20231214_C365250_35_365250.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RANDALL CHASE and RHIANNON CHASE, UNPUBLISHED
December 14, 2023
Plaintiffs-Appellants,
v No. 365250
Kent Circuit Court
JOEL WOLTJER, LC No. 22-002026-CH
Defendant-Appellee.
Before: FEENEY, P.J., and RICK and HOOD, JJ.
PER CURIAM.
Plaintiffs appeal as of right an order granting summary disposition to defendant under
MCR 2.116(C)(10) (no genuine issue of material fact). We affirm.
I. FACTUAL BACKGROUND
This case involves a claim of fraud arising from plaintiffs’ purchase of a house from
defendant. The purchase agreement was signed on August 27, 2020. Before the purchase was
completed, defendant executed a seller’s disclosure statement. In the statement, defendant
represented that: 1) There was no evidence of water in the basement or crawl space; 2) the roof
was approximately 10 years old, had been installed by a previous owner, and did not show signs
of leaking; 3) defendant was unaware of asbestos on the property; 4) no modifications to the
property had been made without the proper permits and licenses; and 5) there were no issues with
flooding, grading, or drainage on the property.
The purchase agreement contained a provision entitling plaintiffs to conduct a property
inspection and investigation within ten days. It further provided that if the inspection/investigation
results were not acceptable to plaintiffs, they could, upon timely written notice to the defendant,
either terminate the agreement and have their earnest money deposit refunded or make a written
proposal requesting defendant correct the unsatisfactory conditions. Plaintiffs hired a home
inspector to inspect the property. The home inspection report indicated 1) signs of water
penetration in basement and crawl space; (2) potential asbestos in the floor tiles; (3) signs of a
water leak around the chimney and roof plumbing vents; 4) wear and tear on the roof coverings;
5) a lack of flashing on parts of the roof that could cause leaking; 6) that the grade of the property
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was not properly sloped for water drainage away from the home, requiring the installation of
downspout extenders. Despite these indications, plaintiffs neither requested a refund of their
earnest money deposit, nor did they demand defendant to fix the unsatisfactory conditions.
Instead, plaintiffs opted to close on the sale of this property.
Plaintiffs began noticing issues with the property after they moved in. They initially
noticed water damage in several places, including the basement. In August 2021, approximately
a year after buying the house, plaintiffs hired Pillar to Post, a water intrusion company, to perform
an inspection. A representative from the company determined that there was evidence of water
damage in the basement and that the ground surface outside of the home was not properly sloped
to allow water to drain away from the foundation. Further water damage was found in the master
bedroom and a closet, which are both on the main floor of the home. Another company estimated
that the basement would need a number of major repairs costing $21,861.92. Mold and asbestos
were also discovered in the basement. It was estimated that it would cost an additional $4,412.24
to repair those issues. Further problems were also discovered, including a water leak that affected
the home’s electrical breaker box, improperly installed roofing and siding, improper grading of the
foundation around the house, and an improperly grounded water meter.
Plaintiffs filed a complaint against defendant in March 2022. According to plaintiffs, along
with the aforementioned issues requiring costly repairs, efflorescence1 was reportedly present in
the basement and was painted over. Some of the trim in the basement appeared to have recently
been replaced. The trim “had been attached with screws instead of finishing nails, presumably to
hide the evidence of water damage.” Additionally, plaintiffs claimed that the front crawl space
was covered with a corkboard “for unknown reasons.” Plaintiff’s alleged one count of fraud and
misrepresentation, arguing that defendant made material representations on the seller’s disclosure
statement that there was no water damage in the basement, no asbestos in the home, and no leaks
in the roof. Plaintiffs alleged that they were completely unaware of the severity of these issues
before buying the home because defendant did not disclose them. Plaintiffs estimated that the cost
of the repairs to the home, as detailed above, would total $121,102.02. They asked the trial court
to enter a judgment in their favor for that amount.
Defendant ultimately moved for summary disposition pursuant to MCR 2.116(C)(10). He
argued that plaintiffs could not establish a prima facie case of fraud or misrepresentation because
plaintiffs’ home inspection listed the same problems that plaintiffs claimed were unknown to them
prior to purchasing the property. He also noted that he made no representations about mold,
mildew, or the condition of the siding on the home, and thus contended that plaintiffs could not
claim they were misled by any such representations in order to prove their claim of fraud. In
response, plaintiffs argued that defendant’s motion should be denied because genuine issues of
material fact existed as to whether defendant knew about the following issues: “the existence of
extensive mold and mildew throughout the house, a leak in the breaker box causing a dangerous
1
Efflorescence is a white, chalky substance that appears on brick or concrete walls. It can be
purely cosmetic, or it can be an indicator of moisture in a home. Nick Gromicko, International
Association of Home Inspectors, Efflorescence for Inspectors <
https://www.nachi.org/efflorescence.htm> (accessed November 8, 2023).
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combination of water and electricity, asbestos originating from friable sources that do not include
floor tiles, and improper water meter grounding with improperly installed grounding rods.”
Plaintiffs further claimed that defendant’s motion for summary disposition should be denied
because there was evidence that he concealed some of the damage in the basement by 1) painting
over efflorescence; 2) installing new trim; and 3) installing corkboard over the crawl space.
Finally, plaintiffs argued that according to Titan Ins Co v Hyten, 491 Mich 547, 557; 817
NW2d 562 (2012), the doctrines of actionable fraud, innocent misrepresentation, and silent fraud
did not require plaintiffs to have performed an investigation into all of the assertions and
representations made by the defendant in order to establish their claim. Thus, plaintiffs did not
have a duty to investigate each and every one of defendant’s representations in the seller’s
disclosure statement. Instead, they merely needed to prove that defendant knew or should have
known about the property defects at the time the representations were made. Plaintiffs argued that
defendant did know about the defects, and that they relied on the misrepresentations listed in the
seller’s disclosure statement when they purchased the property. Accordingly, plaintiffs asked the
trial court to deny the motion for summary disposition.
A hearing was held on the motion, and the parties argued consistent with their briefs. In
an opinion issued after the hearing, the trial court found in favor of defendant. The court opined
that plaintiffs’ claims appeared to be based on speculation. It explained:
Plaintiffs have not attached any evidence that Defendant was aware of these
conditions as required by MCR 2.116(G)(4), and instead, seem to be resting upon
mere allegations in their Response Brief. Even when viewing Plaintiffs’ expert
inspection report and the color photographs in a light most favorable to Plaintiffs,
the opinions do not conclusively state that Defendant was the cause of these
conditions. Instead, the language is speculative, as it states that the screws to secure
the trim “may have been” an attempt to hide water damage. Moreover, the
inspection report does not conclude who may have been attempting to hide the
water damage, as Defendant was not the only owner of the home prior to the
Plaintiffs. At this point, Plaintiffs only have mere speculation, which is not enough
to get past a motion for summary disposition. Skinner v Square D Co, 445 Mich
153; 516 NW2d 475 (1994).
The trial court further noted that none of the issues regarding the mold and mildew, the
leak in the breaker box, the asbestos, or any water meter grounding issues could be subject to a
fraud action because none of those items were addressed in the seller’s disclosure statement and
there was no evidence that defendant made any misrepresentations about those issues. According
to the court,
In order to prevail on an action for fraudulent misrepresentation, a
misrepresentation must have been made which was relied upon by the Plaintiffs. In
order to prevail on silent fraud, there must have been a duty to disclose a known
defect. There is no evidentiary support for the assertion that Defendant knew of
these defects, and moreover, there is no evidence that a duty to disclose even arose,
as there were no inquiries made by Plaintiffs on these issues either.
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Accordingly, the trial court granted defendant’s motion for summary disposition. This appeal
followed.
II. ANALYSIS
Plaintiffs argue that the trial court erred by granting defendant’s motion for summary
disposition under MCR 2.116(C)(10) where questions of material fact remained as to whether
defendant committed fraud by failing to disclose certain defects in the home to plaintiffs prior to
selling them the house. We disagree.
A summary disposition motion brought under MCR 2.116(C)(10) is granted when “there
is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” MCR 2.116(C)(10). In evaluating the motion, “[t]he reviewing
court should . . . consider[] the substantively admissible evidence actually proffered in opposition
to the motion.” Jewett v Mesick Consol Sch Dist, 332 Mich App 462, 470; 957 NW2d 377 (2020)
(quotation marks and citation omitted). This includes “affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties.” Corley v Detroit Bd of Ed, 470 Mich
274, 278; 681 NW2d 342 (2004).
Generally, in the context of property transactions, “[c]aveat emptor prevails in land sales,
and the vendor . . . is not liable for any harm due to defects existing at the time of sale.” Lorenzo
v Noel, 206 Mich App 682, 685-686; 522 NW2d 724 (1994) (quotation marks and citation
omitted). However, prior to executing the sale of the house, defendant signed a seller’s disclosure
statement, which comported with the Seller Disclosure Act (SDA), MCL 565.951 et seq.
Specifically, defendant was required to “disclos[e] . . . the condition and information concerning
the property, known by the seller.” MCL 565.957. Such disclosures must be made in good faith
and with “honesty in fact in the conduct of the transaction.” MCL 565.960.
Under the SDA, two kinds of fraud actions may be maintained on the basis of a seller’s
disclosure statement: common-law fraud, also known as fraudulent misrepresentation, and silent
fraud. Roberts v Saffell, 280 Mich App 397, 414; 760 NW2d 715 (2008). In their complaint,
plaintiffs alleged one count of “fraud and misrepresentation,” the substance of which tracks with
a claim of “fraudulent misrepresentation.” Plaintiffs later discussed the doctrine of silent fraud in
relation to defendant’s motion for summary disposition. On appeal, plaintiffs do not specifically
differentiate between the two theories of fraud. However, they argue that defendant took steps to
conceal some of the damage to the property, which suggests that plaintiffs seek to have this issue
analyzed under both a silent fraud and fraudulent misrepresentation framework. To prove
fraudulent misrepresentation, a plaintiff must establish:
(1) the defendant made a material representation; (2) the representation was false;
(3) when the defendant made the representation, the defendant knew that it was
false, or made it recklessly, without knowledge of its truth as a positive assertion;
(4) the defendant made the representation with the intention that the plaintiff would
act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered
damage. [M&D, Inc, 231 Mich App at 27.]
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A claim of silent fraud may be “established when there is a suppression of material facts and there
is a legal or equitable duty of disclosure.” Id. at 35-36. Further, “there must be some type of
misrepresentation, whether by words or action, in order to establish a claim of silent fraud.” Id.
at 36.
The main defects to the property cited by plaintiffs include 1) water damage in the
basement; 2) water damage on the main floor; 3) improper grading outside of the house; 4) the
presence of asbestos in tiles in the basement; 5) free-standing asbestos in the basement; 6) mold
and mildew in the basement; 7) a water leak affecting the breaker box; 8) improper grounding of
the water meter; and 9) an incorrectly installed roof and siding. Regarding the roof and siding,
plaintiffs’ pre-sale home inspection report stated that the roof would need to be replaced within a
few years and that a plumbing vent below the chimney was leaking because it could not be properly
flashed. It further indicated that the roof lacked additional flashings, which could cause leaks.
Regarding the grading of the property around the foundation, the report stated that “[t]he grade at
the front of home rear of home left side (facing front) right side (facing front) the house is flat.
We recommend a 10 degree slope away from the house to properly drain water away.” Regarding
water damage to the basement, the report merely stated that “[t]here are signs of water penetration
in the past. We would recommend that precautionary measures be taken to prevent future
problems. Examples: (Install proper grading around the house and install gutters and downspouts
to divert water away from the house.)” It further stated that there appeared to be asbestos tiles in
the basement and recommended that they be tested. In the seller’s disclosure statement, defendant
answered “no” in response to a section asking: “Basement/Crawl Space: Has there been evidence
of water?” Defendant also answered “no” to a question asking whether there were any roof leaks
on the property. He further answered “no” to a question asking whether there were any “[s]ettling,
flooding, drainage, structural, or grading problems” on the property. Notably, the seller’s
disclosure statement did not address the asbestos, mold and mildew, or electrical problems.
Plaintiffs claim that defendant made a series of material representations on the seller’s
disclosure statement regarding water damage, flooding and grading issues, and roof leaks, but there
is no evidence that they were false, that defendant knew they were false, or otherwise made them
recklessly or without knowledge of the truth. M&D, Inc, 231 Mich App at 27. Nevertheless,
plaintiffs claim that these statements were made with knowledge that they were false, citing
evidence that defendant tried to conceal some of the damage in the basement by painting over
efflorescence, covering the crawl space, and replacing trim. But according to an affidavit
submitted to the trial court by defendant, he merely covered the crawl space with a new corkboard
to improve its appearance, and painted the basement for cosmetic reasons before selling the house.
Defendant flatly denied replacing the trim in the basement.
With little more than plaintiffs’ speculation about the purpose for which defendant made
these modifications to the basement, we cannot conclude that he did so to conceal damage to the
property. To support their claim of fraudulent misrepresentation, plaintiffs were required to
establish that defendant made a material misrepresentation recklessly or knowing that it was false,
and with the intent to deceive. See M&D, Inc, 231 Mich App at 27. To support a claim of silent
fraud, plaintiffs must establish that defendant made a misrepresentation that was intended to
deceive, or that he intentionally suppressed material facts to create a false impression. See Roberts,
280 Mich App at 404. In either case, plaintiffs have not established that defendant intended to
deceive them, and thus, their claims of fraudulent misrepresentation and silent fraud with respect
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to water damage, roof leaks, issues with the grading of the land around the foundation, and the
presence of asbestos tiles, all of which were addressed in the seller’s disclosure statement, lack
merit.
Further, even if this Court were to agree that defendant intentionally or recklessly made
material misrepresentations in the seller’s disclosure statement, plaintiffs would still need to show
that they reasonably relied on those representations to their detriment in order to establish their
claim. M&D, Inc, 231 Mich App at 47. We conclude that they cannot do so. The home inspection
report indicated that water damage was a problem in the home in the past as a result of the grading
of the land and problems with the roof. The inspector opined that water damage could become a
problem in the future if certain aspects of the exterior of the home were not repaired or altered to
ensure that water did not get in the house. That happened, prompting plaintiffs to file this lawsuit
approximately 19 months later. The report also clearly states that there are asbestos tiles in the
basement. Given the contents of the home inspection, and viewing the evidence in the light most
favorable to plaintiffs, we conclude that plaintiffs did not reasonably rely on defendant’s
representations in the seller’s disclosure statement with regard to water damage in the home, issues
with the grading of the land, problems with the roof, and asbestos tiles in the basement. Instead,
they ignored their own expert and instead moved forward to purchase the home.
Indeed, the purchase agreement contained a provision entitling plaintiffs to have the home
inspection completed before going through with the purchase. It delineated the possible options
available to plaintiffs if the inspection proved unsatisfactory:
All inspections and investigations will be completed within ten (10) days
after the Effective Date. If the results of Buyer’s inspections and investigations are
not acceptable to Buyer, Buyer may, within the above referenced period, by written
notice to Seller, either terminate this Agreement and receive a refund of Buyer’s
Earnest Money Deposit, or make a written proposal to Seller to correct those
unsatisfactory conditions. If Buyer fails to make a written proposal within the
above referenced time period, then Buyer will be deemed to have accepted the
Property as is.
Generally, “[t]here is no fraud where means of knowledge are open to the plaintiff and the degree
of their utilization is circumscribed in no respect by defendant.” Schuler v American Motors Sales
Corp, 39 Mich App 276, 280, 197 NW2d 493 (1972). However, “[t]hat general rule has an
important caveat: parties do not have an independent duty to investigate and corroborate
representations unless they were presented with some information or affirmative indication that
further investigation was necessary.” Coosard v Tarrant, 342 Mich App 620, 637-638; 995 NW2d
877 (2022) (quotation marks and citation omitted). Based on the information contained in the pre-
sale home inspection report, there were many indications that further investigation of the property
might be necessary. At that point, plaintiffs did have a duty to investigate and corroborate whether
defendant’s representations on the seller’s disclosure statement matched the results of the home
inspection report. According to the purchase agreement, plaintiffs could have refused to go
through with the sale and demanded the return of their earnest money deposit or they could have
asked defendant to fix the defects that were revealed during the inspection. Plaintiffs did neither.
Instead, they closed on the property, defects and all. In doing so, they accepted the property “as
is.” We recognize that “an ‘as is’ clause will not protect a seller against a claim for fraud merely
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because the buyer could have discovered the truth. Instead, it must have been reasonable to expect
the buyer to discover a defect upon inspection, and it must also be reasonable for the buyer to
conduct the inspection in the first place.” Id. at 638 (footnote omitted). But here, it was eminently
reasonable to expect that plaintiffs should have discovered the defects to the property after
conducting the pre-sale inspection, which they were entitled to conduct pursuant to the provision
regarding inspections detailed in the purchase agreement. Under the circumstances, we cannot
conclude that plaintiffs reasonably relied on any alleged misrepresentations by defendant.
This still leaves a number of matters yet to be addressed, including the water leak that
damaged plaintiffs’ electrical breaker box, the improper grounding of the water meter, and free-
standing asbestos, mold, and mildew in the basement. Plaintiffs seek to hold defendant
accountable for these issues under a theory of fraudulent misrepresentation or silent fraud, on the
basis of the representations made in the seller’s disclosure statement. But none of these issues
were specifically addressed in the seller’s disclosure statement. “A misrepresentation claim
requires reasonable reliance on a false representation.” Nieves v Bell Indus, Inc, 204 Mich App
459, 464; 517 NW2d 235 (1994). Likewise, “in order to prove a claim of silent fraud, a plaintiff
must show that some type of representation that was false or misleading was made and that there
was a legal or equitable duty of disclosure.” M&D, Inc, 231 Mich App at 32. Defendant made no
representations at all about these issues on which plaintiffs could claim to have relied. Thus, they
cannot establish fraudulent misrepresentation or silent fraud in relation to these matters.
Accordingly, we conclude that the trial court did not err by granting summary disposition to
defendant.
Affirmed.
/s/ Kathleen A. Feeney
/s/ Michelle M. Rick
/s/ Noah P. Hood
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