Paul Locher v. Estate of Bradley M Zimmerman

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
PAUL LOCHER and PATRICIA LOCHER, UNPUBLISHED
February 18, 2020
Plaintiffs-Appellants,
v No. 346566
Oakland Circuit Court
ESTATE OF BRADLEY M. ZIMMERMAN, by LC No. 2017-159250-CZ
LYNN ZIMMERMAN, Personal Representative,
ESTATE OF JOSEPHINE J. ZIMMERMAN, by
LYNN ZIMMERMAN, Personal Representative,
and LYNN ZIMMERMAN,
Defendants-Appellees.
Before: MURRAY, C.J., and SWARTZLE and CAMERON, JJ.
PER CURIAM.
Plaintiffs Paul and Patricia Locher appeal as of right the trial court’s order granting
summary disposition to defendants of plaintiffs’ claim under the Seller Disclosure Act (SDA),
MCL 565.951 et seq., and their claims for silent-fraud and common-law fraud. We affirm.
I. BACKGROUND
Plaintiffs purchased a home in Pleasant Ridge, Michigan in 2015. At the time of the sale,
the owners of the home, defendants Bradley and Josephine Zimmerman, had been suffering from
dementia for several months and were living in assisted-living facilities. Their daughter, defendant
Lynn Zimmerman, as their power of attorney, filled out the Seller’s Disclosure Statement (SDS)
as required by the SDA. According to Lynn’s affidavit, she did so at her attorney’s insistence
despite the fact that she had lived out of state and knew practically nothing about the home. Lynn
was not deposed during discovery and her affidavit remains uncontested. On the SDS, she
indicated that the condition of numerous aspects of the home were “unknown” to her and, despite
the SDS’s instructions, she left several questions blank.
In their complaint, plaintiffs alleged three separate counts: one for violations of the SDA,
one for common-law fraud, and one for silent fraud. The complaint listed multiple alleged defects
that plaintiffs claimed Lynn was required but failed to disclose: (1) a severe mouse infestation; (2)
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posts in the crawl space holding up parts of the main floor; (3) rotten plywood flooring in the
master bedroom as a result of roof leaks; (4) rotten plywood under the laundry room floor due to
water intrusion; (5) a leaking sliding glass door; (6) carpenter ants in the home; (7) improper
installation of the water heater; (8) chimney deterioration; (9) water leaks in the basement; and
(10) multiple roof leaks.
Defendants eventually moved for summary disposition. With respect to the claim alleging
SDA violations, defendants argued that the SDA did not create an independent cause of action.
With respect to the two fraud claims, defendants argued that plaintiffs were unable to prove
numerous elements of their claims. Defendants noted Lynn’s limited knowledge of the home’s
condition, her lack of representations in the SDS, and plaintiffs’ presale inspection of the home.
The trial court granted defendants’ motion. This appeal followed.
II. ANALYSIS
A. SELLER DISCLOSURE ACT
Plaintiffs first argue that the trial court erred when it held the SDA did not create an
independent cause of action. Whether a statute creates an independent cause of action is a question
of law that this Court reviews de novo. Pitsch v ESE Michigan, Inc, 233 Mich. App. 578, 586; 593
NW2d 565 (1999). “Our purpose in construing a statute is to ascertain the reasonable meaning of
the specific language employed by the Legislature.” Id.
The SDA “modifies the common law and in certain real estate transactions requires the
transferor to disclose certain information in a specified format.” Roberts v Saffell, 280 Mich. App.
397, 407-408; 760 NW2d 715 (2008), aff’d 483 Mich. 1089 (2009).
Where the common law provides no right to relief, but the right to relief is created
by statute, a plaintiff has no private cause of action to enforce the right unless (1)
the statute expressly creates a private cause of action, or (2) a cause of action can
be inferred from the fact that the statute provides no adequate means of enforcement
of its provisions. [Lane v KinderCare Learning Centers, Inc, 231 Mich. App. 689,
695-696; 588 NW2d 715 (1998) (citations omitted).]
Although MCL 565.954(3) and (4) allow a purchaser to terminate a purchase agreement
for the sale of real estate before the transfer of title if disclosures are not made as required in the
SDS, the SDA provides no other remedy. See MCL 565.954-565.966. “The common-law rule
with respect to real estate transactions is caveat emptor.” Roberts, 280 Mich. App. at 402. The
common law, however, recognized causes of action for fraudulent representations. The SDA
likewise acknowledged existing common-law mechanisms for recovery based on “fraud,
misrepresentation, or deceit in transfer transactions.” MCL 565.961. We therefore conclude that
the SDA does not create an independent cause of action but instead relies on common-law causes
of action in fraud to operate as the SDA-enforcement mechanisms. Accordingly, the trial court
properly concluded that the SDA did not create an independent cause of action.
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B. FRAUD CLAIMS
1. STANDARD OF REVIEW
Although the trial court’s opinion and order regarding plaintiffs’ fraud claims cited both
MCR 2.116(C)(8) and (C)(10), this Court will treat the trial court’s decision as having been
rendered under MCR 2.116(C)(10) because the trial court’s analysis necessarily went beyond the
pleadings. See Sharp v Lansing, 238 Mich. App. 515, 518; 606 NW2d 424 (1999). We review de
novo a trial court’s decision to grant or deny a motion for summary disposition to determine
whether the moving party was entitled to judgment as a matter of law. Maiden v Rozwood, 461
Mich. 109, 118; 597 NW2d 817 (1999). “A motion under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint.” Id. at 120. When evaluating such a motion, a trial court considers
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the
light most favorable to the party opposing the motion. Id. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a
matter of law. Id.
“[A]t common law ‘a land vendor who surrenders title, possession, and control of property
shifts all responsibility for the land’s condition to the purchaser.’ ” Roberts, 280 Mich. App. at 402,
quoting Christy v Prestige Builders, Inc, 415 Mich. 684, 694; 329 NW2d 748 (1982). Yet,
Michigan caselaw recognizes several fraud theories as exceptions to the general rule of caveat
emptor in real-estate transactions: (1) traditional common-law fraud, (2) innocent
misrepresentation, and (3) silent fraud. Id. at 403. In this case, plaintiffs advanced claims of
common-law fraud and silent fraud.
2. COMMON-LAW FRAUD
To prove a claim of common-law fraud, also known as fraudulent misrepresentation, a
plaintiff must establish six different elements:
(1) the defendant made a material representation; (2) the representation was false;
(3) when the representation was made, the defendant knew that it was false, or made
it recklessly, without knowledge of its truth, and as a positive assertion; (4) the
defendant made it with the intention that the plaintiff should act upon it; (5) the
plaintiff acted in reliance upon the representation; and (6) the plaintiff thereby
suffered injury. [Id.]
Unlike a claim of innocent misrepresentation, which does not require proof of intent to deceive by
the party making the misrepresentation, a claim of common-law fraud does require proof of an
intent to deceive. M & D, Inc v McConkey, 231 Mich. App. 22, 28; 585 NW2d 33 (1998).
Here, plaintiffs have shown to no false representation made by Lynn. This is fatal to their
claim of common-law fraud. On the SDS, Lynn indicated that the condition of numerous aspects
of the home were “unknown” to her and she left several questions blank. Lynn’s silence simply
cannot be interpreted as a material representation, regardless of plaintiffs’ insistence otherwise.
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Moreover, several factual problems exist with plaintiffs’ claim of common-law fraud. For
example, plaintiffs complain that Lynn was required but failed to disclose “posts in the crawl space
holding up parts of the main floor,” “rotten plywood flooring [in] the master bedroom as a result
of roof leaks,” and “multiple roof leaks (including a leaking roof valley).” After inspecting the
home with their inspector, plaintiffs sought price reductions of $10,000 based on the condition of
the roof and of $2,500 based on the crawl space. Because plaintiffs identified significant damage
with respect to the roof and the crawl space—apparently $12,500 worth—it cannot be said that
they reasonably relied on Lynn’s “unknown” answers regarding the crawl space and her non-
answer regarding the roof’s condition. See, e.g., Foreman v Foreman, 266 Mich. App. 132, 141-
142; 701 NW2d 167 (2005).
Furthermore, plaintiffs pursue a claim of common-law fraud with respect to the “leaking
glass door” and the “carpenter ants in the home.” Although there was testimony that carpenter
ants were present in the neighborhood, plaintiffs produced no evidence that anyone in the
Zimmerman family was aware of any purported ant infestation in the home. Likewise, there was
testimony that the Zimmermans were unaware of any issue with the sliding glass door after it was
replaced approximately a year earlier, and plaintiffs produced no other evidence that anyone in the
family was aware of that purported issue. Plaintiffs’ speculation that the Zimmerman family
should have been aware of these purported issues was insufficient to survive summary disposition.
See, e.g., Libralter Plastics, Inc v Chubb Group of Ins Co, 199 Mich. App. 482, 486; 502 NW2d
742 (1993).
With regard to the plaintiffs’ allegation that there was a “severe mouse infestation” in the
home that Lynn knowingly failed to disclose, plaintiffs have failed to produce evidence to support
their claim. Although it was undisputed that plaintiffs found mouse traps in the attic, the number
of which is unknown, this hardly itself establishes an “infestation.” Further, Lynn denied any
knowledge that the traps were present. Plaintiffs’ did not depose Lynn, and they failed to develop
any record evidence from which a reasonable jury could conclude that Lynn misrepresented her
knowledge when she failed to answer a question on the SDS regarding rodents.
Likewise, with respect to the alleged defects discussed above, as well as the “rotten
plywood under the laundry room floor due to water intrusion,” the “improper installation of the
water heater,” and the “chimney deterioration,” plaintiffs have not identified any record evidence
to support a purported intent to defraud by Lynn. See M & D, Inc, 231 Mich. App. at 28. At best,
plaintiffs have demonstrated that Lynn quickly and incompletely filled out the SDS without
learning about conditions on the property from either her brother or parents.
On these facts, the trial court properly granted summary disposition to defendants regarding
plaintiffs’ claim of common-law fraud.
3. SILENT FRAUD
“To prove silent fraud, also known as fraudulent concealment, the plaintiff must show that
the defendant suppressed the truth with the intent to defraud the plaintiff and that the defendant
had a legal or equitable duty of disclosure.” Lucas v Awaad, 299 Mich. App. 345, 363-364; 830
NW2d 141 (2013). “[E]stablishing silent fraud requires more than proving that the seller was
aware of and failed to disclose a hidden defect.” Roberts, 280 Mich. App. at 404. Rather, “there
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must be some type of misrepresentation, whether by words or action, in order to establish a claim
of silent fraud.” Bergen, 264 Mich. App. at 382 (cleaned up). “[T]o prove a claim of silent fraud,
a plaintiff must show some type of representation by words or actions that was false or misleading
and was intended to deceive.” Roberts, 280 Mich. App. at 404.
Under the SDA, transferors of real property covered by the act are required to deliver to
the transferor’s agent, the prospective transferee, or the transferee’s agent the written disclosure—
called a seller’s disclosure statement or SDS—within the timelines set forth in the act. Id., citing
MCL 565.954(1). MCL 565.957 provides the “form” in which “[t]he disclosures required by [the
SDA] shall be made.” The SDA requires that transferors complete an SDS “by answering its
questions in ‘good faith,’ i.e., with ‘honesty in fact in the conduct of the transaction.’ ” Id. at 408,
quoting MCL 565.960. This Court, however, has held that “nothing in the plain terms of the SDA
. . . requires a transferor of property covered by the act to exercise ordinary care to discover defects
in the property being transferred.” Id. at 408. Instead, a transferor need only disclose what he or
she actually knows:
While good faith and honesty are required when completing an SDS, if at the time
the disclosures are required to be made, an item of information required to be
disclosed under [the SDA] is unknown or unavailable to the transferor, the
transferor may comply with this act by advising a prospective purchaser of the fact
that the information is unknown. MCL 565.956. Further, the SDS must be
completed with “the best information available and known to the transferor.”
MCL 565.957 also explicitly provides that an SDS contains only information
actually known to the transferor and that the SDS is not a warranty. [Id. at 408-409
(cleaned up).]
“In sum, the SDA requires a transferor of certain real property to answer all items required by
MCL 565.957 honestly, on the basis of information actually known to the transferor at the time
the SDS is completed.” Id. at 410.
Plaintiffs’ claim of silent fraud fails for the same reasons as their claim of common-law
fraud. Plaintiffs failed to offer proof that Lynn suppressed the truth about the conditions in her
parents’ home with an intent to defraud plaintiffs. Lynn’s affidavit made clear that she had lived
out of state and knew practically nothing about the home. Plaintiffs failed to depose Lynn and her
affidavit remains uncontested. Plaintiffs have failed to raise a genuine question of material fact
that Lynn actually knew about the alleged defects in the home and that she suppressed the truth
about those conditions with the intent to defraud plaintiffs.
Affirmed. Defendants, having prevailed in full, may tax costs under MCR 7.219(F).
/s/ Christopher M. Murray
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron
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