Brownlow v. McCall Enters., Inc., s. 325843

• Decision Date: 19 April 2016
• Docket Number: 326903.,Nos. 325843,s. 325843
• Parties: BROWNLOW v. McCALL ENTERPRISES, INC.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 103

888 N.W.2d 295

BROWNLOW

v.McCALL ENTERPRISES, INC.

Nos. 325843

326903.

Court of Appeals of Michigan.

Submitted March 8, 2016, at Lansing.

Decided April 19, 2016, at 9:05 a.m.

Donnelly W. Hadden, PC, Ann Arbor (by Donnelly W. Hadden ), for Ronald Brownlow and Susan Travis.

Secrest Wardle, Troy (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), MCL 445.901 et seq. The second, at issue in Docket No. 326903, is a March 27, 2015 order that granted defendant attorney fees and costs as case evaluation sanctions against plaintiff Travis. Before entering the final order, which granted summary disposition in favor of defendant, the trial court entered a June 12, 2014 order that dismissed plaintiff Brownlow as a party in the case. The trial court then entered an October 3, 2014 order that granted defendant attorney fees and costs as case evaluation sanctions against plaintiff Brownlow. These two orders are also challenged on appeal. In Docket No. 325843, we reverse the trial court order that granted summary disposition in favor of defendant. We also reverse the trial court order that dismissed plaintiff Brownlow as a party, as well as the order that awarded defendant case evaluation sanctions against plaintiff Brownlow. In Docket No. 326903, we reverse the trial court order that granted case evaluation sanctions against plaintiff Travis.

This case was previously before this Court in Brownlow v. McCall Enterprise, Inc., unpublished opinion per curiam of the Court of Appeals, issued February 12, 2013 (Docket Nos. 306190 and 307883), 2013 WL 514598. 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, 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 health problems as a result of the ozone exposure.

Plaintiffs filed a complaint against State Farm and McCall Enterprises, alleging that they 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 also dismissed the MCPA claim, concluding that the transaction was specifically authorized by defendant's contractor license, and therefore exempt from the act under MCL 445.904(1)(a), which provides that the MCPA does not apply to "[a] transaction or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States." Plaintiffs appealed the dismissal of their MCPA claim.

This Court reversed the trial court order, concluding that the general transaction of cleaning a house was not specifically authorized by defendant's contractor license and therefore not exempt from the act. Brownlow, 2013 WL 4746638 at *1. This Court also addressed defendant's alternate argument supporting summary disposition—that plaintiffs could not establish causation under the MCPA. Id. at *3. 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 *5. 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 *4. 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 *4. Our Supreme Court denied leave to appeal. Brownlow v. McCall Enterprises, Inc., 495 Mich. 852, 836 N.W.2d 167 (2013).

We remanded the case to the trial court, and defendant moved in limine to preclude claims for personal-property damages and 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 was precluded from presenting proof of damages to personal property and for 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 against plaintiff Brownlow.

Defendant then moved for summary disposition pursuant to MCR 2.116(C)(10) on the MCPA claim, arguing that plaintiff Travis could not prove causation because there was no evidence that the ozone generator did in fact generate harmful levels of ozone in the house. Defendant argued that a test of the machine, conducted years later, revealed that it was broken and incapable of producing ozone. Defendant also argued that the new experts plaintiffs substituted following the death of two of their previous experts were not qualified to provide expert testimony regarding causation. Specifically, defendant argued that the new experts did not have experience with an ozone generator and they did not calculate the ozone levels in the house. Plaintiff Travis filed a countermotion for partial summary disposition regarding liability.

The trial court issued a written opinion finding that plaintiff Travis's experts were not qualified to opine on causation because, 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 in the house. The trial court concluded that plaintiff Travis failed to offer evidence through affidavits, depositions, or exhibits sufficient to establish a causal connection between the use of the ozone generator and the damage to the house and granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10). It also denied plaintiff Travis's countermotion for partial summary disposition. The trial court later granted defendant's motion for case evaluation sanctions against plaintiff Travis. Plaintiffs then filed the present appeal.

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 N.W.2d 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 N.W.2d 40 (2000).

Defendant cites Brown v. Drake–Willock Int'l, Ltd., 209 Mich.App. 136, 144, 530 N.W.2d 510 (1995), citing Borkus v. Mich. Nat'l Bank, 117 Mich.App. 662, 666, 324 N.W.2d 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 implicated 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 had initially reversed because factual questions existed. Borkus, 117 Mich.App. at 667, 324...