HUSSEIN SHAMMOUT V ALI D ALI
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STATE OF MICHIGAN
COURT OF APPEALS
HUSSEIN SHAMMOUT and JAAFAR SLIM,
UNPUBLISHED
February 7, 2003
Plaintiffs/CounterdefendantsAppellants,
v
No. 234362
Wayne Circuit Court
LC No. 98-821507-CK
ALI D. ALI and WESSAM’S FILL-UP, INC.,
Defendants/CounterplaintiffsAppellees.
Before: O’Connell, P.J., and White and B. B. MacKenzie*, JJ.
PER CURIAM.
Plaintiffs appeal as of right from a judgment in favor of defendants in this action arising
from a lease agreement for a gasoline service station and mini-mart. We affirm.
On appeal, plaintiffs contend that the trial court erred in granting defendants’ motion for
directed verdict on plaintiffs’ fraud by nondisclosure claim. We disagree. This Court reviews de
novo the grant or denial of a directed verdict. Cacevic v Simplimatic Eng’g Co, 248 Mich App
670, 679; 645 NW2d 287 (2001). In reviewing the trial court’s decision, we view the evidence
presented up to the time of the motion in the light most favorable to the nonmoving party,
granting that party every reasonable inference, and resolving any conflict in the evidence in that
party’s favor to decide whether a question of fact existed. Id. This Court is cognizant of the
factfinder’s responsibility to determine the credibility and weight of the testimony. Zeeland
Farm Servs v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996).
Plaintiffs allege the trial court erred in granting defendants’ motion for directed verdict
because a reasonable jury could have determined defendants had knowledge of the construction
before the lease was entered into because defendant Ali offered to compensate plaintiffs for their
loss of profits. We disagree.
To show fraud or misrepresentation, plaintiffs must prove: (1) defendants made a
material misrepresentation; (2) it was false; (3) when defendants made it, defendant knew that it
was false or made recklessly without knowledge of its truth or falsity; (4) defendants made it
with the intent that plaintiff would act upon it; (5) plaintiffs acted in reliance upon it; and (6)
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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plaintiffs suffered damage. Arim v General Motors Corp, 206 Mich App 178, 195; 520 NW2d
695 (1994). A claim of silent fraud requires plaintiffs to set forth a more complex set of proofs.
M&D, Inc v McConkey, 231 Mich App 22, 28-29; 585 NW2d 33 (1998). “A fraud arising from
the suppression of the truth is as prejudicial as that which springs from the assertion of a
falsehood, and courts have not hesitated to sustain recoveries where the truth has been
suppressed with the intent to defraud.” Id. Michigan courts have recognized that silence cannot
constitute actionable fraud unless it occurred under circumstances where there was a legal duty
of disclosure. Id. A misrepresentation need not necessarily be words alone, but can be shown
where the party, if duty-bound to disclose, intentionally suppresses material facts to create a false
impression to the other party. Id. at 25. However, there must be some type of misrepresentation,
whether by words or action, in order to establish a claim of silent fraud. Id. at 36.
Upon review of the record, we find no evidence to show defendants had knowledge
regarding the construction, that defendants were suppressing information from plaintiffs, or that
defendants made any misrepresentations. Thus, plaintiffs did not prove the elements of silent
fraud. Plaintiffs both testified that defendant Ali disclaimed any prior knowledge of the
construction, and together with Shammout sought information from the on-site supervisor.
While plaintiffs asserted that as the property owner, Ali must have had notice of the impending
construction, they produced no evidence that letters were sent to property owners, or that
hearings were held, and cited no statutes or ordinances requiring that property owners be
notified. The trial court did not err in requiring that plaintiffs produce evidence to support their
assertions. Plaintiffs further assert that their testimony that Ali offered to make up the difference
in the profits after the loss was determined supports that he knew about the construction before
hand. On this record, we disagree. The evidence showed that Ali believed that business would
improve, and indeed, be better than ever, when the road was widened to four lanes. Further,
plaintiffs had the right under the lease to cancel the lease within the first year. Under these
circumstances, a promise by Ali to compensate plaintiffs for the net loss, offset by the
anticipated increase in profits after the completion of the project, does not support an inference
of prior knowledge.
We also conclude that plaintiffs failed to establish that a misrepresentation was made.
There was no evidence that plaintiffs asked defendants about any construction prior to signing
the lease, or made any inquiries regarding whether Ali had any knowledge of any facts that
might adversely affect business during the term of the lease. Therefore, the trial court did not err
in granting defendants’ motion for directed verdict on plaintiffs’ fraud by nondisclosure claim.
Plaintiffs also assert that the trial court abused its discretion in denying their request to
reopen proofs. We disagree. The reopening of a case after the evidence is completed is within
the sound discretion of the trial court. Clapham v Yanga, 102 Mich App 47, 56; 300 NW2d 727
(1980); Graham v Inskeep, 5 Mich App 514, 522; 147 NW2d 436 (1967). An abuse of discretion
is found only if an unprejudiced person, considering the facts on which the trial court acted,
would say that there was no justification or excuse for the ruling made. Ellsworth v Hotel Corp
of America, 236 Mich App 185, 188; 600 NW2d 129 (1999).
On issues of reopening proofs, this Court’s attitude has generally been one of
noninterference. Knoper v Burton, 12 Mich App 644, 649; 163 NW2d 453 (1968), rev’d on
other grounds 383 Mich 62; 173 NW2d 202 (1970). A critical inquiry is whether the petitioning
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party was unfairly deprived of its opportunity to present its case. Klee v Light, 360 Mich 419,
424; 104 NW2d 207 (1960).
Plaintiffs’ proofs consisted of both plaintiffs testifying, after which they rested.
Defendants then moved for a directed verdict, at which time plaintiffs requested to reopen their
proofs to call defendant Ali. The court observed that plaintiffs presented no evidence that
defendant had notice of the construction, and that plaintiffs had already testified that Ali denied
any knowledge when asked. Plaintiffs did not make an offer of proof regarding any other
testimony anticipated from Ali. The court did not abuse its discretion in refusing to reopen the
proofs under these circumstances. Further, as noted above, plaintiffs failed to show a
misrepresentation in the face of a duty to disclose, and the motion to reopen the proofs was
addressed only to the notice issue.
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Barbara B. MacKenzie
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