JEFFREY L ANTEAU V OAKLAND PEST CONTROL LLC
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STATE OF MICHIGAN
COURT OF APPEALS
JEFFREY L. ANTEAU and DIANE J. ANTEAU,
UNPUBLISHED
August 17, 2004
Plaintiff-Appellees,
v
No. 246513
Macomb Circuit Court
LC No. 2001-002929-NO
OAKLAND PEST CONTROL, LLC,
Defendant-Appellant.
Before: Jansen, P.J., and Meter and Cooper, JJ.
PER CURIAM.
Defendant appeals by leave granted from the opinion and order that denied its motion for
summary disposition with regard to plaintiffs’ implied contract claims, reinstated plaintiffs’
negligence claim, and denied defendant’s motion in limine. We reverse.
Plaintiffs purchased a home located in Chesterfield. Because the home was being
financed through a Veterans Administration mortgage, plaintiffs understood that a pest
inspection was required by the mortgage company, Lincoln Title. On October 13, 2000, before
the closing, Darrell Seelinger, defendant’s owner, inspected the home and issued a report that
stated that “no visible evidence of wood destroying insect infestation was observed.” Plaintiffs
alleged that based on this report, they proceeded to close on the home. However, after moving
into the home, plaintiffs found that the home was infested with powder post beetles. Plaintiffs
alleged that defendant was negligent in failing to inspect the home and breached a contract by
falsifying the inspection report.
Defendant moved for summary disposition under MCR 2.116(C)(8) and (C)(10). The
trial court, at this time Judge Mark S. Switalski, granted defendant’s motion with regard to the
negligence claim, pursuant to MCR 2.116(C)(8). The trial court reasoned that it was well settled
that an action in contract cannot also support an action in tort where no duty arose that was
separate and distinct from the contractual obligation. The trial court denied defendant’s motion
with regard to the contract claim. The trial court stated that although defendant argued that the
contract had been between itself and the title company, plaintiffs maintained that they were
entitled to recover under an implied contract or third-party beneficiary theory. The trial court
concluded that the “interest of justice” would be furthered by granting plaintiffs an opportunity
to amend their pleading pursuant to MCR 2.118(A)(2).
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Plaintiffs filed an amended complaint, pursuant to the trial court’s above ruling, in which
they alleged breach of an implied contract in fact, breach of an implied contract in law, and a
third-party beneficiary claim. Defendant again moved for summary disposition. The trial court,
now Judge Diane M. Druzinski, found that the “Wood Destroying Insect Infestation Report,” the
only document on which the parties relied, did not constitute a contract. The trial court stated
that the report merely set forth the inspector’s findings and served as a disclosure form. The trial
court also found that there were outstanding factual issues regarding whether the parties had
entered into an implied contract in fact or law and whether defendant had breached such a
contract by failing to perform the pest inspection in an adequate manner. Therefore, the trial
court denied defendant’s motion with regard to the implied contract claims, but granted
defendant’s motion with regard to the third-party beneficiary claim. The court reinstated
plaintiffs’ negligence claim.
Defendant contends that the trial court erred by denying its motion for summary
disposition concerning plaintiffs’ implied contract claims. Plaintiffs expressly state in their
appellate brief that they do not contest defendant’s argument and that they abandon any claims of
implied contract. Therefore, we address this issue no further.
Defendant next contends that Judge Druzinski, the successor judge, committed error
mandating reversal by reversing Judge Switalski’s previous ruling on the negligence claim. We
disagree.
“[I]nterpretation of a court rule, like a matter of statutory interpretation, is a question of
law that this Court reviews de novo.” CAM Constr v Lake Edgewood Condominium Ass’n, 465
Mich 549, 553; 640 NW2d 256 (2002). Our Supreme Court has articulated the following mode
of interpreting a court rule:
When called on to construe a court rule, this Court applies the legal
principles that govern the construction and application of statutes. McAuley v
General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998)[, overruled on
other grounds in Rafferty v Markovitz, 461 Mich 265 (1999)]. Accordingly, we
begin with the plain language of the court rule. When that is unambiguous, we
must enforce the meaning expressed, without further judicial construction or
interpretation. See Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545
NW2d 642, (1996). Similarly, common words must be understood to have their
everyday, plain meaning. See MCL 8.3a . . . ; see also Perez v Keeler Brass Co,
461 Mich 602, 609; 608 NW2d 45 (2000). [CAM Constr, supra, 554.]
MCR 2.604 provides the following:
(A) Except as provided in subrule (B), an order or other form of decision
adjudicating fewer than all the claims, or the rights and liabilities of fewer than all
the parties, does not terminate the action as to any of the claims or parties, and the
order is subject to revision before entry of final judgment adjudicating all the
claims and the rights and liabilities of all the parties. Such an order or other form
of decision is not appealable as of right before entry of final judgment. A party
may file an application for leave to appeal from such an order.
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The plain language of this court rule provides that an order that adjudicates fewer than all
the claims in the case may be subject to revision before entry of final judgment. See Meagher v
Wayne State Univ, 222 Mich App 700, 718; 565 NW2d 401 (1997), where this Court stated that
“a prior denial of summary disposition is not dispositive of this issue because an order entered by
a trial court may be modified before entry of the final judgment, and a successor judge, as in this
case, is empowered to make a revision to reflect a more correct adjudication of the rights and
liabilities of the litigants.”
With respect to the issue at hand, final judgment had not been entered. Thus, pursuant to
the plain language of MCR 2.604 and this Court’s ruling in Meagher, supra, Judge Druzinski,
the successor judge, could revise Judge Switalski’s previous order.
Defendant further contends that apart from the procedural irregularity discussed above,
the trial court erred in reinstating plaintiffs’ negligence claim. In determining whether a plaintiff
can maintain a tort action, the threshold inquiry is whether the plaintiff alleges a violation of a
legal duty separate and distinct from a contractual obligation. Rinaldo’s Constr Co v Michigan
Bell Telephone Co, 454 Mich 65, 84; 559 NW2d 647 (1997). In Rinaldo, the Court found that
the plaintiff did not set forth a cognizable cause of action in tort. Id., 85. Our Court stated:
In this case, as in Hart [v Ludwig, 347 Mich 559; 79 NW2d 895 (1956)],
the defendant agreed to provide the plaintiff with services under a contract. Like
the defendant in Hart, Michigan Bell allegedly failed to fully perform according
to the terms of its promise. While plaintiff’s allegations arguably make out a
claim for “negligent performance” of the contract, there is no allegation that this
conduct by the defendant constitutes tortious activity in that it caused physical
harm to persons or tangible property; and plaintiff does not allege violation of an
independent legal duty distinct from the duties arising out of the contractual
relationship. Like the plaintiff in Valentine [v Michigan Bell Telephone Co, 388
Mich 19, 22; 199 NW2d 182 (1972), abrogated on other grounds by Travelers Ins
Co v Detroit Edison Co, 465 Mich. 185 (2001)], “regardless of the variety of
names [plaintiff gives the] claim, [plaintiff is] basically complaining of
inadequate service and equipment . . . .” Thus, under the principles outlined
above, there is no cognizable cause of action in tort. [Rinaldo’s, supra, 85.]
This Court has recently reiterated that the above case law expressly provides that an action in tort
may not be maintained where a contractual agreement exists, unless a duty, separate and distinct
from the contractual obligation, is established. Sherman v Sea Ray Boats, Inc, 251 Mich App 41,
52; 649 NW2d 783 (2002).
Defendant argues that plaintiffs did not allege a duty separate and distinct from the
alleged contractual obligation. The trial court, on the other hand, found that because the
inspection report did not constitute a contract, the interest of justice would be served by
reinstating the negligence claim. Therefore, the first issue that we need to address is whether an
express contract existed in the case at hand.
“In Michigan, the essential elements of a valid contract are (1) parties competent to
contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and
(5) mutuality of obligation.” Thomas v Leja, 187 Mich App 418, 422; 468 NW2d 58 (1991).
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The essence of consideration is “legal detriment that has been bargained for and exchanged for
the promise.” Higgins v Monroe Evening News, 404 Mich 1, 20; 272 NW2d 537 (1978).
In the case at hand, we conclude that the trial court did not err in finding that the
inspection report did not constitute a contract. This report does not set forth the above elements
necessary for a valid contract. Because there was no contractual duty between plaintiffs and
defendant to perform this inspection, the next question is whether the trial court correctly ruled
that the negligence claim should be reinstated. Defendant cites Palmer v Orkin Exterminating
Co, Inc, 871 F Supp 912 (SD Miss, 1994), and Orkin Exterminating Co, Inc v Steven, 130 Ga
App 363; 203 SE2d 587 (1973), to support its contention that the negligence claim should not
have been reinstated.
In Palmer, supra, 912-913, the plaintiff contracted with Orkin for its exterminating
services. Orkin treated the home pursuant to the contract and then issued the plaintiff a “Retreatment Guarantee” that provided that Orkin would re-treat the plaintiff’s home in the event of
further termite activity, but expressly limited Orkin’s liability to re-treatment. Id., 913. A few
years later, after several re-treatments by Orkin, termites were still apparent in areas of the
plaintiff’s home, and this prompted her to request the assistance of the State Department of
Agriculture. Id. The plaintiff filed suit, alleging breach of contract and negligent breach of
contract. Id. The district court found that the negligence that plaintiff attributed to Orkin
stemmed directly from the duties imposed by the contract, not from any duty owed to the
plaintiff independent of the contract. Id., 914.
In Stevens, supra, 589, Stevens contracted with Orkin for control of subterranean termites
in his home. Stevens brought a negligence suit against Orkin to recover for new termite damage
to portions of the house not involved in the initial termite infestation. Id. The Georgia Court of
Appeals found that the plaintiff’s tort claim failed because there was no cause of action. Id., 591.
That court stated that the only duty Orkin was claimed to have failed to perform “was its contract
duty to treat the premises in such a way as to control renewed termite infestation.” Id.
Therefore, the court stated that “this may be regarded as a case of nonperformance of a contract
obligation, and as such falls within the ambit of the above stated rule that mere failure to perform
a contract obligation -- or inaction -- gives rise to no claim in tort.” Id.
These cases can be distinguished in that the plaintiffs in these two cases contracted
directly for the exterminating services for their homes they already owned; thus, the courts found
that the duties attributed to Orkin stemmed directly from the contracts. In the case at hand,
plaintiffs did not hire defendant or enter into a contract for the inspection of the home plaintiffs
were intending to purchase.
Defendant states that “[a]bsent a contractual obligation, Michigan law does not recognize
a duty of pest inspection and disclosure.” We have found no case law recognizing or rejecting
such a duty. We acknowledge that there is case law from other jurisdictions recognizing that a
pest control operator owes the purchaser of a home a duty of reasonable care, competence, or
skill in ascertaining facts in a termite inspection report, even though the purchasers are not a
party to the contract and have no direct or indirect contact with the inspector. See Osborne v
Ladner, 691 So 2d 1245, 1255 (La App, 1997); see also, generally, Fessler v Quinn, 143 Ore
App 397, 401-403; 923 P2d 1294 (1996).
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Even if we were to find that a pest control operator owes the purchaser of a home a duty
of reasonable care, competence, or skill in ascertaining facts in a pest inspection report, we
conclude that plaintiffs failed to produce evidence to create a genuine issue of material fact
regarding whether defendant’s inspection of the home was negligent. Seelinger stated the
following in his affidavit:
4. On or about October 13, 2000, I conducted a pest inspection at 48061
Sugarbush in Chesterfield Township, Michigan. During my inspection, I
inspected all accessible areas, and found no evidence of pest infestation.
5. I did not inspect the crawlspace beneath the house that day. However, at the
time of the inspection, I was unaware that the house contained a crawl space.
6. At no time prior to or during its engagement was OPC or any of its employees
requested to inspect the crawlspace beneath the home. At no time was OPC or
any of its employees advised there was a crawlspace beneath the home.
Plaintiffs’ deposition testimony acknowledges that the crawl space was covered by a steel cover.
Plaintiff Diane Anteau testified that somebody would have to point out the entry to the crawl
space in order to know that one existed.
In addition, plaintiffs failed to produce evidence that there was an active infestation of
termites on the date of inspection that should have been detected by a visual inspection. The
inspection report states that “[t]his report is indicative of the condition of the subject structure(s)
on the date of the inspection only. . .” Plaintiff Jeffrey Anteau stated that in June 2000, he
inspected the home, including the crawl space for moisture. Plaintiff was asked if he noticed any
damaged wood in the crawl space at this time, and he stated “No.” Plaintiff was further asked:
Q. Yes. Now, you claim you didn’t see the damage to the house prior to closing,
correct?
A. Correct.
Q. So it’s fair to say that you cannot testify as to what damage existed and the
extent of that damage when Oakland Pest control went out to the house to do
their inspection, correct?
A. I cannot say what the damage was when he showed up to do the initial
inspection.
Q. That’s what my question -A. That’s what you’re asking?
Q. Yes.
A. No, I can’t say that.
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We acknowledge that Paul McGregor, a residential builder, was asked, “When let’s say
when you first get powder post beetles at your house, how long it might take to get some
damage, how quickly they work, in other words,” and McGregor responded, “Oh years. Years.”
While McGregor’s testimony indicates that the home had powder post beetles for years, it does
not demonstrate that damage from the beetles was evident in the crawl space in October 2000,
when the inspection occurred. Therefore, we conclude that Judge Druzinski erred in reinstating
the negligence claim.
Finally, defendant contends that the trial court erred by failing to enforce the limitation of
liability provision in the inspection report. Because all of plaintiffs’ claims have been dismissed,
this issue is moot. Jackson v Thompson-McCully Co, 239 Mich App 482, 493; 608 NW2d 531
(2000).
Reversed.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
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