JOY L EBERLINE V NATIONAL CITY MORTGAGE INC
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STATE OF MICHIGAN
COURT OF APPEALS
JOY L. EBERLINE,
UNPUBLISHED
July 28, 2011
Plaintiff-Appellant,
and
WAYNE JOHNSON,
Plaintiff,
and
FARM BUREAU MUTUAL INSURANCE
COMPANY,
Intervening Plaintiff,
V
No. 292022
Livingston Circuit Court
LC No. 06-022513-NZ
NATIONAL CITY MORTGAGE, INC. and
DEFAULT SERVICING, INC.,
Defendants-Appellees,
and
DISTRESS SERVICES and GENE ESSE,
Defendants/Cross-Defendants,
and
MICHAEL AYOUB d/b/a REMAX TEAM 2000,
Defendant/Cross-Plaintiff,
and
MUSTAPHA ESSE,
Defendant.
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Before: SAAD, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Plaintiff Joy Eberline1 appeals by delayed leave granted from the circuit court’s orders
granting summary disposition to defendants National City Mortgage (NCM) and Default
Servicing, Inc. (DSI). Because the trial court properly granted summary disposition in favor of
both NCM and DSI, we affirm.
I. FACTS
In 2001, plaintiff and her husband purchased a house by way of a mortgage with
defendant NCM. Only plaintiff’s husband had secured the mortgage. Plaintiff and her husband
then commenced divorce proceedings, in the course of which the husband died, and payments on
the mortgage ceased. NCM foreclosed, and purchased the property at the attendant sheriff’s sale.
Plaintiff commenced action to challenge the foreclosure. A settlement followed, according to
which NCM paid plaintiff $95,000 in exchange for a covenant deed to the property, which
plaintiff executed on December 1, 2005. Mutual releases were additionally taken in conclusion
of the matter. Neither the covenant deed, nor the mutual release, reserved any rights to plaintiff.
And, plaintiff waived any rights in the property when she provided in her release, “waiving all
right, title and/or interest to the Property and that neither she nor her Estate will have any claim
or right whatsoever in the Property subsequent to the date of this Release.” Plaintiff further
averred that she told a title company closing officer, a non-party, that she needed about a month
to remove her belongings, and she further averred that she relocated on December 10, 2005,
leaving some personal property at the premises in issue.
NCM entered into a contract with DSI for DSI to perform real-estate owned services,
which are such services that normally follow a foreclosure as inspecting, securing, or marketing
the premises. DSI in turn entered into a listing agreement with defendant Michael Ayoub to
market the residence, negotiate with potential buyers, and otherwise arrange for a potential sale
of the residence. Ayoub then contracted with defendant Gene Esse, owner of defendant Distress
Services, to inspect and secure the property. Esse sent his brother, defendant Mustapha Esse, to
the house for that purpose. According to the complaint, plaintiff’s affidavit and deposition
1
Plaintiff Wayne Johnson is not participating in this appeal, having asked to be dismissed below.
Accordingly, for purposes of this opinion the singular “plaintiff” will refer exclusively to Joy
Eberline. The only defendants involved in this appeal are National City Mortgage and Default
Servicing, Inc. Defendant Michael Ayoub settled with plaintiff and intervening-plaintiff Farm
Bureau, The trial court entered a default judgment against defendants Distress Services,
Mustapha Esse, and Gene Esse.
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testimony, on December 30, 2005, Mustapha found the garage door wide open, and many
personal items in the house that plaintiff had apparently not yet removed. Mustapha notified his
brother, who called Ayoub, who advised that they remove the items. Mustapha accordingly took
the items home.
Plaintiff commenced the present action, her principal allegation being that she was still in
possession of the subject property when defendants and their agents unlawfully entered and
removed her personal items. NCM sought summary disposition on the ground that DSI was an
independent contractor and thus absolved of any liability for DSI’s acts. NCM submitted an
affidavit from its mortgage officer attesting that NCM had no rights or control over how DSI
performed real-estate owned services, and likewise no control over DSI’s subcontractors. In
response, plaintiff asserted that when the covenant deed was signed she made it known that she
would need a few weeks to relocate, but that it would take place no later than January 1, 2006.
At the hearing on the motion, plaintiff argued that the court should not reach the
independent contractor issue on the ground that this was a landlord-tenant dispute. She asserted
that when she signed the deed, she became a holdover tenant and, accordingly, NCM had a
statutory obligation to secure a writ of eviction before removing her belongings from the
premises.
The trial court accepted NCM’s argument and granted summary disposition on the
ground that NCM was not liable for the acts of its independent contractors.
DSI subsequently sought summary disposition on the same ground. At the attendant
hearing, DSI challenged the basis for plaintiff’s allegation that DSI should be held liable because
it failed to communicate the alleged agreement allowing plaintiff to stay until January 1, 2006 to
Ayoub, who failed to communicate it to Gene Esse, who failed to communicate it to Mustapha
Esse. DSI argued that there was no such agreement, and offered an affidavit from its operations
manager stating that no DSI employee was aware of any agreement between plaintiffs and NCM
whereby plaintiff had until January 1, 2006 to move out.
The trial court found that there was no evidence that DSI delegated authority to evict to
Ayoub, and that the evidence indicated that DSI contracted with Ayoub for only marketing and
sale. The court found no evidence linking any of Ayoub’s or the Esses’ conduct to DSI, or that
DSI was ever told of plaintiff’s occupancy. Concluding that there was no material fact in
controversy, the court granted summary disposition on the ground that DSI was not liable for the
acts of its independent contractors.
Plaintiff now appeals by delayed leave granted challenging the trial court’s decisions in
connection with both NCM and DSI.
II. ANALYSIS
This Court reviews a trial court’s decision on a motion for summary disposition de novo
as a question of law. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999).
When reviewing an order of summary disposition under MCR 2.116(C)(10), this Court examines
all documentary evidence in the light most favorable to the nonmoving party to determine
whether there exists a genuine issue of material fact. Id. In reviewing a MCR 2.116 (C)(8)
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motion, this Court accepts as true all factual allegations in the claim “to determine whether the
claim is so clearly unenforceable as a matter of law that no factual development could establish
the claim and justify recovery.” Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103
(1998).
The trial court granted both motions for summary disposition on the grounds that there
was no evidence that either defendant had control over its subcontractors, or knowledge that
there were indications of plaintiff’s continued occupancy of the subject property, or directed a
subcontractor to take any action against plaintiff or her possessions.
A. INDEPENDENT CONTRACTOR
An employer of an independent contractor is generally not liable for the contractor’s
negligence. Bosak v Hutchinson, 422 Mich 712, 724; 375 NW2d 333 (1985). An exception is
where the contract in question is for the performance of inherently dangerous activity. Id. at 724,
citing 2 Restatement Torts, 2d, § 409, p 370, and 41 Am Jur 2d, Independent Contractors, § 41, p
805. However, the instant case concerns no negligent acts, but rather the intentional conduct of
removing the personal property of the possessor of a premises without formal eviction
procedures or other legal process. Indeed, the trial court expressed the opinion that the conduct
in this instance may have been criminal.
Plaintiff likens the present case to the inherently dangerous activity exception recognized
in Bosak. Refining the argument to one concerning “the hiring of a contractor to perform acts
the contractor’s employer is itself banned by law from doing,” plaintiff cites Rogers v Parker,
159 Mich 278, 282-283; 123 NW 1109 (1909), where our Supreme Court approvingly quoted a
legal treatise as follows:
If the thing to be done is in itself unlawful, or if it is per se a nuisance, or
if it cannot be done without doing damage, he who causes it to be done by
another, be the latter servant, agent, or independent contractor, is as much liable
for injuries which may happen to third persons from the act done as though he had
done the act in person. So it is the duty of every person who does in person, or
causes to be done by another, an act which from its nature is liable, unless
precautions are taken, to do injury to others, to see to it that those precautions are
taken, and he cannot escape this duty by turning the whole performance over to a
contractor. . . . [Internal quotation marks and citation omitted.]
This statement logically extends beyond criminal behavior to any intentionally tortious conduct.
But key to invocation of this principle is that the conduct at issue be an inherent part of
the agreement between the employer and the contractor. In this case, however, there was no
evidence that either NCM or DSI hired anyone further down the contracting ladder specifically
to violate the law by breaking and entering a home, or to see to the matter of evicting plaintiff by
means legal or otherwise. Further, even if eviction of plaintiff was part of what NCM or DSI
were contracting for in the first instance, eviction itself is not an inherently criminal, tortious, or
dangerous activity, or a nuisance per se, that would bring any exception to the general rule of
nonliability into play.
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Invocation of the inherently dangerous activity exception requires that the hazard was
recognizable at the time of the contract, Bosak, 422 Mich at 728, or, by logical extension, that the
contracted-for activity would result in a crime, tort, or nuisance. But in this case there was no
evidence that NCM or DSI contracted for anything other than ordinary real-estate owned
services, which are not inherently dangerous, nor likely to result in criminal, tortious, or
nuisance-generating activity.
For these reasons, the trial court correctly recognized that no common-law exception to
the general rule of nonliability exposed NCM or DSI to liability under these facts.
B. ANTI-LOCKOUT STATUTE
Plaintiff relies on MCL 600.2918(2), to show that removal of her personal property from
the subject property was unlawful, and that damages for a violation by an actor’s agents may be
recovered from that actor. But scrutinizing the statutory language reveals that the statute does
not apply to the instant facts.
MCL 600.2918(2) states that damages are recoverable by “[a]ny tenant in possession of
premises whose possessory interest has been unlawfully interfered with by the owner, lessor,
licensor, or their agents.” MCL 600.2918(2)(b) details that “[u]nlawful interference with a
possessory interest shall include: the removal, retention or destruction of the tenant’s personal
property.” In this case, however, there was no evidence that NCM and plaintiff ever related to
each other as landlord and tenant. The only evidence of record negates a landlord tenant
relationship. Plaintiff offers no admissible evidence to the contrary.
For purposes of MCL 600.2918(2), “a ‘tenant’ is the individual or individuals who pay
consideration to the landlord for the right to occupy rental property,” as opposed to “the
members of the larger family unit dwelling in the rental property.” Nelson v Grays, 209 Mich
App 661, 665; 531 NW2d 826 (1995). Mere possession of premises, then, does not establish a
landlord-tenant relationship with the owner of those premises. In this case, plaintiff’s deceased
husband had an obligation to NCM to pay on a mortgage, but plaintiff herself never had any
financial obligation to NCM. Further, the mortgage on the subject property was part of a plan to
purchase the fee; the property as plaintiff occupied it was never a rental one. Moreover, plaintiff
had earlier settled with NCM, taking a mutual release and signed a deed conveying the premises
to NCM without reservation. The closing documents specifically waive any further right in the
premises by plaintiff. And plaintiff relocated on December 10, 2005. At the time Mustapha
removed the remainder of plaintiff’s personal belongings from the premises, plaintiff’s earlier
conveyance of the property and affirmative waiver left her without an enforceable right. Plaintiff
has not demonstrated that MCL 600.2918(2) applies to these facts.
Nor does MCL 600.2918(1), because that subsection concerns a person “ejected or put
out . . . in a forcible or unlawful manner,” and there is no evidence that plaintiff personally was
forced off the premises at all.
For these reasons, we conclude that the trial court correctly granted NCM’s and DSI’s
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respective motions for summary disposition.
Affirmed. Defendants, being the prevailing parties, may tax costs pursuant to MCR
7.219.
/s/ Henry William Saad
/s/ Pat M. Donofrio
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