Partrich v. Muscat

• Decision Date: 18 July 1978
• Docket Number: Docket No. 77-3942
• Citation: 84 Mich.App. 724,270 N.W.2d 506
• Parties: Spencer M. PARTRICH and Alvin A. Weisberg, Plaintiffs-Appellants, v. Virginia MUSCAT, Anthony Muscat and Inez Muscat, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 506

270 N.W.2d 506

84 Mich.App. 724

Spencer M. PARTRICH and Alvin A. Weisberg, Plaintiffs-Appellants, v. Virginia MUSCAT, Anthony Muscat and Inez Muscat, Defendants-Appellees.

Docket No. 77-3942.

Court of Appeals of Michigan.

July 18, 1978.

Released for Publication Oct. 20, 1978.

Weiner & Hauser by Mark R. Hauser, Southfield, for plaintiffs-appellants.

William M. Havey, Mount Clemens, for defendants-appellees.

Before RILEY, P. J., and T. M. BURNS and CYNAR, JJ.

T. M. BURNS, Judge.

Plaintiffs appeal by right from the grant of summary judgment to defendants. Plaintiffs Spencer Partrich and Alvin Weisberg, are the vendees in a land contract involving the sale of a mobile home park in Macomb County. Defendants Virginia, Anthony and Inez Muscat, are the vendors. To understand the issues involved, a detailed statement of facts ¹ is necessary.

Plaintiffs began negotiations to purchase the mobile home park through their agent. A purchase agreement was signed by the agent in October of 1974 which contained the following clauses:

"(1) Seller warrants that there are no violations with the Michigan State Department of Health, or any other governmental or municipal authority, of any type whatsoever.

"(6) Seller represents and warrants that the subject property is serviced by municipal sewer and water, and further, that the sewer, water, electrical and road systems in the mobile home park have no hidden, latent or major defects.

"(10) All representations contained herein shall be considered as made of the date hereof and also as of the date of closing and shall survive the closing."

After the agreement was signed, the township electrical inspector inspected the park and noted several deficiencies in the park's electrical work. An order to bring the electrical system up to code standards was issued. This led to renewed negotiations between the parties.

On November 29, 1974, the sellers signed a second writing reducing the purchase price and down payment by some $5,000. This writing contained a clause stating:

"In consideration of this reduction, the purchaser will accept the electrical violations from the Harrison Township Electrical Department, attached hereto and made a part hereof. Purchasers to accept the above named park in 'as is' condition."

The first sentence of this clause is typed, the second is handwritten. This writing was not signed by the purchasers or their agent.

The land contract was signed and recorded January 23, 1975. The "additional clauses" section of the contract states:

"See rider attached hereto and made a part hereof. That the purchasers accept the trailer park AS IS. However, there are no violations with the Michigan Department of Health."

These two sentences were originally part of a larger clause, some of which had been lined out. ² The rider attached to the land contract provided in part "Sellers represent and warrant to Purchasers as follows:

"A. The subject premises is a duly licensed forty-five (45) site mobile home park serviced by City sewer and water.

"D. The foregoing representations and warranties shall survive the closing."

Sometime after they took possession, the superintendent of the township water and sewer department notified plaintiffs that the storm sewer for the trailer park was illegally connected to the sanitary sewer system. Plaintiffs claim they incurred liabilities of approximately $12,000 to correct the violation and satisfy their liability to the township. After a demand for reimbursement was rejected, this suit followed.

In a one count complaint, plaintiffs alleged the facts noted above and claimed that defendants were liable for the "defect" in the sewer system under a breach of warranty or misrepresentation theory. Plaintiffs also alleged that, short of digging up the entire system, there was no way the illegal connection could have been discovered before closing.

Defendants answered, denying any personal responsibility for the illegal sewer connection and alleging that the "as is" clause in the land contract precluded imposing either warranty or misrepresentation liability on them. Defendants filed a motion for summary judgment based on the "as is" clause. After a hearing, at which both parties submitted affidavits, the trial court ruled that the meaning of the "as is" clause had a "definite meaning" and granted the summary judgments.

Before turning to the merits of the appeal, it is necessary to mention one point about the record presented. Nowhere in the lower court record, either in the motion presented by defendants or the judgment entered by the court, is there any indication of which subrule of the summary judgment rule was being relied on. GCR 1963, 117.2(1) and 117.2(3) are based on entirely different theories. One tests the legal basis of the claim, the other the factual basis. See Durant v. Stahlin, 375 Mich. 628, 135 N.W.2d 392 (1965). Unless the applicable subrule under which a party is proceeding is identified, the trial court's job of deciding the motion and our review on appeal become much more difficult. See, Bashara, The Illusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det.Col.R.Rev., 397, 400. Unless attorneys devote more thought and consideration to the basis upon which such motions are brought, the problem is likely to be further compounded with the consolidation of present rules 116 and 117 in the future. See proposed MCR 2.116, 402A Mich. 127, 127-135. At some point, counsel and trial courts may be subjected to a summary remand to clarify the grounds upon which such a judgment is granted.

Was Summary Judgment Appropriate Under GCR 1963, 117.2(1)?

The standard governing this court's review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v. Biglow, 51 Mich.App. 346, 214 N.W.2d 733 (1974), Lv. den., 391 Mich. 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman's, Inc. v. Lake State Development Co., 60 Mich.App. 175, 230 N.W.2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972).

Applying this standard to the pleadings in the present case leads to the conclusion that summary judgment under rule 117.2(1) was inappropriate. Plaintiff had sufficiently pled a cause of action for breach of warranty and misrepresentation.

Was Summary Judgment Appropriate Under GCR 1963, 117.2(3)?

A motion for summary judgment which is based on GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Crowther v. Ross Chemical & Manufacturing, supra.

When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). Before the judgment may properly be granted the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Rizzo v. Kretschmer, supra. The motion has the limited function of determining whether material issues of fact exist. ³ The trial court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist.

In the present case, the defendants urge that the "as is" language of the contract precluded any finding of a warranty or a breach thereof. The trial court agreed, presumably because it found the land contract and riders to be a fully integrated, unambiguous expression of the party's intent. The lower court must also have found that the parol evidence rule would prevent introduction...