Havener v. Richardson

• Court: U.S. District Court — Eastern District of Michigan
• Writing for the Court: Gadola
• Citation: Havener v. Richardson, 16 F.Supp.2d 774 (E.D. Mich. 1998)
• Decision Date: 28 July 1998
• Docket Number: Civil Action No. 96-40487.
• Parties: David S. HAVENER and Maria R. Havener, Plaintiffs, v. Jeffrey S. RICHARDSON and Constance Richardson, Defendants.

16 F.Supp.2d 774

David S. HAVENER and Maria R. Havener, Plaintiffs, v. Jeffrey S. RICHARDSON and Constance Richardson, Defendants.

Civil Action No. 96-40487.

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

July 28, 1998.

David J. Franks, Bassey & Selesko, Southfield, MI, for Plaintiffs.

Keith James, Joseph K. Hart, Jr., Dawda, Mann, Bloomfield Hills, MI, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GADOLA, District Judge.

In this lawsuit, plaintiffs David and Maria Havener ("the Haveners") allege fraudulent misrepresentation, innocent misrepresentation and fraudulent concealment in connection with the purchase of a home by them from defendants Jeffrey and Constance Richardson ("the Richardsons"). Presently before this court is the Richardsons' motion for summary judgment, on which a hearing was conducted Wednesday, June 24, 1998. Upon consideration of the parties submissions, the arguments advanced at the hearing, the record, and all the relevant authorities, this court will grant the defendants' motion for the reasons set forth below.

FACTS

In April, 1996, Jeff Richardson, an executive for the Wellness Plan, accepted a promotion that required him and his wife, Constance, to sell their home at 3899 Meeting house in Livonia, Michigan and move to the State of Texas. The Richardsons listed their home through Century 21 Today Realtors and worked with a broker named Rachel Colvin.

Mr. and Mrs. Robert McMillan were the first persons to place an offer on the Richardsons' home. After making the offer, the McMillans arranged for Todd Strauss, a professional construction inspector, to inspect the Richardsons' home. Strauss inspected the home in the presence of Robert McMillan, Jeff Richardson and Rachel Colvin. During the inspection, Strauss noticed leaks in the basement walls. After explaining how to repair the leaks, Strauss was ordered by Robert McMillan to stop the inspection and the McMillans withdrew their offer on the home.¹

Colvin then brought the Haveners to the Richardsons' home. Ultimately, on May 18, 1996, after a few visits to the home, the Haveners offered the Richardsons $162,000 for the home. The Richardsons accepted that offer on May 19, 1996. The purchase agreement contained an "as is" clause, which stated:

This agreement supersedes any and all understanding and agreements and constitutes the entire agreement between the parties hereto and Realtor, and no oral representations or statements shall be considered in part hereof. Purchaser understands and acknowledges that he is purchasing a home in an "as is" condition and that neither the Seller nor Realtor makes any warranties as to the land and structure purchase or the condition thereof. Purchaser acknowledges that he has inspected the premises covered hereby and that he is satisfied with its conditions. Purchase acknowledges the receipt of a copy of this offer.

Prior to buying the home, the Haveners were given a Sellers Disclosure Statement ("SDS") prepared by the Richardsons. The SDS indicated that various items were in working order, including the garage door opener. The SDS also indicated that there had been water in the basement of the home due to a failed sump pump. No other water problems were disclosed on the SDS.

The Haveners did not have the home inspected before they purchased it. However, David Havener did make inquiries regarding various conditions of the home during various pre-purchase visits to the same. For instance, David Havener noticed cork board implanted on the kitchen ceiling and asked Rachel Colvin about this. Rachel Colvin, after inquiring of Jeff Richardson, told David Havener that the cork board was for aesthetic purposes only — Constance Richardson's "way of decorating." David Havener also noticed that in an area of the basement directly below the laundry room there was new wood in the ceiling. David Havener asked Rachel Colvin if there was a problem with water in this area such that the wood in the ceiling had to be replaced. Rachel Colvin, in turn, asked Jeff Richardson, who stated that the laundry room tub had overflowed causing water damage and that new wood was placed in the ceiling to repair water damage.

After moving into the home, the Haveners discovered faulty electrical wiring, an inoperable garage door opener and extensive water damage. The Haveners ultimately filed this action against the Richardsons claiming fraudulent misrepresentation, innocent misrepresentation and fraudulent concealment in connection with the sale of the home.

ANALYSIS

SUMMARY JUDGMENT

The Haveners are currently before the court seeking summary judgment on all the Haveners' claims pursuant to Federal Rule of Civil Procedure 56(c). This Rule empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "The mere existence of some alleged factual dispute between the parties will not defeat the otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. In deciding a motion for summary judgment, the court must consider all evidence together with all inferences to be drawn therefrom "in light most favorable to the party opposing the motion." Watkins v. Northwestern Ohio Tractor Pullers Ass'n., Inc., 630 F.2d 1155, 1158 (6th Cir.1980).

If the movant meets the standard specified at Rule 56(c), then the opposing party must come forth with "specific facts showing that there is a genuine issue for trial." First National Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Fed.R.Civ.P. 56(e). The non-moving party "is not entitled to a trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint." Kraft v. United States, 991 F.2d 292, 296 (6th Cir.1993), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993); Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). And, "if the adverse party does not respond, summary judgment, if appropriate shall be entered against the adverse party." Fed.R.Civ.P. 56(e); Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); O'Hara v. Wigginton, 24 F.3d 823, 826-27 (6th Cir.1994).

FRAUDULENT MISREPRESENTATION

Count I of plaintiff's complaint alleges that the Richardsons made several fraudulent misrepresentations. In order to succeed on this claim, the Haveners must prove the following six elements:

(1) the defendants made a material misrepresentation;

(2) the representation was false;

(3) when the defendants made the representation, they knew it was false, or made it recklessly without any knowledge of its truth and as a positive assertion;

(4) defendants made the representation with the intention that it should be acted upon by the plaintiffs;

(5) plaintiffs reasonably acted in reliance upon the representation; and

(6) the plaintiffs suffered a resulting injury.

Scott v. Harper Recreation, Inc., 444 Mich. 441, 506 N.W.2d 857 (1993). In regard to the first element, the Haveners allege numerous material misrepresentations. Each one will be discussed separately.

The Haveners first contend that the Richardsons fraudulently represented that the "electrical system" and the garage door opener were "in working order" when these items were, in fact, not in working order. This court finds that the Richardsons are entitled to summary judgment on this claim as a matter of law. The Haveners have come forward with no evidence showing that the Richardsons knew the electrical system and/or remote control for the garage were other than in working order prior to the time they sold the home. Indeed, all evidence is to the contrary. For instance, during the inspection by Todd Strauss, which was completed ten days prior to the date the Haveners purchased the home, no problem was noted with respect to these items. Therefore, assuming the Richardson's were aware of the findings of Strauss' inspection, they would not have been made aware of any problem with the electrical system or garage door opener. In fact, at his deposition, David Havener conceded that he has no evidence that the Richardsons knew of such problems, but that he was merely speculating that the Richardsons did. (David Havener Dep. at 23).

The Haveners also allege that the Richardsons committed fraud when they failed to mention that the kitchen floor was water damaged. M & D, Inc. v. McConkey, 226 Mich.App. 801, 573 N.W.2d 281, 285 (1997) ("the suppression of a material fact, which a party in good faith is duty-bound to disclose, is equivalent to a false representation and will support an action in fraud"). The Haveners contend that after they moved into the home, they discovered that the floor under the refrigerator was wet and soggy because there was no drip pan under the refrigerator. The Haveners also noticed, after moving into the home and removing the lament and tile in the kitchen in order to install hardwood floors, that there was other water damage to the kitchen floor. This court...