RICHARD R ROBERTS V ROBERT L SAFFELL
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD R. ROBERTS and STACEY D.
ROBERTS,
FOR PUBLICATION
August 21, 2008
Plaintiffs-Appellees,
v
No. 275458
Leelanau Circuit Court
LC No. 05-007063-CK
ROBERT L. SAFFELL and JOANNE O.
SAFFELL,
Defendants-Appellants.
Advance Sheets Version
Before: Markey, P.J., and White and Wilder, JJ.
WHITE, J. (dissenting).
I respectfully dissent. The majority reverses on the basis that there can be no claim for
innocent misrepresentation under the Seller Disclosure Act (SDA), MCL 565.951 et seq.
Nowhere in defendants’ brief or reply brief, however, is this argument made. Although
defendants raised the issue below,1 it is not raised on appeal because the case defendants lost at
the trial in this matter was not an innocent misrepresentation case. Rather, the issue presented to
the jury was whether defendants knew of the termite infestation and intentionally withheld the
information from plaintiffs. Notwithstanding the terms used at trial, this is not innocent
misrepresentation. On appeal, defendants challenge whether the evidence was sufficient to
support these findings and whether the court wrongly barred evidence that would have supported
defendants’ position that they had no knowledge. Even during argument in this court, defendants
conceded that these are the issues.
The unpublished cases the majority relies on are factually and procedurally different from
the instant case. This case was litigated and tried with the jury being informed of the limitations
on potential liability under the SDA. The issues of defendants’ knowledge and their credibility
in denying such knowledge, as well as their good faith, were properly submitted to the jury, and
there was ample evidence from which the jury could have concluded that defendants had
1
Before trial, the trial court stated on the record that defendants could again raise the issue in a
motion for a directed verdict.
-1-
knowledge of the infestation and did not act in good faith in completing their seller’s disclosure
statement under the SDA.
I would affirm.
/s/ Helene N. White
-2-
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