JOHN OMILION V ROBERT M TURNER
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN and KATHLEEN OMILION
UNPUBLISHED
January 10, 1997
Plaintiffs-Appellees,
v
No. 188103
Oakland County
LC No. 94-480483
ROBERT M. and PENNY A. TURNER,
Defendants-Third Party
Plaintiffs-Appellants,
and
ROBERT SHOOLTZ, individually and d/b/a
COLDWELL BANKER-SHOOLTZ REALTY
and JAMES UPTHEGROVE,
Third-Party DefendantsAppellees.
__________________________________________
JOHN and KATHLEEN OMILION,
Plaintiffs-Appellants,
v
No. 188558
LC No. 94-480483
ROBERT M. and PENNY A. TURNER,
Defendants-Third-Party
Plaintiffs-Appellees,
and
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ROBERT SHOOLTZ, individually and d/b/a
COLDWELL BANK-SHOOLTZ REALTY
and JAMES UPTHEGROVE,
Third-Party Defendants.
Before: McDonald, P.J., and Murphy and J. D. Payant*, JJ.
PER CURIAM.
In this consolidated appeal, defendants appeal as of right the trial court’s orders granting third
party defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10) and granting
plaintiffs’ motion for partial summary disposition pursuant to MCR 2.116(C)(10).1 Plaintiffs also appeal
as of right the trial court’s order denying their request for incidental monetary damages. As to
defendants’ appeal, we affirm. As to plaintiffs’ appeal, we reverse and remand this matter to the trial
court for an evidentiary hearing on the issue of incidental monetary damages.
In 1990, defendants owned five contiguous lots located at 656 Pontiac Road in Orion
Township. Lots 41, 42, and 43 were identified with Sidwell number 09-11-337-061, and lots 44 and
45 were identified with Sidwell number 09-11-337-025. On or about February 14, 1990, defendants
combined lots 41-45 on county records and the new parcel was given Sidwell number 09-11-337-063.
The new parcel measured 150 feet by 120 feet. Defendants then applied for and obtained a building
permit for the purpose of building a single-family house on the combined parcel.
Defendants entered into a listing agreement with third-party defendants to sell the house they
constructed. The listing agreement stated that the house was situated on lots 44 and 45, Sidwell number
09-11-337-025, which was the original Sidwell identification for lots 44 and 45. However, the listing
agreement provided that the size of the lot on which defendants’ house was situated measured 150 feet
by 120 feet, the measurement of combined lots 41-45.
On or about September 29, 1990, plaintiffs executed a purchase agreement to buy the house
for $97,000. This contract provided that plaintiffs agreed to purchase the house located at 656 Pontiac,
lots 44 and 45, Sidwell number 09-11-337-025. On or about October 31, 1990, plaintiffs executed a
land contract to purchase land described as lots 44 and 45, Sidwell number 09-11-337-063, the tax
identification number of combined lots 41-45. On September 24, 1991, defendants executed a
warranty deed by which they conveyed lots 44 and 45 to plaintiffs. When plaintiffs conducted a land
survey in conjunction with their attempt to sell the house in May 1994, they discovered that their
residence was located on lots 42, 43 and 44. Defendants subsequently refused to convey title to lots
41, 42, and 43 to plaintiffs.
* Circuit judge, sitting on the Court of Appeals by assignment.
.
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Plaintiffs then filed suit against defendants, bringing claims for breach of contract, unjust
enrichment, fraudulent misrepresentation, and mutual mistake. Plaintiffs petitioned the trial court to enter
an order declaring that defendants held lots 41, 42, and 43 in constructive trust for their benefit and
requiring defendants to convey the lots to plaintiffs by warranty deed. Plaintiffs also sought incidental
monetary damages for defendants’ failure to convey the lots. In turn, defendants filed a third-party
complaint against third-party defendants, alleging that third-party defendants negligently failed to
determine the location of the house they contracted to sell.
The trial court granted plaintiffs’ motion for partial summary disposition pursuant to MCR
2.116(C)(10) on the basis that the parties had entertained a mutual mistake as to the description of the
property to be sold when they engaged in the transfer of the property. Accordingly, the trial court
entered an order requiring defendants to execute a warranty deed conveying lots 41, 42, and 43 to
plaintiffs. The trial court also granted third-party defendants’ motion for summary disposition pursuant
to MCR 2.116(C)(10) upon concluding that third-party defendants owed no duty to defendants to
conduct a survey to ascertain the location of the house to be sold or determine the correct description of
the property. Lastly, the trial court denied plaintiffs’ request for monetary damages resulting from
defendants’ failure to timely transfer lots 41, 42, and 43 because it determined that the award of such
damages, coupled with the previous grant of specific performance, would result in a double recovery for
plaintiffs.
I. Docket No. 188103
On appeal, defendants argue that the trial court erred in granting plaintiffs’ (C)(10) motion for
partial summary disposition because it improperly made findings of fact in reaching its decision. We
disagree.
MCR 2.116(C)(10) permits summary disposition when “[e]xcept as to the amount of damages,
there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” This Court considers the factual support for the claim, giving the benefit
of any reasonable doubt to the nonmoving party to determine whether a record might be developed
which might leave open an issue upon which reasonable minds could differ. Jackhill Oil Co v Powell
Production, Inc, 210 Mich App 114; 532 NW2d 866 (1995). When deciding a motion for summary
disposition, a court must consider the pleadings, depositions, affidavits, admissions and other
documentary evidence available to it. Patterson v Kleiman, 447 Mich 429; 526 NW2d 879 (1994).
The grant of summary disposition pursuant to MCR 2.116(C)(10) is reviewed de novo. Jackhill,
supra.
Upon reviewing the evidence submitted to the trial court and granting the benefit of any
reasonable doubt to defendants, we find that the trial court did not err in granting plaintiffs’ motion for
partial summary disposition on the basis that the parties labored under a mutual mistake when they
undertook to transfer the property. Plaintiffs presented documentary evidence to clearly support their
argument that the parties made a mutual mistake in failing to transfer
interest in lots 41-45 when they executed the warranty deed. Defendants were constrained to submit
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documentary evidence to the trial court to establish the existence of genuine issues for trial and oppose
plaintiffs’ motion for partial summary disposition. Quinto v Cross & Peters Co, 451 Mich 358; 547
NW2d 314 (1996). Since defendants failed to do so, the trial court was correct in granting summary
disposition as to the issue of whether the parties had entertained a mutual mistake when they executed
the sales contract, land contract, and warranty deed covering only lots 44 and 45. See MCR
2.116(G)(4); International Brotherhood of Electrical Workers, Local Union No 58 v McNulty,
214 Mich App 437; 543 NW2d 25 (1995); see also Dingeman v Reffitt, 152 Mich App 350; 393
NW2d 632 1986.
Upon deciding that the parties made a mutual mistake in executing their contracts of sale and,
ultimately, the warranty deed, the trial court granted plaintiffs the remedy of reforming the parties’
contract of sale in order to carry out their true agreement. In order to properly reform a contract, a
court must determine what the parties actually intended when they entered into it, because a court
cannot fashion a new contract for the parties. Dingeman, supra. While questions of intent are factual
issues which are rarely properly resolved on summary disposition, SSC Assoc Limited Partnership v
General Retirement System of Detroit, 192 Mich App 360; 480 NW2d 275 (1991), we determine
that the trial court properly resolved the question of the parties’ intent on summary disposition. The trial
court was presented with unrebutted evidence that defendants combined lots 41 through 45 in order to
construct a house on the parcel. Defendants’ real estate listing agreement described the property to be
sold as lots 41 through 45, measuring 150 feet by 120 feet. Finally, the land sale contract executed by
the parties identified the parcel to be sold with Sidwell number 09-11-337-063, the identification
number of the combined parcel. From this evidence and defendant’s inability to produce documentary
evidence to oppose plaintiffs’ motion for summary disposition, we conclude that the trial court properly
determined that there was no genuine issue of material fact concerning whether defendants intended to
convey lots 41 through 45 to plaintiffs. Accordingly, we affirm the trial court’s grant of plaintiffs’ motion
for partial summary disposition pursuant to MCR 2.116(C)(10).
Next, defendants argue that the trial court erred in disposing of its negligence claim against third
party defendants pursuant to granting third-party defendants’ (C)(10) motion for summary disposition.
Defendants argue that the trial court mistakenly concluded that real estate agents do not owe a duty to
their customers to conduct a survey of, or otherwise ascertain the true dimensions, location, and
description of the property to be sold. We do not agree.
In order to establish that third-party defendants were negligent in performing their function as
real estate agents, defendants were required to submit documentary evidence to show four elements: (1)
a duty owed by third-party defendants to defendants; (2) a breach of that duty; (3) causation; and (4)
damages. Lawrenchuk v Riverside Arena, Inc, 214 Mich App 431, 432; 542 NW2d 612 (1995).
Whether third-party defendants owed defendants a legal duty is a question of law for the trial court to
decide. Simko v Blake, 448 Mich 648; 532 NW2d 842 (1995).
We conclude that the trial court was correct in finding that third-party defendants owed
defendants no duty to conduct a survey of their property or otherwise determine the proper description
and location of the property to be sold. Real estate brokers are the agents of the seller and therefore
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owe a fiduciary duty to the seller, which has been characterized as including the duty to disclose fully
and fairly the material terms of any offers to purchase the seller’s property. Andrie v ChrystalAnderson & Associates Realtors, Inc, 187 Mich App 333; 466 NW2d 393 (1991). We are not
cognizant of any existing law which would obligate a real estate agent to conduct a survey of the
property to be sold or otherwise determine whether the seller is selling the “correct” parcel of land,
especially where, as here, the realtor would have had no reason to know or suspect that defendants
made a mistake in determining the size and location of the lots upon which they built their house.2 Since
there was no duty imposed by law which obligated third-party defendants to ascertain the location and
size of the land upon which defendants’ house was located, the trial court did not err when it granted
third-party defendants’ motion for summary disposition. See Simko, supra.
II. Docket No. 188558
Plaintiffs argue that the trial court erred in refusing to grant their request for incidental monetary
damages for defendants’ failure to timely transfer lots 41, 42 and 43. Although we reach no conclusion
regarding the extent of plaintiffs’ incidental damages, we determine that the trial court erred in holding
that plaintiff was not entitled to incidental monetary damages without holding an evidentiary hearing on
the subject.
Along with granting plaintiffs’ motion for partial summary disposition pursuant to MCR
2.116(C)(10), the trial court issued an order stating that “an evidentiary hearing shall be scheduled to
determine the amount of monetary damages, costs and sanctions, if any, to be assessed against
Defendants and in favor of Plaintiffs.” The trial court never conducted such a hearing. On June 30,
1995, the trial court held a hearing on “Plaintiff’s [sic] Motion for Monetary Damages.” Plaintiff never
actually moved for monetary damages. In all likelihood, this was the evidentiary hearing the trial court
intended to conduct. However, prior to this proceeding, the trial court apparently instructed the parties
to prepare and submit memoranda on the legal question of whether plaintiff was entitled to monetary
damages as well as specific performance. The parties did so, but did not submit evidence on the
subject of plaintiffs’ actual incidental damages. Nevertheless, without this information, the trial court
determined that the equities of the parties had been adequately sorted out when it ordered defendants to
convey the remaining lots to plaintiffs. The trial court further determined that plaintiffs would receive a
“windfall and double recovery” if it were to award them incidental damages as well as specific
performance. Accordingly, the trial court entered an order denying monetary damages to plaintiffs. The
order also disposed of plaintiffs’ remaining claims for breach of contract, unjust enrichment, and
fraudulent misrepresentation.
Where, as here, the proceeding was equitable in nature, we review the trial court’s ultimate
determination de novo and review for clear error the findings of fact supporting that determination.
Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636; 534 NW2d 217 (1995). A trial
court’s findings are clearly erroneous only where this Court is left with a definite and firm conviction that
a mistake has been made. Id.
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In granting specific performance, a trial court may award such additional or incidental relief as is
necessary to adequately sort out the equities of the parties, and should endeavor to put the parties as
nearly as possible in the position that they would have occupied had the conveyance of the real property
occurred as required by the contract. Giannetti v Cornillie (On Remand), 209 Mich App 96; 530
NW2d 121 (1995); see also Godwin v Lindbert, 101 Mich App 754; 300 NW2d 514 (1980). The
trial court must, however, prevent the prevailing party from receiving a double recovery. Godwin,
supra.
Although the trial court concluded that plaintiffs would receive a double recovery if it awarded
incidental damages, the record does not support this conclusion. Indeed, the trial court was never
presented with evidence of plaintiffs’ damages. In light of the fact that the trial court never considered
this evidence, we are left with a definite and firm conviction that the trial court was mistaken when it
concluded, without proof, that plaintiffs would receive a double recovery if they were awarded
incidental damages. Therefore, we reverse the trial court’s order denying plaintiffs’ request for
incidental monetary damages. In this situation, the most equitable course is to remand this matter to the
trial court for an evidentiary hearing to determine the amount of plaintiffs’ incidental damages. See
Giannetti, supra.
Plaintiffs also argue that the trial court erred in dismissing their claims against defendants for
breach of contract, undue enrichment, and fraudulent misrepresentation. We conclude that further
consideration of the merits of these claims is unnecessary, because the damages sought for each
individual claim would approximate the damages plaintiffs allegedly incurred due to defendants’ failure to
timely convey lots 41, 42, and 43. To allow plaintiff both incidental monetary damages for defendants’
delay in transferring title and damages for breach of contract, undue enrichment, and fraudulent
misrepresentation would result in a double recovery for plaintiffs, which is improper. Godwin, supra.
Therefore, the trial court was correct in dismissing plaintiffs’ remaining claims against defendants.
Remanded for further proceedings consistent with this opinion.
/s/ Gary R. McDonald
/s/ William B. Murphy
/s/ John D. Payant
1
Plaintiffs actually motioned for partial summary disposition pursuant to MCR 2.116(C)(9) and
(C)(10). Since the trial court relied on documentary materials outside of the parties’ pleadings when it
decided plaintiffs’ motion for partial summary disposition, the trial court granted plaintiffs’ motion on the
basis of MCR 2.116(C)(10). See MCR 2.116(G)(2). Therefore, we treat plaintiffs’ motion as one
brought pursuant to MCR 2.116(C)(10).
2
Although defendants claim that the affidavit of Charles Olsson, a purported expert, is admissible to
establish the existence of an industry-wide standard of care for real estate agents encompassing a duty
to ascertain the correct size and location of a parcel of land involved in a transaction, we refuse to
consider this affidavit on appeal, since it was not before the trial court when it ruled on third-party
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defendants’ (C)(10) motion for summary disposition. Harkins v Department of Natural Resources,
206 Mich App 317, 323; 520 NW2d 653 (1994).
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