If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
AMY PLETS, LORI HENDERSON, TIMOTHY UNPUBLISHED
BALLOR, and DEBRA BALLOR, May 20, 2021
Plaintiffs/Counter-defendants-
Appellants,
v No. 350445
Alpena Circuit Court
TRIPLE L LAND DEVELOPMENT LLC and LISA LC No. 16-007259-CZ
HENSEL,
Defendants/Counter-plaintiffs/Third-
Party Plaintiffs-Appellees,
v
ORVILLE J. MCGIRR, doing business as MCGIRR
REALTY, and DAVE MCQUARRIE,
Third-Party Defendants.
Before: SAWYER, P.J., and STEPHENS and RICK, JJ.
PER CURIAM.
Plaintiffs1 appeal by leave granted the trial court’s order granting summary disposition in
favor of defendants.2 For the reasons discussed herein, we reverse the trial court’s order granting
summary disposition in favor of defendants and remand for further proceedings.
I. BACKGROUND
1
We refer to plaintiffs/counterdefendants simply as “plaintiffs.”
2
We refer to defendants/counterplaintiffs simply as “defendants.”
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This case arises from plaintiffs’ and defendants’ disputes over a land contract. Prior to
entering into a land contract with defendants, plaintiffs owned property in Alpena, Michigan. The
property hosted an automotive service shop from 1959 until 2012. Hazardous substances that
could contaminate the property’s soil were used in that business.
In November of 2006, PM Environmental, Inc. collected soil and groundwater samples
from the property. After analyzing those samples, on December 29, 2006, PM Environmental sent
to plaintiffs a Phase II Environmental Site Assessment Report (Phase II Report). In the Phase II
Report, PM Environmental explained that it had found contaminants in the samples, and that the
property would therefore be considered a “facility” under the Natural Resources and
Environmental Protection Act (NREPA), MCL 324.101 et seq.3 This designation required the
plaintiffs to provide written notice of the property’s status as a facility to any prospective buyer
before sale.4
Plaintiffs put the property up for sale in 2012. Defendants offered to buy the property, and
plaintiffs and defendants negotiated a purchase agreement for a sale through a land contract.
Defendants reserved the right to revoke their offer to buy if plaintiffs could not provide proof that
the property’s soil was free from contaminants. This contingency was included in the sales
contract: “This offer is contingent on . . . (2) upon receiving satisfactory evidence the land and soil
at this location 2459 S. US 23 Alpena is free of contaminants and pollution and proof is provided[,]
seller has 10 days to accept or reject this offer” (hereinafter “contingency clause”). Plaintiffs
accepted.
Two years later, during the late summer of 2014, defendants attempted to sell the property
to the Salvation Army. The Salvation Army had a Phase II Environmental Assessment of the
property performed which like the 2006 assessment, revealed the presence of contaminants in the
soil and groundwater. According to defendants, after the Salvation Army reported this to them,
defendants ceased making installment payments to plaintiffs and ceased paying taxes on the
property.
In response, plaintiffs sued defendants for breach of contract and possession of the
property. Defendants counterclaimed for fraudulent inducement and negligent misrepresentation
3
Under NREPA, a facility is “any area, place, or property where a hazardous substance in excess
of the concentrations which satisfy the requirements of [MCL 324.20120a(1)(a) ] or (17) or the
cleanup criteria for unrestricted residential use under part 213 [MCL 324.21301 et seq.] has been
released, deposited, disposed of, or otherwise comes to be located.” MCL 324.20101(o); 1031
Lapeer LLC v Rice, 290 Mich App 225, 230-231; 810 NW2d 293 (2010)
4
“A person who has knowledge or information or is on notice through a recorded instrument that
a portion or the entirety of a parcel of that person's property is a facility shall not transfer an interest
in that real property unless he or she provides written notice to the purchaser or other person to
which the property is transferred disclosing the known general nature and extent of the hazardous
substance release and any land or resource use restrictions that are known by the person to apply.”
MCL 324.20116(1).
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and moved for summary disposition on the fraudulent inducement claim under MCR 2.116(C)(10),
arguing that the contract was void because plaintiffs had fraudulently induced their assent.
Defendants reasoned that, by agreeing to the contingency clause, plaintiffs had represented they
could provide proof that the property was free from contaminants. Since plaintiffs were in
possession of the Phase II Report at the time plaintiffs knew they could never prove the property
was contaminant free. Plaintiffs countered that there was no evidence suggesting they made this
representation with intent to defraud defendants because they sent defendants the Phase II Report
before defendants signed the land contract. The defendants denied the receipt of the Phase II
Report and provided evidence in support of that assertion.
The trial court granted defendants’ motion for summary disposition. In reaching this
decision, the trial court acknowledged that there was a factual dispute regarding the Phase II report
but ruled that the dispute was not material. The fact that plaintiffs had earlier misrepresented their
ability to provide proof that the property was free from contaminants was enough to render them
liable for fraudulent inducement. Therefore, the trial court concluded that defendants were entitled
to judgment as a matter of law.
Plaintiffs filed a delayed interlocutory application for leave to appeal, which we granted.
Plets v Triple L Land Development LLC, unpublished order of the Court of Appeals, entered
January 21, 2020 (Docket No. 350445). Plaintiffs argued the trial court erred by granting summary
disposition in favor of defendants because defendants had not produced evidence conclusively
establishing a claim for fraudulent misrepresentation. We agree.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant summary disposition. Pontiac Police
& Fire Retiree Prefunded Group Health & Ins Trust Bd of Trustees v City of Pontiac, 309 Mich
App 611, 617-618; 873 NW2d 783 (2015). “A motion under MCR 2.116(C)(10) ‘tests the factual
support of a plaintiff’s claim.’ ” Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266
(2013), quoting Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). “Summary
disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In considering a motion under MCR
2.116(C)(10), a trial court must examine “the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving party to determine
whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App at 621.
“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” West, 469
Mich at 183. The trial court is not permitted to assess credibility, weigh the evidence, or resolve
factual disputes, and if material evidence conflicts, a trial court should not grant a motion for
summary disposition under MCR 2.116(C)(10). Hines v Volkswagen of America, Inc, 265 Mich
App 432, 437; 695 NW2d 84 (2005).
III. ANALYSIS
To void a contract for fraudulent inducement, a party must establish six elements: (1) that
the opposing party made a material representation; (2) that the representation was false; (3) that
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when the opposing party made the representation, the opposing party knew that it was false, or
made it recklessly, without knowledge of its truth and as a positive assertion; (4) that the opposing
party made the representation with the intention that the party would act upon it; (5) that the party
acted in reliance upon it; and (6) the party suffered damage. Bank of America, NA v Fidelity Nat’l
Title Ins Co, 316 Mich App 480, 499; 892 NW2d 467 (2016), quoting Custom Data Solutions, Inc
v Preferred Capital, Inc, 274 Mich App 239, 243; 733 NW2d 102 (2006). Accordingly, to be
entitled to judgment as a matter of law, defendants were required to provide evidence establishing
these six elements.
Under the land contract, defendants were required to pay monthly installments until they
fully satisfied the purchase price. Defendants were also required to pay all property taxes and
assessments. If defendants failed to do either of the foregoing, plaintiffs retained the right to take
back possession of the property.
Many of the facts in this case are not in dispute. The authenticity of the documentary
evidence was not disputed. The key documents are, of course, the purchase agreement and the
Phase II Report. The plaintiffs acknowledge that the Phase II Report was in their possession prior
to execution of purchase agreement. The failure to pay taxes and land contract payments, is also,
undisputed.
Other important facts are contested. The plaintiffs allege that they sent a copy of the Phase
II Report to their real-estate agent, Sharon Houston. According to Houston, she delivered a copy
of this report to defendants’ real-estate agent, Dave McQuarrie. After receiving the Phase II
Report, McQuarrie responded to plaintiffs in a letter signed by a Dr. Steven R. Hensel—who was
apparently another agent acting on behalf of defendants. In the letter, McQuarrie stated that
defendants believed plaintiffs had provided proof the property was free from contaminants and,
therefore, defendants agreed to remove the contingency. McQuarrie, however, explained that he
wrote this at the behest of defendants and that he never received a copy of the Phase II Report.
Defendants insist that McQuarrie never made them aware of the report.5
We agree with the trial court that there was evidence that unequivocally established the
first three elements of fraudulent inducement. By agreeing to defendants’ contingency clause in
the purchase agreement, plaintiffs represented that they could provide proof that the property was
free from contaminants. See Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 640;
534 NW2d 217 (1995) (holding that a party had perpetrated fraud in the inducement by entering
into an agreement while having no intention to abide by the agreement’s terms). Plaintiffs’
representation was material, because defendants conditioned their offer to buy on the property
being free from contaminants. At the same time plaintiffs were making this material representation
5
This forms the basis for defendants’ third-party complaint against third-party defendants,
Orville J. McGirr, doing business as McGirr Realty, and Dave McQuarrie. In August of 2015,
defendants sued third-party defendants for breach of fiduciary duty, breach of contract, and
fraud. Defendants argued that third-party defendants knew or should have known that the
property was contaminated and that, by failing to disclose this, third-party defendants breached
the fiduciary duty they owed to defendants.
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to defendants, plaintiffs were in possession of the Phase II Report. Hence, plaintiffs knew that
their representation was false or else reasonably should have known so. In short, there is no issue
of material fact that plaintiffs made a false representation to defendants.
However, to establish fraudulent inducement, defendants were required to prove more than
just a false representation. Defendants were also required to prove that (1) plaintiffs made the false
representation with the purpose of inducing defendants’ assent to the land contract; (2) that
defendants acted in reliance on the false representation; and (3) that defendants suffered damage.
Defendants failed to provide evidence unequivocally establishing these elements.
The trial court acknowledged that there was conflicting evidence as to whether the
defendants or their agent received the Phase II Report. However, the trial court found that this
factual dispute was not material. We disagree. It is material to the reliance element of the
defendants’ claim. If defendants did receive the report, their reliance on any contrary
representation is undermined. In a succinct summary on the first few pages, the Phase II Report
explains its findings about contamination levels on the property. On the other hand, if defendants
did not receive a copy of the Phase II Report, then defendants could plausibly claim that they relied
on plaintiffs’ previous representation, as defendants would apparently have had no other way of
knowing there were contaminants on the property. Until this question of fact—whether defendants
received a copy of the Phase II Report—is resolved, it will be unclear whether defendants relied
on plaintiffs’ representation.6
There is also a question of fact concerning the Phase II Report that impacts the intent
element of the defendants’ claims. As noted above, plaintiffs’ agent claims she sent the report to
the defendants’ agent. If the report was sent, and even if the representation letter was also sent
before closing, reasonable minds could conclude that plaintiffs in fact had no intent to defraud
defendants. On the other hand, considering that plaintiffs did not correct defendants’ ostensible
misunderstanding of the Phase II Report, reasonable minds could also conclude the opposite.
Given that reasonable minds could draw two competing inferences from the evidence below, a
genuine issue of material fact exists. Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d
211 (2010) (“A question of fact exists when reasonable minds could differ as to the conclusions to
be drawn from the evidence.”)
We find there are two material factual disputes and therefore, we reverse the trial court’s
order granting defendants summary disposition and remand for further proceedings.
6
Given that the resolution of this issue depends on a question of fact, defendants would also not
be entitled to summary disposition under a negligent misrepresentation theory. Although negligent
representation does not require proof of intent, it still requires a party to prove “that a party
justifiably relied to his detriment on information prepared without reasonable care by one who
owed the relying party a duty of care.” Alfieri v Bertorelli, 295 Mich App 189, 194; 813 NW2d
772 (2012) (citation and quotation marks omitted).
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Reversed and remanded. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Cynthia Diane Stephens
/s/ Michelle M. Rick
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