the law-of-the-case doctrine is not imрlicated because the first appeal was not decided on its merits. Defendant, however, misinterprets Brown and Borkus.
In both Brown and Borkus, on which Brown relied, this Court did not make a ruling on a question of law before reversing the trial court‘s grant of summary disposition; it simply ruled in both cases that factual questions existed that precluded summary disposition. In the first appeal in this case, it was not merely the existence of factual questions that occasioned this Court‘s remand order, unlike in Brown and Borkus. Rather, this Court ruled as a matter of law that the transaction at issue fell under the MCPA, and that ruling was necessary to this Court‘s determination that the trial court had erred by granting summary disposition, particularly when the trial court held that the transaction was exempt from the MCPA and did not address whether plaintiffs proved causation under the MCPA. It was the decision that the MCPA applied as a matter of law that primarily necessitated this Court‘s remand, and it was then left to the trier of fact to resolve the question of causation under the MCPA.
Further, in Borkus this Court hаd initially reversed because factual questions existed. Borkus, 117 Mich App at 667. On remand to the trial court, a bench trial was held. Id. at 665. The defendant appealed the trial court‘s ruling, and the plaintiff argued that the law-of-the-case doctrine barred this Court from considering the issues raised by the defendant. Id. at 666. However, because this Court‘s earlier decision in Borkus simply ruled that factual questions existed, which
In Brown, the plaintiff argued that the law-of-the-case doctrine precluded the defendants from relitigating the issue of duty to warn. Brown, 209 Mich App at 144. This Court stated that the plaintiff misunderstood this Court‘s prior decision. Id. Specifically, this Court explained that it had not previously ruled that the defendants, as manufacturers, had a duty to warn of the dangers of formaldehyde. Id. Rather, this Court held that factual questions existed with regard to whether the use of formaldehyde as a cleaning agent was foreseeable, which precluded summary disposition. Id. It was that ruling which occasioned this Court‘s remand order. Id. This Court did not decide the merits of the plaintiff‘s claim regarding the duty to warn of the dangers of formaldehyde, so logically, the law-of-the-case doctrine would not apply, thus leading to the Brown Court‘s citation of Borkus, stating, “When this Court reverses a case and remands it for a trial because a material issue of fact exists, the law of the case doctrine does not apply because the first appеal was not decided on the merits.” Id.
It is too broad to read Brown and Borkus as barring application of the law-of-the-case doctrine whenever there is a grant of summary disposition based on the presence of factual questions, and doing so undermines the doctrine‘s purpose and effectively eviscerates it. As can be understood from the facts of Brown and Borkus, the principle defendant cites from those cases merely indicates that the law-of-the-case doctrine does not apply to issues that were never decided by this Court. That principle applies to situations in which this Court merely remanded because factual questions existed and never addressed issues that were later raised in a second appeal. Notably, in both Brown and Borkus, the parties were not relitigating the issue on which this Court previously remanded because factual questions existed. Rather, they were challenging other issues that were raised in the first appeal but never decided by this Court.
In our prior dеcision in this case, this Court clearly determined that the issue of causation should go to the jury. Nevertheless, in moving for summary disposition a second time, defendant relitigated the issue of causation. The law-of-the-case doctrine clearly precluded defendant from doing so, and it was error for the trial court to consider defendant‘s motion.
We also reject defendant‘s argument that the law-of-the-case doctrine does not apply because the facts have materially changed. See South Macomb Disposal Auth, 243 Mich App at 655; Driver, 226 Mich App at 565. Defendant argues that the facts materially changed because of the substitution of new expert witnesses whose opinions were speculative and because the ozone generator was broken when it was tested years after the incident.
Further, defendant spends a great deal of time arguing that the level of ozone concentration in the house was unknown and that plaintiffs’ new experts, unlike Brown, were unable to express an opinion regarding the level of ozone concentration in the house. Brown‘s calculation of the ozone levels in plaintiffs’ house, however, is not necessary for plaintiffs to establish causation. As this Court stated in the prior opinion, this fact is irrelevant. Brownlow, unpub op at 5. Plaintiffs do not need to establish the precise amount of ozone released into their house to infer causation. Id. It was undisputed that defendant placed an ozone generator in plaintiffs’ house on Friday and set it to an output of “8” on a scale of 0 to 10. Plaintiffs were instructed to leave for the weekend and returned on Monday to discover extensive interior damage to a variety of surfaces, including carpet, upholstery, wood, brick, plastic, and rubber. Plaintiffs presented evidence, through their experts and literature, that ozone reacts with these various organic materials, and defendant does not dispute that ozone can cause damage to building materials as well. As this Court previously concluded, this is enough to infer causation without resort to speculation. These facts remained materially the same and were not affected by the substitution of new experts, pаrticularly when, as discussed, the new experts were able to opine that the damage to plaintiffs’ house was consistent with ozone exposure. Once this Court concluded that plaintiffs established a prima facie case of causation under the MCPA to warrant a trial, plaintiffs were entitled to prove their case how they saw fit. The experts’ opinions simply go to the weight of the evidence presented at trial. See Bouverette v Westinghouse Electric Corp, 245 Mich App 391, 401; 628 NW2d 86 (2001) (noting that “an opposing party‘s disagreement with an expert‘s opinion or interpretation of facts... are matters of the weight to be accorded to the testimony, not its admissibility“).
Second, the fact that the ozone generator was broken when it was tested six years after the incident did not materially change the facts. Rather, it goes to the weight of the evidence at trial. Simply because the generator was broken six years after the incident does not automatically mean that the machine was not operating properly when it was placed in plaintiffs’ house. This is particularly true when there is no indication from the testimony of defendant‘s employee that the generator was not operating as intended when he placed it in plaintiffs’ house, the ozone generator successfully removed the smoke odor, and plaintiffs presented evidence that the damage to their house was consistent with ozone exposure.
Therefore, we conclude that the law-of-the-case doctrine applies to the issue of
Next, plaintiffs argue that the trial court abused its discretion by granting defendant‘s motion in limine to exclude damage to personal property. A trial court‘s decision to grant or deny a motion in limine is reviewed for an abuse of discretion. Bartlett v Sinai Hosp of Detroit, 149 Mich App 412, 418; 385 NW2d 801 (1986). The abuse of discretion standard recognizes that if there is more than one reasonable and principled outcome, a trial court does not abuse its discretion if it selects one of those outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
The trial court determined that this Court‘s decision in the earlier appeal limited the MCPA claim to damage to real property only, and therefore it was bound by the law-of-the-case doctrine. Specifically, the trial court determined that this Court‘s use of the term “house” limited damages to “the structure itself” and implicitly excluded plaintiffs’ personal-property-damage and quiet-enjoyment claims from being considered on remand.
The law-of-the-case doctrine applies “only to issues actually decided, either implicitly or explicitly, in the prior appeal.” Grievance Administrator v Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000). The issue whether plaintiffs’ claim for property damage under the MCPA was limited to real property was never before this Court previously, and this Court did not implicitly or explicitly decide that issue.
In our opinion, this Court interchangeably used the terms “home” and “house” and only referred to damage as “property” damage. Additionally, this Court implicitly referred to damage that occurred to plaintiffs’ personal property. For example, with regard to causation, we determined that there was sufficient evidence that ozone can damage building and household materials. Brownlow, unpub op at 5. As we noted in the first appeal, this evidencе included plaintiffs’ allegations that after the ozone machine had been running for the weekend, “a variety of exposed surfaces—including carpet, upholstery, wood, brick, and plastic—had been damaged. Among other things, finish had come off of wood, furniture changed color, bricks were crumbling, plastic had aged, and carpets were sticky.” Id. at 5-6.
Contrary to the trial court‘s determination, there was no need for this Court to specify those types of property damages that may be recovered under the MCPA because that issue was not before this Court. Plaintiffs’ claim under the MCPA involved property damage to their house, and plaintiffs’ complaint made it clear that this included real and personal property—a fact acknowledged and not contested by defendant in the prior appeal. Finally, “house” is defined as “a building in which people live; residence,” or “a household.” Random House Webster‘s College Dictionary (2001). The dеfinition in no way restricts the term to “the structure itself” or “realty,” as the trial court defined it.
Therefore, the trial court abused its discretion by granting defendant‘s motion in limine to limit plaintiffs’ MCPA claim to real property damages only. Bartlett, 149 Mich App at 418. Consequently, the trial court erred by dismissing plaintiff Brownlow as a party for lack of
Finally, plaintiffs argue that the trial court erred by declining to grant their countermotion for summary disposition regarding defendant‘s liability under the MCPA. We review de novo a trial court‘s decision on a motion for summary disposition. Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). “A motion under
Plaintiffs argue summary disposition regarding liability was appropriate because defendant violated
(1) Unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce are unlawful and are defined as follows:
* * *
(c) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have.
* * *
(e) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.
* * *
(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.
* * *
(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.
The parties argue over whether the MCPA should be construed with reference to the common-law tort of fraud. Defendant relies on Zine v Chrysler Corp, 236 Mich App 261, 283; 600 NW2d 384 (1999), quoting Mayhall v AH Pond Co, Inc, 129 Mich App 178, 182-183; 341 NW2d 268 (1983), in which this Court stated “that it is proper to construe the provisions of the MCPA ‘with reference to the common-law tort of fraud.‘” Defendant argues that the MCPA subsections on which plaintiffs rely are fraud based, and therefore plaintiffs must plead and establish all the elements of fraud, specifically that defendant had actual knowledge of the misrepresentation or a reckless disregard of its truth.3 However, defendant‘s argument erroneously
interprets the rule of law stated in Zine, and writes elements of fraud into the provisions of the MCPA that do not, and should
It is well settled that “[t]he primary goal of statutory interpretation is to give effect to the Legislature‘s intent.” Ford Motor Co v Woodhaven, 475 Mich 425, 438; 716 NW2d 247 (2006). The first step in determining the Legislature‘s intent is to review the language of the statute itself. Id. If the language is plain and unambiguous, then this Court is to apply the statute as written. Id. at 438-439. “Unless statutorily defined, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used.” Krohn v Home-Owners Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011); see also
The panel in Zine held that it is “proper” (but did not hold that it is required) to interpret the provisions of the MCPA with reference to the common-law tort of fraud (just as it is proper, but not required, to resort to a dictionary to determine the plain and ordinary meaning of nontechnical words in statutes). Zine, 236 Mich App at 283; see also
Quoting 2B Singer, Statutes and Statutory Construction (6th ed), § 50:03, p 152, the Ford Motor Co Court stated that when interpreting technical terms that have acquired a peculiar meaning under the law, “‘common-law meanings are assumed to apply even in statutes dealing with new and different subject matter, to the extent that they appear fitting and in the absence of evidence to indicate contrary meaning.‘” Ford Motor Co, 475 Mich at 439. In Zine, it was fitting for the panel to consult the common-law tort of fraud to define “material fact” because the MCPA is in many ways derivative of the common-law tort of fraud. However, the MCPA was enacted to eliminate an essential element of the common-law tort of fraud, i.e., proof of the intent of the merchant. Bladen, How and Why the Consumer Protection Act Came To Be (2005), pp 9-10, available at <https://higherlogicdownload.s3.amazonaws.com/MICHBAR/3b217bd2-fb65-46ff-86co-eala7b303b13/UploadedImages/pdfs/HowWhy.pdf> (accessed April 1, 2016) [https://
Although Edwin M. Bladen, an author of the MCPA, has stated that the authors of the act did not intend for it to be construed with reference to the common-law tort of fraud, How and Why the Consumer Protection Act Came To Be, pp 9-10, this statement was made in discussing the authors’ aim to eliminate the element of proof of intent. There is nothing in the MCPA that suggests the Legislature intended to alter the common-law meanings of the fraud-based language used in the MCPA. See Ford Motor Co, 475 Mich at 439 (noting that absent a clear legislative intent in the GPTA to alter the meaning of the common-law term “mutual mistake of fact,” the Court could refer to the common law to define the term as used in the GPTA). Indeed, “it is a well-established rule of statutory construction that the Legislature is presumed to be aware of judicial interpretations of existing law when passing legislation.” Id. at 439-440 (quotation marks and citation omitted). Therefore, consistently with our holding in Zine and longstanding principles of statutory interpretation, we may refer to the common-law tort of fraud
for guidance when interpreting ambiguous provisions of the MCPA, but only if necessary, i.e., when the act contains a technical term that has acquired a peculiar meaning under the law.
Contrary to defendant‘s argument, the panel in Zine did not hold or imply that a plaintiff must plead and prove all elements of fraud, particularly intent, when asserting a claim under the MCPA, even if certain provisions of the act contain fraud-based language; there are no published cases from this Court or our Supreme Court that state this proposition. By asserting that plaintiffs must show that defendant had actual knowledge of the misrepresentation or a reckless disregard of its truth, defendant ignores the unambiguous language of the MCPA and undermines the Legislature‘s intent to eliminate the intent element of fraud. Simply because сertain subsections of the MCPA contain fraud-based language does not mean that every prohibited practice enumerated in the MCPA requires proof of intent. When the Legislature intended to require a plaintiff to prove the defendant‘s intent, it specifically so provided in the statute. See, e.g.,
The plain, unambiguous language of the prohibited practices at issue in this case,
First, regarding
controlling indoor air pollution, health professionals have refuted these claims “for centuries.” Nevertheless, Siegel testified during his deposition that an ozone generator is capable of removing odors by reacting with components of the odors and chemically converting them to something that is less odorous. Brian McCall, the owner of McCall Enterprises, also testified that he operates an ozone generator in his building a couple times a month, and he did not state that it was ineffective at removing indoor air pollution. Accordingly, there is a genuine issue of material fact whether the ozone generator was cаpable of removing the smoke odor.
Next, regarding
Next, plaintiffs argue that defendant violated
Finally, plaintiffs argue that defendant violated
Finally, our holdings that the trial court erred by granting defendant‘s second motion for summary disposition regarding causation and by dismissing plaintiff Brownlow as a party for lack of standing necessitate reversal of the case evaluation sanctions against both plaintiffs; therefore, we decline to address the issues raised by plaintiffs regarding the case evaluation sanctions.
In Docket No. 325843, we reverse the trial court‘s order granting summary disposition in favor of defendant and against plaintiff Travis. We also reverse the trial court‘s order dismissing plaintiff Brownlow as a party, as well as the order awarding defendant case evaluation sanctions against plaintiff Brownlow. In Docket No. 326903, we reverse the trial court‘s orders granting case evaluation sanctions against plaintiff Travis. We remand the matter for proceedings consistent with our opinion, and we direct that on remand the matter be assigned to a different circuit court judge.
Plaintiffs, having prevailed in full, may tax costs pursuant to
GLEICHER, P.J., and MURPHY and OWENS, JJ., concurred.