RAYMOND HENRY ANDRES V STATE FARM MUTUAL AUTO INS CO
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STATE OF MICHIGAN
COURT OF APPEALS
RAYMOND HENRY ANDRES, by and through
his guardian MARK KEVIN PHILLIPS,
UNPUBLISHED
December 2, 2008
Plaintiff-Appellee,
v
No. 279608
Wayne Circuit Court
LC No. 04-411019-NF
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellant.
Before: Zahra, P.J., and Cavanagh and Meter, JJ.
ZAHRA, J. (dissenting).
I respectfully dissent. I would hold that the lower court erred in concluding “the
agreement is enforceable regardless of whether Swagler and Silverman engaged in fraud.”
Defendant presented to the lower court a federal district court judgment finding that Swagler and
Silverman had committed fraud in procuring the very contract of the instant case. Regardless
whether Lori or Raymond Andres were involved in the alleged fraudulent conduct, there “is an
old saying[;] ‘Fraud vitiates everything.’” Grigg v Hanna, 283 Mich 443, 278 NW 125 (1938).
Further, “‘[a]ssuming that [a] transaction ought not to have taken place, the court proceeds as
though it had not taken place, and returns the parties to that situation.’’ Roek v Board of Educ of
Chippewa Valley School Dist, 430 Mich 314, 422 NW2d 680 (1988), quoting Herpolsheimer v
Herpolsheimer Realty Co, 344 Mich 657, 666, 75 NW2d 333 (1956), quoting 3 Pomeroy, Equity
Jurisprudence (5th ed), § 910, p. 578. I conclude the lower court plainly erred in concluding that
“the agreement is enforceable regardless of whether Swagler and Silverman engaged in fraud.”
I reject the majority’s position that defendant waived any affirmative defense of fraud.
Plaintiff did not raise this argument below and it should not be considered on appeal. Issues first
raised on appeal need not be addressed by the appellate court. Booth Newspapers, Inc v Univ of
Mich Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). The lower court did not
consider the issue waived, and indeed expressly addressed the issue of fraud. Plaintiff did not
object to the lower court’s consideration of defendant’s claim of fraud and plaintiff certainly
cannot maintain defendant’s claim of fraud was a surprise. Also, as mentioned at oral argument,
had the issue of waiver been raised below, defendant could readily have requested an amendment
under MCR 2.118. Last, although plaintiff claims that defendant failed to plead fraud with
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sufficient specificity, I would merely note that defendant submitted the 110-page federal district
court complaint detailing the alleged fraud along with the ensuing favorable judgment.
I would reverse.
/s/ Brian K. Zahra
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