STATE OF MICHIGAN
COURT OF APPEALS
ROCHELLE DANIEL,
UNPUBLISHED
March 13, 2012
Plaintiff-Appellant,
v
No. 301563
Oakland Circuit Court
LC No. 2009-102855-CK
PUBLIC STORAGE INCORPORATED,
Defendant-Appellee.
Before: STEPHENS, P.J., and CAVANAGH and SAAD, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant summary disposition and
dismissing her remaining claims in this contract dispute. We affirm.
On appeal, plaintiff argues that the trial court erred in granting summary disposition to
defendant on her breach of contract and silent fraud claims. We disagree.
âThis Court reviews de novo a trial courtâs decision on a motion for summary
disposition.â Cedroni Assoc v Tomblinson, Harburn Assoc, 290 Mich App 577, 584; 802 NW2d
682 (2010). Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), which
applies to the factual support for a partyâs cause of action. See id. When reviewing a motion for
summary disposition brought under MCR 2.116(C)(10), this Court considers the pleadings,
affidavits, and other evidence in the light most favorable to the nonmovant. Id. A motion for
summary disposition should be granted âif there is no genuine issue regarding any material fact
and the moving party is entitled to judgment as a matter of law.â Latham v Barton Malow Co,
480 Mich 105, 111; 746 NW2d 868 (2008). A genuine issue of material fact exists when
âreasonable minds could differ . . . after viewing the record in the light most favorable to the
nonmoving party.â Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
This case involves a rental agreement under which plaintiff rented a storage unit at
defendantâs facility. The agreement explicitly states that plaintiff was storing her property at her
own risk, that defendant bore no responsibility for any damage to property stored in the unit, and
that plaintiff had viewed the unit and found it satisfactory. The agreement also contains an
integration clause providing that defendant disclaims any warranties, representations, or
guarantees not specifically made in the agreement. Neither party alleges that this agreement is
invalid. This suit arises from plaintiffâs allegation that her unit was defective and her door did
not close completely, which caused damage to the property she had stored in the unit.
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First, plaintiff has failed to create an issue of fact with respect to her breach of contract
claim. Plaintiffâs amended complaint alleges that defendant did not repair her unitâs left side
after she complained, did not repair her unitâs right side after a snow plow left a large opening
there, and did not tell her that her property was exposed to the elements. With respect to the
claim about the left side of her unit, the record bears uncontroverted evidence that defendant did
try to make a repair. Plaintiff was told to leave a key with defendantâs manager so a contractor
could access her unit and make any necessary repairs. Plaintiff refused. At this time, defendant
also offered plaintiff a different storage unit, which plaintiff refused.
With respect to the right side of plaintiffâs unit, plaintiff provides no evidence that
defendant actually knew of any damage to her unit caused by a snow plow before it repaired the
unit in January of 2010. Plaintiff herself did not report a problem, as she also alleges that
defendant breached the rental agreement by failing to tell her that her property was exposed.
Plaintiff argues that defendant breached paragraph eight of the rental agreement, which she says
gives discretion to defendant regarding whether to repair a unit. In fact, paragraph eight merely
gives defendant and government authorities the right, but not the obligation, to remove the unitâs
locks when there is an emergency or to make repairs when the tenant refuses to grant access.
This provision itself does not give rise to a breach of contract, and does not, in fact, say what
plaintiff alleges.
Second, plaintiffâs claim, that defendant breached the duty of good faith and fair dealing,
has no legal basis. Michigan does not recognize a common law cause of action for breach of an
implied covenant of good faith and fair dealing without a valid underlying claim for breach of
contract. In re Leix Estate, 289 Mich App 574, 591; 797 NW2d 673 (2010); Belle Isle Grill
Corp v Detroit, 256 Mich App 463, 476; 666 NW2d 271 (2003). As discussed above, there is no
underlying breach of contract claim here.
Plaintiffâs silent fraud claim was also properly dismissed. To establish a claim for silent
fraud, âthe plaintiff must prove that the defendant knew of a material fact but concealed or
suppressed the truth through false or misleading statements or actions and with the intent to
deceive.â Roberts v Saffell, 280 Mich App 397, 405; 760 NW2d 715 (2008). In addition, a
partyâs concealment of the truth constitutes silent fraud only when he has a legal or equitable
duty to disclose. Id. at 404.
Plaintiffâs silent fraud claim alleged that defendant knew, and failed to inform plaintiff,
that plaintiffâs storage unit was built on a hill and so the door would never properly close due to
faulty design and construction. However, plaintiff has provided no evidence that defendant
knew of a defect with her unit and intentionally concealed the truth through false or misleading
statements. Plaintiff claims that in December of 2006, she was told by the facilityâs manager that
the unit was built on a hill and so the door would never be able to close properly. However,
there is no evidence that defendant knew of a problem with the unit in April of 2004, when it
rented the unit to plaintiff. In fact, when plaintiff reported a problem, it appears that defendant
made a good-faith effort to examine and repair the unit. However, the contractor could not
access the unit because plaintiff refused to leave her key at the facility. Defendant also offered
plaintiff a different unit, but plaintiff refused.
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Plaintiff alleges that because the facility existed for 20 years, defendant must have known
that the unit door was defective. However, she presents no evidence that defendant had previous
problems or complaints with respect to that unit. Plaintiff also clearly had the right, per the
rental agreement, to examine the unit prior to signing the rental agreement. She claims that she
was never shown the unit, yet she signed the agreement clause stating that she viewed it and
found it satisfactory. Plaintiff again had the opportunity to view the unit when she moved her
property in at some point in 2004. However, she made no complaint of a defect at that time,
presumably because there was no defect evident. Instead, it appears from the evidence that the
defect was not discovered by anyone, including defendant, until plaintiff made a complaint in
September of 2006.
Additionally, the rental agreement unambiguously provides that defendant bears no
responsibility for any loss from any cause, unless the loss is a direct result of defendantâs fraud,
willful injury, or willful violation of law. The agreement also includes an integration clause
which states, in part, that âthere are no representations, warranties, or agreements by or between
the parties which are not fully set forth herein.â Defendant made no representations in the
agreement guaranteeing that plaintiffâs property would be completely protected from the
elements, but rather explicitly stated that she stored her property at her own risk. Consequently,
it would be unreasonable for plaintiff to rely on any alleged representations that were not part of
the rental agreement.
Plaintiff also argues that the trial court erred in denying her leave to amend her complaint
to add a claim that defendant violated the Michigan Consumer Protection Act (MCPA). We
disagree.
This Court reviews a trial courtâs decision regarding leave to amend a complaint for
abuse of discretion, and will only reverse when that abuse of discretion resulted in injustice. PT
Today Inc v Commâr of Fin and Ins Servs, 270 Mich App 110, 142; 715 NW2d 398 (2006). A
court has abused its discretion when its decision falls outside the range of reasonable and
principled outcomes. In re Kostin Est, 278 Mich App 47, 51; 748 NW2d 583 (2008).
A court should generally grant leave to amend a complaint. See MCR 2.118(A)(2); PT
Today, 270 Mich App at 142-143; Franchino v Franchino, 263 Mich App 172, 189-190; 687
NW2d 620 (2004). A request to amend should be denied only for particularized reasons,
âincluding undue delay, bad faith or a dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party, or futility.â PT Today,
270 Mich App at 143. The failure of a trial court to identify its reasons for denying leave to
amend requires reversal, unless amendment would be futile. Id. âAn amendment would be futile
if (1) ignoring the substantive merits of the claim, it is legally insufficient on its face, (2) it
merely restates allegations already made; or (3) it adds a claim over which the court lacks
jurisdiction.â Id.
In the instant case, the trial court did not specify its reasons for denying plaintiff leave to
amend her complaint to add a claim that defendant violated the MCPA. However, this failure
does not require reversal because plaintiffâs MCPA claim would have been futile. Her MCPA
claim essentially restated her silent fraud claim, which was properly dismissed. Both plaintiffâs
silent fraud and MCPA claims rested on her allegation that defendant failed to reveal the fact that
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the storage unit was structurally defective. This allegation implies that defendant knew of a
defect and had a duty to disclose it. As discussed above, plaintiffâs silent fraud claim was
properly dismissed because there were no genuine issues of material fact; it would be futile to
allow her to restate her silent fraud claim as a claim that defendant violated the MCPA.
Finally, plaintiff argues that the trial courtâs order granting defendant summary
disposition with respect to her breach of contract claim is void because defense counsel
committed a fraud upon the court. We disagree.
On appeal, plaintiff argues that defendantâs second motion for summary disposition
included false and misleading statements of fact and defense counsel intimidated and interrupted
the trial court at the motion hearing. Plaintiff did not raise these arguments below, so this issue
was not properly preserved. This Court reviews unpreserved issues for plain error affecting
substantial rights. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
MCR 2.612(C)(1)(c) provides that a court can ârelieve a party or the legal representative
of a party from a final judgment, order, or proceedingâ on the grounds of â[f]raud (intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party.â A fraud upon the court
occurs âwhen some material fact is concealed from the court or some material misrepresentation
is made to the court.â Matley v Matley, 242 Mich App 100, 101; 617 NW2d 718 (2000).
There is no evidence that defense counsel intimidated the trial court judge or influenced
her ruling. At the hearing on defendantâs second motion for summary disposition, defense
counsel presented his case before the court and did not speak again until the court granted the
motion and requested that an order be submitted. There is no indication that he interrupted or
intimidated the court in any way. There is also no evidence in the lower court record that
defendant concealed any material facts from the court.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Henry William Saad
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