WILLIAM TRAYNOR V JOSEPH C MCMILLEN
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM TRAYNOR and PATRICIA
TRAYNOR,
UNPUBLISHED
August 5, 2010
Plaintiffs-Appellants,
v
No. 289284
Oakland Circuit Court
LC No. 2007-085355-NM
JOSEPH C. MCMILLEN,
Defendant-Appellee.
Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ.
GLEICHER, J. (concurring).
I concur with the majority in result, but write separately to express my disagreement with
two aspects of the majority’s analysis regarding the Deer Run matter.
The majority concludes that because plaintiff William Traynor neglected to “identify an
investment that would have guaranteed … eight percent interest,” his “no loan” damages theory
“fails for lack of adequate substantiation.” Ante at 6-7. In my view, plaintiff’s “no loan” damage
hypothesis should be rejected because it bears no relationship to the acts of negligence alleged by
plaintiff and is precluded by the full credit bid rule. Contrary to the majority’s analysis, the
evidence otherwise substantiated the reasonableness of an eight percent interest figure.
The “no loan” theory proffered by plaintiff asserts that had he kept his money rather than
investing in Deer Run, he would have $350,000 in hand for alternate investments. According to
plaintiff, the money could have been invested “at even 8% per year using simple interest,” which
would have yielded a significantly larger cash sum. But regardless of any alternative investment
opportunities available to plaintiff when he opted to loan money to Deer Run, defendant’s legal
malpractice did not proximately cause plaintiff to suffer any damages. Plaintiff testified at his
deposition that he loaned Deer Run $350,000 because he believed the investment would
“enhance [his] monetary position.” Plaintiff explained that the attractiveness of the investment
included a 10% interest rate.1 When plaintiff made the loan, he believed that he had a first-
1
Had defendant’s negligence actually caused plaintiff damages, evidence of the loan’s 10%
interest rate would have sufficed to reasonably support plaintiff’s claim that he could have made
(continued…)
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priority mortgage on the land that secured the investment and reduced his risk. Plaintiff further
averred at his deposition that the $350,000 loan “was a guaranteed investment. It was
guaranteed . . . by the property.” Thus, plaintiff’s testimony reflects his clear understanding that
if the borrower defaulted, the value of the property would suffice to cover the amount of his loan.
This bargain envisioned that in the foreseeable event the loan was not repaid, plaintiff would be
made whole through an interest in the property, instead of through principal and interest
payments.
Although defendant negligently failed to advise plaintiff that other secured creditors
stood in higher priority, plaintiff eventually obtained title to the land, precisely the same
satisfaction of the borrower’s indebtedness as contemplated in the original bargain. In other
words, defendant’s failure to perform a title search did not proximately cause any damages
because plaintiff received one of the alternatives for which he had bargained. Regardless
whether defendant neglected to reveal that other secured creditors had higher priority interests in
the land, plaintiff ultimately obtained it. Consequently, the evidence reveals no causal link
between defendant’s negligence and any damages attributable to the foreclosure.
The full credit bid rule also supports summary disposition in defendant’s favor. The full
credit bid rule envisions that a lender who makes a full credit bid at a foreclosure sale takes title
to the property in full satisfaction of the underlying debt. New Freedom Mortgage Corp v Globe
Mortgage Corp, 281 Mich App 63, 68; 761 NW2d 832 (2008). In New Freedom, this Court
applied the full credit bid rule to bar the plaintiff’s action against a nonborrower third party. Id.
at 74-75. Plaintiff’s brief does not address the full credit bid rule, and I can discern no reason to
forbear its application against a nonborrower third party under the circumstances presented here.
I also respectfully disagree with the majority’s analysis of plaintiff’s claim for
noneconomic damages. I would hold that the circuit court correctly granted summary disposition
of plaintiff’s noneconomic damages claim because he did not put forward any evidence of
emotional or mental injury. Plaintiff’s complaint does not set forth a claim for noneconomic
damages. Plaintiff’s answers to interrogatories relating to damages include no mention of
noneconomic injuries, but instead assert that $350,000 represents “the exact amount of damage
(…continued)
an investment yielding 8% interest. MCR 2.116(C)(10) permits summary disposition when,
“[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the
moving party is entitled to judgment or partial judgment as a matter of law.” A genuine issue of
material fact exists when the evidence submitted “might permit inferences contrary to the facts as
asserted by the movant.” Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 360; 320
NW2d 836 (1982). The majority’s criticism of plaintiff’s failure to “identify an investment that
would have guaranteed him eight percent interest” is entirely misplaced, given that the parties
agreed that the $350,000 investment at issue would have guaranteed an even higher interest rate.
Had plaintiff shown any link between defendant’s negligence and his alleged damages, this
circumstantial evidence and the inferences it supports would have sufficiently substantiated the
reasonableness of an eight percent interest yardstick and defeated summary disposition.
Furthermore, “[i]t is well established that, where the fact of liability is proven, difficulty in
determining damages will not bar recovery.” Reisman v Wayne State Univ Regents, 188 Mich
App 526, 542; 470 NW2d 678 (1991).
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you claim to have sustained.” Plaintiff’s deposition likewise made no mention that he had
suffered emotional or mental distress. Had plaintiff pleaded and put forward some facts
supporting even a reasonable inference of noneconomic injury, he would have survived
defendant’s summary disposition motion. However, because the record is entirely devoid of any
evidence of this late-raised claim, I agree with its summary dismissal.
/s/ Elizabeth L. Gleicher
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