Evans v. City of Ann Arbor

• Decision Date: 25 February 2022
• Docket Number: 21-10575
• Parties: EMILY EVANS and MELANIE WELCH, Plaintiffs, v. CITY OF ANN ARBOR, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

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EMILY EVANS and MELANIE WELCH, Plaintiffs, v. CITY OF ANN ARBOR, et al., Defendants.

No. 21-10575

United States District Court, E.D. Michigan, Southern Division

February 25, 2022

OPINION AND ORDER DISMISSING PLAINTIFFS' FEDERAL CLAIMS, DIRECTING PLAINTIFFS TO SHOW CAUSE AS TO CLAIMS AGAINST DEFENDANT PMSI, AND DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION OVER PENDENT STATE CLAIMS

ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

Plaintiff Emily Evans and her mother, Plaintiff Melanie Welch, bring a fifteencount complaint against individuals and companies that provided Plaintiff Evans electrical and insulation work for her house, lawyers representing those companies and individuals, the City of Ann Arbor, Ann Arbor officials, and judicial officers of the Washtenaw County Circuit Court. (ECF No. 57.) The complaint alleges a wide array of claims that range from federal claims brought under 42 U.S.C. § 1983 to state law claims such as fraud, conversion, intentional infliction of emotional distress, breach of fiduciary duty negligence, and assault and battery. (Id. PageID.4929-48.)

All Defendants except for Defendant Property Management Specialists, Inc. (“PMSI”) have filed a motion to dismiss. (ECF Nos. 80, 86, 88, 91, 93.) Defendants collectively advance a number of grounds for dismissal under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Id.)

I. BACKGROUND

In a motion to dismiss, the court accepts a plaintiff's factual allegations as true but makes no overt finding as to truth or falsity. Ashcroft v. Iqbal, 556 U.S. 662 678 (2009). The following facts are either alleged in Plaintiffs' complaint or otherwise established by the record.^[1]

This case stems from an action in Washtenaw County Circuit Court between Defendant Meadowlark-owned by Defendant Douglas Selby-and Plaintiff Evans. (ECF No. 57, PageID.4871.) On August 6, 2015, Plaintiff Evans purchased a home in Ann Arbor, Michigan (“Home”). (Id., PageID.4877-78.) She wanted to obtain a homeowners insurance policy, but the insurance company informed her that she needed proof that “all active knob and tube wiring had been removed from the Home, since such wiring in older homes was considered a fire hazard.” (Id.) Accordingly, she sought out contractors for the home improvement work; Plaintiff Evans' mother, Plaintiff Welch, helped Plaintiff Evans identify contractors required for such a job. (Id., PageID.4877-78.) Plaintiff Evans contacted Defendant Meadowlark, whose services were listed on Ann Arbor's city website. (Id., PageID.4878.) She made a call to Defendant Dave Anderson, an account manager for Defendant Meadowlark, and Defendant Anderson referred her to Michigan Quality Electric (“MQE”). (Id.) According to Plaintiff, the parties agreed that after MQE finished the electrical work in the Home, Defendant Meadowlark would repair the walls. (Id.) Defendant Anderson “advised Welch that it would be a good idea to install insulation in the walls and attic at the time the walls were being repaired, and Welch agreed.” (Id.)

On November 23, 2015, Defendant Anderson sent an email to Plaintiffs with a proposal for the renovations they had discussed, and Plaintiff Evans “signed a one-page contract with Meadowlark for all the electrical and insulation work to be done for a fixed price contract sum of $50, 893.” (Id., PageID.4879.) The contract required a deposit of $25, 446.00. (Id.) In December 2015, Defendant Meadowlark, MQE, and other subcontractors began work on the Home following issuance of the necessary permits. (Id., PageID.4880.) Defendant Meadowlark paid for the permits after receiving the deposit from Plaintiff Evans. (Id.) The permits were $225 for electric work and $350 for insulation. (Id.)

On January 5, 2016, the Home “passed a rough electric inspection conducted by the City inspector, ” and the next day Arbor Insulation, a subsidiary of Meadowlark, began the insulation process. The two men who came to the Home indicated it “was their first job” for Arbor Insulation. (Id.) According to Plaintiffs, there were “serious issues” with the work. (Id.) For example, Plaintiff Welch reached out to Harry Ramsden, the project manager, “asking why the baseboard had not been removed in the upstairs closet with a ten-foot exterior wall, as the baseboards in all of the other walls where insulation was installed had been removed.” (Id.) Plaintiffs were concerned that the wall was not insulated. (Id.) Ramsden reassured Welch that the wall had been filled with insulation from the walls due to the bedrooms on either side being insulated. (Id.)

On January 11, 2016, Defendant James Worthington, an inspector for Defendant Ann Arbor, “inspected the Home to confirm that the insulation had been properly installed and issued a pass indicating that it had.” (Id.) But this proved to be false, according to Plaintiffs. (Id.) On June 17, 2016, Defendant Craig Strong, chief inspector for Defendant Ann Arbor, came to the Home and conducted another inspection; he discovered that, behind the relevant wall, there was no insulation. (Id., PageID.4880-81.) At this time, he told Plaintiff Welch that “he believed Ann Arbor should not be issuing permits to conduct insulation work, ” because he had no way to see inside the walls. (ECF No. 58-1, PageID.5061.)

On January 22, 2016, Plaintiff Welch walked through the Home with Defendant Rob McCrum, an MQE supervisor of the electrical work. (ECF No. 57, PageID.4881.) Plaintiff Welch “pointed to each outlet and fixture, and McCrum verified that each outlet and fixture no longer had knob and tube wiring, ” but “Welch later learned from a different contractor that there was no way that the fixture had been checked for knob and tube wiring because some were still sealed with old paint.” (Id., PageID.4882.) Plaintiff Welch identified other concerns and emailed “many parties” about her concerns. (Id., PageID.4883.)

On February 5, 2016, Plaintiff received a letter from MQE in response to her request for certification that the live knob and tube wiring had been removed from the Home, but Plaintiffs were concerned because it certified that the wiring had been removed only from “open areas.” (Id., PageID.4882-83.) On February 10, 2016, Plaintiffs walked through the Home with a new Meadowlark supervisor of the project, Kirk Brandon. (Id., PageID.4883.) Plaintiffs pointed out other problems, and he agreed to remedy the issues. (Id.)

On February 18, 2016, Defendant Meadowlark and its subcontractors “walked off the job, ” despite the work being incomplete. (Id., PageID.4883.) Plaintiffs allege that Defendant Meadowlark refused to return to the Home until it had the remaining balance of the contract, $27, 918.00. (Id., PageID.4883-84.) Plaintiffs argued that was not the correct remaining balance. (Id.) Moreover, Plaintiffs claimed they were “not satisfied” with the work and therefore were not obligated to pay under the terms of their contract. (Id., PageID.4884.)

The following week, Plaintiffs attempted to reach an agreement regarding the home, but Defendant Meadowlark insisted on payment and the signing of a confidentiality agreement before returning to work; Plaintiffs refused these requests. (Id.) In addition, Defendant Selby refused “to close the electric permit on the Home, ” which apparently “prevented Evans from hiring a new company to complete the electrical work.” (Id.) Plaintiffs claim that “Selby was telling the City that he could not close the permit because he had a contract with Evans, and he would not close the permit unless and until Evans had paid what he claimed she still owed on the contract.” (Id.) Plaintiff Evans thereafter sent a letter to Defendant Meadowlark, which listed all the deficiencies in the work, informed Defendant Meadowlark that she was terminating the contract, and made clear that the contractors “[were] no longer allowed to enter [Evans'] house.” (Id.) Plaintiffs changed the locks, and Defendant Ann Arbor consequently closed the permits, allowing her to hire a new contractor to complete the electrical work on the home. (Id.)

On or about March 15, 2016, Plaintiffs learned that Defendant McCrum, the supervisor of the project employed by MQE, was not a licensed electrician. (Id., PageID.4885.) Plaintiff Evans filed a complaint against MQE with the Michigan Department of Licensing and Regulatory Affairs (“LARA”) as a result; LARA informed MQE on April 1, 2016, that because its supervisor was not licensed, MQE was in violation of pertinent statutes and subject to civil fines. (Id.; ECF No. 58-2, PageID.5211.)

In approximately April 2016, Defendant Meadowlark, through its attorney Brandon Wilson of Howard & Howard, filed a complaint in the Washtenaw County Circuit Court against Plaintiff Evans. (Id., PageID.4888.) The complaint alleged breach of contract and sought foreclosure of a construction lien. (Id.) Attached to the complaint “was a document Meadowlark claimed was the contract between it and Evans. The purported contract consisted of the one-page contract which Evans had signed on November 25, 2015, plus four additional pages which were not attached to the contract which Evans had signed on November 25, 2015.” (Id.) Plaintiffs filed counterclaims for unjust enrichment, breach of implied covenants, civil conspiracy, and negligence. (Id.) The trial court dismissed the counterclaims. (Id., PageID.4889.)

LARA issued a formal complaint against Defendants Meadowlark and Selby for violating various regulations, and attached as an exhibit “the one-page contract which Evans had signed” as well as the four “Scope of Work” pages, which Plaintiffs claim were not part of their contract. (ECF No. 58-3; ECF No. 57, PageID.4889.) On June 13, 2017, LARA entered a consent order. (ECF No. 57 PageID.4890.) In the...