Laurel Woods Apts. v. Roumayah, Docket No. 269506.

• Citation: 274 Mich. App. 631,734 N.W.2d 217
• Decision Date: 08 March 2007
• Docket Number: Docket No. 269506.
• Parties: LAUREL WOODS APARTMENTS, Plaintiff-Appellant, v. Najah ROUMAYAH and Rebecca Roumayah, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

734 N.W.2d 217

274 Mich. App. 631

LAUREL WOODS APARTMENTS, Plaintiff-Appellant, v. Najah ROUMAYAH and Rebecca Roumayah, Defendants-Appellees.

Docket No. 269506.

Court of Appeals of Michigan.

Submitted November 15, 2006, at Detroit.

Decided March 8, 2007, at 9:10 a.m.

Released for Publication July 10, 2007.

Marcus Evangelista, P.C. (by Marcus Evangelista), Wayne, for Laurel Woods Apartments.

Gross, Nemeth & Silverman, P.L.C. (by Mary T. Nemeth), Detroit, for Rebecca Roumayah.

Pedersen, Keenan, King, Wachsberg & Andrzejak, P.C. (by Eric A. Andrzejak), Walled Lake, for Najah Roumayah.

Before: WILDER, P.J., and KELLY and BORRELLO, JJ.

KELLY, J.

In this breach of contract claim, plaintiff Laurel Woods Apartments appeals as of right an order granting summary disposition in favor of defendants Najah Roumayah and his niece, Rebecca Roumayah. We reverse and remand.

I. Facts

This case arises from a kitchen fire in an apartment owned and operated by plaintiff and leased by defendants. Defendants signed a lease agreement that, in addition to listing Najah and Rebecca Roumayah "jointly severally" as "Tenant," and defining "Premises" as apartment 208, contained the following provision:

9. Maintenance Repairs and Damage of Premises. Tenant shall keep the Premises and all appliances in good condition and repair, and shall allow no waste of the Premises or any utilities. Tenant shall also be liable for any damage to the Premises or to Landlord's other property (i.e., other units, common facilities and equipment) that is caused by the acts or omissions of Tenant or Tenant's guests. Landlord shall perform all maintenance and repairs to the roof, walls and structural elements, all mechanical, plumbing and electrical systems at Landlord's cost and expense, unless such damage is caused by Tenant[']s acts or neglect, in which case such cost and expense incurred by Landlord shall be paid by Tenant.

After defendants moved into the apartment, a fire occurred in the kitchen that resulted in substantial damage to the premises. The firefighters' investigation revealed that the fire originated on top of the kitchen stove. The inspection report included a statement by Rebecca Roumayah that she was cooking, but thought she had turned off the stove. While she was in the other room talking on the phone, the kitchen lit up in flames. She attempted to call 911, but did not succeed until she was outside the building.

Plaintiff filed a complaint alleging that defendants caused damage to the premises and, pursuant to paragraph 9 of the lease agreement, are liable for those damages. Plaintiff alleged that defendants failed or refused to perform their contractual obligations and, therefore, breached the lease agreement. Plaintiff subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that there was no question of fact regarding whether Rebecca Roumayah caused the fire and that, under the lease agreement, defendants were jointly and severally obligated to pay for any damage that they caused to the premises.

Defendants filed a countermotion for summary disposition pursuant to MCR 2.116(C)(8). Defendants first asserted that, in New Hampshire Ins. Group v. Labombard, 155 Mich.App. 369, 399 N.W.2d 527 (1986), this Court held that despite a contractual provision that the tenant agreed to "yield up" the premises "in like condition as when taken," there was no express agreement that the tenant would be liable to the landlord for fire damage, and the Court held that, absent such an agreement, the tenant could not be liable for negligently caused fire damage. Defendants contended that in this case, like in Labombard, there was no express agreement that they would be liable for fire damage. Defendants cited several portions of the lease agreement that, they argued, indicated that plaintiff carried fire insurance and that defendants were released from liability for any damage covered by such a policy. Defendants also asserted that Najah Roumayah could not be liable because there was no question of fact regarding whether he caused the fire, and joint and several liability was in violation of MCL 600.2956 and public policy. Defendants also asserted that while the evidence demonstrated that a fire caused the damage at issue, it was unclear whether Rebecca Roumayah caused the fire.

Plaintiff filed a reply brief in which it argued that all of defendants' arguments presumed that plaintiff's claim was a negligence claim, but it was solely a breach of contract claim. Accordingly, Labombard was inapplicable as was MCL 600.2956, which relates to torts. Plaintiff also asserted that there was "no doubt" that Rebecca Roumayah caused the fire.

At the motion hearing, the trial court asked whether there was any provision in the lease agreement that expressly required the tenant to maintain fire insurance. Plaintiff's counsel answered that there was not. The trial court stated, "Then I'm going to grant [defendants'] motion. I think [Labombard] controls." The trial court entered an order denying plaintiff's motion for summary disposition and granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8).

II. Analysis

Plaintiff first contends that the trial court erred in granting defendants' motion for summary disposition pursuant to Labombard when defendants were contractually liable for the damage caused to the premises. We agree.

The trial court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) on the basis that plaintiff failed to state a claim on which relief may be granted. When an action is based on a written contract, it is generally necessary to attach a copy of the contract to the complaint. MCR 2.113(F). Accordingly, the written contract becomes part of the pleadings themselves, even for purposes of review under MCR 2.116(C)(8). Liggett Restaurant Group, Inc. v. City of Pontiac, 260 Mich.App. 127, 133, 676 N.W.2d 633 (2003). We review de novo a trial court's decision to grant or deny summary disposition pursuant to MCR 2.116(C)(8). Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). "A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows consideration of only the pleadings. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery." MacDonald v. PKT, Inc., 464 Mich. 322, 332, 628 N.W.2d 33 (2001) (citation omitted).

A. Liability for Damage Caused by Tenants

The first question is whether defendants are contractually liable for the damage to the premises allegedly caused by Rebecca Roumayah.

The lease agreement designates the Roumayahs as "Tenant" and unit #208 as "Premises." It is undisputed that both parties signed the agreement. It provides:

9. Maintenance Repairs and Damage of Premises. Tenant shall keep the Premises and all appliances in good condition and repair, and shall allow no waste of the Premises or any utilities. Tenant shall also be liable for any damage to the Premises or to Landlord's other property (i.e., other units, common facilities and equipment) that is caused by the acts or omissions of Tenant or Tenant's guests. Landlord shall perform all maintenance and repairs to the roof, walls and structural elements, all mechanical, plumbing and electrical systems at Landlord's cost and expense, unless such damage is caused by Tenant[']s acts or neglect, in which case such cost and expense incurred by Landlord shall be paid by Tenant. [Emphasis added.]

Plaintiff asserts that the emphasized portion of this paragraph unambiguously provides that defendants are liable for damage Rebecca Roumayah caused to the premises. Defendants, to the contrary, claim that pursuant to Labombard, plaintiff cannot recover fire repair costs from defendants because the lease agreement did not contain an express agreement that they would be liable for negligently causing fire damage and because the lease agreement did not require defendants to insure the premises.

In Labombard, the building owner purchased insurance from the insurance company and, accordingly, the insurance company paid for damages arising from a fire caused by a tenant. Labombard, supra at 370, 399 N.W.2d 527. The insurance company and building owner sued the tenant in tort, claiming that she was negligent in causing a fire on the premises. Id. at 371, 399 N.W.2d 527. The defendant filed a motion pursuant to MCR 2.116(C)(8) asserting that the contract "absolved her of liability for fire damages to the rental premises." Id. She also argued that, as a matter of law, a tenant is not liable for fire damage caused by his or her own negligence. Id. The Labombard Court first examined whether there was an express agreement that the defendant would be liable for fire damage resulting from the defendant's negligence. Id. at 373-374, 399 N.W.2d 527. Having found none, id. at 374, 399 N.W.2d 527, it reviewed the remainder of the contract in an attempt to discern what the parties had contemplated. The Court concluded that the "agreement clearly evidences the parties' mutual expectation that fire insurance would be obtained by the lessor." Id. at 376, 399 N.W.2d 527. Reading the contract as a whole, this Court concluded, "Nothing in the rental agreement suggests, however, that defendant agreed to be liable to the lessor, or his insurer, for the full amount of negligently caused fire damage." Id. Accordingly, this Court held that, "absent an express and unequivocal agreement by a tenant to be liable to the lessor or the lessor's fire insurer in tort for negligently caused fire damage to the premises, the tenant has not duty to the lessor or insurer which would support a negligence claim for such damages." (Emphasis added.)

Labombard does not apply to this case. Labombard was a negligence action, whereas this is a breach of contract action. The...