NICHOLE CLARK V CLIFF HUCKLEBERRY
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STATE OF MICHIGAN
COURT OF APPEALS
NICHOLE CLARK,
UNPUBLISHED
September 3, 2002
Plaintiff-Appellant,
v
No. 231929
Ionia Circuit Court
LC No. 00-020725-NO
CLIFF HUCKLEBERRY and JUDY
HUCKLEBERRY,
Defendants-Appellees.
Before: Zahra, P.J., and Hood and Jansen, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendants’ motion for
summary disposition. We reverse.
Plaintiff filed a two-count complaint alleging negligence and breach of contract. Plaintiff
resided in a home leased from defendants. Prior to executing the month to month lease, plaintiff
and co-tenant Steve McQueen examined the premises and noted the condition of a swinging door
with four large panes of glass. Plaintiff alleged that the glass was visibly brittle, and one pane of
glass was cracked, but held together by a piece of duct tape. Plaintiff alleged that defendant Cliff
Huckleberry acknowledged that the door was faulty, but reassured the prospective tenants that he
would repair or replace the door in the near future. Plaintiff alleged that she signed the lease
based on this promise. During the course of the lease, McQueen routinely inquired when the
door would be fixed. Defendant Cliff Huckleberry allegedly represented that the repair would
occur “sometime soon.” On February 12, 2000, McQueen left the home after learning about the
hospitalization of his grandfather. Plaintiff went to open the door to ask where McQueen was
going, and her hand went through one of the panes of glass.
Without addressing the individual counts of the complaint, defendants moved for
summary disposition. Defendants alleged that they were not liable because plaintiff had
complete possession and control of the premises and the alleged condition was open and
obvious. In opposition to the dispositive motion, plaintiff and McQueen submitted affidavits that
indicated that defendant Cliff Huckleberry represented that he would fix the door. Plaintiff
alleged that defendants had a statutory, common law, and contractual duty to repair the door, but
failed to perform in accordance with their representations. Plaintiff cited to case law that
indicated that the open and obvious doctrine could not alleviate a statutorily created duty.
Plaintiff also alleged that summary disposition was premature because inspection of the glass
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door and necessary discovery had not yet occurred. The trial court granted defendants’ motion
for summary disposition.
Plaintiff first argues that the trial court erred in dismissing the negligence claim. We
agree. An appellate court reviews the grant or denial of a motion for summary disposition de
novo to determine if the moving party was entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). To establish a prima facie case of
negligence, the plaintiff must prove four elements: (1) a duty owed by the defendant to the
plaintiff; (2) a breach of that duty; (3) causation, that include cause in fact and legal or proximate
cause; and (4) damages. Case v Consumers Power Co, 463 Mich 1, 6 n 6; 615 NW2d 17 (2000).
In the present case, plaintiff alleged that a statutory duty was owed by defendants as landlord to a
tenant pursuant to MCL 554.139. Defendants cannot utilize the open and obvious doctrine to
avoid liability where a duty to maintain the leased premises was created by statute. Haas v City
of Ionia, 214 Mich App 361, 363-364; 543 NW2d 21 (1995); Walker v City of Flint, 213 Mich
App 18, 20-23; 539 NW2d 535 (1995).1
Plaintiff also alleges that the trial court erred in dismissing the breach of contract claim.
We agree. Construction and interpretation of a contract presents a question of law that an
appellate court reviews de novo. Bandit Industries, Inc v Hobbs Int’l, Inc (After Remand), 463
Mich 504, 511; 620 NW2d 531 (2001). Summary disposition is rarely appropriate in cases
involving questions of credibility, intent, or state of mind. Arbelius v Poletti, 188 Mich App 14,
18; 469 NW2d 436 (1991). The moving party has the initial burden to support its claim to
summary disposition by affidavits, depositions, admissions, or other documentary evidence.
Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The burden then shifts
to the nonmoving party to demonstrate that a genuine issue of disputed fact exists for trial. Id.
The lease contained the following provisions addressing landlord and tenant repairs:
Tenant further agrees to maintain said premises in good repair and to
deliver and surrender up the same upon termination of said tenancy in the same
condition as when taken except for ordinary wear and tear.
The landlord or his authorized agents shall have the right to inspect said
premises and repair and maintain the same, and may at any reasonable hour show
the same and any part thereof to prospective purchasers, mortgagees, tenants, or
1
We note that in Woodbury v Bruckner, 248 Mich App 684, 690; ___ NW2d ___ (2001), a panel
of this Court addressed MCL 554.139. Although the panel concluded that the open and obvious
doctrine could be raised by defendants, the Court’s ultimate holding was that the doctrine was
inapplicable because a question of fact existed. Specifically, whether an unguarded rooftop
porch was unreasonable despite being open and obvious. Id. at 696. “Statements and comments
in an opinion concerning some rule of law or legal proposition not necessarily involved nor
essential to determination of the case in hand, are, however illuminating, but obiter dicta and
lack the force of adjudication.” Hett v Duffy, 346 Mich 456, 461; 78 NW2d 284 (1956)
(emphasis in original). See also, Glus v Brooklyn Eastern District Terminal, 359 US 231, 235;
79 S Ct 760; 3 L Ed 2d 770 (1959) (dicta is not binding); Perry v Seid, 461 Mich 680, 687 n 9;
611 NW2d 516 (2000) (observations by way of dicta are not binding).
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agents thereof, and may, at any time, place and maintain one “for sale” sign
thereon in event said property is now or hereafter for sale.
In support of the breach of contract claim, plaintiff and McQueen filed affidavits indicating that
defendant Cliff Huckleberry acknowledged the need for the repair. The affidavits further
indicate that defendants exercised the reservation of rights provision to enter the premises and
make the repair by representing that the door would be fixed by them. There is no documentary
evidence in the record to indicate that defendants authorized plaintiff or McQueen to repair the
door under the tenant duties provision contained in the lease agreement. Accordingly, plaintiff
created an issue of fact that precluded summary disposition. Quinto, supra.2
Reversed and remanded. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Harold Hood
/s/ Kathleen Jansen
2
Plaintiff also alleges that defendants breached a statutory duty regarding safety glass
requirements. However, this issue was not raised, addressed, and decided by the trial court.
Persinger v Holst, 248 Mich App 499, 507 n 2; 639 NW2d 594 (2001).
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