ANTOINETTE HUNT V ELEPHANT REAL ESTATE INC
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STATE OF MICHIGAN
COURT OF APPEALS
ANTOINETTE HUNT,
UNPUBLISHED
October 13, 2009
Plaintiff-Appellee,
v
No. 284663
Oakland Circuit Court
LC No. 2006-074815-CH
ELEPHANT REAL ESTATE, INC.,
Defendant-Appellant,
and
EASTERN SAVINGS BANK, GENERAL
MOTORS ACCEPTANCE CORPORATION, PAT
PARROTT, RE/MAX ACCLAIM, JENNINE
MURPHY and ASSOCIATES GROUP REAL
ESTATE, INC. d/b/a GREAT LAKES GMAC
REAL ESTATE,
Defendants.
Before: K. F. Kelly, P.J., and Jansen and Fitzgerald, JJ.
PER CURIAM.
In this contract action, defendant appeals as of right the trial court’s judgment in
plaintiff’s favor rescinding the subject real estate transaction. We reverse.
I. Basic Facts
The property involved in this litigation is a home that defendant acquired title to in April
2005 in a foreclosure proceeding. Defendant obtained possession of the premises at the end of
May 2005. Before putting the house on the market for sale, defendant became aware of
numerous repairs that needed to be made, including leaks in the roof and a water leak in the
basement caused by a cracks in the driveway. Defendant had the driveway repaired and the
home was sealed to prevent any further water leaks. The roof was also repaired. These repairs
were completed by July 25, 2005, after which defendant believed the problems had been fully
resolved based on defendant’s agents’ visits to the premises. Thereafter, the house was put up
for sale.
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Defendant entered into a purchase agreement for the sale of the home with plaintiff,
closing on September 12, 2005. The agreement entitled plaintiff to an inspection of the home
before the sale became final. Pursuant to the agreement, if problems were discovered during this
due diligence inspection, plaintiff could either void the agreement or apply the repair cost against
the purchase price if she contacted defendant within a certain number of days. The contract also
included the following clause:
BUYER ACCEPTANCE OF CONDITION: If buyer elects to close regardless of
conditions disclosed in due diligence period, Buyer shall be deemed to have
accepted property in its “AS IS” condition. Buyer hereby knowingly waives,
releases and relinquishes any and all claims or causes of action against Brokers,
their officers, directors, employees and/or their agents for condition of property.
In addition, the contract provided plaintiff with the right to a walk-through 48 hours before
closing, to ascertain whether the terms of the agreement had been met.
Plaintiff elected to have an inspection done before completing the sale, which was
completed sometime during the week of August 7, 2005. The inspection did not reveal that there
were any leaks in either the roof or the basement. However, the report did indicate that there was
water damage in the basement’s wood trimming along the floor and that moisture and
efflorescence1 was present. Plaintiff did not ask the inspector about these problems because she
believed the air conditioner hose had caused the damage. Plaintiff also did not contact defendant
or the real estate agents to indicate that she was dissatisfied with the home’s condition. Plaintiff
next visited the house again on the closing date, September 12, when she completed her purchase
of the home pursuant to the purchase agreement. She did not have a walk-through 48 hours prior
to closing.
Subsequently, plaintiff moved into the home and noticed that the basement wall was
stained and that there were puddles on the basement floor. Plaintiff sought outside advice
regarding the problem in October 2005 and it was revealed that the basement contained
stachybotrys pithomyces, a toxic type of mold. A home inspector company advised plaintiff that
she could get rid of this problem through a multi-step process. In February 2006, plaintiff
noticed that her children were starting to get sick, and on the advice of her doctor that their
condition was caused by the mold, she moved out of the home in July 2006.
Plaintiff filed this lawsuit against defendant, alleging fraud, misrepresentation, silent
fraud, mutual mistake, and violations of the Michigan Consumer Protection Act. The matter
proceeded to a three day bench trial, after which the trial court found that the sale was premised
on a mutual mistake as neither party was aware of the existence of black mold at the time of the
transaction and that plaintiff was entitled to rescission of the contract. The court ruled that
plaintiff had no cause of action on other grounds. This appeal followed.
1
Efflorescence is a process by which the integrity of a concrete structure is weakened by outside
influences.
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II. Mutual Mistake
Defendant first argues that the trial court erred by ordering rescission of the contract
based on mutual mistake because the purchase agreement contained an “as is” clause. We agree,
but on slightly different grounds. We review a trial court’s findings of fact in a bench trial for
clear error and its conclusions of law de novo. City of Flint v Chrisdom Properties, Ltd, 283
Mich App 494, 498; ___ NW2d ___ (2009).
In our view, plaintiff is not entitled to rescission of the contract on the basis of mutual
mistake. Clear and satisfactory evidence of a mutual mistake by the contracting parties may
warrant rescission or reformation of a contract. Urick v Burge, 350 Mich 165, 169; 86 NW2d
543 (1957). Here, it is plain from the record that a mutual mistake was made. Neither party was
aware of the existence of mold in the basement until after the sale was completed. However, this
is not the type of mutual mistake that, in a legal sense, warrants rescission of, or otherwise allows
a party to avoid, the contract.
Generally, a party may avoid a contract when the mutual mistake goes to the basic
essence, form or substance of the contract, not some collateral aspect affecting quality or value.
See, e.g., Lenawee Bd of Health v Messerly, 417 Mich 17, 26-29; 331 NW2d 203 (1982); Gorden
v City of Warren Planning & Urban Renewal Comm’n, 388 Mich 82, 88-89; 199 NW2d 465
(1972); Sherwood v Walker, 66 Mich 568, 577-578; 33 NW 919 (1887). Such a determination is
made on a case-by-case basis, in which it must be determined whether the mistake relates to
some basic assumption upon which the contract is made and which materially affects the
performance of the parties. Lenawee Bd of Health, supra at 29. If a mutual mistake has been
made then rescission or reformation may be granted by a court sitting in equity, in its discretion,
unless the parties have allocated the risk of loss in their contractual agreement. Id. at 31-32.
Here, defendant assumes that a mutual mistake warranting relief occurred, and argues
that rescission is not appropriate on the basis that the “as is” clause of the purchase agreement
allocated the risk of loss to plaintiff. It is our view, however, that no mutual mistake affecting
the essence or basic assumption of the contract occurred. The mistake shared by both parties in
this case does not affect the “very essence of the consideration,” but merely affected the home’s
value and could have been remedied. Id. at 29. Thus, the trial court erred in determining that
plaintiff prevailed on a theory of mutual mistake. Accordingly, the trial court’s order must be
reversed and a no cause of action order must be entered in defendant’s favor.
Further, even if a mutual mistake warranting some type of relief had occurred, plaintiff’s
claim would nonetheless fail. The contract between the parties specifically allocated the risk of
loss to plaintiff. The contract explicitly stated, “If buyer elects to close regardless of conditions
disclosed in due diligence period, Buyer shall be deemed to have accepted property in its “AS
IS” condition.” This provision indicates that the parties intended that any risks related to the
property’s condition after the due diligence period, whether known or not, should lie with the
buyer. Thus, the parties themselves assigned the risk of loss to plaintiff and plaintiff was not
entitled to rescission. Because we are granting defendant the relief it requested on this basis, we
do not consider its remaining arguments raised on appeal.
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Reversed and remanded for entry of an order consistent with this opinion. We do not
retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Kathleen Jansen
/s/ E. Thomas Fitzgerald
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