Mazzola v. Vineyard Homes, Inc., Docket No. 16518

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: V. J. BRENNAN
• Citation: 54 Mich.App. 608,221 N.W.2d 406
• Parties: Joseph P. MAZZOLA and Rosemarie I. Mazzola, his wife, Plaintiffs-Appellants, v. VINEYARD HOMES, INC., a Michigan corporation, Defendant-Appellee
• Docket Number: No. 2,Docket No. 16518,2
• Decision Date: 12 August 1974

Page 406

221 N.W.2d 406 54 Mich.App. 608 Joseph P. MAZZOLA and Rosemarie I. Mazzola, his wife,
Plaintiffs-Appellants,
v.
VINEYARD HOMES, INC., a Michigan corporation, Defendant-Appellee. Docket No. 16518. Court of Appeals of Michigan, Division No. 2. Aug. 12, 1974.
Released for Publication Sept. 13, 1974.

Page 407

[54 Mich.App. 609] Robert W. Kefgen, Berry, Hopson, Francis & Mack, Detroit, for plaintiffs-appellants.

George J. Freeman, Daner, Freeman, McKenzie & Matthews, Mt. Clemens, for defendant-appellee.

Before DANHOF, P.J., and QUINN and V. J. BRENNAN, JJ.

Page 408

V. J. BRENNAN, Judge.

On March 16, 1971, plaintiffs, Joseph and Rosemarie Mazzola, brought this action in the Macomb County Circuit Court against defendant, Vineyard Homes, Inc. By their complaint plaintiffs sought an injunction restraining defenants from building homes of a certain type in Hatherly Village, a subdivision located in the city of Sterling Heights, Michigan and damages for alleged fraudulent misrepresentations. The trial [54 Mich.App. 610] judge granted defendant's motion for accelerated judgment (GCR 1963, 116.1(5)) and plaintiffs now appeal as of right.

The difficulty in the instant case arises from the fact that the plaintiffs herein were also among the plaintiffs in an earlier class action, Lopinski v. Vineyard Homes, Inc., ¹ an action brought against the same defendant. The plaintiffs in Lopinski, including the plaintiffs herein, were all alleged to be homeowners in one of two Hatherly subdivisions, denominated Hatherly Village subdivision #1 and Hatherly Village, subdivision #2. The plaintiffs in Lopinski alleged that defendant had agreed with them, at the time they purchased their homes, to develop a 9 1/2-acre 'commons' area containing paved walkways, bicycle paths, a stream with rustic bridges crossing over it and other, similar types of landscaping. The plaintiffs in Lopinski further alleged that defendant also had agreed to restrict the type of dwellings that were to be placed on a 54-acre tract owned by defendant and adjoining the Hatherly subdivisions to those types of homes permitted to be built in Hatherly. The Lopinski plaintiffs also alleged that defendant proposed to sell the 54-acre tract to a buyer who planned to develop homes thereon in a manner contrary to the alleged agreement and, further, that defendant was planning to construct homes on the commons area. They therefore sought an injunction restraining defendant from selling or otherwise disposing of the property in any manner inconsistent with the terms of the alleged agreement. Maple Associates, a Michigan co-partnership that contracted to purchase the 54-acre tract, was permitted by the trial court to [54 Mich.App. 611] intervene in the action pursuant to GCR 1963, 209.1(3). Defendant answered plaintiffs' complaint and interposed two affirmative defenses: the statute of frauds (MCLA 566.108; MSA 26.908) and laches. Thereafter, on November 18, 1970The trial judge granted summary judgment in favor of defendant Vineyard Homes '(f)or reasons set forth in the record' and also granted summary judgment of no cause for action in favor of Maple Associates for the same reasons. No appeal from this decision was ever taken by the Lopinski plaintiffs.

Four months after the decision in Lopinski was rendered, the plaintiffs herein brought this action against defendant in two counts. Count I sought an injunction restraining defendant from building certain types of homes in Hatherly Village, subdivision #1. Plaintiffs alleged in their complaint that during the discussions leading to their purchase of a home in Hatherly Village, subdivision #1, one of defendant's sales personnel represented to them that all homes in this particular subdivision would be in the $60,000-and-up price range. They further stated in their complaint that certain brochures were shown to them with pictures of the types of homes to be built in the subdivision contained therein and that it was explained to them that none of the pictured homes cost less than 60,000. Plaintiffs also averred that defendant was in the process of constructing homes in the subdivision which would be offered for sale at a price not in excess of $45,000 and built upon lots smaller in size than those originally platted. They alleged that if such construction was permitted to continue they would be irreparably harmed and therefore sought an injunction restraining defendant from constructing such homes in Hatherly Village, subdivision #1.

Page 409

[54 Mich.App. 612] Count II sought damages against defendant for fraudulent misrepresentation. Plaintiffs re-alleged the allegations contained in Count I and further alleged that defendant represented to them that Hatherly Village, subdivision #1, would contain or be served by a commons area of approximately 9 acres, that they relied on these representations in purchasing their home and that defendant, contrary to the representations earlier made, sold the commons area to another real estate developer or land company. Plaintiffs alleged that they suffered damage as a result of these allegedly fraudulent misrepresentations and, therefore, sought $15,000...