CHRISTOPHER D BENTFIELD V BRANDON'S LANDING BOAT BAR
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STATE OF MICHIGAN
COURT OF APPEALS
CHRISTOPHER D. BENTFIELD,
UNPUBLISHED
August 31, 2004
Plaintiff-Appellant,
v
BRANDON’S LANDING BOAT BAR, DAVID
WATTS, INC., and DAVID WATTS,
No. 248795
Oakland Circuit Court
LC No. 02-039613-NO
Defendants-Appellees.
Before: Jansen, P.J., and Meter and Cooper, JJ.
METER, J. (concurring in part and dissenting in part).
I concur in parts I and II of the majority’s opinion but dissent from part III. I would
affirm this case in its entirety.
Plaintiff contends that the open and obvious doctrine could not be used as a defense in
this case because MCL 554.139 applied. See Woodbury v Bruckner, 467 Mich 922, 922; 658
NW2d 482 (2002) (“[t]he open and obvious doctrine cannot be used to avoid a specific statutory
duty”). This statute states, in part, that a lessor covenants “[t]hat the premises and all common
areas are fit for the use intended by the parties” and also covenants “[t]o keep the premises in
reasonable repair during the term of the lease . . . .” MCL 554.139(1).
Plaintiff is not entitled to reversal with respect to this issue. Indeed, he failed to preserve
the issue concerning MCL 554.139 because he did not mention the statute, with its
corresponding inapplicability of the open and obvious defense, during the summary disposition
proceedings, despite the fact that the Woodbury decision was released before plaintiff filed his
brief in response to defendants’ motion for summary disposition. See, generally, Charbeneau v
Wayne County Gen Hosp, 158 Mich App 730, 733; 405 NW2d 151 (1987). He raised the issue
only in a motion for rehearing and reconsideration. As noted in MCR 2.119(F)(3), to be entitled
to relief with respect to a motion for rehearing or reconsideration, “[t]he moving party must
demonstrate a palpable error by which the court and the parties have been misled and show that a
different disposition of the motion must result from correction of the error.” Here, no palpable
error occurred, because plaintiff did not even allege a violation of MCL 554.139 until he filed his
-1-
motion for rehearing and reconsideration. See Charbeneau, supra at 733 (“[w]e find no abuse of
discretion in denying a motion resting on a legal theory and facts which could have been pled or
argued prior to the trial court’s original order”). Appellate relief is unwarranted.1
I would affirm.
/s/ Patrick M. Meter
1
While the trial court mentioned alternative grounds for its ruling denying the motion for
rehearing and reconsideration, I note that this Court does not reverse when the trial court reaches
the correct result for the wrong reasons. See Ford Motor Credit Co v Detroit, 254 Mich App
626, 633-634; 658 NW2d 180 (2003).
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