Plаintiffs appeal as of right a December 20, 1986, circuit court judgment of no cause of action against defendants Paul and Mary *210 Joldersma and separate circuit court orders granting defendants Buehler Realty, Inc., and James M. Parrette’s motion for summary disposition. Plaintiffs present a myriad of issues for our review; however, wе find that none require reversal.
This case arose out of a dispute over alleged fraudulent representations and omissions surrounding the sale of a party store located in Newaygo County, Michigan. On July 23, 1981, defendants Paul and Mary Joldersma sold their party store to plaintiffs on a land contract. In September, 1984, plaintiffs filеd suit against the Joldersmas, Buehler Realty, Inc., and realtor James Parrette, alleging that defendants fraudulently concealed the material fact that the State of Michigan had plans to construct a highway bypass as part of M-37 running north from Newaygo which would substantially divert all traffic from both M-82 and M-37 away from the party store. Plaintiffs further alleged that the construction of the bypass, which was completed in 1984, destroyed the value of their business. Plaintiffs sought rescission of the land contract, restitution, and exemplary damages for mental distress.
On April 18, 1985, plaintiffs filed an amended complaint alleging the following: fraud against the Joldersmas, Parrette, and Buehler (Cоunts i and iv); innocent misrepresentation against the Joldersmas, Buehler, and Parrette (Counts n and v); and breach of contractual duty of care against Buehler and Parrette (Count hi).
On May 8, 1985, defendants Buehler Realty and Parrette moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). On June 14, 1985, defendants Paul and Mary Joldersma followed suit and filed their mоtion for summary disposition on the basis of MCR 2.116(C)(7) and (10).
On June 18, 1985, an initial hearing on all *211 defendants’ motions was held before Judge Terrence Thomas. Judge Thomas took the various motions under advisement and, while a decision was pending, removed himself from the case because of a potential conflict of interest. On February 24, 1986, a hearing was held before Judge Charles Wickens on the various summary disposition motions. On March 13, 1986, Judge Wickens issued his opinion granting summary disposition to defendants Buehler Realty, Inc., and its agent, James Parrette. In the same opinion, defendants Joldersmas’ motion was denied because the court concluded that a factual issue was presented.
Plaintiffs then рroceeded to a three-day bench trial against the only remaining defendants, Paul and Mary Joldersma, in which plaintiffs primarily sought rescission of the land contract and damages for fraud. About six months after trial, Judge Wickens issued his opinion of no cause of action and awarded costs to the Joldersmas.
Plaintiffs argue first that thе court erred in granting summary disposition in favor of Buehler Realty, Inc., and James M. Parrette. As there is no mention whatsoever in the court’s opinion regarding the statute of limitations as a basis for summary disposition, we decline to address that aspect of plaintiffs’ argument.
In granting summary disposition in favor of these defendants, the cоurt reasoned:
There is no privity of contract between the Plaintiffs and the real estate agency that would justify this action. There is no activity by either of these defendants growing out of the scope of their agency relationship with the sellers which would warrant an action against the real estate agency separate from the sellers.
Although not expressly stated, the tenor of the *212 court’s ruling indicates that it was based on MCR 2.116(C)(8).
In Count iv of the first amended complaint, plaintiffs alleged "silent fraud” or fraudulent concealment of a material fact against Parrette and Buehler. In Count v, the theory of innocent misrepresentation was alleged.
We first address the former theory, i.e., "silent frаud” or fraudulent concealment of a material fact. As correctly noted by defendants, Michigan courts have held a seller liable to a buyer for failing to disclose material defects in the property or its title. See, e.g.
Groening v Opsata,
Although plaintiffs focus on Count iv, we also find that Count v, innocent misrepresentation, was properly dismissed. In order to properly state a claim under this theory, privity of contract must bе established. United States Fidelity, supra at 118-119. We find that such a requirement was lacking as between plaintiffs and Parrette and Buehler and, thus, summary disposition was properly granted as to this claim as well.
Similarly, plaintiffs also claim that the trial court erred in determining that defendants Paul and Mary Joldersmas’ actions in failing to disclose the reconstruction bypass plan constituted actionable fraud. We disagree.
In
Jaffa v Shacket,
"(1) a material representation which is false; (2) known by defendant to be false, or made recklessly without knowledge of its truth or falsity; (3) that defendant intended plaintiff to rely upon the representation; (4) that, in fact, plaintiff acted in reliance upon it; and (5) thereby suffered injury. . . . The false material representation needed to establish fraud may be satisfied by the failure to divulge a fact or facts the defendant has a duty to disclose. Such an action is one of fraudulent concealment.” [Citations omitted.]
After hearing all the evidenсe, the trial court concluded there was "no fraud or innocent or intentional concealment or misrepresentation on the part of Defendant sellers.” The trial judge found no existing facts that created for the sellers a duty to disclose the possibility that the reloca *214 tion of M-37 might take place in the future, pending federal funding. Additionally, the pertinent facts with respect to the proposed project were of public record and plaintiffs employed Roy Heppe, a cpa, to investigate these facts for them. Finally, the court concluded that, even if the relocation of M-37 would have been material to plaintiffs’ store operation, they did not rely on the sellers to disclose this information but, rather, relied on Heppe, in whom they had placed their reliance.
We are not persuaded, after thoroughly examining the entire record,
Kar v Hogan,
Not insignificantly, plaintiffs wrote to the state Department of Licensing and Regulation on June 20, 1983, requesting a full inquiry regarding Heppe’s alleged malpractice with respect to the purchase. Excerpts from this letter further evidenсe plaintiffs’ reliance on Heppe regarding the decision to purchase the property:
In summary: Our purchase was contingent upon the ñndings and recommendations of Mr. Heppe, whom we paid, for his professional expertise. Because of this, we now find ourselves with a party store that was over pricеd — which we cannot sell *215 because of the land contract balances and the fact it is to be by-passed by the Michigan State Highway Department.
When construction of the by-pass is started, I can think of no conceivable way a payment of $1,167 per month plus expenses can be made. Mr. Joldersma knew this — Mr. Parrettе knew this — we paid Mr. Heppe — now we know it. We trusted Mr. Heppe completely — placed our lifesavings, assets and future in his hands. In addition, I terminated my employment at Ford Motor Company after 24 years (30 year retirement and benefits) to purchase this store.
In conclusion, may I ask — Is not this c.p.a. responsible? Do we Have recourse? In our personal opinion, we feel he may bе guilty of breach of ethics. [Emphasis added.]
We are unpersuaded that the court erred in finding that plaintiffs did not in fact rely on the statements or omissions of the Joldersmas, James Parrette, or Bonnie Robbins. Rather, plaintiffs relied upon the recommendations of their agent, Roy Heppe. As reliance upon a false rеpresentation or omission of fact is a requisite element, Jaffa, supra at 640-641, plaintiffs simply cannot assert that a fraud was perpetrated upon them by parties upon whom they did not rely. For this reason we similarly find no merit to plaintiffs’ claim that the Joldersmas are responsible for any fraudulent concealment by their agent James Parrette and listing agent, Bonnie Robbins.
Plaintiffs next claim that they should not be charged with knowledge of the public record regarding the bypass plans. However, we find the cases cited by plaintiffs distinguishable from the case at bar. Further, failure to disclose the plan had no impact on the property title, per se. Signifiсantly, plaintiffs admit that prior to entering into the business transaction, they took note of the *216 "rickety old bridge.” A reasonable inquiry would have revealed the existence of the bypass project.
Finally, with respect to this issue, plaintiffs rely upon the following rule quoted in their brief:
The law of constructive notice can nevеr be so applied as to relieve a party from responsibility for actual misstatements and frauds, and to prevent a representee from having a right to rely upon representations under such conditions. Thus, one to whom a misrepresentation is made is not held to constructive notice of a public recоrd which would reveal the true facts. [37 Am Jur 2d, Fraud and Deceit, § 262, p 350. Emphasis added by plaintiffs.]
However, in this case defendants did not make "actual misstatements” regarding the bypass plans. Indeed, the very essence of this case is their failure to say anything at all.
We have carefully reviewed plaintiffs’ next argument — that a seller can bе liable for a misrepresentation of a future event — and find it has no merit. At the time of purchase, the bypass project was a future possibility — contingent upon federal approval and funding. Because of this fact, the Joldersmas’ failure to inform plaintiffs did not constitute a fraudulent omission.
We have similarly reviewed plаintiffs’ next allegation — that defendants failed in their burden of proving that plaintiffs did not rely upon defendants’ misrepresentations or omissions of fact— and find no reason to set aside the verdict on this basis.
Plaintiffs also claim that a defrauded party to a contract can rely on more than one representation and, thus, reliance on Heppe’s recommendation does not relieve the Joldersmas of liability because plaintiffs also relied on a continuation of traffic as *217 represented by the Joldersmas. However, the court expressly found plaintiffs did not rely upon statements or omissions of the Joldersmas. Having previously сoncluded that the court did not err in its findings, we find no basis for this claim.
Plaintiffs also contend that the Michigan Department of Transportation’s adoption of Proposal b (Bypass Plans) was a material fact. Be that as it may, materiality is but one element of fraud. The court concluded, and we do not disagree, that plaintiffs failed to establish all of the requisite elements necessary to prevail.
As to plaintiffs’ next issue, we agree that in the context of a rescission action, as here, it is irrelevant to what extent plaintiffs attempted to mitigate their damages.
Plaintiffs also assert that they have demonstrated the requisite legal damage suffered as a result of their reliance upon the alleged misrepresentation of defendants. However, defendants’ expert, Eric Adamy, testified that in his opinion the store was not nearly as profitable after plaintiffs assumed the business for reasons other than the relocation of M-37. According to Adamy, plaintiffs did not adequаtely promote the store, they did not maintain an adequate inventory, there was decreased emphasis on electronic sales, there was an economic recession, and finally, the number of party stores in Newaygo County increased. The court apparently gave considerable weight to this testimоny and concluded that plaintiffs had not been damaged by the highway bypass. We do not find error.
We cannot lose sight of the fact that during the last full year the Joldersmas operated the store, the gross sales were $365,727.02. After the first full year plaintiffs operated the business, gross sales dropped to approximately $200,234 (year end *218 ing June 30, 1982), followed by another decline to $163,730 for the next year (ending June 30, 1983). By the close of the next fiscal year (ending June 30, 1984), sales had increased slightly to $174,104. By the end of the fiscal year, sales had declined to $152,000. Significantly, however, the bypass project was not constructed until the first six months of 1984 which lends credence to the court’s conclusion that the relocation of M-37 had no significant impact on the decline in sales. Rather, it was owing to factors other than the bypass.
Plaintiffs further contend that the trial court erred in excluding a witness, Calvin Deitz, from testifying in plaintiffs’ case in chief. However, by failing to state any authority for their contention that the court’s ruling wаs error, this issue is not properly before us. As we have consistently stated, a party may not leave it to this Court to search for authority to sustain or reject a position.
Cramer v Metropolitan Savings Ass’n (Amended Opinion),
We have carefully reviewed plaintiffs’ final allegation of error and are unpersuaded that the court abused its discretion by admitting testimony conсerning financial operations of the party store after the date of closing. As the parties agree, plaintiffs sought rescission, an equitable remedy. Not only is this information relevant as to plaintiffs’ fraud claim, the remedy of rescission returns the parties to the status quo, i.e., it places the parties in the position thеy occupied before the transaction in question.
Grabendike v Adix,
Rescission of a land contract should not be
*219
granted where the result would be inequitable. The decision rests within the sound discretion of the court and each case must be decided on its own particular facts.
Schnitz v Grand River Avenue Development Co,
We are not unmindful of the hardship that has befallen plaintiffs with respect to acquisition of the party store and we express no opinion, beyond the scope of our appellate review, as to the origin. However, this case was heard on the merits and we find no basis in law or equity to upset the final verdict.
Affirmed.