ARCHIE A VAN ELSLANDER V THOMAS SEBOLD & ASSOC INC
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STATE OF MICHIGAN
COURT OF APPEALS
ARCHIE A. VAN ELSLANDER,
UNPUBLISHED
December 2, 2008
Plaintiff-Appellant,
v
THOMAS SEBOLD & ASSOCIATES, INC.,
DANIEL S. FOLLIS, and MARY ELIZABETH
FOLLIS,
No. 272396
Oakland Circuit Court
LC No. 2003-051583-CZ
Defendants-Appellees,
and
HOME INSPECTORS NORTH, INC., and
LINCOLN WOOD PRODUCTS INC.,
Defendants.
ARCHIE A. VAN ELSLANDER,
Plaintiff-Appellee-Cross-Appellant,
v
No. 274966
Oakland Circuit Court
LC No. 2003-051583-CZ
THOMAS SEBOLD & ASSOCIATES, INC.,
Defendant-Appellee,
and
DANIEL S. FOLLIS and MARY ELIZABETH
FOLLIS,
Defendants-Appellants-CrossAppellees,
and
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HOME INSPECTORS NORTH, INC., and
LINCOLN WOOD PRODUCTS, INC.,
Defendants.
Before: Schuette, P.J., and Borrello and Gleicher, JJ.
SCHUETTE, J. (concurring in part and dissenting in part).
I concur in the portion of the opinion of my distinguished colleagues, Judges Borrello and
Gleicher, that affirms the trial court’s grant of summary disposition to Thomas Sebold &
Associates, Inc. However, because I would affirm the trial court’s judgment effectuating the jury
verdict in plaintiff’s favor in the amount of $706,465.30,1 I must respectfully dissent from that
portion of the opinion.
I disagree with the majority’s conclusion that “[v]iewing the testimony of Morbach and
Wise in the light most favorable to plaintiff, the testimony of neither witness supports a
reasonable inference that the Follises’ failure to repair the shim under the south-facing dining
room French doors resulted in the extensive damage to the dining room floor, or contributed to
the mold in that area.”
“If reasonable jurors could honestly have reached different conclusions, neither the trial
court nor this Court may substitute its judgment for that of the jury.” Hunt v Freeman, 217 Mich
App 92, 99; 550 NW2d 817 (1996). This Court may only review questions of fact to determine
that the jury verdict is supported by the evidence; and the verdict should not be disturbed if it
falls within the range of the testimony given. Merkur Steel Supply, Inc v Detroit, 261 Mich App
116, 137-138; 680 NW2d 485 (2004).
I find that the expert witness testimony of Wise and Morbach provides sufficient
evidence to support that the Follises’ failure to repair did contribute to the damage and mold
resulting in the dining room and the basement. Also, a reasonable jury could infer from the trial
testimony that the disrepair of the dining room doors and the basement window well did indeed
contribute to plaintiff’s damages.
Wise testified that “there appeared to be extensive water damage from two French doors”
and that “it appeared to be either [sic] coming in under the threshold.” Wise further stated that
there was mold in the area of the south French doors as well as in the basement room with the
egress pit. Morbach testified that in the area of the south dining room doors there was
“discoloration on that toe molding there that provided evidence of water intrusion.” Concerning
1
The jury verdict award in favor of plaintiff was for the amount of $680,838.82 at four percent
interest for thirteen months, for a total award of $706,465.30.
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the basement egress pit, Morbach also testified that “there were cracks under the window, water
stains under the window, and water stains and visible growth on the floor, the lower six inches of
the drywall under the window.” Morbach concluded her testimony by stating that had the person
responsible for the repair of the window well fixed it, the repair would have corrected the water
intrusion and resulting mold.
Additional testimony regarding the actual billing for the damages linked to the Follises’
failure to repair was admitted into evidence as exhibits 307, 316, and 320. The exhibits are the
necessary and crucial element to sufficiently find that the jury award was not excessive. At first
glance, it may seem difficult to determine the exhibits’ room allocations for the billing; however,
the exhibits were explained in detail throughout the trial testimony.
Ultimately, the issue of whether the jury award is excessive boils down to whether the
Follises’ failure to repair can be connected with plaintiff’s damages and which exhibits are the
accurate and appropriate remediation connected with that failure to repair. A reasonable jury
could infer from the expert testimony of Wise and Morbach that the disrepair of the dining room
doors and basement window well significantly contributed to the resulting mold. If the
minimum attributable damages of that mold are calculated from exhibits 307, 316, and 320, the
amount totals $695,956.65. Therefore, the jury verdict for $680,838.82 is within the minimum
amount of billing attributable, and is not an excessive award that should be overturned by this
Court. For these reasons, I would affirm the circuit court’s order effectuating the jury verdict in
plaintiff’s favor.
/s/ Bill Schuette
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