Order Michigan Supreme Court
Lansing, Michigan
April 8, 2009 Marilyn Kelly,
Chief Justice
137749 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
RICHARD R. ROBERTS and STACEY D. Stephen J. Markman
Diane M. Hathaway,
ROBERTS, Justices
Plaintiffs-Appellants,
v SC: 137749
COA: 275458
Leelanau CC: 05-007063-CK
ROBERT L. SAFFELL and JOANNE O.
SAFFELL,
Defendants-Appellees.
_________________________________________/
On order of the Court, the application for leave to appeal the August 21, 2008
judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral
argument on whether to grant the application or take other peremptory action. MCR
7.302(G)(1). At oral argument, the parties shall address: (1) whether the Court of
Appeals erred by holding that innocent misrepresentation is not a viable theory of
liability under the Seller Disclosure Act (SDA), MCL 565.951 et seq.; (2) if not, whether
the plaintiffs could nevertheless proceed with their claim to the extent an issue presented
to the jury was whether the defendants knew of the termite infestation and intentionally
withheld the information from the plaintiffs; (3) whether the defendants failed to preserve
the argument that a claim for innocent misrepresentation cannot legally be maintained
under the SDA by failing to expressly present it at the Court of Appeals; and (4) if so,
whether this failure to preserve the issue acted as a waiver of this defense or acted as a
bar to the Court of Appeals consideration of the issue. The parties may file supplemental
briefs within 28 days of the date of this order, but they should not submit mere
restatements of their application papers.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 8, 2009 _________________________________________
0408 Clerk